The State of Human Rights in Ten Asian Nations

The State of Human Rights in Ten Asian Nations - 2011
Bangladesh Burma India Indonesia Nepal Pakistan Philippines South Korea Sri Lanka Thailand
Human Rights Report - 2011 The State of Human Rights in Ten Asian Nations
Bangladesh Burma India Indonesia Nepal Pakistan Philippines South Korea Sri Lanka Thailand
AsiAn HumAn RigHts Commission (AHRC)
ii
The state of human rights in ten Asian nations - 2011
Asian Human Rights Commission 2011
ISBN 978-962-8314-54-6 (Print version) ISBN 978-962-8314-55-3 (PDF version) AHRC-PUB-004-2011
Published by Asian Human Rights Commission (AHRC) Unit 701A, Westley Square, 48 Hoi Yuen Road, Kwun Tong, Kowloon Hong Kong, China Telephone: +(852) 2698-6339 Fax: +(852) 2698-6367 E-mail: ahrc@ahrc.asia Web: www.humanrights.asia
February 2012
Printed by Clear-Cut Publishing and Printing Co. A1, 20/F, Fortune Factory Building 40 Lee Chung Street, Chai Wan, Hong Kong
Cover image: the Asian Human Rights Commission annual reports cover is based on a photograph of Filipino artist Nunelucio Alvarados painting Fuerza the AHRC thanks the artist for giving it permission to use this image.
iii
CONTENTS
v 1 64 82 120 179 250 364 393
Foreword Bangladesh Rulers establish an illusion of rule of law and democracy to deprive people by all means Burma From blinkered to market-oriented despotism? India Human rights a utopia without justice Indonesia The Decay of Pancasila and Constitutional Protections Nepal The State of Human Rights in Nepal in 2011 Pakistan The State of Human Rights in 2011 Philippines In a flawed system of justice, the social & systemic implications are irreparable South Korea The State of Human Rights in 2011
iv
404 517
Sri Lanka International Human Rights Agencies failed to notice the Collapse of Sri Lankas Public Institutions of Justice Thailand Consolidating internal security state, complaisant judiciary
ASIA: The state of human rights in Asia on International Human Rights Day 2011
A Statement by the Asian Human Rights Commission on the Occasion of the International Human Rights Day, December 10, 2011 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 AHRCs 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 peoples 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
vi
only because there is a lack of confidence in the polices 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 northeastern 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 regions 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 Generals 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
Foreword
vii
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 BahadurMahara, announced that his office was seeking to withdraw criminal cases dating from the time of the countrys 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 ArjunBahadur Lama and the disappearance and torture to death of MainaSunuwar. 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
viii
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 others 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.SomchaiNeelaphaijit 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 NallaratnamSingarasa 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
Foreword
ix
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 Thailands 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 States 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 AHRCs 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.
Foreword
xi
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 Armys (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. Clampdown on freedom of expression and attacks on human rights defenders 2011 witnessed a serious clampdown on the freedom of expression in many Asian countries. Restrictive laws were adopted and widely used to suppress dissent or political opposition. In Thailand, the government continued to use
xii
Article 112 of the Criminal Code dealing with the crime of lese majesty as well as the 2007 Computer Crimes Act to prosecute independent voices and actors in society, such as seen in the case of Ms.ChiranuchPremchaiporn. This has posed serious threats to the freedom of expression and the right to access to information. In Indonesia, the parliament adopted a new intelligence law on October 11, 2011, that allows the intelligence agency to intervene in cases where State secrets have been published, without providing any definition of the terms of the process used to classify information as such. This provides the agency with wide powers of discretion and is expected to result in arbitrary arrests and violations of the freedom of expression. In Malaysia, on November 29, 2011, the House of Representative passed the Peaceful Assembly Bill, which prohibits street protests. In South Korea, the Korea Communications Standards Commission (KCSC) newly sets up an organ to restrict freedom of expression over the internet. In many Asian countries, public assemblies and demonstrations often faced violent repression by the police. In Malaysia, the police brutally cracked down on tens of thousands of protesters who were calling for electoral reforms on July 9, 2011. Many protesters were injured and over 1,600 were arrested. On October 19, 2011, the Indonesian army and police forces opened fire on participants in the third Papuan Peoples Congress. At least three persons were killed and many more were injured. There were also many cases of violence against journalists. In Pakistan, 16 journalists were killed in 2011, including the prominent international journalist SaleemShahzad of the Asia Times, and many attacks were also carried out against journalists with 47 injured. In Indonesia, more than 60 cases of violence and several defamation lawsuits against journalists were reported in 2011. Human rights defenders (HRD) have been repeatedly threatened by state agents and non-state actors. Many of them face criminal prosecution by the authorities. Often, fabricated charges are framed against them. Some were severely tortured, disappeared or even killed. In Thailand, there is a rising concern about the increase of prosecutions or threats of prosecution against human rights defenders, under criminal charges such as trespassing or lese majesty. For instance, in October 2011, Ms.JintanaKaewkhao, an HRD in PrachuabKhiri Khan, was sentenced to four months in prison by the Supreme Court on charges of trespassing, under Article 362 of the Criminal Code. In
Foreword
xiii
South Korea, two human rights defenders Mr. Park Lae-gun and Mr. Lee Jonghoi were given a three-year and one month jail sentence suspended for four years and a two-year jail sentence suspended for three years respectively, by the district court. According to the judgment, they were found guilty of organising assemblies and demonstrations that clearly pose a direct threat to public peace and order, organising banned assemblies and demonstrations, organising outdoor demonstrations after sunset and obstructing general traffic. In Pakistan, there was an increase in the extrajudicial killing of activists in Balochistan province. It is reported in many cases that the Frontier Corps (FC) and plain clothed persons abducted activists, whose whereabouts remained unknown until, several months later, their bullet-riddled and tortured bodies were found. This also happened in other parts of Pakistan. Since July 2010 to date AHRC documented the cases of 215 persons whose bullet riddled bodies were found. In Bangladesh, human rights defenders are working in a very intimidating environment, under constant surveillance and threats by the intelligence agencies, the notorious Rapid Action Battalions and the military. The brutal attack on FMA Razzak on April 29, 2011, in which he was severely beaten, including an attempt to gouge out his eyes, before being left for dead, shows the risks faced by human rights defenders in Bangladesh. Following the attack, the role played by the countrys National Human Rights Commission (NHRC), has been of added concern. Despite repeated requests by the AHRC, as well as by other persons and groups inside Bangladesh and internationally, the NHRC has failed to act on this case. Religious intolerance and violence The increase of religious violence in some Asian countries deserves more attention, especially in Indonesia and Pakistan. In Indonesia, the increase of religious violence is exemplified by the killing of three Ahmadiyah followers in February 2011. Violations of the freedom of religion, the right to life, and the right to remedy of members of religious minorities, have increased in recent years in Muslim-dominated areas of Indonesia, such as West Java, Banten and DKI Jakarta. Violence against minority groups and terror bombings in places of worship illustrate the decline of religious tolerance and freedom in the country. Christian churches have been bombed and burned, while local administrations
xiv
have banned such religious communities from worshiping on their land in many cities and towns, allegedly to avoid conflict with mainstream Muslim groups. Attacks on religious minorities in Java and other parts of Indonesia in recent years have also shown that the police and courts are unwilling to protect individuals or groups from attacks and other abuses by the religious majority. In several cases the police have failed to conduct investigations and perpetrators are not being brought to justice. Attempts by hard-line religious groups to obstruct religious minorities from worshipping have taken place with the acquiescence of the police. In the few cases that were brought to court, the perpetrators received only lenient punishments. As a result, the credibility and functioning of the justice institutions have been seriously undermined. In Pakistan, 2011 has been marked by the killing of hundreds of persons by extremist religious groups, including by those operating within the security forces. Killings have even targeted high-profile personalities, such as Mr.ShahbazBhatti, the governor of Punjab province, and Mr. Salman Taseer, the federal minister of minority affairs. The governments inability to halt religious and sectarian intolerance has strengthened banned militant religious groups in their efforts to organize, collect funds and hold large rallies. The lack of credible action by the government has enabled the forced conversion to Islam of girls from religious minority groups by different methods, particularly though abduction and rape. Around 2000 girls from minority groups were forced to convert to Islam according to Christian and Hindu organizations. Some 161 persons faced blasphemy charges in the Pakistan in 2011. Nine of them have been killed. In conclusion, it is clear from the ten reports that the AHRC is releasing to coincide with International Human Rights Day 2011, that the road towards the full enjoyment and protection of human rights remains fraught with obstacles in the Asian region. Alongside detailing the many forms of grave rights violations witnessed in different countries during the year, the AHRCs reports aim to provide insight into the institutional shortcomings that must be addressed in order for real change to occur. The AHRC hopes that these reports will encourage all actors concerned with human rights, as well as the governments that have the obligation to protect and ensure these rights, to engage in effecting much needed reforms to enable positive developments across the region in the months and years to come.
Bangladesh
BANGLADESH
Rulers establish an illusion of rule of law and democracy to deprive people by all means
Introduction: An Illusion of Rule of Law and Democracy Bangladesh celebrates her fortieth year of Independence from Pakistan this year with an elected government in power for three years now after two years of a military-controlled emergency regime. Prior to the last general election the Bangladesh Awami League, like all other political parties of the country, made a huge number of pledges before the public, some of them written in the election manifesto while many other made in rhetorical speeches by the top leaders, including Sheikh Hasina, the incumbent Prime Minister. The nation continued its culture of political polarization between the ruling and the opposition groups by blaming each other for the countrys woes, as the Asian Human Rights Commission (AHRC) exposed in its reports in the previous years, paving the way for the perpetrators to violate the fundamental human rights of the countrymen unabatedly. There has been no required development as far as the democratization and the establishment of the rule of law is concerned. Moreover, the recurrence of gross abuse of human rights such as enforced disappearances, deprivation of right to life by extrajudicial methods killing suspects in the pretext of crossfire and encounter and torturing detainees to death while in the custody of the state agents, not only continued but have increased alarmingly. There have been a number of incidents where the police captured persons on suspicion and offered them to a mob for lynching instead of producing them before a magistrate or investigating as to whether the person was innocent or not. The police and other paramilitary forces, specially the Rapid Action Battalion (RAB), kill crime suspects in the pretext of crossfire, on the one hand, while on the other; they have been encouraging the people to commit extrajudicial murders. The government did not tolerate a different opinion to grow or the voice of the opposition be heard in the country. The police and paramilitary forces continued their service as hired musclemen of the ruling regime, as part of the culture of Bangladesh throughout decades, without any exception during the last three years of the Bangladesh Awami Leagues government. Freedom
of assembly and association has been continuously denied by the State and continuously remained under extreme threats of brutal attacks by the police. Meetings, demonstrations and processions of the opposition political parties and workers, who demanded their due pays from the employers, and students, who protested against higher tuition fees, regularly came under brutal attacks by the law-enforcing agents, in collaboration with the armed gang of the ruling political parties in many occasions. Exercising or enjoying the freedom of expression was challenging for the media and human rights groups, who appeared to be critical to the abuses of the government and various agents of the State. Journalists received telephonic threats from the members of the law-enforcing agents and security forces, specially the Rapid Action Battalion (RAB) and the police and other intelligence agencies of Bangladesh as common phenomenon. Opinion-makers, who express critical views through their speeches, writings and research works, have been under serious intimidation and threats followed by surveillance of the National Security Intelligence (NSI), Directorate General of Forces Intelligence (DGFI), Rapid Action Battalion (RAB) and the Detective Branch (DB) of the Bangladesh Police. In several cases plain clothed members of these agencies physically visited the houses of the critics of the government in late night or in early morning and intimidated the individual professionals, including journalists and university-teachers. Almost every night such midnight-visits have taken place in the country. In several cases, by around midnights plain clothed persons, who claimed to be governments men, instructed the security guards of the residences of professionals to ask the professionals come out of the main door for having a chat with the awaited persons. It has been confirmed by several direct victims of such incidents and eye-witnesses that the plain clothed so called governments men had come to the targeted places by vehicles that appear to be private cars. These ongoing midnight-visits have created extreme fear in the society in order to silence the critical voices of the country. No visible protest in public or registration of any complaint has ever taken place against these threatening visits as the countrys judiciary is incapable of providing an effective remedy to the victims under the existing suppressive attitudes of the government. Brutal forms of torture, which is endemic and an integral part of Bangladeshs law-enforcement system, has been wide spread in the country. All lawenforcement and security agencies of the State -- the police, Rapid Action Battalion (RAB), intelligence agencies, armed forces and other paramilitary forces continue to carry out illegal arrests, arbitrary detention, and torture in their respective torture cells, camps, offices, stations and outposts operating across the country. A number of high profile political persons including the incumbent Chief Whip of the Opposition in Parliament Mr. Zainal Abedin
Bangladesh
Farooque, a senior Member of Parliament, were tortured by the police officers in public, which has been broadcast by almost all private television channels of Bangladesh. The ruling political party leaders, as it happens in all regimes in the country, not only defended the perpetrating police officers, who were exposed to be politically recruited in the police service, instead of prosecuting them but also accused the opposition leaders for creating the grounds for the torture. Policing and law-enforcement, by paramilitary force like the Rapid Action Battalion and intelligence agencies, in Bangladesh are based on bluff to the people of the country and the international community. Illegal arrest and detention followed by brutal forms of torture reached to such an alarming stage where a lawyer of the Supreme Court named Mr. Mamtaz Uddin Ahmed, who was also a former Deputy Attorney General, was allegedly tortured to death for his political attachment with the mainstream opposition party. The incumbent Attorney General of the country and the higher judiciary did not play any effective role to protect the lawyer from torture while the police tortured him after his midnight arrest under the custody of the Detective Branch (DB) of police in the capital city, Dhaka. The police have denied the deceaseds relatives access to the complaint mechanism by refusing to register a complaint from the family regarding the allegation of death due to torture in police custody. A writ petition was filed with a High Court Division Bench, which issued a rule against the government asking the authorities to ensure adequate medical treatment either at home or abroad; however, the order was not implemented by the government. After having been hospitalized for nine days since 16 August 2011 Mamtaz died on 26 August at a private hospital, where treatment costs were paid by the family while he was still under police custody. No action has been taken against the perpetrators to date. Ironically, the whole judicial system of Bangladesh has utterly failed to hold the perpetrators accountable for the alleged murder of the lawyer. The higher judiciary of Bangladesh appears to be placed in auction for those persons loyal to the ruling political party. The recruitment process in the higher judiciary has been a matter of choice of the ruling party backed lawyers and high ranking political leaders instead of academic and professional quality and merit of the candidates, judicial ethics, norms, rules of recruitment and the very notion of integrity of the judicial institution. Since the Bangladesh Awami League assumed office in January 2009 there have been more than 50 judges recruited in the High Court Division of the Supreme Court of Bangladesh. In all the cases political loyalty and nexus, and relationship with the influential persons were given priority to choose the candidates for the higher judiciary. The Supreme Court, which has developed rules for recruiting judges in the higher judiciary, has not follow those rules
at the time of recruitment, or elevation from the subordinate judiciary to the higher judiciary, of a number of Additional Judges in the High Court Division. The existing reality evidently establishes that Bangladesh neither has democracy and rule of law nor has any political will among the power-centered politicians other than blaming each other for assuming power, by deceiving and blackmailing the ordinary people from regime to regime. There is only the illusion of democracy and a faade of the rule of law, by showing few buildings named as courts and groups of people given the identities of judges, lawyers, prosecutors, attorneys and investigators without any sense of justice in place at all. Freedom of expression, opinion and human rights activism being narrowed to non-existence The notion of freedom of expression is understood in a unique way in Bangladesh as the authorities provide a superficial type of freedom of expression and opinion for the media and the political opposition leaving them a very narrow space. At the same time many widened rooms are left in the control of the authorities for harassing the critics of the ruling regime and the machineries of the State. The enjoyment of freedom of expression depends on the particular media or individuals capacity to sustain the wrath of the authorities unless the individual is believed to be insane. A free press, in expressing harsh truth to expose anything that the ruling regime and the pro-military establishments never want to reveal, survives in the face of continuous intimidation and pressure from the political and military authorities who insist that the media censor the unexpected news stories. In the given circumstance the media has to remain alert to treat any information considering the potential consequences, which inspires most of the print and electronic media to choose self-censorship even though the particular media is not intended to be politically biased. Partial freedom of expression, by being critical to few and keeping mum to many unlawful actions, can be enjoyed by few high profile media personalities in cases where the journalist himself or herself or the head of the particular media maintains relationships with the relevant authorities in personal capacity or having creating a self-protection mechanism. Freedom of expression as a fundamental right has been practiced in various ways by different groups in the country. However, this forecasts the potential consequences. Very few newspapers dare to use this right followed by close connections with the power-centered groups in the midst of a clear division among the media professional on the basis of their belongingness to the political camps. Every ordinary journalist, who strays away from the politically
Bangladesh
polarized groups, has to think twice whether his or her writings, containing a criticism or appreciation to either political group, though may not earn any benefits but can invite obvious harassment in the long run, if not in the current regime but in the successive regime as well. A great deal of media is being established by companies for the mere purpose of protecting the image and business interests of the owner of the company, who may have political interests as well for or against either conflicting political groups of the country. A fair report, which keeps distance from the interests of the employing company that hardly wants to follow the journalistic ethics ensuring freedom of expression, may result to unemployment of journalists while there have already been many such examples in the country where journalists have lost their jobs overnight, without any prior notice, for going beyond the personal interests of the employing authorities. The thoughts in the back of the minds of the journalists also include whether there can be any influential person, or media, found to protect him or her in case the victims of news start taking revenge against the journalist. In fact, the divided journalist communities never stand firm and united beside their colleagues when any of them is under attack either by their employers or by the State agents, except for a few eye-wash meetings and press-briefing-based result-less demands. Exposure of gross violations of human rights by the State agents had been the main reason for receiving threatening telephone calls to journalists, bloggers, and human rights defenders. Out of many examples, in one case, a journalist, having the reputation of exposing incidents of extrajudicial killings and enforced disappearance in the media for several years, claimed to keep his identity undisclosed for security threats, received threatening calls the high ranking officials of the Rapid Action Battalion and intelligence agencies Photo source: for exposing factual stories that they had attempted www.sheershanews.com to cover up in officially formulated stories by the State agents. In such condition the individual journalist or human rights defender exposes himself or herself to a helpless atmosphere where he or she has to protect herself or himself on their own. At best, a few personal friends from the same professional community or relatives or family friends may stand beside the threatened professional. On the other hand, the journalist union or human rights organizations are unable to take any unanimous measure in support of the persons under threat even though the life of the individual journalist or human rights defender is at serious risk.
In 2010, the AHRC raised the case of Mr. F M Masum, a journalist of a national English daily, there was no significant movement initiated by the journalist community when Masum was brutally tortured by the RAB. Likewise, in 2011, Mr. Md. Ekramul Hoque, editor of Sheershanews.com a wire news agency based in Dhaka and Weekly Sheershaw Kagoj, was arrested from his house in the early morning of 31 July 2011. Two weeks before Ekramuls arrest the authorities suddenly cancelled the accreditation cards of the journalists of his news agency without any explanation revealed in public. It was perceived by the journalists community that the government cancelled the accreditations and arrested Ekramul for publishing news containing stories of corruption involving ministers and high profile politicians and government officials. Ekramul was detained in fabricated extortion cases one after another. Mr. Ekramul was taken in police remand for several days and interrogated in the custody of Task Force for Interrogation (TFI), which is reputed for using systematic torture in its specialized torture cell, and allegedly uses brutal forms of torture, according to his colleagues in the news agency. The police re-arrested him on 1 November, after three months of detention after having been granted ad-interim bail in two fabricated extortion cases by High Court Division Bench on 25 October, in front of the main gate of Dhaka Central Jail as soon as Ekramul stepped out of the prison and further detained in another fabricated extortion case filed by a public official. He was only released on bail on 26 November after almost four months of illegal detention on fabricated cases. Another journalist, out of many other similar cases, was picked up a team of police after midnight from the main door of his rented house in the city of Dhaka at around 1am on 3 November 2011. The journalist was identified as Mr. S M Nuruzzaman, a staff reporter of vernacular tabloid newspaper Daily Manabzamin in the crime news section of the newspaper. The police put him in a police van from the Adabor area after confirming his identity as a journalist for staying outside in the early hours of the night. The police brutally tortured Nuruzzaman when he asked whether there was any lawful restriction for the people to stay out of their homes at that time of the night or not. The police team, who snatched Nuruzzamans cell phone immediately after arrest, drove him to a place where a group of workers were working in a construction project. On the way the police officers led by Sub Inspector Anowar Hossain of the Adabor Police Station informed Nuruzzaman that there had been an incident of hijacking of BDT 200,000 from Photo source: a person, and threatened that the police will shoot at S M Nuruzzaman
Bangladesh
his leg and expose him as a snatcher. The police officers confidently claimed that none of your fathers will be able to rescue you from us. From a switched off extra-mobile phone Nuruzzaman managed to call one of his journalist colleagues while the police left him on board to plan how to sell the journalist as a criminal. As a result of immediate arrival of a number of journalists at the scene and communication with high ranking police officers Nuruzzaman was released alive and un-handicapped from the jaws of the police. He sent petitions to the Commissioner of the Dhaka Metropolitan Police seeking an investigation and punishment of the alleged perpetrators on the following morning, however, nothing has happened to the errant police officers till the period of writing of this report. Torture of journalist Gias Ahmed does not lead to any investigation let alone a prosecution: Mr. Gias Ahmed, aged 43, is a senior journalist who works as Joint News Editor of Desh TV in Dhaka. On 14 February 2011, at around 4:30pm, Mr. Gias, on his way to office, was trapped in traffic congestion at the SARC Fountain roundabout near to the Bashundara city. Giass car with hundreds of others remained at almost a standstill despite several changes of the traffic signals for more than an hour. When Giass car was also asked by the police to turn towards an unusual direction he asked a traffic policeman named Mosharaf about the reason of the mismanagement of the traffic system. He suggested that instead of blocking a particular road for hours the police could allow through at least few vehicles in short intervals to avoid prolonged standstill traffic trap in other roads adjacent to that point. In response, the policeman made a very ugly gesture at Gias showing the cane in the policemans hand and shouted at Gias saying chor (thief ). He also asked Giass name, abused him verbally and indicated that he should get out of the car. Getting out of the car Gias asked the policeman the reason for this gesture and why he had instructed him to alight from the vehicle. Suddenly, the policeman started beating Gias. At that stage, Gias introduced himself as a journalist and requested the officer to stop. The policeman continued to beat Gias and two plain clothed men, who were later identified as police-sources, and three police officers, namely Sergeants S M Asad, Ashraf and M A Baten joined constable Mosharaf. They beat Gias indiscriminately with sticks, fists, and kicked him in full view of the other motorists in public. Giass spectacles were broken and his right eye was swollen as a result of torture. The police dragged Gias to a nearby police outpost and continued torturing him. During the torture Gias tried
to inform his colleagues about his situation while the police snatched his cell phone. Meanwhile, a police vehicle led by plain clothed Sub Inspector (SI) Jahangir Alam arrived at the police outpost and said, Lets go to thana (police station). We will hang you, nail you, give electric shocks and as many methods as you need. We will push hot egg through your anus. Then, we will see who the hell you are! At around 6:15 pm the policemen dragged Gias to the police van for taking him to a police station. In the vehicle two policemen sat on each side of Gias. They told him it was to prevent him from escaping by jumping from the van. Showing identity card Gias asserted that as a journalist he fights for what is just and will never try to escape. Using filthy language and laughing at Gias the police said, We did not understand that you are a journalist. We thought you were a street-hawker and pretending to be a journalist. Gias asked, If I am hawker, can you torture me like this? The police then beat him again. The policemen boastfully shouted at Gias by saying in filthy language, We have sized (beaten) many journalists; and, nothing (has) happen(ed) to us. Nothing will happen at the end, if we beat you. A policeman suddenly accused Gias of possessing arms illegally and the others started searching his body in humiliating manner. A police source, who was on board carrying a gun underneath his shirt, showed the gun and threatened that they will fabricate a criminal charge against Gias using that weapon. They intimidated him by saying that You will languish in jail for 44 years, and will never be freed, if we do what we can! The police named many journalists with the names of their respective media and said, If you are a true journalist, so what? We are capable of taking care of many men who are bigger than you!
Journalist Gias Ahmeds swollen eye at the Tejgaon police station after police torture. Photo credit: Zia Islam
At the Tejgaon police station the police dragged Gias down from the police van and detanined him for hours while abusive language and humiliation continued. Gias gave his name card to a police officer and requested him to check with the Desh TV about his true identity. The Duty Officer insisted Gias to put his signature on a statement that he (Gias) had committed a crime for which he was brought to the police station and upon his (Giass) written apology and guarantee of not committing the same crime in future the police would release him. Gias refused to give a fabricated statement to the police and
Bangladesh
strongly told the police to specify the crime which they referred to and produce him before a court, which police denied. A police-source approached to Gias and demanded money by saying, Give some money and make your way out! As Gias strongly refused to pay a penny to the police, the surrounding policemen said in filthy language, Brother-inlaw still erupts despite so much torture! For refusing to pay the money the police transferred Gias to a police cell from the room of the on duty officer, as a punishment. A policeman came to the cell and asked about his home town and Gias, replied that he was from Gopalganj district (which is the home district of the incumbent Prime Minister of Bangladesh). The policeman spoke in a manner so as to suggest that Gias was inferior to him (police), Do you know that all the OCs (Officer-in-Charge) of the police stations of the city of Dhaka are from Gopalganj? Being a man from Gopalganj, who are in power, you are beaten in this manner! Its a pity! Meanwhile, a number of journalists, photo-journalists and camera-crew among various media arrived at the Tejgaon police station. The journalists were restricted from taking photo of Gias in the police cell by the police officers. Both the police and the journalists argued with each other regarding the reason for torturing and detaining Gias at the police cell as well as the serious visible injuries on his face and body. After a long debate the police brought Gias to the office room of the on duty officer. Following physical arrival and interventions from the President of the Bangladesh Federal Union of Journalists (BFUJ) senior leaders of the journalist community he was released from the police station at around 12:45am without any charge being made against any of the perpetrators. Before releasing Gias the perpetrator police officers claimed that Gias was beaten by the mob and the police rescued him while the senior police officers rebuked them by saying, Dont we understand what happened and what you claim after 11pm of the night? The police officers received assurance from the journalists that they must forget everything and not to publicise the incident through the media and pledged that the matter will be investigated properly by the police authorities. However, nothing happened to any of the perpetrators. Later, the Dhaka Metropolitan Police formed a two-member departmental probe committee comprising of Additional Deputy Commissioner (Traffic) of the West Zone Md. Elias Sharif and Sergeant Hasnat Nazmul Alam. The committee visited Giass house and took a statement from Giass car driver Mahmud Hasan Daud, who was key witness at the time the police tortured Gias on the street. The probe committee, which was formed for a departmental inquiry, hardly maintained any credibility at all. The formation of this
10
committee itself appears as a farce while the senior police officers were well aware of the practice of the police and particularly about the situation what journalist Gias Ahmed went through. They ensured that a criminal case against the police officers for torturing Gias was not registered although there was visible evidence of torture as well as witnesses right in front of them. The police apparently tried their level best to ensure that the journalist community did not publicize the incident as a high profile torture case, which is a default practice to suppress the facts relating to the prevalence of torture in the country. Neither the committee nor the DMP authorities has ever released any information regarding the findings of the departmental probe until now. The Bangladesh police maintain a chain of corruption instead of any chain of command or obligation to uphold the laws of the land. It is not capable of conducting a credible and fair investigation. Instead, it is generally understood that the departmental probe committees are formed to utilize the authority of the superior officers as new opportunity to extort more money from the police personnel, who are time to time indentified as the perpetrators of torture and violation of law. These cases are records of what happens in everyday life at the hands of the police in Bangladesh. In the case of Gias Ahmed, the only difference is that the leaders of the journalists community were able to intervene to rescue the victim alive from the jaws of the police without a fabricated charge against him. In thousands of cases ordinary people fall prey to the police and other paramilitary forces like the Rapid Action Battalion (RAB) as well as at the hands of the armed forces in similar or further brutal manner that go unrecorded, unintervened and unaddressed due to the absence of mindset, commitment, ignorance and failure of the victim to expose that he or she is an important and dignified person. In the meanwhile the culture of blatant impunity is entrenched within the system from the bottom to the top of the governmental institutions and it has been spread around in the grassroots level of the society as well. Illegal Arrest and Arbitrary Detention followed by Fabricated Charges The pattern of law-enforcement in Bangladesh is based on illegal arrest on suspicion without any credible investigation into a crimes before making the arrest, which by default supplements with arbitrary detention for indefinite period, extortion of money from the detainees or their relatives by using torture, and fabricating criminal cases or implicating them in pending cases for failing to pay the required amount of bribes.
Bangladesh
11
Illegal arrests followed by arbitrary detention and fabrication of criminal cases against individuals continued on a random basis as the police routinely do in Bangladesh. No person needs to be an offender of a criminal act for being subjected to illegal arrest in Bangladesh. The police are habituated to arrest, especially the political activists and supporters of the opposition party on instructions from the ruling political masters and, on a daily routine basis, anyone among the pedestrians, students, journalists and lawyers without any credible evidence of the arrestees involvement in any criminal act or a warrant for arrest issued by a competent court of law. There have been numerous illegal arrests and arbitrary detention made in Bangladesh, however, there are no exact statistics as no institution is capable of, or has access to, records of illegal arrest and arbitrary detention as per the existing infrastructure and attitudes of the public institutions, and the law-enforcing agencies and security forces in particular. Arresting people illegally and detaining them arbitrarily is a multipurpose lucrative business for the police and other law-enforcing agents of Bangladesh. On one hand, a detainee, who is afraid for his life under the custody of the lawenforcers, can be source of income, as policing or law-enforcement without bribery cannot be imagined in Bangladesh, for the State agents. On the other hand, the detainee, despite his innocence, can be exposed as a criminal by having fabricated cases made against him. Some of the detainees can be exposed as militants by using torture and ill-treatment for a prolonged detention, and, or, harassing his close relatives. Arresting a so called disguised militant is normally understood as a great success of the law-enforcement agencies, who often exploit the popular public preferences to continue their business of abusing the laws of the land, which also brings about several benefits for them. First, the law-enforcing agents glorify their success of serving the nation with professional commitment. Secondly, such so called success opens windows for them to earn gallantry rewards. Thirdly, they can establish the importance of the existing methods of law-enforcement by coercions, collaboration with the original criminals, and torture as key point that the system works successfully. Fourthly, the pro-coercive advocates of the State agents can bury the debates of promoting justice and human rights by cornering the policymaking authorities to give up the thoughts of reforms for a pro-democratic rights and justicebased law-enforcement and policing system. It must be remembered that the countrys politicians and bureaucrats want to see the police as hired gunmen for the ruling regimes regardless whoever is in power having a judiciary, which is visibly incapable of establishing justice for many reasons. Ultimately, the existing law-enforcement and criminal justice systems in compliance with an intolerant and violent political culture with the support of an anti-people bureaucracy endlessly propagates for an illusion of democracy
12
and mockery of rule of law without any existence of either democracy or rule of law in their true senses. Systemic practice of torture in the absence of a commitment by the ruling regime to protect citizens from it Torture and law-enforcement is synonymous in Bangladesh, as this practice is at the heart of ordinary police work. It is also used as a tool to repress the governments political opposition through the law-enforcement agencies, who act as hired gunmen for whichever party is in power, regardless of whether it is an elected or unelected technocratic civilian government or a military dictatorship at the time. The police are the main agency responsible for the endemic use of torture. They make use of torture for all manner of situations and operations, particularly at the time of arrest and during arbitrary detention of criminal suspects. Torture is used to extract confessional statements during investigations into routine criminal cases. The police, who lack professionalism and training, often disregard the laws of land and procedures for arrest and detention. They use torture and ill-treatment at the time of arrest, which are frequently not made with a proper warrant issued by a competent court. They detain suspected criminals for days and even weeks without any publicly-available record being available regarding their arrests and detention. Under such circumstances, they torture the detainees, mostly to extort money from them or their relatives, and in order to force them to make confessional statements that incriminate themselves or others, as desired by the police. Failure to provide the required amount in bribes to the police results in brutal forms of torture is used and fabricated criminal cases being lodged against detainees. The police have turned all of their police stations, barracks, interrogation cells - such as the Task Force for Interrogations (TFI) cells - and other departments, such as the Criminal Investigation Department (CID), Detective Branch (DB) and Special Branch (SB), into an industry that uses torture to generate wealth. This also generates large numbers of victims, who then face stigmatisation, social exclusion, denial of access to adequate medical treatment and denial of access to the complaint mechanism leading to absolute injustice for the rest of their lives. Beside the police, the Rapid Action Battalion (RAB), a paramilitary force comprising members of the armed forces, border guards and the police, which are regarded by the authorities as an elite force, is notorious for being a force of licensed killers due to its record of extra-judicial killings and torture. It maintains specialised torture cells with sophisticated equipment used to torture detainees. The armed forces and intelligence agencies operate their own secret
Bangladesh
13
torture cells, where detainees are kept for indefinite periods, without any access to the outside world. There is also a specialised team called the Joint Interrogation Cell (JIC), who are specialised in using torture as part of investigations. Torture causes many deaths and severe physical disabilities in a large number of persons every year in Bangladesh. No authority keeps any records or statistics concerning the numbers of victims or level of physical, social and economic losses that result from this prevalent practice. Survivors of torture are also denied access to adequate medical treatment for their injuries due to harassment by State-agents, not only to the victims and their families, but also to medical doctors and health professionals. Torture continues unabated, as complaint mechanisms, which are mostly controlled by the police do not allow survivors to register formal complaints at police stations. Most victims cannot afford to hire a lawyer to file a complaint with the Magistrates Courts. Anyway, these typically lack the judicial mindsets required to ensure justice for victims of torture and human rights abuses, instead paving the way for perpetrators to walk free, as the police control both the investigation and the prosecution at the Magistrates Courts. Prosecutors are appointed by the ruling political parties after every new regime assumes office. These prosecutors maintain close affinities with the ruling party and with the police, to cover up the crimes of the state-agents. This practice denies the right to justice and judicial remedies for the survivors of torture and other gross abuses of human rights in Bangladesh. With the afore-mentioned practical hurdles entrenched within the systems of the criminal justice of the country, torture is not defined in domestic legislation even though the Constitution of Bangladesh prohibits torture and ill-treatment under Article 35 (5), which reads: No person shall be subjected to torture, cruel or inhuman or degrading punishment or treatment. As a State-party to the ICCPR and CAT, Bangladesh has the obligation to protect its citizens from torture and it must ensure justice and reparation for victims of torture. It has been more than twelve years since the nation ratified the CAT. However, the country has still not criminalized torture in its domestic legislation, although a draft law titled Torture and Custodial Death (Prohibition) Bill-2009 remains pending since 10 September 2010 before its national parliament. A Parliamentary Committee for Private Members Bills and Regulations headed reviewed the Bill and submitted its report to the Speaker of the Jatiya Sangsad (National Parliament) on 10 March 2011. The
14
report signed by the Chairperson of the Parliamentary Committee Mr. Abdul Matin Khasru MP, a former law minister and a lawyer at the Supreme Court Bar of the country, asserts that his Committee revised the Bill and unanimously recommends the enactment of the amended Bill. The ruling political party alone has 275 seats out of a 350-seat parliament, while its allies have 34 more seats, and is capable of legislating an anti-torture law by itself, to prove its commitment to begin to put an end to this heinous rights violation. However, the government led by the Bangladesh Awami League continues to fail to fulfill its election pledge to stop human rights abuses as a priority. The governments prolonged silence regarding the pending Bill demonstrates its lack of political will concerning the need to criminalize torture and to tackle impunity for this grave abuse. This barrier to victims seeking redress is also a violation of Article 31 of the Constitution, which reads: To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. But neither the government nor the judiciary visibly cares about this constitutional provision. The peoples rights to life, liberty and security are flouted by State-agents without any fear of them being held accountable. Entrenched impunity enables the repeated recurrence of gross human rights abuses. It is a vicious cycle and one that can be broken if the government wills it, but this will continues to be lacking. The parliamentary committee, which submitted its Bill review report to the Speaker of the parliament, has appeared to have accomplished its responsibility while most of the human rights groups and media hardly raise the issue of criminalization of torture other than observing the UN International Day in support of the Victims of Torture on 26 June, and for spending the money allocated in the project funded by donor agencies for such celebrations. The ongoing practice, which allows torture to continue as part of the policing and law-enforcement system with blatant impunity, is completely unacceptable when it is the tax-payers money that keeps the police and law-enforcing agents in their jobs so that they can continue to torture people.
Bangladesh
15
Unabated extrajudicial killings with endorsement from the ruling regime in public: The behaviour of the ruling politicians, who maintain the executive authorities and are supposed to be guides of others, has not been changed and it does not appear that there might be any change in the near future although the rulers are obliged to change it for the sake of their very constitutional obligations. Extrajudicial killings continued unabatedly in Bangladesh with endorsements by the highest executive authorities in public throughout the year. The police and Rapid Action Battalion (RAB) are responsible for an estimated 1500 extrajudicial killings in the last eight years, with at least 54 having taken place under the pretext of crossfire in the ten months of 2011. Apart from the crossfire there have 16 more persons tortured to death in the custody of the lawenforcement agents until October 2011. High profile persons occupying public offices equivalent to cabinet ministers continued endorsing the lawless actions of the paramilitary force RAB and the police throughout the year. For example, Mr. Tarique Ahmed Siddique, Prime Ministers Defence Adviser, told on 18 May 2011 in a press briefing at the Office of the Prime Minister of Bangladesh that he was 100 percent sure that the RAB did not deliberately shoot at Limons leg1 . Three days later, the Home Minister Ms. Sahara Khatun endorsed the RAB for its lawless actions and immediately defended the comments made by the Prime Ministers Defence Adviser by saying that Limons parents and the media should respect the governments version2 . The Prime Minister of the country Mrs. Sheikh Hasina also said the RAB was doing everything legally and there is no impunity to this force at all. She further claimed that her government brings the perpetrators to book and blamed her political opponents for using the same elite force to abuse power in politically motivated matters3 . Hasina claimed so in an interview with Washington Post during her visit to the UN General Assembly in September 2011. In reality, our extensive documentation on extrajudicial killings, abduction and subsequent torture to death and enforced disappearances at the hands
1 2 3
http://newagebd.com/newspaper1/archive_details.php?arcid=19397 http://newagebd.com/newspaper1/archive_details.php?arcid=19772 http://www.washingtonpost.com/world/an-interview-with-bangladesh-pm-sheikh-hasina/2011/10/10/gIQAXAQRcL_story_2.html
16
of the RAB and other forces such as the Detective Branch (DB) of police, as well as intelligence agencies of the country with blatant impunity portrays a horrendous human rights situation in Bangladesh. Not a single victim has ever received any redress or legal remedy from the existing criminal justice system of Bangladesh, which evidently proves that none but the Prime Minister of Bangladesh is the biggest saviour of the perpetrators. The criminal justice system is absolutely incapable of addressing the killings allegedly committed by State agents. No investigations are carried out and there are no medico-legal facilities to gather evidence required to produce successful prosecutions. There have been serious clampdowns on human rights defenders who dare to work to document cases of killings in the country. Disappearance and secret killings of persons amidst continuous denials by state agents The incidents of enforced disappearance in Bangladesh have been increasing alarmingly. The law-enforcement agencies and paramilitary forces, particularly the police, the Rapid Action Battalion and the armed forces, are directly involved in the abductions of persons and their subsequent disappearances. The executive authorities endorse these actions while the countrys courts of law remain incapable of protecting citizens rights from such heinous crimes. Article 32 of the Constitution of Bangladesh protects the fundamental right to life and liberty, stating that: No person shall be deprived of life or personal liberty, save in accordance with law. Yet this has not been implemented in reality and this most fundamental right is being repeatedly violated with complete impunity. Enforced disappearance is frequently being used a tool by the countrys lawenforcement agencies and paramilitary and armed forces to detain and even extra-judicially execute individuals. According to cases being documented by the AHRC, state agents typically wear plain clothes at the time of the abduction of the victims. None of the police stations in the country register a proper complaint regarding allegations of abduction whenever the law-enforcing agencies are named in the complaints. Instead, all the agencies, in chorus, deny their involvement in the alleged abductions.
Bangladesh
17
The AHRC has documented interviews of a number of families that allege that their relatives were disappeared after they had been picked up by the plainclothed armed men that claimed to be from the Rapid Action Battalion (RAB). According to the reports received, three previously disappeared persons have returned to their respective homes after lengthy detention periods in secret torture cells operated by the RAB. Another disappeared man, named Mr. Forkan, who returned home after few months of being disappeared, has again been disappeared after he told the media about his experiences during detention in the RABs secret torture cells. Most disappeared persons do not resurface and there remain serious concerns that they have in fact been extra-judicially killed by the State. After returning from the secret detention centres, the victims have remained extremely scared about their own as well as their relatives safety, and have requested not to be named publicly when describing their experiences. They were all picked up by plain-clothed armed men, who introduced themselves as being officers of the RAB. They were handcuffed and blindfolded at the time of arrest. They were taken into the RABs custody and detained for several months in unknown locations without any contact with the outside world. During detention, they were reportedly tortured on a regular basis. They had been detained for four to eight months without any accessible records being kept by any of the countrys institutions. After prolonged detention they were driven a few hundred miles away from their place of detention and dropped off in isolated rural areas during dark nights still wearing blindfolds. In all cases, the persons were then arrested by the local police, who informed the relatives to pick them up. During their disappearance, prior to being surfaced, the victims were subjected to serious intimidation by the Rapid Action Battalions officers, including death threats. The relatives of the disappeared are initially prevented from exercising their right to register a proper complaint regarding the alleged abductions, as the abductors introduce themselves as being officers of the Rapid Action Battalion or as governments officers and claim to have instructions from superior authorities to take the victims away. There has not been a single recorded instance, amongst the cases documented by the AHRC, in which the perpetrators of the abductions and disappearances have shown specific documents or warrants issued by courts or referring to particular criminal cases against the abducted person. The state agents that are committing these abductions are therefore using extra-judicial methods to detain persons, but are clearly so confident that their actions will benefit from impunity that they often identify themselves to the victims and their relatives. In fact, as the police do not register any complaints when members of the authorities are involved in such actions, the members of the RAB and other agencies will identify
18
themselves in order to ensure that investigations are not carried out and that impunity prevails. In order to ensure that specific identification is not possible, however, the perpetrators do not wear their uniforms at the time of the abductions. Typically, the heavily armed abductors make use of several vehicles without registration numbers. The authorities do not carry out any credible investigations regarding the allegations of disappearance, citing the excuse that there has been no complaint registered with the police to justify their inaction. Instead of taking any visible, credible or effective action to investigate the cases of enforced disappearance, the government of Bangladesh has instead harassed journalists and threatened to close media concerns for asking questions to the countrys Home Minister regarding disappearances. Several journalists have received threats by telephone from high ranking officers of the Rapid Action Battalion, regarding which the relevant United Nations Special Procedures have been informed. Extra-judicial deprivation of life and liberty continues unabated in Bangladesh, as its judiciary, including the Supreme Court, which has obligation to protect the constitutionally enshrined fundamental rights of the citizens, is utterly failing to ensure that any legal remedies are available to victims or their families regarding enforced disappearances. This represents a violation of Article 31 of the Constitution, which reads:
To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
The government and the judiciary are visibly disregarding their obligations under constitutional provisions, as far as the protection of citizens under the supreme law of land is concerned. Peoples rights to life, liberty and security are being violated by State-agents without any effective legal remedies being available. Entrenched impunity within the institutional system and the mindsets of officials and politicians ensures the recurrence of gross human rights abuses and undermines the perceived security of Bangladeshs people. Impunity for political gains and Disappearance of Justice Bangladesh currently operates a system of impunity concerning this egregious human rights violation, protecting perpetrators of deeply cruel and inhuman,
Bangladesh
19
violent acts while denying their victims any hope of seeking justice and reparation. The Constitution of Bangladesh4 maintains a double standard in terms of establishing justice to its people. In Part II, Article 27, the Constitution talks about equality before law while in Part III, it ensures impunity for any person in the service of the Republic in Article 46, which reads:
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.
The Asian Human Rights Commission (AHRC) and its sister organization, the Asian Legal Resource Centre (ALRC) urged the nation repeatedly to repeal Article 46 for the sake of liberating the numerous victims of human rights abuses from a condition of confinement which never allows anyone to get out for justice. Aside from Article 46, there are barriers built into ordinary criminal procedure that prevent people in Bangladesh from making a complaint against an official. Sections 132 and 197 of the Code of Criminal Procedure 1898 are those that prove the best defence. According to Section 132, no criminal complaint can be lodged against any official without prior sanction from the government. This means that complainants must first lodge a case with a magistrate, argue the case and have it investigated simply in order to get it opened. Furthermore, an accused person who is found to have been acting in good faith or on orders from a superior shall never be charged and his actions shall never be considered a crime. These provisions appear to have been incorporated into the criminal procedure by the British colonial regime to protect its personnel at all costs from being pursued into a court by a native whom they had wronged. The government of Bangladesh has never sought to make changes that would overcome this inconsistency. On the contrary, it has been exploiting the section to an extent that perhaps even the British regime would never have imagined. And although section 132 runs contrary to decades of development in
http://bdlaws.minlaw.gov.bd/pdf_part.php?act_name=&vol=XV&id=367
20
international jurisprudence aimed at establishing that to claim to have simply been following orders is no excuse from responsibility, still in Bangladesh it lives on. The authorities only deny the allegations of gross violations of fundamental human rights and bar the victims from seeking justice. Two cousins experiences in the custody of the Rapid Action Battalion explain how the law-enforcement takes place and how the victims struggle for survival in Bangladesh5 : Victim-1. Nahidul Haque Sazib: Mr. Nahidul Haque Sazib, aged 25, is a transport businessman. On 5 April, at around 9:30pm, a team of the Rapid Action Battalion (RAB) stopped him near to his familys business office at Chandkharpul area. After asking Sazibs name and occupation the RAB members accused him to be a snatcher. All of a sudden the RAB personnel blindfolded him and put a hood on Sazibs head. By a private vehicle Sazib was driven to the RAB-10 camp adjacent to the Lalbagh Fort. Taking to the first floor of the camp they brutally tortured Sazib. As a result, Sazib lost his consciousness for which a doctor cum RAB officer examined him and used a spray on his legs and gave some medicine to Sazib in blindfolds. Later, Sazibs toes were clipped with crocodile clips connected to electric wires that were plugged with the power outlet to electrocute him on several occasions in the night. Likewise, he was transferred from one room to another for torturing systematically for the next three days followed by doctors interventions. They pushed needle in Sazibs fingers and rubbed a sharp metal to reduce the length of his fingernails. Then, they used a spray to hide the wounds of the fingers. Four to five personnel of RAB sat on Sazibs leg and beat underneath the soles of his feet with blunt weapons. They also pushed sticks through the ear causing bleeding from his ears. They inflicted needle in his palms, fingers and underneath the fingernails. Later, they cut the nails and sprayed some chemical (colour) since then the wounds were normally invisible. New visitors of the RAB frequently greeted Sazib by kicking him and stamping his calf muscles by boots. The torture went on for a few hours until Sazib lost consciousness on each occasion.
http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-082-2011
Bangladesh
21
Whenever Sazib asked what wrong he had done or what crime he had committed for which he had been tortured the RAB members did not answer to the questions but continued torturing him. Victim-2. Kawsar Hossain Razib: Mr. Kawsar Hossain Razib, aged 24, was a small businessman engaged in plastic bottles in the old town of the city of Dhaka. Razib is a cousin to Sazib. On 6 April 2011, at around 8pm, a day after Sazib was arrested and detained, Razib was arrested by a team of plain-clothed members of RAB as soon as he came out of the local mosque after offering his evening prayer. Similarly, asking Razib to keep mouth shut they immediately, blindfolded him, put a hood over the head and then handcuffed tying both hands behind his back. By a microbus Razib was taken to the office of the RAB-10. The RAB members produced Razib before a senior officer, who tortured him with hockey-sticks under his soles after putting him on a chair in seating position. They electrocuted him with two crocodile clips wired with the toes keeping him in the same position. Applying systematic methods and shifting from one place to another with breaks followed by medical check-ups by doctors of the RAB Razib was tortured while in detention. The perpetrators used various weapons and sports instruments like hockey-sticks to beat and needles for pushing into his fingers and toes. As a result of severe beating and nailing when Razib was unable to stand on his own feet. Failure to Stand up! resulted electrocution, which made him jump from the floor due to electric shock, and then the RAB membes ridiculed Razib by saying, You lied that you cannot stand. See! You can jump too! While torturing him the officers of RAB repeatedly insisted that Razib to confess before their superior officers as per instructions. When Razib claimed to be innocent the RAB officers tortured him further and used abused language aimed at his mother. Any denial of confessing to the so called crimes or protest of abusive words to his parents increased the amount and severity of torture, which caused lacerations in his legs, back and hands. In order to escape torture Razib, finally, agreed to deliver a confession to their superior officers in whatever manner they instructed him. Since the arrest and detention the RAB tortured Razib in their custody after intervals and detained him a dark room. On 7 April, Razib and his cousin Sazib were produced together before a superior officer with blindfolds and hoods over the heads. Before taking to the superior officer the RAB members repeatedly insisted to confess that they were held for snatching and threatened to kill both cousins together
22
in crossfire if any of them claim to be innocent. The RAB officers also threatened to fabricate arms and murder cases unless the instructed confession was made to their senior officer. In order to escape further torture both cousins agreed to say the instructed confession to the senior officer, who also tortured him at the first meeting. The RAB took Razib and Sazib in the open air on the bank of the Buriganga River at the Swari Ghat area of the city of Dhaka after the midnight to kill them in crossfire. The RAB officers asked Razib and Sazib to run away. Both cousins did not follow that instruction as they were aware of the officially adopted method of extrajudicial killing by the RAB. Instead, both persons held the legs of the officers of the RAB, who became kind and decided not to kill them and drove back to its Lalbagh camp where both persons were detained for the whole day. Systematic torture continued for the whole day with threats of fabricating criminal cases. On 8 April night, the RAB personnel ordered to complete wudu (ablution) suggesting to reciting Surah Yasin and Surah Ar-Rahman (verses of the Holy Quran) from two small books. This was deliberately done, as part of the frightening system of the RABs killing missions, to make the detainees understand that they were being taken out for crossfire killing. By midnight, they were again tortured by being beating with thick sticks and electrocution. At around 1:30am, in the early morning on 9 April, putting the two cousins in a vehicle the RAB drove them to the Azimpur area. Two night guards of the Azimpur Staff Quarters were brought to the vehicle and instructed by the RAB members to sign on a piece of paper. The RAB instructed the night guards to recognise the faces of Razib and Sazib as snatchers so that they can testify before the Courts when required. The two night guards followed the instructions accordingly while it was almost dawn. Then, one of the RAB officers told that There was order to kill you. You might have done good deeds in your life. Thats why you are not being killed. You are going to be released in a normal case. Keep offering prayers; dont tell the story (of torture and detention) to anyone; live a good life! In response, when Sazib told that he used to live a good life keeping offering his prayers regularly and asked, Why did you torture me? After the question the RAB members abused him in filthy language and took him back to the RAB-10 Office while Razib was taken to the Mitford Hospital for treatment. At the RAB-10 Office Sazib was taken to a senior officer, who shouted at Sazib very rudely while torturing him brutally. The officer asked, How dare you made the high-ranking persons like ministers and parliamentarians to call us? You show up your power! Let me show you my power now! Until 11:30am several officers continued torturing him.
Bangladesh
23
At around 2pm, Razib was brought back from the hospital where he was given first aid instead of required treatment. The RAB officers warned Sazib and Razib to remain careful in future and not to tell the incident to anyone else in life. The RAB made a photo session pasting the names on the chests of the two cousins putting two knives that were kept on a table in their office. They introduced Razib and Sazib, wrongly writing the name as Mozib, as snatchers on the name tags. At around 3pm, the RAB brought the two cousins to the Lalbagh police and handed over them to the police. Deputy Assistant Director (DAD) of the RAB-10, Md. Abu Bakor Siddik accompanied Razib and Sazib to the police station and asked the on-duty officer to register a First Information Report (FIR) under Section 4(1) of the Law and Order Breaching Crimes (Speedy Trial) (Amendment) Act-2010 with the Lalbagh police station. The Lalbagh police primarily argued with the RAB regarding the inappropriateness of the provisions of the Law and Order Breaching Crimes (Speedy Trial) (Amendment) Act-2010. The RAB personnel pursued the police officers for registering the complaint. They also insisted the police to show the two persons own cell phones and money as snatched goods, which the police refused to do. Finally, the police recorded the case as FIR no. 11 dated 9 April showing that it was recorded at 2:45pm. In the complaint DAD Siddik claims that a plain-clothed team of six members of the RAB-10, including him and five other named colleagues, came under attack from a group of snatchers at 1:10am, in the early morning of 9 April 2011 near the Eden College area. Two persons were arrested while two others escaped from the scene. A 12-inch-long stainless steel knife and another locallymade-iron knife were seized from Razib and Sazib respectively with the help of the local night guards. Razib fell on the road while attempted to escape and received injuries. The Lalbagh police further detained the two cousins in the police station. On 10 April, the police produced Razib and Sazib before the Chief Metropolitan Magistrate Court under the snatching case after getting them discharged from the Mitford Hospital although the two cousins injuries remained unhealed. The Court observed that they were tortured as there were no specific statement regarding the injuries of the two cousins supported by the medical record, which mentioned that the victims had Physical assault and generalized body assault. The Magistrate granted bail to both persons on a bond of BDT 10,000.00 each with guarantees from the lawyers and local elites until the next hearing on 21 April.
24
Since the families of Razib and Sazib communicated with journalists and human rights defenders the RAB members started intimidating the relatives on phone and in person. Plain clothed members of the RAB, who came to their houses and business offices, threatening to kill every one of the families if the case is discussed in public any further. The two families have been afraid of further similar or worse atrocities against the members of the families including the two victims while the government has not yet initiated any credible investigation into these heinous crimes. Limon Hossains maimed leg represents his countrys law-enforcement and governance: Md. Limon Hossen, a 16-year-old student of the Kathalia P. G. S. Multilateral High School and College and an examinee of the (currently ongoing) Higher Secondary Certificate (HSC) examination under the Bangladesh Technical Education Board of Dhaka. Limons family lives in Saturia village under the jurisdiction of the Rajapur police station in Jhalkathi district. His father Mr. Tofazzel Hossen is a day-labourer while his mother Mrs. Henoara Begum is a housewife. On 23 March 2011, at around 3:30pm, Limon was asked by his mother to bring the familys cattle from the bank of the Sondha river where three cows were A dysfunctional system is left for grazing. At around 4pm, while returning only capable of producing home Limon was stopped by a group of nine such limbless human beings persons riding three motorbikes (three persons on like Limon Hossain each bike). Among them one man was plain clothed while the rest eight were wearing the black uniform of the Rapid Action Battalion (RAB). The plain clothed man, who was later identified as Md. Lutfor Rahman, Deputy Assistant Director (DAD) of the Crime Prevention Company No. 01 of the RAB-8 based in Barisal city, asked Limons name and started beatinghim, accusing him (Limon) to be a terrorist. Limon, who used to manage his tuition fees by working as part-time labourer at local brick factory due to his familys unaffordability, claimed that he was student informing the name of his college. He also requested the RAB men to contact the principal of the Kathalia P. G. S. Multilateral School and College to verify his studentship. DAD Lutfor and his colleagues denied to accept Limons statement and attempted to kill him by pointing gun at him. Limon cried in fear and requested not to kill him. Suddenly, DAD Lutfor shot him pointing gun in his left thigh. Limon
Bangladesh
25
fell on the ground and lost his sense and started bleeding from his leg. The news of Limons shooting at Limon in broad day light reached his relatives and neighbours immediately. Limons mother Mrs. Henoara Begum along with his uncle Moazzem Hossen rushed to the scene and saw that Limon was bleeding from his left leg. When the mother and uncle cried out for help for saving the life of Limon the members of the RAB prevented them from approaching Limon. The RAB members started beating Moazzem. DAD Lutfor grounded Moazzem and stood on his head and neck with Lutfors boot while the other colleagues held his hands and legs in order to stop Moazzems movement6 . The RAB personnel took off the lungi (a clothed worn by males in Bangladesh and few neighbouring countries) from Limons body making his body naked. They put the lungi on the blood, which came out from Limons body, and stamped with their boots to wipe the blood from the ground with the lungi and threw the blood-soaked cloth into the river. The RAB personnel took off Limons shirt to tie up the bullet wound. After about two hours four persons carried Limons body to a boat at a nearby boat pier and asked the boatman Mr. Munsef to ply the boat, which left for unknown place. The family became worried about Limons fate and the deteriorating health condition of Moazzem, who was critically injured due to torture by the RAB. They took Moazzem to the Kawkhali hospital for treatment. They learned from the eyewitnesses that a black pickup van of the RAB took away Limons body from a pier near to Jamaddar Bari. Since then, Limon whereabouts remained unknown to the family. Later, in the evening, Limon found himself at the SherE-Bangla Medical College Hospital in Barisal city when he returned to his sense. In the late night, DAD Lutfor filed two criminal cases (No. 10 and 11) with the Rajapur police station accusing Limon and seven others claiming an incident of encounter between a so called group of terrorists and the RAB-8, which is habituated to publicize fake stories of encounter since its inception. The first case (First Information Report- FIR No. 10 of the Rajapur police station, dated 23 March 2011) was registered under Sections 19 A and 19 F of the Arms Act-1878. In this case DAD Lutfor claimed that a group of terrorists of the Shahid Jomaddars gang opened gun fire targeting the RAB team when
6 http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-075-2011/
26
the latter reached Shahid Jomaddars house. RAB responded the gunshots by firing from their own pistols and Stenguns. The terrorists escaped except one person named Limon, who had a bullet wounds in his left thigh, with a USAmade pistol and magazines in his possession. The second case (First Information Report- FIR No. 11 of the Rajapur police station, dated 23 March 2011) was registered under Sections 322, 353, 307 and 34 of the Penal Code-1860 for obstructing the law-enforcement agencies to discharge their duties and attempting to murder. In both complaints the RABs DAD Lutfor claimed Limons age as 25 years despite the fact that according to the official records Limons age is 16 years and 3 months only. They have also insisted the hospital staffs to record the same age of Limon when he was brought to the Sher-E-Bangla Medical College Hospital in Barisal. On 24 March, at 10am Limons family came to know that Limon had been admitted to the Sher-E-Bangla Medical College Hospital in Barisal. When the relatives went to the hospital they saw four armed men of the RAB cordoned Limon at Bed No. 11 of the Surgical Ward No. 27. The RAB men refused Limons father Mr. Tofazzel to see his son. Limons mother Mrs. Henoara, as a form of extreme submissiveness and request, held the legs of the on-duty RAB personnel requesting them to allow her to see her son. Then, they allowed Henoara to go to her son, but after a short while they kicked out her from the hospital. The family learned that Limon was admitted to the Sher-E-Bangla Medical College Hospital at 8pm on 23 March, four hours after the shooting. After the midnight of 24 March, the doctors of the Sher-E-Bangla Medical College Hospital confirmed that they were unable to cure Limon, who had a perforation in his left thigh due to bullet wounds. On 25 March, the doctors referred Limon to the National Institute of Cardiovascular Disease (NICVD) for better treatment. The doctors of the Sher-E-Bangla Medical College Hospital implied that Limons condition was critical and life-threatening for which a huge amount of money will be required to save his life. The family became worried about money. The people of Limons neighbourhood donated money for his treatment although it was not enough that compelled the helpless family to borrow money mortgaging a piece of land. On 26 March evening, the Rajapur police cordoned by Constables Aftab and Abdur Rashid took Limon to the NICVD in the city of Dhaka by an ambulance forcing Limons family to pay BDT 5,500.00 for the fare of the ambulance. When Limon was taken to the NICVD early in the morning of 27 March the doctors further referred him to the National Institute
Bangladesh
27
of Traumatology, Orthopedic and Rehabilitation (NITOR) for required treatment. On 27 March, the doctors of the NITOR operated on Limons left and finally amputated it from the thigh of which all the tissues were found completely damaged due to bullet wounds. Limon has been under treatment of the doctors of the NITOR, who imposed all the expenditure of Limons surgery upon the family. The members of the RAB cordoned the hospital after Limon had been taken to the NITOR and continued surveillance. On 6 April, a leading national daily newspaper published a detailed report about the incident with a picture of Limons amputated leg. Since the media report the RAB and police forced the authorities of the NITOR to lock the hospital ward where Limon was admitted. All the doors of the ward were locked from inside expelling the relatives of other patients and denying entry to visitors at that ward. The journalists, human rights defenders and lawyers were refused entry to the hospital by the uniformed and plain-clothed members of the RAB and the police. The Chairman of the National Human Rights Commission (NHRC) of Bangladesh Prof. Mizanur Rahman was only been allowed to visit Limon. The NHRC Chairman suggested the parents of Limon to file complaints to seek justice from the court of law. When Limons relatives tried to consult with lawyers regarding filing complaint with the local Court of Magistrate of Jhalkathi district the members of the RAB have started intimidating and threatening everyone of the whole area in Jhalkathi including the journalists, lawyers, relatives and neighbours for expressing their opinion regarding the barbarity of this paramilitary force. Moreover, the officials of the RAB had called many people over cell phones asking them to go to the office of the RAB-8 and keep silence about the case of Limon. A large number of plain-clothed members of the RAB had been staying in Saturia village and collecting the names of and other particulars of the persons, who have already shared their views with the newspapers and donated money to Limons family for his treatment. The well-wishers and neighbours of Limon had still been forced to go in hiding in fear of extrajudicial killing by the RAB. Simultaneously, in Dhaka, the plain-clothed members of the RAB cordoned the Ward of the NITOR denying entry of the attendants of the patients, who have been helpless for getting food, medicine and assistance for using washrooms while hospital does not provide adequate support and care of the patients.
28
Limons father Mr. Tofazzel Hossain told the Asian Human Rights Commission (AHRC) that his family has seen an unimaginable disaster due to the atrocities of the RAB 7 . He pointed out that, firstly, his son, who had passion of maintaining study by part-time working in brick factory, has been a physically disabled for his whole life. Secondly, as a day labourer Tofazzel cannot afford the high expenditure of medical treatment of his son as the public hospital asked his family to buy all medicines and necessary tools for the surgery and the post-operation medical treatment. He has already spent BDT 150,000.00 for his sons treatment, which has also been cordially supported by the people of all walks of his native village and by selling a piece of his land. He is highly confused about the fate of his son as the familys affordability is on the verge of its last limit. Thirdly, Tofazzels hope for getting justice has been diminishing due to continuous threats and intimidations by the RAB to his relatives, neighbours and other professionals who have expressed their sympathy to his family. Tofazzel asked when the AHRC interviewed him, Can anyone imagine how we have been suffering from this disastrous situation? Is there any mechanism to stop the barbarity of the RAB in this country? The Asian Human Rights Commission (AHRC) has learned that there was another person named Limon Hossain Jamaddar, who mostly used to live in Dhaka and reportedly employed in a private company, hailed from the neighbouring area where Limon was shot by the RAB-8 on 23 March 2011. This Limon Hossain Jomaddar, aged around 25 years, is a son of one Mr. Kamrul Jamaddar, having a relationship with Mr. Shahid Jamaddar whom the RAB team accused in the two criminal cases lodged after shooting Limon Hossen, who is 16-year-old college student. The Rapid Action Battalion (RAB), which is termed as an elite force by the Government of Bangladesh, did not bother for verifying the identity of a targeted person regardless whether the person concerned is innocent or involved in any kind of offence due to its extreme lack of minimum efficiency of law-enforcement. The RAB has not yet admitted that they have shot Limon for mistaken identity for maintaining the arrogant attitudes as well. Locally, the police of Jhalakathi district was asked, by the Inspector General of Police, to investigate into the matter for saving the members of the RAB, according to the police officers claimed to remain unidentified for the sake of saving job.
http://www.youtube.com/watch?v=8XpAfGws-fg. http://www.youtube.com/watch?v=DdZ2SD2nw7Y
Bangladesh
29
The Ministry of Home Affairs of Bangladesh formed a probe commission, which found no crime link of Limon with any criminal gang in its contradictory probe report, believed to be made to save the perpetrators of the RAB. Though, Limons innocence is proved in the governmental report but it also claimed that there no point-blank shooting at Limons leg claiming, quoting witnesses, that shootouts between the members of RAB and criminal gang occurred at the scene of crime. Ironically, the same Home Ministry is so useless that has not instructed its subordinate law-enforcement agencies like the RAB and the police to withdraw the fabricated cases against Limon while the government withdraws thousands of politically motivated cases to save their party-men and the relatives of the ruling political parties. Subsequently, Limon has to appear before the courts for facing trial despite after having maimed by the so called elite force of the country. And these cases evidently expose how deeply impunity has been rooted within the Bangladeshi system. College student Kazi Imtiaz Hossain Abir was killed for nothing but earning departmental credentials for the police: Kazi Imtiaz Hossain Abir was a student of higher secondary level at the Northern College at Mohammadpur in the capital. He lived with his family at House No. 31 (Third Floor) of Road No. 21 of the Rupnagar Residential Area under the jurisdiction of Pallabi Police station in Mirpur of Dhaka Metropolitan City. On 10 January at around 7 pm in the evening, Abir received a call on his cell phone and left his home at around 7:15 p.m. taking BDT 200.00 from his mother. His friends claim that Abir played badminton with them at a court until 8:30 pm. He then went to one of his friends house. As he met his friend, who was about leave for a family programme outside, Abir attempted to go back home. At that time, his mother Mrs. Monowara called him on his cell phone while he answered saying that he would be returning Abir, a teenager, left his home with such a face in the photo home in less than 30 on the left; and when he fell prey of the police for their routine killing for rewards the relatives receive their beloved minutes or so.
one as it appears on the right.
30
As Abir did not return home by around 9pm his mother called his cell phone again and an unknown person received the call. Abirs mother asked the recipient who he was. The person did not answer her question and Abirs mother repeatedly asserted that it was her sons phone. She asked that the phone be handed to her son and for the persons identity. Instead of replying to her request or question the man asked for her address, which she refused to share with the person. The call was disconnected by the man and since then the cell phone was found to have been switched off. That night the family and friends searched for Abir at several locations but did not find him. The following morning, Abirs parents watched that a TV channels news bulletin which was broadcasting video footage containing the dead body of their son Abir. Quoting the police the report revealed that Abir was killed in crossfire by the Pallabi police the previous evening while allegedly preparing for a robbery with others. The Pallabi police filed three cases against Abir regarding the so called robbery and subsequent death8 . The AHRC analysed the documents regarding the cases, and found that Assistant Sub Inspector Mr. Md. Ismail Hossain (Badge No. 7695016392) filed the first complaint as First Information Report (FIR) no. 27 with the Pallabi Police Station at 11:05pm on 10 January under Section 19 (A) of Arms Act of 1878. Only Abir was named as the accused with four-five unidentified persons. Sub Inspector Hekmot Ali was assigned as the Investigation Officer (IO) by the Officer-in-Charge (OC) of the Pallabi police Mr. Md. Iqbal Hossain. In the complaint police ASI Ismail Hossain claims that the OC of the Pallabi police informed a police patrol team led by him about a gather of five-six persons prior to a possible robbery. He, accompanying Police Constable (ID No. 2557) Md. Mazibor and Md. Saidur Rahman (ID No. 19883), went to Balurmath area, which was the alleged place of the gathering, found that indiscriminate gunshots were fired toward the police, who immediately returned fire in self-defence. All the terrorists fled the scene and hid in darkness. The police found one critically-injured person, who was bleeding at the time from his bullet wounds. He was holding a revolver in his right hand. The person told the officers his name as Abir (28) before losing consciousness. They sent Abir to a hospital (which was not named) with critical injuries. A revolver with two loaded bullets and two empty cartridges was recovered from the crime scene at 9:25pm on 10 January 2011 in presence of three persons namely Mr. Md. Jainal Chairman (48), son of late Mr. Rajab Ali Sikder, living in Kalshi Balur Math slum, under Block-11/C (lower to the dam); Mr. Sahabuddin (45), son
Bangladesh
31
of late Mr. Osman Ali, living in House # 19, Lane # 7, Bauniabandh, under Block-C; and Mr. Aziz Chairman (50), son of late Mr. Surut Ali Munshi, living in a house adjacent to the Mosque of Balurmath slam, under Section-12/A of the Pallabi police station. The police took signatures from the three witnesses on the seizure list. The FIR also claims that ASI Ismail and constable Saidur were injured [without any details about their injuries] and received first aid from Adhunik Hospital, which referred them to the Rajarbag Police Hospital for further treatment. In the second and third cases recorded as FIRs no. 28 under Sections 353, 332,333 of the Penal Code-1860; and FIR no. 29 under Sections 399,402, 302 of the Penal Code-1860 respectively matching the same language and texts in the first complaint except the difference of legal provisions of the penal code. SI Md. Yasin Munshi and SI Md. Ezajul Islam were made IOs for those two cases respectively. The Asian Human Rights Commission (AHRC) found inconsistencies in the documents related to incident of Abirs extrajudicial killing. The police submitted a Death Certificate to the Chief Metropolitan Magistrate Court of Dhaka. The Death Certificate was issued by Dr. Nurul Islam of the National Institute of Trauma and Orthopedic Rehabilitation (NITOR) of Dhaka. It does not assert the cause of death although it mentions that there is a penetrating injury on the medial aspect of the right lower thigh about (2cm X 2cm). According to the Death Certificate, the time of death was 10pm (probably) and the age of Abir was recorded as 24 while the columns of fathers name and address were filled in with unknown in the Death Certificate. But, in the letter forwarded to the Court the Investigation Officer (IO) SI Mr. Hekmat Ali claims that Abir was sent to the Dhaka Medical College Hospital for treatment after his bullet wounds. In the seizure list and in the FIR Abirs age was shown as 28. In all the three complaints address of the crime scene has been written with pen although the whole document is composed in computer. The AHRC interviewed the local people regarding the so-called crossfire and the death of Abir. The inhabitants asserted that they were not aware of any incident of crossfire during the evening of 10 January 2011. Some local people, who requested that their identities not be revealed due to further security threats to them from the police, said, the police came at around 8:40 pm and then asked everyone, Close your shops and go home! Dont come out from home! All the people went home following the pressure from the police. The inhabitants said that they heard the sound of two gun shots and after a short break one more similar sound. People became seriously scared of what was happening outside. Within few minutes the police came to three influential people of the area and showed them a dead body. The police asked the three
32
local persons to sign on a paper as witnesses which they did. Responding to questions of the human rights defenders the witnesses told that they had no choice but to put their signatures on the paper according to the instructions by the police for the sake of their own existence. During the interview most of the slum dwellers were found to be afraid to talk or pass any comments about this incident. Professionals related to the forensic examination of dead bodies told the human rights defenders that the shot fired at Abirs right thigh had been done at close range 9. Abirs relatives said that Abirs cell phone has not been returned to the family and is not included in the seizure list. They expressed their complete frustration and distrust over the criminal justice system to defend their decision of not registering a complaint regarding the extrajudicial murder of Abir. They asked questions: have authorities ever prosecuted any personnel of the lawenforcement agencies despite the fact that a large number of innocent persons have been murdered? They argued that there are a number of wanted criminals in the city whom the people want to see behind bars. They want legal action against the police who have failed to arrest them for years. They demand answers as to why an innocent student, who did have not a single complaint against him with any police station or court of the country, should be killed and publicized as a robber. Does the government ever feel how deeply shocked and infuriated people are about these lawless murders by the governments own agents? On 12 January, the Deputy Commissioner of the Dhaka Metropolitan Police (DMP) for the Mirpur Zone Mr. Imtiaz Hossain visited the Bauniabandh Balurmath area as part of the DMPs departmental investigation regarding the incident. However, the report has not been made accessible for anybody. As a matter of practice such investigations are conducted only to justify the lawless actions of the law-enforcement agencies in Bangladesh, particularly the socalled incidents of crossfire. The police and other law-enforcing agencies continue killing innocent people in such methods only for attaining gallantry rewards of the bravery in service. No one from the National Human Rights Commission of Bangladesh or the judiciary has ever conducted a fair investigation into this case till the end of November 2011 regarding this matter.
http://www.humanrights.asia/news/urgent-appeals/images/2011/AHRC-UAC-029-2011-02. JPG
Bangladesh
33
Victims of police brutality in Dinajpur: On 8 March 2011, at around 1am a group of plain clothed persons knocked on the door of Mr. Shahjahan in Duptoil village under the jurisdiction of Forokkabad union council of the Birol police station in Dinajpur district. The strangers claimed to be from the police. Shahjahans family, who were aware of an incident which occurred the previous night when a group of robbers claiming to be police robbed the house their neighbor Mr. Suresh Mohuri, suspected that their house was about to be attacked by robbers in the same manner. The family decided not to open the door mentioning the previous nights robbery. The strangers continued to knock on the door demanding that Shahjahan accompany the police to locate the house of Suresh Mohuri. Upon hearing this refusal the strangers, who were actually from the police shouted at the family in abusive language. The family, who were still uncertain of the true identity of the strangers then called to their neighbours on a cell phone that they were afraid of a probable attack by robbers. The villagers came out of their homes with sticks and bamboos and as they were approaching Shahjahans house they saw some people running toward a vehicle parked on the road. They chased the suspected robbers, who switched off the headlights of their vehicle after reaching an open place named Sotighata in the middle of their way and stopped there. The vehicle restarted driving and stopped again at Chhetra Bazar, which strengthened the peoples suspicion about a potential robbery. A few of the agitated villagers hit one of the fleeing persons with a stick resulting in the person being injured in the head. The villagers then found that the vehicle, which had been parked, belonged to the police and that the group who had knocked on the door of Shahjahans house were also policemen. Soon after, the chairman of the local government unit, Forokkabad Union Council, Mr. Lutfor Rahman and Acting Chairman of Birol Upazilla Mr. Md. Anwarul Islam arrived at the scene. Lutfor immediately sent the injured police officer, who was identified as Mr. Md. Haider Ali, Sub Inspector of Birol police station, to Birol hospital by the vehicle of the Upazilla chairman. The public representatives controlled the villagers and helped the rest of the police team comprising of Constables Md. Muzibor Rahaman (Constable ID No. 1048), Mohammad Isreal Haque (Constable ID No. 277) and Driver cum Constable Mohammad Rashedul Huq (Constable Number 268) to leave the village for the Birol police station. The police team, which had already lost the leader of the team SI Haider Ali, threatened the villagers that they would teach them lesson for attacking the police. They then left the scene cancelling their original plan of visiting Suresh Mohuris house.
34
Later the same morning, at 9:15am, SI Haider Ali filed a complaint (Case No. 7, dated 8 March 2011) with the Birol police against four named persons and around sixty unidentified villagers under Sections 148, 341, 332, 333, 353, 307 and 34 of the Penal Code-1860. The four persons, who were made accused in the case, are 1) Md. Anwarul Haque Uzzal, 2) Md. Shahjahan Ali, 3) Md. Jewel Islam of Duptoil village, and 4) Md. Mamtaz Ali of Mokhlespur village of the Birol police station. Meanwhile, three police vehicles carrying two platoons of riot police led by the Assistant Superintendent of Police (ASP) of Sadar Circle Md. Mokbul Hossain, Officer-in-Charge (OC) of Birol police station Mr. A. K. M. Mohsin Uz Zaman Khan arrived in the village. Soon after the Superintendent of Police of Dinajpur district Mr. Siddiquee Tanzilur Rahman joined them. The police tortured the people including passers-by, farmers, students of the school and college, children, women and the elderly on their way to the village and after arrival in the village. They also sexually molested young girls and women during the attack on the people. The police indiscriminately tortured the visitors in the wedding ceremony of a Muslim family and a child feeding ceremony, as a ritual, of a Hindu family during that period. A large number of people of different ages including women and children have asserted that they were brutally tortured by the police. Local human rights defenders also found marks of injuries caused as a result of police torture on the bodies of the victims. The Asian Human Rights Commission has interviewed a number of the victims who have shown their injuries and described how the police spread carried out their atrocities around the neighbourhood 10 . Mr. Lutfor Rahman, chairman of the Forokkabad union council, described the background and the story of torture and sexual violence by the police against the inhabitants of the village in details. He asserted that he witnessed the police beating people and molesting the girls and women. He also told that the SP of Dinajpur district police and the ASP of the Sadar Circle of Dinajpur directly participated in torturing the people randomly, which was also testified to by the victims before the Deputy Inspector General (DIG) of police of the Rajshahi Range on the following day. In fact, all these brutal torture in public were not enough for the authorities to initiate a credible investigation leading to prosecution in the country.
Bangladesh
35
Cleaner Salma Begum was too incapable to sweep away a morally collapsed judicial officer: Mrs. Salma Begum, aged 42, had been a cleaner of the First Court of Settlement of Dhaka for around 20 years. Mrs. Salma alleges that she was molested by a judge while she was cleaning the office room of the Chairman of the First Court of Settlement of Dhaka at Shegunbagicha of the city of Dhaka on 23 February 2011. At the time of sweeping the floor of the official chamber room of the Chairman of the First Court of Settlement of Dhaka she felt that a man embraced her from behind. When Salma was able to turn her face she saw Mr. Mohammad Yasin, the Chairman of the First Court of Settlement, smiling at her as he continued to hug her. Salma got scared and immediately shouted for help while Mr. Yasin told that he was kidding. A personal assistant of the judge Mr. Jafar Ahmed came to the scene in response to Salmas loud cries for help. Mr. Yasin allegedly asked Jafar to expel Salma by saying, Hold the neck of this woman and throw her out! Salma came out the judges room crying. Eye-witnesses wishing to remain unidentified told the Asian Human Rights Commission that they saw Salma shivering and upset as well as very much humiliated and traumatized immediately after the incident. Afterwards three members of the Court of Settlement including Mr. Mohammad Yasin, Chairman, Ms. Fahmida Quader, Member (Judiciary) and also an Additional District Judge, and Mr. Arun Kumar Malakar, Member (Administration) also a Deputy Secretary, held a closed door meeting for few hours. Ms. Fahmida and Mr. Arun later called Salma and allegedly rebuked her saying that she (Salma) made a false allegation against the judge. Both Fahmida and Arun allegedly intimidated Salma asking her to keep her mouth shut and said that there will be medical examination done to justify her allegation. A police team arrived led by an Assistant Superintendent of Police who stayed in the office room of the Chairman of the Court of Settlement until, around 9pm, the judge Mr. Yasin left his office, unusual than other working days. Responding to phone calls from Mr. Yasin throughout the whole day a number of senior public officers also visited the office allegedly to endorse their support to the judge. The allegation was related to two persons having unequal hierarchical official status. The person, who alleged to have been sexually insulted and approached by a powerful officer, was apparently vulnerable in a country where things
36
happen arbitrarily with impunity to the persons or officials having the capacity to influence the authority and governmental power. It became an imbalanced and unequal battle for a poorly-positioned woman for re-establishing her dignity and self-esteem. Importantly, the authorities all have legal, ethical and moral responsibilities as well as constitutional obligations to remain unbiased for the sake of protecting the human dignity of a woman in this case, and protecting the ethical standards for the judicial officers as a whole to wipe out judicial garbage, whenever there are similar allegations. The Ministry of Law, Justice and Parliamentary Affairs formed a probe committee to investigate into the allegation after an Urgent Appeal11 had been issued by the Asian Human Rights Commission. However, the authorities have not disclosed any updates about the findings of the probe report. Religious Minority - Ahmadiya Community faces discrimination and deception by the authorities: The Ahmadiya Muslim Jamaat, Bangladesh, a religious community having a conflicting identity with the majority Muslims in Bangladesh and other parts of the world, organised its 87th Annual Convention targeting the 6 to 8 February 2011. Accordingly, on 2 January 2011, the General Secretary of the Ahmadiya community Mr. Mohammad Jahidur Rahman booked the venue at the Rover Scouts Camping Centres ground at Bahadurpur, under the jurisdiction of the Joydevpur police station in Gazipur district. As part of the procedure the community leaders sought permission from the Deputy Commissioner of the Gazipur district, and requested the Inspector General of the Bangladesh Police to tighten the security of the venue during the convention. On 24 January, the Office of the Deputy Commissioner (DC) of Gazipur district officially granted permission of holding the convention at the Bahadurpur Rover Scout Camping Ground for the three days. The community made required payments in advance to the relevant public authorities for using the venue after having secured the permission. Suddenly on 6 February, on the first day of the three day convention, at around 10am a police officer arrived to their venue and asked them to leave the place
Bangladesh
37
immediately by saying that the Office of the DC of Gazipur had cancelled the permission, which had been granted 13 days earlier, and imposed Section 14412 (of the Code of Criminal Procedure-1898) following objection from the local people regarding the programme. The police, behaving very rudely, switched off the sound system during the ongoing ceremony. In the midst of the police pressure for evacuating the venue, the senior leaders of the Ahmadiyya community called the DC and finally learned that the permission granted earlier was cancelled as he was surrounded by Moulanas in his office to do so. A delegation of the Ahmadiyya community communicated with the top level decision-makers of the government, however, failed to receive a further permission of continuing their programme. The Ahmadiyya communitys leaders claimed that they followed due process to organise their annual convention in a protected and isolated compound for a comprehensive discussions on their religious norms, standards and feelings among the followers of non-political and peace-loving community. But, the Gazipur district administration cancelled the permission without any reasonable ground or visible symptom in favour of the cancellation as claimed that there was fear of deterioration of the law and order in the area. The authorities were accused of denying the freedom of religion, which is protected as one of the fundamental rights of the citizens in the Constitution of Bangladesh. Article 41 (1) enshrines freedom of religion, as it reads: Subject to law, public order and morality(a) every citizen has the right to profess, practice or propagate any religion; (b) every religious community or denomination has the right to establish, maintain and manage its religious institutions. Besides, any discrimination is prohibited in the constitution as fundamental rights. The Article 28 (1) of the Constitution of Bangladesh reads: The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth.
12 http://bdlaws.minlaw.gov.bd/sections_detail.php?id=75&sections_id=20789
38
As a party to the International Covenant on Civil and Political Rights (ICCPR)13 Bangladesh has international obligations under Article 18 of the ICCPR, which asserts that:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Moreover, the Constitution of Bangladesh in Article 37 enshrines the freedom of assembly, which reads:
Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.
According to Article 21 of the ICCPR:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
As a State-party to the ICCPR and due to specific provision of the countrys constitution Bangladesh failed to implement the international and constitutional obligation by protecting the rights of the religious minority communities. The failure of the decision-making authorities of the government to ensure necessary security arrangements to allow the Ahmadiyya community to hold its pre-scheduled programme represents the mindset of the government regarding the freedom of the religious minority communities in the country.
13 http://www2.ohchr.org/english/law/ccpr.htm
Bangladesh
39
Collapsed rule of law system creates more room for victimization of women: Bangladeshs collapsed rule of law system contributes immensely to the sexual abuse of girls, as the criminal justice system provides no remedy or justice to victims of violence such as stalking, acid throwing, molestation or even rape. There are numerous examples where the police -- and so called social leaders -- have insisted victims of rape or acid violence to marry the perpetrators. According to the Acid Controlling Council, 1496 acid attacks were registered between 2002 and 2009, with only 273 persons being punished, while the rest of the perpetrators walked free. The countrys law against acid violence is made meaningless by the authorities inability to implement it and their facilitation of crime. On a daily basis, women and girls fall victim to stalking and sexual violence on the street in Bangladesh. The perpetrators, who maintain a relationship with the ruling political party, easily walk free, as the police protect anyone having an association with the ruling political party. Ultimately, there is no room for women to obtain justice, despite the countrys special law and tribunal to punish crimes of violence against women and children. Recently, there is a new trend of violations against women, where women and girls are being tempted to establish a sexual relationship with men who, on the pretence of being their lover, secretly make audiovisual recording of intimate scenes and then blackmail the victims. With no protection of dignity and justice available from the existing system, victims choose to commit suicide as a result of such crimes. Those who survive, live with the trauma for the rest of their life. In the name of shalish (arbitration, mostly in rural areas) or fotwa (unofficial trial in public under misinterpreted Shariah laws) a large number of influential or interested groups punish women for unjustified and unverified allegations of adultery by lashing, stoning and other forms of corporal punishment, which in many cases lead to their deaths. The Supreme Court of Bangladesh, in a recent verdict, has declared the acts of punishing any person in the name of arbitration or religious trial as extrajudicial punishment, asking the government and police to take measures to stop such actions across the country. In reality, the practice of caning, lashing and stoning to death of women continues as the authorities remain careless of their constitutional obligations of protecting every individuals right to life and justice. There are also a few special laws in effect, in addition to the Penal Code, to address violence against women, including the Women and Child Repression
40
(Prevention) (Special Provision) Act-2001. This law allows for the establishing of a special tribunal of sessions judges in each of the countrys district headquarters to prosecute perpetrators of violence. The practice of paying dowry has been deeply rooted over centuries in all religious communities including the Muslim community, which has different norms in theory. Bangladeshs Dowry Prevention Act-1980 remains useless in protecting women from the curse of dowry. Dowry is practiced as a gift within the countrys elite and middle classes, while it is the lifeblood of the lower classes. It, partially and temporarily, establishes the brides position in the grooms family as well as in society. There are many who are concerned only about the quantity of dowry, not the quality of the human being. Many a time, the brides appearance, education, efficiency can be hidden by her skin color, which needs to be adjusted with the amount of the dowry, whereas the quality of the bridegroom and his family is always ignored. The consequence of dowry is extreme amongst the poor and uneducated, where the brides families must take on the burden of a loan to pay the dowry. This creates feelings of guilt for the woman, who finds herself in a helpless condition due to her lack of institutional education, and thus incompetence in getting a job, which could strengthen herself financially and socially. Meanwhile, she becomes a victim of dowry in her husbands family, who may continually demand more payment or emotionally (and perhaps physically) abuse her for an insufficient dowry. Due to poverty and social pressure, a married woman cannot think about going back to her parents family. Acute depression leads many women towards suicide. Those responsible for creating an environment that forces women to end their lives walk free however, due to Bangladeshs dysfunctional criminal justice system. In whatever jobs the women work however, they are struggling to ensure their rights, including decent working hours, appropriate salary, pregnancy leave, and a positive and healthy working environment. Women are mostly compelled to work for more than eight hours in any field of work, particularly in factories, private companies and NGOs, where they have fixed starting times, but leaving time is dependent on the whim of the employers. Bangladesh has no minimum wage law, so women are deprived not only of their required salary, but also overtime payments and other service benefits. Women do not get paid pregnancy leave as established by law, unless they compromise their salary or the period of their leave. At home, womens work is never over on a daily basis, from child care, to cooking, washing, to
Bangladesh
41
farming and cattle nourishing, and there is no reward or acknowledgment of this work. Women face discrimination in public offices like local governmental institutions, despite the governments provision of reserving one third of public offices for women. On the basis of this provision, geographically women possess three times more authority; in reality however, male public representatives deprive women from exercising their decision making power. Moreover, society -- dominated by men -- always stigmatizes women when they become victims of violence and abuse, and maintains the default mindset of giving impunity to the male perpetrators. Not only are women themselves victims of gross human rights abuses like torture and extrajudicial killings, but they are also victims when their husbands are forcibly disappeared or extrajudically killed by state agents. These widows suffer more than other widows due to societys stigmatization of the deceased as criminals (when in fact they were killed without any fair trial to defend their innocence); their families are seen by society as the families of criminals. The widows have to struggle to provide for the children and other family members. Bangladesh is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). With the excuse of religious bindings and poverty however, the country has a number of reservations (articles 2 and 16.1(c), pertaining to eliminating discrimination against women and ensuring equality between the two genders in the public and official domain, and in family and marriage matters) to the Convention, which is not only hypocritical, but also makes a mockery of protecting womens rights. Public institutions and state agencies in Bangladesh are largely made up of men, all of whom belong to a society with repressive and negligent attitudes towards women -- who are seen as inferior creature -- contributing to the ongoing discrimination against them. It is therefore essential to shift social, legal, political, bureaucratic and judicial behaviour towards women, while recognizing their capacity and rights. Only then can the government of Bangladesh truly undertake its obligation to protect and fulfill the rights of all women. The ridiculous role of the NHRC in a completely collapsed rule of law system: The Asian Human Rights Commission has brought to the notice of the Chairman of the National Human Rights Commission (NHRC) of Bangladesh the problem with regard to FMA Razzak in several communications. The
42
AHRC also brought to his notice the long series of harassments Mr. Razzak has faced, particularly during February to April 2011 by Major Mustafizur Rahman Bokul and his family. What is as shocking as the meanness and the brutality of this attack is the active cooperation that this Major and his family received from the police officers of the Paikgachha Police Station. Had it not been for their active support of this military officer this incident could not have taken place. The AHRC copied a letter written to the SP of Khulna relating to the culpability of the police with regard to this incident. Sadly, the brutal attack on Razzak, was an attempt to gouge out his eyes and assassinate him. Anyone would agree that in any country this kind of an attack would be considered an exceptionally cruel act that would require prompt action on the part of the police, who have the obligation to investigate into such a crime on behalf of the State. Unfortunately, the officers of the Paikgachha police station have not shown any kind of energy and enthusiasm to act promptly and with impartiality and competence in dealing with this case. This is not a surprise, as the Officer in Charge (OC) of the police station and also some other police officers are hostile to FMA Razzak because he has been an independent journalist and a committed human rights activist who has in the past pointed out some of the deficiencies of the police in dealing with several matters. Quite clearly during the last three months (since late February) after the first attack was carried out against FMA Razzak and his family, the officers of this police station have quite clearly failed in their duties to carry out a proper investigation into that incident. This may be because, among other things, the attackers are an Army Major and his family. As it is already revealed in the media and in the documentations made by international human rights groups, the Army Majors name is Mustafizur Rahman Bokul. Had the police conducted a proper investigation into that first incident, which took place on February 18th, the latest incident could easily have been averted. Police inaction, relating to the investigative actions that they are bound to take by law, into the incident in February created the background for the brutal attack which took place on the 29th of April. The failure to investigate the incident in February was due to the assignment of the Sup-Inspector (SI) Idris Ali, a man who had just been promoted to the rank of Sub Inspector from Assistant Sub Inspector without any investigation skills or experience to investigate into the matter. This assignment of SI Idris Ali to investigate was made by the OC Enamul Haque, who was fully aware of the SIs inefficiency.
Bangladesh
43
The result of all this was the continuous harassment of Mr. Razzak and his family in March and April. The police were informed by Mr. Razzak and his families that they have been chased out of their house and that all their belongings have been destroyed and most of their possessions had been taken away by the attackers from the house of F M A Razzak. Among the valuable possessions removed from Mr. Razzaks house are deeds relating to the properties of the Razzak family, the jewelry belonging to the women of the Razzak family, and many other documents, including Mr. Razzaks passport. Razzak and his family have been prevented from entering their own house and premises for over two and a half months and the police have been informed of this. On one occasion, some members of Razzaks family were attacked by Mokhlesur Rahman a. k. a. Kazal Sarder, the brother of Major Mustafizur Rahman Bokul. This happened in the presence of the ASP of the Dakope Circle, who had invited Razzaks family as well as some other villagers to come to Razzaks village to participate in the investigation. Despite of such knowledge of continuous harassment on the Razzak family, the police in fact took the side of Major Mustafizur Rahman Bokuls family and did nothing to restore Razzaks family back to their home, from which they were compelled out by force. It is on the strength of the support that the Major Mustafizur Rahman Bokuls family had on the police that the attack on April 29th was carried out so openly without a crowd of over 40 persons mobilized by Major Mustafizur Rahman Bokul to launch an attack on Mr. Razzak and his brother, who were unarmed and merely trying to find a vehicle for a trip the next day. From what transpired, Mr. Razzak and his family are firmly of the view that some of the officers of the Paikgachha police station were aware of the attack that was going to take place. It is their view that this attack was carried out with the knowledge of some of the police officers. In fact, the Second Officer SI Tarok Chandra Biswas, SI Idris Ali, SI Nur Islam, SI Delwar Hossain and some other officers came to the place of the incident, that is, to the house of Major Mustafizur Rahman Bokul, where Razzak had been carried by Kazal Sarder and others. SI Idris Ali and another police constable assaulted Razzaks brother Bodiuzzaman Bodiar. Even after Razzak had faced this serious attack on his eyes and he was completely motionless, the police did nothing to assist him or to get him medical assistance. The police in fact assumed that Razzak was dead and treated him as such. They did not even take the body. Instead, they got Major
44
Mustafizur Rahman Bokuls family to take Razzak in a van, thus leaving him to the mercy of his attackers. When he was brought to Paikgachha hospital, he was left on the floor as a dead body and the police did not intervene to ensure that he would be looked after by medical officers, even at that stage. The police also did not try to assist him to be admitted to the hospital for treatment. At the hospital premises, the group of persons who attacked Razzak were the surrounding the hospital. The police, instead of arresting the attackers, were, in fact providing them security. At the end, when other people gathered against them, the police protected the attackers and escorted them back to their home, that of Major Mustafizur Rahman Bokul. Shortly after the crime had taken place on April 29th, police arrived and all the attackers, including Major Mustafizur Rahman Bokuls brother Kazal Sarder, were present at the scene. These police officers saw the attackers and in fact negotiated with the attackers. But they failed to arrest these attackers. When a cognizable offence takes place in front of the police officers, it is their duty to arrest them there and then. However, days have gone by and these attackers remain free. Under these circumstances, it is quite reasonable for Razzak and his family and also all others, including his associates, not to expect an impartial inquiry into this crime by the present OC and other officers of the Paikgachha police station; having said that, it is also reasonable to request the appointment of an impartial and competent investigator into this serious crime. The police, having accompanied the perpetrators to the hospital and being aware of this incident, no one has yet recorded a statement from Mr. Razzak or his brother. However, Mr. Razzak, as soon as he was able, made a recorded statement on the 30th of April The AHRC sent a transcript and a copy of a CD of the statement of Razzak to the chairperson of the NHRC requesting him to take an inquiry under his charge and to ensure that competent and impartial officers will inquire into the incident in all thoroughness, including also an inquiry into the police complicity in the crime and all the perpetrators will be arrested and be charged as early as possible. The AHRC sought urgent action to the following issues: a. To secure the arrest of Major Mustafizur Rahman Bokul, his family members and other persons in the gang that were actively involved in this brutal attack.
Bangladesh
45
b. That you will visit FMA Razzak at the hospital and inquire into his medical condition and that you will take all measures to ensure that he will receive the necessary medical assistance. c. That you will do your utmost to ensure the security of FMA Razzak and his family which includes two children who are living in hiding out of fear of the attackers. d. That you will do all within your mandate to ensure justice against the perpetrators and also the provision of compensation for this attack, although it is simply impossible to compensate one for a crime such as this. At the date of writing this report nothing was done by the authorities in order to provide justice to Razzak and his family, including his injured brother. FMA Razzaks story vividly exposes how rotten and useless is the criminal justice system and governance in Bangladesh: States and state agents have historically used violence to stifle public debate, and silence their critics. In many countries around the world today, states no longer rely heavily upon overtly coercive methods and instead acknowledge the need for authentic debate. But in many others, states and state agents continue to resort primarily to coercive methods. In such countries, some persons try to break the silence on matters of importance that threaten repressive systems for social control. These persons we honour with the title, human rights defender. Oftentimes, the efforts of these persons seem small, especially to people in countries where an authentic debate is taken for granted. Yet, such efforts necessarily begin small, and build up only with years of hard work. Despite their appearance of smallness, such efforts challenge fundamental principles on which the states power is based. For this reason, human rights defenders in these countries inevitably become targets for violence. Sometimes the violence seems arbitrary. Sometimes it seems grossly disproportionate to the small efforts of the person. People unfamiliar with the milieu in which the human rights defender has been working naturally have trouble seeing how apparently small efforts to change society can provoke savagery. At such moments, those people who work with the human rights defender have a special responsibility to delineate the person sharply from his social and political environment, and in so doing, to set out some features of that environment, so that others can also understand why the person has been made the subject of violence.
46
For this reason, the Asian Human Rights Commission issued a short narrative on the work of a Bangladeshi human rights defender, FMA Razzak. The story of how members of an army officers family barbarically attacked and almost killed Razzak, gouging at his eyes and breaking his limbs, is now internationally known. The AHRC has set up a campaign webpage, which it is updating constantly, providing the latest details on the case and on subsequent events. The purpose of writing the narrative was not to iterate all the contents of statements and appeals on the attack against Razzak, but to explain what motivated the attack, and to show how the police, judiciary and National Human Rights Commission in Bangladesh are working not to defend this human rights defender but to enable the continuance of violence and impunity in their country. To do this, we must begin with the story of Razzak, the human rights defender. That story, although specifically the story of Razzak, is more generally the story of the human rights defender as Bangladeshi; the story of anyone who sincerely believes and fights for human rights in such a country, which was a bridge too far for the local police and military. In February 2011, the local police, Rapid Action Battalion and military officers particularly Major Mustafizur conspired to make yet another fabricated criminal case against Razzak and his family. This time, the complaint was of arson and destroying property. With this new case underway, mobs led by the brother of an army major began a series of concerted attacks on Razzaks family and his property, culminating in the eye gouging assault in which he nearly lost his life. On February 18, the brother of the army major led a mob to attack Razzaks house and its occupants, injuring his wife, brother and sister-in-law. The entire family went into hiding. On February 28 a mob led by the same man came to the unoccupied house, damaged property and carried off timber from the yard. In early March, someone apparently poisoned poultry owned by the family. And, on March 14 the officers brother broke into the house with a group of others and looted it, carrying off a laptop, camera, jewelry and even a refrigerator. Throughout this time, the police and courts took no action to stop the perpetrators. On the contrary, the function of the criminal justice system was to terrorize the family and enable the attacks to continue if Razzak refused to give up. The state agencies were fully arrayed against this human rights defender and his loved ones, including children and the elderly. The prelude to the third attempt on Razzaks life was, in hindsight, a portent of what would come after
Bangladesh
47
the attack. The prerequisites for impunity were already in place. In fact, the major attack could not have occurred without guarantees that the attackers would be protected. The attack, when it came, was horrific. After some time in hiding, Razzak and his younger brother had again ventured out into public, and on April 29 had been travelling to meet with police and other local authorities, to appeal for help and to try to resolve the latest concocted case against them. Perhaps because they had been travelling to meet state officials, rather than trying to evade them, the men had not expected that the attack would come when it did. The attack is described in full on the AHRC website. Briefly, according to Razzak, around 40 men surrounded the two brothers as they were trying to hire a car to travel for meetings with officials the next day. Razzak recognized them as men attached to the family of the army officer who had led the attacks of the previous two months. Kazal, the majors brother, was again present to coordinate the assault. Razzak vividly describes what happened next:
Immediately, the gang jumped on me. They began to indiscriminately hit me: my head, back, chest, hands, legs--every part of the body. Kazal and his gang tried to push fingers into my eyes to gouge the eyes out. I tried to block the eyes with my hands. Then, they severely pressed on my testicles. I was about to die! I had to move my hands from the eyes to the testicles at that moment. Immediately, they pushed fingers and a rod into my eyes and kept moving the rod inside the eyes. They tried to take out my eyeballs. Simultaneously, many others were hitting me with rod and stick. I cried out for help. But nobody responded to my cry. Only my younger brother tried to rescue me. But the gang caught him and brutally beat him, taking him a few yards far from where I was being beaten. I had no scope to follow or understand what was happening to my brother. I could do nothing to save myself. They knocked me down to the ground and jumped on my body and hit me as they wished. They constantly hit my right leg, which broke on the scene as I fell. When I tried to block the hits with my right hand, they hit my right hand, which also broke. I became completely motionless. They took away my mobile phone and some money that I had in my pockets. I was almost dead there. At this moment, what saved Razzak was his own sense to feign death. Had he continued to fight or cry out, the mob would surely have killed him. But knowing that nobody would come to help him, that the arrangements had already all been made to get rid of him once and for all, he lay still and listened to the men talk. Kazal called his brother, Major Mustafizur Rahman Bokul. He put the phone on speaker so the others could listen, and Razzak also heard the exchange. It began with Kazal:
48
Brother, the kuttar bachha (son of dog) is caught in our hands now! Only caught? What do mean? Break his legs and hands! Take out his eyes! We have already taken out his eyeballs making him blind and have broken his hands and legs! Where are you now? We are in front of the paribahan (long route bus) counter. Throw his body into some ditch! Instead of following the order, Kazal and the mob took Razzak in a van to a place where other members of the officers family and more people were present. The group again assaulted him. They again called the major on speaker phone, who said that he would arrange for the RAB in Khulna to take the body and make it look as if Razzak had been killed in crossfire. But, his brother advised that it would take too long and that the matter had to be sorted out before then. Kazal instead called the officer in charge of the Paikgachha police, OC Enamul, who asked, Kazal, what are you doing now? We have already taken out his eyes and broken his hands and legs. Very good! Bhalo kaz korecho (a great job)! Dont kill him on the scene; I am sending police there.
After two police arrived, they began coordinating with the attackers. Neither the police nor the family wanted to take Razzaks body away. Finally, the police agreed to escort the attackers to the hospital, with the latter bringing Razzak by van. At this time it seemed that he was dead, or would soon die. Hospital staff kept him on the verandah and offered no help. Later, they sent him on to Dhaka, where at last he received treatment, and from where he could tell his story. According to medical tests, Razzak has lost 75 per cent of his right vision. The most elementary things not done: The role of state agencies during, and following, the attack on this human rights defender is highly ridiculous. What the AHRC finds is that across all of these agencies, even the most elementary things that should have been done have not been done. The role of the police in enabling the attack and colluding with the attackers
Bangladesh
49
is obvious. After the attack, with a large amount of national and international news on the incident, it would be reasonable to expect that the police would feign an investigation. But even this seems to be unnecessary. A month on from the assault, no police officer has yet recorded Razzaks testimony. The police did record a First Information Report about the incident, Attempted gouging eyes of F M A which listed 38 persons as accused, Kazal Razzak does not oblige the authorities at the top of the list. Despite this, to date to ensure justice to him? no charges have been brought against any of the 38. By contrast, on top of the fabricated case against Razzak pending from February, in April and May the police lodged two further concocted cases against him, his brother, wife and some other relatives and supporters. One journalist implicated in these cases they detained. The local judiciary has so far done its job to protect the perpetrators. Although some of the accused it initially placed in custody, because Razzaks lawyers could not bring a proper medico-legal certificate to court in time, the judge released 14 out of the 15 persons detained. Whereas the criminal justice system has the responsibility to see that official medical examinations are recorded according to procedure and evidence brought to court, in this case the judge transferred his own duty onto the victim as a means to enable some of the accused to walk free. The army for its part has seen no reason to suspend, investigate or even comment upon Major Bokul. He continues in his post as usual, despite requests for him to be suspended coming from high levels inside the country and abroad, and despite public rallies in Khulna calling for his dismissal. The police recorded eight General Dairies (GD) from the relatives and allies of the army officer against Razzak and his family members for alleged extortion since Razzaks whole family was ousted from their properties. The language of the GDs appears the same in all eight cases. The police turned all these eight GDs into Non-General Register cases (mostly known as Non-GR case), that are not cognizable offence as per law, in violation of Section 155 of the Code of Criminal Procesure-1898, which has provision of producing the informant of the GD before a Magistrate while the police did not do so in any of these cases. All the eight Non-GR cases were assigned to Sub Inspector Idris Ali, a newly promoted officer from Assistant Sub Inspector without having skill, for investigation.
50
Perhaps the most scandalous part in the business following the attack has been the role played by the National Human Rights Commission. Despite repeated requests from the AHRC, as well as from other persons and groups in the country and outside, it has failed to act on the case. The NHRC chairman, Professor Mizanur Rahman, in a discussion with AHRC staff iterated the lies of the army major: that Razzak was a criminal, and the attack related to a personal dispute rather than human rights work. Although he promised to visit Razzak in hospital, the chairman failed to appear, and his commission failed to record a statement from the victim. The NHRC, in short, has joined the ranks of the propagandists for the perpetrators of this heinous attack. Yet, none of this is exceptional to Razzaks case. On the contrary, these are the routine methods of the criminal justice system in Bangladesh: precisely the methods against which Razzak had been fighting for years. The police give various excuses for being unable to complete an investigation. The court puts the onus on the victim. Other agencies that in principle should come to his aid instead rally around the perpetrators. This is the milieu into which Razzak first tentatively took steps as a human rights defender in the 1990s. It is the system of violence against which he has struggled since, and against which he is today forced to struggle for his own survival. The violence continues against human rights defenders in Bangladesh: Within days of the attack on Razzak, the threats of further violence spread. Two of the attackers visited eyewitnesses who had joined rallies to call for the arrest of the perpetrators, and brandishing long knives told the witnesses that they would be killed if they did not remain silent. The eyewitnesses and families were forced into hiding. That the attack on Razzak was motivated by his human rights work, and not a personal dispute--as people attached to the perpetrators have tried to portray it--is painfully obvious from what has since happened to two of his colleagues. Both of the two had been working closely with the AHRC on the campaign for Razzak following the attack of April. Both were in recent days abducted and threatened with death by unidentified members of the state security forces. One has suffered trauma from his experience and has gone into hiding. The other has spoken out. That young man, Dipal Barua, was returning from a friends house on May 24 when a group of men pulled him into a waiting car. They blindfolded and handcuffed him, drove him to an unknown place, and stripped him naked. The men locked him in a room for about seven hours, without food, water or a toilet.
Bangladesh
51
After this time, men took Dipal to another room. He thinks that the time was midnight or early morning. There were, he thinks, seven to eight persons inside this room, judging by the voices he heard. They questioned him: why had he visited Razzak in hospital many times? Why was Razzak shifted from the Dhaka Medical College Hospital to a private hospital? How much money was paid to Razzak by the AHRC? How long he has been engaged in the work of the AHRC? Who are the other persons working for the AHRC in Bangladesh? Where do these persons reside and where are they based? Are the persons currently living in Bangladesh or not? Who is the boss of the AHRCs Bangladesh work? When does that boss visit to Bangladesh? When is the boss coming to Bangladesh for the next visit? Who came from Hong Kong to visit Razzak after his hospitalization? Whom did the AHRC team meet during their visit? Had not ten million Taka (about USD 140,000) been sent to Dipal and his friends from abroad for human rights work and where is the money? Similar questions were repeatedly asked for an hour or so. Thereafter, the interrogators told Dipal that they were going to kill him. He got frightened and told them that he has aged parents and appealed to them not to kill him. He said that he is willing to do whatever they ask and asked them to spare his life. Then the men told Dipal to sever all connections with the AHRC. They mentioned the names of several other persons, and told him not to have any contact with them either. They told him that they were going to give him a chance and that he should use it, that if he again had contact with those persons, he would not have such a chance. Then they put him back in the room until the afternoon time, when they took him back to the same place from where they had picked him up on the previous day. Dipals terrifying story speaks for itself. His colleague William Nicholas Gomes, Executive Director of Christian Development Alternative (CDA), who experienced similar abduction followed by interrogations for several hours, revealed similar horrific stories. Not only are the attacks on human rights defenders in Bangladesh organized, systematic and life threatening, but they are also targeting persons connected to the AHRC because of the pressure of the campaign for Razzak. No other strategies Today, not only FMA Razzak and his family but also all human rights defenders in Bangladesh who have rallied to his side face real danger. One reason that the danger has spread is that the system has no strategies to deal with a man like Razzak, who will not stop his fight. The systems methods are premised on the idea that the person against whom they are directed will eventually give up. When a person refuses to give up, they system is bereft of alternative strategies. Its personnel know only to escalate and widen the violence.
52
Others will be subjected to harassment and also possibly to further abductions and interrogations. In a country where extrajudicial killings are commonplace, we can also assume that the persons responsible for these threats are prepared to make good upon them. For these reasons, the solidarity of the international human rights community is vital for the human rights defenders of Bangladesh at this precarious time. But it is also vital that this solidarity be informed by an understanding that the violence ultimately is rooted in centuries of oppression, and in the struggle, oftentimes seemingly small, to break open the silences which enable oppressive structures. In a society where most people are inert or disinterested in the plight of the ordinary victim of state violence, when the voice of a person like Razzak is heard, it echoes through the empty space that in another society may be filed with many disparate voices. It attracts the notice of many people, including those who do not want to hear such a voice, and will go to lengths to silence it again. In this sense, the attack on Razzak must be understood not as an attack upon an individual but as an attack upon society. Its objective is to silence many by silencing one. The attackers know full well that if such a man as Razzak can be forced into quietude, others also will remain that way. In response to such an attack, the duty of all other persons who identify themselves human rights defenders, both in Bangladesh and around the world, is to ensure that this objective does not succeed. So far as Bangladesh is concerned, this accounts for the existence and practices of the Rapid Action Battalions, which operate with extraordinary powers in part because of demands from the more affluent sections of society for some type of security, no matter how it is obtained. When these paramilitary groups begin to operate they kill not only criminals but also many ordinary folk. In fact, there is no attempt to distinguish between the criminal and the innocent person. The paramilitary group does not have the capacity or a process by which to arrive at such a distinction. On the contrary, its operations are premised on the notion that whoever is targeted must suffer the consequences. Therefore random killing is allowed and becomes an acceptable part of the practices of these paramilitary groups. When random killing increases, so too does social uproar. Despite the repressive social conditions in which people are situated, many try to find a way to make their voices heard against such policies. Human rights organisations and others take up the issue of the victims and make demands on the government that such killings cease. The repressive state, which is hemmed in by its own anti-
Bangladesh
53
rule-of-law methods and the demands from affluent sections of the society for some kind of security, comes to regard human rights organisations as its enemies. Opposition to extrajudicial killing and other gross abuses of human rights committed in the name of public security becomes some sort of subversive activity. Razzaks story- Bangladeshs story: With the general understanding, one can go to the specifics of what happened to Razzak in Bangladesh in 2011. Razzak had for some years been working as a human rights defender. He helped people to make complaints, he accompanied them to court and he liaised with lawyers. Over time, he was seen as a great threat to the local police, who went out of their way to make his work as difficult as possible. Indeed, his interference cost the police and other officials money, lost opportunities for promotions and lost favour with politicians. On one occasion, the police charged Razzak with the abduction of a young girl. There was no complaint filed by the young girl or her family against him. They had complained that she was missing, but even though the suspects did not include Razzak, the police went after him anyway. Numerous people intervened on his behalf, including a number of international human rights organizations. Shortly thereafter, the young girl was located with a family friend in a village some miles away. The girl maintained that she did not know Razzak, and said that she had left the village voluntarily because her father had brought a new wife into the home. By then Razzak had been in police custody for two weeks. His family had to pay a bribe of USD2000 for his release, and his wife had to sell her jewellery in order to raise the money. This happened two years ago. Subsequently, a military officer engaged in land grabbing practices seized the property of Razzaks father. When Razzak took records to the police station to file a complaint, the police ignored his complaints and took the side of the military officer. They ignored Razzaks requests for help for more than two months. During that time, Razzak and his family had to live in hiding. The case was brought to the attention of the government, the official national human rights commission and a number of international human rights organizations, but Razzak and his family did not receive assistance. In the meantime, Razzak ventured out of his hiding place to meet senior members of the community whom he wanted to ask for guidance and support. On his journey, a gang of men waylaid Razzak and his brother. The men severely assaulted the two and attempted to gouge out Razzaks eyes. This was done with the full knowledge of the police. The police then came and escorted the perpetrators of the crime to take Razzaks body to the hospital, as if to show they had performed their duties in some way. Three hospitals refused to take Razzak, because of pressure from
54
the attackers, as well as a desire to avoid becoming involved in the difficulties Razzak faced with the police. It took the intervention of a member of parliament to find a place in a hospital for Razzak to receive proper treatment. Once he was admitted, it was discovered that his eyes had been badly damaged, and he had to be hospitalized for a few weeks. This story, although brutal, is familiar to human rights defenders working under repressive states. Unless volunteers for justice like Razzak work to raise awareness about the difficulties ordinary people in their search for justice, the unequal balance of power between the state authorities and members of the public never changes. But when human rights defenders do this work, their own safety is compromised. International solidarity, a challenge to the repressive state Once Razzak was in hospital, his case received a great deal of publicity from international human rights organizations and embassies, urging government intervention. The government was inundated with complaints about this case. A few people came forward to help Razzak, one of them was a young pacifist. After this man helped Razzak he was himself abducted and threatened with killing by persons who were evidently secret state agents. Some details of his case are mentioned in the AHRCs publications14, as are those of another man who was similarly warned that if he kept up working on Razzaks case then he would be killed and his body disposed of in the sea. Both men have now fled to safety. Although we might on the one hand ask whether the risks taken by Razzak and these two men for relatively small and simple actions in defence of human rights are acceptable risks, ultimately movements to safeguard the rights and dignity of ordinary civilians can never emerge without a few people like Razzak who are prepared to take these types of risks. Indeed, the struggle of a human rights defender under the repressive state is inherently risky. If human rights are to be defended, human rights defenders must also be protected. This is an extremely pressing problem; it is not just the issue of a few people, it is a societal problem. Although it is to one degree or another a problem of all societies, it is one of peculiar difficulty under repressive states. Therefore, as human rights defenders worldwide we must work to build up as many new measures as possible to build international solidarity and
14 http://www.article2.org/pdf/v10n02.pdf
Bangladesh
55
provide support for such persons in order to better enable them to work under circumstances that entail and necessitate risk. Trial on War Crimes of 1971: The government has initiated a trial of the alleged perpetrators of the war crimes committed in 1971 during the liberation war of Bangladesh against the then West Pakistan, after around 38 years since the crimes were committed. An approximate number of three million killings, 200,000 rapes and numerous incidents of arson, the destruction of homes and business centres followed by lootings have been publicly reported throughout the decades. It was been much expected for the last four decades by the survivors of the atrocities of the wartime and a few million others, who lost their beloved family members and relatives, that justice will be delivered to them for their loss and sufferings. The Asian Human Rights Commission welcomes the decision of adopting the international laws and putting that into effect by initiating the trial of the crimes committed during the war, which is long overdue. The process -- from the very outset -- of the trial has drawn a lot of international attention, from the media, human rights groups and independent experts, diplomats and professionals in the relevant field, for several reasons. The window of trying the war crimes was opened by making constitutional amendment, which was the first ever amendment of the newly adopted Constitution of Bangladesh, on 15 July 1971 in order to insert a sub clause in Article 47, which reads:
Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or any individual, group of individuals or organisation] or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.
The same amendment inserted another provision, Article 47A, which reads:
(1) The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.
56
(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.
The Government of Bangladesh legislated the International Crimes (Tribunals) Act-1973, which is also known as Act No. XIX of 1973, on 20 July in 1973, for trying the offenders of war crimes of 1971 war against the erstwhile West Pakistan. Since the constitutional amendment and the enactment of the law a complete and formal trial on war crimes had not held throughout the last four decades. The original law had a provision in Section 22 authorising the Tribunal to regulate its own procedure, which -- International Crimes Tribunals Rules of Procedures-2010 -- was made on 15 July 2010 after the International Crimes Tribunal was formed by the government in March 2010. As it is the first experiences of the country to hold such a trial the governmental authorities and the professionals, who are directly related to the investigation, prosecution and trial from their respective capacities have obligations under constitutional and international laws to guarantee that the norms and standards of fair trial have been ensured by trying the war crimes. There have been debates created from the defendants that the above mentioned two constitutional provisions appear to be contradictory to the principle of equal protection of law as universally recognized, and protected in Article 27 of the Constitution of Bangladesh, fundamental rights of an accused as far as fair trial is concerned, and ultimately against the principle of presumption of innocence. The government and the Trial and its relevant professionals have international and constitutional obligations to convincingly and comprehensively establish that the trial process complies with all international norms in terms of its transparency and credibility in order to fulfill the expiations of parties concerned, including the aggrieved complainants and the defendants and the witnesses along with the professionals and observers from the local and international levels. Nexus of Police with politician and thugs for sandgrabbing and plights of innocent villagers and environmental rights activists: The Asian Human Rights Commission (AHRC) has received information that the villagers living on Mayadip Island of Narayanganj district had been
Bangladesh
57
deprived of their right to food as a result of sand extraction by a private company, Micro International for many months. The governmental authorities have failed to prevent the company from extracting sand illegally due to pressure from the ruling politicians. Several groups of homeless or nomadic communities were rehabilitated in Mayadip Island by the government and started fishing for their livelihood. However, the government has not provided other basic facilities such as safe drinking water, public health care, and educational facilities after relocating the people. Even worse, ongoing illegal sand extraction threatens food insecurity and environment as the island is being eroded. Two other neighbouring islands, Nalchar and Ram Prasader Char have already been eroded and many villagers were forced to leave the island as two third of the islands were degraded. The villagers of Mayadip Island suffer from hunger earning less than US$ 1.00 per day. They have made several complaints about illegal sand extraction and their difficulties to the administration. Despite some positive action by the administration and the stay order of High Court, the company allegedly from time to time comes to a location nearby the island for sand extraction. The sand grabbers further filed fabricated cases against the villagers and environmental rights activists who protested against the illegal sand extraction with different police stations in collaboration with the police officers. The police have failed to conduct thorough and impartial investigations into those false cases. These ongoing fabrications of criminal cases have pushed the struggling community to the verge of extinction and created huge wastage of human as well as monetary resources. The authorities from the top to the bottom have continuously failed to address the problems of these people 97 percent of whom live below the poverty line. Poverty alleviation is replaced by stealing the shares of the poorest by ruling party men and bureaucrats: The Asian Human Rights Commission raised the issue that the Vulnerable Group Feeding (VGF) program aiming to ensuring food security of the poor in Gaibandha district failed to reach the actual beneficiary. Out of 13 villages in Monohorpur Union, Palasbari sub-district, 1,000 families from seven villages only are on the list of the beneficiaries whereas six villages are excluded. In addition, it is alleged that the political leaders have taken the VGF cards of 600 families who are in the beneficiary list but never received the food subsidy. Some of the cardholders receive 3 kilograms of rice instead of 15 kilograms earmarked. It is alleged that the elected representatives of Palashbari sub-district had taken 300 VGF cards, the chairperson of the council Mr. AKM Moksed Chowdhury Biddut had taken 150 cards while two vice chairpersons took 75 cards each. The committees of ruling party of the sub-district Awami League and their
58
ally Jatiyo party had taken 150 cards each. Another 300 cards were taken by Monohorpur union Awami League and Jatiyo partys president and secretary. The fact was clarified by the four members of the union VGF committee; Mr. Samsuzzolha (Deputy Assistant, agricultural officer), Mr. Sadekur Rahman (secretary of Monohorpur union council), Mr. Abdus Sadek (Family Planning Inspector of Monohorpur Union), and Mr. Abdul Wahab Prodhan Ripon (secretary of Monohorpur union Awami League). After taking the VGF cards, the public representatives and the VGF committee members who belong to the political party distributed the food subsidy to some beneficiaries but not all. It was found that about 234 actual cardholders who are entitled to get the food subsidy had not received the benefit. It was further alleged that the VGF committee had already submitted a muster roll with false signatures to the government officials in charge of the program of Palashbari sub-district. On the contrary, no beneficiary was informed that they were entitled to receive food subsidy by the VGF. After the AHRC had raised the matter internationally and locally the government announced that they would investigate into the allegations. However, there has not been a proper investigation revealed in public domain so far. Judiciarys Independence being subject to political loyalty and objective to abuse against the oppositions: The independence of judiciary is seriously undermined by the executive authorities while the judiciary itself is visibly compromising with the executive, simultaneously, in a race of personal gains by exploiting the politically polarized condition in absence of professionalism among the legal practitioners. The judiciary of Bangladesh is structured in two levels -- Subordinate Judiciary that include the Courts of Magistrates at the bottom and Courts of Sessions as well as equivalent special tribunals -- and the Supreme Court composed of the High Court Division and Appellate Division. The whole judicial institution is plunged into deeply rooted manifold problems. The Courts of Magistrates, which is the foundation of the judiciary, where all criminal cases begin with and remain until the investigations are completed, are accustomed to follow the wishes of the police instead of the law that authorizes the Magistrates to hold the police accountable. The magistrates, who as institution remained under the executive control for many years without an opportunity to grow up as independent judicial institution, do so for their lack of knowledge about the law and jurisprudence of the country, due
Bangladesh
59
to inadequate training for strengthening judicial mindset, and lack of moral courage to administer justice. One example may give a picture of the reality of the magistracy of Bangladesh. Everyday hundreds of General Diary, which is popularly known as GD, registered in the police stations of the country containing allegations of noncognizable offences many of which lack authenticity while registering a GD mostly depends on satisfaction of police officers or accessibility of the informants to the police either by political influence or money or both, instead of merits in all matters. When a GD is registered about any non-cognizable office under Section 44 of the Police Act-1861, which reads:
It shall be the duty of every officer in charge of a police-station to keep a general diary in such form as shall from time to time, be prescribed by the Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. The Magistrate of the district shall be at liberty to call for and inspect such diary.
Regulation 377 of the Police Regulations of Bengal-1943 guides in details about the procedure for the police to follow and functions all about related to GD. But, when the matter related to GD comes to a Magistrate, he has to follow Section 155 of the Code of Criminal Procedure-1898, which says:
(1) When information is given to an officer in charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate. (2) No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or send the same for trial. (3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognizable case.
In almost all cases the Police do not refer the informant to the Magistrate as per Sub-Section 155 (1) and the Magistrates also ignore this provision in
60
almost all cases without asking the police about the informant. Instead, the police send the copy of the GD with a cover letter seeking permission to the conduct investigation, which is granted by the Magistrate as a routine work. Thus, the Magistrates do not only ignore their legal procedural bindings but also, ultimately, allow the police to indulge into the extortion of money from the interested parties in the name of investigation. Thousands of such investigations take place in every year in Bangladesh where the police exploit and extort unimaginable amount of money from the ordinary people, who could have been relieved from these blood-sucking machineries at the very beginning if the Magistrate was aware of the legal provisions and cared about his legal responsibility of holding the police accountable. These mistakes and the ignorance of the Magistrates that take place on uncountable occasions in the country, almost daily, cause tremendous trouble, including custodial torture and harassment, to the ordinary citizens. The ruling regime has initiated a festival of withdrawing criminal cases taking the advantage of Section 49415 of the Code of Criminal Procedure. By appointing a set of politically chosen loyal public prosecutors across the country the Courts of Sessions always comply with the governments decision without thinking twice about the very basic point that dropping the complaint denies justice to the original complainant who remains completely out of the procedure. Normally the government, which represents the complainant, drops charges in politically motivated cases thereby allowing the accused persons to go free by administratively induced impunity. The government has been withdrawing hundreds of criminal cases on the basis of political choices. This is done by means of a complaint from a politically powerful person to the Ministry of Home Affairs. This ministry then contacts the Deputy Commissioner who is the ex-officio District Magistrate with instructions to either close the case or remove the names of certain persons. The Public Prosecutor then implements the instructions received from the Deputy
15 http://bdlaws.minlaw.gov.bd/sections_detail.php?id=75&sections_id=21986 Effect of withdrawal from prosecution 494. Any Public Prosecutor may, with the consent of the Court, 1[ * * *] before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
Bangladesh
61
Commissioner and above. This makes the function of the judges and magistrates no more than that of rubber stamping. The higher judiciary of the country ignores the festival of withdrawing cases although all the ruling regimes do withdraw cases and ultimately establish that the government itself does not trust the judicial institutions of the country. The executive authorities take initiatives of withdrawing the cases, in fact, without accepting the judicial process and without believing that the people who are accused in certain cases cannot be proven innocent or acquitted at the end of the trials. Thus, the governments follow the extrajudicial method by extending administrative impunity towards their chosen people on the basis of political identity and establish their no-confidence to the judicial institutions, which can be treated as contempt of court if the judiciary has capacity to understand its inherent integrity at all. Likewise, the higher judiciary ignores the recruitment process of the judges in the High Court Division of the Supreme Court of Bangladesh although the government violates the rules made by the Supreme Court itself. For example, according to 17 BLT (AD) 231 paragraph- 32(ii) and (iii):
(ii) The opinion of the Chief Justice of Bangladesh in the matter of appointment of judges to the Supreme Court is entitled to the Supreme Court is entitled to have the primacy.
(iii) In case of appointment to the High Court Division, the Chief Justice shall consult with two senior most judges of Appellate Division and equal number of judges of High Court Division... and he shall consult with senior members of Supreme Court Bar. . .
Since the Bangladesh Awami League assumed in the office there have been more than 50 judges recruited to the High Court Division of the Supreme Court as Additional Judge whereas the Supreme Court Bar Association, which is currently led by the pro-opposition supporters, accuse that the above mentioned rules were not followed by the Chief Justice and, subsequently, the leaders of the Bar boycotted the oath-giving ceremony of the newly appointed judges, as well as the takeover, and farewell, of the recent two Chief Justices of the country for the alleged violation of rules. Bangladeshs hollow commitment to the international human rights instruments and mechanisms: According to Article 2 and 6 of the ICCPR, Bangladesh has the obligation to ensure the right to life of its people, and ensure prompt and effective reparation
62
where violations occur. It is also obliged to bring legislation into conformity with the ICCPR. As a member-state of the Human Rights Council of the United Nations for more than five years now Bangladesh must maintain the highest possible standards in protecting human rights and establishing justice in its territorial jurisdiction. Regrettably, the nation has absolutely failed to comply with its international obligations concerning torture, extrajudicial killing, and impunity so far. Despite continued voluntary pledges the governments of the country have done nothing to address many serious rights abuses that continue to be perpetrated by state agents. It has repeatedly failed to ensure the requisite cooperation with the HRCs Special Procedures to justify its membership in the Council. Only a few mandates have been allowed to conduct country visits, and these have not included the mandates on the independence of judges and lawyers, on extra-judicial killings or on the freedom of expression, all of which have had requests pending for several years. The government should invite the Special Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment, as well as other independent experts, particularly the Special Rapporteurs on extra-judicial, summary or arbitrary executions and on independence of judges and lawyers, to visit the country as a priority. The Human Rights Council is being weakened as a result of its inability to address the human rights situations in noncooperative countries, including many within its membership. The need for greater cooperation with the Working Group on Enforced and Involuntary Disappearances is also crucial given the growing problem of enforced disappearances being witnessed in the country. The AHRC notes that the Human Rights Council has failed to discuss or take any credible action concerning the wide-ranging human rights violations that have taken place in Bangladesh since the body was created. It appears there is a lack of interest and political will to address the countrys situation, despite the severity and scale of the violations taking place there. The governments efforts to silence its critics domestically have no doubt contributed to this fact and this will only be accentuated if the Councils passivity is turned into complicity by allowing the country to continue perpetrating such grave human rights violations as enforced disappearances and extra-judicial killings without any repercussions. The AHRC therefore urges the members of the Human Rights Council to urge the government of Bangladesh to take all necessary measures to effect immediate and verifiable change concerning the issues of arbitrary deprivation of life, independence of the judiciary and impunity. If no action is taken to halt
Bangladesh
63
violations, provide remedies and hold those responsible accountable for these grave abuses, Bangladeshs membership in the Council will continue to prove to be an embarrassment for this body and obstruct its credibility and ability to deliver on its goals. The government of Bangladesh must immediately stop enforced disappearance and other gross violation of human rights. Bangladesh must, without delay or reservations, ratify the International Convention on the Protection of All Persons from Enforced Disappearance. The government is also urged to promptly and unconditionally grant the requested visits by the Special Rapporteurs on extra-judicial, summary or arbitrary executions and on independence of judges and lawyers, as a priority. Apart from the UN Human Rights Council the rest of the international community, particularly the development partners, who promote the norms and standards of international human rights instruments in their individual territories, also fail to make protection of human rights and justice of persons as the topmost prioritized obligation for Bangladesh to enhance partnerships. The international community appears to be reluctant to see a functional criminal justice system in a country where they spend their tax-payers money for development. Resurrection of thoughts require for reforms and justiceas the urgent need! The civil society of Bangladesh must think about what the nation immediately needs, as a priority, to address widespread killings by State agents where credible investigations and successful prosecutions are lacking? Without taking into account these systemic obstacles, the AHRC believes that efforts by the international system are unlikely to be effective. The AHRC urges Bangladesh to take all measures necessary to develop institutions capable of dismantling the systems of impunity that currently thrive within its borders. Bangladesh urgently requires the criminalisation of torture and thorough reforms to its criminal justice system. Complaint mechanisms must be open and free from any kind of refusal, resistance, threats and intimidation. Criminal investigations into allegations of human rights abuses by Stateagents must be performed by an independent and efficient agency. There should be an independent, apolitical, permanent and accountable prosecutorial authority. The countrys judiciary should be made competent to deliver justice independently, and be rid of the discrimination and corruption that plagues it at present.
64
FRoM BliNkeRed to MARket-oRieNted despotisM?

Since a new quasi-parliamentary government led by former army officers began work in Burma (Myanmar) earlier this year, some observers have argued that the government is showing a commitment to bring about, albeit cautiously, reforms that will result in an overall improvement in human rights conditions. The question remains, though, as to whether the new government constitutes the beginning of a real shift from the blinkered despotism of its predecessors to a new form of government, or simply to a type of semi-enlightened and market-oriented despotism, the sort of which has been more common in Asia than the type of outright military domination experienced by Burma for most of the last half-century. New talk, old thought, old habits Despite all the talk about new conditions in Burma, much evidence exists to show the contrary. One obvious indicator of worsening conditions in the country since the new government took power, which speaks to the continued hold that the military has on all affairs of any importance, is the resurgence of civil warfare in at least three states, in particular, in the Kachin regions bordering China, resulting in tens of thousands of people being internally displaced. The fighting in Kachin State began in June after a 17-year-old ceasefire broke down, and it has since spread across all parts of the state and has steadily intensified. Reports have emerged of Burma army soldiers gang-raping women and girls, and deliberately killing civilians, including some women already subjected to rape. At time of writing, the number of internally displaced people was reported to be over 40,000, who for the most part are being aided through local efforts, since authorities IDPs in Kachin-China border had blocked attempts by groups (Image from Jinghpaw kasa)
Burma
65
based in the country to get access to these people and systematically deliver food, medicines and supplies for shelter. The conditions of these people are particularly dire given the unusually heavy rainfall in 2011. The violence against ethnic minority groups in Burma is an outward symptom of old thinking and old habits among members of a government who are attempting to talk differently from before. While some superficialities change, the mentality of most government officials towards minority groups is as it has always been. Sometimes, the attempt at new talk itself breaks down, such as in an interview on the BBC Burmese Service this October 24 with the directorgeneral of the Department of Immigration and National Registration, U Maung Maung Than, concerning the status of Rohingya refugees repatriated from Bangladesh, which ran in part as follows:
Q. What is the policy of the government towards these Rohingya refugees? A. For our part we merely have responsibility to scrutinize them according to whatever policies. Q. Actually what I mean to say is that there is argument in the media, that are these Rohingya Burmese [citizens] or not, and what is the policy on that? A. As far as we are concerned, there is no such thing as Rohingya. We have said it from the beginning. The so-called Rohingya are not among the ethnicities of Burma. Q. That is the official government policy? A. That is what we had discussed before. In whatever discussion wherever, we have said that the so-called Rohingya are not included among the people of our country. You can go and ask all of the people of Arakan State. All of them say that there are no so-called Rohingya. [AHRC translation]
The interview with the director-general is concerning, since it illustrates (other interviews by other officials provide other similar examples) a continuance of mentalities and practices but also, either explicitly or implicitly, anti-human rights policies of past years, and the type of ethnic and religious chauvinism that has been a hallmark of authoritarian government in Burma for some decades. Nor are these practices and policies merely reflections of individual whims or sentiments: they are deeply institutionalized and regulated, as shown over the last year on freedom of expression. Some government proponents have pointed to a relaxation of censorship as a sign of improvement. However, the extent to which censorship has in fact relaxed is questionable. It is true
66
that publishers are able to cover more topics than previously. But despite the formal relaxing of some requirements on submission of copy for censorship prior to going to press, the government has introduced a new oversight board under the information ministry to investigate alleged violations. The board has issued a series of notifications, among which No. 46 (7 June 2011) states that it is prohibited to publish and distribute material that is contrary to the Three National Causes (non-disintegration of the union, non-disintegration of national solidarity, perpetuation of national sovereignty), the 2008 Constitution or the Official Secrets Act; that is damaging to relations among ethnic national races or religions; that upsets peace and tranquility or incites disturbances; that exhorts members of the armed services to commit traitorous acts or undermines the performance of public service duties, and so forth. The issuance of such blanket directives contradicts claims that the censorship regime is being relaxed and raises doubts that any real space is being opened up in Burma for free expression. That more free expression exists in Burma today is not evidence of a shift in the conditions of human rights in the country, but a pragmatic tolerance of authorities that at this time their own objectives might be enabled through allowing for some more debate on some more permissible topics compared to previously. From farmlands to factories The new government might not be turning battlefields to marketplaces, but it is rapidly encouraging unbridled and virtually unregulated attempts to transform the countryside from farmlands to factories, and to transform the economy more generally from a moribund authoritarian command model into one that corresponds with the new global economic realities, in the hope that a few of the countrys elite can make some quick bucks, even if it is at the expense of everyone else. While much of the current discussion about economic reform has concerned changes to the banking system, foreign exchange, and investment laws, none of these issues go to the problems of massive poverty afflicting millions of people all across the country, or the ever-growing gap between the wealthy few and the many poor. Even in urban areas, they are not matters that have captured the attention of working people. They are reforms for the advantage of the new governments constituency: medium to large-size businessmen connected to the military, and others connected to them in turn. Experts involved in making reform proposals seem to assume that such changes will indirectly benefit the wider population; however, evidence from all around the world shows that very often this presumption is false. The evidence from Burma so far is that a tiny percentage of the population is becoming grossly enriched through those so-
Burma
67
called reforms that have already been introduced, while millions grow poorer. One cause for particular concern, and one that the AHRC has followed closely, is the convergence of military, business and administrative interests in new economic projects aimed at displacing ordinary people from land. Whereas seizure of land has long been practiced in Burma, in the past land seizure was mostly carried out directly by state officials or the military. Hence, contestation over land seizure in such cases was between the state and affected citizens. Increasingly, with the changes in government and economy in Burma, private companies with connections to military officers or retired military officers are seizing land. From a human rights perspective, these cases are much more difficult to narrate, since on the surface they may be presented as a dispute between private parties. Only through close study and patient analysis do all the characteristics of the case is the nexus between military, business and administrative interests made clear. Cases that the AHRC has been following and documenting in 2011 include the following: 1. On 4 February 2011 four farmers in Kanma Township, Thayet District, Magway Region lodged a complaint that the Htoo Company, which is one of the biggest and most powerful companies in Burma, had illegally trespassed on and destroyed their land as part of a government-contracted project to make a caustic factory. The farmers alleged that a week earlier, Villagers from Kanma travel to court by boat to two army majors, one serving and contest their land (Image from HRDP network) one retired, representing an army-owned company that commissioned Htoo to do the project threatened that the farmers had to give up the land and accept paltry compensation or else. The court summarily dismissed the farmers complaint. When the farmers appealed, a group of men attacked a number of them adjacent to the land under dispute, and the police then lodged a case against the farmers rather than the attackers, for alleged theft. The local court convicted the farmers. On appeal they were released on reduced sentences for time served, rather than acquitted. The land dispute that gave rise to the legal action against the farmers remains unresolved. The UN Special Rapporteur on human rights in Myanmar highlighted this case in his 2011 report to the General Assembly:
Whereas the Government was directly responsible for economic projects prior to 1988, private local commercial interests with strong links to the military have since emerged, complicating somewhat the respective roles of these
68
companies and the Government in their legal complicity in human rights abuses. For example, on 18 December 2010, the Htoo construction company, owned by a powerful businessman in Myanmar with strong connections to the military, cleared the land of a group of farmers, which was under agricultural use, for the construction of a road to the site of a caustic soda and polyvinyl chloride (PVC) factory in Magway Division. On 4 February 2011, four farmers lodged a complaint about attempts by the Htoo Company to acquire their land at a greatly undervalued amount; their complaint was rejected in court on the grounds that the land was being acquired for a Government project, even though the company is private. Subsequently, a gang of about 20 men attacked a group of the farmers, injuring two of them, and a series of criminal charges were filed against the farmers. The case went to court very quickly and the farmers were convicted. Given the wave of privatizations last year, some under questionable circumstances, along with the new Governments plans to accelerate economic development, the Special Rapporteur fears an increase in land confiscation and other forms of coercion by private sector actors in collusion with the military and Government. [A/66/365, 16 September 2011, para. 69]
2. In November, the AHRC issued an appeal on a closely related case, arising from a new complaint lodged by a group of farmers against the construction of another caustic soda factory in Kanma. On 16 September 2011 the administration in Wegyi Village Tract, Kanma Township called farmers to a meeting to discuss the construction of a caustic soda and PVC factory in that tract. At the meeting, the farmers unanimously opposed construction of the factory, stating that they wanted to continue using their ancestral lands peacefully as they had done throughout their lives. Nonetheless, the local administration head said that the lands belong to the state and whether the farmers liked it or not the project would begin in October. According to the farmers, the company has prepared a report on the project in which it has falsely stated that the farmers have agreed to the project. They have sent letters to the government and company officials to make clear that they oppose the project, but so far they have not received any favourable response. Rather, at a meeting on September 22 they heard from one of the retired army officers running the project that the plans are complete and the work on the factory will start soon. Therefore, the farmers were justifiably concerned about the project, but also that if they oppose it, that not only will they be unsuccessful but they will also be targeted for various types of retribution, Kanma villagers (Image from HRDP network)
Burma
69
as in the preceding case. Indeed, according to a report at time of writing, after 88 farmers submitted a letter to the president seeking intervention into the case, local authorities summoned and interrogated 35 of them throughout the night in order to intimidate them. 3. Around 2am on 25 July 2011, three bulldozers entered a historic Muslim cemetery in Meikhtila, Mandalay Region, and began destroying gravesites. After the intervention of the local Muslim community, they left the cemetery at about 11am on the same day. However, extensive damage had already been done to some graves. The cemetery is on glebe land and is fully in compliance with domestic law. It has been situated there for over 150 years, and in accordance with a government order no new burials are being undertaken there but the cemetery is being maintained as a heritage site. Local Muslim leaders have alleged that a company wanting to take over the land for commercial activities carried out the nighttime bulldozer raid. Two company officials are former army officers, one a retired colonel, the other a captain, and the Muslim community fears that they will use their influence to force the cemetery to relocate so that the land can be used for business interests. The chairman of the committee maintaining the cemetery had subsequently submitted complaints to senior government Muslim residents in Meikhtila gather to officials requesting guarantees of stop the destruction of heritage Muslim protection against the attempts to cemetery by bulldosers demolish the cemetery and grab the land. 4. Police in Rangoon on 27 October 2011 quickly broke up a small demonstration by a group of farmers who had come to have their grievances over land loss heard by gathering outside a government department. Twelve of the protestors, including land rights lawyer Ko Phoe Phyu, were taken for interrogation before being released on bail after being charged with unlawful assembly. According to Phoe Phyu, who has worked closely with the International Labour Organisation in Burma, the group was hooded during interrogation, so they could not see their interrogators or place of interrogation. The cases against he and the farmers had at time of writing not yet gone to court. These cases are illustrative of the types of incidents now taking place by the hundreds, if not thousands, all across central Burma, and also in more remote areas where massive new dams and ports are under construction out of view of
70
the mainstream population and without any public scrutiny or independent oversight. Although the temporary halting of the Myitsone Dam project, in the face of growing nationwide alarm at the extent of potential consequences on the countrys water lifeline, the Irrawaddy River, has been rightly described as a victory for popular demands against such projects, the fact is that these sorts of projects are taking place all over the country. Together, they speak to the Phoe Phyu, an activist evolution of human rights abuses from the state- human rights lawyer and versus-people dynamic of the 1980s and 90s into a advocate (Image from Burma VJ media network) much more complicated array of phenomena that require more effort to document and interpret accurately. They represent a new type of challenge for the international human rights community in coming to terms with a type of devolved military authoritarian state of the sort now found in Burma, in which aspiring technocrats take on de facto spokesperson roles for military personnel in civilian garb, and businessmen are increasingly unconstrained by ineffectual and often deliberately marginalized or coopted state agencies. Concerns over the future of farmers and rural dwellers in Burma were heightened, rather than diminished, when during the second sitting of the new semi-elected parliament in Burma this year, the government submitted a draft land law. Rather than protecting cultivators rights, the bill undercuts them at practically every point, through a variety of provisions aimed at enabling rather than inhibiting land grabbing. It invites takeover of land with government authorization for the purpose of practically any activity, not merely for other forms of cultivation. Under the draft, farmers could be evicted to make way for the construction of polluting factories, power lines, roads and railways, pipelines, fun parks, condominiums and whatever else government officials claim to be in the national interest. The AHRC has identified the following aspects of the draft law that are of special concern: 1. No improvements on existing law: The law does not guarantee the rights of cultivators in principle to any greater degree than the existing range of law, including the 1963 Tenant Farming Law and its amending law, and the 1963 Protection of Peasants Rights Law, which it is set to replace. The provisions under extant law that it will replace have so far done nothing to stop land grabbing by the government in collusion with major business backers, like the Yuzana, Zegamba, Htoo and Ayashwewar companies. Therefore, in terms of basic stipulations of rights and the affording of protections for cultivators, the law offers nothing new at all.
Burma
71
2. Aggrandizing of executive power: Not only does the new draft law not offer any more normative guarantees compared to its predecessors, but it proposes oversight and routine intervention on land planning matters by an executive agency, which would have as its chairman the agriculture and irrigation minister. Under the peak agency others would operate at various levels of government. Disputes concerning land would have to be addressed through these bodies before any matter could be taken before a court. Furthermore, under the draft laws section 21, the agriculture and irrigation ministry would have the power to alter or overturn any decisions taken in any one of the new land agencies. Other sections of the law grant the ministry a range of further powers that ensure that the day-to-day running of routine affairs concerning cultivatable land will, if the law is passed, remain firmly under the control of a highly corrupt and frequently incompetent ministry. These powers include, among other things, powers to evict persons from land and order the destruction of buildings, subject to the drafting of new procedural rules under the law. 3. Denial of basic freedoms: The draft land law denies basic freedoms to farmers to make decisions about what to cultivate on their own land. Under section 23, the president is given full authority to issue instructions over the use of land for particular purposes in any part of the country. The past record of centralized land management and planning in Burma has been one of abject failure; the list of ineptly managed and spectacularly unsuccessful projects over the last half-century is far too long to mention. In fact, the only reason that the agricultural economy in Burma has not collapsed entirely is because of the capacity of cultivators to defy or sidestep authorities instructions on land use. The draft law, regrettably, spells only more of the same problems for farmers, giving the president all the powers to do as he pleases, and none of the responsibility when things go wrong, as inevitably they shall if this law is enacted. In sum, the land law draft is not a forward-looking piece of legislation for the new century, but a backwards-looking and highly regressive law modelled on 1960s quasi-socialist legislation, evincing an old-style authoritarian frame of mind, but one with the interests of the new class of military-connected entrepreneurs at the fore. It is designed to ensure the primacy of the executive authorities in all decision-making events, and to keep the role of the judiciary to a minimum. It aggrandizes the functions of executive officers, and like other aspects of the new constitutional arrangements, situates dictatorial powers in the presidential office. It is a law that has been written for the interests of powerful businessmen whose companies are already causing massive hardship and misery to people in various parts of Burma, and who are lining up to grab as much territory as possible in the next few years, and to share the spoils with their partners in government.
72
No competent judiciary, no remedies for violations It is obvious that none of the instruments and institutions available for the making of complaint of rights abuses in Burma come remotely close to what under international standards would satisfy the requirements for remedies for human rights violations. In the absence of an independent judiciary or minimally functioning institutions of the sort that are presumed to exist when these types of questions are discussed at the international level, nothing in the existing arrangements can be described as satisfying the requirements of international standards. Despite the political changes of the year and associated fanfare, the judiciary in Burma remains inert, tied to the executive, and incapable of performing even basic functions for the defence of human rights. Since the start of the year, structural changes to the judiciary under the 2008 Constitution have not materialized in any meaningful way. On the contrary, the courts continue to be as closed and obscured from public view as before, perhaps even more so. For instance, at time of writing still no biographies or details have been made known publicly of the new Supreme Court justices, among whom three are believed to have come from the armed forces, two others from the civil administration. Legal professionals have doubts about the background and abilities of these persons, yet they too have no detailed knowledge about them, let alone the opportunity to discuss such matters. Consequently, police, soldiers and other state officers or paramilitary groups attached to the state continue to be able to use and abuse their powers with impunity. Very often, they do so in the context of personal disputes, with the knowledge that the victims of abuses have no recourse. Sometimes, they act specifically in response to attempts of people to attract the attention of officials to their problems. For example, at the end of 2010 the AHRC issued an appeal on a case of a man who disappeared after a family dispute with a government official in Karenni State, in the east of the country. His abduction and disappearance by members of a ceasefire group operating closely with the local administration followed a dispute over the question of marriage between his daughter and the son of a government official. The official refused to allow the marriage and allegedly said that someone would have to die rather than have the couple wed. In December the young woman sent a letter to the state womens affairs committee to ask for assistance in the matter, and it was shortly after that that her father was abducted. To date, despite interventions of the family with the military, police, courts, prosecutors offices and other institutions, no inquiries have been conducted into the case, and nobody brought to account.
Burma
73
According to the Special Rapporteur in his report to the General Assembly,

The judiciarys capacity, independence and impartiality remain outstanding issues in Myanmar. The Special Rapporteur notes that there do not appear to be any major structural transformations within the judiciary. The new Chief Justice was formerly one of the justices on the Supreme Court, and the new Attorney General was previously a Deputy Attorney General, with no further information on new appointments to the courts. Concerns regarding the functioning of the judiciary also remain. The Special Rapporteur continues to receive information of criminal cases being heard behind closed doors. In one case, the family of former army captain, Nay Myo Zin, was barred from the closed court inside Insein prison, on 2 June 2011. Nay Myo Zin, who left the army in 2005 and then volunteered for a blood donor group headed by a member of the National League for Democracy, had been charged under the Electronics Act. During the proceedings, judges heard a statement from Deputy Police Commander, Swe Linn, who had conducted the search at his house, in early April 2011, and found a document in his e-mail inbox entitled National Reconciliation. On 26 August 2011, he was sentenced to 10 years in prison. According to reports, he appears to have been subjected to torture resulting in shattered lower vertebrae and a broken rib, which led to his attending court on a hospital stretcher. His requests for external hospitalization have also been reportedly denied. Further, the Special Rapporteur is concerned at allegations of widespread corruption, which, according to many sources, is institutionalized and pervasive. According to studies by civil society organizations, payments are made at all stages in the legal process and to all levels of officials, for such routine matters as access to a detainee in police custody or determining the outcome of a case. As Myanmar achieves greater economic development, there will likely be more conflicts and contests that will need to be resolved in the courts. The Special Rapporteur therefore welcomes the Governments stated commitment to combating corruption and urges that priority attention be given to the judiciary in this respect. [A/66/365, 16 September 2011, para. 19, 20, 23]
The AHRC concurs, from knowledge obtained through work on the issue over some years, that corruption in Burmas judicial system is indeed pervasive. Legal professionals say that the amount of corruption in the system is growing exponentially, as the costs of living rise and more and more judges and lawyers look to whatever opportunities they can to make as much money as they can. In some courts, lawyers estimate that up to 70 per cent of cases are decided in part or whole through the payment of money. Nor is this a question of one person or another in the system requiring payment: from studies that the AHRC has undertaken into the mechanics
74
of corruption in Burma, payments are made at all stages in the legal process and to all officials, from the arresting and investigating police, to court clerks, prosecutors, judges and others. Sometimes the payments are routine and petty, such as to meet a detainee in police custody and give food or medicine; at other times they are substantial and determining, such as to effect a specific outcome to a casebe it acquittal or conviction, reduction or increase of sentence or otherwise. Clearly, the extent of corruption in the system has immense implications not only for the rights of persons in the legal system today but also for any talk about long-term improvement of human rights in Myanmar. If the institutions that will be expected to participate in building a framework for the protection of human rights are themselves completely rotten, the task will be impossible. Human rights defenders in Burma and abroad need to pay much more attention to the extent of corruption in all areas of the criminal justice system and related institutions, not only because of the extent to which it already impinges upon the human rights of accused persons in non-political criminal cases but also because of the extent to which it is likely to emerge as a bigger problem in the next few years. The rapid increase in commercial investment from around the region, and the growing number of conflicts and problems arising due to fast social and economic change is bound to push larger amounts of money into the judicial system, as ill-equipped courts are called upon to reach verdicts for one side or another in increasingly complicated disputes between multiple parties of the sort discussed briefly in the next part. From a human rights perspective, we need to be speaking to this issue so that when questions of institutions for the investigation of complaints and provision of redress for abuses arise it is possible to go past the superficialities about whether or not a law or institution merely exists to how, in actual fact, it operates in particular ways in response to shifting political and economic relations. During the year, the government announced the establishment of a Myanmar National Human Rights Commission, which has started receiving complaints. The commission is comprised mostly of former diplomats, men who have spent years flatly denying the existence of human rights abuses in Burma, in the face of mountains of evidence to the contrary. It is not comprised in accordance with the internationally agreed upon Paris Principles for national human rights institutions. It does not operate under any legislation and has very vague terms of reference. From interviews of the bodys chairman with media outlets, it would appear that the body upon receiving complaints will do no more than look into them itselfthe extent to which it can do this is extremely doubtful, given that it does not have any significant budget or personnel with which to conduct inquiries, let alone a mandate to do so independent of
Burma
75
other agenciesand then submit its findings to the government departments concerned. Given that government officials in Burma have, along with the members of the commission itself, a track record of denial of wrongdoing but also the capacity to respond vigorously to any such complaints with countercomplaints as well as with extra-legal measures to silence complaint, the new commission gives little cause for enthusiasm. political reconciliation by hostage taking Throughout 2011, most political detainees remained in Burmas jails. These people include most of those imprisoned following the monk-led uprising of 2007, as well as long-term detainees, like Ko Than Zaw, who has been imprisoned for over 22 years for a crime that he did not commit, and on whose case the Asian Human Rights Commission issued an Urgent Appeal in November. Military intelligence personnel pulled Than Zaw, an organizer for the National League for Democracy, from his house early one morning in July 1989 without explanation, before taking him to an interrogation centre where they tortured he and two other men to confess that they had committed a bombing attack on a refinery. At the end of the month, the men were brought before a military tribunal, which sentenced them to death without permitting any of them a fair hearing or defence with legal counsel. The state media published a news conference by the head of military intelligence that the accused had confessed and that they were part of a plot by the NLD to blow up the refinery. Although intelligence later detained a man who reportedly admitted to the refinery bombing, and he was also imprisoned, the three originally accused men were not released and instead they were put on trial again with a group of other NLD members on a charge of high treason. Than Zaw was held at the Insein Central Prison, but on 25 September 1990 was accused of involvement in an inmates protest. The prison authorities called in the army and riot police, who put down the protest with heavy violence, and he was transferred to Thayet the next day. Since that time, all other accused in the case, including the man who reportedly admitted to carrying out the bombing, have been freed, but Than Zaw has inexplicably remained held up to this day, which means that he has so far spent around half of his lifetime in custody. The last remaining accused in prison out of the other co-accused with Than Zaw was among over 6000 detainees released from Burmas prisons in October. Also among those released was a famous comedian, Zarganar. Imprisoned for criticising the relief effort in the wake of Cyclone Nargis in 2008, Zarganar spoke to the BBC Burmese Service shortly after his release. Asked about the claims of the countrys president that his government is working towards national reconciliation, and Zarganar laughingly likened this form of national reconciliation to putting makeup on a paralyzed elderly woman and taking
76
her out on the town. He also said that he and other political detainees were like hostages, being released at a trickle in exchange for deals being struck with various parties at home and abroad. Zarganar is correct that national reconciliation through hostage taking is a fraud. The reason that he is correct is that national reconciliation through hostage taking rests implicitly on the notion that the victim, the hostage, is expected to be grateful to the perpetrator, the hostagetaker, for letting him go. It is premised upon the notion that the government in Burma, as a perpetrator of crimes, ought to be Zarganar after his release from congratulated for acts of apparent generosity prison (Burma VJ media network) towards persons whom it has persecuted relentlessly. Over the last few years, prisoner releases in which political detainees have also featured have been a regular event in Burma. Each release is an opportunity for the political leadership to temporarily pay the role of benefactor, and enjoy some praise for whatever largesse it has managed to generate through the freeing from detention of persons who should have never been detained in the first place, persons whose crimes constituted acts that in most other countries are taken for granted. It is for this reason that such releases of detainees are indicative not of a system operating according to rational law, but one operating according to feudal principles, in which a regal figure earns the gratitude of his subjects for the merciful exercise of arbitrary power. But the method only works well when those released show the required deference to the powers that have released them. When, as in the case of Zarganar, they continue to show defiance and scorn, national reconciliation through hostage taking is, rather than being an effective political device, exposed as a fraud. For this reason, the authorities in Burma are afraid to release many of the remaining political detainees there, including the leadership of the Shan Nationalities League for Democracy and the 88 Generation Students group, on both of whom the AHRC has previously issued appeals, since to do so would threaten the methods effectiveness. Similarly, they have on this occasion not released most other persons on whose behalf the AHRC has campaigned for some years, including the founder of Human Rights Defenders and Promoters, U Myint Aye; persons accused of having links with exiled opposition groups and media, including Sithu Zeya and his father U Zeya; National League for Democracy member Aye Min Naing and colleagues; and, people falsely accused
Burma
77
of involvement in bombings around the country, including Htun Oo and others in Pegu, and Phyo Wai Aung, whose trial is continuing in Rangoon. Since the method of national reconciliation through hostage taking requires the existence of a pool of hostages that can be drawn upon if and when the authorities see fit, while releasing detainees through one door, the authorities continue to pull in others through another, as in the following cases on which the AHRC issued Urgent Appeals during the year: 1. In August the AHRC issued an Urgent Appeal on the case of Htun Oo and 13 other persons, 11 who have been taken custody, accused in connection with a bombing in Pegu during 2010. The police brought charges against the accused following illegal detention of over three months and on falsified records. According to the charges, some of the accused had gone to Thailand to get training in political defiance and use of Internet and got financial support with which they made the bomb attack. However, study of the records reveals that they are fabricated, that the evidence against them is immaterial, and that criminal procedure has throughout the case been flagrantly violated. Notwithstanding, at time of writing the trial against them was proceeding, with an expectation of guilt and lengthy prison terms being handed down. 2. In February, a court sentenced 22-year-old Kaung Myat Hlaing to 10 years in jail for allegedly sending some politically oriented photographs through the Internet. Aside from the trivial nature of the offence and the fact that the police had no evidence against him, he was tried and convicted twice for the same offence, which is contrary to the law in Burma. He also was held illegally for nine days, in which time he was not fed and was allegedly tortured to obtain a confession, after initially also being accused of involvement in a bombing. In view of such ongoing and recently completed cases, the official admission in 2011 that prisoners of conscience exist in Burma is not of itself some kind of breakthrough, but merely a belated statement of fact, which of itself does not amount to anything much. Indeed, after the release of the over 6000 detainees in October, government sources indicated through the media that only about 300 more of these prisoners are still behind bars. Why the authorities would acknowledge but not release these political detainees is perplexing, but all the more perplexing is why the figure is only 300, when groups like the Thailandbased Assistance Association for Political Prisoners (Burma) put the number at close to 2000. Presumably, those included as prisoners as conscience are those who have been prosecuted for offences related to political activities, such as Internet-use crimes under the draconian Electronic Transactions Law, rather than those like U Myint Aye, who was imprisoned after being tortured and forced to confess to plotting and causing bomb blasts in the country, or the 14 people in Pegu.
78
Reports of ill treatment of detainees continued throughout the year, and the AHRC made a number of interventions on these, although appeals issued constituted only a fraction of the reported incidents. In February the AHRC reported on a case in which six men in 2010 were accused of having contact with an insurgent group in the east of Burma. Soldiers and police arrested five of the six villagers, the other one getting away. Soldiers tortured the men to extract confessions. The methods of torture allegedly included setting fire to plastic and dropping it onto the mens bodies, including the genitals. Of the five men detained, one paid money in order to be released, while another, 38-year-old San Shwe, died due to torture in custody. According to a witness, officials dragged his body like a pig to a treed area and buried it in an attempt to cover up the murder. The remaining three men have been imprisoned for three years each. None of the accused men had a lawyer when they were convicted in the township court and they were not able to defend themselves or cross-examine the police and local council officials who deposed against them. None of the army personnel involved in the case appeared in court. There was no material evidence to link any of the accused to the crimes that they allegedly committed. Nor were there any independent witnesses. The family of San Shwe lodged a missing person case but the police failed to investigate, even though he was named as among the persons suspected of contact with insurgents in the cases against the three convicted men. They have tried to take a case to court but have so far been unsuccessful at getting an investigation opened. Of special concern was the case of U Gambira, a monk who was at the forefront of the 2007 protest movement, and who is reportedly suffering from serious illness. In October, the AHRC director, Wong Kai Shing, wrote personally to the president of Burma, U Thein Sein, a former general and prime minister of the previous government, calling for urgent humanitarian intervention on behalf of the monk:
Shin Gambira The Asian Human Rights Commission has been concerned about Shin Gambiras health since we received information that he had been assaulted during a prison transfer and that he had been assaulted repeatedly at the Khandi Prison over the course of about a month, due to which he has been suffering from head and back injuries. According to prisoners released from Kalay Prison on October 12, due to these injuries, Shin Gambira is suffering from fits, in which he frequently cries out in pain and clutches at his head. The prison authorities then have to hold him
Burma
79
down to administer a drug via injection, perhaps a sedative, after which he goes quiet and falls unconscious. When he comes out of unconsciousness, he slurs his speech. From these reports, we conclude that both the physical and mental health of this detainee is in a very precarious situation indeed. While maintaining the position that Shin Gambira ought to be released from prison without delay, as he has in our opinion committed no offences for which he deserves to be imprisoned, I urge you, regardless of other factors, to look into the case and arrange for his prompt transfer back to a facility in Yangon [Rangoon] where he can receive appropriate treatment and also be close to his family. The question of detainees health is, as you know, a humanitarian matter that transcends political issues. We trust that you will consider this case in that spirit and look forward to your prompt intervention. We also take this opportunity to again urge that the International Committee of the Red Cross be given unimpeded access to all places of detention in Myanmar in accordance with its international mandate. [AHRC-OLT-013-2011, 25 October 2011]
After this letter was issued, family members who visited U Gambira confirmed in radio broadcasts that his situation is very grave and they fear for his life and sanity; however, prison officials denied that anything is wrong with him. At time of writing, the AHRC is not aware of any action being taken by the president or other senior officials to intervene in his case; at least to have him transferred back to Rangoon, where his family can be in regular contact. Indeed, it is a feature of the handling of political detainees in Burma that they are transferred to remote prisons for precisely this reason that they suffer an extrajudicial punishment in the form of isolation from family and friends, who not only provide moral support but also provide much needed food, medicines and other items with which a detainee can survive. This gulag archipelago policy was the cause of death of another human rights defender monk held in custody, on whose case the AHRC reported in December 2010. U Nemainda, who had been sentenced to 20 years in prison in 1999 for alleged involvement in an unlawful association, had been suffering from a curable skin disease for over a month, in the Moulmein prison on December 8. He had complained to the prison authorities about his disease but no medical care was provided. As he was sent to a prison far away from his home, none of his family members could visit him to assist. The gulag archipelago policy is yet another from earlier periods that has remained under the current government, despite its pretensions to represent a change from the past, and yet another that must be abandoned before the government of Burma can expect to be taken seriously in its claims.
80
Widespread accusations also persist of maltreatment during police interrogation. A senior legal expert alleged in a signed open letter that police drugged his client during interrogation. According to Aung Thein his client U Zeya has told him that during 20 days he was interrogated, he experienced a lack of hunger, heightened energy and lessened drowsiness, as well as a loss of concern to deny the allegations that the police put to him, replaced by a willingness to agree with everything they suggested. He also said that during the 20 days he went to urinate only three or four times. Zeya, 58, is another person convicted for political reasons of a concocted bomb plot, following the arrest of his son for taking photographs at the site of a bomb blast in April 2010. U Aung Thein alleges that his client was given some kind of amphetamine in drinking water supplied while in custody. Aung Thein noted that this is not the first case in which a client had made such an allegation to him. The AHRC also has received details of such cases, including one in which an accused said that he was injected with an unknown substance. All these allegations that relate to abuses of human rights committed while under custody again present an opportunity for all concerned agencies and individuals to press for the International Committee of the Red Cross to be allowed to resume its visits to places of detention in Burma. The denial of access to the ICRC is related to the alleged drugging of accused persons, since both relate to an official mentality that nobody has a right to know what really goes on behind the closed doors of police stations and prisons. Where even the principle of an outside agency confidentially monitoring detainees conditions in accordance with a globally established mandate is unacceptable, there is no chance of anyone keeping tabs on what officials do to people in their custody. Acceptance of external monitoring of basic conditions is a prerequisite for allegations like these to be addressed in any meaningful way. Conclusion Under semi-enlightened despotism, intellectuals flattered at the opportunity to have some input into the affairs of state are recruited to an essentially authoritarian cause and encouraged to conjure up an image of progress that does not actually exist, or of progress that is not of the sort that they describe or to which some of them may in fact aspire. In the current period in Burma, it can also be described as market-oriented despotism, in which conditions will enable military-linked private enterprises to do as they please in the country, while the institutions needed to monitor and restrain their activities will not exist. The latter type of political shift will not give meaning to the values of the global human rights movement, but it will result in changes to the dynamics of human rights abuse in Burma, and perhaps lead to a worsening of overall conditions compared to those which existed under successive military regimes.
Burma
81
Ultimately, the expression, enjoyment and defence of human rights are about participation: not the type of fraudulent, managed participation imagined by military types and technocratic administrators, but the opportunity for genuine participation of the sort that the people of Burma have attempted repeatedly to obtain for themselves, most recently in the nationwide protests of 2007. No such opportunity exists at the present time, and so nor has there been any sign of public participation in the political rejigging of the army-run system during 2011. The reason for this lack of participation is that people are, after all, not stupid, as the military and commercial elite in Burma has repeatedly made the mistake of thinking. A few soldiers pulling off their trousers and putting on sarongs fools nobody. Indeed, it did not fool anybody last time it was done, in 1974, when a new civilian government rather than being greeted with applause or praise was greeted with widespread strikes and public protests. This time around, the presence of Aung San Suu Kyi and some other trusted national figures has allowed the new government to negotiate the political waters a little better, but it has not yet brought public participation, and peoples tolerance will only last so long.
82
HumAN rIgHts A utopIA wItHout justIce
Introduction: The worlds largest democracy, has come a long way from what it was in 1947 - an impoverished and underdeveloped nation - to become the third largest economy in the world in terms of purchase power parity. While in the immediate neighbourhood and for the most of Asia, democracy could only make cameo appearances, India maintained its democratic architecture of administration, and is pushing forward, trying to bring wide-ranging changes in its administration, which has the potential to enable Indians to realise more of the democratic dream the founding fathers of the country promised to the people on 15 August 1947. Even though the country is estimated to be home to a third of the worlds poor1 there is an overwhelming increase in the middle-class population over the past decade.2 Yet, it is a cruel paradox that this great march forward has not benefited a considerable number of Indians, an issue that has the potential, if it is not addressed timely and properly, that could challenge the very existence of the country and its democratic roots. To this poor people, 65 years of independence has brought no substantial differences in their daily realties in life, particularly concerning the notion of justice, other than for a ritualistic change of guards in New Delhi and at the state capitals.3 What Indians achieved 65 years ago is not just an end to the colonial rule. Independence was the defining moment of the power of non-violence. Yet violence has remained the primordial nature of authority in India, sanctioned
2 3
2010 World Bank statistics. The data provided by Indias own Planning Commission is not used since the data is widely reported to be wrong, and the Deputy Chairperson of the Commission itself has admitted in October 2011 that errors have crept into the Commissions poverty estimates for the year. Estimated to be slightly more than 150 million in 2010 by McKinsey & Company, Inc. INDIA: In the absence of justice independence is a myth; AHRC-STM-105-2011; 15 August 2011
India
83
by statute, as it is in the Armed Forces (Special Powers) Act, 1958 or time and again put to use through the daily and manifold forms of torture perpetrated by the police and other law enforcement agencies, against which there is still no law in the country or any functioning accountability framework. On an equal footing, one could read distinct forms of violence committed against the psyche of a society in caste-based discrimination, corruption and starvation deaths. The forced eviction of some of the poorest of the poor in the name of development projects; the denial of rehabilitation and compensation to those who unwillingly oblige to the unified might of the corporate and state power4; the alarmingly increasing instances of religious intolerance like militant youths beating to death a person on mere suspicion of immoral conduct5; the denial of academic freedom to express opinions about fictional texts6; and the deafening silence of the countrys political parties to religious intolerance and nurturing intolerance as a potential source for vote-bank politics are examples to the manifold forms of violence committed against the country. Such omnipresence of aggression is proof to the fact that the countrys justice framework has become unable to meet the requirements of a rapidly changing - unfortunately in the wrong direction of extreme polarisation - country. Worst still is the fact that today the countrys neutral space for dialogue has turned out to be more silent to these injustices. It has become increasingly difficult to filter facts from fiction. The relatively free media in the country now appear to find comfort in identifying themselves catering to partisan interests. For those who really care, finding out the truth is increasingly becoming a difficult task in India. Freedom is meaningless in the absence of the right to know the truth and be informed. Though the Right to Information Act, 2005, a watershed legislation concerning freedom of information in India has opened a new vista in seeking information, without being able to use the information obtained to seek justice, the law becomes a boat in dry sand. Freedom to be informed also means proper investigation of crimes, irrespective of the accused persons political and economic influence. This freedom implies the right against extrajudicial execution and encounter killings; the right against disappearance and arbitrary and incommunicado detentions and the right and avenues to seek remedies against injustices.
4 India is one of the countries where forced eviction for development projects is very high and probably the only country where for those who are to receive compensation and rehabilitation will have to wait the longest, that may extent to six or seven years. Shoma Chatterji, Children impacted by forced evictions, India Together, 7 June 2011. In Kerala there were 11 different incidents of lynching in 2011 so far. AsiaNet News, Man beaten to death in Perumbavoor, 11 October 2011. Furore over Ramayana essay points to cultural divide, India Times, 1 November 2011.
5 6
84
Freedom and rights have a universal language7 , translated into accessible and exercisable realities for everyone. This however cannot be achieved without properly functioning justice institutions. Today, one of the most neglected and thus the least developed area in India is its justice framework. Having a few cases decided, thereby setting standards for international and domestic human rights norms need not imply that the jurisprudence laid down is translated into quantifiable and thus realisable rights to the people. Should that be the case, right to housing and freedom from forced and unjustifiable eviction would have been a reality to most of Indians since the Olga Tellis case.8 The reality of forced eviction, without at least just and acceptable compensations, and artificially created depletion of livelihood options to thousands of families living in states like Madhya Pradesh, Orissa, Maharashtra and Chhattisgarh should not have happened in India. After the Prakash Singh case9, unwarranted political interference in policing should have stopped. Since the D. K. Basu case10, custodial violence should have been reduced to a bare minimum in India. The fact that it is not the case is amble proof to the reality that mere judgments need not bring in change. In that the social engineers role of a court can be very much limited to reported cases, worthy of being footnoted later, than of any meaning should the country does not consider improving its justice framework as priority. Freedom without justice lacks substance. What India, and through the Indian freedom movement, the sub-region has achieved 65 years ago, is just not the freedom from colonisation. The concept of freedom has engraved in it the notion of justice. It is this very notion that India is yet to indentify and make a reality for its citizens. What was achieved in 1947 is the freedom to cast the destiny of a state, that of its citizens and of its future generations. Without justice, freedom would remain a false notion. The AHRCs annual report on India will examine this concept. The following chapters examine four important issues that have glaringly attacked the notion of justice in India namely: i. The practice of torture; ii. Draconian legislations like the Armed Forces (Special Powers) Act, 1958
7 Peace, justice and freedom: human rights challenges for the new millennium; Gurcharan Singh Bhatia, 2000, University of Alberta Press. 8 Olga Tellis and others Vs Bombay Municipal Corporation and others; 1986 AIR 180. 9 Prakash Singh and others Vs. Union of India and others; Writ Petition (Civil) 310/1996, decided on 22 September 2006, Supreme Court of India. 10 D.K. Basu Vs. State of West Bengal; Writ Petition. (Criminal) 539/1986, decided on 18 December 1996.
India
85
iii. Caste-based discrimination; iv. Right to food and forced evictions and the development paradigm. custodial torture: Three years have elapsed since the Prime Minister Dr. Manmohan Singh promised the country that India would ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention on October 14, 1997, when Mr. I. K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for India to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujrals successors, Mr. Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation. India has not moved much forward since then on the issue other than the introduction of a Bill in the parliament, the Prevention of Torture Bill 2010. The Lok Sabha passed the Bill on 6 May 2010. 11 The Rajya Sabha, after considering the Bill constituted a Parliamentary Select Committee to review the Bill. The Committee after its review of the Bill suggested wide-ranging changes to the proposed law. The Bill is now with the government and nothing much is heard about it since then. The declared purpose of the Bill is for the country to have an enabling domestic legislation to effectively implement the Convention against Torture in India upon its ratification at the UN. The Bill however fails to meet any such standards. Rather it is a poor and farcical attempt to have a law for the sake of having one. It does not require a jurist to read the 661 words long Bill to understand that the government is trying to hoodwink itself, and in essence, the nation and feel proud about it. The AHRC has analysed the Bill in detail.12 The proposed law neither speaks of seriousness by the government to control a crime, as grave as torture, which is widespread in India, nor is it visible in the Bill that it is an initiative in that direction. In the meanwhile, the government has resolved to constitute a National Mission for Justice Delivery and Legal Reforms to ensure justice to the people.13 It is reported that the Mission will be mandated to conceive and
11 http://notorture.ahrchk.net/profile/india/Prevention_of_Torture_Bill_India_2010.pdf 12 Indias Prevention of Torture Bill requires a thorough review, Article 2, 10 December 2010. 13 Setting up of National Mission for Justice Delivery and Legal Reforms, Press Information Bureau, Government of India, Release ID : 72822
86
implement schemes to ensure expeditious and quality justice in the country. It is encouraging news to everyone who is concerned about the appalling state of affairs of justice administration in India. The reality however is that court delays is not the only reason for the appalling justice framework in India. For the ordinary citizen, the most visible presence of the justice framework and that of the government is the local police. Unfortunately for the common person, the aam admi of India, the local police often portray the image of a criminal in uniform. Conditions have come to such state that today in India the police and other law enforcement agencies are feared than respected as government agencies. The police is viewed, for tenable reasons, as an entity that breaches law with impunity than be an entity that operates within the framework of law. Police officers complain that they are professionally ill equipped to meet the requirements of a police force serving a modern democratic state and its people. Officers in one voice complain about the unwarranted political interferences in all aspects of daily work and some have dared to take the matter to the highest court of the country, like Mr. Prakash Singh.14 Most officers honestly believe that they have a right to punish the suspect and justify torture as the only means to investigate crime.15 Officers often find it acceptable to make public statements, that the only punishment a suspect will ever receive is torture while in custody, since they agree that the courts in the country are incapable of delivering justice. This belief is not however limited to police officers. For instance in a case reported by the AHRC, a team of officials from the Madhya Pradesh Forest Department in Gangau Abhyaran of Panna tiger Reserve, arrested Rakesh Adhikari on false charges of hunting Nilgai on 3 May 2011.16 In the incident, officials brutally kicked five-month pregnant Seema Adhikari as she opposed their illegal arrest of her husband Rakesh Adhikari. Seema suffered a miscarriage in the incident. No action was taken against the officers, other than suspending them pending an inquiry once the AHRC reported the case. In a similar case reported from Assam, a group of Central Reserve Police Force (CRPF) officers entered 66-year-old Farizs house and assaulted him along with his wife and son on 27 July 2010. Fariz was seriously injured in the incident
14 Prakash Singh and others Vs. Union of India and others, Writ Petition (civil) 310/1996, decided on 22-09-2006 by the Supreme Court of India. 15 Was man-beating incident in Delhi subways women-only compartment actually staged? France 24 International News, 6 January 2011 16 INDIA: Husband and wife abused and assaulted by officers from the state forest department, AHRC-UAC-106-2011, issued on 25 May 2011
India
87
and had to be hospitalised. Due to fear, Fariz did not dare report the incident to anyone until April 2011.17 The officers suspected Fariz to be responsible for embezzling money. It is a shocking irony that Fariz is a retired CRPF constable. There are other similar cases reported by the AHRC during the year from across India during the year. 18 Politicians publicly subscribe to this view, for instance Mr. K. Radhakrishnan, the former Speaker of Kerala Legislative Assembly. Radhakrishnan while addressing the annual meeting of the state police officers association in 2007 said a third world country cannot afford to have a police that abides the law when investigating crimes. It is an irony that Radhakrishnan himself is a victim of brutal police torture during his college days. In addition, for good reasons the police do not trust the prosecutors and often complain that the prosecutors are appointed after paying bribes to politicians, a fate that they themselves are subjected to concerning appointment, transfer and promotions. It is common in the country for the police to demand and accept bribes for recording complaints and investigating cases. Indian police today has reduced to an institution that often prefers to play the role of a mediator, who after accepting illegal gratification from the parties to the dispute tries to force a settlement in an issue. No government, state or central, has tried to address any of these issues. It is not because that the government is not aware about these concerns. It is just that those who hold fort in the national and state capitals prefer to have a corrupt and inept institution that is easily pliable to the requirements of those in power and for that very reason the police is maintained as it is today, in this unacceptable state of decay. Such institutional wilt has reduced the countrys police into a demoralised force susceptible to all forms of manipulation. It is no surprise thus the number of extrajudicial executions are high in India. The Indian media, criminally oblivious of what extrajudicial executions imply, have promoted killer officers showering them with accolades and referring to them as encounter specialists.19 Stories of how these officers eliminated criminals through open murder were a regular feature in most dailies and magazines.20 None complained why due process is so subjugated to the crude interpretation of the state police. Even the courts failed to intervene. It was only when, after several years, particularly
17 INDIA: An old man assaulted by the Central Reserve Police in Assam, AHRCUAC-074-2011, issued on 8 April 2011. 18 Kindly see Urgent Appeals issued on India available at www.humanrights.asia. 19 Indias acceptable encounter killings, Bijo Francis, UPI Asia, 1 April 2008. 20 Our encounter specialists, Express India, 18 October 2007; Former encounter specialist plans to work for Thanes progress, India News, 10 October 2011.
88
this year, when the media started changing their view on the subject and even undertook some undercover operations to expose these murderer cops the courts intervened.21 The criminal justice dispensation system of India depends much upon the policing and the proactive role, played by the judiciary, specially those officers from the lower ranks of the judiciary. Even though scholars and experts argue that the judiciary and the police are two independent institutions responsible for maintaining the rule of law in the country, in practice they are both interdependent and at times, very deficient in their functioning. This interdependency continues all the way from the very stage of institution of a criminal case to that of the prescribing punishment if the accused is finally convicted and sentenced for imprisonment or acquitted as the case may be. It is an alarming trend in India that in an increasing number of cases if the police are certain, according to their conviction, that the suspect in custody was involved in a serious crime, often the suspect is killed, allegedly in an encounter. It appears that the government is increasingly tolerating the misuse of authority by law enforcement agencies. The cases of encounter killings reported from the states of Gujarat, Uttar Pradesh, Karnataka, Chhattisgarh and Andhra Pradesh show a consistent and alarming pattern of tolerance for the use of violence by state agencies. After each reported encounter killing the government launches a smear campaign against the murdered suspect, justifying the act of the state agencies as if the murder were inevitable and is in fact an achievement. Custodial torture and encounter killings are closely related. State-sponsored interrogation centres -- often torture chambers -- function in most states in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning. Later they are killed and declared as killed in an encounter. Such centres are run under the guise of protecting ordinary citizens from anti-social and anti-national elements. It is just not the police that engage in torture and other criminal activities with impunity in India. Paramilitary units stationed in states like Assam, Jammu and Kashmir and Manipur abundantly violate basic norms of human and fundamental rights on a daily basis. Unlike as often construed in New Delhi and by many Indians everything about Jammu and Kashmir is not Pakistan
21 Timeline: The rise and fall of encounter specialists, IBN Live, 2 September 2011.
India
89
sponsored and religiously fuelled extremism, nor is every untoward incident reported from states like Manipur an act of terror carried out by secessionist forces. The armed forces and state police operating in these two states at least, have engaged in umpteen number of arbitrary executions, rapes, torture and other brutal violation of rights of the ordinary people, that the state agencies have played a key role in alienating the vulnerable communities living in these parts of India, by the way all of them Indians, against India and the government. It is not that the state or central administration is not aware of such atrocities. It simply chose to do nothing. Worse still, the government, year after year, renewed the operation of the draconian law, the Armed Forces (Special Powers) Act, 1958 in these states as it suited them.22 Repeated requests, even by government-sponsored bodies to withdraw the law and its operation from the states are ignored. Thrusting enforced silence upon these people further will not bring them back into the national mainstream, neither will the prevailing culture of impunity help these destitute develop trust about their alienated administrators. Law enforcement agencies are also exploited and manipulated by the same group of individuals. Instead of serving the general public, the law enforcement agencies in India often tend to serve those who have power and money. It appears that the law enforcing agencies in fact allow themselves to be manipulated so that these agencies could also exploit the resulting opportunity for their benefit. The result is selective justice, often to the detriment of the ordinary people. This situation also facilitates widespread corruption in the society. As early as in 1981 the Supreme Court of India has said ...[n]othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights.23 Internationally, torture is considered as one among the most heinous crimes like slavery, genocide and maritime piracy against which there is an absolute prohibition and the principle of ius cogens applies. When torture is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, torture can also be treated as a crime against humanity under the Rome Statute.
22 Please read further to learn more of this law. 23 Kishore Singh V. State of Rajasthan, AIR 1981 SC 625.
90
The National Human Rights Commission of India has repeatedly recommended the government to criminalise torture. The Commission once said [d]aily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens. Such a situation must end, through the united efforts of the Government.... The UN Human Rights Committee as early as 1997 has expressed its concern about the widespread use of torture by the law enforcement agencies in India.24 The Committee expressed similar concerns on Elimination of Racial Discrimination25 in 2007 and the Committee on Economic Social and Cultural Rights in 2008.26 The Human Rights Council in its concluding observations on India after the first cycle of Indias Universal Periodic Review once again expressed the same opinion.27 Despite all this the practice of torture is the norm for law enforcement in India today. In a democratic framework, torture undermines democracy and the rule of law. Its open or clandestine use undermines the fundamentals of democratic governance. Law enforcement agencies, particularly the police, practicing torture reduce itself into an instrument of fear. This image and torture often diminish criminal investigation into a mere charge based on confessions. Fair trial, an important part of the rule of law framework, has no place in such an environment. For the ordinary person the presence of justice is evident in the functioning of the local police and the local courts. These are the two important institutions in any state structure that provide protection and guarantee to a persons life and property. Due to the proximity of these two institutions to the people and their life, the functioning of these institutions is under the constant scrutiny of the people. When these institutions fail to perform reasonably well, the people will exploit its weakness and will also disregard them. A failing judiciary, inept law enforcement agencies and widespread corruption is the cocktail for disharmony and violence. The convergence of the failing justice mechanisms is the meltdown of the public perception of the justice by the state. When the state fails to provide security and guarantee to its own people, people take law into their own arms. The result is what India is experiencing today.
24 25 26 27 CCPR/C/79/Add.81. CERD/C/IND/CO/19. E/C.12/IND/CO/5. Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, India; A/HRC/8/26 dated 23 May 2008.
India
91
The rule of law must not remain a notion that is mostly preached but least practised if the people were to trust their government. Justice is not a concept that could be achieved with torture and extrajudicial execution. Nor is a government honest when it claims that it promotes democratic values while does nothing to prevent torture within its jurisdiction. A state that condones torture is as barbaric as the act itself. Armed Forces (special powers) Act, 195828 The Armed Forces (Special Powers) Act, 1958 (AFSPA) is a subject of severe criticism by human rights activists and jurists in India and across the world. The alarming number of human rights abuses committed by the security agencies deployed in regions where AFSPA is currently put to use is depressing proof to the draconian nature of this law. Many lives lost already - estimated to be more than 4000 since the Act came into force in 1958 - to this the Act underscores the non-compatibility of this law to the notion of democracy. The statutory impunity provided in the Act and the extreme nature of force, that could be used arbitrarily on mere suspicion, empowering a soldier to shoot to kill with no fear of prosecution which is used without restraint till today, proves that this law has not only failed, but would not by any stretch of imagination be of use to curb armed secessionist militancy in the country. The AFSPA has been in force in several parts of India, including the State of Manipur in the northeast of the country, for more than fifty years.29 The vaguely formulated provisions of the Act grant extraordinary powers to the Indian armed forces in the so-called disturbed areas where it is applicable. The Act has been at the heart of concerns about human rights violations in the region, such as arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances. Its continued application has led to
28 This is the abstract of a former report jointly authored on the subject by the AHRC, Redress UK and Human Rights Alert, Manipur. The complete report can be downloaded at: www. humanrights.asia/countries/india/reports/AFSPA1958Review-Aug2011.pdf. 29 The Act, introduced originally as an Ordinance, The Armed Forces (Assam & Manipur) Special Powers Ordinance 1958, was first made applicable in respect of the north-eastern state of Assam, and Manipur - then a Union Territory. In May 1958 the Ordinance was brought to the Parliament as a Bill. Both houses of the Parliament, after a short discussion enacted the Armed Forces (Assam & Manipur) Special Powers Act, 1958 on 18 August of that year. It received presidential assent on 11 September 1958. By amendments introduced in 1972 and 1986 the scope of the application of the Act was expanded. Today the Act is applicable to the north-eastern territory of India, comprising of seven states, namely, Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland. In 1990, a similar Act was enacted to cover the State of Jammu and Kashmir.
92
numerous protests, notably the longstanding hunger strike by Ms. Irom Chanu Sharmila in Manipur. The AHRC/ALRC has analysed along with Redress, UK and Human Right Alert, Manipur the Acts compatibility with Indias domestic and international human rights obligations. The AFSPA violates constitutional mandates of India 30, and international law in particular Indias obligations under the International Covenant on Civil and Political Rights (ICCPR). The Covenant, to which India acceded in 1979, recognises a number of fundamental human rights, including the right to life, the right not to be tortured or ill-treated, the right to liberty and security, fair-trial rights, the right to privacy, and the right to freedom of assembly. The history of the Act is marked by longstanding concerns over its compatibility with, and its impact on human rights. Yet, no comprehensive up to date analysis of its conformity with applicable international human rights standards is available. The guardian of the Covenant the ICCPRs Human Rights Committee (the Committee) examined Indias last periodic report in 1997.31 It expressed a number of concerns but abstained from pronouncing itself on the overall compatibility of the Act with the ICCPR as the Acts provisions were at that time subject to a challenge before the Supreme Court of India.32 However, in its judgement of 1997, the Supreme Court did not address the Acts compatibility with international human rights law33, ignoring a specific request of the Committee.34 Since then, India has not submitted any further periodic reports, thereby effectively depriving the Committee of the opportunity to reconsider the matter.35
30 Constitution of the Republic of India. Promulgated by the Constituent Assembly on 26 November 1949. 31 Concluding observations of the Human Rights Committee: India, UN Doc. CCPR/C/79/ Add. 81 (8 April 1997). 32 Ibid., at para. 18 33 Naga Peoples Movement of Human Rights et al. v. Union of India, 1998 AIR 431. 34 Supra note 30, at para. 18 35 However other treaty bodies have urged India to repeal the Act. See Committee on the Elimination of Racial Discrimination, Concluding Observations on Indias Fifteenth to Nineteenth Periodic Reports, UN Doc. CERD/C/IND/CO/19 (5 May 2007), at para. 12, Committee on Economic, Social and Cultural Rights, Concluding Observations on Indias Second to Fifth Periodic Reports, UN Doc. E/C.12/IND/CO/5 (16 May 2008), at para. 50, and Committee on the Elimination of Discrimination against Women, Concluding Comments on the Combined Second and Third Periodic Reports of India, UN Doc. CEDAW/C/ IND/CO/3 (2 February 2007), at para. 9.
India
93
Meanwhile, in November 2004, following unprecedented public protest in Manipur, the Government of India set up a special committee chaired by a retired Justice of the Supreme Court with the mandate to review the Act. The Committee filed its report in 2005. Although it has never been officially published, this report was leaked informally, and its text is now in the public domain. 36 Having carefully considered the various views, opinions and suggestions put forward by the representatives of organisations and individuals who appeared before it as well as the representations made by the concerned governmental departments, including the security agencies, the Committee was of the firm and unanimous view that the Act should be repealed.37 The Committee emphasised that it found it impossible to recommend that the Act remain in force, with or without amendments. It did not, however, examine whether and to what degree the Act is compatible with Indias obligations under international human rights law. The recommendations contained in the Committees report were never carried out or even publicly commented upon by the Indian Government. The AFSPA is, both on its face and in its practical application, incompatible with Indias obligations under international human rights law, in particular, the ICCPR. For India to give effect to the rights recognised in the ICCPR, would require a repeal of the Act, which has been discredited as a symbol of arbitrary law-enforcement, and has significantly contributed to the perpetuation of a state of exceptionalism that fosters human rights violations. The Act grants extraordinary powers to the military, including the powers to detain persons, use lethal force, and enter and search premises without warrant. These powers are formulated very broadly and framed in vague language. For example, the Act allows the military officers involved to use such force as may be necessary38 to effect arrests and to enter and search any premises. Despite the inherent risk of abuse in such broad powers, the Act contains no effective safeguards to protect rights. The Act grants the following powers39 to any military officer, including any commissioned officer, warrant officer, non-commissioned officer and any other person of equivalent rank in the military forces, air forces operating as land forces, and other operating armed forces of the Union:
36 37 38 39 See: http://notorture.ahrchk.net/profile/india/ArmedForcesAct1958.pdf. Ibid., at 74. Section 4 (c) and (d) of the Act. Section 4 of the Act.
94
Use of lethal force:40 If a military officer is of the opinion that it is necessary to do so for the maintenance of public order, he or she can, after giving warning, fire upon or otherwise use force, including lethal force, against any person who is acting in contravention of any law or order. This applies in particular if five or more persons assemble together or if the targeted person carries weapons or any other objects that can be used as weapons. Arrest:41 A military officer can arrest, without warrant, any person who committed a cognisable offence42 or against whom a reasonable suspicion exists that he or she has committed such an offence or is about to commit it. When effecting arrest, the military officer can use such force as may be necessary. Any person who is arrested pursuant to the AFSPA shall be handed over by the military officer to the officer-in-charge of the nearest police station as soon as possible. Enter and Search:43 A military officer can enter and search, without warrant, any premises in order to carry out an arrest, or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen or any arms or explosives. When entering and searching, the military officer can use such force as may be necessary. Immunity: 44 The risk of abuse inherent in these provisions is further heightened by the allembracing immunity covering all military officers involved. In particular, the Act provides: No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.
40 Section 4 (a) of the Act. 41 Section 4 (c) of the Act. 42 Cognisable offences are those in which police is empowered to register a first information report, i.e. most serious offences. 43 Section 4 (d) of the Act. 44 Section 6 of the Act.
India
95
The provisions of the Act have been, and reportedly continue to be routinely applied in practice. The overall practical effect of the Act has been the de facto militarisation of Manipur and other northeastern States of India and the state of Jammu and Kashmir. Even the proponents of the Act have acknowledged that the general administration of at least two states, Manipur and Jammu and Kashmir are wholly dependent on the security forces.45 Action taken pursuant to the Act reportedly led to 260 killings in 2009 alone.46 The military has also widely used its powers to detain persons. As held in a number of judgments, those arrested pursuant to the Act remained in military custody without being brought before a judge for prolonged periods of time, such as five days47 or even two weeks.48 In several cases, courts found that persons who had been arrested by the military under the Act disappeared subsequently,49 which suggests that they have become victims of enforced disappearances.50 The application of the Act has over the years led to numerous violations. The following examples are the most illustrative ones, which were widely covered by the media and triggered investigations, which, however, were not capable of leading to the establishment of the truth of what had happened. The widely reported events that took place on 5 March 1995 in Kohima, Nagaland, still stand out as one of the most glaring examples.51 The military, while driving along the streets of the town, mistook the sound of a burst tyre from their own
45 A. Kamboj, Manipur and Armed Forces (Special Powers) Act 1958, in 28 Strategic Analysis (2004), at 618. 46 Interview with Mr K.S. Subramanian, a retired Indian Police Service officer, in The Times of India (21 December 2009), http://articles.timesofindia.indiatimes.com/2009-12-21/interviews/28096458_1_afspa-battalions-manipur-rifles. 47 CLAHRO v. PL Kukrety, (1988) 2 GLR 137. 48 Bacha Bora v. State of Assam, (1991) 2 GLR 119. 49 Nungshitombi Devi v. Rishang Keishang, CM Manipur, (1982) 1 GLR 756, and Luithukla v. Rishang Keishing, (1988) 2 GLR 159. 50 An enforced disappearance is the arrest, detention, abduction or any form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law (International Convention for the Protection of All Persons from Enforced Disappearance, Article 2) 51 South Asia Human Rights Documentation Centre, Armed Forces Special Powers Act: A Study in National Security tyranny, undated, http://www.hrdc.net/sahrdc/resources/armed_ forces.htm; Rakesh Shukla, Why Temperance Will Not Work With AFSPA, in ManipurOnline (6 November 2010), http://manipuronline.com/edop/opinions-commentary/whytemperance-will-not-work-with-afspa/2010/11/06.
96
convoy for a bomb explosion and opened fire indiscriminately. Individuals who were considered to be terrorists accomplices were dragged from their houses and arbitrarily killed. As a result, seven civilians lost their lives. In addition, twenty-two passers-by, including seven minors, were injured. A commission of inquiry set up by the Government of Nagaland found that there had been no reasonable ground for the use of any force in the circumstances. 52 Another well-publicised case is the arrest and death of Ms Thangjam Manorama Devi. On 11 July 2004 the 32-year-old was arrested under the Act at her house in Manipur by the Assam Rifles (part of the Indian armed forces). Three hours later her badly mutilated and bullet-ridden body was found by the roadside nearby.53 No investigation followed, and the Indian Army Vice Chief of Staff explained that what happened to Manorama had been unfortunate.54 Her death, as well as the authorities failure to investigate it, led to large-scale protests throughout Manipur prompting the Prime Minister of India to visit the State. The Government of Manipur established a commission of inquiry headed by Justice C. Upendra, a former sessions judge, but the Assam Rifles challenged that decision before the courts claiming that the state government had no competence to investigate their actions. The ensuing prolonged litigation came to an end only in 2010 when the challenge was rejected. 55 However, at no point during this period and thereafter have the authorities taken any measures to establish the circumstances of Manoramas abduction, possible torture and death and to identify those responsible. The enquiry report itself has not been made available to the public. Manoramas family approached the High Court to obtain a copy of the report. The Court agreed. However, the Union government at the time filed a special leave petition against the order and the case is still pending before the court. Another reported case of arbitrary killing by the military acting under the
52 South Asia Human Rights Documentation Centre, Armed Forces Special Powers Act: A Study in National Security tyranny, undated, http://www.hrdc.net/sahrdc/resources/ armed_forces.htm; Rakesh Shukla, Why Temperance Will Not Work With AFSPA, in ManipurOnline (6 November 2010), http://manipuronline.com/edop/opinionscommentary/why-temperance-will-not-work-with-afspa/2010/11/06. 53 G. Pandey, Woman at the Centre of the Manipur Storm, in BBC World (27 August 2004), http://news.bbc.co.uk/1/hi/world/south_asia/3604986.stm. 54 Manorama Devi had links with terrorists: Army, in Times of India (11 December 2004), http://articles.timesofindia.indiatimes.com/2004-12-11/india/27149487_1_media-hypeterrorists-manorama-devi. 55 Manorama Devi had links with terrorists: Army, in Times of India (11 December 2004), http://articles.timesofindia.indiatimes.com/2004-12-11/india/27149487_1_media-hypeterrorists-manorama-devi.
India
97
Act concerned Mr. Rengtuiwan, a 75 year old retired school teacher, and his disabled wife who were killed and injured, respectively, on 16 November 2004 when they were fired at by the Assam Rifles in Bungte Chiru village, Manipur. Twenty or thirty Assam Rifles were searching for rebels in the village and reportedly considered the elderly couple as being part of them. The post mortem report revealed the following: [T]he bullet which killed Mr Rengtuiwan went in through his chest and exited through his bottom. The pathway of the shot implies firing at a close range and [that] the person must have been in a kneel down position as the shot must have been fired from above his head at a share angle or more than 60 degrees.56 In other words, the evidence points to a cold-blooded execution rather than firing at a suspicious target. The more recent examples of the activities of the military in Manipur include indiscriminate use of firearms during the night of 2-3 April 201157, which led to the killing of Ms Waikhom Mani in the village of Nongangkhong, and assault against the Justice of the Guwahati High Court in Imphal on 20 April 2011.58 Private and confidential admissions of military officers reportedly characterise civilian casualties as errors in judgment in the application of the Act.59 They attest to an apparent practice in which priority is given to the use of lethal force over the arrest of suspects and subsequent prosecution, where warranted. The frequent violations and culture of impunity led to protests by civil society activists in Manipur who have been campaigning and litigating for the repeal of the Act since the 1980s.60 An exceptional mode of protest against the Act is that of Ms. Irom Chanu Sharmila, also known as the Iron Lady of Manipur, a civil rights activist and writer. She has been on hunger strike since 2000 demanding the repeal of the Act, which she blames for violence in Manipur and other localities in the northeastern part of India. Sharmila has been repeatedly
56 Amnesty International, Briefing on the Armed Forces (Special Powers) Act (8 May 2005), http://www.amnesty.org/en/library/asset/ASA20/025/2005/en/41fc59d2-d4e1-11dd-8a23d58a49c0d652/asa200252005en.html 57 Reported in Imphal Free Press (4 April 2011), at 1. 58 Reported in The Sangai Express (22 April 2011), at 1 and 4. 59 Human Rights Watch, These Fellows Must Be Eliminated: Relentless Violence and Impunity in Manipur (2008), at 44-45. 60 The first Writ Application challenging the constitutional vires of the Act was filed in the Supreme Court on 10 October 1980.
98
arrested on charges of attempt to commit suicide 61 and forcibly fed by her prison wardens. Her protest is probably the worlds longest hunger strike.62 On 27 November 1997 the Supreme Court of India rendered its judgment in Naga Peoples Movement for Human Rights v. Union of India. In this case the validity of the Act was challenged by means of a writ petition before the Supreme Court of India. The petitioner alleged that the Act had violated constitutional provisions that govern the procedure for issuing proclamations of emergency, and upset the balance between the military and civilian and the Union and State authorities. The Court rejected those contentions. It found that the Parliament had been competent to enact the Act and ruled that its various sections were compatible with the pertinent provisions of the Indian Constitution. In particular, the Court held that the application of the Act should not be equated with the proclamation of a state of emergency, which led to it finding that the constitutional provisions governing such proclamations had not been breached. The Court further emphasised that the military forces had been deployed in the disturbed areas to assist the civilian authorities. As these authorities continued to function even after the militarys deployment, the Court held that the constitutional balance between the competencies of the military and the civilian authorities had not been upset. Equally, the Court found no violation of the constitutional balance of competencies of the Union and State authorities. What the Court did not address was the compatibility of the Act with Indias obligations under the ICCPR or other international obligations. This is notwithstanding the general rule of Indian constitutional law, confirmed by the Supreme Court in another case decided in 1997,63 that the courts must have regard to international conventions and norms when interpreting domestic statutes.
61 Under section 309 of the Indian Penal Code which makes an attempt to commit suicide a punishable offense. However the Supreme Court of India in a judgment delivered on 7 March 2011 stated: the time has come when it should be deleted by Parliament as it has become anachronistic. (Aruna Ramachandra Shanbaug vs. Union of India et al., Criminal Writ Petition 115/2009). 62 Interview conducted on 3 March 2011 in London with Babloo Loitongbam, Executive Director of Human Rights Alert. The continuing detention of Sharmila poses a serious question of its compatibility with her internationally recognised human rights, such as the right to freedom of expression. 63 Vishaka et al. v. State of Rajasthan et al., 1997 AIR 3011. It is interesting to note that this judgment, known as a watershed event in Indian jurisprudence was delivered in August, whereas the Naga Peoples Movement case was decided by the same court in November, both in 1997.
India
99
The position of the Supreme Court of India carries immense persuasive weight while interpreting the constitutional vires of the Act. One could argue that the main points of discussion concerning the constitutionality of the Act in Naga Peoples Movement for Human Rights revolved around the procedures followed during the enactment and the implication of the Act in the centrestate relations. However, the Supreme Court of India has been liberal in reading in international human rights jurisprudence to be applied at the domestic level. For instance in 199664 the Supreme Court extensively drew inspiration from the General Comment adopted by the Human Rights Committee to decide upon the question of reservations, a process the Court refrained to engage in while deciding the case on the AFSPA. The Court has held on various occasions that although ratified international treaties do not automatically become part of domestic law they are nevertheless relevant to constitutional interpretation, with reference to article 51 (c) of the Constitution which directs the state to endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. This provision does not confer a justiciable right. It, however, encourages the government to strive to achieve in good faith the objectives of the ratified international treaty through executive or legislative actions. It is this provision that the Indian courts have liberally interpreted to read in within the domestic framework the countrys obligation under international human rights law. A fitting case to the point would be the Kesavananda Bharati case.65 The then Chief Justice of India, Justice Sikri, while deciding the case said: [i]t seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a intractable law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. The principle was developed further and applied without hesitation in the Vishaka case where the Court said: [i]n the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee.
64 T.M.A. Pai Foundation et al. v. State Of Karnataka et al., 1996 AIR 2652. 65 Kesavananda Bharathi vs. State of Kerala, (1973) Supp. SCR 1.
100
It follows that under Indian domestic law, wherever possible, a statutory provision must be interpreted consistently with Indias international obligations, whether under customary international law or an international treaty. If the terms of the legislation are not clear and are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that the Parliament does not intend to act in breach of international law, including therein, a specific treaty obligation; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred.66 Considering the question of domestic applicability of the principles of customary international law the Court did not have any hesitation in holding that: once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the [c]ourts of [l]aw. 67 Despite all these affirmative and progressive steps in its pertinent jurisprudence, when it came to interpreting the Act, the Court fell short of its own established practice and failed to interpret the Act in compliance with Indias international human rights obligations and the treaty obligation under the ICCPR in particular. Yet, there is hope since the Court did not merely say that the AFSPA is constitutional and leave it at that. By way of caution, probably reading in the arbitrary nature of the powers conferred by the Act to the persons working under the Act, the Court set out some precautions for the implementation of the Act as follows: While exercising the powers conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of Dos and Donts issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950. The instructions contained in the list of Dos and
66 See D. D. Basu, Introduction to the Constitution of India, 20th Edition (New Delhi, 2002). 67 Vellore Citizens Welfare Forum v. Union of India et al., 1996 AIR 2715.
India
101
Donts shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated July 4, 1991 in Civil Appeal No. 2551 of 1991. A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under Section 6 of the Central Act. There has been no effective review of these directions so far. For instance, the Central Bureau of Investigation of India only lists 118 applications that sought prior sanction for prosecution, of which only 5 are from Manipur. This is contrary to the statistics available as to the number of civil cases in which Indian courts have awarded monetary compensation to victims. If the number of writ petitions - from Manipur itself there have been more than two dozen cases - is an indicator of the extent of violations of the Supreme Courts directives, it is time for an effective review of the AFSP Act. It is also important to note that a remedy under the writ jurisdiction is not punitive in nature. A prosecution by means of the procedure established by law has never happened.68 There has been no other single case prosecuted so far. The Union Ministry of Home Affairs set up a Committee69 chaired by a retired justice of the Supreme Court B. P. Jeevan Reddy with the remit to review the provisions of the Act and report to the Government on whether amendment or replacement of the Act would be advisable. Having conducted extensive studies and consultations, the Committee reported in 2005 that it had formed the firm view that the Act should be repealed as too sketchy, too bald and quite inadequate in several particulars. It went on to emphasise that recommending
68 A case that could be considered to have come close enough is Sebastain M. Hongray v. Union of India et al., 1984 AIR 571, where a writ of habeas corpus was filed before the Supreme Court of India concerning the disappearance of two persons Mr. C. Daniel and C. Paul since their arrest from Huining village in Manipur on 10 March 1982. The Court by its order dated 24 November 1983 allowed the writ petition thereby directing the respondents 1, 2 and 4 in the case, to produce the corpus of the two missing persons on 12 December 1983 before the Court. The outcome of the case since then is not known. 69 The Committee had as its members (1) Dr. S. B. Nakade an academic and jurist; (2) Mr. P. Shrivastav (IAS) Former Special Secretary, Ministry of Home Affairs; (3) Lt. Gen. V. R. Raghavan; and (4) Mr. Sanjoy Hazarika, Journalist.
102
the continuation of [this] Act, with or without amendments, [did] not arise.70 The Committee felt it necessary to further specify the following: We must also mention the impression gathered by it during the course of its work that the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. These recommendations were never carried out and the report itself was not officially made public. In addition to the Jeevan Reddy Committee, the Second Administrative Reforms Commission in its 5th Report of 2007 has also recommended the repeal of the AFSPA.71 The Commission stated after considering the views of various stakeholders came to the conclusion that AFSP [Act] should be repealed. In the theatre of Jammu and Kashmir, the Chief Minister of the state has been running between the state and national capitals since the state legislature passed a resolution to authorise the partial withdrawal of this law from the state. The army since then has been claiming that its operative framework would be compromised should the law be withdrawn. In this context, the Chief Minister of the state is right in opining that the armys role is primarily to protect the countrys border, and not to maintain law and order, at the expense of superseding the legitimate writ of the government, and thus in essence of the people. The army and the Government of India should not have pushed the matter to such ridicule. For the army to instruct the government, India is not Pakistan. The architecture of impunity in AFSPA negates the notion that this law is legitimate. Armys demand to continue with AFSPA against the decision of the state legislature is against its constitutional mandate, to be under civilian fiat, and opposes the supremacy of the people. That some officers in the army are applying unwarranted and inappropriate pressure upon the government not to withdraw the law from operation is in essence insult of legislative wisdom. It reiterates the universal truth that an army, if allowed to operate with impunity, would not prefer to return to be under the control of civilian authority.
70 Government of India, Ministry of Home Affairs, Report of the Committee to review the Armed Forces (Special Powers) Act, 1958 (2005). 71 Second Administrative Reforms Commission Report, Report 5 - Public Order (June 2007), at 239.
India
103
The only force, to which the countrys armed forces must surrender, unconditionally, is to its people. The Indian Army does not have a mandate beyond the constitutional premise that Indians decided to practice since 1950. To demand otherwise is nothing less than pushing a democratically elected civilian government to revolt against its own security forces. There is no merit in the armys contention that the soldiers follow their code of conduct when operating in areas where the AFSPA is enforced. The AHRC has documented more than 300 cases so far where the army has openly violated every expected norm of operative justice and law, where AFSPA is in force. The conversation of the dead from hundreds of unmarked graves identified by the State Human Rights Commission of Jammu and Kashmir is gruesome proof to the fact that the Indian Army has done their job as it suited them. That thus far there has been not a single prosecution or independent and transparent investigation concerning the unmarked graves in the state reiterates that the impunity is absolute. The argument that AFSPA helped control secessionist or otherwise destructive activities is equally false. The brutalities committed by the armed forces under the protection of AFSPA against the people have deeply alienated the people from rest of the country. It has fuelled intolerance, breeds mistrust, generates and maintains fear. AFSPA is the iniquitous fountain of moral reasoning that supports militant and religiously fundamentalist organisations and helps them seek and receive support from at least three different neighbouring countries. The commendable move by the Jammu and Kashmir state government is to address this. It has to be supported, that similar actions could be initiated in other places, for instance in Manipur. The armys dependence upon this draconian law can be interpreted, that the army is incapable of operating in a transparent and accountable environment, and is against the interest of the nation. It contradicts the highest morale the Indian Army is sworn to maintain. That the secessionist and militant forces require the cover of impunity to operate, the brute violence such entities commit and the nature of internal and external support they receive must not be the defining rationale of the operative framework of a disciplined force. What happens in India will have an impact upon the region. That the Indian Army dictating the government about security policies will further encourage armed forces in countries like Sri Lanka where the present president is using his military might to subdue democratic debates in that country. It could discourage discussions about the accountability of the Nepal Army and
104
that of the former armed Maoist cadres for the human rights abuses they are accountable for. It will foster the operative impunity enjoyed by state forces like the Rapid Action Battalion in Bangladesh and allow them remain unaccountable for human rights abuses. Whenever these issues get discussed in regional or international fora, India would have no moral voice to support calls for accountability should the Indian Army enjoy despicable impunity within India. Indian Army is not above the parliamentary writ. That it has started exhibiting some of the despicable tendencies of the Pakistan Armed Forces that have repeatedly overridden democratic writs allowing democracy to make only cameo appearances in that country has to be reprimanded at its onset. That the countrys army claiming that it requires an aura of impunity to operate could be interpreted as a warning that the army might be becoming incompatible to function within a democratic space. The AFSPAs central provisions, including the blanket authorisations to use lethal force, arrest and enter and search without any additional warrant or pre-condition, coupled with the all-embracing immunity provision that indiscriminately covers all military officers effectively providing them with carte blanche to act as they see fit, are incompatible with Indias international obligations under the ICCPR, namely its articles 2 (3), 6, 7, 9, 17, and 21. This finding is borne out by concerns over the Acts application in Manipur and other States of north-eastern India, which has been characterised by a number of credible allegations of extrajudicial killings, torture, ill-treatment, enforced disappearances and arbitrary detention in a climate of complete impunity. There are no reported cases of any military officers involved having been held accountable. India has not availed itself of the right to derogate from the ICCPR pursuant to article 4 with the effect that the ICCPR is fully applicable in Manipur. However, the AFSPA is essentially an emergency legislation and therefore, by definition, its temporal scope of application should be limited and clearly defined. The prolonged application of emergency legislation sustains, reinforces or even creates the exceptional state that may justify emergencies, and has therefore become the cause rather than the effect of the prevailing situation. Unsurprisingly, the Act, that is the most visible legal manifestation of this undeclared state of emergency, has been repeatedly condemned by various UN treaty bodies.
India
105
The extraordinary legislative measures which were originally conceived of as being of an exceptional and temporary nature but were subsequently left to apply for an unlimited period of time not only undermine internationally recognised human rights but also erode the mutual confidence between the authorities and society and may contribute to the delegitimation of the state as a whole.72 caste-based discrimination: At 5 pm Indian standard time on 14 October 2011, the Chief Minister of Uttar Pradesh, Ms Mayawati, inaugurated a park in Noida, that Mayawati claims is a Dalit memorial to symbolise Dalit liberation and power in India. Noida is close to New Delhi, the national capital. It is reported that the park, constructed at the expense of 685 crore Indian Rupees of taxpayers money, has more than two dozen statues of Mayawati and her political mentor, Mr Kanshi Ram. The park also has statues of real Dalit icons like Dr. B. R. Ambedkar, in an attempt to justify the expenses or probably to make a statement which Mayawati mistakenly believes, that Mayawati and Ambedkar are of equal standing. However, in India, Mayawati is THE political face of Dalit liberation. Hundreds of Dalits, including Dalit children starve to death each year in Uttar Pradesh, where Mayawati is the Chief Minister. It is estimated that every third Dalit child in the state is malnourished. Yet, spending such money on concrete, marble and granite in constructing what is called a Dalit park, is nothing but a shameful example of criminal wastage of public funds, for which Mayawati should be prosecuted. It is nothing more than a Bokassan style shameless selfindulgence. While the Dalits for whom Mayawati allegedly work for continue to live in abject poverty, their votes have made her today a millionaire, from her humble beginnings as the daughter of a postal employee. With no other source of reported income other than her salary and allowances as an elected representative, none cares to ask how did Mayawati acquire such wealth. It is reported that Mayawati has instructed her police officers to refuse registering cases, as much as possible, particularly concerning atrocities committed against the Dalits, so that on records, the administration can claim that during Mayawatis tenure as the Chief Minister of the state, the crime rate
72 Djemaa al Seyed Suleymane Ramadhan v. Egypt, Working Group on Arbitrary Detention, Opinion No. 18/2008 of 8 September 2008, UN Doc. A/HRC/13/30/Add.1 (2 March 2010), at para. 21
106
in the state has drastically reduced. Yet, for the ceremony held on 14 October, the state administration arranged for 2,500 policemen. This includes nine Provincial Armed Constabulary companies, 175 traffic policemen, 50 women cops, 1050 police constables, 184 Sub Inspectors, 25 Station House Officers, 15 Superintendents of Police and seven Additional Superintendents of Police. This is in addition to the anti-sabotage units, bomb disposal squads, National Security Guard teams, local intelligence units, fire service units, emergency medical assistance units and the members of the Chief Ministers security. The mobilisation of these government agencies, just for the day, also involves enormous additional expenses to the public exchequer. None of this indeed will help a bit to improve the condition of the Dalits in Uttar Pradesh or in India. All this apart, the 84-acre project is also allegedly an environmental disaster. However, none of this has deterred Mayawati. Had the state government of Uttar Pradesh intended to improve the conditions of the poor, in particular that of the socially boycotted Dalits, there are steps the government could have taken. This includes among others: cracking down on corruption in the public food distribution system, which is largely under the control of privileged castes like the Brahmins and Yadavs (many Mr Mulayam Singh Yadav as the Chief Minister); ensuring that the complaints regarding the implementation of the Mahatma Gandhi Rural Employment Guarantee Schemes are immediately dealt with; ensuring proper functioning of government schools that would allow the Dalit children to seek and obtain education; guaranteeing that there is no discrimination of the Dalit children and/or their mothers in rural health guaranty programmes; ensuring that the practice of bonded labour in the state that exploits the Dalits is put to an end; ending the evil practice of manual scavenging; and above all, complaints of discriminatory practices against the Dalits are investigated and prosecuted. The state government has done nothing in achieving any of these. Yet, the Chief Minister who heads the government believes, and many Dalit groups concur, that the park Noida would contribute profoundly towards ending caste based discrimination in the country. To bring about social change, what is required are the tools for social engineering. This includes an administration with the resolve to end the unacceptable status qou of Dalit discrimination and a Dalit leadership who are willing to challenge corrupt individuals like Mayawati on the ground. It also requires a rule of law framework, which includes a functioning policing system and other institutions like the courts which are equipped to deal with crimes like caste based discrimination promptly and effectively. None of this is debated in one of the most lawless states of the country, Uttar Pradesh.
India
107
Yet, what it has today is a Chief Minister who wastes public money in constructing memorials and parks filled with her own statues. This is not any investment for the future, but sealing the destiny of some of the most underprivileged in the country. In that, the inauguration of the Dalit park is the state-sponsored celebration of the monstrosity of it. The caste system is a powerful tool for social segregation. It runs deep in the minds of Indians and has implications in everyday life. It weakens the human urge to excel and liberate since there is little chance of rising above ones status at birth. Despite caste being a violation of international human rights standards and domestic law prohibiting caste-based discrimination it continues to exercise a debilitating influence on the lives of millions in India daily. The Constitution of India provides certain safeguards against caste discrimination. However, the constitutional remedy is often inaccessible to Dalits and lower castes, therefore literally taking away the equality quotient of human rights in terms of implementation. Considering Indias vastness and its limited resources and poverty, the possibility of a victim, who is otherwise deprived of basic standards of living, approaching a constitutional court is most unlikely. Compounded by the burden of expenses in litigation and the immense time it takes for reaching a final verdict, such legal attempts are rarely taken by victims. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 criminalises atrocities committed against members of the Dalit community and other lower castes. The rules formulated in accordance with the legislation also provide for protection to the lower castes and are more preventive in nature. However, the law and rules are limited. They do not address the root cause: the caste system itself. In cases where compensation is awarded, the amount of damages is far below international standards. Section 153A of the Indian Penal Code, which provides for punishment for instigating acts of enmity between groups based on religion, race, place of birth, residence and language all but unenforceable since the burden of proof in criminal trials is so high. The chances of a probable conviction are low. The national and state-level human rights commissions do not have any authority to take affirmative action when receiving a complaint, be it of caste-based discrimination or otherwise. The powers of these institutions are not legally enforceable. Sections 12 and 13 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act limit the authority of the rights commissions to receipt of complaints, inquiries and inspection. They can then choose to either refer the matter to the appropriate authority for further action or provide advice to the government. This limitation makes the institutions incapable
108
of protecting human rights. Their orders are limited to recommending the government collect a fine from a perpetrator and disburse an amount to the victim. If the perpetrator is not an employee of the government, the possibility that the order will be implemented is low. Even when the perpetrator is a government employee the order is often not executed. This makes a mockery of the system and discourages victims from approaching these institutions. gerrymandering the right to food to suit a development paradigm Mr. Montek Singh Ahluwalia, the Deputy Chairman of the Planning Commission has been in the news this year for understating poverty in India. The controversial affidavit on Below Poverty Line (BPL) by the Planning Commission, filed in the Supreme Court in September this year, held that people earning more than Rs 25 in rural areas and Rs 32 in urban areas do not come under the category of the poor. Fierce criticism followed, from the opposition, activists and sections of the government. Reputed sources accused the Commission, as the Commission is no more an institution, but a syndrome and must be treated and cured.73 This led the Commission to issue an explanation on 3 October 2011 in a press conference held jointly by Mr Ahluwalia and Rural Development Minister Mr. Jairam Ramesh. The minister clarified that the poverty estimates of the Commission will not be used to decide which households are eligible for government schemes intended to help the poor - subsidised food grains, for example. The reality of poverty and child malnutrition underlines the anger against the Commissions report. The country accounts for 57 million of the worlds 146 million malnourished children. Around a third of this children call India home. The country has the same rate of malnutrition as Ethiopia (47 per cent) and Nepal and Bangladesh (48 per cent). This is in stark contrast with the figures for China (eight per cent), Thailand (18 per cent) and even Afghanistan (39 per cent), according to a global report released by the United Nations Childrens Fund.74 At the current rate of progress, the Millennium Development Goals
73 Errors of commission, Indian Express, Pratap Bhanu Mehta, 6 October 2011 74 UNICEF Report on India 2009.
India
109
to halve child hunger by 2015 will not be reached till 2025.75 - 2011 annual report of Millennium Development Goals shows that India fails to contributes eradication of child malnutrition in Asia and there has been no actual improvement in poverty and child malnutrition. A large number of deaths of children aged less than five years could be averted in India if simple health interventions along with correct feeding practices were universally applied. Unfortunately one out of every three adult women is underweight and therefore at risk of giving birth to low-weight babies. Severe malnutrition is more frequent among girls (19.1 per cent) than boys (16.9 per cent).76 While most infants in India are initially breastfed, only 37 per cent children are exclusively breastfed for four months.77 The statistical data portrays an additional picture of gender-based discrimination and the higher rate of vulnerability of the girl child as well. The most important question then is why is it so and who is responsible? Probably the question carries much weight when the nature has blessed India with 20 agro ecological regions and 60 sub-regions to produce the widest variety of food grains, fruits and vegetables in the world. Besides, the country has the largest diversities of livestock in the world with 26 breeds of cattle, 40 of sheep, 20 of goats and 18 of poultry. All the worlds eight buffalo breeds are found in India. India produces 11 per cent of the worlds vegetables and 15 per cent of fruits. Nearly 10.78 per cent of flora of the world is found in India.78 With so much of food back up India can easily fight malnutrition and hunger. The point is whether the country has the political will to do so. In spite of Supreme Courts ruling disallowing conversion of fertile agriculture land into non-agriculture purposes, thousands of hectares of productive land with forward and backward linkage have been converted into concrete jungles, worse, for industrial purposes like ore excavation and processing. State governments earn 40 per cent of their revenue from the stamp duty used for the sale of land. Interestingly the recent farmers agitation in Uttar Pradesh was not to protect the agriculture land but to give higher compensation to farmers. This will lure farmers to sell their agriculture land.
75 Progress for Children: A Report Card on Nutrition, 2006. There has been hardly any progress since then, and there are no credible, non-governmental statistics to prove improvement. 76 Ibid. note 73. 77 Id. 78 Kerala Agricultural University, India Profile, republished 2011.
110
In the last 10 years the cost of farmland near urban centres has increased 30 to 40 times. At the same time the state governments and the Union government vigorously pushes a development policy that premises industrial development at the top of the pyramid that self-sustenance of farmers, members of the forest tribes and the rural poor through their established and naturally balanced modes of agricultural production and survival. In addition industrial development provides the opportunity for everyone supporting the government to exploit the illegal proceeds offered by industrialists to allow them to exploit natural resources at the expense of the communities forcibly evicted from their lands for industrial purposes. The largest Foreign Direct Investment programme of India, the Pohang Steel Company (POSCO) project is an example. Despite reports pointing to a series of human rights violations as well as adverse environmental impact by all government-sponsored committees that have studied the project, the Ministry of Environment and Forests cleared the project in January 2011, subject to 28 conditions. The state governments unwarranted and illegal use of brute force by the state police against those protesting against the implementation of the project, the latest of which that has been reported to us happened in June 2011. On this occasion also the police attacked the villages while they were peacefully protesting against the project. The National Commission for the Protection of Child Rights (NCPCR), made adverse observations about the manner in which the state police behaved to the villagers, including the occupying of schools, that prompted the Commission to direct your government the immediate withdrawal of police force from the schools. The Memorandum of Understanding (MoU) between the state government and POSCO expired in June 2011 and is yet to be renewed. While the MoU is being examined by the Law Department, the government has announced that it would hand over 2000 acres of cleared land to POSCO when the MoU is renewed. In this backdrop, the fact that the government going ahead with any project related land work without a renewed MoU would be legally untenable and thus challengeable in a court of law. Further, the people of the state, in particular those who are directly affected by the implementation of the project, and not just the states bureaucrats, the state cabinet and the POSCO, has a right to know the terms of the MoU, should it be renewed. The 2000 acres being handed over in the name of public interest are claimed as government land, acquired by the Industrial Development Corporation of India (IDCO). To this end, 60,000 trees on this land have already been cut, and an estimated ten times more trees will be cut in total. Deforestation may
India
111
only benefit the POSCO and indirectly the government from the revenue generated from the project. The environmental impact caused by the massive deforestation is no public interest, nor is it public responsibility to bear the long-term consequences of deforestation. The bureaucratic notion and reasoning that there is public interest for the land to be cleared for the POSCO project has no factual basis. The decision is legally challengeable and would not even stand the basic test of reasonableness and proportionality in a court of law. The government has in fact been misusing the term public. Forestland claimed as government land is actually public land, which forest dwellers, farmers and adivasis have been depending on for generations. Just like the air, sea, or river, those who depend on the forest for their survival, have so far shared it. They have their own rules for its use, protection and conservation, set over generations. The government is aware of the reports made by the Committees who have studied the project. Yet, it is disheartening that the government choose to ignore the claims under the Forest (Right) Act 2006 of the forest dwellers upon the land now proposed to be used for the project, on the guise that there were no such claims. This issue has not been properly reviewed so far. If the government insists that the project is for public interest, it should give priority to the real public - people living and depending upon the forest. The conversion of public land to government land, for private interest supported by the government, without considering the potential of the brunt it will definitely cause upon the livelihood of the people who depends on the land, and its impact upon the environment appears to be ignored by the government. For instance, the Casuarina tree, known as a cyclone protector in the area, is being cut down. Regardless of their opinions about the POSCO project, all the villagers are concerned about their protection from natural disasters in the future. This act alone depicts how contrasting is the alleged cause public interest and the mode of implementation of the project. The AHRC has reported the governments failure to protect villagers from criminals hired by construction company, who attacked the villagers while they were peacefully protesting in September 2011 against the road construction related to the project. The government failed to investigate the matter or punish those responsible for committing crimes. Further, it is shocking to know that the company has already started taking law into their own hands, that too by employing criminals to silence opposition. The fact that there has been no action against this by the government reiterates the villagers and general suspicion that the government favours POSCO as against the people. The recent decision to resume construction and forest clearance for the POSCO project will lead to further human rights violence against the villagers.
112
At the moment the governments policies are flawed and favours, arbitrarily, the industrialists against agrarian or land reforms. The following case illustrates how law and policies are flouted in implementation and realties far different from theories concerning rural poverty elimination and Dalit protection in India. The failure in the enforcement of domestic laws and policies allow discrimination against the Dalits and the most marginalised. The resultant environment directly threatens their very right to decent existence and aggravates the food insecurity. This is the root cause why the Dalits and the poor remain the most vulnerable social group who face severe child malnutrition and maternal mortality rate in India, a contributing factor for India to have the highest Hunger Index in Asia. The situation is further aggravated when the police and the district administration neglects their duties and fails to take actions. On August 28, 2010, the upper caste priest of a local Hindu temple and one Mr. Karunakar Bhoi, who is also from the upper caste, denied three women from the Bauri community of Ranapada village from entering the temple. When Karunakar saw the three women trying to enter the temple, he abused them by referring to their caste and suggesting their low origin and said: who gives you this right to enter the temple? The women asked back: Why are you behaving like this, are we not human beings or Hindus? The priest and the other upper caste, who were at the temple, refused the women entry to the temple, and charged a penalty of Rs. 50,000 on the women. The women were forced to admit that they would pay the penalty, under threat. The following day, the women filed a complaint regarding the incident at the local police station. The complaint was registered as a case, with no. 160(36) against Karunakar Bhoi for offenses punishable under the Indian Penal Code, 1860 under Sections 294, 323, 341 and 806 of the Code. On September 8, non-Dalit villagers, mostly from the upper caste, from 54 neighboring villages held a meeting near the temple where the women were denied entry and went to the Ranapada village with the plan for attack the Dalits. They shouted at the Dalit villagers and threatened to kill them. Mr. Dwijaraj Pradhan allegedly threatened in the public that: Today we will beat up all the Dalits. All Dalits should come out of the houses, we will kill you otherwise. At that time, Mr. Gadadhar Bhoi, Mr. Golekha Bhoi, Mr. Kalu Bhoi, Mr. Nakula Bhoi, Mr. Iswar Das and Mr. Rajkishore Bhoi, six Dalits residing in the locality, were on their way home from the market approached the non-Dalit
India
113
crowd. Spotting them, the upper caste villagers surrounded them and assaulted all the six Dalits. Then the mob dragged Gadadhar Bhoi into a small cabin and locked him inside. At about midnight they tried to set the cabin on fire with Gadadhar Bhoi inside. The police arrived to rescue Gadadhar Bhoi. But the upper caste villagers surrounded the officers and reportedly assaulted them. The police however left the scene without arresting anyone. On the next day the Dalit villagers filed cases against 73 villagers who came to attack them. Till today, only four out of 73 accused were arrested despite most of the persons accused of the crime reside in the locality. The fact that the upper caste villagers assaulted the police and that many of them, despite being named by the Dalits in the complaint, are not arrested by the police shows the power of the upper caste community in rural India. On September 15, non-Dalit villagers once again organised a meeting in Raibidhar market reportedly to met out further acts of caste-based vengeance against the Dalit villagers. A police force was sent to the market to disperse the criminal gathering. However the non-Dalit mob pelted stones at the police, injuring several police officers. The police had to call for additional support of two more platoons to disperse the violent mob. Meantime, on October 15, an independent fact finding team that conducted a field study on the issue found that not much actions were taken by the administration to prevent the ongoing and further brewing of caste-based and communal violence in the locality, resulting out of the innocent attempt of three Dalit women attempting to enter a temple. The fact finding team thus recommended the District Collector -the administrative head of the district - and other state agencies like the police to take immediate actions, first by conducting an inspection of the villages, paying compensation to the victims and immediate arrest of the rest of the other perpetrators and further to prosecute the perpetrators under proper offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995. Expressing concern of the sudden lack of employment and the repossession of the leased farmlands the fact-finding team also urged the district administration to provide immediate employment for the Dalit families under the rural employment guarantee scheme. To date, none of these recommendations have been earnestly complied with by the administration.
114
Immediately after the incident, non-Dalit villagers who leased the farmland for share cropping to the Dalit villagers took the lands back. The upper caste landlords blocked access roads to the Dalit hamlets as well as some lands. The Dalit are denied all forms of labour by the upper caste. Even shopkeepers have started refusing to sell articles like vegetables or food to the Dalits. This has wrecked havoc in the 83 Dalit families who are now socially ostracised because they depended upon employment and agriculture in the farmlands of the upper caste. Today, all the families face starvation, hunger and resultant malnutrition. Throughout the country, social ostracisation and collective punishment is a common form of punishment meted out against the Dalits in India by the upper caste whenever the upper caste alleges challenges to the caste structure by the Dalits. In all such incidents, the relative economic superiority of the upper caste places them at an uneven level of bargaining position as against the poor Dalits. The upper caste communities use this as an effective weapon to force the Dalit communities into submission. The failure of the state, and in particular of the district administration, in effectively challenging the upper caste works as a catalyst in such circumstances in favour of the upper caste superiority. In this case, despite several calls and complaints by the Dalit families, the state or district administration has not acted at all. On their part, the Dalit families on October 5, applied for employment under the right to work programme (MGNREG Scheme). The Assistant Block Development Office (ABDO) asked the families to submit a group application, which the families did. But the application was subsequently rejected. The Block Development Officer (BDO) also denied employment under the MGNREGS saying that there was no job for the Dalits. Even though there was a road construction work in January this year, the Dalits were denied employment once again. Since there was no work, the 83 families applied for unemployment allowance under the MGNREG Act that guarantees unemployment allowance if an applicant for job under the MGNREG Act is not employed within 15 days from the date of application for work. However, the BDO denied the unemployment allowance also to the Dalit families. In an attempt to prevent corruption the wages under the MGNREG is distributed through local banks. In a cruel twist of irony the local bank, the Union Bank of India, demanded the unemployed workers to pay Rs. 500 each as an initial deposit to open the bank account. This is against the government directive that directs banks to allow persons holding a job card under the MGNREG to open accounts with zero balance.
India
115
Finally when some work was made available, the work was only enough to employ 20 villagers. To ensure that everyone will be employed, the 83 families decided to divide the work among all the families, so that they could share the wages, Rs. 42,000 (USD 942) between them, for which the BDO agreed. Accordingly, 83 villagers worked for four days from January 3, 2011. Three months after completing the work, 80 villagers received payment. However, they were not paid the statutory minimum wage. It was increased from Rs. 100 to Rs. 125 per day since January 2011. An enquiry by the local human rights groups revealed that the members of the Panchayat (elected village council), have obtained signatures of the employees to be paid under the MGNREG, in blank muster roll instead the employee personally signing the register at the bank or in the presence of a bank employee, which is a violation of the MGNREG Act. It is suspected that the Panchayat members have played fraud upon the 80 employees since the Panchayat members have obtained the signatures from the employees in violation of the MGNREG Act. Beyond this four-day employment, there has been no other employment provided to the 83 families since then. Needless to say, all the 83 families are exposed to the food insecurity and hunger. The District Collector denies the fact that the Dalit families are facing serious discrimination and boycott by the upper caste from 54 villages. Only after several complaints and demands from the civil society groups, the officer assured that he would look into the matter. The Collector does not acknowledge the fact that he has a duty to implement and monitor the laws and policies that are related to the rights of all residents within his jurisdiction. While the above case illuminates the complicated web of corruption, prejudices, ineptitude and dysfunction of the entire system to the detriment of some of the poorest of poor, there are several other reasons that adds up to this rotten cart of problems. Some of the important issues are: i. ii. iii. iv. Discrimination and corruption in the implementation of rural health programmes; Underfunding for such programmes; The despicable forms of corruption practiced in the MNREGA programmes; Forced eviction for industrial development;
116
v. vi.
Landlordism and other forms of feudal practices like bonded labour; Natural calamities like heavy rain and floods and lack of rain.
While each one of the above issues requires informed and structured forms of intervention by the government, the AHRC is of the opinion that the primary responsibility of deaths caused by malnutrition and starvation should be placed upon the District Collectors of each district in the country. It is the District Collectors office that forms the lowest of the managerial and decision making level of the bureaucracy in a state, but the highest authority in each district. One of the important piece of information depended upon by the government to form policies aiming to eradicate starvation is gathered through the Collectors office. But it is a stark reality that many of these officers are corrupt, bow down to political and financial pressures, practice prejudices of all forms against the poor, particularly the members of the tribal and Dalit communities, and do not even travel the length and breadth of their jurisdiction even for once during their entire tenure. Yet, today there is not a single effective state policy, anywhere in the country that can hold a Collector responsible for a starvation death, forced and illegal eviction or even unabated corruption or discrimination practiced by the lower ranks of the government officers, including a health worker or a licensed government contractor. The AHRC is of the opinion that even if there is a paradigm shift in todays ill-conceived government policy of, says for example, break-neck-speed development into one of sustainable development through public audit and consultation, starvation and malnutrition will continue unless there is an enforceable accountability mechanism brought in to make the officers in the rank of District Magistrates/Collectors responsible and accountable. conclusion: The Prime Minister of India, Dr Manmohan Singh, addressing the sixth annual convention of Information Commissioners in New Delhi has said that the government will be critically reviewing the Right to Information Act, 2005 so that the legislation does not affect the deliberative process in the government. In his speech delivered on 14 October, addressing the conference the Prime Minister indicated some areas where the law should be recalibrated according to the government, so that genuine public interests can be upheld, whereas vexatious demands that could clog the system with sheer volume in numbers can be prevented.
India
117
The Prime Minister further said that the proposed legislation to protect whistleblowers would be enacted soon. He expected that the new law would help better implementation of the Right to Information Act and reiterated the governments commitment to control corruption and improve administration through legal, executive and technology initiatives. The AHRC appreciates the governments honesty in admitting, that whistleblowers and human rights defenders in India are at risk due to the absence of a protection framework. The AHRC also congratulates the government for its openness to acknowledge that improvement in administration - translate into governance - and prevention of corruption can only be realised through legal and administrative reforms aided by technology. However, such reforms to materialise, what is required is a functioning framework of the rule of law, a concept that is impossible to achieve without drastic reforms of the justice-rendering framework of the country. One example could be the proposed legislation to provide protection to whistleblowers. Even though legislation could bring a framework to provide protection, it cannot function without implementing organs, in this case, the police. The countrys police today is a far cry of what police should be in a democracy. The institution suffers from wide-ranging negative public perceptions, from being generally conceived as a corrupt entity; worthy of no trust by the people; a persecutor of the poor and a minion of the influential and wealthy; and inept to discharge duties, both physically and intellectually. All of this and perhaps many more of such negative impressions are based on at least six decades of the peoples experience with their police; sans states, regions, politics and periods. So far, no government, state or central, has tried to rescue the police from the deep moral as well as intellectual turpitude the institution has plummeted into. Expecting these officers who suffer from a state of deep demoralisation to provide protection and for those who are at threat to approach the police seeking help just because there is a new law, is nothing more than a fallacy, worse, a belief based on self-deceit. The public have similar perception based on experiences, concerning other justice delivery institutions in the country, for example the judiciary. Today the Indian judiciary is overburdened and ill-equipped to cater the demands of a rapidly changing and legitimately demanding society. It is like this since the past two decades. Twenty-two out of the past thirty seven chief justices of the country have, in unambiguous terms, said that the countrys judiciary is incapable to deal with the overwhelming pendency of cases. The twenty-two judges include every one who has served the country in the capacity of the
118
Chief Justice of the Supreme Court of India since 22 February 1978, the day on which Justice Mr Y V Chandrachud took office. The current Chief Justice of India, Justice Mr H S Kapadia has reaffirmed the reality stated by twenty-two of his predecessors, immediately after he assuming office in May 2010. Yet, neither the judiciary, nor the government has made it a realistic priority to address the backlog of cases. The judges, driven by targets self-imposed and more often super-imposed by administrative orders of higher judges, find disposing cases somehow and not often on merits as a means to dislodge themselves from this grinding deadlock. It might help reduce the numbers, but everyone know that the practice would serve the least to meet the ends of justice, perhaps it is in fact more delivering injustice. In essence, the judiciary is incapable of delivering justice anymore. When the investigative limb of the state suffers from low morale, inefficiency and the lack of public appreciation and the adjudicative limb suffers from enormous amounts of delay and incapacitated to deal with the sheer volume of work; chaos, confusion and inefficiency is a natural consequence. Translating this into the context of maintaining the rule of law implies that injustice is the norm and justice an exception in the society. Widespread corruption is a natural corollary of this quagmire. It is understandable thus for a citizen to use legislations like the Right to Information Act, 2005 to seek justice, which otherwise should have been achieved through normal means. That the Act often becomes a window of information, and through seeking information attaining remedies, should have been an anticipated result of the legislation. It is reality, that despite the extent of corruption and ineptitude the information sought under the Act has brought to attention of the public, and the debate it generated from villages to cities, the government has done nothing to bring about the change that is required to bring an end to this organised lawlessness which is what today India is. Any government honest and serious in addressing this situation will require constructing architecture of governance intended to build a society based on the principles of the rule of law. This requires institutions, of the very minimum, the prosecution, police and the judiciary that are nurtured to accept and investigate complaints and deliver justice, in accordance with the basic laws that the society has decided to follow and the parliament legislated to implement. What is lacking in India is a discussion on these fundamental issues and the wrongly placed emphasis is on drafting new laws, which have no appropriate
India
119
means to implement. Even the civil society, including the countrys media are victim to this maya or fallacy where it is believed that legislations without implementing infrastructure could deliver results. It is for the civil society to lobby the government to redefine its restructuring priorities so that the eroded foundations to form a democratic state are reconstructed and strengthened. Perhaps the civil society in the country, along with its government, should spend time to seek and attain clarity in their understanding of what are the essential tools required to constitute a society where justice, equality and dignity guaranteed by the rule of law is the norm. In such an India, extrajudicial executions, caste based discrimination, corruption, malnutrition, starvation deaths and custodial torture will be an exception. The task is enormous, so is the change that Indians disserve.
120
INDONESIA
ThE DEcAy Of PANcASIlA AND cONSTITuTIONAl PrOTEcTIONS
Summary In 2011, the Asian Human Rights Commission (AHRC) has witnessed a deterioration of the human rights situation in Indonesia in terms of religious freedom, the role of the judiciary and accountability for violence by security forces. This report, which is based on the organisations documentation and monitoring work, shows that Indonesia remains heavily affected by serious human rights violations and shortcomings in the rule of law. The lack of effective prevention and legal measures taken by the legal apparatus against fundamentalist groups, shows the inability of the State to ensure fundamental rights, such as the right to life and the right to freedom of thought, conscience and religion. Constitutional foundations such as unity in diversity (Pancasila) and fundamental rights are being undermined, as is being seen in the lack of appropriate responses by the State to the decay of religious pluralism and diversity. Constitutional fundamental rights are not being enforced for Acehs citizens, who live under discriminating Sharia laws, or for religious minorities in Java and elsewhere in the country, who face persecution, or for indigenous Papuans who lack equal access to justice, protection and social welfare and as a result increasingly reject Indonesian citizenship. Indonesias international recognition as a role-model for secular democracy in the region, and as the country with the worlds largest Muslim population, is losing credibility. Numerous cases of violations of the freedom of religion were reported in 2011. This situation cannot be separated from Indonesias recent history. The relationship between State and religion in Indonesia is swinging from one extreme to the other. Under the authoritarian Suharto regime, which was in power until 1998, religious movements were violently suppressed, as shown in the Tanjung Priok (1984) and Talangsari (1989) incidents, during which hundreds of Muslims were killed. Alleged perpetrators in that case remain
Indonesia
121
unpunished. The use of violence against religious groups was a strategy at that time to prevent Islamists from gaining political power. Conversely, the trend that has developed in recent years shows that religious organisations are now undermining State institutions and justice processes. The increased religious violence is exemplified by the killing of three Ahmadiyah followers in February 2011. The perpetrators in the case have received no or only lenient punishments, while victims among religious minorities suffer persecution. Violence by security forces, including the police and military, remains the other major concern in Indonesia in 2011. The AHRC continued to receive numerous cases of torture by the police, and, from crises regions under heavy military control like Papua,1 it received cases of torture by the military. The AHRC is deeply concerned by the violent dispersal and killings during the Third Papuan Congress in October 2011. The prevailing climate of impunity permits such violence to go unchecked. It is caused by the lack of effective reforms to provide impartial and professional accountability mechanisms, including for human rights violations. Efforts to develop and reform the bodies mandated to oversee the police, prosecution and judiciary, such as the extension of the mandate of the National Police Commission (KOMPOLNAS) and the mandate of the Prosecutorial Commission, are important steps taken by the GoI. However, in practice, police officers cannot be criminally prosecuted for the widespread use of torture to obtain information or punish detainees, and members of the military cannot be held accountable by independent investigations and civilian courts. They continue to be tried exclusively by the Indonesian National Armys (TNI) legal system, which has serious flaws and typically perpetuates impunity. While Indonesia had announced the inclusion of the crime of torture in its new draft criminal code, this draft has been pending for adoption for many years. Sharia law in Aceh institutionalises corporal punishment and therefore inhuman and degrading treatment, and violates rights concerning fair trials. The freedom of expression of activists in Papua is frequently violated through arrests of protesters and imprisonment for the peaceful expression of political opinions. More than 60 cases of violence against journalists in 2011 and several defamation law suits were reported. A new law concerning the States intelligence system passed in 2011, and allows for arbitrary measures that violate human rights and can be used to silence activists. Civil society faces
1 The term Papua in this report refers to the Easter-most region of Indonesia, comprising the administratrive provinces Papua and West Papua.
122
many serious challenges to their ability to perform work in favour of human rights and reforms. As a survey by the Kompas newspaper in 12 major Indonesian cities in October revealed, 83% of the respondents are dissatisfied with the work of the police, judiciary and the attorney generals office in upholding the law. Almost 100% of the respondents felt that political conflicts within the police and corruption within State institutions is, in general, in a serious condition.2 Politicisation of criminal justice institutions such as the Attorney Generals Office (AGO), corruption in the judiciary and the immunity of military commanders present an ongoing problem. The lack of accountability for gross violations of human rights and ongoing impunity for the instigators of the 2004 assassination of Indonesias leading human rights defender, Munir Said Thalib, due to the refusal of the Attorney General to conduct new investigations, are key indicators concerning the inability of State institutions to address human rights violations effectively, and thus to fulfil their mandate to ensure a just and fair society. As a result, religious extremism grows and violations by security forces continue. religion and fundamentalism Religious Violence Freedom of religion and belief and the protection of religious minorities are among the most serious emerging human rights issues in Indonesia over recent years, notably in 2011. Law no. 01/pnps/1965 recognises only
2
Members of the Ahmadyah community demonstrate for freedom of religion. The banner calls for article 29 of the constitution (freedom of religion and belief) to be respected in the face of attacks against religious minorities, source: KontraS
Jajak Pendapat Kompas: Tersandera Sikap Politikus-Birokrat - Kompas. Monday, 10 October 2011 http://cetak.kompas.com/read/2011/10/10/0203284/tersandera.sikap.politikusbirokrat.
Indonesia
123
six main religions in Indonesia: Islam, Christianity, Catholicism, Buddhism, Hinduism and Confucianism. Other religions and beliefs are deprived of legal protection. Youth unemployment and poverty have allowed Islamist leaders to gain increased support and to spread fundamentalist views that violate Indonesias constitutional values of diversity and religious freedom. Under Article 29, paragraph 2 of the constitution, The state guarantees each and every citizen the freedom of religion and of worship in accordance with his religion and belief. Violations of the freedom of religion, the right to life, and the right to remedy of members of religious minorities, have increased in recent years in Muslimdominated areas of Indonesia, such as West Java, Banten and DKI Jakarta, as statistics from the Setara institute in Indonesia show.3 Fundamentalists have created conflicts between religious groups that had peacefully coexisted over the last decades, including between different Islamic groups, as attacks on Ahmadiyah communities by hard-line Islamic groups show. The problem of attacks and threats on Ahmadiyah families had already been raised during Indonesias first UPR review in 2008,4 but the government has still not taken adequate steps to ensure their protection. Violence against minority groups and terror bombings in places of worship illustrate the state of religious tolerance and freedom in Indonesia at present. Historical context of the repression of religious movements and their radicalisation After the end of New Order era, Indonesia began the process of transformation into a democratic country. However, this nascent democracy was being built without strong institutional foundations. Under Suhartos autocratic rule, Law no. 8/1985 on Mass Organizations was used to effectively prohibit religious organisations and to make communist groups illegal. Religious groups were violently oppressed, allegedly in the name
3 4
http://setara-institute.org/en/content/grafik-laporan-pelanggaran-kebebasan-beragamaberkeyakinan-2007-2010 http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ID/QUESTIONSINDONESIAADD1.pdf
124
of constitutional protection and the Indonesian States principle of Pancasila.5 Hundreds of Muslims were killed in the Tanjung Priok case in 1984 and the Talangsari case in 1989.6 After the fall of Suharto in 1998 and the following democratisation processes, various community organizations, including religious organizations, were established. Over the following years, several religious organizations such as the Islamic Defenders Front (Front Pembela Islam - FPI), the Islamic Community Front (Front Umat Islam - FUI), and the Party of Liberation/Hizbut Tahrir Indonesia (HTI), developed extremist and Islamist tendencies and activities that remained largely unchallenged by State institutions. The agenda and activities of such groups have now reached a state that seriously threatens constitutional protections and Indonesias secular constitutional framework. Alongside these social developments, resistance against Ahmadiyah followers grew. The Indonesian Ulama Assembly (Majelis Ulama Indonesia - MUI) issued a fatwa in 1980 declaring that Ahmadiyah followers were part of an errant sect. 28 years later, pressure on political actors had grown leading to members of the government issuing the 2008 joint ministerial decree,7 which prohibits the Ahmadiyah community from promulgating their religion. Both the fatwa and the decree remain in force, and have since encouraged persecution and violence. Examples of human rights violations resulting from religious intolerance in 2011 Cases of mob violence by Islamists against Ahmadiyah communities have resulted in deaths and property being destroyed. Ahmadiyah mosques were attacked, including the mosque in Samarinda in February 2011, and the Ahmadiyah mosque and secretariat in Makassar in August 2011. Christian churches have been bombed and burned, while local administrations have banned religious communities from worshiping on their land in many cities and towns, allegedly to avoid conflict with mainstream Muslim groups.
6 7
Pancasila is comprised of five points: 1. Belief in the one and only God. 2. Just and civilized humanity. 3. The unity of Indonesia. 4. Democracy guided by the inner wisdom in the unanimity arising out of deliberations amongst representatives. 5. Social justice for the all of the people of Indonesia. See section on Impunity for more details on these cases. http://www.humanrights.asia/countries/indonesia/laws/ministerial-decree-against-jai-2008
Indonesia
125
Cikeusik case On February 6, 2011, three Ahmadiyah followers were killed and five injured after an angry mob attacked them in Cikeusik, Pandeglang Banten, West Java. At that time, the Ahmadiya followers were trying to protect themselves and the assets of the Ahmadiya from the mob that was forcing them to leave the village. The mob attacked the victims with machetes and stones. The members of the police and military who were present, were unable to do much to prevent the mob violence as they were considerably outnumbered. As a result, Roni Pasaroni, Tubagus Candra Mubarok Syafai and Warsono, three Ahmadiya followers, were killed. On April 28, 2011, the Serang District Court in West Java convicted 12 perpetrators for maltreatment, joint assault and incitement to violence, with light prison sentences of 3-6 months. In the meantime, another Ahmadiyah victim, Deden Sudjana, who was also injured by the mob attack, was taken to court and sentenced to six months in prison for refusing to leave the house when asked to by the police officers, and for wounding one of the attackers (under articles 212 & 351 of the Criminal Code). Courts are producing judgements that lack impar tiality and undermine minority rights. The AHRC published a statement concerning this case which can be found here: http://www.humanrights. as i a/ ne ws / ahrc-ne w s/ Members of the police stand near three Ahmadiyah followers killed by an angry mob, without having AHRC-STM-106-2011 protected the victims. Such attacks have not been prevented by the Indonesian authorities, despite the planned attacks having been announced publicly. Furthermore, Mayor Diani Budiarto from Bogor prohibited the Yasmin congregation of the Indonesian Christian Church (Gereja Kristen Indonesia, GKI) in Bogor, West Java from worshipping in their premises, effectively displacing the congregation from the area. The Sleman church in Yogyakarta was sealed by the authorities on February 18, 2011.
126
Administrative reasons such as the lack of building permits are often used to justify the shutting down of churches, thus preventing worship to take place. These actions are allegedly carried out in response to the fear of christianisation experienced by mainstream religious communities. The Yasmin Church prohibition case In early 2000, the Yasmin congregation of the Indonesian Christian Church (Gereja Kristen Indonesia - GKI) applied for a permit to build a church in Taman Yasmin area, Bogor, West Java. As all requirements set out by law were fulfilled, the mayor of Bogor issued the building permit (IMB) in 2006. While the construction was in progress, the head of the Bogor city planning and landscape department (Kepala Dinas Tata Kota dan Pertamanan Bogor) issued a letter on February 14, 2008, requiring the halting of all construction work. The congregation won an appeal at the Supreme Court on December 9, 2010, allowing construction work to resume.
People protest against the closure of the Yasmin church in Bogor, source: KontraS
Since 2010, the Bogor authorities continued to ban the church and the Bogor city district police (Polresta Bogor) as well as the Civil Service Police Unit (Satpol PP) have stopped the congregation from worshiping by blocking the road to the church. On March 13, 2011, fully-armed mobile brigades (BRIMOB) of the Bogor city district police forcibly dispersed the congregation. Local opponents of the church group have repeatedly intimidated and harassed its members, notably by organising mass protests to intimidate and disrupt the congregation while they were conducting religious activities in front of the church. Subsequently, allegedly due to pressure from hard-line groups, the Mayor of Bogor revoked the building permit and sealed off the church, demanding that all religious activities be halted in the GKI Taman Yasmin church area by April 10, 2010.
Indonesia
127
Separately, on April 15, 2011, a bomb exploded in the Adz-Zikra Mosque, in the Cirebon Police Resort Office complex (Mapolres Cirebon), while people had gathered for the Friday prayers (shalat). The suicide bomber died and another 31 people were injured, including Mr. Herukoco, the head of Cirebon resort police (Kapolresta Cirebon). Members of the Jamaah Ansarut Tauhid are thought to be responsible for the bombing. On September 25, 2011, a bomb also exploded in the Bethel Injil Sepenuh Church (Gereja Bethel Injil Sepenuh/BGIS) Kepunten, Solo, Central Java. The suicide bomber8 died and another 20 people were injured. The incident occurred just after the congregation had finished worshipping. The lack of an effective institutional response to attacks and discrimination against religious minorities Attacks on religious minorities in Java and other parts of Indonesia in recent years have also shown that the police and courts are unwilling to protect individuals or groups from attacks and other abuses by the religious majority. In several cases the police has failed to conduct investigations and perpetrators are not being brought to justice. Attempts by hard-line religious groups to obstruct religious minorities from worshipping have taken place with the acquiescence of the police. In the few cases that were brought to court, the perpetrators received only lenient punishments. The police tend to acquiesce to the requests of hard-line members of the religious majority rather than to provide protection to members of religious minorities. In a series of cases in recent years, the authorities, including the justice system, have been shown to be ineffective at sufficiently protecting the human rights of the Ahmadiyah and Christian communities in Indonesia. The justice system has granted impunity to perpetrators of attacks and other abuses, and the courts lack independence and integrity. The resulting lack of an institutional response has encouraged further attacks and abuses. While attempts to provide increased police protection in some cases are welcomed, they often do not suffice. More steps are required by the GoI and local authorities to halt the growth of religious conflicts and to ensure every persons freedom of religion. The legal apparatus, for example, continues to show bias. The lack of punishments and the absence of prevention efforts undertaken by the legal apparatus against
8 According to Anton Bachrul Alam (National Police Spokesman), the suicide bomber in Solo, named Ahmad Yosefa Hayat, is one of the fugitives in the Cirebon bombing case
128
fundamentalist groups such as the Islamic Defender Front (FPI), have been shown to have resulted in the deterioration of the situation. Law no.12/2005, which brings domestic law in line with international standards concerning freedom of religion or belief contained in the International Covenant on Civil and Political Rights (ICCPR), is not being effectively implemented by the GoI. Law no.1/PNPS/1965 concerning The Prevention of Religious Abuse and/ or Defamation, remains in effect to date, and create obstacles to the freedom of religion by recognising only six main religions. Meanwhile, there are numerous other religions and beliefs practiced in Indonesia such as Kejawen (traditional Javanese beliefs), Sunda Wiwitan (traditional Sundanese beliefs). Direct or indirect support by Islamic political parties9 and the minister of religion allow hard-line organizations to continue committing violations against minorities, especially efforts to block Ahmadiyah activities. The formal attendance of the Jakarta Governor and the Chief of the Indonesian National Police at an FPI annual event is seen by many as an indicator of their support for and bias in favour of this group. The Governor of Jakarta also invited the FPI to be involved with the local administration in maintaining security during fasting month of Ramadan, which has led to abuses by this group. The FPIs involvement concerned the implementation of the following local regulations: (PERDA) No.10/2004 concerning Jakarta Tourism and Governors Decision (KEPUTUSAN GUBERNUR) No. 98/2004 concerning Time Implementation of the Tourism Industry in Jakarta. This collaboration has effectively legalized the illegal raids that the FPI regularly carries out during the fasting month. During Ramadan in 2011, the FPI carried out a number of such illegal raids against several restaurants and food stalls that were open during the day (during fasting time). On August 12, 2011, for example, members of the FPI raided and destroyed restaurants and food stalls furnishings, including chairs, tables and plates, and also threatened the owners into signing a letter pledging to not open their restaurants and food stalls during the day. Police officers from Makassar Police Resort and Panakkukang Sub-district Police who accompanied the FPI did nothing to prevent or halt the FPIs illegal actions. After the Cikeusik attack incident that killed three Ahmadiyah members in February 2011, several local governments and administrations issued regulations to ban Ahmadiyah activities, and explained these measures were necessary as a security strategy to avoid such attacks from re-occurring. These local regulations base themselves on the Joint ministerial decree (SKB) of the Minister of Religion, the Minister or Internal Affairs and Attorney General,
Such as the Prosperous Justice Party (Partai Keadilan Sejahtera), the United Development Party (Partai Persatuan Pembangunan), and the Crescent Star Party (Partai Bulan Bintang)
Indonesia
129
against the Ahmadiyah that was issued in June 2008,10 which prohibited the promulgation of non-mainstream Muslim beliefs. Eight areas in Indonesia have banned Ahmadiyah activities since February 2011. While the first such regulations were issued as early as 1983, the majority of them were all issued immediately following the Ahmadiyah killing as the following table shows. The table shows a list of local regulations that prohibit Ahmadiyah activities, issued in 2011, since the Cikeusik Incident.
No 1. Regulation no. Governors Circulation Letter No.223.2/803/ kesbang (Surat Edaran Gubernur) District Regulation No.450/PUM/2011/68 (Peraturan Bupati) District Regulation No.5 Year 2011 Mayors Decree No. 200/160/BKPPM. I/II/2011 (Surat Keputusan Walikota) Governor Regulation No.188/94/KPTS/013/ 2011 (Peraturan Gubernur) Governor Regulation No.12 Tahun 2011 (Peraturan Gubernur) Mayors Decree No.300. 45-122/2011 (Surat Keputusan Walikota) Mayors Regulation no.9/2011 (Peraturan Walikota) Date of issue Area/district affected population11 8.034.776
10 February 2011 South Sulawesi
2. 3. 4.
16 February 2011 Kampar, Riau
750.000
21 February 2011 Pandeglang, 1.149.610 Banten 25 February 2011 Samarinda, 3.553.143 East Kalimantan 28 February 2011 East Java 37.476.757
5.
6. 7. 8.
3 March 2011 3 March 2011 9 March 2011
West Java Kota Bogor, West Java Depok, West Java
43.053.732 950.334 1.738.570
Sources: Indonesian central statistics agency (Badan Pusat Statistik) & KontraS report on the attack incident of Ahmadiyah followers in Cikeusik, February 2011
10 See the text of the decree at: http://www.humanrights.asia/countries/indonesia/laws/ ministerial-decree-against-jai-2008. SKB 3 Menteri, No. 03/2008, Number: 033/A/ JAI/6/2008, Number 199 Year 2008. 11 Indonesian Population Census 2010 http://www.bps.go.id/aboutus.php?sp=0
130
Recommendations: 1. The government and the criminal justice institutions should ensure impartiality by the police, prosecution and courts, through training, independent and effective oversight mechanisms, the assessment of decision making processes and the punishment of violators, through the application of effective administrative and criminal sanctions that are in line with international law and standards. 2. The government must end the encouragement of religious discrimination by the State, notably by repealing joint ministerial decree no. 3/2008. 3. The House of Representatives should review law no. 1/PNPS/1965 concerning the prevention of religious abuse and/or defamation to ensure the equal treatment and recognition of all religions before the law. 4. Criminal justice institutions should ensure that police officers that fail to protect the rights of any and all persons according to the law are held accountable for their actions or lack thereof. 5. More efforts are required to provide an effective justice system, uphold constitutional integrity and anti-corruption measures are made, in order to ensure a more just social order that upholds human rights, and therefore addresses the root causes of increased radicalisation and the religious violence that it entails. 6. The Judicial Commission should investigate the judgement in the Cikeusik case, concerning the mob attack and killing of members of the Ahmadiyah faith, and all other cases where allegations of religious discrimination are made concerning verdicts, in order to ensure that such verdicts are in line with domestic law, constitutional rights and Indonesias obligations under international law. Investigations must be launched systematically when such allegations are made and appropriate sanctions must be applied to any judges found to have acted contrary to the above. Sharia law in Aceh The granting of special status and autonomy to the Indonesian province of Aceh in accordance with law no. 44/1999 on the Implementation of the Special Status of Aceh and law no. 18/2001 on the Special Autonomy of Aceh, has given Acehs autonomy house of representatives the authority to implement Sharia Law through provincial religious laws, also known as Qanun. Several articles of the provincial Sharia Law, including those relating to corporal punishment and restrictions on womens rights contradict Indonesias constitutional rights and national laws, as well as international law such as the International Covenant on Civil and Political Rights (ICCPR), ratified by Indonesia in 2006.
Indonesia
131
The judiciary, including the Supreme Court, has not played an active role to review this situation. The provincial law and local regulations cannot be brought to the constitutional court for review under the current system. Although religious provincial law no. 14/2003 concerning adultery limits the role of members of the public to reporting crimes under Sharia, and to bring alleged perpetrators to Sharia or regular police officers, the law in fact encourages vigilantism. Punishments are being carried out by members of the public based on their interpretation of the law. In several cases of degrading treatment of women and girls in public, in response to their alleged involvement in violations of Sharia law, the punishments were arbitrarily meted out and conducted by members of the public, and in public, without the involvement of any State authority. Punishments include caning and having sewage water poured on victims. According to the National Commission on Violence against Women, there were 207 local regulations in effect in 2010 that discriminated against women. The procedural rights of alleged offenders are being ignored and the perpetrators of illegal Sharia punishments are not being held accountable by the police. Cases of violence in the name of Sharia, often conducted by the public without any trial, marked the situation in Aceh in 2011. According to KontraS Aceh, in April 2011, 2 children from Glumpang Tujung, Matang Kuli, North Aceh were forced to marry after they were caught kissing. On 5 August, in Ladong, Aceh Besar, members of the public caught an unmarried couple hugging, and punished them by covering them with sewage water. In Lhokseumawe, a 17 year-old student was caught while with her boyfriend, and they were subjected to beating for ten minutes and being thrown into a water reservoir. Another 12 cases that occurred between May and September 2011 were documented by KontraS Aceh, mostly concerning cases of young unmarried couples engaging in activities that are seen as being immoral under Sharia Law, such as hugging and cases of adultery. Typical punishments for adultery include forced marriages, canning and degrading treatment such as being covered with sewage. NGOs are not able to criticise Sharia practices such as corporal punishment, without being stigmatised as anti-Islamic by the public and facing social exclusion. In Aceh, public caning is practiced as a form of corporal punishment under Sharia law. The AHRC considers that such punishments in many cases amount to torture and therefore represent a violation of Indonesias obligations under international law. Furthermore, the provisions on corporal punishment in Acehs Sharia law, which is imposed through provincial law and district
132
regulations, violate Indonesias constitution, notably article 28G (2)12 and article 28I (1).13 By allowing these unconstitutional provisions to remain effective in practice, the Indonesian government is acquiescing to the acts of torture and other human rights abuses being carried out under Sharia law in Aceh. The Indonesian State and the authorities in the province of Aceh have failed to intervene to protect victims from these unconstitutional forms of punishment and human rights violations. A coalition of local civil society groups formed in 2009 has successfully campaigned for the removal of the qanun jinayah that provided for stoning. The original Sharia-based penal code provided stoning as punishment for adultery. Adultery continues to be punishable by flogging. Provincial laws and local regulations which violate the Indonesian constitution, including those concerning Sharia, cannot be challenged by the Constitutional Court, but only in the Supreme Court. The AHRC is of the opinion that such laws and regulations should be challenged in the Constitutional Court, as this court holds public hearings and allows for greater transparency than the Supreme Court. In order to begin to address the problem of the provisions in Acehs Sharia Law that violate human rights and Indonesias constitution, more awareness raising concerning human rights norms must be conducted in order to inform the Acehnese public and legislators in particular. Articles in the provincial law that violate human rights norms must be reviewed to ensure that they are in line with domestic and international laws protecting human rights, notably concerning the freedom from torture, ill-treatment and other degrading forms of punishment, as well as the internationally accepted standards of fair trial. Recommendations 1. The mandate of the Constitutional Court should be extended to allow for a review of local regulations (Peraturan Daerah / PerDa) regarding their constitutionality.
12 Article 28G (2) Indonesian Constitution (UUD 1945) states that Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country 13 Article 28I (1) Indonesian Constitution (UUD 1945) states that the rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstance
Indonesia
133
2. The application of any Sharia Law articles that violate human rights norms, including the right to a fair trial and the freedom from torture and degrading treatment, have to be halted until the law and district regulations have been reviewed to ensure that they are in line with national and international laws and standards. human rights in Papua In the provinces Papua and West Papua, indigenous Papuans are being discriminated against and subjected to grave human rights abuses by Indonesias security forces and public services. While the Papuan provinces are the richest in terms of natural resources in Indonesia, and the 2001 Special Autonomy Law for Papua had been expected to provide a high level of self-determination and a framework that would permit more effective poverty alleviation, the Papuan people have not seen a noticeable improvement to their living conditions. Rampant corruption in public institutions, a high level of military deployment, a repressive climate for activists, and discrimination against ethnic Papuans all contribute to creating a situation marked by insecurity and widespread human rights abuses. Human rights violations encountered include: arbitrary arrests of civilians who are then often arbitrarily sentenced with rebellion, leading to prolonged prison terms; torture; and extra-judicial killings. The GoI has also created bureaucratic obstructions and is blocking access of journalists, human rights and humanitarian organisations from outside Papua to the region, which greatly hampers transparency and the improvement of the situation of human rights there. In 2011, killing incidents increased, for example: on July 12, four innocent civilians were shot in an armed clash between the 753/AVT infantry battalion and an armed group in Puncak Jaya; on July 30, in Timika, one person was seriously injured during a clash between riot control forces from Timika district police and the community, and later died. At least 3 persons were killed on October 19, 2011 during the Third Papuan Congress. The indigenous event was violently dispersed on its last day after independence aspirations were declared and an indigenous Papuan political leadership was appointed. As the GoI is in the process of setting up a special body (the Unit for the Acceleration of Development in Papua and West Papua - UP4B) at the national level to ensure effective development in Papua, the AHRC urges the government to ensure that this body prioritises corruption in public institutions
134
and the administration as well as the recognition of and justice for past gross violations of human rights that occurred during the last 50 years and remain a key issue for indigenous Papuans. Freeport and security forces Following a strike on September 15, in the Freeport area, as of November 25, there had been at least 11 shooting incidents in the Freeport area, resulting in the death of at least 9 civilians and 18 persons injured. At least two of these 9 victims were protesters from the Freeport workers union who were shot at during a rally. Police in Timika kill two union protester and injure others at Freeport On 10 October 2011, the police in Timika District Police (POLRES) shot Peter M. Ayamiseba, an employee of PT Freepor t Indonesia with live ammunition and injured 9 other employees, when around 1.000 employees conducted a demonstration at the entrance gate of the Gorong-gorong Bus Terminal to protest against Freeport Managements policy of hiring new employees to replace them. This demonstration is a continuation of the strike that began on September 15, 2011, demanding higher wages. Leo Wandagau, one of the injured employees died five days after this incident. Further case details are available here:
Leo Wandagau, union protester, died 5 days after being shot by the police, source: Freeport Workers Union
One of the main reasons for violence and rights abuses in Papua is the ownership of the regions significant natural resources. PT Freeport Indonesia (PTFI), a member of the major international US based Freeport McMoRan group, is heavily involved in extracting copper and gold in Papua, and has been categorized as a national vital object,14 a status that requires it to be protected by the police and/or TNI to ensure its security. The company
14 Based on presidential decree No. 63 of 2004 regarding security of national vital object.
Indonesia
135
provides an important source for state revenue. The chief of Indonesian police, Timor Pradopo, admitted in October 2011 that members of the police in Papua receive money from PTFI.15 In a letter to the NGO KontraS in 2010 the Papua regional police stated that the management of PTFI provides Rp. 1.250.000, (almost USD 137) per person per month to 635 police officers. An investigation conducted by Indonesian Corruption Watch (ICW) found that PTFI provided USD 79,1 million to the Indonesian police and TNI over the last 10 years.16 The large sums of money accepted by police and military contradict their supposed independence and encouraged the human rights violations in Papua and a continuation and exaggeration of the security threats in favour of PTFIs economic interests.
Omnipresent security forces in Papua surround the Third Papuan Congress
Violence by military and police The increased military deployments in Papua has violated many laws, such as law No. 34/2004 regarding Indonesian National Military (TNI), under which such deployments must receive approval by the civilian political authorities, either from the president or house of representatives, in the form of Presidential Decree. In some cases in Papua, this has not been the case. The heavy deployment of troops in Papua goes beyond the purpose of border control and defense against external threats. While the ministry of politics law and security
15 The statement on 28 October 2011, National Police admit receiving meal money from Freeport, http://www.thejakartapost.com/news/2011/10/29/national-police-admit-receivingmeal-money-freeport.htm 16 Police Accepted Money from Freeport Since 2001, http://www.thejakartapost.com/ news/2011/11/01/police-accepted-money-freeport-2001-icw-reports.html
136
explained the need for the army to maintain security, the AHRC is of the view that the low level of armed violence requires police work and peace building measures. Troops beyond those dealing with border control and defense against external threats should be removed according to a clear time schedule. Kurulu case On November 2, 2011, between 11pm-3am, seven members of the Kurulu military sub-district command (Danramil Kurulu) arrested and ill-treated three local activists and nine Umpagalo villagers without any command letter of authorization, at Umpagalo village, 176/Kurulu military headquarters of Wim Anesilis branch, Kurulu sub-district, Jayawijaya, Papua. The arrest followed a false report filed by a reportedly drunk Kurulu villager, that these persons were holding a separatist meeting. While taking the victims to military headquarters, the officers beat them, cut them with bayonets for two hours, forced them to crawl and doused them with water for one hour. The officers also humiliated the victims, beat them with big wooden sticks, kicked and stepped on them with boots, pointed guns at them, threatened to cut their heads, stabbed them with bayonets and shot them four times. After that, the military brought the victims to Kurulu military headquarters and allegedly detained them for two hours. In response to this, Ibnu Tri Widodo, the head of district command (Korem) 172/PWY acknowledged the violence. He stated that the seven soldiers who mistreated the civilians are now held in the custody of the Wamena Military Police. Following the mistreatment, all soldiers on duty in the Kurulu sub-district had been posted elsewhere. He also promised that the military would no longer act arrogantly towards civilians. No effective accountability measures were taken beyond this. Torture is used in a widespread way by the police and military against indigenous Papuans, notably on persons suspected of supporting independence movements. Such suspicions are often levelled arbitrarily against members of the indigenous community and result in stigmatisation. The Human Rights Court Law (Law no. 26/2000) includes torture as a gross violation of human rights under article 9.6., which requires an investigation and trial in a Human Rights Court if it is part of a broad or systematic direct attack on civilians. The AHRC believes that torture is being used in such a systematic manner and therefore calls on the National Human Rights Commission (Komnas HAM) to ensure that inquiries are launched into the use of torture in Papua, without delay.
Indonesia
137
Civil Society and Freedom of Expression in Papua Indigenous civil society groups are subjected to tight controls and surveillance by the intelligence authorities, the military and police in Papua, including raids on their offices, staff members being intimidated or even arrested, notably after public protests. In particular, peacefully expressed indigenous political demands for greater self-determination or the display of Papuan identity symbols such as flags frequently result in arrest and detention that can range up to life imprisonment, based on charges of sedition makar under the criminal code. The UN working group on arbitrary detention issued opinion 48/2011 to the GoI in May 2011, stating that detention for the peaceful raising of the Papuan flag, as recognised in the Special Autonomy Law, Police and thugs arrest Third Papuan Congress violates ICCPR provisions. participants in October 2011 At least one person killed, hundreds arrested and five persons charged with rebellion at Third Papuan Peoples Congress During the third Papuan Peoples Congress on 16-19 October 2011 which was held in the Taboria oval (Zaccheus Field) in Abepura, Papua, around 2200 members of the Indonesian army (TNI) and mobile brigades (BRIMOB) were deployed and intimidated the participants. After the event concluded at around 2 pm on October 19, with political declaration regarding the self-determination of the indigenous Papuan population being read out, the security personnel from the army and police forces opened fire on the participants. They have claimed that these were warning shots, but at least three persons were shot and killed and many others were reportedly injured. They dispersed the crowd, beating numerous participants in the process. Some 300 persons were arrested and taken into custody in trucks. Five persons - Forkorus Yaboisembut, Edison Gladius Waromi, August Makbrawen Sananay Kraar, Dominikus Sorabut, and Gat Wenda - were charged under articles 110 p.(1), 106 and 160 of the Indonesian Criminal Code, relating to rebellion/secession (makar) by the Regional Police of Papua province (POLDA). Further case details are available here:
138
Political prisoners in Papua After the fall of Suharto in 1998, human rights violations against political prisoners and the sentencing of new persons for their peaceful expression of political opinions continued. The prisoners rights to health care are frequently ignored. Most are sentenced between 2 and 20 years imprisonment. In December 2010 after an initial arrest in 2008, political prisoner Sebulon Sambom was paroled by the Ministry of Law and Human Rights. Fellow activist, Buchtar Tabuni, who had been imprisoned since December 3, 2008, and was allegedly subjected to beatings while in detention, was released on August 17, 2011. While the AHRC welcomes the release of some them, it notes with concern that more than 40 Papuan political prisoners are remain in prison, according to estimates. Mr. Kimanus Wenda who has been serving a 20-year sentence since 2010 for rebellion in Nabire prison, has needed medical treatment for a tumour in his stomach, but the prison health division did not provide an adequate response. On February 2, 2011, the Nabire hospital issued a recommendation letter to Mr. Wenda in order for him to be operated upon in a Jayapura hospital immediately. The prison authorities have refused to pay for his transport and medical costs as required by law. Recommendations: 1. The Government of Indonesia (GoI) should ensure equality, prosperity, non-discrimination and the enjoyment of all fundamental human rights for all members of the indigenous Papuan community. 2. Komnas HAM should ensure that inquiries are launched into all allegations of the use of torture in Papua, notably against alleged separatists, and where required, bring the situation to a Human Rights Court. 3. The President is urged to take extra measures against corruption in public institutions including police and judiciary, such as through a special task force of the KPK (Indonesian Anti Corruption Commission) to Papua. 4. The GoI should guarantee unrestricted access to Papua for international humanitarian and human rights organisations, international journalists, and parliamentarians and to ensure that they are able to carry out their job without restriction and harassment. 5. All military deployments whose function goes beyond border control and protection from external threats should be removed according to a clear time frame. The GoI must ensure that cases of violence in Papua are instead addressed by a professional and accountable police force.
Indonesia
139
6. The GoI must ensure an end to all cases of intimidation, harassment, and physical violence perpetrated against human rights defenders and journalists in Papua, and ensure that the perpetrators are brought to justice. Key human rights issues and violations Torture Human rights documentation carried out by the AHRC shows that torture remains widespread in Indonesia. While only a few officers have been held accountable for what Indonesias domestic law calls maltreatment, a consistent and systematic response to the problem of widespread torture is lacking. The crime of maltreatment allows for imprisonment sentences of up to five years. In cases of torture, in practice, perpetrators have only typically received sentences of a few months imprisonment when charged with maltreatment. Hundreds of cases are reported every year, mostly concerning torture by the police in order to obtain information or confessions. Forms of torture encountered include severe beatings, electrocution, the burning of parts of the body, detainees being forced to have sex with each other or urinate on each other. These are typically accompanied by a range of inhuman and degrading treatments, such as being stripped naked. The use of torture is widespread during interrogation. While police regulations prohibit torture, they are not being enforced effectively. The lack of criminalisation and effective punishment results in impunity for most perpetrators. The lenient punishments applied in some cases do not correspond to the severity of the act of torture and have little deterrent effect on its use in policing. The use of corporal punishment under Acehs provincial Sharia Law, which the AHRC considers amounts to torture in many cases, has been detailed in the section above. In conflict regions such as Papua or the Malukus, which are characterised by large scale military deployments, military torture, notably of alleged separatists, is an additional problem. Video evidence of a case of torture by the military in the Papuan highlands surfaced in the international media in October 2010. In the video, alleged separatist supporters who were being held at a military post, were seen being interrogated and tortured, including the burning of their genitals and the use of suffocation. Despite clear evidence being available and considerable international attention concerning this case, the perpetrators were not held accountable for torture. They were tried by an opaque military tribunal and received sentences of only a few months, not concerning the use of torture, but for disobeying release orders made by their superiors. This clearly shows both the problem of the use of military tribunals
140
for offences committed against civilians, which should be tried by a civilian court, and the problems arising out of the lack of a specific crime outlawing torture in Indonesias domestic legal system. The victims concerned in this case had still not received any reparation as of November 2011.17 On March 5, 2011 Charles Mali was tortured to death by members of the Indonesian Military Forces (TNI) Infantry Battalion 744/SYB, in Atambua in the border area of East Nusa Tenggara. The 23 members of the military found responsible are being held under special detention conditions that reportedly allow them to leave prison as they see fit. Case: Torture of Charles Mali in East Nusa Tenggara On March 5, 2011, there was an incident between six drunk Futubenao young men and an officer of the TNI Infantry Battalion 744/SYB. In the afternoon, several TNI officers came to Raimundus Malis home (father of Charles and Heri Mali), asking for the whereabouts of Charles and his friends, but failed to find Charles. On March 8 at around 9am two members of the military forcibly took Charles Malis parents, Raymundus Mali and Modesta Dau to report at the Tobir Post, where the Provost requested them to bring their sons for coaching. Following this request, Charles and Heri were handed over to the Provost by their parents on March 13. Rather than any coaching, Charles and Heri Mali were tortured then, together with their four friends, all of whom were involved in the March 5 incident. The six youth were beaten, kicked with boots and physically pitted against each other by some members of the TNI Battalion 744 in Tobir Post. The torture lasted about four hours. At around 10pm, Heri Mali found his brother Charles had died, with bruises on his back, face and chest, allegedly caused by being kicked with boots. Heri underwent intensive treatment at the Sitohusada Hospital, Atambua, due to back, chest and head injuries from punches and kicks, as well as vomiting supposedly caused by a hard blow to the head. In relation to this incident, the Submilitary police detachment (Sub Denpom) Atambua has examined 23 members of Battalion 744/SYB who were allegedly directly involved in the torture and murder of Charles Mali and his friends. Although some 23 suspects were detained, there has been no significant progress in the case; instead, reports indicate that the detainees are in fact able to leave
17 See Tuanliwor Kiwo case in the subsection on human rights in Papua.
Indonesia
141
detention freely to meet their families. For more information on this case please visit: http://www.humanrights.asia/news/ahrc-news/AHRCSTM-096-2011. Criminalisation of Torture and Penal Reform While Indonesia had announced the inclusion of torture as a crime in its draft criminal code (KUHP), this draft has been pending for adoption for many years. Discussions first began on a new criminal code in the 1980s and continue within the Ministry of Law and Human Rights, delaying its adoption, which is unlikely to occur in the near future, as it is reportedly not being treated as a high priority. Given delays concerning the criminal code, the Indonesian authorities should also consider passing a stand-alone criminal law that punishes torture in line with the provisions of the CAT.18 Passing such a law could circumvent the delays to the criminalisation of torture arising from the process of adoption of the criminal code. It could also encompass comprehensive provisions such as for reparations and non-refoulement. Recommendation Given that cases of torture allegedly committed by the police and military continue to be perpetrated, the Indonesian authorities must take all necessary steps to ensure the criminalisation of torture, including provisions for punishment of perpetrators and reparations for victims that are in line with international standards, in the shortest possible time-frame, through updated provisions in the criminal code and a stand-alone law criminalising torture. Terrorism and human rights The Special Detachment 88 Anti-terror Indonesian Police (Densus 88) was created in 2003 as a special unit within Indonesian police to handle counterterrorism. However, it has been exceeding its mandate and been involved in dealing with other crimes, such as robbery, as was seen in CIMB Niaga Bank Medan in 2010. There is no internal or external mechanism to monitor Densus 88 and its performance concerning the respect for human rights, leading to
18 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
142
abuses being carried out with impunity. Densus 88 stands accused of using extra-legal measures, such as arbitrary arrests, torture and extra-judicial killings. Arrested alleged perpetrators are denied rights as suspects such as the rights to access legal representation and family members. As a result of anti-terrorism operations aimed at finding suspects or weapons in 2011 in Java, Sumatera, Kalimantan and other regions, 8 persons were killed, 1 person shot and injured, and at least 6 persons were arbitrarily arrested.19 Recommendation Independent monitoring of Densus 88 is required to ensure that it operates in accordance with human rights, with the polices standard operational procedures (SOP) internal regulations, such as law no. 2 of 2002, notably its Article 15 regarding the use of firearms, as well as the Chief of the Indonesian Polices regulation (Peraturan Kapolri) No. 1 of 2009, which concerns the use of force as part of police action. land disputes between military and farmers In recent years, several cases of land disputes or even violent clashes between the military and villagers were recorded.20 In 2011, clashes took place in Kebumen, Central Java, which are detailed below. Most cases are based on conflicting claims over ownership of land and buildings, often without legal basis from the militarys side. The protests by villagers are then met with military force. In recently documented cases, land disputes also include retired military personnel, since Minister of Defence Purnomo Yusgiantoro and Vice of Minister of Defence Major General Sjafrie Sjamsoeddin announced the control all State housing under the military institution. The issue of Army Telegram Letter (Surat Telegram) Number 1409, October 2011, and Telegram Letter Number 1555, by the Army Chief of Staff underscores the TNIs efforts to control State housing. As a result, the TNI has forcibly evicted residents who are former military personnel from State housing by breaking down doors, removing all the furniture and intimidate them. In 2009, the First Commission of the House of Representatives (DPR) launched a mediation effort between victims of land disputes and the Minister
19 Documenation by KontraS 2011. 20 During 2006-2011, the land disputed between military and villagers occurred in Alas Tlogo in East Java, and Bojong Kemang and Rumpin in West Java.
Indonesia
143
of Defence and Commander of the Armed Forces. The mediation resulted in a moratorium on forced evictions by the TNI in theory, although in practice, the TNI is still threatening to evict retired members of the military or their families who live in State housing, and have carried out some evictions as detailed above. Number of houses used by the TNI for their current or retired staff as of 201121 active soldiers Land Forces Naval Forces Air Forces total 126 138 13 701 16 186 156 025 retired personnel & family 19 318 3 792 626 23 736 illegally occupied 6 345 100 213 6 658 total 151 801 17 493 17 290 186 584
Source: Alliance of State House Residents (APRN) Military open fire on protesting villagers in Central Java On April 16 2011, the military opened fire in Kebumen, Central Java against protesting farmers. The military planned to build a combat training centre (PUSLATPUR) on the farmers land near the Setrojenar village, Bulu Pesantren in Central Java. 13 civilians were seriously injured, with six of them suffering gunshot wounds, and had to be treated in the Kebumen Regional General Hospital (RSUD). The police charged several protesters with criminal offences related to violence or attacks on property.22 The First Commission of House of Representative has called Military Armed Commander (Panglima TNI) to explain this incident. The National Commission for Human Rights has also formed a team to conduct the investigations. But there has been no follow-up of the results of the investigation from the Military Police (Polisi Militer/
21 source: Alliance of State House Residents (APRN). 22 On land dispute case in Kebumen, six villagers six villagers; Solekhan, Mulyono, Adi Wiluyo, Sobirin, Asmarun alias Lubar bin Jaswadi and Sutriono alias Godreg bin Lamija were processed by the trial. Asmarun and Sutriono were charged with maltreatment and violence against individuals under articles 170.1 jo. (in conjuction with) 351.1 jo. (in conjunction with) 55.1 of the criminal code, for allegedly maltreating a food carrier at the army research and development service (dislitbangad)s office. The four others were charged with violence against property under articles 170.1 and 406.1 jo. (in conjunction with) 55.1 for allegedly destroying the militarys entrance gate.
144
POM) about alleged abuses by the military forces in the incident. None of the perpetrators from the military have been held accountable. Please see further details at:
Recommendations 1. The government of Indonesia must ensure that effective investigations are launched into all cases of violence resulting from conflict over land ownership, in particular those in which allegations concerning human rights violations by the military are made. 2. The military must ensure that it upholds the moratorium on forced evictions and halt the use of threats of evictions against all persons, including retired military personnel living in State housing. human rights Defenders and freedom of Expression The climate for human rights defenders remains hostile, in particular in remote regions such as Papua or the Malukus, where they are arbitrarily branded as separatists, and then face arrest and torture. The continuing detention of around 40 such persons in the West Papua region, which the AHRC considers to be political prisoners, remains a key concern. Journalists, in particular those working on corruption issues faced deadly violence and arrest. Salamun case The Tual District Court acquitted the accused of the murder of Journalist Ridwan Salamun on March 11, 2011. Salamun died on August 21, 2010 when he was covering the communal clashes in Tual, Southeast Maluku as a camera man for SUN TV. A group of villagers had not welcomed his attempt to cover the event and attacked him. Police officers witnessed the assault against Mr. Salamun but did nothing to prevent it, effectively consenting to the violence. In the subsequent examination, the prosecution refused to recognize Mr. Salamuns capacity as a journalist during the clash. The case is currently being appealed at the Supreme Court. The AHRC published an urgent appeal on this case at:
Indonesia
145
Ambarita case On March 3, 2011, Banjir Ambarita, a Jakarta Globe and Vivanews. com journalist, was attacked and stabbed in front of the office of Mayor Entrop at 00:55 am in Jayapura, Papua. The attack is thought to relate to several of his articles denouncing sexual abuses committed by three Jayapura city district police officers against a female prisoner at Jayapura city district headquarters. Mr. Ambarita was riding his motorcycle in front of the Jayapura Mayors office, when two motorcycles reportedly approached him, stabbed him at least twice in the chest and stomach. He was taken to Marthen Indey Hospital in Aryoko, Jayapura, where he underwent surgery and has reportedly recovered since then. However, the perpetrators have still not been identified. According to Press Legal Aid Institute (LBH Pers), between January and July 2011, there were at least 61 cases of violence and at least 16 defamation lawsuits against journalists. Surabaya police beat journalists regional police cover up the case On May 7, 2011, the Surabaya District Police officers disbanded a Falun Gong parade activities covered by a number of journalists at Sedap Malam Street, Surabaya, East Java. Oscar Eko Nugroho, a journalist from the New Tang Dynasty newspaper, complained to the police about the unnecessary force used in disbanding the crowd, resulting in the police officers beat him. Journalists captured the event of Mr. Nugrohos beating and the officers present demanded that the journalists who were recording the incident by video stop their cameras. The Police then started beating journalists who did not obey this request. The journalists later reported the case to the Surabaya resort police. The East Java Regional Police who had later taken over the case gave a false announcement of a suspect being arrested and refused to apply law no. 40/1999 regarding the press in this case. The regional police instead filed the case as ordinary violence, trying to cover up the serious nature of this attack against freedom of the press. AHRC published an urgent appeal regarding this: Mr. Lukman is questioned by
police regarding the beating of http://www.humanrights.asia/news/urgent- a journalist in Surabaya, source: appeals/AHRC-UAC-120-2011 Surabaya Press Legal Aid Institute.
146
In 2011, two freedom of religion events, entitled Focus Group Discussions, held by Setara Institute were prevented by the Islamic defenders front (FPI), a hard-line Islamic group: on January 6, 2011, in Bandung, and on January 13, 2011 in Surabaya. In Surabaya the district police (Polrestabes Surabaya) also participated in preventing the discussion, stating the Setara Institute did not have permit to hold the meeting, even though the Setara Institute insists that no permit was needed. However, the next day, the chief of Surabaya police district denied that they prevented the discussion.
Human rights activist Usman Hamid being restrained by the presidential guard (Paspampres) during the commemoration of the 7th anniversary of the assassination of human rights defender Munir Said Thalib on September 7, 2011, source: KontraS
Furthermore, on September 19, 2011, in the Karang Gayam village in Omben district, Sampang, East Java, the Sampang district police arrested two members of Human Rights Watch, namely Indonesian Mr. Andreas Harsono, and Australian Ms. Tirana Hassan, who were conducting research on discrimination against the minority Shia community in Indonesia. Both of the victims endured nine hours questioning in the Sampang district police headquarters. Since no evidence of criminal activities were found, both of them were released. Paspampres violence against human rights activists During 2011, there were two cases of violence committed by the Presidential Guard (Paspampres) against human rights activists. On September 7, 2011, human rights activists were demonstrating in front of the Presidential Palace to commemorate 7 year anniversary of leading human rights activist Munirs death. The demonstration was forcibly disbanded when the protesters tried to approach the palace. Dozens of people, including the victims mother were pushed, beaten and kicked by police. Even Usman Hamid, Chairman of KontraS Board, was strangled by members of the Paspampres. Furthermore, another ten activists were attacked by the police and Paspampres.
Indonesia
147
On October 28, 2011, Ikbal Sabarudin, a student activist from Islamic Unity (Persatuan Islam/PERSIS) was beaten by members of Paspampres after he showed a poster listing demands for the government to eradicate corruption in front of the Vice President of Indonesia, Mr. Budiono, during a commemoration of youth pledges day in Siliwangi Stadion, Bandung West Java. Ikbal was injured to the head and body. He was also interrogated in Bandung Large City Police Office (Polwiltabes Bandung) before the police released him the following day. No judicial process has been conducted to punished the perpetrators. In another case, Tama S. Langkun, an Indonesian Corruption Watch (ICW) activist, was ambushed, beaten and stabbed on Thursday morning, 8 July 2010, at around 3:45am. It is thought the attack is linked to Mr. Langkuns work for ICW concerning 95 billion rupiah (USD 10.4 million) found in the police forces account. The assault happened less than a month after he submitted a report concerning this case to the Corruption Eradication Commission (KPK). The same day, the Indonesian President, Susilo Bambang Yudhoyono (SBY) promised to resolve the case. SBY also instructed the Indonesian Chief of Police, Bambang Hendarso Danuri, to investigate the assault against M r. L a n g k u n . H o w e v e r, u n t i l the end of 2011, the perpetrators have still not been identified and no investigation has been conducted by the South Jakarta district police.
Tama S. Langkun in hostipal, source: KontraS
Ongoing impunity for the murder of human rights defender Munir Human rights defender Munir Said Thalib was killed on September 7, 2004, aboard a Garuda flight to Amsterdam. An autopsy by the Dutch authorities found a lethal dose of arsenic in his system. After extensive judicial proceedings, which included a conviction in the first trial, an acquittal by the Supreme Court and a reversal of this decision through a case review, the person who committed the murder, Polycarpus Priyanto, has been serving a 20-year sentence since January 2008. Among those thought to be involved, however, only civilian actors such as those from the Garuda airlines management have
148
been brought to trial. Muchdi Purwoprandjono (known as Muchdi PR), the former deputy of state intelligence (BIN), who is considered to be responsible for soliciting and assisting in the killing of Munir, was acquitted by the South Jakarta Court on December 31, 2008. The trial failed to bring some witnesses to appear in court, and others who had provided incriminating statements to the police withdrew them. The Supreme Court later rejected the prosecutors appeal. The examination trial which was established in April 2009, after the decision of South Jakarta Court concerning the Muchdi PR case, stated in its conclusions that there were discrepancies in the judges decision. For example, the judge failed to take into account important evidence when issuing the verdict and failed to ensure that key witnesess appeared in the trial. However, no effective action has since been taken concerning these irregularities, which the AHRC believes resulted from political influence that has perverted the course of justice in this landmark case. In 2011, Pollycarpus, submitted a request for reconsideration (peninjauan kembali). Despite a lack of new evidence, the Ministry of Law and Human Rights reduced the sentence length by 9 months and 5 days without giving clear reasons for its decision. Attorney General Mr. Basrief Arief on 7 September 201123 stated that the investigation into Munirs case is finished. The AHRC is very concerned about this statement given the list of persons that were allegedly involved into Munirs assassination, but who remain free from prosecution. Terminating an investigation without having investigated all suspects and without any of the instigators having been convicted is tantamount to an Court reconsiders the case against Pollycarpus at the Jakarta Central District Court, source: KontraS obstruction of justice. In February 2011, the Supreme Court decided in favour of Suciwati (Munirs widow) in a civil lawsuit against PT. Garuda Indonesia, for abuses on Garuda flight GA-974 in September 2004, which caused the death of Munir. PT.
23 Statement of The Attorney General, Mr. Basrief Arief when answered the journalist question regarding commemorate the 7 years of Munir death, 7 September 2011.
Indonesia
149
Garuda is required to pay compensation amounting to 3, 38 billions rupiahs (around USD 375,000). This compensation is calculated based on the loss of Munirs income as the head of family, since he died on September 2004 until the retirement age of 65, Munirs postgraduate education costs that had already been paid and the education costs for Munirs children until graduation. The justice systems failure to hold responsible all the perpetrators in this highprofile murder case, notably its instigators, shows the extent of politicisation of the judicial, prosecution and policing systems, as well as the immunity that high ranking military and intelligence officials continue to enjoy. Recommendations 1. The Government of Indonesia must put a halt to all harassment, threats, raids and attacks on civil society groups and their offices, notably those formed by minority and indigenous groups. All allegations of violations against human rights defenders, including journalist working on human rights issues, must be fully and independently investigated and prosecuted; 2. In order to ensure transparency and effective protection of human rights, all restrictions must be lifted and full access must be granted to journalists, human rights and humanitarian organisations, notably concerning the Papuan provinces. Death Penalty 11 national laws and regulations, including the penal code, and subversion and corruption laws, provide for the death penalty. These are: 1. the Criminal code; 2. the Emergency law (UU darurat) No. 12 of 1951 regarding the use of firearms; 3. President resolution (penetapan presiden) No. 5 of 1959, regarding criminal acts that endanger the supply of food and clothing; 4. government regulations as a substitute to laws (Perpu) No. 21 of 1959 regarding economic crimes; 5. Law No. 11/PNPS/1963 regarding subversion; 6. Law No. 4 of 1976 regarding Amendment and Insertion of Provisions on Aviation Crimes and Crimes against Aviation Facilities and Infrastructure 7. Law No. 5 of 1997 regarding psychotropic substances; 8. Law No. 22 of 1997 regarding drugs/narcotics, 9. Law No. 31 of 1999 regarding corruption; 10. Law No. 26 of 2000 regarding the human rights court; and 11. Law No. 15 of 2003 regarding terrorism. The AHRC is firmly of the opinion that the death penalty is ineffective as a crime deterrent, and that death row and the application of the death penalty are inhumane practices and constitute human rights violations. According to the
150
coalition against death penalty (HATI), in 2011, eight people were sentenced in death in the country. This number is bigger than 2010, in which six executions were carried out. Moreover, the total amount of prisoners on death row is 116 people. The governments effort to protect its citizens abroad has been ineffective. Ruyati, an Indonesian migrant worker in Saudi Arabia was decapitated on July 18, 2011, without the knowledge of Indonesian embassy in the country. Although since the execution of Ruyati, the Indonesian government has established a task force of Indonesian migrant workers to defend Indonesian migrant workers facing death penalty, this institution has still not shown any significant results, as cases such as that of Tuti Tursilawati, an Indonesian migrant worker who is to be executed in Saudi Arabia, have shown. Since it was formed in July 2011, the task force has not made its work public. Recommendations 1. The GoI should immediately issue a moratorium on the application of the death penalty, and abolish the death penalty without further delay. 2. The GoI should prioritise country visits by the UN Special Procedures covering the following themes: human rights defenders, indigenous peoples, freedom of expression and torture. Other human rights issues Alongside the types of human rights issues and abuses highlighted in the sections above, the AHRC received a range of other abuses that speak to a system in which numerous violations are being perpetrated in Indonesia and are typically accompanied by impunity. For example, the AHRC notes with concern that in addition to the other 8 cases of extrajudicial killings by the Densus 88 special anti-terrorism unit, it also documented the killing of Mr. Syafrudin by the police in June 2011. Case: Police shoot man in the head, then claim he was trying to escape Syafrudin, a citizen from the Rokan Hilir district, Riau province, was shot after his arrest by members of the Persiapan Rantau Kopar Subdistrict Police (POLSEK) in Riau on June 2, 2011. According to the head of the the Persiapan Rantau Kopar Sub-district Police, Mr Sahdin Damanik, the police arrested Syafrudin because he was involved in a
Indonesia
151
drugs case. Sahdin told Asnawi, the victims brother, that Syafrudin had died from gunshot wounds when trying to escape. Safrudins family then went to the Duri regional general hospital (RSUD) to see Syafrudins corpse, which according to a hospital officer, was delivered by an unidentified person on June 3, at 7.50 am using a green hardtop Toyota car. The family found swelling on his body and bruises in the face and his chest was wounded, suggesting that he had been subjected to illtreatment or torture. There were two bullet wounds to the back of his head, suggesting a possible extra-judicial execution. Further case details are available here:
A protester demanding her labour rights suffered a miscarriage due to police violence Iis Suparti, an employee of PT Micro Garment, together with other 148 employees, was conducting peaceful protests on May 6, 2011, in the front of the factory in which they worked, concerning alleged violations of their labour rights. The protest was the latest of several protests and negotiations attempted by the factory employees to secure their rights. Despite the legal and peaceful nature of the protest, the chief of Solokan Jeruk sector police, Umar Said, grabbed the megaphone from Tri Rubiati Sanik, the Executive Chairman of Joint Center Solidarity of Workers Struggle (Pusat Gabungan Solidariats Perjuangan Buruh- GSPB-, the labour union), and threatened to arrest Ms. Sanik. In response, some of the protesting employees attempted to prevent such an act. Mr. Said then elbowed Mrs. Suparti, while one community guidance police (bimaspol) officer named Ayi, pushed her, causing her to fall. Mrs. Suparti, who was pregnant, was taken to the nearest hospital, where she suffered a miscarriage. Further case details are available here: http://www. humanrights.asia/news/urgent-appeals/AHRC-UAC-216-2011 Violence against women in the public transport system In 2011, violence against women in Indonesia became increasingly a public concern. This includes cases of rape and sexual harassment on public transport. In Jakarta, for example, a number of cases have been reported to the police about sexual harassment and rape in the Transjakarta Bus system.
152
The GoI has so far not effectively prevented cases of violence against w o m e n i n In d o n e s i a . Ja k a r t a Governor, Fauzi Bowo even stated that the rape and sexual harassment were the fault of women and that women shouldnt wear miniskirts or hot-pants in public if they dont want to be raped or sexually harassed.
Women protesters at the Miniskirt Demonstration in September 2011, source: Lia Marpaung
The lack of protection for women migrant workers The lack of State protection systems for women migrant workers affects hundreds of thousands of Indonesian women working overseas, mostly as domestic workers. According to data from the foreign affairs ministry received by the National Commission on Violence Against Women (Komnas Perempuan), 15 of the 23 Indonesian migrant workers who face death penalties overseas are women.24 The lack of monitoring and control during the recruitment process of migrant workers resultes in serious living conditions in migrant worker shelters while waiting for their placement abroad. President Yudhoyono, made a commitment to the International Labor Organizations (ILO) 100th conference on June 15, 2011, concerning the ratification of the Migrant Workers Convention25 and the revision of Law No. 39/2004 concerning the protection of Indonesian workers overseas. Such a review should ensure legal aid for migrant workers who face legal problems overseas including criminal cases and deportation. Impunity for gross violations of human rights Impunity remains a serious problem concerning a wide range of past and
24 Four crucial issues to fulfill women rights and eliminate discrimination and violence against women in Indonesia, press release by National Commission on Violence Against Women on 22 September 2011, http://www.komnasperempuan.or.id/2011/09/empat-isu-krusialpemenuhan-hak-asasi-perempuan-dan-penghapusan-diskriminasi-dan-kekerasan-terhadapperempuan-indonesia/ 25 Indonesia signed the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families on September 22, 2004 but has not ratified it until now.
Indonesia
153
current human rights violations in Indonesia. Impunity accompanies ongoing problems including torture, violence and discrimination a g a i n s t w o m e n a n d re l i g i o u s o r e t h n i c minorities, as well as attacks on human rights defenders. Past violations continue to leave victims without remedies and perpetrators continue their work in politics and State institutions. While the President of Indonesia in March 2008 expressed his commitment to support victims struggles for justice and ensure the punishment of all perpetrators26 of serious human rights violations under the Suharto regime, no judicial progress is being made in providing effective remedies to victims or bringing those responsible to justice.
Despite numerous promises to take effective action concerning impunity, only two cases of gross violations of human rights have been brought before an Ad Hoc Human Rights Court: the Tanjung Priok case (1984) and Timor Timur case. The trial only punished lower ranking officers but failed to punish the main perpetrators. Until now, there are several past human rights violation cases that are still pending with the Attorney General Office (AGO). List of gross violations of human rights that are pending with the Attorney General Before 2000 1965: After Suhartos coup, millions of persons considered to be supporters of the Indonesia Communist Party (PKI) were killed or detained for decades without a legal process. Their stigmatization is ongoing to date. Extra-judicial killings occurred between 1981 and 1984 as part of military operations in some provinces of Indonesia. Komnas HAM estimated 5000 persons were killed.
Victims of the 1998 May Riots submitting letters to call for accountability and recognition of the violations they suffered, August 15, 2011, source: KontraS
26 The President made this statement in a meeting on March 26, 2008 with NGO KontraS and victims of human rights violations.
154
Talangsari case (February 7, 1989): Members of the Army in the Lampung province attacked the Talangsari village due to the alleged threat of Islamism there. 246 people were killed. The AGO has refused to start a judicial investigation. Trisakti and Semanggi I+II incidents: On 12 May 1998, the armed forces shot dead four students at the University of Trisakti in Jakarta during a demonstration to urge political reform. In November, 14 students were shot dead and 109 people were injured by the army. In September 1999, the army killed 11 student activists. May Riots (13 - 15 May 1998): The May 1998 riots and widespread looting occurred in several places in the country. The security forces failed to take action to halt the large-scale rapes and attacks against the Indonesian-Chinese population. Since the enactment of the Human Rights Court Law in 2000: Abepura case (December 7, 2000): The police conducted an operation against local residents and university students in Abepura, Papua province, to find the perpetrators of an earlier attack on the Abepura police station. This reportedly lead to torture, police violence, extrajudicial killings, forced evictions, arbitrary arrests and detentions, and unfair trials. Despite Komnas HAMs findings, only two suspects were indicted and later acquitted. Wasior case (June 13, 2001): Following an attack on the police, a police operation by Manokwari district police in Papua led to grave human rights violations. Wamena case (April 4, 2003): Following a break-in at a local army base and theft of weapons, the Kodim (military command) responded with an operation during which torture, shootings, summary executions, and the burning of a school and clinic took place. Recent cases of violence in the West Papuan highlands gave more evidence of the systematic nature of human rights violations committed by security forces against indigenous Papuans. The AHRC is of the view that the situation in Papua, consisting of intimidation, destruction of property, arbitrary arrests and detention, torture and extra-judicial killings, amounts to a gross violation of human rights. The AHRC therefore urges Komnas HAM to conduct inquiries
Indonesia
155
regarding these violations with a view to bringing the situation into the human rights court process. The GoI has not prioritised past cases of gross violations such as the Talangsari incident (1989), the May Tragedy of 1998, Semanggi I and II (1998-1999) or the abduction and disappearance of pro-democracy activists in 1997/1998. Developments in 2011 The initiative to establish a special team to address impunity for past gross violations of human rights (tim penyelesaian kasus pelanggaran HAM Berat) in 2011 by the President is appreciated. However, the performance of the team, which is lead by the Coordinating Minister for Politics, Law and Security Affairs (Menkopolhukam), Djoko Suyanto, should be monitored in order to ensure that it is working effectively and in accordance with the demands of victims of human rights violations and their families. A victims groups initiative grew considerably after Mrs Ruminah, the mother of Gunawan (a victim of May Tragedy in 1998), wrote to the President to express her disappointment about the lack of progress in her childs case. Other families of victims followed this, and by August 2011, around 1257 letters by victims and their families from all over Indonesia were sent to the President. However, the President did not appear for a formal reception of the letters. Komnas HAM, after having formed a team in 2008 and having conducted investigations for more than 3 years, finally announced the conclusion of its work regarding the 1965/1966 Victim from the 1965 massacre case in 2011. A total of 357 victims from during the submission of a mass several areas in Indonesia have had their cases letter collection to the president investigated by the team. The investigation report in August 2011 on the occasion of the Indonesian Independence was not released in July as announced, but has Day, source: KontraS been delayed since then. No time-frame for the release of the report has been provided, and the victims fear further delays will occur preventing their cases from being brought to the human rights court in the near future.
156
The UN Human Rights Council established the mandate of a special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence on September 26, 2011. The AHRC welcomes this important step and calls on the GoI to support this mandate in its work and to ensure that recommendations by the mandate on measures of judicial and non-judicial assistance to victims relating to transitional justice mechanisms that deal with gross human rights violations are fully implemented at the national level, based on international human rights and humanitarian law. On November 3, 2011, Komnas HAM started to grant certificates of status as a victim of abduction and enforced disappearances in Indonesia. This important step is welcomed, but remains unmatched by accountability measures in the cases of the 1997-1998 abductions and enforced disappearances. The certificate is expected not only to address issues of civil administration, civil and other related legal matters, but is also part of the States recognition of the violation and the ongoing disappearance of 13 persons. The certificate also obliges the government to immediately conduct a search for those who remain missing and to ensure legal certainty and rehabilitation for victims and their families. The signing by Indonesia of the International Convention for the Protection of All Persons from Enforced Disappearance in 2010 was not followed by its widely demanded ratification in 2011. This is despite the inclusion of the ratification of this convention in Indonesias 2011-2014 National Plan of Action (RANHAM). Legal framework and challenges Under the Human Rights Court Law (No. 26/2000), bringing past human rights abuses that occurred before 2000 to such a court involves the following actors: Komnas HAM (conducts inquiry), the Attorney Generals Office (investigates), the house of representatives (makes recommendations based on judicial investigations), and the President (passes a decree to set up an adhoc court based on recommendations made by the house of representatives). A major impediment to the implementation of this law is the AGOs refusal to take action to investigate cases until specifically
Maria Katarina Sumarsih in front of the presidential palace calling for justice of her son who was killed by the military during the Semanggi I incident of 1998, source: KontraS
Indonesia
157
mandated to do so by the House of Representatives or the President. The AGO is using an erroneous interpretation of Article 43 of Law No. 26/2000 (Human Rights Court Law) to justify its inaction, calling for prior action by the house of representatives and President before the AGO takes action.27 This is despite the fact that the law does not put any such requirements on the AGO and that a related Constitutional Court judgement (18/PUU-V/2007) clearly stated that a judicial investigation by the AGO has to be conducted before the House of Representatives can take other steps. The AHRC is of the opinion that the house of representatives and President do not have competence as judicial bodies and that the process should be one based in the first instance on inquiry by Komnas HAM and investigation by the AGO, before the house of representatives and President are called upon to play a role. The AGO is ignoring the Constitutional Court judgement and is therefore obstructing the process due to an erroneous interpretation of the law and process, and is therefore directly responsible for the continuing problem of impunity in Indonesia. Recommendations 1. The President must take appropriate action to uphold the Constitutional Courts judgement and the Attorney Generals Office must abandon politically motivated and erroneous interpretations of the Human Right Court Law that are stalling its implementation and ensuring continuing impunity. They must ensure the investigation and prosecution of all admissible cases, according to the law, and give full support to all efforts being made to bring cases of gross human rights violations before a human rights court. 2. The special team to solve all past human rights violation cases should work effectively and timely in accordance with the demands of victims and family victims to solve all human rights violation cases. 3. Komnas HAM should announce the results of the team investigation for the 1965/1966 case by publishing the report without delay and forward it to the AGO for a judicial investigation. 4. The GoI should ratify without delay the International Convention for the Protection of All Persons from Enforced Disappearance
27 Article 43 (2) Law No.26/2000 regarding Human Rights Court stated that An ad hoc human rights court as referred to in clause (1) shall be formed on the recommendation of the House of Representatives of the Republic of Indonesia for particular incidents upon the issue of a presidential decree.
158
legal & Institutional reforms Police Reform Despite the enactment of new police internal regulations28 in 2009, human rights abuses by members of the police, including torture, continued unabated. A lack of professionalism, command responsibility and enforcement of human rights principles, allows for various violations by the police to continue with impunity. While the new internal regulations prohibit the use of torture very expressively, members of the police have not been sufficiently educated and trained concerning the regulations, and these are not being effectively enforced. The police enjoys impunity in many cases of human rights violations and prosecutors often refrain from initiating criminal procedures against police personnel in cases where the police internal disciplinary mechanism - the division for profession and security (PROPAM) - has started to look into complaints. However, PROPAM does not enable a judicial remedy and is failing to implement its mandate. PROPAM is an internal police mechanism, and the only one mandated to hold members of the police accountable for violating police regulations. The mechanism lacks transparency and adequate disciplinary responses, and victims
Photo: Indonesian Police, source: KontraS

28 Regulation of the Chief of the Indonesian National Police no.8/2009 regarding Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police.
Indonesia
159
have no rights beyond making a complaint. PROPAM should be reformed to ensure a transparent process, adequate punishments and access by victims and their representatives to PROPAM trials. To ensure human rights compliant police operations and to end torture, it requires better budgeted capacity building programmes for investigation techniques and interview procedures. An external body such as the National Police Commission (KOMPOLNAS) should be mandated to investigate, monitor and supervise the PROPAM mechanism and be given other necessary powers to ensure its effectiveness. The police should introduce a vetting mechanism which ensures that violations of police regulations such as the use of torture are being formally taking into consideration when deciding on the promotion or mutation of staff. While the national police commission (KOMPOLNAS) has since 2005 only been mandated to collect data and analyse it, provide advice regarding the police to the President, and to receive suggestions and complaints from the public,29 KOMPOLNAS was mandated with three additional functions in 2011. On March 4, 2011, Presidential Regulation (Peraturan Presiden) No. 17/2011 authorised it to request data and information from members of the Indonesian police, government institutions and the public, in order to inform the president on police matters. While the commission was earlier only allowed to forward complaints from the public to the police, it is now also mandated to examine and monitor the follow-up to these complaints. Moreover, the body is now also authorised to demand a re-examination or additional examinations of police personnel who are considered as having violated police regulations or discipline. While the extension of the police commissions functions is welcomed, the AHRC also noted that their implementation is weak According to KOMPOLNAS, up to the middle of 2011, the body had failed to followup on 481 public complaints it had received and forwarded. They also stated that the Indonesian police had only responded to 38 complaints. The police has only responded to KOMPOLNAS to inform them that the number of complaints received had decreased compared to the previous year and did not give substantive responses concerning specific cases. The Chief of the Indonesian National Police Regulations No.16/2010 regarding Procedures for Public Information Services in the Indonesian
29 These three functions are based on presidential regulation no. 17/2005.
160
National Police (Peraturan Kapolri tentang Tata Cara Pelayanan Informasi Publik di Lingkungan Polri) which implementats Law No.14/2008 concerning the Disclosure of Public Information (UU Keterbukaan Informasi Publik), could be an effective tool to monitor the status of criminal proceedings and police investigations and could assist in addressing impunity. The effective implementation of the regulation that corresponds to victims rights should be ensured at all levels of the police. An Information and Documentation Manager (PPID) should be assigned to every police station for example to allow for inquiries into the status of criminal proceedings. The police should allocate more resources and devise programmes that can effectively and measurably increase the capacity in investigation techniques and interview procedures to further reduce the resort to torture as a means of investigation. The new standard operating procedures regarding crowd control allows for the use of firearms by police against unarmed civilians. The frequently reported cases of excessive violence against protesters raise concerns about the impact of such provisions on protesters rights. Finally, to ensure gender equality and reduce cases of gender-based victimisation of women by the police, the ratio of female staff in the force must be increased. Recommendations: 1. An effective dissemination strategy has to be budgeted and implemented, including for the new police regulation, which must be included in a compulsory education system for police personnel to familiarise and train police officers in its provisions. 2. The internal police mechanism PROPAM should be reformed to ensure its transparency, effectiveness of disciplinary measures given, and respect for victims right to an effective remedy. 3. An external body, such as the National Police Commission (KOMPOLNAS) should be mandated to investigate, monitor and supervise PROPAM. 4. Effective criminal investigation technology and training must be budgeted for and provided to allow for the modernisation of the polices practices, including as an essential component of efforts to eliminate the widespread use of torture. 5. The police should introduce a vetting mechanism which ensures that violations of police regulations such as the use of torture are being formally taken into consideration when deciding on the promotion or transferal of personnel.
Indonesia
161
6. The new standard operating procedures regarding crowd control should be reviewed to ensure the prevention of human rights abuses. 7. The full implementation of the police regulations regarding Freedom of Access to Public Information needs to be implemented by assigning officers responsible for its implementation to all police stations, enabling public inquiries as foreseen in the regulations. 8. The proportion of women in the police in Indonesia should be noticeably increased and gender mainstreaming conducted. Prosecutorial commission The Prosecutorial Commission that was formed in 2011, based on presidential regulation No.18/2011, consists of nine commissioners. It is mandated to receive and follow up on complaints, to monitor and investigate the work of prosecutors, to reports to an internal prosecution supervisor (Pengawas Internal Kejaksaan) and to make recommendations regarding promotions and punishments to be handed out to Indonesian prosecutors. Civil society groups and the public have been disappointed by the commissions passive approach towards the implementation of its mandate. The commission has typically only taken action concerning cases it has received, but has not been pro-active in monitoring and investigating prosecutors or seeking to improve the performance of the Indonesian prosecution system. An example is the bribery case involving Sistoyo, the prosecutor in the Cibinong Public Prosecutors Office (Kejaksaan Negeri Cibinong), who was arrested by the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK) on November 21, 2011 for allegedly accepting a bribe from fraud suspects. Recommendation: The Prosecutorial Commission must be strengthened and be more pro-active in monitoring and investigating the work of prosecutors. It should actively seek to improve the performance of the Indonesian prosecution system. Judicial reform and the fight Against corruption Corruption in the judiciary is a major cause for impunity for perpetrators of religious violence, arbitrary detention, torture, or land and mining disputes. Despite the work of the Anti-Corruption Commission (KPK) for several years, judicial corruption remains rampant in Indonesia.
162
The Judicial Mafia Task Force that the President set up by decree in 200930 has acted in several cases of bribery, but continues to face resistance from the police, prosecution and judiciary, which it has been set up to oversee. The Judicial Mafia Task Force is mandated to ensure the coordination, corrective evaluation, and monitoring of legal mafia eradication efforts to ensure their effectiveness. To perform its functions, the Task Force is expected to cooperate with the corruption eradication commission (KPK), the Attorney General, the police, and the Judicial Commission, whose role is the supervision of judges performance and corruption in the judiciary. Finally the Task Force is also expected to cooperate closely with the Prosecutorial Commission, which is mandated to supervise prosecutors performance and corruption in the prosecution system. So far, the Task Force has monitored and evaluated judges in the Bandung Corruption Court, who granted controversial acquittals in cases of corruption. In another case, Mr. Aan Susandi from the Papua regional police, was accused by prosecutors and judges of involvement in crimes related to drugs. The Task Force faces heavy criticism and resistance. On June 22, 2011, several supporters of Petition 28 challenged the Presidential Decree on the Eradication of Judicial Mafia at the Supreme Court, alleging that setting up such a Task Force would have a destructive effect on the judicial system in Indonesia. The Task Force was also criticised for carrying out functions that have been the domain of the police and the Attorney Generals office, such as carrying out investigations. The Supreme Court rejected the petition, explaining that presidential decrees cannot be subjected to review. Since the Judicial Commission (Komisi Yudisial/KY) started to work in 200531, it faced repeated conflicts with the Supreme Court (Mahkamah Agung/ MA), who saw the commissions mandate as interfering with its authority and mandate. The recommendations the Judicial Commission made to the Supreme Court concerning code of conduct violations committed by judges have been rejected by court, which argued that it considers this work as an overlap with its own authority and a judicial technical area, which it sees as its own jurisdiction. These conflicts between the MA and the KY are caused by the unclear position of KY the Indonesian framework of separation of powers, as the commission is seen to stand between the executive and judiciary. It is supposed to partner up with the Supreme Court on the one side but has to supervise it on the other.
30 Presidential Decree No. 37/2009 (Keppres) on the Eradication of Judicial Mafia. 31 The presidential decree No. 1/P/2005 regarding the appointment of members of judicial commission for 2005-2010.
Indonesia
163
Law no. 18/2011 tried to resolve this problem by replacing the original Judicial Commission Law no. 22/2004, but failed to satisfy its critics. The new law does not authorise the commission to sanction any judge but can only make a binding recommendation to the Supreme Court to do so. It is feared that the court in turn will reject such recommendations based on its earlier argument rejecting the KYs authority. Recommendation The GoI should ensure that all anti-corruption measures, including the work performed by the KPK and the Judicial Mafia Task Force, are given full support and sufficient resources to allow for tangible results in efforts to reduce widespread corruption in the justice sector. Witness Protection The Witnesses and Victims Agency (Lembaga Perlindungan Saksi dan Korban/ LPSK) was established by Law No.13/2006, but, due to a lack of resources, has been unable to provide protection to victims, witnesses and whistle blowers during court cases. Furthermore, there is no specific article in the Criminal Procedure Code (KUHAP) that provides for the protection of victims and witnesses. As the KUHAP is the core code that underpins the criminal justice system, this absence means that the LPSK and the protection it provides, is not considered as essential by the authorities, even though evidence suggests that the lack of effective witness protection is a key factor in allowing for the continuing system of impunity in Indonesia. Recommendations 1. The Criminal Procedure Code must be revised to include provisions for the protection of victims and witnesses 2. The Victims and Witness Protection Agency must have sufficient resources to fulfil its mandate effectively Intelligence law Indonesias State intelligence agency (Badan Intelijen Negara/BIN) has frequently been involved in human rights violations. According to civil society findings, key perpetrators of the 2004 murder of human rights defender Munir were part of this institution. The body is criticised for its politicisation, lack of civilian oversight and the impunity that its members enjoy for human rights abuses and criminal acts.
164
On October 11, 2011, all political factions in Commission I of House of Representative (DPR) ratified the draft Intelligence Bill. The Bill was adopted despite strong public criticism, including by human rights groups. This new intelligence law contravenes earlier efforts to establish internal accountability measures within the State intelligence agency.
The Indonesian house of representatives discusses the Intelligence Bill, source: KontraS
The law allows the intelligence agency to intervene in cases where State secrets have been published, without providing any definition of the terms of the process used to classify information as such. This provides the agency with wide powers of discretion and is expected to result in arbitrary arrests and violations of the freedom of expression. The law furthermore places the responsibility for leaks of State secrets on the civilian actors, such as the press, instead of the State institutions themselves. Without providing limitations or restrictions to this power, the law generally allows for surveillance measures in very broad terms and is expected to result in abuse. As the head of the intelligence agency is to be appointed by the House of Representatives instead of by an independent commission, ongoing heavy politicisation of the agency is expected. The law does not provide for effective supervision of the body, which has been one of its key shortcomings to date. A coalition of domestic NGOs and victims of violence and human rights abuses had planned to launch a judicial review of the Bill in late December 2011. The articles that will be included in the judicial review are those that threaten civil liberties and human rights. Recommendation The state intelligence law must be reviewed and the house of representatives should ensure that an amended law that ensures the respect for human rights and provides for effective civilian oversight and depoliticisation of the body is passed. National Security Bill On June 18, 2011, the GoI submitted a bill concerning a National Security Law to the House of Representatives (DPR). Since June 27, 2011 the house of
Indonesia
165
representatives has discussed the bill and had planned to pass it by the end of 2011. The bill aims at providing a national security policy in cases of threats to the nation and aims at clarifying the role of State institutions such as the military, police, intelligence agency and other institutions during periods of national threat. A state of national threat can be declared concerning the country or individual provinces by the National Security Council, which consists of members of the government and the heads of the army and police. The bill includes vague language as well as a long list of issues that can justify the declaration of a national security threat, including unarmed threat that endanger the individual and public safety or state, such as social movements, protests, strikes, injustice, or poverty. According to the bill such situations are then to be responded to by the security forces, such as military and police. The bill does not include provisions for intelligence officers to: respect law and human rights; be apolitical; work impartially and indiscriminately; or refrain from engaging in commercial businesses. The bill also overlaps with other laws, such as the law on intelligence, which also grant special powers to the security forces when investigating, carrying out surveillance or arresting persons suspected of being a threat to national security. Moreover, no complain or compensation mechanism in this bill is provided. The AHRC fears that the bill may allow the authorities to arbitrarily declare a state of national security threats in crisis provinces such as Papua, and will provide the security forces with greater scope of action and impunity, and therefore result in more human rights violations. It is expected to allow for abuses of power by the government and provide it with powers as seen during Suhartos authoritarian New Order regime. Recommendation The bill concerning a National Security Law must be reviewed in consultation with civil society groups and be equipped with clear, precise language and effective safeguards concerning human rights and legal protections. land Acquisition for Development Bill Currently, the house of representatives is discussing a bill concerning Land Acquisition for Development (Pengadaan Tanah), which includes provisions for land acquisition for development for public and private business interests. The substance of the bill is largely based on Presidential Regulation. No. 36 of 2005 and Presidential Regulation No. 65 of 2006 on Land Acquisition
166
for Development for the Public Interest. These earlier regulations are seen by human rights groups as being instruments that enable forced evictions, and that lack protection concerning human rights. Problems remain in this bill, however, notably the lack of safeguards, which require the bill to be reviewed further in order to ensure that the planned land allocation process does not result in further human rights violations. For example, community rights to land are not formally recognised or fully implemented. Land allocation processes are not yet participatory or consistently implemented. Public access to information from public institutions is not sufficiently provided. The lack of mechanisms to object against land appropriation makes challenging business and State interests difficult, and the country lacks an independent judiciary that is free from corruption that could resolve land disputes impartially. The AHRC is concerned that the endorsement of this bill will further perpetuate the practices of human rights violations that occur as part of land acquisition processes, such as intimidation, beatings, shootings, and fabrication of criminal charges by State institutions against protesters and traditional land holders. Based on the current text, this bill will not allow for fair, participatory and democratic development. Recommendations 1. The bill on Land Acquisition for Development should be reviewed to include recognition of community ownership, provide participatory and transparent processes for land acquisition, and a clear mechanism to allow persons to object against land appropriation. 2. Corruption in the judiciary must be addressed more effectively to ensure that conflicting land interests between businesses and farmers are resolved impartially, based on law and human rights. Public Information Disclosure law Law No. 14/2008 concerning public information disclosure sets up an information commission that would respond to requests from the public for access to information by communicating these to the relevant institutions. Requests for access to information have steadily increased since 2008, reaching 120 requests in 2010 and a similar amount in only the first three months of 2011. This law and its process can make an important contribution to participation and transparent governance that respects citizens rights, including in security institutions like the police.
Indonesia
167
The access to information process has been criticised since it is often fails to deliver the sought access. The commission faces difficulties in obtaining information from the institutions that are meant to respond to its requests under the law. The law also requires all public agencies to prepare for such requests until 2010 by, inter alia building a system of documentation, issuing internal regulations, appointing internal Information and Documentation Managers (PPID), and by classifying information as public and confidential. By October 2011, only 12 percent of the about 700 public agencies, including most ministries and the national police, have appointed a PPID. Other required measures are typically lacking. Recommendation The GoI should ensure that all public institutions immediately implement the requirements set out by the law on access to public information and ensure that any requests received by the information commission are responded to in a timely manner with the correct information. Any lack of compliance with the commission by institutions should lead to sanctions against those responsible. Military reform According to the Law on Military Courts, members of the military that commit crimes against civilians, such as extrajudicial killings or torture, can only be held accountable by the militarys justice systems. Military courts are not open to the public, are notorious for only giving lenient punishments, and show a clear lack of impartiality. The military criminal code does not include torture as defined in the Convention against Torture. The case of torture by the military of Mr Tuanliwor Kiwo in 2010, an indigenous Papuan suspected of supporting rebel activities, was recorded on video and subsequently published. The case caused wide condemnation of the military. However, as of the end of 2011, the perpetrators in this widely known case were not held accountable for their use of torture - they only received sentences resulting from a military trial ranging from 5 to 7 months for violating their superiors orders. The Military Court Law should be reviewed to ensure that members of the military are brought exclusively before a competent, objective and impartial civilian court that is compliant with the internationally-accepted standards of fair trial, including public access to the process, in cases of human rights abuses by members of the military against civilians. A review of the law should
168
include specific articles on the separation of competencies of military internal mechanisms and external judicial processes. Law no 34/2004 regarding the Indonesian National Army already requires such a review through legislation to ensure that military personnel can be brought before a civilian court where relevant. Such a legislative review has been pending since 2004. The a lack of a vetting mechanism has allowed the promotion of key perpetrators of human rights, who remained in high ranking positions in 2011. The presidential appointment of Lieutenant General Sjafrie Sjamsoeddin - who is an alleged perpetrator of gross violations of human rights in relation to the the 1998 May Riots - as Deputy Defense Photo: Appointment of Syafrie Sjamsoeddin by the Minister32 in 2010, through president as deputy defence minister despite his Presidential Decree (Keppres) responsibility for serious cases of gross violations of No. 3/P 2010, was heavily human rights in the past, source: KontraS criticised. Although victims of past human rights violations and their family members, together with several human rights NGOs in Jakarta, filed a lawsuit to repeal the Presidential Decree at the State administrative court on April 5, 2010, it was rejected on September 6. In another case Pramono Edhie Wibowo (Army Strategic and Reserve Command C-in C/Pangkostrad) was appointed as the new Army Chief of Staff (KSAD), allegedly due to his family connections.33 Wibowo is alleged to share key responsibilities in the military operations in East Timor in 1999 that caused gross violations of human rights and humanitarian law. At that time, he served as the commander of anti-terror unit Kopassus Group 5 (Special Armed Forces). The introduction of a vetting mechanism would thus allow the formal consideration of the track record concerning human rights of members of the military in decisions regarding promotion.
32 Presidential Decree (Keppres) No. 3/P 2010. 33 Wibowo is the brother in law of the president.
Indonesia
169
Recommendations: 1. The Military Court Law must be reviewed to ensure that members of the military that commit human rights violations against civilians, including grave violations such as torture and extra-judicial killings, are exclusively brought before civilian courts that can guarantee impartial and fair trials. The law must also be reviewed to remove any provisions that grant immunity and impunity to military personnel. 2. A vetting mechanism should be introduced to monitor and promote human rights compliance by military personnel, which should be taken into consideration when deciding on promotions within the military. International Instruments The signing of the International Convention on the Protection of All Persons from Enforced Disappearance in September 2010 is welcomed, however, none of the other instruments that were recommended for ratification by States during Indonesias UPR review in 2008 have been signed or ratified as had been promised by the government at that time. The GoI has deferred the ratification of these treaties to the 2011-2014 NPA. Concerning Indonesias 2005 - 2009 National Plan of Action (NPA), key components such as the ratification of international instruments, the review of the Penal Code and other pressing legislative measures were not implemented by late-2011. No credible successor plan or implementation strategy has been devised since the end of 2009 to ensure that such reforms are carried out. Given the previous NPAs failure to deliver in many key areas, serious doubts remain concerning the credibility of the current NPA and the likelihood of it delivering expected outcomes. As will be seen below, many human rights violations related to these instruments continue to be perpetrated in Indonesia. Recommendation: The GoI should ratify without delay the remaining international human rights instruments included in accepted recommendations from the first UPR cycle. conclusion The report above details a range of violations and the problem of continuing impunity. The AHRC urges the government to tackle reforms and halt violations. The steps taken towards greater oversight of the judiciary, the prosecution and the police by reforming the respective monitoring commissions are important developments. However, to address the ongoing
170
serious violations by security forces, further reforms that ensure accountability are required. Finally, the GoI should make more efforts to ensure that the Indonesian Constitution and its fundamental safeguards form the basis of all laws, decrees, regulations and actions by State institutions in order to end the spiral of fundamentalist violence against minorities. In this regard, the AHRC urges the Government of Indonesia to fully implement the recommendations included in this report. Glossary and Acronyms Laws
Name of the Law (english) National Security Intelligence Bill status Review by House of Representative Ratified by House of Representative on Oct 2011 in force in force Drafting in House of Representative No. 17 Year 2011 Number Name of the Law (indonesian) Keamanan Nasional Undang-Undang Intelijen Kitab Undang-undang Hukum Acara Pidana Kitab Undangundang Hukum Pidana Pengadaan Tanah bagi Pelaksanaan Pembangunan untuk Kepentingan Umum Keterbukaan Informasi Publik Pemerintahan Aceh Peradilan Militer Kitab Undang-undang Pidana Militer Komisi Yudisial Pengadilan Hak Asasi Manusia Kepolisian Negara Republik Indonesia
Criminal Procedure Code Criminal Code Land Acquisition for Development
No.8 Year 1981 -
Public Information Disclosure Governance of Aceh Military Court Military Criminal Code Judicial Commission Human Rights Court Indonesian Police
in force in force in force in force in force in force in force
No. 14 Year 2008 No. 11 Year 2006 No. 31 Year 1997 No. 39 Year 1947 No. 18 Year 2011 No. 26 Year 2000 No. 2 Year 2002
Indonesia
171
Mass Organization The Witnesses and Victims Agency The Prevention of Religious Abuse and/or Defamation The Implementation of the Special Status of Aceh
in force in force in force
No. 8 Year 1985 No. 13 Year 2006 No. 1/PNPS/1965
in force
No. 44 Year 1999
The Special in force Autonomy of Aceh Indonesian in force National Military The use of fireamrs in force Subversion Amendment and Insertion of Provisions on Aviation Crimes and Crimes against Aviation Facilities and Infrastructure repealed in force
No. 18 Year 2001
No. 34 Year 2004 No. 12/DRT/1951 No. 11/PNPS/1963 No. 4 Year 1976
Psychotropics Drugs/narcotics
in force No. 5 Year 1997 Amendment with No. 22 Year 1997 Law No. 35 Year 2009 concerning Narcotics Eradication of the in force No. 31 Year 1999 Criminal Act of Corruption Terrorism in force No. 15 Year 2003
Organisasi Kemasyarakatan Lembaga Perlindungan Saksi dan Korban Pencegahan Penyalahgunaan dan/atau Penodaan Agama Penyelenggaraan Keistimewaan Propinsi Daerah Istimewa Aceh Otonomi Khusus bagi Provinsi Daerah Istimewa Aceh Tentara Nasional Indonesia Penggunaan Senjata Api Subversi Perubahan dan Penambahan Beberapa Pasal dalam KUHP bertalian dengan perluasan Berlakunya Ketentuan Perundang-undangan Pidana, Kejahatan Penerbangan, dan Kejahatan terhadap Sarana/Prasarana Penerbangan Psikotropika Narkotika
Pemberantasan Tindak Pidana Korupsi Terorisme
172
The Protection of in force Indonesian Workers Overseas Ratification of the in force International Covenant on Civil and Political Rights Presidential Regulation Name of the status Presidential Regulation (english) President in force resolution regarding criminal acts that endanger the supply of food and clothing
No. 39 Year 2004
No. 12 Year 2005
Penempatan dan Perlindungan TKI di Luar Negeri Pengesahan ICCPR (Kovenan Internasional tentang Hak-hak Sipil dan Politik)
Number
No. 5 of 1959
Presidential Regulation concerning National Police Commission Presidential Regulation concerning Prosecutorial Commission Presidential Regulation on Land Acquisition for Development for the Public Interest
in force
No. 17 Year 2011
Name of the Presidential Regulation (indonesian) Penetapan Presiden tentang Wewenang Jaksa Agung/Jaksa Tentara Agung dan tentang Memperberat Ancaman Hukuman terhadap Tindak Pidana yang Membahayakan Pelaksanaan Perlengkapan Sandang-Pangan Peraturan Presiden tentang Komisi Kepolisian Nasional
in force
No.18 Year 2011
Peraturan Presiden tentang Komisi Kejaksaan
in force
No. 65 Year 2006
Peraturan Presiden tentang Pengadaan Tanah bagi Pelaksanaan Pembangunan untuk Kepentingan Umum
Indonesia
173
Presidential in force Decree concerning the Eradication of Judicial Mafia Task Force Presidential Decree in force concerning the Appointment of Members of Judicial Commission for 2005-2010 Presidential in force Decree concerning the Appointment of Lieutenant General Sjafrie Sjamsoeddin as Deputy Defence Minister
No. 37 Year 2009
Keputusan Presiden tentang Satuan Tugas Pemberantasan Mafia Hukum Keputusan Presiden tentang Pengangkatan Anggota Komisi Yudisial periode 2005 - 2010
No. 1/P/2005
No. 3/P/2010
Keputusan Presiden tentang Pengangkatan Letnan Jenderal Sjafrie Sjamsoeddin
Local Regulations
Name of the Local Regulation (english) Local Regulation concerning Jakarta Tourism DKI Jakarta Governors Decision (KEPUTUSAN GUBERNUR) concerning Time Implementation of the Tourism Industry in Jakarta South Sulawesi Governors Circulation Letter (Surat Edaran Gubernur) status Number Name of the Local Regulation (indonesian) Kepariwisataan DKI Jakarta Waktu Penyelenggaraan Industri Pariwisata di Propinsi Daerah Khusus Ibukota Jakarta
in force
No.10 Year 2004
in force
No. 98 Year 2004
in force
No.223.2/803/ kesbang
Penanganan Masalah Ahmadiyah
174
Kampar, Riau District Regulation (Peraturan Bupati) Pandeglang, Banten District Regulation Samarinda, East Kalimantan Mayors Decree (Surat Keputusan Walikota) East Java Governor Regulation (Peraturan Gubernur) West Java Governor Regulation (Peraturan Gubernur) Bogor, West Java Mayors Decree (Surat Keputusan Walikota) Depok, West Java Mayors Regulation (Peraturan Walikota) Aceh Provincial law concerning adultery Government regulations as a substitute to laws (Perpu) regarding economic crimes Joint Minister Decree of the Minister of Religious Affairs, the Attorney General, and the Minister of the
in force
in force
in force
No.450/PUM/2011 Menghentikan /68 Kegiatan Jemaah Ahmadiyah No.5 Year 2011 Larangan Aktivitas Ahmadiyah di Kabupaten Pandeglang No. 200/160/ Perintah Penghentian BKPPM.I/II/2011 dan Penutupan Aktivitas JAI di Samarinda No.188/94/KPTS /013/2011 Larangan Aktivitas JAI di Jawa Timur
in force
in force
No.12 Tahun 2011
Larangan Kegiatan JAI di Jawa Barat
in force
No.300.45-122/ 2011
Larangan Aktivitas JAI di Bogor
in force
No. 9 Year 2011
Larangan Kegiatan JAI di Kota Depok
in force
No. 14 Year 2003
Khalwat (Mesum)
in force
No. 21 Year 1959
Memperberat Ancaman Hukuman Terhadap Tindak Pidana Ekonomi Peringatan dan Perintah kepada Penganut, Anggota dan/atau Anggota Pengurus Jemaat Ahmadiyah Indonesia (JAI) dan Warga
in force
No. 3 Year 2008
Indonesia
175
Interior of the Republic of Indonesia to Warn and Order the followers, members, and/or leading members of the Indonesian Ahmadiyya Jamaat (JAI) and the General Public
Masyarakat
Police Regulations
Name of the status Police Regulation (english) the Chief of the in force Indonesian Polices regulation concerning the use of force in police action the Chief of the in force Indonesian National Police Regulations regarding Procedures for Public Information Services in the Indonesian National Police Number Name of the Police Regulation (indonesian) Peraturan Internal Kapolri tentang Penggunaan Kekuatan dalam Tindakan Kepolisian Peraturan Internal Kapolri tentang Tata Cara Pelayanan Informasi Publik di Lingkunan Polri)
No. 1 Year 2009
No.16/2010
176
Military Regulation Name of the Military Regulation (english) Army Telegram Letter of Army Chief of Staff regarding state house regulation Telegram Letter of the Army Chief of Staff regarding state house regulation Status Number Name of the Military Regulation (indonesian) Surat Telegram Kepala Staff TNI Angkatan Darat tentang Penertiban Rumah Negara Surat Telegram Kepala Staff TNI Angkatan Darat tentang Penertiban Rumah Negara
In force
Number 1409
In force
Number 1555
Acronyms AG - Attorney General AGO - Attorney Generals Office AHRC- The Asian Human Rights Commission APRN - Alliance of State House Residents BGIS - The Bethel Injil Sepenuh Church BIMASPOL - The Community Guidance Police BIN - State Intelligence Agency BRIMOB - Mobile Brigades of the Police CAT - Convention Against Torture DANRAMIL - Commander of a Military Sub-District Command DENSUS 88 - The Special Detachment 88 Anti-terror Indonesian Police DPR - House of Representatives FPI - Islamic Defender Front FUI - Islamic Community Front GKI - Indonesian Cristian Church
Indonesia
177
GoI - Government of Indonesia HATI - he Coalition Against Death Penalty HTI - Party of Liberation/Hizbut Tahrir Indonesia ICCPR - International Covenant on Civil and Political Rights ICW - Indonesian Corruption Watch ILO - International Labour Organization IMB - The Building Permit KODIM - The Military Command KOMNAS HAM - National Commission on Human Rights KOMNAS PEREMPUAN - National Commission on Violence Against Women KOMPOLNAS - the National Police Commission KONTRAS - The Commission for Involuntary Disappearance and Victims of Violence KOPASSUS - Special Armed Forces KOREM - Military Region Command (2nd level of the territorial army structure) KPK- Corruption Eradication Commission KSAD - Army Chief of Staff KUHP - Criminal Code KY - Judicial Commission LBH - Legal Aid Institute LPSK - The Witnesses and Victims Agency MA - Supreme Court MENKOPOLHUKAM - The Coordinating Minister for Politics, Law and Security Affairs MUI - Indonesian Ulama Assembly NGO - Non Governmental Organization
178
NPA - National Plan of Action PANGKOSTRAD - Army Strategic and Reserve Command C-in C PASPAMPRES - Indonesian Presidential security Forces PERDA - Local Regulation PERSIS - Islamic Unity PKI - Indonesia Communist Party POLDA - Regional Police POLRES - Dictrict police POLRESTA - City District police POLSEK - Sector Police POLWILTABES - Large City Police Office POM - Military Police PPID - The Information and Documentation Manager PROPAM - The division for Profession and Security PTFI - Freeport Indonesia Limited Liability Company/Perseroan Terbatas Freeport Indonesia PUSLATPUR - The Combat Training Centre RANHAM - National Plan of Action RSUD - The Regional General Hospital SATPOL PP - The Civil Service Police Unit SBY - Susilo Bambang Yudhoyono SKB - The Joint Ministerial Decree SOP - Standard Operating Procedure SUB DENPOM - The Sub-Military Police Detachment TNI - National Army of Indonesia UPR - Universal Periodic Review UN - United Nations
Nepal
179
ThE STATE of humAN RighTS iN NEPAL iN 2011

Executive Summary 2011 began with the Government of Nepal committing before the international community to uphold the rule of law and defend the human rights of its people. During the United Nations Human Rights Councils Universal Periodic Review assessment of human rights in Nepal, held in late January 2011, the government claimed to have a zero-tolerance policy concerning impunity, pledged to investigate and prosecute all allegations of human rights violations, and to provide equal access to justice for all its citizens, without distinction. It also committed to eradicate social gender-based violence and caste-based discrimination from the countrys society. For several years, the Asian Human Rights Commission (AHRC) has been closely following the state of human rights in Nepal and the struggle of the Nepalese people to develop a democratic system that protects rights through an effective rule of law framework. The gains achieved in this several-decade long struggle are fragile and remain under threat. In 2011 the extreme politicization of all aspects of civilian life, political instability, high levels of insecurity, impotent institutions - including a decaying policing system and a toothless judiciary - have all contributed to the inability of the State to make significant progress concerning the protection of human rights. At the time of writing of this report, although some progress was achieved in the peace process, most pressing issues relating to the democratization of the country and to the protection of human rights remained in abeyance. The Constitution, which has been in the process of being drafted since 2008, has still not been enacted, and transitional justice remains an abstract concept. To be able to uphold the law as a shield against abuses of power protecting the rights of all the Nepalese equally, deep structural reforms of State institutions will be required. Until these issues are settled, State institutions will not be sufficiently strengthened to ensure that any gains in the protection of human rights will be achieved and be irreversible. Of particular concern to the AHRC in 2011, have been the repeated and
180
calculated attempts to ensure that commitments concerning accountability for past human rights violations remain unfulfilled. The end of the political blockade brought a perceptible change in the attitude of the government toward past human rights cases, switching from ineptness and inaction to actively exploiting all the channels at their disposal to prevent prosecutions. The government indicated that it was planning to withdraw human rights cases dating from the conflict en masse, sought amnesty for a lawmaker convicted of murder, and alleged perpetrators of human rights violations were nominated as Ministers within the government. In addition, the criminal justice system proved unable to pursue accountability. Orders by the Supreme Court to investigate human rights violations remained unfulfilled, while the police neglected or proved unable to conduct thorough investigations into past allegations. The following report looks into the mechanisms underpinning the continuing impunity for past human rights violations and addresses the current human rights violations that have taken place throughout the year. The reign of impunity has continued in 2011, as the States apparent inability and unwillingness to provide redress to victims of past human rights violations opens the door to further abuses. Perpetrators are encouraged by a situation in which those that violate fundamental rights do not face any sanctions. Reports of torture were on the rise in 2011 and allegations of the extra-legal use of violence by the security forces have typically not been investigated. The absence of any effective checks and balances that would be used to hold accountable police officers who do not fulfil their duties, means that Nepals citizens do not benefit equally from the protection of the law. Victims of gender-based or caste-based violence often find themselves without access to any legal remedies. The adoption of legislation criminalizing caste-based discrimination was a great achievement in 2011 for the Dalit community, who had long been advocating for this legislation. However, this legislation runs the risk of being rendered meaningless, if no tangible rejuvenation of the justice system takes place. i - major Developments in 2011 A. Political deadlock and progress In 2011, as in previous years, the political parties continued to favour political gains over the well-being of the citizens and the progress of their country toward democracy and development, as is the case in a number of other countries in Asia. Nevertheless, in few countries was political brinkmanship
Nepal
181
pushed to such an extent as seen in Nepal, where it resulted in significant blockage of any move forward away from the current unacceptable status quo. Following the last minute one-year extension of the Constituent Assembly mandate on May 28, 2010, after it had failed to produce a constitution within the initially assigned two-year timeframe, then-Prime Minister Madhav Kumar Nepal stepped down on June 30, 2010, but was to remain at the head of a caretaker government until February 2011. It took seventeen rounds of elections and seven months for the Legislature-Parliament to be able to designate a new Prime Minister. The political impasse witnessed during these seven months obstructed significant areas of the government and further delayed muchneeded reforms and investments. On 3 February 2011, Jhala Nath Khanal from the Communist Party of Nepal-Unified Marxist-Leninist (CPN-UML) was eventually elected following the signature of a secret seven-point agreement with Pushpa Kamal Dahal, chairman of the Maoist party, which came under fire, including by members of the CPN-UML, as being undemocratic. Disputes over the distribution of minister portfolios, in particular about who was going to acquire the Ministry of Home Affairs, hobbled the formation of a full-fledged government for another 3 months, as the UML was demanding that the Maoists turned itself into a civilian party, including by dismantling its youth wing, and completed the necessary tasks comprising the peace process before being granted the Home Ministry. However, on May 4th, the cabinet was expanded by a dozen more ministers from the Maoist party, which was also granted the Home Ministry. A new cabinet reshuffle took place on July 24 to make it more inclusive, meaning that for most of 2011, most of the ministers remained in office for less than 2 months. History repeated itself when the Constituent Assembly for the second, third and fourth times, by dint of political brinkmanship, failed to produce a Constitution by the designated deadline, and had its mandate extended for another three months, a deadline it also missed. On November 29, the Constituent Assembly adopted an amendment bill on the 2007 Interim Constitution extending its tenure by another 6 months. After failing to produce a new constitution in the assigned timeframe, Khanal resigned from his post as the Prime Minister on August 14. Baburam Bhattarai, vice-Chairman of the Maoist party was elected as his successor on August 28, in the first round of elections, after securing the votes of deputies from the United Democratic Madhesi Front, a constituency from the Terai. The absence of a new constitution has slowed down the adoption of important legislation and the reform of key institutions, such as the police, the judiciary
182
and the army, and undermined the trust of the people in the ability of politicians to defend their best interests.
A time-line of the major developments in 2011 June 30, 2010: Prime Minister Madhav Kumar Nepal from the UCNUML party resigns, but continues to serve as caretaker PM for seven months; January 15 , 2011: the United Nations Mission in Nepal withdraws; January 25: Nepals human rights record is scrutinized by the UN Universal Periodic Review in Geneva February 3: The President of the Communist Party of Nepal Unified Marxist-Leninist (CPN-UML), Jhala Nath Khanal, is elected Prime Minister after 17 rounds of elections, following the signature a seven-point agreement with the Maoist chairman. Disagreements over the sharing of portfolios means that Nepal remains without a fully-fledged government and without Home Minister for 3 months May 4: Maoist ministers enter the government. Agni Sapkota is nominated minister for Information and Communication May 29: The deadline for the creation of a constitution is extended by three months; August 14: Resignation of Khanal August 28: Baburam Bhattarai, vice-chairman of the Maoist party, becomes Prime Minister after the signature of a controversial four-point deal between the Maoist party and the Unified Democratic Madeshi Front August 29: The Constituent Assemblys (CA) tenure is extended for a third time for three months November 2: The major political parties reach a seven-point agreement in which they agree to the modalities concerning the integration of Maoist combatants into the Nepal Army November 29: The CA adopts the 11th Amendment on the Interim Constitution which extends the tenure of the CA by a further 6 months
B. Nepals peace process: Rehabilitation and reintegration of former combatants One of the main obstacles to the peace process since 2006 concerned the future of the two formerly-belligerent armies. Following a first wave of demobilization of disqualified Maoist combatants in 2010, 19,000 former
Nepal
183
Maoist combatants remained in cantonments and their future was to be a bone of contention among the main political actors for the major part of the postconflict period. This issue, entangled with discussions around the constitution and the structure of the State, has crystallized the political debate and the success of the peace process has been made contingent upon the outcomes of discussions concerning the future of the two armies. 2011 began with the departure of the United Nations Mission in Nepal (UNMIN), which had been in the country since 2007 to monitor the implementation of the Comprehensive Peace Agreement (CPA). There were concerns that this departure would leave Nepal with a dangerously unstable security void, as well as hopes that this would inject a sense of urgency, encouraging the actors to settle the issue swiftly.1 At the time of writing of this report, it seems that both expectations were proven wrong. Progress has been slower than expected, but at the end of 2011 the parties once irreconcilable positions have evolved, creating space for a possible agreement. On January 15, the Nepal Army submitted a proposal to the Prime Minister of Nepal in which it agreed with the idea of integration of Maoist combatants in a specific Nepal Army directorate, which would be in charge of development work and disaster management. The integration of the combatants into the Army and the creation of a separate directorate were demands made by the Maoists that the army had staunchly opposed in the past. In August, the Maoists indicated that they agreed to this proposal. In a sign of goodwill, on September 1, the Maoists handed over the keys to containers in which PLAs arms and ammunitions had been stored since 2006 to the Special Committee for Supervision, Integration and Rehabilitation of the Maoist combatants. A major breakthrough was achieved on November 2, 2011, as the major political parties reached a seven-point agreement in which they agreed to the modalities of integration, which had been a source of discord for four years. The agreement contains the following provisions: 6,500 combatants will be integrated within a directorate of the Nepali Army (NA), with both combat and non-combat roles
1 UN Under-Secretary-General for Political Affairs, B. Lynn Pascoe quoted in Security Council reiterates support for Nepals peace process, 20 October 2010, UN News Service, http:// www.un.org/apps/news/story.asp?NewsID=36514&Cr=nepal&Cr1
184
12,500 combatants will receive a compensation package of between Rs 500,000 and Rs 700,000, A relief package will be provided to combat victims The renewed commitment to the TRC and to the enactment of the constitution The Young Communist League, the youth wing of the Maoist party, will be dismantled The return of private and public properties seized by the Maoists during the conflict A consensus government will be formed There is a highly symbolic value to this agreement, as it saw the Maoist party overcome the ambiguous role that it had played since the end of the conflict. Its use of revolutionary and conflict rhetoric had raised doubts about its willingness to move forward with the peace process. The agreement therefore represents a major breakthrough in overcoming the lack of trust that has been paralyzing Nepals political life. As such, that agreement could represent an opening in Nepals transformation process, but it remains to be seen whether the parties will manage to translate this renewed commitment into a decisive, exhaustive and concrete plan of action, which does not leave the issues of accountability, human rights and justice behind. The Nepal Armys initially proposed criteria for integration included a human rights vetting system, an assessment which would be based on reports produced by the NHRC, the OHCHR, the police and army human rights cells. This is an interesting point given the armys own resistance to investigation and prosecution of those accused of human rights violations within its ranks, and its refusal to see a vetting system applied to its soldiers human rights record as part of their participation in UN peace keeping missions. The cases of Maina Sunuwar2 and the Bardyia killings3 are of course cases in point. As the International Crisis Group points out, There will have to be detailed agreements on what constitutes a credible allegation; how to establish command responsibilities, so commanders and commissars are also held accountable; how similar standards will be set for the NA; and how all this will tie into judicial
2 3
Stop denying justice to Maina Sunuwar, AHRC-PRL-005-2011, 17 February 2011, Asian Human Rights Commission http://www.humanrights.asia/news/press-releases/AHRCPRL-005-2011/ NEPAL: Recipe for impunity at work in Bardiya National Park, AHRC-STM-081-2010, Asian Human Rights Commission, 20 May 2011, http://www.humanrights.asia/news/ahrcnews/AHRC-STM-081-2010
Nepal
185
processes and the mandate of a future truth and reconciliation commission.4 In the November plan of integration concerning Maoist combatants, a clean human rights record was also included as a criterion for integration. Nevertheless, it remains to be seen which process will be adopted to check the human rights records of the combatants and what the army understands as being a clean human rights record. This points to one of the other core issues concerning the transformation of the armed forces following the peace agreement, namely, the transformation of the Nepal Army into a democratic and inclusive force under civilian control. The clauses of the Comprehensive Peace Agreement related to the Nepal Army mandates the governments Cabinet to prepare and implement the detailed action plan of democratisation of the Nepali Army [...]. This includes works like determination of the right number of the Nepali Army, prepare the democratic structure reflecting the national and inclusive character, and train them on democratic principles and human rights values. So far, the reforms have been cosmetic at best, as underlined by the ICG in its latest report. There is a barely-there defence ministry, an ineffective national security council and state affairs and parliamentary accounts committees that do not push on difficult questions of transparency, accountability and reform.5 From a human rights perspective, it is not hard to see how this independence from civilian supremacy challenges the notion of accountability of the army. The army continues to resist and deny the authority of the civilian institutions when its personnel are involved in human rights allegations. In the two cases mentioned above, it has refused to abide by civilian court orders, including by the Supreme Court, has attempted to influence the police to support its version of events, has opposed the arrest of its personnel by the police and turned a deaf ear to feeble injunctions by politicians to cooperate with criminal investigations. The double process of democratization and integration of both armies is likely to remain filled with potholes, and it will be unlikely to lead to a durable and sustainable peace if accountability is sacrificed.
For more information see the very documented report of the International Crisis Group, From two armies to one, Asia report N 211, 18 August 2011 available online at: http:// www.crisisgroup.org/~/media/Files/asia/south-asia/nepal/211----%20Nepal%20-%20 From%20Two%20Armies%20to%20One.pdf International Crisis Group, From two armies to one, Asia report N 211, 18 August 2011
186
C. Politicization of the public sector and everyday life insecurity and instability Insecurity and extreme politicization of all aspects of life have continued to challenge the strengthening of State institutions at the local level as well has hampering the democratic process, draining vital resources and energy away from the rebuilding of the State and development. Public life in Nepal is dominated by the major political parties. There is actually very limited non-political space in Nepal, local development bodies, citizens groups, such as school management committees or forest user groups, public institutions such as public hospitals, NGOs all face tremendous pressure from local representatives of the major political parties. As will be seen later in this report, this omnipresence of political interests prevents the police from operating independently and protecting all Nepals citizens equally. The work of NGOs on the ground is also directly hampered by constant interference by political party members. Influential positions in school management committees or in groups responsible for managing Nepals resources are routinely determined by the applicants political affiliation. In a number of cases, political considerations determined whether a person could be included in the list of conflict victims or martyrs resulting from the conflict, and therefore whether they would be entitled to appropriate monetary relief. Similarly, local development budgets are often found to be divided among political parties, directly hampering the efficient allocation of resources for the community.6 Citizens cannot therefore equally take part in the public life of their community, as those who do not belong to any political party will have less opportunities and resources to do so than those belonging to the most influential party in the area. In addition, this extreme politicization of public life has resulted in increased reports of clashes among party cadres at the local level, contributing to deteriorating security in the country. Armed and criminal groups continued to fuel insecurity and instability in the southern plains of the Terai, lying along the open border with India.
6 For a more detailed analysis of the politicization of all the aspects of public life in Nepal, please refer to the very documented report of The Carter Center, Political space in Nepal has improved since Constituent Assembly Elections but challenges remain, sustainability still in question, The Carter Center, August 4, 2011, available online at: http://www.cartercenter. org/resources/pdfs/peace/democracy/Carter%20Center_Political%20Space%20in%20Nepal_Aug%204%202011_EN.pdf
Nepal
187
Several bomb blasts and attempted bomb blasts shook the Terai districts and Kathmandu in 2011, most of which were claimed by armed groups seeking the establishment of an independent Terai State. Reports of land-grabbing, extortion targeting local businessmen and civil servants, and reports of kidnapping of children for ransom were on the rise, fuelling locals sense of insecurity and mistrust in the polices ability to curb the crime rate and ensure their security. In March, Human Rights Watch denounced the polices ineptness in securing the release of children, the arrest of the perpetrators and in abating the trend of abductions. The press release further mentioned documented cases in which the police had abetted the abduction and kidnapping of children.7 Even in the centre of Kathmandu, insecurity remains a serious concern, as was exemplified by the murder of a Muslim leader, Faizan Ahmed, near two police stations in September, and by the shooting inside Kathmandu Central Jail, which is supposed to be the most secure jail in the country, of media owner Yunus Ansari by an Indian hit-man. Several policemen, civil servants, and political party members - in particular members of the Maoist party - were the target of killings in the Terai. This apparent security vacuum and the States inability to guarantee the stability of the region continues to alienate peoples trust in State institutions, while the police tend to resort to extra-legal measures in their ineffectual attempts to curb crime. As an illustration, according to the latest report by Nepalese NGO Advocacy Forum report, 43.9% of those taken into custody under allegations of kidnapping and abduction reported having been subjected to torture or illtreatment.8 II - Nepals first Universal Periodic Review- 25 January 2011 The first assessment of Nepals human rights record under the United Nations Universal Periodic Review system took place on January 25, 2011. The UPR process was established by the UN General Assembly on 15 March
7 8 Nepal: Rampant Child Kidnapping, Human Rights Watch, 29 March 2011, available at: http://www.hrw.org/news/2011/03/29/nepal-rampant-child-kidnappings Torture Briefing-Prevention of Torture in Nepal-January to June 2010, Advocacy Forum Nepal, available online at: http://www.advocacyforum.org/downloads/pdf/publications/briefingjan-to-june-2011.pdf
188
2006 through resolution 60/251 to review the fulfilment by each State of its human rights obligations and commitments. The Human Rights Councils mechanism assessed Nepals compliance with its international obligations to protect and promote human rights. Prior to the session, the Asian Legal Resource Center and Advocacy Forum submitted a joint report9 as part of the process. The report detailed the institutional shortcomings of the criminal justice system which prevent provisions guaranteeing a number of fundamental rights enshrined in the Interim Constitution from being properly enforced, and which stymie the right to redress of the victims. The report highlighted specific continuing human rights concerns such as torture by the police, extrajudicial killings, gender and caste-based violence and attacks against human rights defenders and journalists, all of which have not been addressed in any meaningful manner by the authorities. Persisting impunity for conflict-related and present human rights violations was a core concern expressed in the report, which called on the government to prioritise bringing an end to impunity making this the cornerstone of its post-UPR action. The UPR interactive dialogue, which was held on 25 January 2011, reflected these concerns. Ongoing impunity was raised as the issue of major concern by other States participating in the review, with more than a dozen countries inquiring about the governments intention to act upon the issue, which was seen as contributing significantly to the decay of the rule of law in Nepal as well as jeopardizing the future of the peace process. States recommended that the government ensure investigations and prosecutions concerning human rights violations, the end of political interference in the course of justice, the implementation of court orders and respect for them by all state actors, as well as the strengthening of the National Human Rights Commission. Several States participating in the review expressed concerns about the numerous allegations of misconduct by the security forces, including the persistence of torture and the recent surge in allegations of extrajudicial killings in the Terai. They recommended that the government take appropriate action to bring these widespread human rights violations to an end. The government was also questioned about the steps it had taken to address gender and castebased violence and discrimination at all levels of society, which remain two major challenges to democratization and peace-building within Nepalese society. Obstacles to the freedom of speech, harassment, threats, attacks against
Submission by the Asian Legal Resource Centre to the Human Rights Councils Universal Periodic Review concerning human rights situation in Nepal, ALRC-UPR-10-002-2010, July 5, 2010, Available online at: http://www.alrc.net/PDF/ALRC-UPR-10-002-2010-Nepal. pdf
Nepal
189
journalists, as well as the precarious situation of human rights defenders, were also repeatedly raised during the review, and recommendations were made to the government of Nepal for it to grant appropriate protection to journalists and human rights defenders by investigating and prosecuting all allegations of threats and attacks against them. During the review, the government of Nepal declared its full commitment to establishing constitutional supremacy, ensuring the rule of law, good governance and human rights and guaranteeing the fundamental rights enshrined in the constitution of Nepal. It added that, Addressing impunity entails two aspects: addressing the past and maintaining the rule of law at present. The government is fully committed to work on both fronts.10 As a result of the UPR process, the government of Nepal has accepted a number of essential recommendations made to it by other States from around the world, that aim to increase Nepals compliance with international human rights law and standards. The Government of Nepal now has the primary responsibility to implement these recommendations. It accepted 96 recommendations and indicated that 28 of them were already in the process of being implemented, while rejecting 15 recommendations made to it. Disappointingly, the government rejected recommendations calling for it to become party to the Optional Protocol of the Convention against Torture, and to acknowledge the findings of an OHCHR report, which called on the government to act upon numerous credible allegations of extrajudicial killings in the Terai region. Although the significant number of recommendations accepted by the government of Nepal and its public commitments to uphold the rule of law and adopt a zero-tolerance policy toward impunity led to hope that the review would encourage the development of more proactive and human rights-friendly policies, the governments reluctance to acknowledge the magnitude of persisting human rights violations in Nepal cast doubts over its willingness to address these issues in good faith. For instance, although it
10 Report of the Working Group on the Universal Periodic Review, Nepal, A/HRC/17/5, Human Rights Council Seventeenth session Agenda item 6, 8 March 2011, available online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/42/PDF/G1111642. pdf?OpenElement Report of the Working Group on the Universal Periodic Review Nepal Addendum Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/17/5/Add.1 , 1 June 2011, Human Rights Council-Seventeenth session-Agenda item 6, available at: http://lib.ohchr.org/HRBodies/UPR/Documents/Session10/NP/A_HRC_17_5_Add.1_Nepal_E.pdf
190
accepted recommendations to conform to the totality of the provisions of the Convention against Torture, the Nepal delegation stated that Nepal does not tolerate any form of torture. There is no systematic torture in Nepal. There are sufficient constitutional and legal safeguards for the prevention of torture and indicated that recommendations related to investigating and bringing to justice the perpetrators of torture were already being implemented. These denials of the reality of police torture in the country and of the inadequacy of existing legislation to prevent torture in the country, notably by bringing the perpetrators to account and ensuring the right to redress of the victims, raise serious doubts concerning the governments willingness to live up to its commitments. Similarly, the delegation asserted that the security agencies, including the Nepal Army, are fully committed to respect and support the protection of human rights and international humanitarian law. The isolated and unintended incidents of human rights and humanitarian law violations, if any, are not policy-driven. The institution strictly observes a zerotolerance policy against all kinds of human rights violations. This statement again purposefully misrepresents the reality of the challenges posed by the Nepal Army to attempts to ensure accountability within its ranks and the governments inertness in confronting the military concerning this. These challenges are clearly exemplified by the case of Maina Sunuwar, which is presented in detail below, on page 24 of this document. There are obvious concerns that the promises that the government made during the UPR process are simply attempts to placate and satisfy the international community and build a satisfactory image of itself, rather than reflecting a genuine commitment to the rule of law and the protection and enjoyment of human rights. It must be noted, however, that as of the end of 2011, some of the commitments made by the government had been fulfilled, such as the adoption of a law criminalizing caste-based discrimination and untouchability. The government must be commended for such actions. However, the number of recommendations concerning which no credible action has been seen remains a serious concern. More worrying still is the fact that the authorities continue to undermine attempts to hold the perpetrators of conflict-related human rights violations accountable, clearly contravening commitments made during the UPR. 11 The discrepancy between the governments commitments and
11 See section below and NEPAL: Review of the UPR recommendations-3 Transitional justice and impunity, Asian Human Rights Commission, June 21, 2011, AHRC-STM-081-2011, available online at: http://www.humanrights.asia/news/ahrc-news/AHRC-STM-081-2011
Nepal
191
representation of the reality of rights in the country, as compared with the actions it has taken following the review will be further detailed in sections of this report below. III - The rationale of impunity in Nepal: wiping clean the countrys human rights record Nepal is fully committed to establishing Constitutional supremacy, ensuring the rule of law, good governance and human rights, as well as providing a positive conclusion to the peace process by eliminating insecurity and addressing impunity. This declaration was made by the Nepal delegation to the international community during the review of Nepal under the UNs UPR process, in response to concerns raised by more than ten countries regarding the deeply entrenched problem of impunity, which continues to seriously obstruct the rule of law and the peace process in the country. Despite this statement, in 2011, the government has failed to take the steps necessary to prove its expressed commitment and translate these words into effective action to end impunity in Nepal. When the Comprehensive Peace Agreement was signed between the government and the Maoists in 2006 both parties committed not to protect impunity. A similar commitment was included in the Interim Constitution. Provisions in the Comprehensive Peace Agreement placed concerns for the victims right to truth and to an effective remedy at the heart of the reconciliation process. The CPAs commitment to accountability for conflictcrimes is based upon the following pillars: Publication of the names of the persons killed or disappeared within 60 days. (5.2.3)12 Formation of a national peace and rehabilitation commission to provide relief support to conflict victims (5.2.4)13 Formation of a high level Truth and Reconciliation Commission to investigate crimes against humanity and gross human rights
12 5.2.3. Prepare the details of the disappeared persons or those killed in the conflict with their real name, surname and residential address and publicise it within 60 days from the day of signing this agreement and inform the family members of concerned persons. 13 5.2.4. Both parties agree to form a national peace and rehabilitation commission to initiate process of rehabilitation and providing relief support to the persons victimised by the conflict and normalise the difficult situation created due to the armed conflict.
192
violations committed during the conflict to create the situation of reconciliation in the society (5.2.5)14 Commitment to investigation and prosecutions of human rights violations as well as to the rights of the victims and assurance not to protect impunity (7.1.3)15 These provisions were upheld in the 2007 Interim Constitution, placing the duty on the State to fulfil these commitments. Two of the major documents that provide the guiding principles for the transformation of Nepal have therefore linked accountability and justice with the peace-building and democratization processes in the country, raising hopes that gross and widespread human rights violations will be brought to an end and that their perpetrators will be brought to justice. However, Nepal has been unable to translate these commitments and principles into concrete action that produces a system capable of ensuring accountability. Five years after the end of the conflict, not a single perpetrator of human rights violations has been brought to book, and the State has failed to curb the cycle of impunity, thereby failing in its duty to create the necessary to prevent the reoccurrence of gross and widespread human rights violations. In 2011 in particular, the government made repeated and calculated attempts to ensure that commitments concerning accountability for past human rights violations remain empty letters. The end of the political blockade brought a perceptible change in the attitude of the government toward past human rights cases, switching from ineptness and inaction to actively exploiting all the channels at their disposal to prevent prosecutions.
14 5.2.5. Both parties agree to form a high level Truth and Reconciliation Commission on mutual understanding to conduct investigation about those who were involved in gross violation of human rights at the time of the conflict and those who committed crime against humanity and to create the situation of reconciliation in the society. 15 7.1.3 Both parties express their commitment and state that necessary investigation will be undertaken against any individual involved in violating the rights mentioned in the agreement and action will be taken against ones that are found guilty. Both parties also ascertain that they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded.
Nepal
193
A. Impunity through government protection: main accused in a case of kidnapping and murder named as government Minister. The governments contempt for its commitments concerning accountability are clearly manifest through the appointment of the person accused of the abduction and murder of a school teacher, Arjun Bahadur Lama in May, as Minister of Communication and Information. On 29 April 2005, at the time of the conflict, Arjun Bahadur Lama was abducted from his school in Kavre district by three Maoist cadres. The Maoists subsequently repeatedly refused to reveal his whereabouts and fate. According to the information gathered during several years following the abduction, Arjun Bahadur Lama was taken to different places in Kavre District, and then was recruited into the Maoists militia for armed training. He was later handed over to Agni Sapkota, a central committee member. It was later learnt that Mr. Lama had been killed, allegedly on the orders of Agni Sapkota, and his body was found buried at Charkilla in Budhakhani Village Development Committee (VDC), Kavre district. An investigation conducted by the National Human Rights Commission also concluded that the victim had been arrested by the Maoists and had been deliberately killed. At the end of the conflict, the police refused several attempts by the victims wife to file a First Information Report and it is only after the Supreme Court of Nepal issued an order instructing the police to register the widows complaint that the FIR was eventually accepted and registered by the police. However, three years on, the polices investigation has been limited and insufficient. One of the main accused in the case, Agni Sapkota, was promoted within the Maoist party, became a member of the Constituent Assembly and has now been appointed Minister to Information and Communication. In light of the seriousness of the allegations of grave human rights violations existing against Agni Sapkota, both the Australian and American embassies have refused to grant him visas, triggering the ire of the highest ranks of the Maoist party.16 As a protest concerning his nomination, a group of human rights defenders filed a Public Interest Litigation case at the Supreme Court of Nepal on June 14, 2011, seeking his immediate suspension for his involvement in a murder case. The Supreme Court refused to issue an interim order in the case, saying that someone could not be prevented from holding public office if there is only
16 UPDATE (Nepal): Progress stalled in the investigation of Arjun Lamas disappearance. AHRC-UAU-030-2010, August 9, 2010 http://www.humanrights.asia/news/urgent-appeals/ AHRC-UAU-030-2010
194
an FIR pending against them, and called upon Agni Sapkota to decide whether or not to resign. The Supreme Court did, however, also express its concern about the slowness of the police investigation and directed the police to report every 15 days to the court via the Attorney Generals Office. It also rejected the defendants argument that cases from the time of the conflict did not fall under the jurisdiction of the regular criminal justice system, but rather had to be dealt with by the yet-to-be established Truth and Reconciliation Commission.17 Agni Sapkota was recalled from his post on 24 July, after a reshuffle of the Maoist ministers in order to produce a more inclusive government. His withdrawal was therefore not linked to his alleged involvement in the murder of Arjun Lama.18 He remains free to date. Furthermore, in spite of the Supreme Court directive, no substantive progress has been seen in the investigation and the police have failed to submit its progress report every fifteen days to the AG Office. Sapkota is not the only politician alleged to have been involved in human rights violations that has been promoted to a higher position, from which he was protected from prosecution. The First Minister of Land Reforms and Management in Baburam Bhattarais government, Prabhu Sah, had to resign after one month over his alleged involvement in the murder of Kashi Tiwari, a Hindu leader, in Parsa district in 2010. The district government attorney refused to prosecute the minister, citing a lack of evidence, although the police investigation report cited Sah as the main suspect. The victims wife had previously denounced attempts to corrupt her by a secretary from the Home Ministry to encourage her to protect the minister in her testimony. Perpetrators belonging to State security forces have also enjoyed impunity and rewards, such as promotion or nomination to lucrative overseas UN peacekeeping mission. One such high profile case in 2011, was the case of Kuber Singh Rana, who had been charged with involvement in the disappearance and killing of five
17 SC Desists Issuing Interim Order in Minister Sapkotas Case, 21 June 2011, Advocacy Forum, available online at: http://www.advocacyforum.org/news/2011/06/sc-desists-issuinginterim-order-minister-sapkota-case.php 18 Agni Sapkota was eventually recalled from his office on 25-07-2011 following a reshuffle of the Maoists representatives in the cabinet in an attempt to develop a more inclusive government, by including more women and members of the indigenous, Madesh and Dalit communities, hence not in relation with his alleged involvement in the murder and enforced disappearance of Arjun Lama.
Nepal
195
students in Janakpur on October 8, 2003. In that case, eleven students who had gone picnicking were arrested by 25 to 30 army and police personnel. While six of them were released, five of them were never seen again. The victims families filed an FIR on July 2006, the investigation has been slow. Eventually, in September 2010, the National Human Rights Commission began the exhumation process at the supposed killing and burial site of the victims. On June 23, 2011, it was learnt that Kuber Singh Rana, one of the main accused in this case, was being promoted to the post of Additional Inspector General of Police, the second highest rank in the police hierarchy. In an interim order on July 5, 2011, in response to a writ petition seeking the removal of his nomination, the Apex Court temporarily barred him from discharging his duties as he may be in a position to tamper with evidence and hamper the ongoing investigation. On July 12, the Supreme Court reversed the order, allowing his nomination to stand, but ordered the investigation in the case to continue.19 It ordered the formation of a panel under the direction of a Deputy Superintendent of Police to see if the case has not been properly investigated and to submit a report every month to the NHRC and the Supreme Court. Since this order, the investigation has not made any progress and the probe panel has not submitted its monthly reports. In another case, Nepal Police announced on 19 October that a police officer, Kunwar, had been repatriated by the UN peacekeeping mission in Liberia. Deputy Superintendent of Police Basanta Kunwar is accused of torturing Arjun Gurung, an accused of theft, in 2009 in Balaju Police Office. The victim filed a case under the Torture Compensation Act, citing police officer Kunwar among the perpetrators. Since then, the victims case has still not been decided, with the court postponing its verdict 17 times.20 Although DSP Kunwar was accused in a case of torture, he was sent to serve in the UN Peacekeeping mission in Liberia on 22 August 2011. Nominations to serve in such missions are very lucrative and sought after by the policemen. After being informed of the accusations pending against Kunwar, the UN repatriated him.
19 SC ORDERS TO CONTINUE INVESTIGATION ON AIG RANAS CASE, 12 July 2011, Advocacy Forum, http://www.advocacyforum.org/news/2011/07/sc-orders-to-continue-investigation-on-aig-rana-case.php 20 See the details of the case on Advocacy Forums website Arjun Gurung http://www.advocacyforum.org/torture-compensation/2011/10/arjun-gurung.php
196
B. Planned mass withdrawal of all the criminal cases filed against the government supporters would prevent investigations and prosecutions of human rights abuses Tackle impunity by investigating and prosecuting human rights violations and abuses committed by State and non-State actors during and since the conflict, implementing court orders including on the Nepal Army, and ending political interference. Nepal accepted this recommendation made by the United Kingdom during the countrys UPR review. As early as May 20, less than 3 weeks after his appointment, Home Minister Krishna Bahadur Mahara announced that his office was seeking to withdraw criminal cases from the time of the 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 or the disappearance and torture to death of Maina Sunuwar. The Home Minister argued that the cases concerned were politically motivated in the first place and that the cases related to conflict time are against the spirit of the Comprehensive Peace Agreement (C.P.A.) and they should be withdrawn. In August, the UCPN Maoist political party made public its proposal for the process of establishing peace, the constitution and integration of the two armies, which includes the commitment by the UCPN to withdraw cases.21 After Prime Minister Khanal resigned in August 2011, the Maoist party came to an agreement with the Unified Democratic Madeshi Front, in which both agreed to support the Maoist candidate for the Prime Ministers post. The agreement also contained commitments to withdraw criminal cases pending against individuals affiliated with the Maoist party, the Madhesi, Janajati, Tharuhat, Dalit, and Pichadabarga movements, and declared a general amnesty for crimes from the conflict time. This triggered criticism from the national and international human rights community, in response to which the Prime Minister gave insurances that his office would only seek to withdraw political cases without touching criminal or human rights cases. Their argument for the withdrawal is based on the frequently invoked 5.2.7 clause of the C.P.A, which reads: Both parties guarantee to withdraw accusations, claims, complaints and under-consideration cases levelled against
21 Maoists unveil peace plan, 25 August 2011, My Republica. http://www.myrepublica.com/ portal/index.php?action=news_details&news_id=35190
Nepal
197
various individuals due to political reasons.22 Nevertheless, the flaw of the argument is that the C.P.A only provided for politically motivated cases to be withdrawn, while most of the cases at risk of being withdrawn are criminal cases and therefore not subjected to this provision. According to a report issued by the OHCHR, The CPA does not define what motivations would constitute political reasons per se, though this category of cases would presumably include those relating to political offences, such as subversion and treason, and any cases brought forward on solely political motives. Such a definition would not include prosecutions of individuals for serious crimes including, inter alia, murder, rape or torture. The inclusion of Arjun Bahadur Lamas case in the list of cases to be withdrawn is in itself proof of the fact that the argument that only politically motivated cases are being considered for withdrawal by the government is not true. As mentioned previously, the victims widow faced great difficulties to even have her complaint registered at the police station and was turned down both by the District Police Office and District Administration Office. Even after the Supreme Court order to have this case properly registered, it took five months for the police to register the case and they have not since undertaken any proper investigation. Moreover, the Comprehensive Peace Agreement placed accountability and the rights of the victims at the heart of the peace process, as seen in clause 7.1.3 in which both parties specifically agreed to express their commitment and state that necessary investigation will be undertaken against any individual involved in violating the rights mentioned in the agreement and action will be taken against ones that are found guilty. Both parties also ascertain that they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded. (Article 7.1.3). Since the end of the conflict, however, case withdrawal has been a convenient tool used by the government to hamper accountability. In October 2008, 349 criminal cases were withdrawn by the then-Maoist-led government, also under the pretext that they had been filed for political reasons. The majority of these cases dealt with murder or attempted murder, while others were related
22 Unofficial translation of the Comprehensive Peace Agreement held between the Government of Nepal and the Communist Party of Nepal (Maoist), 2006, available online at : http://reliefweb.int/node/219161
198
to rape or mutilation.23 This mass withdrawal had a disastrous effect: by so blatantly contravening their stated commitment to human rights and justice, the government eroded public confidence; by hampering the due course of justice, it seriously undermined the rule of law and opened the way for more withdrawals of cases and denials of justice to victims. This first mass withdrawal of cases was subsequently followed by similar moves by successive governments, even including non-conflict related cases, following pressure from the army, armed groups and political parties - including Terai-based parties and ethnic groups and influential individuals. Even the police have been involved in asking for the withdrawal of cases involving its personnel. District courts have the authority to authorize or refuse the withdrawal of cases under their jurisdiction, as was recalled by the Supreme Court in a 2008 ruling. Nevertheless, in practice, the courts have made little use of this authority and there has been little judicial control over the different waves of case withdrawal. C. Seeking presidential pardon for murder convict Confronted with mounting opposition to its attempts to withdraw the criminal cases, alternative ways were sought to grant amnesty to government supporters. In a particular case, the government recommended a lawmaker, Balkrishna Dhungel, convicted of murder for presidential pardon. He had been sentenced by the Okhlandunga District Court to life imprisonment and confiscation of property, after having been convicted concerning the 1998 murder of Ujjan Kumar Shrestha. The sentence was upheld by the Supreme Court of Nepal in 2010. In June 2011, the Supreme Court further found that there was no legally-based obstacle to implement its earlier verdict.24 Nevertheless, the perpetrator has been allowed to remain active in the countrys Constituent Assembly since then. His case was among those that the Maoist government headed by Baburam Bhattarai, which came to power in August 2011, was trying to withdraw. In November 2011, a Cabinet meeting decided to send a recommendation letter to President Dr. Ram Baran Yadav to ask for amnesty
23 Remedies and rights revoked: case withdrawals for serious crimes in Nepal, OHCHRNepal, June 2011, available online at: http://nepal.ohchr.org/en/resources/publications/2011/2011_06_23_Case_Withdrawals_for_Serious_Crimes_in_Nepal_E.pdf 24 NO LEGAL OBSTACLE TO PUT MAOIST CA MEMBER BEHIND THE BAR: SC , Advocacy Forum, 26 June 2011 http://www.advocacyforum.org/news/2011/07/no-legalobstacle-to-put-maoist-ca-member-behind-the-bar.php
Nepal
199
for Dhungel, stating that it had found the case to be political,25 leading to criticism from civil society. The victims sister filed a writ petition in the Supreme Court to protest that move, and on 13 November the Supreme Court issued a landmark stay order barring the government from implementing its decision to recommend pardon for Dhungel. Most of the victims from the conflict have not even seen the perpetrators appear before a court, let alone be convicted. The amnesty of Balkrishna Dhungel would send a clear signal them that even a success in the highest court -- a prospect still distant for most cases -- does not guarantee that justice will be done, that they do not have any avenue to claim their rights. In addition, as the decision to seek pardon for Dhungel was taken following mounting opposition to the government attempts to withdraw past cases, including this one, the human rights community was concerned that if successful, this case would be setting a precedent for dozens more human rights cases to be pardoned through the same channel. D. Will long-awaited transitional justice mechanisms be able to complete their tasks? Take necessary steps to set up the Truth and Reconciliation Commission (TRC) and the Commission on the Inquiry on Disappearances since the failure to act on human rights abuses undermines the respect for the rule of law. The government of Nepal accepted this recommendation made by the Czech Republic during the countrys UPR. The Comprehensive Peace Agreement (CPA), which brought Nepals decadelong civil war to an end, provided for the establishment of a high level Truth and Reconciliation Commission on mutual understanding to conduct investigation about those who were involved in gross violation of human rights at the time of the conflict and those who committed crime against humanity and to create the situation of reconciliation in the society.26
25 Govt set to pardon Maoist lawmaker Dhungel, Ekantipur Report, 2 October 2011 http:// www.ekantipur.com/2011/10/02/top-story/govt-set-to-pardon-maoist-lawmaker-dhungel/341729.html VICTIMS FAMILY DEMANDS NO AMNESTY TO ASSEMBLY MEMBER DHUNGEL, Advocacy Forum, 3 October 2011 http://www.advocacyforum.org/ news/2011/10/victim-family-demands-no-amnesty-to-assembly-member-dhungel.php 26 Comprehensive Peace Agreement 2006. http://www.satp.org/satporgtp/countries/nepal/ document/papers/peaceagreement.htm
200
This provision was upheld in the 2007 Interim Constitution, which also envisioned an Investigation Commission constituted to investigate the cases of disappearances made during the course of the conflict.27 The State was vested with the duty to fulfil those commitments. Since our 2008 annual report, the AHRC has annually expressed its concern with regard to the delays in the adoption of this much-needed transitional justice legislation, which has left conflict victims in a legislative and judicial limbo. At the time of writing of this report, both Bills remained pending before Parliament, some five years after the former parties to the conflict had agreed to enact such legislation. Upon his arrival to power, Baburam Bhattarai committed to enact them within a month, but two months after that pledge, the bills are still pending. In April, the Supreme Court issued a show cause notice to the government seeking explanations as to why they had not yet formed the TRC. The Truth and Reconciliation Commission Bill was subsequently presented before the Parliament to start clause by clause discussions and endorsement. Political parties proposed several amendments targeting the core principles of the Bills. The process has exposed the divergence of opinion among the political parties concerning the purpose and rationale of the TRC, with some putting justice and accountability at the centre of the TRC while others argue that the TRC should put emphasis on reconciliation. Arguments centred on the Preamble of the Bill, as a Maoist lawmaker proposed an amendment to scrap the sentence stating that bringing those involved in the crime against humanity to book to ensure there is no impunity. The Maoists argued that the emphasis on accountability was made to the detriment of the reconciliation process. This is a central theme in their position, which consists of presenting justice and reconciliation as a zero-sum game, in which all progress in favour of one means regression in the other, instead of viewing them as mutually beneficial. At the time of writing of this report, the lawmakers have apparently agreed to split the difference and to rewrite the preamble to include reference to both reconciliation and prosecution. In April, the Bill included much-needed provisions prohibiting amnesties for grave human rights violations and making provisions for the prosecution of
27 Interim Constitution of Nepal- 2063 http://www.worldstatesmen.org/Nepal_Interim_Constitution2007.pdf
Nepal
201
the perpetrators. These articles were also the target of efforts to scrap them, for the same peace vs. justice argument. At the time of writing, the parties had temporarily agreed to a mixed model in which amnesty has been prohibited for the following human rights violations: murder committed after taking a person under control or killing of an unarmed person, rape and enforced disappearances. Nevertheless, they are yet to agree on whether torture and abduction should also be included under the list of human rights violations that cannot be pardoned. The prohibition of torture is non-derogable and absolute: no exceptional circumstances can be evoked to justify, condone or pardon the use of torture. Granting amnesty to the perpetrators of torture would be a serious breach of Nepals international obligations under the Convention against Torture and would trample on the rights of victims to legal redress enshrined in the International Covenant on Civil and Political Rights (ICCPR). The final version of the Bill remains uncertain. Another bone of contention is the criteria for qualification required to become a member of the Truth and Reconciliation Commission. As of April, the Bill contained provisions prohibiting anyone who had taken part in the armed conflict from becoming commissioners. This provision was denounced by the Maoists as aiming at keeping them out of the commission. At the time of writing, concerns also remained regarding the lack of guarantees ensuring that the appointment process will be transparent and free from political manipulation. Furthermore, the bill has also stumbled due to the fact that the land seized by the Maoists during the conflict would be under the TRCs jurisdiction, which hardliners in the party oppose. One of the major concerns resulting from the delays in adopting the transitional justice legislation lies with the fact that promises about future transitional justice commissions have served as excuses to postpone concrete action to combat impunity. Victims of human rights violations that occurred at the time of the conflict have repeatedly been told by the police that they could not register and investigate their cases as it fell under the jurisdiction of the yet-tobe-formed Truth and Reconciliation Commission. The argument according to which human rights violations cases fall outside the scope of the authority of regular criminal justice system has been a permanent feature in the rhetoric of those with personal, institutional or political connections with persons accused of such crimes. This excuse has been bolstered by the governments repeated stance that cases cannot be investigated by other entities, including the regular justice system and the National Human Rights Commission (NHRC), until the TRC has been created.
202
The Supreme Court has repeatedly ruled in a number of decisions28 that this position has no legal basis and that commitments to establish transitional justice mechanisms could not replace or undermine the States obligations to investigate and prosecute human rights violations through the criminal justice system. The latest such ruling resulted from the Public Interest Litigation (PIL) filed against the appointment of Agni Sapkota as Minister of Information and Communication29. A legal opinion paper released by the OHCHR on the Relationship between Transitional Justice mechanisms and the Criminal Justice system has clarified the terms of this debate.30 Based on analysis of the international and national obligations of Nepal, the report concluded that Bearing in mind that the rights of victims to an effective remedy applies at all times, bypassing this duty to investigate and prosecute for the mere reason that the Government has taken initiatives to set up transitional justice mechanisms constitutes a separate violation of the ICCPRs effective remedy provisions. In light of Nepals national legislation, the report in particular recalled that: Nothing in the clause 5.2.5 of the CPA establishing the TRC grants the commission exclusive purview to deal with conflict-related human rights violations or places them outside the purview of regular justice mechanisms.
28 Advocacy Forum lists eight of such decision in its June 2011 report Evading accountability by hook or by crook : Government of Nepal v. Debendra Mandal, Supreme Court decision, Criminal Appeal No. 0197 of 2063, 3 September 2007; Madhav Kumar Basnet, Advocate v Honorable Prime Minister, Puspa Kamal Dahal and Others, Writ No 03557/ 2065, Supreme Court, 1 January 2009.l; Government of Nepal vs Gagan Raya Yadav et al, Supreme Court, 13 February 2008; Karna Bdr. Rasaili Vs. DAO, Kavre, 14 December 2009; Kedar Prasad Chaulagain Vs. DAO, Kavre, 14 December 2009; Devi Sunuwar Vs. DAO, Kavre, 20 September 2007; Purnimaya Lama Vs. DAO Kavre et al, Supreme Court, 10 March 2008 and Jai Kishor Lav Vs Dhanusha DAO et al, 3 February 2009. The full report is available online at: http://www.advocacyforum.org/downloads/pdf/publications/evading-accountability-byhook-or-by-crook.pdf 29 SC Desists Issuing Interim Order in Minister Sapkotas Case, 21 June 2011, Advocacy Forum, available online at: http://www.advocacyforum.org/news/2011/06/sc-desists-issuinginterim-order-minister-sapkota-case.php 30 The relationship between Transitional Justice mechanisms and the Criminal Justice system Can conflict-related human rights and humanitarian law violations and abuses be deferred or suspended on the basis of commitments to establish a Truth and Reconciliation Commission?, March 2011, Office of the High Commissioner for Human Rights in Nepal, available online at: http://nepal.ohchr.org/en/resources/publications/2011_03_29_Legal_Opinion_ E.pdf
Nepal
203
Article 33(S) of the Interim Constitution which specifies the States responsibility to establish the TRC appears to limit the power of the TRC to investigate the Truth and create an atmosphere of reconciliation and does not provide for any diversion from the criminal justice system to the TRC. The draft legislation establishing the transitional justice commissions stipulates neither that they have prosecutorial powers nor that do the commissions supersede the regular justice system. In view of this, repeated delays in the adoption of the transitional justice bills, where it is said that investigation into past crimes can exclusively be performed by the transitional justice institutions, have resulted in a total absence of avenues for victims to claim their rights and reparation. From the draft TRC Bill it is clear that the commission will not have prosecutorial powers, but will rely on the criminal justice system to undertake prosecutions. The successful realization of the TRCs mandate will therefore depend on the ability of the criminal justice system to undertake prosecutions against individuals who have committed human rights violations, independently of their belonging to a political party or to the security forces. The question is therefore whether the regular criminal justice system is able to function properly, effectively and independently, and is able to treat all Nepalese citizens equally. Healing the scars of the past should therefore go hand in hand with the strengthening of the criminal justice system (see further concerning the problems besetting the criminal justice system in section F below). E. Attempts to weaken the National Human Rights Commission Take all necessary measures for the capacity building of the NHRC, the respect of its independence and autonomy as well as the implementation of its recommendations Nepal accepted this UPR recommendation made by France and stated that it considers that it is already either fully implemented or in the process of being implementation. In addition to the criminal justice system, the constitution includes provisions establishing independent bodies with a separate sphere of competences that complement the responsibilities of the normal machinery of the administration of justice, and also have a major role to play in bringing impunity to an end. The National Human Rights Commission (NHRC) has been vested with the prime responsibility to promote and monitor human rights of the Nepalese people. On paper, its large investigative power and its independence are the
204
biggest assets for its mandate. Nevertheless, the NHRCs margin of action in practice has been dramatically reduced by the governments unwillingness to let the NHRC scrutinize its human rights record. This is best shown by the alarmingly low rate of implementation of the NHRC recommendations.31 The government has also tried to prevent the NHRC from playing the role it was vested with by the Interim Constitution: to bear the primary responsibility to promote and monitor the human rights of the Nepalese people and to be at the frontline of the fight against impunity. Newspapers reported in July that the government had asked the NHRC in writing to halt investigations it had undertaken into allegations of gross human rights violations dating back to the time of the conflict, under the false pretext that the cases in question should be investigated by the Truth and Reconciliation Commission according to the CPA.32 The Interim Constitution of Nepal mandates the NHRC to: conduct inquiries into, investigations of, and recommendation for action against the perpetrator, on the matters of violation or abetment of human rights of a person or a group of persons, upon petition or complaint presented to the Commission by the victim himself or herself or any person on his/her behalf or upon information received from any source, or on its own initiative. 33 The Constitution therefore does not restrict the NHRCs competence concerning issues related to the conflict time, nor does it allow the government to halt the NHRCs investigations. In light of the attempts to reduce the scope of the NHRCs action and powers, the yet to be adopted NHRC Bill should provide an opportunity to bolster the body, by defining and therefore protecting the scope of the NHRCs duties and by strengthening the Commissions independence and mandate. The Bill has been pending before the Parliament since 2009, and concerns remain that its content may not be in full compliance with the Paris Principles that set the standards for national human rights institutions. In particular, the Bill shows grave shortcomings in failing to guarantee the commissions
31 According to the NHRC own data, only 8.8% of its recommendations were fully implemented between 2000 and 2010 32 Government promoting culture of impunity, Ananta Raj Luitel, The Himalayan Times, 5 July 2011, available online at: http://www.thehimalayantimes.com/fullNews.php?headline=G ovt+promoting+culture+of+impunity&NewsID=294308 33 Clause 132.2.a Interim Constitution of Nepal, 2007, available online at: http://www.worldstatesmen.org/Nepal_Interim_Constitution2007.pdf
Nepal
205
independence and autonomy, as provisions contained in the 2007 draft of the Bill have been removed, and are therefore missing in the version currently before Parliament. Issues of concern include: the afore-mentioned removal of a reference to the commissions independence and autonomy; the lack of guarantees concerning the independence and transparency of the appointment process, which currently falls under the control of the executive; and guarantees that the NRHC will benefit from independent staff and financial autonomy. Furthermore, the introduction of a six-month time limitation to report a violation of human rights to the NHRC is of serious concern for anyone who is aware of the difficulties faced by victims of human rights violations in accessing justice in the current impunity set-up in Nepal. This limitation, coupled with the lack of a functioning witness and victim protection mechanism, would make the NHRC inaccessible to victims who remain vulnerable to threats and attacks by perpetrators of abuse, such as victims of torture who remain in the perpetrators custody. Also, in light of the low level of implementation of NHRC recommendations, it is of the utmost importance that the Bill clearly specifies the legally binding nature of these recommendations and stipulates a clear obligation for the government to implement them within an appropriate timeframe. The 1997 NHRC Act stated a three-month period of time within which the government should implement the recommendations. However, such a limitation is absent from the 2009 draft bill, which also does not include the obligation for public officials to cooperate with the NHRCs investigations. An OHCHR and NHRC joint report about the NHRC Bill further expressed concerns that the Bill failed to specify the NHRCs jurisdiction over the Army concerning human rights violations allegations are made concerning members of the military.34 The significant shortcomings have resulted in serious concern among the human rights community that the NHRC would not be able to retain its A-status accreditation with the International Coordinating Committee of the National Human Rights Institutions. This question was raised during Nepals UPR review, to which the government delegation replied that The existing law is fully compliant with the Paris Principles. The delegation considers that it is
34 National Human Rights Commission-Nepal and OHCHR-Nepal Observations on the National Human Rights Commission Bill 2009 - January 2011 http://nepal.ohchr.org/en/ resources/publications/ODS-2_E..pdf
206
premature to question the efficacy of the institution on the basis of a draft law that is still under consideration.35 In addition, the draft Bill would reduce the NHRCs monitoring mandate by limiting it from all places of detention to prisons only. However, torture mostly takes place in police detention to force victims to confess a crime or to pay a bribe. This limitation would be a serious blow to efforts to combat torture and to the human rights NGOs that have been advocating for a nationwide monitoring mechanism for years (see further information concerning this on the section of this report concerning torture). During the UPR review process, the government accepted recommendations to ensure that the NHRC functions in line with the Paris Principles, to take all necessary measures for the capacity building of the NHRC, the respect of its independence and autonomy as well as the implementation of its recommendations and to provide the NHRC with adequate funding and autonomy to ensure that the Commission can properly fulfil its mandate, and even claimed that these measures were already implemented or in the process of being implemented. However, recent developments do not indicate that the NHRC is being strengthened, but rather that its ability to play the role of an effective watchdog is being undermined. The current state of implementation of the NHRCs recommendations is deeply unsatisfactory and verging on being alarming. The AHRC is of the opinion that a strong and independent NHRC is required, and could be a major actor in the eradication of the deeply entrenched system of impunity, and in the shaping of strong safeguards for the protection and promotion of human rights in Nepal. The Universal Periodic Review of Nepal in January underlined the consensus within the international community that the NHRC must be strengthened in order to be part of a vibrant human rights discourse in Nepal. The governments recent moves to delay attempts to probe human rights violations from the conflict underscore the pressing need for a strong watchdog that is able to independently scrutinize the governments compliance with its international obligations.36
35 Report of the Working Group on the Universal Periodic, Review on Nepal, 8 March 2011, A/HRC/17/5 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/42/PDF/ G1111642.pdf?OpenElement 36 NEPAL: Nepal must respect its commitment to a strong and independent National Human Rights Commission, July 7, 2011, AHRC-STM-093-2011, http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-093-2011
Nepal
207
F. A paralyzed criminal justice system that is impotent in the protection of human rights Nepals criminal justice system has been fundamentally damaged by the countrys recent conflict and years of autocratic rule. It has not yet been able to act with the autonomy, capacity of action or physical infrastructure that is required in order to ensure the rule of law and supremacy of human rights. During the post-conflict transition phase, efforts must concentrate on strengthening the criminal justice system to ensure its authority and capacity to effectively prosecute human rights violations. These efforts have been limited and insufficient to date, and the justice system currently remains unable to address human rights abuses adequately. It suffers from deep shortcomings at different levels: 1. Progressive but toothless courts During the UPR, the government attempted to hide the grave problems concerning its human rights record behind the screen of its independent judiciary. The delegation noted that its independent judiciary stands as a core element of the institutional arrangement on human rights. The Supreme Court and entire branches of the judiciary have stood exemplary in promoting and protecting human rights through various judgments. It is true that the judiciary of Nepal, in particular its Supreme Court, has repeatedly taken positions in favour of accountability, justice and progress on the front of human rights. It ordered the enactment of key legislation such as the criminalization of enforced disappearances, torture or untouchability. Importantly, on September 22, 2011, the Supreme Court of Nepal, in response to a Public Litigation Interest case filed by Advocacy Forum Nepal, challenging the semi-judicial powers granted to Chief District Officers (CDO), the highest government-appointed administrative officers at the District level. This judgement could lead to a leap forward in terms of administration and independence of justice in Nepal. In its judgment, the Supreme Court found that allowing semi-judicial authorities to look into criminal cases and hand down sentences of up to 20 years can lead to situations in which the law is being abused. The court issued a directive to the government to conduct a study to recommend necessary changes in the powers allocated to administrative officers within 6 months. Granting judicial powers to government officials, such a district heads of police, poses a serious challenge to the very notion of independence of the judicial system. Human rights NGOS have deplored that cases which could carry sentences of up to 20 years imprisonment were being
208
heard in the offices of a civil servant, in conditions which clearly failed to meet the minimum standards of fair trial. In addition, in a number of individual human rights violations cases, the Supreme Court ordered the immediate investigation of the cases and the prosecution of the offenders. It also repeatedly found that commitments to transitional justice mechanisms did not supersede the role of the regular justice system. However, such progressive judgments must be put into perspective, as the court has also often refused to ensure a consistency of approach, which has hampered the effectiveness of its rulings. For instance, in the cases quoted above concerning the nomination of Agni Sapkota as Minister for Information and the promotion of Kuber Singh Rana as Assistant Inspector General of Police, the court merely ordered the investigations to continue into the cases, without ordering the alleged perpetrators to resign from office. In Agni Sapkotas case, the court left it to the accuseds conscience to decide whether or not to resign, while in AIG Ranas case it merely barred him from discharging his duties for a few days. In addition to the weak nature of these rulings, a number of factors prevent the judiciary from effectively combating deeply entrenched impunity in the country. During the UPR, the government lauded the judiciarys fierce independence, but failed to mention that its orders and findings are being ignored and do not result in change or any significant impact concerning the system of impunity. Finding a solution to the fact that the judiciary and its judgements are being ignored remains one of the greatest requirements in order to establish the rule of law and protection of rights in Nepal. When the courts orders run contrary to the interests of major institutional actors, such as the government, the police, the army or political parties, they are simply not implemented. Members of the military, police forces and the Maoists accused of human rights violations during the conflict have remained beyond the reach of the law, ensuring persisting injustices and violating the rights of victims to legal remedies. Nepal accepted a recommendation made by France during the UPR to ensure that all decisions from the judiciary, regarding those presumed responsible for serious human rights violations during and after the conflict, are fully respected by all concerned institutional actors, particularly by the army and the police forces. Examples of cases in which the authorities ineptness in implementing court orders resulted in rendering them meaningless include the cases of Maina
Nepal
209
Sunuwar or Arjun Bahadur Lama that are presented in detail elsewhere in this report. 2. Nepals impaired policing system The inadequacies of Nepals policing system, which is crippled by high levels of corruption and inefficiency, lie at the heart of the criminal justices inability to hold human rights violators to account. In the AHRCs 2010 annual report, the appalling situation of the policing system was denounced concerning this country in which politicization of even the pettiest issues is prevalent and where the a minimum level of accountability for the security forces remains elusive, and where the principle of equality before the law remains a mirage. A lack of check and balance mechanisms which would allow police officers to be held accountable for abuses of power and authority, have prevented the police system from performing its role in establishing the rule of law and the protection of rights. The police argue that they are placed under significant pressure by influential individuals and local political leaders who do not hesitate to interfere in the investigation process in to order to protect their interests and persons allied with them even if these are criminals. A strong feeling of impotence often discourages them from taking any action in cases involving the Nepal Army, the Young Communist League or the political parties. It is therefore frequent for the police to refuse to file a case or to improperly investigate it when the victim belongs to a marginalized and isolated community or when the perpetrators are influential, for instance if they possess strong political connections or belong to powerful organized groups which have resisted attempts to be held accountable, such as the Nepal Army or the YCL. In numerous cases the police have pressured victims into negotiating settlements with the perpetrators. The polices lack of accountability and the abuses they themselves commit combine to seriously undermine their credibility and their ability to act as a strong law-enforcement agency In spite of repeated commitments to ensure accountability, efficiency and human rights, the state of the policing system of Nepal has not been seen to be improving in 2011. In terms of corruption, the image of the police was severely tarnished when what came to be known as the Sudan Scam was brought before the Commission for Investigation of Abuses of Authorities (CIAA). In June, the CIAA filed a case in the Supreme Court against 34 senior police officers, including three former Inspector General of Police, accused of having embezzled around Rs 290 million (USD 4 million) while purchasing equipment for Nepali peacekeepers working for the United Nations in Sudan. This high-profile case involving considerable sums of money is just the tip of the iceberg.
210
Corruption is prevalent throughout the police hierarchy and gives rise to human rights violations, as seen in the case of a couple of shop owners, who were subjected to torture for refusing to pay a bribe (see further in the section on torture). Corruption leads to a lack of confidence in the police, discouraging citizens from seeking protection or justice from them. On April 6, 2011, the United States Institute of Peace (USIP) released a survey37 on security and peace in Nepal, which pointed out that Nepalese police personnel have complained about being subjected to corruption by their peers, hinting at the state of corruption within the institution itself. Nepotism, favoritism, and corruption especially in the transfer and promotions process-have been witnessed by three-fths of NP personnel surveyed.38 Reports of human rights abuses committed by the police remained widespread: in 2011, reports of torture have been on the rise, and although reports of extrajudicial killings have diminished, it is hardly attributable to a greater adherence to human rights norms and values. Reports of human rights violations by the police are rarely investigated, let alone prosecuted, and when they are, they carry little, if any, consequences for the perpetrators. This aspect will be developed latter in this report. If an institution is rotten on the inside, where ones ability to get promoted depends upon bribes or connections, how can accountability be promoted? In 2011, police officers against whom well-documented allegations of human rights abuses were pending, have been promoted to the highest positions (see the case of AIG Rana or DSP Kunwar above) or sent to serve in very lucrative peace-keeping missions overseas. It is worth noting that during the UPR both Australia and Denmark recommended that Nepal establish an independent Police Service Commission responsible for the promotion and appointment of police officers. In response, the government signalled that it was considering
37 Calling for security and Justice in Nepal, citizens perspective on the rule of law and the role of the Nepal Police, United States Institute of Peace,2011 available online at: http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_2.pdf 38 Calling for security and Justice in Nepal, citizens perspective on the rule of law and the role of the Nepal Police, United States Institute of Peace,2011 available online at: http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_2.pdf
Nepal
211
the adoption of such a commission.39 Should such a service commission be established, it would represent a positive towards greater accountability within the ranks of the police, provided this body was truly independent and granted sufficient authority to be able to fulfil its mandate. The USIP survey also found that one third of respondents had been victims or witnesses of a crime that they did not report to the police, because they either did not think the police would be able to conduct a thorough investigation or protect them against the perpetrators, or did not feel comfortable interacting with the police, or because no police post was available in their area. The report points out that not only those who do not report cases to the police, but also those who do, had resorted to alternative ways to address the crime. The respondents listed those as asking civil society or political leaders to put pressure on the police, padlocking government or NP ofces, imposing bandhs and chakkajams either against the NP or against the alleged perpetrator, taking personal acts of revenge, or paying a gang or political party wing to act against the alleged perpetrator. It is interesting to note that the rationale behind alternative ways involves gathering or showing enough support, strength, or influence to increase ones leverage sufficiently to convince the police to conduct a thorough investigation. This raises serious concerns about the access to justice available to those who do not have financial resources or connections to influence the police and investigation process. In a functioning rule of law framework, State institutions should provide protection and support to all parties equally under the law, without bias or prejudice and without favouritism ensuring that no party finds itself in a position to impose a settlement on the other by threat or violence. However, heavy political interference within the policing system, combined with the systemic weaknesses, make the police in Nepal unable to play that role in most circumstances. Large-scale withdrawals of cases, slow judicial process and the possibility of politically-connected individuals avoiding prosecutions, have all contributed to the police being discredited and demoralised. In sensitive cases, where the perpetrators belong to the army or a political party, purposefully ineffective police investigations contribute to impunity. As
39 Report of the Working Group on the Universal Periodic Review Nepal Addendum Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/17/5/Add.1 , 1 June 2011, Human Rights Council-Seventeenth session-Agenda item 6, available at: http://lib.ohchr.org/HRBodies/UPR/Documents/Session10/NP/A_HRC_17_5_Add.1_Nepal_E.pdf
212
stated above, in the cases in which Agni Sapkota or AIG Kuber Singh Rana were accused, the Supreme Court ordered the police to conduct investigations and submit a report to the court every month. These reports have not been submitted, raising questions about the investigations themselves. If even in cases where the highest judicial authority of the country specifically ask the police to carry out a specific investigation and sets up guidelines to ensure that the investigation will be prompt and effective by ordering a monthly report, the police investigation remains perfunctory, it raises concerns about the quality of investigations in cases which do not reach the Supreme Court. The police routinely refuse to register FIRs in cases dating back to the conflict and when these are filed, lack diligence in conducting investigations. They have been hiding behind the excuse that they dont have authority to deal with cases from the conflict, as those allegedly fell under the jurisdiction of the TRC, in spite of repeated Supreme Court findings which state otherwise. Suspicions that the police are unable to assist all citizens equally are backed by a strong feeling of discomfort among people with fewer resources, notably the poor, women and those belonging to the Dalit community, when approaching the police, as well as scepticism concerning the polices willingness to provide them with security. 40 In cases involving persons from those communities, the police often act as a mediator between victims and perpetrators rather than as a law enforcement agency, but tend to further the interests of the powerful and rich. No mechanisms exist at present to take action against police officers who fail in their duties, and who expose vulnerable persons to threats and pressure to abandon their cases. The polices ineptness in enforcing the rule of law hampers its ability to curb the insecurity that the country is facing. It has far-reaching adverse consequences concerning the protection of human rights and democratic freedoms in the country. A 2011 report by the Carter Center41 found that the weak capacity to enforce the rule of law damages the strengthening of free political space,
40 Calling for security and Justice in Nepal, citizens perspective on the rule of law and the role of the Nepal Police, United States Institute of Peace,2011 available online at: http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_2.pdf 41 Political space in Nepal has improved since Constituent Assembly Elections but challenges remain, sustainability still in question, The Carter Center, August 4, 2011, available online at: http://www.cartercenter.org/resources/pdfs/peace/democracy/Carter%20Center_Political%20Space%20in%20Nepal_Aug%204%202011_EN.pdf
Nepal
213
which is an essential element of a democracy. In reference to cases of threats, intimidation and attacks to prevent the expression of political views, the Center found that although charges are sometimes filed, police and administration more often serve as mediators rather than as law enforcers in these cases, and the charges themselves are often treated as bargaining chips. In addition, reports of attacks against journalists and human rights defenders were numerous in 2011 and weak law enforcement also enabled a climate in which such threats and attacks are possible, jeopardizing a number of fundamental freedoms, including the freedom of expression. Only if Nepal manages to develop a system of checks and balances to prevent abuses of power, that will foster a strong, independent and accountable police institution, will it be able to establish a strong rule of law framework in the country and address two of the most urgent challenges the country is facing: impunity and insecurity. 3. The Public Prosecutors Office and Attorney Generals Office are neglecting their duties The Attorney Generals Office (AGO) and the Public Prosecutors Office have the ultimate responsibility to initiate prosecutions, and their role is therefore at the frontline of the eradication of impunity in Nepal. However, the AGO has also contributed to the persistence of impunity in the country, both passively by being lethargic in filing charge-sheets against alleged perpetrators of human rights violations, and actively by approving repeated mass-withdrawals of criminal cases by the government. Such neglect runs through the different levels of the prosecutorial authority, and is particularly perceptible at the level of District Public Prosecutors Offices where Public Prosecutors have often been seen to be colluding with the police to prevent progress in cases. The case of Sahid Ullah Dewan (Abdul)42 is illustrative. Abdul was shot in broad daylight, in sight of his fellow villagers, on October 26, 2009 in Rupandehi District. The police claim that the victim was killed in an encounter and that they shot him in self-defense. However, several eye-witnesses assert that the victim was unarmed and shot in cold blood in a staged manner and that they saw police officers placing pistols around the dead body before taking pictures. Both the District Police Office and the District Administration
42 NEPAL: Killing of a young man in an alleged encounter by police must be investigated, May 23, 2011, AHRC-UAC-104-2011, http://www.humanrights.asia/news/urgent-appeals/ AHRC-UAC-104-2011/
214
Office in Butwal, refused to register an FIR. Despite an order from the Appellate Court in Butwal to promptly register the FIR and initiate an effective investigation, no investigation has been conducted so far. The victims family later came to know that the case had been withdrawn by the Public Prosecutors Office, Rupandehi, following a meeting of the Security Committee of the District. The investigation (and subsequent prosecutions) into the incident were suspended. The case was sent to the Attorney Generals Office in order to confirm the decision. The Attorney General Office was waiting for documents from the Public Prosecutors Office, Rupandehi, in order to decide upon the case. On August 6, 2010, a writ petition was submitted at the Butwal Appellate Public Prosecutor Office, seeking to obtain an order against the Butwal DPO to initiate a prompt investigation and subsequent prosecutions of the perpetrators. The Appellate Public Prosecutor Office issued its order to the District Public Prosecutor Office to immediately investigate the case. However, for the second time and in spite of the previous order of the court, the District Public Prosecutors Office decided to withdraw the case, and sent its decision to the Attorney Generals Office in Kathmandu for confirmation. The AGO returned the case to the District Public Prosecutor ordering that it be reopened and reinvestigated. The case was forwarded to the District Police Office for further investigation. The attempts by the Public Prosecutors Office and the police have resulted in repeated delays to the investigation and have considerably reduced the probability that the family will be informed of the circumstances of their sons death. Two years after the case, the family is still waiting for justice. Most of the reasons underpinning the persistence of impunity for Nepal past human rights violations also account for the impunity that accompanies current human rights violations. The absence of predictable and systematically applied punishments for those who committed past human rights violations makes it impossible to deter current human rights violations.
Justice denied: seven years on, Mainas family is still waiting for justice. On February 17, 2004, fifteen-year old school girl Maina Sunuwar was illegally arrested, tortured and killed by Royal Nepalese Army soldiers. She was arrested to force her mother to present herself at the army barracks, after she had witnessed the killing of her niece by security personnel earlier the same month. After Mainas arrest, she was beaten, held face down in water and subjected to repeated electric shocks to force her to confess that she was a Maoist. Before the clandestine burial of Mainas body, she was shot to make it appear as if she had been killed while trying to escape. The police were complicit with the army in
Nepal
215
in concocting the cover-up story. Seven years have passed since her killing, and even though the perpetrators have been named and the district court of Kavre has issued arrest warrants against them, the army continues to defy the court order by not handing over the soldiers to the court. A September 2007 decision by the Supreme Court ordered the civilian authorities to carry out investigations into this case and to prosecute the perpetrators, thereby ruling that the case was to be tried by a civilian court. The District Court of Kavre subsequently issued an arrest warrant against four military officers, Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun, on January 31, 2008, on charges of illegal detention, torture and murder. To date, these warrants have yet to be executed. Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun have not presented themselves before the court and have been declared as absconded, but no action has been taken to locate or arrest them. One of the accused, Major Niranjan Basnet, was found to be serving in a United Nations Peace-Keeping Mission in Chad. Participation in peacekeeping missions is coveted as a lucrative reward by soldiers. Major Basnet was repatriated in December 2009 in light of the serious nature of the allegations pending against him. After his repatriation, the Nepal Army took the alleged murderer into custody and refused to transfer him to police custody, challenging the court orders and calls from the Prime Minister, the NHRC, the OHCHR and the UN Secretary General to abide by these orders. On the contrary, the Army announced on July 14, 2010, that an internal investigation had found him innocent of the charges against him. On that occasion, the Army Court of Inquiry declared that the army had been acting against a common enemy and functioning under a section of the Terrorism and Disruptive Activities Act, which stated that the Army has a right to take a civilian into custody for interrogation and referred to a section of the 1959 Army Act. According to this particular act, offences involving army personnel functioning under the TADA cannot be treated in a civilian court. Therefore the chief of the Nepal Army legal department stated that There is no case against Basnet. It is a well-known fact that all internationally-accepted norms and standards mandate that cases of gross human rights violations against civilians (a fortiori of minors) by army personnel fall under the jurisdiction of civilian courts. In addition to the lack of credibility that result from the repeated and illegal attempts of those at the army headquarters to hamper the prosecutions of their personnel, the legal reasons the army and the defence ministry put forward to justify the absolution are groundless. They hide behind the principle of double
216
jeopardy, arguing that Major Basnet had been given a clean record in 2005 by the Court Martial. This ignored the fact that not only was the earlier judgement the result of non-transparent and non-independent investigations but also that military courts do not have jurisdiction in cases involving murders and disappearances of civilians, both under domestic and international norms. The September 18, 2007, Supreme Court decision to order that the case should be handled by the Kavre District Court has already dealt with the issue of double jeopardy and the jurisdiction of civilian courts. Internationally accepted norms and standards also mandate that cases of disappearance fall under the jurisdiction of civilian courts. This was reasserted by the UN Working Group on Enforced Disappearances in its December 2009 report. In the section regarding Nepal, it reminded the government that the UN Declaration on the Protection of all Persons from Enforced Disappearances specifically states that persons alleged to have committed acts of enforced disappearances shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts (art. 16.2). In May 2011, the (Maoist) Home Minister quoted the case against Basnet as one of the cases likely to be withdrawn by the government, as they fall under the jurisdiction of the TRC. So far, no further move seems to have been taken to withdraw the case, but no action has also been taken to bring the accused before a civilian court. Undue delays in providing justice to the family in themselves constitute a further violation of their rights and only result in additional suffering. Similarly, not a single perpetrator of the tens of thousands of other human rights violations which took place during the conflict has so far been prosecuted. The Interim Constitution of Nepal states that court orders have to be binding upon all, but the armys refusal to abide by them shows that it considers itself to be above the law and constitution. During the Universal Periodic Review of Nepal, the governments delegation claimed that there was a zero tolerance to impunity policy concerning isolated human rights violations committed by the security agencies and supported recommendations made by France and the United Kingdom to ensure that all decisions made by the judiciary are fully respected by all concerned institutional actors, particularly by the army.
Nepal
217
IV - Torture continues to be perpetrated widely and with impunity During the UPR process a number of States raised concerns about the high rates of the use of torture in Nepal. The government delegation to the UPR process rejected these allegations outright, stating that Nepal does not tolerate any form of torture. There is no systematic torture in Nepal . Unfortunately, 2011 showed that this remains nothing more than wishful thinking. The widespread use of serious forms of torture continued to be reported throughout 2011, with the perpetrators continuing to enjoy impunity. In a situation of increasing insecurity that is highlighting the police and justice systems lack of capacity in curbing crime, torture is increasingly being resorted to as a way of identifying and punishing the criminals. The police are continuously resorting to torture to extract forced confessions and conclude investigations. Investigations do not follow any accepted standards of professionalism, and confessions remain the basis for such investigations. This trend is further fuelled by the absence of sanctions attached to the use of extralegal measures to obtain confessions. Furthermore, a lack of faith in the judicial system, fuelled by undue delays in the judicial process and political intervention in the course of justice, has incited the police to take the law into their hands and resort to torture as a way to punish. In the end, an overwhelming majority of torture victims are not charged with any crime. Data shows that the continuing instability in the Terai and the high incidence of cross-border crimes coincide with alarmingly high and rising rates of torture in this region. In addition, widespread corruption has led the police to use torture as a tool to extract bribes. Shop owners in the Kathmandu Valley have been harassed for that purpose, for example. Leading Nepalese NGO Advocacy Forum reports that from January to June 2010 the percentage of interviewed detainees reporting police torture or illtreatment reached 25%, an increase from 22.5 in the previous six months and 15.8% from the same period in 2010.43 Our data shows that the percentage of detainees who report that they had been tortured or ill-treated in police custody was around 33% in 2006 and
43 Torture Briefing-Prevention of Torture in Nepal-January to June 2010, Advocacy Forum Nepal, available online at: http://www.advocacyforum.org/downloads/pdf/publications/briefingjan-to-june-2011.pdf
218
around 19-20% in 2010. Although statistics are decreasing, the individual cases show that the severity of torture practice is still the same. For instance, every year, even after 2006, there were cases of custodial death. In 2009 it was reported that private houses were rented in Kathmandu itself by the police and used to torture individuals secretly. This showed that torture was still widely practiced even in Kathmandu. The data also shows that the practice of torture has actually recently been increasing in some of the Terai districts. Interviews with torture victims reveal that methods of torture used during the conflict are still being practiced today by the police. This includes beating on the soles of the feet with sticks or pipes, beating on the victims thighs, shoulder, back, joints, punching and kicking randomly on various parts of the victims body. From the data it seems that torture is constantly declining but when we look at the severity of the cases, it shows that torture is still widely practiced in Nepal 44 Kamal Pathak, Advocacy Forums Deputy Director Among the twenty districts in which the organization monitors places of detention, in five districts over 37% of detainees reported having been tortured, while in six other districts between 50% and 75% of juvenile detainees reported having been tortured. All of these districts are located in the Terai region.45 Worryingly, the report shows that juveniles in detention have a 7% higher chance to be subjected to torture than adults: 32.8% of juveniles interviewed reported having been subjected to torture or ill-treatment.46 The organization also estimates that one in ten women detained by the police had been subjected to torture or ill-treatment. Out of 345 women interviewed in 20 districts, 10.4% reported having been tortured. In Kathmandu district, this percentage rises to 20.8% of women, with gender-specific methods of torture being used.47 When we interviewed female detainees we found that they had been forced to undress, that in some occasion police put objects in them or that
44 For victims of torture, there are actually very few possibilities to get justice in Nepal., AHRC-ECT-030-2011, available online at: http://www.humanrights.asia/opinions/ interviews/AHRC-ETC-030-2011 45 Torture Briefing-Prevention of Torture in Nepal-January to June 2010, Advocacy Forum Nepal, available online at: http://www.advocacyforum.org/downloads/pdf/publications/ briefing-jan-to-june-2011.pdf 46 Torture Briefing-Prevention of Torture in Nepal-January to June 2010, Advocacy Forum Nepal, available online at: http://www.advocacyforum.org/downloads/pdf/publications/ briefing-jan-to-june-2011.pdf 47 Torture of women in detention-Nepals failure to prevent and protect , Advocacy Forum, 26 June 2010 http://www.advocacyforum.org/downloads/pdf/publications/torture-of-womenin-detention-english-26-june-2011.pdf
Nepal
219
some have been beaten on sensitive parts of their bodies. We also found instances in which women had been raped in detention.48 Police torture an eleven year old child
According to the information received from the Center for Victims of Torture Nepal (CVICT), on November 15, 2010, police officers from Pachuwarghat police station summoned Mr. Maila Tamang to bring his eleven-year old son, Lakpa Tamang, to the police station for interrogation in relation to an alleged case of a lost or stolen gold ring. In the morning of 16 November, Mr. Maila Tamang reported to the police station along with his daughter and his son, Lakpa. There, Lakpa was reportedly separated from the rest of his family and Sub Inspector Purushottam Shrestha took him into custody and interrogated him about the lost ring. The Sub Inspector asked the child three times whether he had stolen the ring and the three times Lakpa replied that he had not. The child was then taken to the interrogation room and was reportedly tortured for one hour. The boys back and soles were beaten with a plastic pipe and the victim received electric shocks behind his right ear. As the police officers threatened that they would kill him if he did not admit to having stolen the gold ring, the boy was forced to confess that he had done so and to sign a letter of confession. The police officers further threatened the boy with death should he say anything about the torture. The Sub Inspector subsequently asked Lakpa to confess in front of his father that he had stolen the gold and wrote a paper stating that Maila Tamang would pay Rs. 19,000.00 to the complainant. After Maila signed the paper, Lakpa was released. After coming back home in the evening, Maila noticed that his sons back had numerous bruises and that walking was painful for Lakpa. He realized that his son had been tortured to force him to confess. He then brought him to a local photographic studio to take pictures of his injuries. On January 6, 2010, a case was filed against the two alleged perpetrators in Dhulikhel District Court under the Child Right Act, 1992. After the case was
48 For victims of torture, there are actually very few possibilities to get justice in Nepal., AHRC-ECT-030-2011, available online at: http://www.humanrights.asia/opinions/interviews/ AHRC-ETC-030-2011
220
filed, Dhulikhel District Police Office (DPO) issued a notice that departmental action had been taken against the two perpetrators as per the article 85 of the police civil service rules 2059. Later, unidentified police officers belonging to Pachuwarghat police station, the same police station as the alleged perpetrators, threatened the family and the boy to drop the case or to face the consequences. When contacted by the AHRC to ask for the protection of the victim against threats and intimidations, the Deputy Superintendent of Police of Dhulikhel DPO denied these threats and insisted that now that the case was pending in court, it was not the duty of the police to protect the victim anymore. While departmental action was taken against the perpetrators, it remains insufficient in relation to the gravity of the crime committed and the AHRC continues to deplore the lack of effective prosecutions concerning this case.
Child tortured while being hung upside down in police custody Fahad Khan Usmani, 10, was regularly subjected to extortion in school by a neighbours son, who will be referred to as M. As a result Usmani used to steal money from his house to give it to M. On April 2, 2011, Fahads father, Farrukh Ahemad Musalman came to know that his son stole 8,000 Rs./ from his home and had allegedly given it to M. Farrukh then visited M.s home and asked his father to return the money leading to an argument. Then Farrukh went to Area Police Office in Maghgawa and filed a complaint of theft, asking for the polices assistance to get his money back. Instead of investigating the complaint, the police called both parties to the police station. During the discussion, at around 1.45 pm, Sub Inspector Bikram Sahani and Constable Mahendra Yadav took Fahad to a room inside the police station for inquiry. SI Sahani then reportedly slapped him to force him to confess that he had spent all the stolen money and had not given it to M. Fahad denied the allegation which angered the policemen. Constable Yadav then allegedly tied his legs together with a rope, hung him upside down from a ceiling hook and beat him 15 to 20 times on the soles of his feet with a bamboo stick. The torture only stopped following the intervention of another policeman.
Nepal
221
As Fahad was brought outside the police station, crying, he informed his father about the torture. The victims father then requested an explanation from the policemen, but the policemen denied the allegation and only released the victim after having his father had signed a statement stating that Fahad had spent the money himself. Although there were no visible external torture marks, Fahad complained of pain to the soles of his feet and cheeks. His right shin (below the knee) was swollen. Subjecting a child to interrogation inside a police station without the presence of his parents, as was the case in the two cases mentioned above, is in contradiction of rule four of the Juveniles Justice Regulations, 1996. The lack of implementation of these regulations is a source of serious concern, as it creates situations in which the child is vulnerable to ill-treatment and abuse during the process of interrogation. During the UPR, Nepal accepted a recommendation by Malaysia to Enact a Juvenile Justice Law compliant with international standards, to consolidate the legal framework surrounding the protection of the rights of children and to ensure the proper functioning of a juvenile justice system in the country. The Central Child Welfare Board (CCWB) has drafted a Proposed Bill to Amend and Codify Law Relating to Children, aiming at strengthening the safeguards contained in the Children Act. The bill is under consideration of the Ministry of Law and Justice and has not yet been presented to the Parliament. No large-scale discussions have been organized concerning the draft bill and no timeframe has been given regarding its adoption. The implementation of the existing legal provisions protecting children during their interaction with the judicial system continues to be sporadic. Under the interrogation police officers treat children as they treat adults. There is not any separate system in the police offices to deal with children. Juveniles are kept in detention with adults and hard core criminals. Most judges remain unaware about the extent of torture. The children are brought handcuffed, chained to each other or chained to adults in court by the police officers and the judge feels that she/he cannot take action against the police. According to Juvenile Justice Procedure regulation, every Juvenile should be treated in a child friendly environment; some courts have a separate room for the juveniles, but again those are hardly used and those
222
dispositions are scarcely implemented. Judges show indifference to the issue. Further, Ive seen in a lot of cases that when there are allegations of torture, the judge does not show interest to know whether the child has really been tortured or not. Some of them think those allegations are fabricated by the children and do not want to interrogate them further about it. The judges can ask to see the body marks of torture, he/she can have a look at medical reports, he/she can order a medical check-up in a forensic lab but a lot still dont because of a lack of sensitization to the issue. There exists a bias among judges toward cases of torture. Other government employees are even more biased, even the court staff handling the case, hearing the case must be aware on how to handle the torture case, on how to deal with juveniles, on how to treat them with dignity. For the moment, the justice system does not recognize the dignity of the people. Tika Ram Pokharel, Center for Victims of Torture-Nepal As the government of Nepal continues to fail to acknowledge the extent of the use of torture in the country, and its devastating impact on the childs development, children that are victims of torture are left without proper treatment and assistance to help address the psychological and physical consequences of torture and to support their reintegration into society. The children who have been subjected to torture are unable to speak about it. When I conducted a research in Juvenile Reform Homes, the children didnt talk about torture. It is when they were asked to draw a picture about their past life -- with no instruction to talk about torture -- that a lot of them drew pictures representing situations in which they had been tortured. When the juveniles fall into delinquency, they are arrested by the policemen, brought to custody and are often tortured severely through various methods. Most of the juvenile are from very poor families; they did not get any kind of opportunity. Because of torture, the victims will suffer from severe physical and psychosocial problems. Although doctors frequently visit the juvenile reform homes they are not aware about the impact of torture. The children do not have access to psychiatrists and other experts. Further, another major problem is that after having been arrested, the juveniles are often rejected by their family and society. A lot of the juveniles who have been subjected to torture see gloomy prospects for their future. Tika Ram Pokharel As is the case concerning juvenile-specific regulations, safeguards guaranteeing the rights of persons deprived of their liberty are routinely ignored. These include, for instance, the constitutional requirements for a 24-hour limit
Nepal
223
to detention of a person without them being brought before a judge; the requirement to provide a person with a detention letter and an arrest warrant; and to keep the detainees name in police records. These requirements aim at protecting individuals rights against abuses by the State and at ensuring that no one is kept in incommunicado and arbitrary detention, leaving the door open to torture and abuses. As a result of the lack of punishments attached to any violations of these safeguards, they are at best loosely implemented and therefore in reality provide inadequate protection to the detainees and arrestees who are left exposed to abuses. The case of Nijamuddin Sekh 49 is an unfortunate illustration of how the disrespect for fundamental rights enshrined in the Nepalese Interim Constitution has created a situation where the very notion of law as a shield against abuses of power is denied. On July 21, 2011, the 21-year old carpenter was arrested in Nepalgunj by police officers from the Banke District Police Office concerning allegations relating to a case of abduction. In the DPO, he was tortured for about one hour during the night, and then blindfolded, handcuffed and pushed from what seemed to be a high place. As a result of the torture, the victim suffered extensive injuries, including a fractured lumbar vertebra, which may take months to heal and may prevent him from going back to work. The authorities had reportedly registered him under a false name in the hospital, therefore preventing his identification. The victims father was therefore unaware of his sons arrest and whereabouts for several days. During the arrest, the police had switched off the victims phone and repeatedly denied his requests to contact his family to inform them about his situation. The DPO also repeatedly refused to accede to the victims familys queries about his whereabouts and only learnt about his presence in the hospital by chance. On 16 August, the victims bail hearing was held, and the court ordered the DPO to provide him with free medical treatment as he had been injured during the course of investigation. On 6 September, he filed a case under the Torture Compensation Act seeking compensation and punishment for the perpetrators. A similar ordeal was endured by Atiram Rana50. He was arrested on April 12, 2011, and kept in illegal and incommunicado detention for six days. It was only after a habeas corpus hearing that he was given a detention letter and an
49 NEPAL: A young mans spine is broken following police torture, August 2, 2011, AHRCUAC-129-2011, http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-129-2011 50 NEPAL: Police keep incommunicado and torture a young man by water pouring and using chili powder in Banke, May 19, 2011 AHRC-UAC-099-2011 http://www.humanrights.asia/ news/urgent-appeals/AHRC-UAC-099-2011
224
arrest warrant. At the habeas corpus hearing, the judge ordered the policemen to stop inflicting torture on the victim but did not take any further action against the perpetrators. Although it was apparent that the victim had been subjected to torture, the judge did not even order his transfer to another place of detention and he remained in the custody of his torturers for one more month. The weak nature of the governments commitment to eradicate torture can be measured by the indifference shown to civil societys repeated requests for the government to establish a system of regular monitoring of places of detention. Although several legislative measures enable different bodies, including the National Human Rights Commission and the Attorney General Office, to conduct regular monitoring, such system is yet to be implemented effectively, and the burden of monitoring is mostly handled by NGOs. During the UPR, Nepal refused recommendations urging it to accede to the Optional Protocol to the Convention against Torture, which allows for a torture prevention mechanism based on regular visits by independent bodies to places of detention. Nepal also rejected a recommendation made by the Maldives to designate a national preventive mechanism, to safeguard the rights of detainees and to prevent any acts of torture and indicated that a preventive mechanism already existed. In light of the above, it is evident that whatever mechanism the government is referring to is clearly not working. The government stated position of committing to eradicate torture is obviously called into question by its refusal to allow independent scrutiny. The extensive work of NGOs in Nepal have demonstrated that in places of detention in which visits were regularly conducted, the incidence of torture tended to decline, thus illustrating the necessity to have such a mechanism implemented nation-wide. Cases documented in 2011 show that persisting impunity protects perpetrators of torture from any consequences arising from their abuses and is the major cause of the continuing use of torture in Nepal. Cases in which children and adults having been subjected to serious form of abuse at the hands of the police illustrate how the system of impunity operates concerning this grave human rights violation. The lack of sanctions taken against police officers who are violating fundamental rights under the Nepalese Constitution allows criminal State agents to retain a position of authority from which they can abuse power for their own advantage. The fight against impunity should therefore be made the cornerstone of a serious approach to the eradication of torture, and start with enactment of a law criminalizing torture and the establishment of clear punishments for those
Nepal
225
found guilty of torture that are in line with international standards. Currently in Nepal, in spite of repeated commitments expressed by the government, such legislation remains absent and the only law relating to torture is the Torture Compensation Act, 1996, which limits itself to granting compensation to victims of torture. Under the act, if torture is found to have been inflicted on a victim, the district court shall order the appropriate agency to take departmental action according to the current law against the government employee who has inflicted torture51 In reality, such action is rarely ordered by the courts, who limit themselves to granting limited amounts of compensation to the victims. In the case of Mahima Kusule 52 discussed below, the court acknowledged that torture had been committed, as defined in the Torture Compensation Act, but disregarded the provisions of the law which allow for punishment of the perpetrators, thereby granting them with impunity. Furthermore, when compensation is provided as per the Torture Compensation Act, the State pays the monetary compensation, not the perpetrators. Therefore, even the smallest degree of individual liability is absent from the current legislation on torture. Court acknowledges torture but fails to punish the perpetrators On May 22, 2011, the Dolakha District Court ordered that compensation amounting to Rs.15,000 should be provided to Mahima Kusule, a 26 year-old woman, who on July 14, 2010, had been brutally tortured in the custody of the Dolakha district police, because she had refused to falsely identify herself as the accused in a theft case. She was detained on suspicion of theft without being provided any detention letter, arrest warrant or a health check-up as is mandatory under the law. She was told that would she have the truth tortured out of her. Two policemen in plain clothes and two policewomen tied her hands with a strip of denim, inserted a bamboo stick between her knees and hands and propped her legs up. The soles of her feet were then beaten with plastic pipes for about 20 minutes and she was also beaten on her hands, thighs and chin. She was slapped and threatened with being subjected to electric shocks. She was released without charge the following day.
51 Torture Compensation Act, 2053. 52 Court acknowledges torture but no sanction is taken against the perpetrators, AHRCUAU-027-2011, 30 May 2011 http://www.humanrights.asia/news/urgent-appeals/AHRCUAU-027-2011.
226
In the aftermath of the torture, the victim has been suffering from pain in her swollen cheeks; hands; left shin, which was deeply bruised; the soles of her feet, which were clotted with blood, as was her lower abdomen and her chest. The victim also reported suffering from severe headaches, nausea and dizziness, along with sleeplessness, a loss of appetite and occasional anxiety attacks. A psychiatrist diagnosed the victim with post-traumatic stress disorder, depression and an adjustment disorder. With the assistance of Advocacy Forum, she lodged a case under the Torture Compensation Act at the District Court, Dolakha. On May 22, 2011, the District Court acknowledged that the victim had been subjected to torture and issued an order to provide the victim with Rs. 15,000/- as compensation. The court limited itself to instruct the perpetrators not to torture detainees again but no departmental action was ordered against them. The victim and her family said that her fight was not to get compensation but justice. They therefore filed the case at the Appellate Court seeking an order to bring the perpetrators to justice. The UN Special Rapporteur on Torture intervened concerning this case in a communication transmitted to the Nepalese government on September 8, 2010. The governments response however was unsatisfactory, as it limited itself to denouncing the allegations as completely baseless, fabricated and hypothetical without providing any evidence to support this claim. The governments position runs contrary to the findings of the court, which has acknowledged the veracity of those torture allegations, and is therefore illustrative of the governments lack of credibility concerning the eradication of torture. During the UPR process, Nepal accepted the following recommendation made by Switzerland: In the framework of the reform of the penal code and the penal procedure code, conform to the totality of the provisions of the Convention against Torture. Nepal is currently in the process of reviewing both its Criminal Procedure Code and its Criminal Code. In the process, it has committed to include provisions that criminalize torture and to provide for clear punishments for those found to have committed the crime. For the moment, the draft versions of both codes have been published and various stakeholders and NGOs have provided feedback. Some of their comments have been incorporated to ensure that the proposed text shows greater adherence to international standards. Nevertheless, concerns remain as to whether this
Nepal
227
revision will provide an instrument that is capable of bringing torture and impunity to an end. Human rights organizations welcome the efforts to introduce specific punishments for torture as a first step to put an end to the current, absurd situation, in which no sanctions can be taken against those who violate one of the most fundamental constitutional rights. At the moment, enacting specific legislation to deal with the issue of torture is not under consideration. At the moment, the draft code criminalizes secret detention, detention without provisions of minimum humane facilities and enforced disappearance, all of which enable torture. Such a measure would assist in safeguarding against ill-treatment and torture of detainees. Furthermore, other measures would increase the protection from torture, including the notification of the detainees families of their arrest, the systematic access of detainees to legal counsel and the keeping of written records of detainees in detention and their interrogation. Section 164 of the proposed Criminal Code criminalizes torture and makes it an offence punishable by a fine or a maximum penalty of five years imprisonment. Of serious concern is the fact that the penal code may not set a mandatory prison sentence for perpetrators of torture, which is required under the Convention against Torture, which states that torture should be punishable by appropriate penalties which take into account their grave nature. The possibility for those convicted of torture to get away with only paying a fine, is clearly not proportional to the gravity of the crime and is therefore unlikely to act as a deterrent to other would-be perpetrators. Furthermore, the draft criminal code includes provisions under which the government needs to issue an order in writing before a State agent who was in the course of discharging her/his official duties can be prosecuted. If this provision was to be included in the adopted legislation, the result would provide a de facto veto right to the government regarding prosecutions for torture. Under international law, the prohibition of torture is absolute and non-derogable, which means that exceptional circumstances cannot be invoked to justify the lack of prosecutions against perpetrators. Given this, the decision to undertake prosecutions against government employees allegedly involved in torture cannot be subjected to a political decision by the executive branch of the government. In other Asian countries, such as India and Bangladesh, similar provisions are also in force and are widely misused to prevent the prosecution of human rights violations and to protect human rights violators. In addition, the crime of torture is excluded from the list of non-pardonable offences, concerning which the withdrawal of cases cannot be allowed, in the Draft Criminal Procedure Code, keeping open another avenue down which impunity for perpetrators of torture may still be pursued.
228
Furthermore, the act includes a limitation period of six months for the filing of cases of torture, which also falls short of internationally accepted international norms and standards, as there can be many obstacles, including medical, psychological or security reasons, which may prevent a victim of torture from filling a complaint within 6 months. In 2005, the Committee against Torture recommended that government of Nepal to amend its current and planned legislation so that there is no statute of limitation for registering complaints against acts of torture53. Nepal should implement this recommendation and remove any statute of limitation concerning the filing of torture complaints. In light of the cases documented by the AHRC and its partners in recent years, it is apparent that the absence of an investigation body mandated to investigate complaints of torture is a serious loophole that contributes to the lack of any impartial and efficient investigations into such complaints. Under current legislation, the head of police retains control of the investigation process, even when it concerns his or her staff. As long as no independent body is created to probe cases which, if investigated by the police, would result in an open conflict of interest, the effective prosecution of cases of torture will remain impossible. During the UPR of Nepal, Australia recommended the adoption of an independent complaint mechanism on the conduct of the security forces. However, the government did not accept the recommendation and claimed that the existing complaint mechanism is already independent, which is clearly erroneous. It also responded to recommendations calling for the government to ensure prompt and impartial investigations and prosecutions of allegations of torture by stating that it considered that they were already implemented or in the process of being implemented. This represents a complete denial of the reality of the obstacles that torture victims face in seeking legal redress. The absence of any independent authority to probe cases of abuse by the police accounts for the criminal justice systems inability to investigate and prosecute such cases. The case of Ang Dorje and Jambu Sherpa speaks to the difficulties faced by torture victims seeking to have their cases registered, let alone investigated. The afore-mentioned victims first tried to file a case in the police station to which the perpetrators of torture belonged, to no avail, as the Deputy Superintendent of Police, who has the highest authority in that police station, openly admitted
53 CAT/C/NPL/CO/2 15 December 2005 CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION Conclusions and recommendations of the Committee against Torture NEPAL http://www. unhcr.org/refworld/pdfid/441182d90.pdf
Nepal
229
that he wanted to protect his subordinates and therefore could not file the case. Similarly, when they tried to file the case in the highest-ranking police office in Kathmandu District, the Superintendent of Police there also refused to receive the FIR. Instead, he put the blame on the victims themselves and accused them of having fabricated the incident to tarnish the police officers reputation. He also insisted on interrogating the lawyer who had helped the victims draft the FIR, a requirement which has no legal basis whatsoever. Because they insisted on having their case investigated the police reportedly threatened them and put pressure on their landlord to evict them from their home. When Jambu went to the Home Ministry to file a petition, instead of taking her statement and making sure an independent investigation would be launched, the government official that she was reporting to contacted the police station where she had been tortured, recorded their version of events and thereafter refused to discuss the matter with her. It is reported that the then-Home Minister also refused to take any interest in the case, stating that it was common for shop owners to get into trouble with the police. This case illustrates the collusion between the different levels of the police hierarchy and the complacency of the Home Ministry, which has the highest responsibility to ensure that the police forces maintain the highest standards of professional ethics and integrity and abide by the law. The case of Dharmendra Barai is yet another illustration of the inadequacies of the current investigation system concerning allegations of police violence. This 14-year-old boy died while in police custody in July 2010. Allegations that his death was due to torture were supported by substantial evidence and witness statements. In its 2010 annual report, the AHRC described how investigation teams set up to probe into this case failed to show due diligence and worked to prevent the prosecutions of the alleged perpetrators rather than at shedding light on the exact circumstances of the boys death: The investigation team set up to probe the circumstances of his death was composed exclusively of policemen under the leadership of a government official, without including any representative of the deceaseds family or civil society, casting doubts over its ability to impartially investigate a case involving police officers.[] The investigation report concluded that it could not establish that torture was the cause of death, and it ignored information concerning the victims injuries in the post-mortem report. The report limited itself to denouncing minor procedural flaws in the polices behaviour and to recommending departmental actions without specifying the nature of the sanctions or giving the names of those who should be sanctioned, and without denouncing the fact that a minor was kept in the same detention conditions as adults. []The District Police Office and the District Administration Office (whose head also lead
230
the investigation team) both refused to file an FIR in the case under fallacious pretexts.54 A separate investigation team formed by the Ministry of Home Affairs is yet to publish its report, more than one year on. The police officers have also refused to visit the sub regional office of the National Human Rights Commission in spite of being summoned to do so on numerous occasions. Following an application for a writ of mandamus filed by the victims father on September 9, 2010, the Butwal Appellate Court issued a writ of mandamus against the Butwal DPO, on January 26, 2011, ordering it to initiate a fully independent, impartial, effective and prompt investigation into the case as per law. At the time of writing this report, almost ten months on, no such investigation has yet taken place. As per a decision taken by the Council of Ministers of Government of Nepal, the Ministry of Home Affairs on February 2, 2011, sent NRs. 150,000 (around US$ 1,860) to the DAO to provide monetary support to the victims family members. At first, the victims father was told that he needed to withdraw the criminal case to receive the monetary compensation, and therefore initially refused to take the money. After NGOs ensured him that he could receive that money unconditionally, he eventually accepted the monetary support on September 13, 2011. This is one more illustration of the governments attempt to elude the need for criminal investigations and prosecutions by offering compensation to the victims family, a move which falls short of realizing the familys fundamental right to a legal remedy, as enshrined in the International Covenant on Civil and Political Rights, to which Nepal is party. These cases clearly show that police officers must not be entrusted with the task of registering and investigating cases of alleged misconduct by other members of the police, as torture has repeatedly been condoned by the police hierarchy or administration. Making sure that victims of torture have access to independent authorities to register their complaints is therefore essential as part of the criminalization of torture, an effective system that can provide remedies is going to be established. And yet, in spite of clear evidence to the contrary that is exemplified by these two cases and dozens of other similar cases that the AHRC has documented since the end of the conflict, the government still claims that it believes that the existing complaints mechanism on the conduct of security forces is independent and does not accept recommendations to establish a separate complaint and investigation mechanism.
54 http://www.humanrights.asia/resources/hrreport/2010/6%20Nepal_2010.pdf
Nepal
231
The absence of an independent investigation process combined with the absence of a witness and victim protection mechanism makes victims seeking redress vulnerable to threats, intimidation and further abuses if they pursue their cases. As a result, only a handful of victims of torture are willing to press charges against the perpetrators. According to Advocacy Forums data, in 2010, out of the thirty-six the organization documented, only five cases of torture against women were transmitted to the relevant governmental office for investigation, as the victims were afraid to make a complaint due to the fear of further victimization.55 In 2005, the Committee against Torture recommended that Nepal Consider adopting legislative and administrative measures for witness protection, ensuring that all persons who report acts of torture or ill-treatment are adequately protected.56 Such legislation is yet to be adopted, although the proposed criminal procedure code has included some elements of witness protection such as the possibility to give evidence via audio-visual recording as well as prohibiting the publication of names of vulnerable witnesses. As described by Advocacy Forums Kamal Pathak: Victims of torture may not be willing to file the case because of the impunity for the perpetrators; they do not feel encouraged to do so. Also, they know that if they file a case, it may bring them more problems than if they do not. As I mentioned, after filing the case, victims have been receiving threats, including death threats, to force them to withdraw the case and some of them are even bribed by the police. So because of that they are not very willing to file the case. But if we had a good legislation and if they knew that they could get justice and see the perpetrators punished, a lot more torture victims would probably be willing to come forward and file cases. Tika Ram Pokharel from CVICT has also added that: There are a lot of torture cases but not a lot of people bring this kind of cases to court, because of a lack of knowledge of the dispositions of the law and fear of re-victimization. In my experience, out of one hundred torture victims, hardly five would be ready to file a case against the perpetrators
55 Torture of women in detention-Nepals failure to prevent and protect , Advocacy Forum, 26 June 2010 http://www.advocacyforum.org/downloads/pdf/publications/torture-of-womenin-detention-english-26-june-2011.pdf 56 CAT/C/NPL/CO/2 15 December 2005 CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION Conclusions and recommendations of the Committee against Torture NEPAL http://www.unhcr. org/refworld/pdfid/441182d90.pdf
232
Several cases illustrate the high price that is paid by torture victims seeking redress due to the absence of witness protection: a couple of shop owners who are torture victims were expulsed from their home and subsequently subjected to further human rights violations.57 Furthermore, policemen who had tortured an 11-year old boy repeatedly harassed his father after he filed a case and, when contacted, the DSP, who is the highest police authority in the District, refused to intervene to bring the threats to an end.58 Separately, the doctor of a fourteen-year old child who had been beaten by a soldier and left unconscious was threatened by the army into halting the victims medical treatment.59 Perhaps the most emblematic case illustrating the hardships facing torture victims is to be found in obstacle course that Inspector of Police Hom Bahadur Bagale has been forced to navigate while trying to seek justice since 2002. Despite being a member of the police, he was tortured and detained incommunicado for two weeks in 2002, for having refused to follow an order which was not part of his regular duties. This case illustrates at length the aberrations present in the current justice process, which remains incapable of ensuring the right of remedy to victims, while creating situations in which the victims themselves may risk further punishment if they seek justice. Since 2002, no investigation has been launched into the allegations of torture in the case in question here. The victim filed a Torture Compensation case, which was rejected both by the District Court and the Appellate Court. The case was then filed in the Supreme Court on August 21, 2008, but this hearing has still not taken place as of the end of 2011. This nine-year long situation of injustice for the victim and impunity for the perpetrators has exposed the victim to repeated threats of death or dismissal, retaliations and further victimisation by the perpetrators, in order to try to force him to drop the legal proceedings he has launched. The superior ranks in the police administration have colluded with the perpetrators in their attempt to force the victim to resign if he did not stop the proceedings. In 2006, because he had refused to cede to this pressure, the victim was arrested, held in custody by the Hanumandhoka District Police Office and again tortured. Although the court acknowledged that torture was inflicted on the victim in this second case and granted him compensation
57 NEPAL: Torture victims face eviction and harassment 17 March 2011 AHRCUAU-018-2011 http://www.humanrights.asia/news/urgent-appeals/AHRC-UAU-018-2011/ 58 NEPAL: The torturers of an 11-year-old child must be brought to justice AHRCUAC-010-2011 24 January 2011 http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-010-2011 59 NEPAL: Soldier beat four villagers and a child leaving them unconscious, AHRCUAC-095-2011, Asian Human Rights Commission, 13 May 2011, available at: http://www. humanrights.asia/news/urgent-appeals/AHRC-UAC-095-2011/
Nepal
233
on September 18, 2008, the compensation amount has never actually been received by the victim, and no punishments have been handed down against the perpetrators. Since then, some of the perpetrators have instead been rewarded with promotions, while the victim has been fired from his job and stripped of his pension. 60 Although attempts to criminalize torture and some changes in key stakeholders such as judges attitudes towards torture are positive trends, the widespread nature and severity of the kinds of torture used in Nepal remains worrying. In light of the dysfunctional state of the criminal justice system, notably concerning its ability to address torture, criminalizing torture will not be sufficient of itself in order to banish torture from Nepal. In addition to the criminalization of torture, it is essential that Nepal develops mechanisms to guarantee the fairness and effectiveness of inquiries. Such mechanisms should include in particular an effective witness and victim protection system, an independent investigative body, a separate mechanism to register complaints of torture and mandatory punishments for public officers found to have obstructed victims access to justice. Effectively eradicating torture from Nepal will be a benchmark through which the state of the Nepalese democracy will have to be measured. An illustration of the corruption-torture nexus and how the police hierarchy looks after its own According to information received from the Centre for Victims of Torture-Nepal, 7 to 8 policemen from the Metropolitan Police Circle, Maharjgunj, Kathmandu, came to the house of Mrs. Jangbu Sherpa and Mr. Ang Dorje Sherpa on February 9, 2011. The policemen reportedly asked them for money for no legal reason. When the victims refused they were beaten and tortured by the policemen. The policemen also reportedly looted an important amount of money from their house. The two victims were taken to the Metropolitan Police Circle, Maharajgunj, Kathmandu, and were severely beaten during the journey. At no point during their arrest were they shown an arrest warrant or informed about the charges pending against them.
60 NEPAL: Prolonged unabated harassment of a policeman torture victim for nine years require legal redress, March 10, 2011, AHRC-UAU-014-2011, http://www.humanrights.asia/news/ urgent-appeals/AHRC-UAU-014-2011
234
They were kept in detention by the police until 11.30 pm. During their detention, the two victims were insulted with foul language, threatened with death and the police also threatened to file wrongful accusations against them, ensuring that they would be imprisoned for a long period of time. The next day, the couple went back to the police station to claim back the money that the policemen had looted. There, the Inspector who had tortured the couple admitted the use of torture to the Deputy Superintendent of Police, the highest-ranking police office in the police station. Instead of condemning and reporting this grave violation of the fundamental rights he is supposed to protect, the DSP mockingly told the victims You filed case against the police in another torture incident in 2007, but you could not do anything and no police lost their jobs, in reference to a previous case of torture in which Ang Dorje Sherpa had also been a victim. The use of torture was therefore openly admitted in front of a senior officer, who instead of condemning this act and providing assistance to the victims, encouraged this breach of law, seriously failing to fulfil his duties to protect the rights of ordinary citizens. On February 22, 2011, the victims went back to the police station to register a First Information Report (FIR) concerning this case. The DSP then reportedly refused to register the FIR, saying that he could not do so as it would make the perpetrators lose their jobs. This is an open admission from a higher-ranking police officer that he is protecting lower-ranking policemen who have committed a grave abuse of power, therefore indirectly approving, accepting, and supporting the use of torture by police officers to collect bribes. The following day, the victims went to the Hanuman Dhoka Metropolitan Police Range, which is the highest-ranking police office in Kathmandu District, to lodge the FIR, but the Superintendent of Police there also refused to receive the FIR, before interrogating the lawyer who had written it and accusing the victims of having fabricated the incident to shame the involved police officers. On February 28, 2011, the two victims went back to the Maharajgunj Metropolitan Police Circle, to ask for the Rs. 25,070 which had been looted from their home by the team of policemen belonging to that police station. There a police officer rejected their request and reportedly
Nepal
235
threatened to harass them until they dropped the case, as they were trying to damage the reputation of police officers. He also allegedly threatened to force them out of their house in retaliation. Following this run-in with the police, the owner of the couples house told the victims to move out of their house and shop. There are strong reasons to believe that the police pressured the house owner to evict the couple as a reprisal. The police reportedly called the victims to the police station and ordered them to leave their house or they would be forced out and their belongings would be thrown on the road. When the victims told the police that the law contains provisions according to which the landlord should give his tenants 35 days notice to ask them to leave his premises, the police reportedly replied that they could only give them a 20-day notice period. The victims were evicted and had to relocate to another area. The victims have since filed a petition with the Home Ministry and the Attorney Generals Office but so far no concrete steps have been taken to provide them with redress or hold the perpetrators accountable. V - Extrajudicial killings in the Terai The number of extrajudicial killings that have been reported in 2011 has significantly reduced in comparison to the previous years. Nevertheless, such cases continue to be reported and impunity for police officers alleged to be involved in such killings remains deeply entrenched. Against a background of continuing insecurity and police ineptness in re-establishing stability in the Terai, the police are resorting to extra-legal methods to re-establish law and order, as illustrated by the worryingly high rates of torture by the police in the Terais districts. None of the dozens of documented allegations of extrajudicial killings that have taken place since the end of the conflict, which the police arbitrarily and erroneously claim are encounter killings, have been independently investigated to date. The resultant lack of prosecutions leaves victims families in limbo regarding the circumstances surrounding the killing of their kin. The failure by the government to acknowledge the serious nature of this issue has been accompanied by its incapacity to develop a framework of accountability through effective investigations and prosecutions of allegations of extrajudicial killings. The OHCHRs office in Nepal released a significant report in July 2010, entitled Investigating Allegations of Extra-Judicial Killings in the Terai -
236
OHCHR-Nepal Summary of Concerns (July 2010) 61 in which it detailed a worrying incidence of extra-judicial killings attributable to the State in the Terai. The OHCHRs report notes that although the governments Special Security Plan, launched in 2009, appears to be reducing criminal activity, credible allegations of unlawful killings have continued to surface, most of which, according to information received by OHCHR, have gone uninvestigated. This is the case even though the Special Security Plan incorporates a commitment to protect human rights. However, the government has refused to implement the reports core recommendations and rejected the entirety of the reports findings. By disregarding the reality of the extrajudicial killings trend in the Terai, the government is justifying its inaction and condoning impunity. Similarly, when the issue of extrajudicial killings was raised during the UPR as an issue of concern by a number of States taking part in the review, the government once again denied the very existence of the problem and indicated that it was already taking necessary measures for the prevention of extrajudicial killings, ensuring swift and fair investigations on alleged misconduct by law enforcement authorities and ensuring the delivery of justice regarding these serious human rights violations . On the contrary, the cases documented indicate that the police almost always refuse to file First Information Reports following requests by family-member or to launch investigations into the circumstances of the killings. Court orders and National Human Rights Commission recommendations to investigate the circumstances of the killings are also being disregarded. When investigations are launched, they lack independence, as they often even involve police officers from the same police station as those under investigation, thereby creating a direct conflict of interest. Witnesses and victims families are regularly subjected to intimidation, threats and pressures from the alleged perpetrators to prevent them from pursuing their cases. The governments rejection of the OHCHRs recommendations to launch investigation into all cases of extra-judicial killings, to establish an independent complaints and investigation mechanism, and to adopt measures to support and protect witnesses, victims and their family members, which together would enable fair and impartial investigation procedures - clearly shows that the governments claim to be carrying out swift and fair investigations lacks credibility. The case of Sahid Abdul Dewan, presented above, illustrates how abhorrent it is to assert that swift and fair investigations are being conducted, following
61 http://nepal.ohchr.org/en/resources/publications/Investigating%20Allegations%20of%20 Extra-Judicial%20Killings%20in%20the%20Terai.pdf
Nepal
237
which justice is delivered concerning cases of extrajudicial killings in Nepal. On October 26, 2009, members of his village witnessed the unarmed Sahid Abdul Dewan being shot by three policemen, and a few moments later saw police officers placing a pistol and ammunition around his dead body. The police prepared a report stating that while they were patrolling, they were shot at and had to return fire, killing the attacker instantly. The police further claimed that they recovered one home-made pistol, one bullet and one cartridge from the dead body. Despite a tireless fight by his father to shed light upon the circumstances of the killing, and an injunction by the District Court for the police to conduct an investigation into the case, no action has been taken so far. Instead, the public prosecutor office, in collusion with the District Police Office has spent a lot of energy trying to get the case withdrawn by the Attorney Generals Office. The victims father has faced repeated threats by the police for him to drop the case. One person who has been providing assistance to the father has been arrested on fabricated charges and detained for nine months without a trial. The police have used this persons detention to threaten the father, reportedly stating that either you drop the case, or he will remain in our custody. Two years after the case, no swift and fair investigation has been conducted into the case. VI - Attacks on human rights defenders and journalists continue with impunity During the UPR, the Czech Republic recommended that Nepal Take concrete steps to ensure the security of human rights defenders, including journalists. The government of Nepal accepted this recommendation, thereby pledging to the international community that it would implement it. However, as will be seen below, this implementation has not taken place. A. Attacks on human rights defenders and lawyers fighting against impunity contribute to the suppression of the right to adequate remedies for victims In the context of a system of deeply-entrenched impunity, of the politicization of human rights issues and of a weak rule of law framework, the space for human rights defenders (HRDs) and lawyers, especially those working on impunity issues, has been shrinking in 2011. Since the end of the conflict and the Jana Andolan II movement, civil society had managed to carve a space for itself in Nepal and to impose itself as a necessary actor in Nepals democratization process. Human rights defenders are recognized as having been the driving force behind the democratisation and peace process in the country,
238
however, in 2011, the governments attempts to close the avenues through which conflict victims could have their voices heard and fight for justice has been accompanied by a reduction in the space enjoyed by civil society, and has placed human rights defenders in an increasingly precarious situation. In addition to State actors, non-state actors, political parties and armed groups, have also contributed to the significant shrinking of space available to human rights defenders. The government of Nepal has so far failed to establish an environment conducive to and protective of the work of HRDs, by failing to hold State and non-State actors accountable for attacks and threats against HRDs. The failure to reverse this trend will bode ill for the future of Nepals democracy, as civil society has become the last resort concerning the defence of human rights and justice in the absence of a functioning rule of law framework. A system which leaves no room for the work of human rights defenders and journalists is a system which place little value in the notion of right to justice and the freedom of expression. Ensuring a working environment that is conducive for human rights defenders is therefore essential if the government is to have a serious and credible approach to human rights. There is no official recognition of human rights defenders as such by the State, and no effective legal mechanism has been designed to ensure their protection and their ability to work unhindered. As a result, human rights defenders continue to be vulnerable to threats and intimidation by State and non-State actors. The government has largely failed to comply with its international obligations to promptly investigate such acts and bring the perpetrators to justice. When attacks or threats of attacks are reported at police stations, the police very rarely provide protection to the defender at threat, or launch a thorough inquiry into the allegations, or initiate prosecutions against the perpetrators. As a result, this encourages further attacks and threats against the defenders as the perpetrators are ensured that no action would be taken against them if they do so. At the local level, political parties have also been involved in threatening lawyers and HRDs working on cases which do not, at first sight, appear to be politically sensitive. Lawyers defending victims of violations in cases in which the perpetrators had a link, however slight, with political parties, have been at risk of receiving threats not to pursue the case. In a number of cases the lawyers were even physically manhandled. Threats against such HRDs may result in the perversion of the course of justice. This has been seen in cases of rape, castebased violence and child abuse.
Nepal
239
Given the system of impunity that protects those who threaten HRDs, those working on the rights of marginalized or excluded communities and groups that face discrimination, are in a particularly precarious position. As they are challenging the established social order, they often do not receive support from society and the police. In the Terai region, in the Western part of Nepal in particular, where social hierarchies are the most rigid and where armed groups have been increasingly active, the vulnerability of such HRDs is at its greatest. Attacks against human rights defenders and lawyers aim at preventing an effective dialogue on human rights and at discouraging them from taking action to hold human rights abusers accountable. If no action is taken to prevent these attacks, impunity for human rights violations is strengthened. By targeting those working with them to assert their rights, such attacks contribute to the denial of the right to effective remedy of victims. As a result, the issue of protection of human rights defenders was rightly raised as an issue of serious concern during Nepals UPR session, with several States recommending that the government guarantee the security of human rights defenders. However, the government has not taken this opportunity to take concrete and measurable commitments to the protection of HRDs. It explicitly accepted only one recommendation to take concrete steps to ensure the security of human rights defenders, including journalists. It did not however, accept more specific recommendations concerning the need to promptly and effectively investigate complaints of harassments and abuses against HRDs and journalists, and to hold the perpetrators accountable. In its response to these recommendations, the government indicated that the Security agencies are active in ensuring security of all citizens, including the rights defenders, journalist and women activists. The rights violators are prosecuted as per law. Cases documented in Nepal in 2011, however, contradict this statement, and show that the State is failing to respond to, investigate or prosecute threats or physical attacks against human rights defenders. In addition, State actors, including the security forces and the police, have been involved in coercing human rights defenders into stopping their work in favour of victims. Threats by State and non-State actors against HRDs have become a tool allowing them to enjoy impunity for serious human rights violations, such as torture or extrajudicial killings. Nepals government further indicated that it was considering adopting a special programme to protect human rights defenders, but has not been more specific regarding the contents of such a programme, or concerning the timeframe for its adoption. It is unclear whether the plan will lead to the development
240
of a more conducive environment for the work of human rights defenders, by including for instance: recognition by the State of the work of human rights defenders and of the role they play in the society; addressing the issue at the policing level by giving clear and imperative instructions to the police to properly investigate all cases of threats against human rights defenders; and plans to provide them with adequate protection where necessary, with special attention to the specific needs of defenders working with vulnerable groups, including women. In addition, human rights defenders and lawyers who are victims of such acts must be provided with an effective remedy, which involves prompt investigations into all allegations of attacks or threats against human rights defenders and the prosecution of all alleged perpetrators. B. Impunity puts freedom of expression in peril Although there is no official governmental censorship system in Nepal, freedom of expression remains in a precarious position as journalists repeatedly come under attack or face threats of attacks for reporting on sensitive cases. As a result, human rights is given limited coverage as journalists know that reporting such cases may lead to problems. Intervention by political parties in all aspects of social life, poor law enforcement and a general climate of impunity, combine to create a situation in which the freedom of expression for journalists is not guaranteed. Nepal is still largely failing to hold accountable the perpetrators of such attacks, as has been illustrated by the attack on journalist Khilanath Dhakal. On June 5, 2011, Khilanath Dhakal was attacked by members of the Youth Force, a youth wing of the then-ruling party the Communist Party of Nepal Unified Marxist Leninist (CPN-UML), in retaliation for having reported an attack by Young Force members on a prisoner and the police in the premises of the Morang District Court. A complaint was filed against three members of the YF, including Parshuram Basnet, the district head of the YF, who was accused of having masterminded the attack. Although the other two perpetrators were arrested, Basnet remained at large. In response to the filing of the case, the victim and the journalists assisting him in filing his case were reportedly threatened by the alleged perpetrator with dire consequences if they did not withdraw the case. The national leaders of the YF reportedly publicly gave support to the perpetrator, and admitted to protecting him from the police. Furthermore, they threatened to close the newspaper of the victim, to jail his editor and issued threats to all journalists found to have reported on the case. The perpetrator also received the public support of the CPN-UML leader, who accused the police and government of being politically manipulated. In August,
Nepal
241
after the District Court issued an arrest warrant for Basnet, a bandh (strike) was enforced by the Youth Force in the district to demand the withdrawal of the case. On 18 August, Reporters without Borders reported that several members of the Morang District Police, including a Deputy Superintendent, have been relieved from duty for helping Basnet and his accomplices to escape. This case has revealed the extent to which collusion between political parties and law enforcement agencies can result in a situation in which freedom of the press is blatantly trampled upon with impunity. However, there were some limited positive developments in 2011 concerning impunity for attacks on journalists in Nepal. In May, two men involved in the 2007 murder of journalist Birendra Shah, who had been critical of local Maoists, were convicted to life imprisonment by the Bara District Court. The Maoist Party publicly recognized the responsibility of three of their members in masterminding the murder, and suspended them from the party. However, the three perpetrators have not yet been apprehended. Similarly, two suspects were convicted in June 2011 of the 2009 murder of a woman journalist, Uma Singh, in reprisal for having reported on cases of land grabbing by the Maoists. The two were also convicted to life imprisonment. However, the man who reportedly ordered the attack remains free, as do the other perpetrators to date. These two relative successes remain anecdotal, as in most of the cases documented in 2011, the perpetrators continue to enjoy complete impunity. As a result of the lack of a response by the State to the repeated obstruction of the work of journalists, Nepal is ranked 119th out of 179 countries in the Reporters Without Borders freedom of expression ranking, while the Committee to Protect Journalists ranks Nepal as the seventh country from the top of the list in terms of impunity granted to killers of journalists. Freedom of expression and freedom of the press are two of the fundamental pillars of a thriving democracy and as long as Nepal fails to strengthen its rule of law and law enforcement frameworks, these two pillars will not be effectively protected, handicapping the establishment of a stable and fair democracy in Nepal. VII - Caste based discrimination Nepal is a country characterized by its diversity, with 102 ethnic groups, 92 languages and 7 religions having been recorder in the country as part of a census carried out in 2001. Of all those diverse communities, the Dalit community continues to face the harshest living conditions, due to continued
242
discrimination by the rest of the society. 2011 saw some progress in the way caste-based discrimination was addressed by the State, with the adoption of the first law criminalizing caste-based discrimination in Nepal and the launch of a 100-day campaign by President Dr. Ram Baran Yadav, who pledged to commit to end caste-based discrimination and untouchability. However, many challenges lie ahead if Nepal is to bring to an end the widespread human rights abuses that accompany caste-based discrimination and which contradict the essence of democracy by denying Nepalese the right to equality and dignity. In the Hindu religion, the Dalit community is considered as being the lowest group in the caste hierarchy. The Dalit community remains the most marginalized and disadvantaged group in Nepalese society. The feudal hierarchical caste system, based on orthodox Hindu tradition, continues to influence the structure of Nepalese society and leads to the exclusion of Dalits from every sphere of public life. Dalits continue to be prevented from sharing water taps with the rest of the community or from entering temples, for example. Dalits remain segregated from non-Dalits when they take part in socio-cultural activities, such as marriage, worshipping and other ceremonies. Dalits, notably Dalit women, have benefited the least from the significant social and political changes that Nepal has experienced during the last two decades. They have remained under-represented at the political level and have unequal excess to decision-making positions. Socially, they continue to suffer exploitation by the rest of the society. Economically, the Dalit community is among the poorest in society and has the lowest access to land. Within the Dalit community, Dalit women suffer from three-fold exploitation, through caste, gender and class. Traditional social roles devoted to women in Nepal has meant that discrimination against Dalits disproportionately affects them: for instance, although all the community suffers when they are prevented from accessing public taps, as it is the women who are in charge of collecting the water for the household, they are those who face attacks if a controversy arises concerning the use of public taps, and have to walk further in order to collect water. Similarly, although the whole community suffers from a low access to education, within the family boys are given preference to go to school, limiting girls right to education even further. They have a low access to justice and few opportunities to have their voice heard in the public sphere and to call for social reform. Further, Dalit women have few resources and limited economic and social power, and have therefore been vulnerable to extreme forms of violence. Dalit women are the least able to escape from domestic violence, because of their
Nepal
243
limited financial means, low educational status and difficulties in accessing justice. Their low social and economic status also means that Dalit women are vulnerable to sexual exploitation. Violence following inter-caste marriage, untouchability, sexual exploitation, trafficking and accusations of witchcraft all affect the daily lives of Dalit women in Nepal, and which deny them their dignity and equal rights as citizens. Dalits, and in particular women, have suffered from cultural and social exclusion for centuries and still lack of access to economic opportunities, education, and government representation, services and benefits. The United Nations Development Programmes Nepal Human Development report 200962 draws a clear picture concerning the structural inequalities in Nepali society, and the persisting socio-economic divisions between castes. It reveals that in 2006 the Human Development Index (HDI) of persons belonging to the Brahmin/Chhetri communities reached 0.552, while it was of 0.424 among the Dalit community. The HDI takes into account three indicators concerning the development opportunities and well-being of a community: educational attainment, health measured through the life expectancy, and income. The gap among the HDI levels of different castes is therefore mirrored by a similar gap in these different indicators. For instance, according to the 2006 population survey,63 the life expectancy of a Hill Brahmin was 68.10 years, while for a Hill Dalit it was of 61.03 years. Poverty, the lack to access to medical and health services, unequal access to education, and a lack of proper sanitation in the rural areas account for this discrepancy. Similarly, with regard to health, the average life expectancy of Dalit women is 50, whereas the national life expectancy is 59 years (CERID, 1999). In 2006, the average income of a member of the Dalit community US$ 977, was less than half of the average income of all Brahmans/Chhetri, which was US$ 2027. And last but not least, these figures also show that structural differences in access to education result in only 38% of all Dalit adults being literate, as opposed to 63.65% of Brahmins and Chhetris, whereas Dalit
62 United Nations Development Programme Nepal Human Development report 2009 http:// idsn.org/uploads/media/UNDP_Human_Development_Report_Nepal_2009.pdf 63 All those figures can be found in theUnited Nations Development Programme Nepal Human Development report 2009, http://idsn.org/uploads/media/UNDP_Human_Development_ Report_Nepal_2009.pdf
244
womens literacy rate is only 3.2% (SCF Source, 2001) according to Nepals census in 2001. Inequalities in education also affect the of access of the Dalit community to the political sphere, where they could defend their interests: to date, Dalits make up only 8% of the members in the Constituent Assembly, while official figures state that Dalits amount to 13% of the population and non-official estimates put that percentage as high as 20%. Legally, the community has been freed from the imposed values of Hindu society structure since the Muluki Ain (civil code) was amended in 1963 to prohibit Discriminatory Treatment against the Community. The 1990 Constitution for the first time guaranteed the right to equality for all, and prohibited caste based discrimination. In addition to the acknowledgement of those fundamental rights, Nepal was declared a secular State and free from untouchability by the reinstated House of Representatives through the peoples movement in 2006. Such provisions were further upheld in the 2007 Interim Constitution under its fundamental rights section. Articles of interest for the protection of the Dalit community have included: article (12) on the right to freedom clause (1) which clearly mentions that every person has a right to live a dignified life; article (13) on the right to equality clauses (2) and (3) state that no discrimination shall be made against any citizen. Most importantly, article (14) on the Right against Untouchability and Racial Discrimination provides that no person shall, on the ground of caste, descent, community or occupation, be subject to racial discrimination and untouchability of any form. Such a discriminating act shall be liable to punishment and the victim shall be entitled to the compensation as provided by the law and shall be punishable in accordance with law. However this provision had not been implemented since 2007, as the government of Nepal had failed to introduce legislation comprising clear punishments for acts of caste-based discrimination and untouchability, until May 2011, when a law was finally passed concerning this, as will be seen below. Interestingly, to address the issue of the lack of access to the political sphere and to State institutions of the Dalit community, article 21 of the Interim Constitution of Nepal has ensured that Dalits have the right to take part in the structure of the State on the basis of the principle of proportional inclusion. For the proportional inclusion of every sector of society, the government has also reserved seats and set out quotas, especially for the Dalit community. Although these quotas and reserved seats have lead to the comparative increase
Nepal
245
in the representation of the Dalit community, these quotas are not been fully implemented due to the lack of an appropriate flow of information to and awareness within the concerned sectors of society. Nepal is also party to several international conventions, such as the Universal Declaration of Human Rights; the International Convention on the Elimination of all kinds of Racial Discrimination (ICERD); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Elimination of all kinds of Discrimination against Women (CEDAW), which provides the State with the obligation to take all necessary steps to eliminate discrimination from society, including caste-based discrimination. In spite of this positive normative progress, the State has so far failed to bring caste-based discrimination to an end and to guarantee the social, economic and political emancipation of the Dalit community. Simply granting a set of civil and political rights cannot be sufficient to ensure the socio-economic and political inclusion into the mainstream of the Dalit community. In spite of commitments, the situation of Dalits has improved considerably less than the situation of other castes or ethnic groups in the last decade, and there are concerns that Dalits may be left behind in the deep transformation process that Nepal has embarked upon since 1990. Some further measures have been taken by the government to support the economic and social development of the Dalit community, but have been insufficient to achieve acceptable levels of impact. The State has started encouraging inter-caste marriages by awarding involved couples with NRs. 100,000. To ensure better access of Dalits to education, the government has also provided scholarship programmes, especially for Dalit students from primary to higher secondary level schooling, and also concerning university-level education since 2007. The government has also promoted nutrition programmes for children and infants below 5 years old from the Dalit community, by providing monthly assistance of NRs. 200 since 2010. Nevertheless, corruption and discrimination often prevent these programmes from reaching their intended beneficiaries. Often, the budget allocated for Dalits is used by their Village Development Committee (VDC) or District Development Committee (DDC) authorities without providing information as to its use, or is used for public construction and social welfare programme that are not exclusively for Dalits. These authorities claim that Dalits make use of such projects, but this clearly amounts to financial misappropriation at best,
246
and denies the Dalits from having access to funds that have been specifically earmarked for them. In September 2011, 60 inhabitants of Sitapur VDC in Siraha District conducted a hunger strike to denounce the alleged misappropriation of social security benefits there. The VDC secretary Bibekchandra Karki, was accused of having misappropriated government-provided social allowances for the last three years. In particular, out of the 296 Dalit children in the VDC, 125 never received the 200Rs. per month nutrition allowance. Although the victims tried to raise the issues with the local authorities several times, it is only after going on hunger strike that they reached an agreement that the VDC Secretary would be relieved from duty, that a proper investigation would be launched and that the victims would receive the money they were entitled to during all those years. At the time of writing, the alleged perpetrator had been suspended from duty and a new VDC secretary had been named in the area, but the victims were yet to receive the allowances. Nepals Dalit movement is trying to establish a just and equitable society where all persons can live without any fear and with dignity. Many challenges still lie ahead in this respect. A historic achievement for the movement came in 2011 with the adoption of a law criminalizing caste based discrimination. The Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act was adopted unanimously by Nepals interim Parliament on May 24, 2011. It includes the prohibition of the practices of untouchability both in the public and private spheres, which has been a major demand of the Dalit movement. The law also criminalizes incitement to others to commit caste-based discrimination, as well as acts that prevent a person, on the ground of his or her caste, from accessing public services. It provides for increased punishments for public officials found responsible of discrimination. It contains provisions making it mandatory for perpetrators to provide compensation to victims. The law also criminalizes opposition to inter-caste marriages, expulsions of people on the basis of their caste and social boycotting. The victims have to approach the police to file a complaint, and, if the police prove unhelpful, they can also file their complaints with the National Dalit Commission. Following the adoption of the law, one of the major challenges to its implementation will be to guarantee that the criminal justice system is equally accessible to Dalits and protects their rights.
Nepal
247
The February 16, 2011, report of the UN High Commissioner for Human Rights on the human rights situation in Nepal rightly cites the different layers of obstacles that are faced by victims of caste-based violence, as well as of gender-based violence, to access justice, as follows: 1. police failing to treat offences targeting Dalits as criminal acts by refusing to take proactive steps when a case is reported to them and by delaying the registration of the case, 2. shortcomings in the criminal justice system which imply that the judicial process will be slow and lengthy and non-implementation of the court verdicts, insufficient margins of action and resources granted to the National Dalit Commission, 3. police encouraging the victims to resort to measures beyond the criminal justice system such as reaching a negotiated arrangement with the perpetrators to avoid prosecutions, 4. socio-economic and cultural barriers to justice, in other words the lack of awareness of their rights, social stigma and further victimization of Dalits that speak out and seek justice. To address these issues, a Dalit watch centre in which Dalits can register cases of caste-based discrimination was established in Kathmandu. Although the establishment of the centre is a welcome development, it needs adequate funding and adequate staffing (including of women staff so that Dalit women can also feel at ease when registering their cases with the centre), and it requires extended coverage to other districts in Nepal, in order to properly tackle the issue of caste-based discrimination and untouchability across the country. In 2011, numerous cases of violence based on caste and untouchability were reported, and illustrated the widespread nature of the problems and challenges that Dalits continue to face. In September 2011, in Nuwakot District, the members of a Dalit family were beaten for touching an upper caste woman, for example. On September 23, 2011, in Nuwakot district, five members of a Dalit family were beaten up by members of a so-called higher caste family, after their young daughter had accidentally touched the foot of a local upper caste woman while boarding a bus. Thereafter, five members of the upper caste family raided the house of the Dalit family and beat up five women who were there. They also vandalized the victims houses, tailor shops and goods.
248
Violence following inter-caste marriages remains alarming and is emblematic of the continuing caste-based violence in the country. The violent reaction by sections of society to those who challenge the orthodox structure of castes has been witnessed in a number of cases in 2011, leading to the expulsion and shunning of the couple from the community or violent attacks against them, as seen in the following example: In Dailekh district, on August 13, 2011, Santa Bahadur Damai, a Dalit man, married Raj Kumari Shahi, who belongs to a so-called higher caste family. The couple had been in love for two years and had to escape to get married, due to the reluctance of the brides family resulting from their different castes. After learning about the marriage, the Shahi family went to the grooms family home and beat the grooms father Sete Damai to ask him where their girl had been taken. The girls family tried to file a case in the Illaka Police Office, Dailekh on the same day, but the police refused to search for the couple after learning that both had reached the legal age of consent concerning marriage. They did, however, threaten the young mans family with death. On August 30, the newly-weds returned to their home. Nine members of the girls family then attacked the grooms family with knives and the grooms father was killed after being stabbed in the chest. The police investigation is going on. This case reflects the stigma and violence surrounding inter-caste marriages which result from these posing a direct challenge to the orthodox system of castes. Although the State has created a 100.000 Nrs allowance for inter-caste couples and the law on caste-based discrimination has criminalized the attempts to prevent an inter-caste marriage, social barriers often remain insurmountable for couples. Dalit women are particularly vulnerable as, traditionally, by marrying they enter their husbands family and are therefore directly exposed to abuse and harassment by their in-laws. In a number of cases, the in-laws have pressured the husband into abandoning his wife, who then finds herself left without financial or social support. VIII - Recommendations In light of the findings presented in the above report, the AHRC urges the government of Nepal to: Uphold its commitments to accountability and justice by ensuring the investigation and prosecution of all conflict-related human rights violations. It must order the police to register and investigate promptly
Nepal
249
all such cases of human rights violations and clearly and publicly state that such cases fall under the jurisdiction of the regular criminal justice system. Adopt without delay the bills establishing the Truth and Reconciliation Commission and a Commission of Investigation on Disappearances, and guarantee their independence, while prohibiting amnesties for human rights violations. It must ensure the right to truth for victims and effective prosecutions of all alleged perpetrators, in order to foster lasting peace and reconciliation in society. Commit to refrain from any attempt to provide amnesties or withdraw cases pertaining to human rights violations Take all necessary steps to strengthen the criminal justice system, in particular to ensure that all court orders are binding to all, and are implemented without undue delays. Initiate impartial investigations into all allegations of extrajudicial killings and bring to justice the alleged perpetrators Adopt legislation criminalizing torture without further delay. Actively involve civil society in all stages of the discussion concerning the law, and ensure that its legal provisions are in line with internationally accepted human rights norms and standards. Enhance the current investigation mechanisms to ensure their independence and effectiveness. Establish a police service commission, as per the recommendations formulated to Nepal during the UPR. Give clear instructions to the police to register and investigate all complaints of threats or harassment against human rights defenders and journalists, and develop the polices protection capacity, while speeding the process of the adoption of a special programme to protect HRDs and journalists. Involve civil society in all stages of the development of such a programme. Closely monitor the implementation of the law criminalizing caste-based discrimination and untouchability. Strengthen the existing Dalit Watch Centre and open other such centres in all of Nepals districts.
250
PA K I S TA N
The STATe of humAN RIghTS IN 2011
Summary The year 2011 was started with the killings of hundreds of persons including the killings of high profile personalities, the governor of a province and a federal minister of minority affairs, by the extremist religious groups who seeped in to the law enforcement agencies. The arrest of one Christian lady, Aasia Bibi, on Blasphemys baseless charges from some mosque leaders leads to the religious intolerance and fanaticism at its highest peak. The state played a dubious role to appease the religious extremism. state remained as silent spectator in the country and killings of Mr. Salman Taseer, former governor of Punjab province and former federal minister of minority affairs, a Christian minister in cabinet. The governments ineptness to stop the religious and sectarian intolerance has strengthened the banned militant religious groups to organize and collect their funds in the streets and hold big rallies. This ineptness of the government has helped the forced conversion to Islam of girls from religious minority groups. In total thorough out the country during the year 1800 women from Hindu and Christian groups were forced to convert to Islam by different methods particularly though abduction and rape. During the year, only in Karachi, capital of Sindh, 1800 persons were killed and political parties from ruling coalition were involved in ethnic target killings. The minister of interior says that during two years 3938 people were killed in Karachi city. In Balochistan during the year disappearances by the plain clothe persons were continued and more than 100 persons were disappeared. Around 100 missing persons were extra judicially killed and the family members of the victims claim that these persons were abducted by law enforcement agencies. Around 1600 persons committed suicides from January to September according to the data collected by the Human Rights Commission of Pakistan. The government had extended his appeasement policy towards the fundamentalists and helped them to unleash on the forces of tolerance and
Pakistan
251
enlightened which in result made the Muslim extremists as the Heroes of Islam. The governments actions have polarized the society on religion basis which is harming the democratic process. The state has become dysfunctional in providing basic human rights to the people. Though the parliament exists it either cannot assert its constitutional duties or does not want to assert itself in the presence of the powerful military which is dominating both internal and external affairs. The parliament has not been allowed to implement the financial, external and judicial matters which are still beyond the access of elected representatives of the people. This is despite the fact that this power was supposed to have been handed over after eleven years of military rule. It is dysfunctional in the sense that it has ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT) but then immediately revealed reservations on many of their articles making their ratification harmless to the state. Then, when the cabinet decided to withdraw some of reservations the government has conspicuously not implemented its own decision. The government of Pakistan has dodged not only UN but also the European Union who pursued the government to withdraw all the reservations on the many articles of the ICCPR and the CAT. The European Union had conveyed that these reservations had made Pakistan ineligible for the Generalised System of Preferences (GSP) Plus status to be accorded in 2014 by the European Union. To settle the issue, the Prime Minister chaired an Inter-Ministerial Meeting, the cabinet, at the end of June 2011, in which it was decided to withdraw the reservations on Articles 6, 7, 12, 13, 18, 19 and 40 of ICCPR. The reservation on Article 3 was narrowed down to Personal Law and Law of Evidence, and the reservation on Article 25 was restricted to the election of the President of Pakistan. On the CAT it was decided to withdraw reservations on Articles 3, 4, 6, 12, 13 and 16. The reservation on Article 8 was retained. The declarations on Article 20 as provided in Article 28 (1) and Article 30 (1) were also retained. This eye wash effort, to make fools of the international community, was done by the government to avail itself of multiple trade concessions, privileges and enhanced trade activities with the European Union. However, its past record of dealing with pledges before the UN Human Rights Commission is not good and it is yet to be seen if the government will actually withdraw the reservations on the ICCPR and CAT in deed as well as in writing.
252
Before her election to the UN HRC the government of Pakistan pledged that it would change the laws of the country according to the different covenants and conventions of the UN and abide by the international norms. But none of these pledges have been complied with. Pakistani society and the government remain under the strong hold of the military which does not allow them to interfere in the affairs of the armed forces. Pakistan remains a highly militarized society where economic, political, foreign affairs and judicial policies are dictated by the military. The laws for the benefits of women, religious minorities and against the torture and enforced disappearances cannot be made without the prior to approval from the military. The parliament has been made redundant and the decisions of the parliament are occasionally reverted through the judiciary on the behest of the military. The government has also pledged several times to the international community that it will stop the discrimination against religious minorities and women. However, it is quite evident that, not only has the government done nothing in these matters, but that discrimination has increased in comparison with the previous military government. One of the most glaring problems in the country is that the government has failed to reign in the religious militancy by the banned Islamic groups who are openly teaching their militant messages and collecting funds from the street in full view of the police stations. The forced conversion of Hindus and Christians to Islam through the abduction of girls and rape and forcibly signing of the marriage certificates, an official government document, in captivity and under duress has been rampant. Around 2000 girls from minority groups were forced to convert to Islam according to the different Christian and Hindu organizations. This is also confirmed by the boasting of the heads of the different Muslim seminaries (Madressas) who express pride in their forcible conversion. Nearly 161 persons were laid with blasphemy charges in the country this year so far. Nine of them were extrajudicially murdered. Murders in the name of Karokari, (killings in the name of honour), are reported daily. Target killings in Karachi and different parts of Balochistan are on the rise. Sectarian killings have been continuing, even without any consideration of Eid days or Ramadan (Islamic festivals). Rather than make any attempt to control the religious extremists the government is following a policy of appeasement with the religious militants
Pakistan
253
and banned groups to avoid open confrontation with them. This policy has cost them one governor, a federal minister and ordinary citizens who oppose the extremist Islamist thoughts, intolerance and terrorism. The government has not made any progress in the draconian Blasphemy law which has taken many lives including the high profile personalities of the government but, instead, authorities are covertly patronizing the militant groups. The courts, which claim to be independent after 2007, have proved themselves to be friends of the militants and the terrorists. In many cases the terrorists were released by the courts, especially from the higher courts on the plea that the prosecution has not made its case properly but no reforms were suggested to the prosecution. The high profile terrorists, who openly boast of having killed hundreds of people, were released by the courts. The government has not introduced any reforms in the judicial criminal justice system. The present criminal justice system is generally based on torture, ill treatment and corruption which always provide impunity to the perpetrators. In addition the Shariah laws are thought to be the best way to get impunity. The two laws are running parallel to each other, the Islamic and secular. The rule of law has deteriorated because of two laws systems. The investigation system remains the main cause of torture and ill-treatment and illegal detention. Still the torture is treated as the best way for the investigation system. Every year thousands of people are tortured in custody at either the police or armys illegal detention centers. Every police station in the country is running private torture centers besides the police stations themselves or conducting torture in private houses. The military, navy, Air force and Para-military forces are all running torture cells. They not only torture the opponents but also using torture cells to settle their petty issues. A new phenomenon has been introduced during the civilian government that torture is exhibited in open places by the police and military, even to the point that they take videos and make them public in their notorious design of scaring the population at large about their strength of power. These videos are available on YouTube. There are many cases where women were tortured in open places by the male officials. No one has been arrested on the charges of torture. The government is reluctant to criminalise torture in custody which provides impunity to the law enforcement agencies. During the year 2011 government could not stop the enforced disappearances by the military, Para-Military forces and their spy agencies. A new process in the cases of disappearances was introduced by killing the persons extrajudicially
254
so as to eliminate the evidence of enforced disappearances and torture in custody. During the year 2011 more than 100 persons were extrajudicially killed after being reported missing due to arrest by the law enforcement agencies, particularly by the Frontier Corp (FC), a Par-Military organization, and spies from the intelligence agencies. The open secret of disappearances illustrates the grip the military establishment retains over Pakistani society, including its dysfunctional justice system and feeble civilian government, which has repeatedly vowed to stop the problem. A government commission was informed about the missing of hundreds of people has traced several dozen missing people and publicly said Pakistani intelligence agencies are involved, but it has held no one accountable. The military does not allow the judiciary to interfere with its affairs and the judiciary itself keeps its distance from taking the cases against the military because judicial officials know their fate well. The index of poverty has declined in comparison with last year. 30.6 per cent of Pakistanis were living below the poverty line in 1998-99. 28.3% living below the poverty line in 2004-5 (World Bank). One per cent (0.64 per cent plus 0.37 per cent) of households owned over 35 acres. 9.66 per cent owned between five and 12.5 acres.18.25 per cent households owned less than five acres of land. 67 per cent of Pakistans households are landless. 86 per cent of the households in Sindh were landless, 78 per cent in Balochistan, 74 per cent in Punjab were landless. Pakistan, where approximately two-thirds of the people live in rural areas, rural poverty is a major destabilising factor. Authoritative studies have documented rising poverty levels with a decreased capacity to acquire and hold land which is the main source of subsistence in the agricultural areas. The evidence of the income disparity rampant in Pakistani society is bolstered by statistics, with the Lorenz curve of 2001-02 for Pakistan lying below the 198485 levels. (M. Zaidi - Dawn, Oct. 17, 2011). This year the floods have added more havoc to the poverty ridden people. More than 200,000 people are displaced and hundreds of thousand houses were destroyed in the floods. The negligence of the authorities and improper mechanisms to deal with natural disasters has put the lives of millions of people in peril after the heavy rains. As a result the lives of the people have been drastically affected with the destruction and loss of vast areas of agriculture lands. More than 1,600 people have been killed by the flood waters that swept away over 400,000 houses throughout the country. Around 5000 villages were inundated and thousands of people are stranded with no hope of relief from the authorities.
Pakistan
255
According to the United Nations the massive floods in Pakistan affected 14 million people eclipsing the devastating 2004 Boxing Day tsunami, the 2005 Pakistan earthquake and the January 2010 Haiti earthquake. This year, it claimed about 1040 people, directly affected 2.2 millions, 20 millions in overall, collapsed houses of 1.5 million, inundated 4.2 million acres of land. The loss of crops alone is estimated to be Pakistan Rupees 5.6 billion while three millions are still in need of food while some affected were dying of hunger and starvation. Most vulnerable groups exposed to flood and rains were children and women, pregnant women in particular, who are the majority of deaths and the affected. Yet, the government of Pakistan failed to manage emergency to secure peoples lives despite having gone through a catastrophe last year. The government aids for the affected failed to reach the affected due to corrupt bureaucratic system dealing with humanitarian aid. Civil society was not encouraged to associate with the government for immediate and successful implementation of national and international aids. The absence of any legal mechanism to deal with natural and man-made disasters has raised possibilities for the authorities to profit from this latest natural disaster. The National Disaster Management Bill has been pending before the national assembly since February 2010, but it is yet to be passed into law. As a result there has been no unified action to deal with the disaster and the authorities and governments are depending on the local people to handle themselves. The freedom of expression and the press has remained a main focal point for the military, its intelligence agencies and for religious fundamentalists, including the powerful persons. Though the government has provided freedom of media without any interference not a single case was reported for twisting the arms of the media. But many cases of involvement of the military intelligence agencies in killing, abduction and disappearances of the journalists were reported. 16 journalists were killed, among them five journalists were abducted by the spies of state intelligence agencies, kept incommunicado in different torture cells, tortured and their bullet ridden bodies were dumped on the road side. Five journalists were killed in bomb blasts while performing their professional duties, six journalists were killed in target killings. One journalist is missing after abduction by the plain clothed persons. The case of prominent international journalist, Saleem Shahzad of Asia Times, explains the grave situation of abduction, disappearance and extra judicial killings of the journalists. The same situation is all over the country, particularly
256
in the provinces of Balochistan and Khyber Pakhtun Kha (KPK) where military is conducting operation through its Para- military forces. In different attacks on journalists and media houses 35 working journalists, 10 camera men, one photographer, two drivers and one satellite engineer of television channels were injured during the attacks. Three television channels were attacked, one was attacked two times, and one FM radio station was attacked. Two television channels were banned to stop their broadcasts. No policy shift from military government to civilian set up has been visible in reference to the rule of law, respect for the right to life, changes in the criminal justice system and investigations for the promotion of fundamental rights. In most cases the government used propaganda methods to show the international community and particularly the UN and donor countries that it is complying with international norms and observing all pledges that she made in order to maintain membership of the UN Human Rights Council. The unanimous passage of the 18th amendment to Pakistans constitution by parliament last year was a major development to establish a parliamentary government system. The amendment constitutes one of the most dramatic deconcentrations of power in Pakistan since the drafting of its 1973 constitution and deleted all the amendments made in the constitution by the military rulers. Pakistans parliament has institutionalized a new political consensus on the countrys legal and political framework with the 18th amendments passage. Through the amendment the powers of the federal government were devolved to the provinces but after the passage of more than 18 months the process of devolution were stopped from the unseen reasons. It is a good omen that government has not executed anyone since October 2008. Around 8000 persons are waiting in the death row. In province of Sindh the condemned prisoners were shifted from the death cells to different barracks. After the passage of the 18th amendment the death punishment has not been abolished. The Shariah laws (Islamic laws) are the main hindrance in abolishing the death penalty. The amendment has strengthened the Islamic forces that are for the death penalty. 1. human Rights Defenders The year 2011 was no different from the previous years for the human rights defenders. This year it was more open and blatant when government ratifies the different covenants and conventions of UN. The government has still not
Pakistan
257
developed any mechanism to provide protection for the human rights defenders and sometimes it is observed that law enforcement authorities were harsher with the HR defenders. In Balochistan province an increase in the extra judicial killings of the activists has been observed since last year. The family members of the victims and political and nationalists groups accuse the Frontier Corps (FC) a Para military force and state intelligence agencies for involvement in the extrajudicial killings. It is reported in many cases that the FC and plain clothed persons abducted activists whose whereabouts had been unknown. Then after many months their bullet riddled and tortured bodies were found. Khuzdar district has remained a centre point for disappearances and abductions. The situation of abductions, forced disappearances and extrajudicial killings has been prevalent not only in Balochistan but all through Pakistan and the government has done nothing to rein in the intelligence agencies believed to be responsible, despite overwhelming evidence that this is so. Six trade union leaders sentenced to a total 490 years jail1 Power loom workers in Faisalabad in mid-2010 went on a series of major strikes and demonstrations. Six of their leaders were arrested by the police. Once in detention, they were additionally charged under anti-terrorist legislation. The six have now been sentenced to a total of almost 490 years in jail (served concurrently). This is a clear message of how anti terror laws are used against workers. The Labour Party Pakistan is calling for demonstrations outside Pakistan embassies and consulates around the world. Anti-terrorist court judge Mian Muhammad Anwar Nazir on November 1, 2011, sentenced six leaders of the Labour Qaumi Movement (LQM, the organisation of the power loom workers in Faisalabad) under terrorism charges in Faisalabad. On average, each of the six were sentenced -- on seven charges -to 81 years in jail, a total of almost 490 years! As all the jail sentences will begin at the same time, each labour leader will spend at least 10 years in jail. Four LQM leaders Akbar Ali Kamboh, Babar Shafiq Randhawa, Fazal Elahi, Rana Riaz Ahmed were arrested on July 22, 2010, by Faisalabad police after
Source: http://www.asia-pacific-action.org/node/678
258
a strike called by power loom workers for a 17% increase in wages as per an announcement of the government. Two other leaders, Muhammad Aslam Malik and Asghar Ali Ansari, were also arrested under the same charges four months ago. They were accused of burning down a factory during the strike. This is a fabricated charge. The facts are that on the day of strike, July 20, 2010, gangsters in the pay of the factory owner in Thekri Wala started shooting at the workers who were leaving the factory to demand better wages. Some workers dared to go inside the factory and forced the gangsters to stop firing. A homeopathic doctor was held incommunicado on the charges of having connections with the AhRC A human rights defender and Homeopathic doctor by profession, Abdul Rauoof, 36, was abducted one day after the holding of a conference on the International day of Human Rights on December 10, which was jointly organized by the International Institute for Research and Education and the Asian Human Rights Commission in Islamabad on disappearances from his private clinic by some plain clothed persons. He remained missing for two months along with another person, Qari Zaheer. Qari was released after some days for pointing out the details about Dr. Rauoof. He was abducted on 11th December 2010 at about 7 PM, just one day after the international human rights day when he actively participated in a round table conference on disappearances in Pakistan jointly organized by Asian Human Rights Commission and the Labour Education Foundation. The police have refused to file a First Information Report (FIR) and pressured the fatherin-law of the victim to mention the name of Qari as the abductor as the case belongs to intelligence agencies. During disappearance it is alleged that he was tortured to reveal his connections with AHRC. But he was threatened not to disclose where he was detained, which agency interrogated him and what was asked during torture. On his arrest and abduction the AHRC has issued urgent appeal; http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-180-2010/ but has not issued any statement on his conditional release to avoid his ordeals in the hands of abductors. Mr. Naeem Sabir Baloch was a renowned social activist who became popular for taking on cases of disappeared persons. He helped the HRCP to document the cases for legal process. He had been receiving continuous death threats for several months from persons believed to be from the intelligence agencies. He
Pakistan
259
once revealed to the Asian Human Rights Commission (AHRC) that he was under threat to his life and one day he would either be abducted by the law enforcement agencies and disappeared or killed. The targeted killing of Mr. Naeem Sabir is a great setback to the human rights movement in Pakistan. This is particularly so in Balochistan province where law enforcement agencies enjoy complete impunity for killings and abductions. The abductors are no respecter of persons and in recent events two lawyers and two professors were abducted and have since disappeared. Mr. Naeem Sabir Baloch, the district coordinator of the Human Rights Commission of Pakistan (HRCP), an NGO, was gunned down on March 1, 2011 in Khuzdar market, Khuzdar district, Balochistan. When he was standing in front of his shop unknown persons wearing masks and riding a motorbike opened fire at him. Mr. Sabir was struck by several bullets and passed away on the spot. Following the shooting the assailants fled the scene. http://www. humanrights.asia/news/ahrc-news/AHRC-STM-035-2011/. A defender was first abducted by Taliban and after escape he was abducted by military in exchange of arrest of his sons On 24 July, Hameed Ullah had managed to escape with another abductee from the captivity of the Taliban. He was kept in another agency, the Bajour agency, of the Khyber Pakhtoon Khwa (KPK) province. After his escape he confirmed that he had been in the captivity of the Taliban who accused him and his sons of working for NGOs who are getting foreign money to corrupt the local people.It is to be mentioned here that federally administered tribal areas are referred to an agency. He remained in hiding from the Taliban till the military operation started on 2 October 2009. On 3 October the soldiers came to his house and searched for the arms and ammunition and found two local made rifles. The military officials were also suspicious about the sewerage pipes lying on the roof top of his single storied small house and termed them as the barrels for artillery. The soldiers boarded him in military truck along with some other persons. After his arrest the family members visited area military posts and officers who have confirmed his presence in the military custody on several occasions but asked them to hand over his two sons namely, Rafi Ullah and Rizwan Ullah, in exchange of release of their father. The military officials are accusing them of having links with Taliban.
260
Rafi Ullah, the victims son, filed the applications to the District Coordination Officer (DCO), the former deputy commissioner, former Nazim (Mayor) of Malakand and police stations of Chille, Durgai, but no one has acted on the application. He also mentioned the telephone numbers through which the victims family was receiving threatening calls for the payments of the ransom. The house of Hameed Ullah was also demolished after military operation as the hide out of Taliban. The military also claim that both of his sons are the Taliban activists. The family members of him have left the agency and are residing in different places to hide themselves from both, Taliban and Military. http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-076-2011/ Another innocent Azad Kashmiri has become a victim of the ISI Dr Rizwan an activist of United and independent Jammu and Kashmir was arrested by notorious intelligence agency, the ISI. No case was registered against him and he was kept in the torture cells of the ISI. The local police demanded family of the deceased to pay them 60,000 rupees and they will release him. While the family struggled to make arrangements for this money, to their horror they discovered that intelligence officers have killed innocent Dr Rizwan. The police first had refused to release his body and it was released after the strong protests throughout Muzzafabad, the capital of Pakistani Kashmir. http://www.humanrights.asia/news/forwarded-news/AHRC-FPR-027-2011/. Abdul Rauoof, 36, Homeopathic doctor, was kidnapped, allegedly by persons from the intelligence agencies from his clinic on 11th December 2010 at about 7 PM, just one day after the international human rights day when he actively participated in a round table conference on disappearances in Pakistan jointly organized by International Institute for Research and Education (IIRE Islamabad) , Asian Human Rights Commission and the Labour Education Foundation. After his abduction his father-in-law, Mr. Mohammad Gulzar, tried to file a First Information Report (FIR) at Sadiqabad police station. However, the Rawalpindi, police refused to file the FIR as, according to the station house officer (SHO), the intelligence agencies were involved. On the next day when people from the community pressed the police to file an FIR the police accepted the hand written application of the victims fatherin-law on the condition that the application should be written against the second person, Qari Zaheer, a disabled person, as the main accused, who has
Pakistan
261
also missing since then. But until now no FIR has been filed, even against Qari Zaheer. A hindu scheduled cast human rights defender was intimidated and illegally arrested A human rights defender, Mr. Veerji Kolhi who belongs to the Kohli group, a scheduled caste Hindu, was falsely booked in a murder case whereas on the day of murder of a land grabber he was 500 kilometers away. On May 20, 6:00 am, a group of land grabbers attacked a village of Vishnoo Kolhi, Nagar Parker subdistrict, Sindh province and opened firing directly at the villagers to vacate their houses, seriously injuring four persons; Mr. Eshwar, Mr. Mohan, Mr. Hari, and Mr. Kombho who received bullet wounds. After heavy firing the villagers came out to defend the women and children and captured a few accused from whom they confiscated their guns which they later handed over to the police. The attackers names are Salah Shoro, Luqman Shoro, Mataro Shoro, Shafique Shoro, Rahib Shoro, Ranjho Shoro, Qadir Shoro Akbar Shoro, came to rescue his partners and in such circumstance one attacker, Saleh Shoro, was injured. He was taken away by the attackers and they escaped. He later died. Instead of filing the cases of attacking villagers with deadly weapons and injuring villagers, police filed the case of murder against those persons who were residing 500 kilometers away from the place of the incident. He was attending a daylong conference of the civil society on the issue of Eighteenth amendment in the constitution and provincial autonomy. In 2010 he was also abducted by the land grabbers who were also involved allegedly in the rape of a 17 years old Dalit girl. He was severely beaten during his captivity and was intimidated for raising his voice for the rights of the Dalits who have been bonded labourers for decades. http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-105-2011/. Two activists of fisherfolk were murdered by land grabbers with the connivance of the police Mr. Abu Baker and Mr. Abdul Ghani, the activists of Pakistan Fisherfolk, the only organization of fishermen of Pakistan, were murdered on May 5, when the land grabbers, belong to ruling party, attacked the fishermen village and these two activists resisted the attacked and succeeded in saving the village after many people were injured during the attack. On May 6 the activists were taken in custody at late night and were tortured in the private custody of police where they were murdered. The land grabbers, Haji Younus and his son
262
Zulfiqar younus were grabbing land by reclaiming the sea land and cutting the mangroves forests. Police refused to file cases against the actual perpetrators instead filed cases against the activists of FisherFolk. http://www.humanrights. asia/news/urgent-appeals/AHRC-UAU-028-2011/. A nationalist from gilgit-Baltistan was arrested and tortured at ISI detention center Manzoor Hussain Parwana, the Chairman of the Gilgit Baltistan United Movement (GBUM), has been arrested by Pakistan Rangers, FC and Gilgit City Police commandos after his speech in the convention of Balawaristan National Students Organization (BNSO) on 28th July 2011. He was already framed in sedition charges by the occupation regime of Pakistan, because he was exposing Pakistani Forces and their intelligence agencies illegal activities in Gilgit Baltistan, a newly created province of Pakistan. It is reported that Mr. Manzoor has been taken to Inter Services Intelligence service (ISI) Centre at Sonikote Gilgit, where he was interrogated and tortured by Inter Services Intelligence Agency (ISI. It is obvious that he was tortured to get confessional statement on framed cases to malign the nationalist movement, so the attention of arrest of ISI agent Ghulam Nabi Fai by FBI in Washington is neutralized. Mr. Fai was arrested in the USA on the charges of being a spy of Pakistan. He was the editor and publisher of a weekly newspaper the Kargil International was banned few years ago when he published interviews of the Northern Light Infantry (NLI) soldiers who were used as mercenaries against India in Kargil war in 1999 by the former General Musharraf, by terming them as Mujahideen (holy warriors) and he (Musharraf ) himself confessed that misadventure by giving awards to those who were killed on Kargil mountains. In that war he did accept the dead bodies of some Pakistani but denied to accept the dead bodies of the soldiers of Gilgit Baltistan in spite of the offer by government of India to take the dead bodies of NLI soldiers, whose bodies have been buried temporarily on the mountains of Kargil. http://www.humanrights.asia/news/ forwarded-news/AHRC-FOL-009-2011/. Mr. Siddique Eido, prominent human rights defender and his friend, Mr. Yousaf Nazar Baloch, journalist, who were arrested by the FC and police on December 21, 2010, Eido and his friends mutilated bodies were found on April 28 at Makran coastal highway near Ormara, Balochistan province. On the day of his abduction, Eido went to the District and Session court of
Pakistan
263
Gwader, port city of the province, and was returning back to his home in subdistrict Pasni, Gwader in the security of five policemen, including one Assistant Sub Inspector (ASI) and four police constables. As they reached the check post of FC in Karwat area on coastal highway, he was stopped by the officials of the FC and he with his friend, Mr. Yousuf, were dragged into a van. The policemen tried to protect them but were severely beaten by the Frontier Cops and kept in custody for some hours. In the meanwhile, Eido and his friend were sent to an unknown location. The bullet riddled body of prominent human rights defender, Zareef Faraz, a poet and editor of quarterly literary magazine, the Shabjoo, was found on April 25, 2011 from Turbat. According to the media reports, Zareef was abducted one week before his killing and he was abducted when he was going in a passenger bus by uniform and plain clothes persons. http://www.humanrights. asia/news/ahrc-news/AHRC-STM-057-2011/. human rights defenders are persons or groups of persons who uncover human rights violations Standing up for the rights of others have since 9 December 1998 been under the special protection of the international community. On that date, on the occasion of the 50th anniversary of the Universal Declaration of Human Rights, the General Assembly adopted the UN Declaration on Human Rights Defenders, the first UN instrument that explicitly recognizes the importance and legitimacy of the work of human rights defenders and lays down their right to effective protection.1 Human rights defenders are persons or groups of persons who uncover human rights Violations, bring them to public knowledge and campaign for redress for victims through Peaceful and non-violent means. The rights they defend may include civil and political rights, such as the right to be free from torture or the right to a fair trial, or economic and social rights, such as the right to clean water, and cultural rights, such as the right to media in ones own language. The Declaration on Human Rights Defenders is not a legally binding document but contains many of the human rights standards contained in internationally binding treaties including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), both ratified by Pakistan in June 2010. In so far it was adopted by consensus in the General Assembly, it reflects the international communitys unanimous commitment to
264
the protection of human rights defenders. Undermining the role and worth of human rights defenders is a serious matter: As Kofi Anan, former UN Secretary General put it, -- The Declaration rests on a basic premise: that when the rights of human rights defenders are violated, all our rights are put in jeopardy and all of us are made less safe.2 Everyone has the responsibility to protect human rights but the onus of protection of human rights falls primarily on the state. In addition the state has the obligation to protect human rights defenders. The Declaration states unambiguously that states have the duty to protect human rights defenders against any violence, retaliation and intimidation as a consequence of their human rights work. Article 12(2) 2 of the Declaration states, The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration, namely the monitoring and publicizing of human rights violations and seeking redress. Defenders of human rights in Balochistan in need of defence by Angelika Pathak. http://www. humanrights.asia/news/press-releases/pdf/AHRC-PRL-035-2011-01.pdf. 1. Full name of the declaration: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by General Assembly Resolution A/RES/53/144. 2. 14 September 1998 NGO/DPI Conference. professional human rights workers whose chosen task it is to work to end human rights violations in the province. All of these persons are entitled to the full protection of the law by the government. 2. freedom of expression Article 19 of the constitution of Pakistan guarantees that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press, subject to any reasonable restrictions imposed by the law in the interest of the glory of Islam or the integrity o, security or defence of Pakistan or any part thereof, friendly relations with the foreign states, public order, decency or morality, or in relation to contempt of court, or incitement to an offence.
Pakistan
265
Article 19 of the UN Universal Declaration of Human Rights declares that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of International Covenant on Civil and Political Rights calls on the governments; 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of Glory of Islam, ideology of Pakistan, integrity of the country, defence of Pakistan, Shariah Laws, Blasphemy laws, Anti-terrorism laws and war on terrorism are the main tools through which freedom of expressions are restricted. Pakistan has very limited scope of freedom of expression and speech. These mentioned above restrictions on freedom of expression cannot be explained or having any protection from the laws but are used extensive in curbing the free ideas, freedom of expression, freedom of individuals opinion making or following self consciences. The glory of Islam, the definition of a Muslim, the ideology of Pakistan and defence of Pakistan have never been defined by the governments and courts but these ambiguous definitions are extensively used to curb the freedom of expression. The Blasphemy laws remained the main source to restrict the liberty and freedom of individual particularly it is used for the persecution of the religious minority groups. Above to all, the Shariah laws are the mother of all restrictions which do not allow society to more forward and progress. The media is enjoying much freedom as compared to previous regimes but free media is under its own self censorship and does not allow the open discussion on armed forces, military operation, human rights violations during the operations, defence purchases, corruption in armed forces, torture cells in all installations of the armed forces, disappearances by the forces, the religious
266
and sectarian thoughts, the affairs with the neighbour countries and courts decisions. The media is using freedom of expression against the government and politicians but using self censorship on the issues of the misuse of blasphemy laws, Shariah laws and human rights violations during military operations. It gives sanctity to the army operations against the people by terming it as in the great interest of the country. Obscenity is the best tool to impose the restrictions on freedom of thought. The section 292 of the Pakistan Penal Code deals with the sale of porno material and obscene books and journals but it is mostly used by the fundamentalists to blame any act of individual or stopping any publication. The administration always has this law to ban the any publication. It applies to publications, art, performing art, advertisement and business but there is no proper definition about the obscenity. Printing presses sealed on the ground that they had been publishing obscene photographs. Action was purported to have been taken under Section 292 of the Penal Code which incidentally does not provide for banning of publications. The former minister of the ruling party, Sardar Aseff Ahmad Ali, was of the opinion that there is no real freedom of expression in Pakistan. He said we were not prepared to enlighten our policies. He said, Pakistans national policy runs on national honor and not on national interests. A prominent writer Zafar Mehmud Sheikh says: A person has to think a hundred times before saying anything, before writing anything, before making a report. Before performing our journalistic duties, we think a hundred times about who will be angered by it, who will be so incensed that he will want to kill you. In the past two-plus years, we have seen that in the entire world the greatest number of journalists was killed in Pakistan. In the country it cannot be thought that a Muslim can change his religion but it is openly allowed that persons from religious minority groups are forced to convert to Islam. In many cases the Christian and Hindu girls were abducted and rape in captivity and when it was caught the perpetrators announce with the girl but the courts have never stopped this force conversion to Islam instead supported these practices in the name of success of Islam. The media make the men hero who kill openly in the name of Blasphemy law and such men are romanticize as the brave soldiers of Islam.
Pakistan
267
Army regimes are infamous for harassing journalists and restricting freedom of expression in Pakistan. General Pervez Mussharaf allowed comparative freedom in the earlier period of his regime. In the later part, however, he started showing his true colors by declaring emergency on November 3, 2007 and imposing draconian laws to curb freedom of expression. He suspended broadcasts, blocked websites, raided media offices including newspapers, radio and TV stations, and censured newspapers. Although the current PPP government has repealed all the draconian laws of the Musharraf regime, they are in the process of introducing a new bill to give more power to government agencies to arrest and jail journalists for three years for broadcasting anything defamatory against the organs of the state, as the proposed bill states. The proposed legislation, if approved, will impose severe restrictions on covering terrorist attacks.2 According to a human rights activist, Mr. I. A. Rehman, the Anti-terrorism Act of 1997, which was made to prevent terrorism and sectarian violence and to provide for speedy trial of heinous offences, also has been used to punish and harass journalists, especially those who venture into conflict zones. The Act defines terrorism in extremely broad terms under Section 6: terrorism means the use or threat of action which involves the doing of anything that causes death, grievous violence against a person or grievous bodily injury or harm, grievous damage to property, kidnapping for ransom, hostage-taking or hijacking, stoning, brick-batting or any mischief to spread panic, firing on places of worship or congregations or random firing to spread panic, burning of vehicles or any serious form of arson, and extortion of money or property. Terrorism also means action or threat designed to threaten and intimidate the government or public/ community or creates a sense of fear or insecurity in society, or when the use of threat is made for advancing religions, sectarian or ethnic cause.3 The Lahore High Court on 19 May ordered the Pakistan Telecommunication Authority to block the social network website Facebook and hundreds of other pages in response to a Facebook user calling for an Everybody Draw Mohammed Day.
2 3
Source: http://www.viewpointonline.net/media-access-and-freedom-of-expression-in-pakistan.html Source: http://www.hrcp-web.org/shownews.asp?id=23
268
The court later ordered the blocking of YouTube for the same reason. The ban has resulted in numerous other websites also being affected, including Flickr, Wikipedia, Google, Twitter, some parts of the BBC, and accessing the internet through the Blackberry mobile service. The Express Tribune has reported that the total number of blocked websites has reached 1,000.4 Generally Muslim groups stop freedom of expression. There is very little space provided for open debates and discussions on religious and sensitive issues including the sex education. The people fear for their lives if a collective mob thinks that the particular person has not agreed with its point of view. One religious scholar, Mr. Javed Ghamidi, a liberal Muslim scholar has to leave the country. Ms. Sherry Rehman, now the ambassador to USA, was facing death threats for suggesting reforms in the Blasphemy laws in the National Assembly. One prominent columnist Kamran Shafi has to face death threats for criticizing the army. The UNs Human Rights Committee said on July 29 that freedom of expression was a meta-right underpinning all human rights everywhere. A long-awaited document from the panel of 18 jurists also said that freedom of opinion, and by extension religion, should not be restricted under any circumstances and warned governments that did so they would be violating a basic UN accord. The independent experts set out their trenchant stance in a general comment on how parts of the UNs Covenant on Civil and Political Rights should be interpreted and applied. The comment, committee vice-chairman Michael OFlaherty told a media conference, is a strong reaffirmation of the central importance for all human rights of the freedom of expression, even of giving views some see as deeply offensive. The 15-page document, interpreting two paragraphs of the 1976 Covenant, hits at anti-terror laws, monopoly media, anti-blasphemy statutes and prosecution of maverick historians. Islamic and some Western countries have blasphemy laws, and the history strictures were clearly aimed at criminalisation in some European countries, including Germany and Austria, of writings suggesting the World War II Holocaust was a myth. Some Muslim states such as Pakistan have signed up to the covenant but argue that sharia law - which bars conversion from Islam to
Source: http://www.article19.org/resources.php/resource/1542/en/pakistan:-freedom-ofexpression-on-internet-must-be-respected
Pakistan
269
other faiths or to atheism - takes precedence. OFlaherty said such a view would violate the pact. 5 The students were punished for expressing their views during the examinations The misuse of blasphemy laws is no longer the prerogative of religious bigots or fundamentalists. It is now being used in every section of society, particularly members of the teaching staff who are eager to contribute in pushing the country towards a religious intolerant state. Indeed, the enthusiasm of the educational staff in this instance was so high that they accused a student of a minority community of blasphemy without following the basic concepts of the ethics of imparting education. These ethics are being violated when the secrecy of examination papers are dishonoured. When an examiner asks a question of a student if he or she is not satisfied with the students answer the examiner has the right to fail that student. However, the examiner does not have the right to disclose the students answer which is the personal opinion held by that student. The attitude of the teaching staff now is to gain points from the religious leaders by pointing out those students who they believe to have made blasphemous comments mistakenly or otherwise. In a recent case a ten-year-old Christian girl, Ms. Faryal Bhatti, misplaced a full stop in her Urdu examination paper on September 22, 2011, which has made hers and her mothers life unbearable. Faryal was a student in Sir Syed Girls High School, Pakistan Ordinance Factory Colony, Havelian. They have been accused of hatching a conspiracy against Islam and its Last Prophet (PBUH). When completing her paper the girl, who has not studied Islam and is therefore unfamiliar with the terminology of the religion, inadvertently placed a dot incorrectly in the word, Naat, meaning a poem in praise of the Last Prophet which changed it into the word, Lanaat which means the opposite: a curse. The teacher, Mrs. Fareeda sternly rebuked Faryal in front of the class and took the matter to the headmaster, even though the child defender herself by saying that it was a mistake. The news of her alleged transgression spread outside the school into the community and she was labeled a blasphemer. The mosque loud
5 Source: http://www.dawn.com/2011/07/29/un-experts-set-out-tough-rules-on-humanrights.html
270
speakers helped to spread the news and rallies were arranged in protest against the mother and daughter. In response to these protests the administrators of the Pakistan Ordinance Factory Colony immediately transferred the mother who was serving as a nurse at the colonys hospital. They were asked to leave the colony immediately. Despite the mothers abject apology and explanation that it was the simple error of a young girl who was in a hurry to complete the paper because of the time limit, no understanding was shown by the teaching staff who were more interested in gaining the favour of the uneducated and illiterate mullahs. This is not the first case of this type. Earlier this year a 17-year-old student, Syed Samiullah, an intermediate student was charged with writing derogatory remarks against the Last Prophet (PBUH) in his Urdu, Islamiat and Physics papers. The incident was reported to the police by the Controller of Examinations of the Intermediate Board of Education, Karachi, who attached copies of Samiullahs answers sheets as evidence of his alleged blasphemy. He was arrested on January 28, 2011. Syed apologised at every level from the board of education to the police and the magistrate but the educational officers, as in the case of Faryal, wanted to become more mullah-like than the mullahs and filed an FIR against him. Syed and his family were pressurised by the educational authorities to the point where he had to confess to having committed blasphemy. The situation was exacerbated by the murder of the governor of Punjab province for his stand against the amendments to the blasphemy laws and the glorification of his assassin. No doubt Syed and his family saw a similar fate in store for him. A bill is introduced for restricting the media discussion on the sub-judice matters: A bill to ban discussions in TV talk shows over the sub-judice matters has been tabled in the National Assembly. This bill is expected to be passed by the National Assembly in its next session. The government has retained two Musharraf era amendments in the Pakistan Electronic Media Regulatory Authority (Pemra) Ordinance introduced on November 3, 2007 with the imposition of emergency rule. Now a third amendment has been added to the bill. The present rulers have retained two Musharraf era amendments in the Pemra Ordinance, despite the fact that the Supreme Court had declared Musharraf s emergency rule and all the ordinances and orders during that time null and void.
Pakistan
271
Under the two amendments retained by the PPP-led government: (1) The video footage of suicide bombers, terrorists, bodies of terror victims, statements/ decrees of extremists and any other action, which could aid or abet terrorism, would be banned. (2) All the broadcasting institutions will make sure that they dont publicise views or actions detrimental to ideology of Pakistan, sovereignty, national security and integrity. The broadcasting institutions will not broadcast any programme with extremist or derogatory content. No derogatory content would be broadcast against the state institutions. Now the government has added another clause to these amendments which would ban discussions on sub judice matters. The new clause says: The broadcasting institutions will not broadcast any such programme or discussion aimed at influencing or giving opinion about sub judice matters. The violators of this ordinance or those assisting in violation of the ordinance will be fined up to Rs10 million, while the cable operators broadcasting such content would be awarded three years imprisonment, fine, or both. According to the government, the aim and objective of introducing this bill is to end sanctions on the media and repeal the dictatorial amendments in the Pemra Ordinance introduced on November 3, 2007. (The News, August 1, 2011)6 A ban has been imposed on all government officials from interacting with the media under the new Protection and communication of official information rule. As per Rule 46 of the Punjab Government Rules of Business 2011, which was recently circulated among all provincial departments all government employees are hereby forbidden to speak with journalists about official business. The various addendums to the law include: (1) A government servant shall not communicate any information acquired directly or indirectly from any official document or otherwise to the media, to non officials, or to officials belonging to other government offices, unless he has been, generally or specially, empowered to do so. (2) The chief secretary shall issue detailed instructions about treatment and custody of official documents and information of a confidential character. (3) Ordinarily, all official news and information shall be conveyed to media through the Information, Culture and Youth Affairs Department, in the
Source: http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=3176&Cat=13
272
manner, generally or specially, prescribed by the Department. (4) The ministers, secretaries and such other officers as may be authorized shall act as official spokesmen of the government. Department officials refuse to discuss any official information with the press, particularly in the home, police, health, irrigation, revenue and other departments that fall under the Service and General Administration Department. These are the only departments that receive the most complaints! This is the governments way of ensuring that no one can cover these departments. The new legislation is being viewed as a serious threat to the media. Reporters from all over Punjab have protested that the law is in violation of the spirit of freedom of expression and will greatly hinder the function of the media as a watchdog of society.7 16 journalists were killed and 46 were injured in different incidents during the eleven months of year 2011 The security of the media persons were remained a big question during the eleven months of 2011 and no proper steps have been taken to provide security by the authorities and even by the media houses. The attitude of the media houses was more indifferent towards the safety and security of journalists as compare with the authorities. The journalists who are involved in their professional duties in the conflict areas are more vulnerable and exposed before the law enforcement agencies, militant groups and other non state actors. The majority of the journalists are under paid or allowed to use only ID cards of the channels and have to arrange their own earnings. During the eleven months of 2011, the journalists have faced the more insecurity and intolerance in compare with previous years--no more different from the military dictatorship. 16 journalists were killed, among them five journalists were abducted by the spies of state intelligence agencies, kept incommunicado in different torture cells, tortured and their bullet ridden bodies were dumped on the road side. Five journalists were killed in bomb blasts while performing their professional duties, six journalists were killed in target killings. One journalist is missing after abduction by the plain clothed persons.
Source: http://tribune.com.pk/story/178318/freedom-of-expression-new-law-robs-journalists-of-their-sources/
Pakistan
273
The Balochistan Union of Journalists (BUJ) claims in its press release published by Express Tribune on June 11, 2011, that 10 journalists were killed in Balochistan this year and no investigation has been carried out. The BUJ has not provided any list having the names of killed journalists in Balochistan. In different attacks on journalists and media houses 35 working journalists, 10 camera men, one photographer, two drivers and one satellite engineer of television channels were injured during the attacks. Three television channels were attacked, one was attacked two times, and one FM radio station was attacked. Two television channels were banned to stop their broadcasts. Bullet riddled bodies of missing journalists were found who were allegedly abducted by state agencies Saleem Shahzad, Pakistan Bureau Chief of the Asia Times Online, an online news agency based in Hong Kong, was going to a private television channel at a talk show in the programme, on the issue of the terrorist attack on PNS Mehran Naval base Karachi. On Sunday, 29 May 2011, he left home at 5.30 in the evening to join the TV talk show but did not reach the station. His whereabouts remained unknown for two days and on May 31, 2011 his dead body was found which was bearing torture marks. His body was found 200 kilometers away from his house. He was abducted from Islamabad, the capital of Pakistan and remains under the tight surveillance of state intelligence agencies. This is one more of the mysterious abductions and extrajudicial killings that have been taking place in Pakistan on a regular basis. He was continuously receiving death threats from the intelligence agencies for breaking the news that there were Jihadis from banned militant organizations in the Pakistan Navy and they were well protect over there. The US has also confirmed the involvement of Pakistani notorious intelligence agency, the ISI, in his abduction and extra judicial killing. Javed Naseer Rinds name was added to the list of more than 10 journalists whose bodies have been found tortured and dumped in Balochistan province. Rind was 26 years old and working as sub editor with local Daily Tawar, a pro nationalist newspaper and he was abducted by plain clothed persons on September 10. Family members claim that he was abducted by the spies from intelligence agency and police have refused to file the first information report (FIR). Rinds bullet-riddled body was found dumped in Khuzdar, about 300 kilometers south of Quetta, on November 5. The victim was shot in the head and the bullet had passed through the skull. The body bore multiple marks of brutal torture, doctors at the District Headquarters Hospital, Khuzdar said.
274
Zareef Faraz: The bullet riddled body of Zareef Faraz,a poet and editor of quarterly literary magazine, the Shabjoo, was found on April 25, 2011 from Turbat. According to the media reports, Zareef was abducted one week before his killing and he was abducted when he was going in a passenger bus by uniform and plain clothe persons. Sami Ahmeds body was also found with the body of Zareef, he was from Tump sub district of province. Siddique Edios bullet riddled body was on April 28. He was Human rights defender and journalist. Siddique Eido and his colleague, Yousaf Nazar Baloch, also met a grisly fate, they were abducted by FC and police on December 21. They were seized by the paramilitary Frontier Corps and dragged into a van. Police who tried to protect them were severely beaten. Eido and Baloch were taken to an unknown location. Their bloodied, battered bodies were discovered on 28 April from Makran. Rehmatullah Shaheen was a journalist and a poet, his bullet-riddled body was recovered from Quetta on February 2. Family members of the victim said the government agencies were responsible for the killing of Rehmatullah Shaheen who was abduct at the start of New Year. Hospital sources said the victim was shot in the head that resulted into instant death as the body was also bearing some torture marks. Journalists killed in target killing Nasrullah Khan Afridi, a senior tribal journalist, died in May 2011 when his car blew up by a powerful bomb which was detonated remotely in his car at Khyber Super Market, Peshawar, capital of Khyber Pkhtunkha province. Nasrullah had just boarded his car after returning from a shop near Lala Hotel in Khyber Super Market after faxing news to his media organisation when the bomb went off with a deafening sound around 9:15 p.m. The car was destroyed in the explosion. Faisal Quereshi, 28, editor for the political news website London Post, was murdered at his resident. His body was discovered on October 7, 2011, about 2 a.m. by his brother, Zahid, after family members found bloodstains outside the journalists house. Police reports described the body as showing signs of torture, with the throat slit. Another brother, Shahid, who lives in London, told that the killers had taken the journalists laptop and telephone. Shahid Qureshi, who also wrote for the London Postwebsite, told that he and his brother had received death threats
Pakistan
275
from men who claimed they were from the Muttahida Qaumi Movement (MQM) political party. The London Post had run a series of stories on MQM leader Altaf Hussain, describing his alleged flight to South Africa from England, where he was living in self-imposed exile. The website is widely recognized as anti-MQM. MQM is Pakistans thirdlargest political party, and is considered the countrys largest secular political party, with Karachi and the Sindh region as its power base. Munir Shakir was working for a Balochi language channel, Sabaz Baat, and for the Online news agency. He was shot dead by armed men in Khuzdar town, Balochistan, on August 5. Munir Shakir was on his way home after purchasing some household items from a market when some armed men riding a motorcycle opened fire on him, Sources said that Mr Shakir was hit by more than two bullets and died on the spot. He is the fourth journalist to be gunned down in Khuzdar this year. Wali Khan Babar, 29, reporter of Geo News, Pakistans largest private television news channel was gunned down by unidentified armed men in Karachi on January 13, 2011. Babar received five bullets two in forehead, one in jaw and two in neck. He was killed shortly after covering operation against drug-traffickers in Pehalwan Goth area in Karachi. According to press reports, Babar was returning home from Geo News office after performing his professional responsibilities, when two assailants on motorcycle intercepted his car at 9:21 pm and shot him five times through drivers window from close range. Eyewitnesses told journalists that Babars car was stopped by attackers who, after making identification, shot him dead It was blamed by the former Sindh minister of interior affairs that Baber was killed by the gangsters of Muteha Quami MovementBabar leaves behind a widow mother, three sisters and four brothers. Naveed Kamal, 26, was attacked by unidentified men on the night of April 20 at Abul Hasan Isphahani road, Karachi, capital of Sindh province. He was shot in the neck and is in the Intensive Care Unit at the Aga Khan Hospital. Kamal was the news reporter with Metro One TV channel. No attacker has been arrested. Ayaz, 32, chief editor of a weekly newspaper, was shot dead in North Karachi in the Sir Syed police limits. On June 12 at afternoon, someone had asked him by telephone to get to the place near a fast food restaurant. According to the
276
eyewitnesses, Ayaz was standing at the place when two people in a car arrived and started talking to Ayaz. In the meantime, the suspects took Ayaz some distance away from the fast food restaurant, opened fire on him and fled. No one has been arrested in the killing. Zaman Ibrahim, 40, a newspapers crime reporter, was shot dead on Sheedi Village Road in Lyari, Karachi on March 3, 2011. Ibrahim was going on his motorcycle when two motorcyclists followed and shot him in the head. The victim was accused by the police a the member defunct Peoples Amn Committee (peace committee) Ibrahim was father of two children. He worked for different newspapers for the last five years. Journalist killed in bomb blasts Asfandyar Khan, a reporter for the newspaper Akhbar-e-Khyber, died in a double bombing that took the lives of more than three dozen people on June 11, 2011. The first, small blast went off at a market, drawing a large crowd, including journalists such as Khan who were covering the story. A second, larger explosion, apparently a suicide bomb, went off after a crowd had grown. Abid Naveed, the local journalist working with a newspaper, was also died in the same blast of June 11, wherein seven other journalists were injured. At least 34 people were killed and over 90 injured, among them two other television journalists and a senior police officer. Shafiullah, a trainee journalist of an English daily newspaper, who was injured in the twin explosions in Peshawars Khyber Supermarket, on June 11, succumbed to his injuries on June 15. Nasrullah Khan Afridi, a senior tribal journalist, died in May 2011 when his car blew up by a powerful bomb which was detonated remotely in his car at Khyber Super Market, Peshawar, capital of Khyber Pkhtunkha province. Nasrullah had just boarded his car after returning from a shop near Lala Hotel in Khyber Super Market after faxing news to his media organisation when the bomb went off with a deafening sound around 9:15 p.m. The car was destroyed in the explosion. Journalists injured in different attacks and violent incidents A journalist was hit by a bullet: Ahsan Kohati, senior correspondent for the private Waqt television station, was hit in the chest by a bullet while reporting
Pakistan
277
at the scene of rioting in the Numaish Chowrangi area of the city on November 27. Three members of a banned militant group, who had taken part in a protest against a Saturday attack by NATO helicopters on a military checkpoint in Mohmand agency, sparked mob violence when they shot and killed two Shia Muslim volunteers at a religious event, according to the news reports. Kohati was injured when paramilitary forces fired on the rioters, local newspaper The Nation reported. Journalists thrashed: Rain-affected members of Maheshwari community of Tando Mohammad Khan, including women and children and reporters covering the event, were thrashed by personnel of law enforcement agencies when they staged a sit-in outside the office of the District Coordination Officer. Members of Maheshwari community were protesting against non-supply of relief goods to them. Members of law enforcement agencies used batons to disperse them. They did not spare even journalists, snatching their cameras. President of the union of journalists and TV reporter, Muzaffar Rind, Ansar Khan and cameraman Pappan Bhatti were also thrashed. Dawn September 23, 2011 Two cameramen injured by Rangers action: Rangers arrested two activists of the Jeay Sindh Qaumi Mahaz and baton-charged people who were protesting against the arrest of JSQM chief Basheer Khan Qureshi here on Saturday. The action left a TV cameraman and four JSQM activists injured. A TV cameraman, Shaman Solangi, received injuries on his head and was taken to hospital. Another cameraman, Mohammad Ali, was also hit with baton. Dawn September 18, 2011 Journalist teeth were broken: Bureau Chief of ARY One World TV channel, Farhan Effendi was manhandled and injured by the supporters of a former provincial minister Dr. Zulfiqar Ali Mirza in his press conference in Hyderabad city of Sindh province of Pakistan on Monday, August 30, 2011. Effendi, who is also the General Secretary of Hyderabad Union of Journalists, told Pakistan Press Foundation (PPF) that he posed a question to the former home minister with reference to a point raised by him in his opening remarks. Mirza was upset at this mischaracterisation of his remarks and started yelling at Effendi without allowing him to complete his query, lost his cool and branded him as an agent of his opponent political party. Later, Mirzas guards started beating Effendi and broke his four teeth.-- Pakistan Press Foundation, September 5, 2011 Journalists were attacked and injured: Hazrat Khan Mohamed, Bureau Chief of private TV channel ATV Khyber News, was injured when a team of
278
their TV channel was attacked by unknown armed men on August 22, 2011 in Peshawar, the capital of Khyber-Pakhtunkhwa province. The team was returning after enquiring about the health of Provincial Education Minister Sardar Hussain Babak at Lady Reading Hospital Peshawar, when some persons travelling in a car and on a motorbike intercepted their car near the Provincial Assembly Secretariat and Peshawar High Court and pelted it with stones. They also harassed the media team with aerial firing. Mohamed received injuries in shoulder, head and ribs, while other team members included controller news Syed Waqas Shah, resident editor of recently launched Urdu daily Akhbare-Khyber Nisar Khan. Press reports said the provincial information minister Mian Iftikhar was engaged in a vilification campaign against the channel due to some differences and also filed a damages suit against the channel in the Peshawar High Court. Pakistan Press Foundation August 24, 2011. A newspaper office was attacked: The main office of daily Mashriq, a leading Urdu newspaper of Peshawar, the capital city of Khyber-Pakhtunkhwa province of Pakistan, was attacked by Police on August, 6, 2011. They tortured the staff members including senior journalists Sohrab Khan and Asif Nisar Ghayasi. Saif-ul-Islam, the president of Peshawar Press Club told Pakistan Press Foundation that about 100 policemen from Fakirabad and Ashnghri police stations attacked the office of daily Mashriq and brutally tortured its security guards. When journalists of the daily asked the reasons of manhandling, the cops also started beating the journalists at the behest of their Station House Officers (SHOs). Pakistan Press Foundation, August 8, 2011. Levy officials manhandle cameramen: Geo News cameraman and his colleague sustained injuries when the Levies Force officials thrashed them in Makanbagh area, Mingora, KP province. The Geo News cameraman Murad Ali and Sheraz, working for another private TV channel, were on their way to Saidu Sharif Hospital for coverage when they got stuck up in traffic in Makanbagh area. The newsmen riding a motorbike tried to overtake the jammed vehicles in a bid to reach the hospital in time when the officials of the Levies Force escorting the District Coordination Officer Kamran Rahman manhandled them. The officials took away their cameras, DVD and other items. Taking serious note of incident, the DCO put the Levies personnel under suspension and ordered departmental enquiry into the incident. The News July 8, 2011. The moustaches and eyebrows of journalists were shaved: Unidentified youths severely tortured two journalists and shaved their moustaches and eyebrows near Chak 6/BC on Bahawalpur-Hasilpur Road. Journalist
Pakistan
279
Muhammad Yaseen Ansari and photographer Khalid Sardar told The News they received calls that some members of a qabza group were torturing the women to grab their land and the victims needed the help of journalists. When we reached the site, 9-10 unidentified youths attacked us and snatched our cell phones. They also threatened us with dire consequences if we published any scandalous story in our newspaper, they said. The News July 16, 2011. Pakistan based foreign correspondent assaulted by police: Waqar Kiani, 32, Pakistan-based correspondent of British newspaper Guardian was assaulted allegedly by police in Islamabad, the capital city of Pakistan on 18 June, 2011. He was attacked after five days of a news report published in Guardian and other newspapers about abduction and torture by suspected Pakistani intelligence agents in July 2008 in Islamabad. Kiani told Pakistan Press Foundation that he was on his way home from Islamabad on when some policemen in a police van ordered him to stop and get out of the car and said that they had to search his car. As he stepped out, four police personnel started beating him with sticks and a rubber flog. They said You want to be a hero? Well make you a hero,Were going to make an example of you. Kiani received injuries on his face and back and was shifted to the Pakistan Institute of Medical Sciences (PIMS) by rescue services, where he was given medical aid. Pakistan Press Foundation, June 20, 2011. Police beat a cameraman for filming torture of a boy: Waheed Butt, 40, cameraman, of Geo News, a leading private news channel, was arrested and assaulted by police as he was filming the arrest of a 12-year boy by police on June 17, 2011 in Lahore, capital city of Punjab province of Pakistan. Butt, who is also president of Lahore Cameramen Association (LCA), told Pakistan Press Foundation (PPF) that when he was going to his office to perform routine duty, he saw four policemen arresting and beat up 12-year boy. When Butt asked as why they are dragging the boy, police personnel misbehaved him and said stay out of this matter. Butt followed police vehicle on his bike and captured the scene with his mobile phone camera. Noticing him, they stopped the vehicle, Station House Officer (SHO) Ahsan Ilahi got out of vehicle and snatched his mobile phone and ordered his men to arrest him although Butt told them that he is cameraman, working with a famous media organization. Pakistan Press Foundation, June 20, 2011. A journalist was arrested, beaten and abused by police: Jamal Tarakai, 36, a Quetta-based photojournalist working for various media organizations, who had filmed the first video of security forces firing on the five Chechens including three women on May 17, 2011,was arrested, beaten and abused by
280
police in Quetta, the capital city of Balochistan province on morning of June 14, 2011. Tarakai told the Pakistan Press Foundation (PPF) that he was going to Quetta Press Club when policemen on two motorbikes followed him upto 2kilometers and stopped him near Kharotabad Police Station and took him to the police station, where he introduced himself and told that he was going for his routine duty. A policeman threw his identity card to floor and misbehaved. When Tarakai objected, they started beating him dashing on floor. He received bruises on his body. Tarakai said that he made some calls to inform journalists about his arrest who reached at police station and got him released after an hour. Tarakai said he had been receiving threatening calls on his cell phone since Kharotabad incident but few days back he had received a threat from an unknown man who called at the Quetta Press Club and told the clubs Vice President Yaqoob Shahwani that Tarakai had committed a big mistake by handing over the films and photographs to the tribunal. He said he was feeling insecure because of the police attitude. Eight journalists injured in twin bomb blasts: Two blasts ripped through military cantonments Khyber Super Market, a commercial and residential area of Peshawar, the capital city of Khyber Pakhtunkhwa province in Pakistan late night on June 11, 2011. Around 39 people were killed and more than 100 were injured in the blasts. Police investigators believe the first bomb of low intensity was planted as a trap to target mostly the police and journalists who were expected to reach the site of the explosion. Several journalists including Bureau Chief of Dunya TV Saifullah Gul, reporter Dunya TV Imran Bukhari, a young internee at daily The News Shafiullah, sub-editor of daily The News Barkatullah Marwat, reporter of Geo TV Qazi Fazlullah, cameraman of AVT Khyber Hashim Ali and reporters of daily Akhbar-iKhyber Sheheryar and Riaz were also among the injured. Shafiullah who was doing his internship at daily The News is in critical condition at Burn Care Centre in Wah Cantt, later on he died on June 15. Other injured journalists were, however, in stable condition after receiving first aid. (Pakistan Press Foundation) A journalist and a cameraman were injured when police attacked them; 25 men from the Crime Investigation Department (CID) police attacked a reporter and cameraman from Express News who went to cover a raid in Ferozabad, Karachi, capital of Sindh. Reporter Wasiq Mohammad was tipped off that the CID police would be conducting an operation to make arrests of criminals who have been living in the Jheel Park area in Ferozabad,
Pakistan
281
Karachi. When Zohaib took out his camera to capture footage of the raid, four constables in plainclothes snatched his camera and broke it. They took away Zohaibs mobile phone and began hitting him. When the teams driver tried to intercede they hit him as well and handcuffed both the men. (Pakistan Press Foundation) A journalist hit by bullet: A journalist was wounded in an incident of firing in Turbat, Balochistan on May 4, 2011. According to sources, private TV reporter Jahangir Aslam and Directorate of Public Relation Balochistan Sector Incharge Abdul Wahid Baloch were heading towards their residence from Press Club in Turbat when gunmen opened in-discriminate firing on them, injuring them critically.Meanwhile, the Balochistan Union of Journalists strongly condemned attack on the media man and DPR official, demanding the government gear up effort to ensure security of journalists. Five journalists had been killed and two injured during the last six months in Makran Division. But no culprit has been arrested so far. (The Nation, February 2, 2011) A journalist was abducted on the suspicion of throwing shoe at judge: Muhammad Rafique Balouch, a reporter of Urdu language daily Ummat and Vice President, Karachi Union of Journalists (KUJ), was abducted by four unidentified people in plain clothes on March 21, 2011 in Karachi, the Southern port city and capital of Sindh province of Pakistan. Balouch told Pakistan Press Foundation (PPF) that on Monday, March 21, 2011, at 8.30am as he was going to Sindh High Court (SHC) to attend the hearing of 7th Wage Board Award hearing, four unidentified men in a car intercepted him. Three of them came out of the car and asked his identity. They inquired where he was going and when he said he was to the Sindh High Court, they forcibly put him in their car, blindfolded him and drove away. After a 20-minute drive they took him to an unknown building and asked questions on Wage Board award movement and about KUJ President Siraj Ahmed and General Secretary Hassan Abbas. The abductors said they had information that Balouch planned to throw a shoe on the face of Chief Justice of SHC during hearing, and that they were deputed to remove Balouch from the scene. After four hours, the abductors again took him in car and freed him in the city centre and warned him not to tell anyone about this incident. Balouch was kept blindfolded during the entire ordeal. Camera operator struck by stray bullet at Punjab Assembly premises: On 14 March 2011, Mohammad Fayyaz Qamar, 25, a Lahore-based cameraman for Dunya News TV, was shot and injured in the premises of Punjab Assembly,
282
a high security zone in Lahore, while he was covering an event. A stray bullet hit him while he was sitting in an area designated for journalists. According to press reports the incident took place when the Punjab Assemblys 23rd session was in progress and just before Speaker Rana Muhammad Iqbal Khan gave a short break for prayer. Around 80 journalists from different media organisations were present inside the media camp when a 30-bore pistol bullet came from the direction of Wapda House, piercing through the tent, and hit the back of the cameraman after rebounding from a chair. The rescue team took Qamar to a local hospital where he was given first aid and he is said to be out of danger. (Pakistan Press Foundation) Dawn news team was attacked by sub-machine guns: A reporting team of DawnNews, a private TV news channel, was fired upon by unidentified persons in Tehsil Jati of district Thatta in Pakistans second largest Sindh province on February 04, 2011. The team was attacked as they were reporting illegal seizure of landfor their programme. The reporting team included senior anchor Syed Talat Hussain and cameraman Haider Ali. He told Pakistan Press Foundation (PPF) that they were recording their programme on the plight of flood affectees in interior Sindh. Ali said few villagers informed them that Ghulam Qadir Malkani, a former advisor to the Chief Minister of Sindh, had forcibly evicted them from their 200 acre land which included their crops and homes. The reporting team decided to confirm the report. Ali said he and Hussain walked ahead in the field. Hussain identified himself in loud voice and called the people there but no one replied. Suddenly, snipers opened fire on the reporting team. Some of armed men also followed the reporting team is it tried to flee. Hussain and Ali managed to escape to a safe area. Cameraman Ali didnt shut off his camera and recorded the incident. According to press reports, sub-machine guns and other sophisticated weapons were used in the attack and the pellets from the rounds landed around the team.The Dawn News and journalistic organizations have condemned the attack on journalists demanding an immediate investigation in the incident. A senior journalist is abducted: A group of armed men with covered faces kidnapped senior tribal journalist Rahmatullah Darpakhel from Miramshah, North Waziristan, on August 7, 2011. He was associated with an Urdu daily Ausaf. Rahmatullah was shopping in the bazaar when a group of armed men bundled him into a car and drove away. He was careful while writing about issues and incidents taking place in the volatile North Waziristan. He had reportedly refused to work with the foreign media due to the dangers associated
Pakistan
283
with journalistic assignments in the militancy-hit tribal region. The News reported on August 8, that the tribal sources said a mysterious group, Khurasan, which is considered as an intelligence wing of the Taliban, was said to be behind such kidnappings and murder of the tribesmen in North Waziristan. Local Taliban led by Hafiz Gul Bahadur denied involvement in Rahmatullahs kidnapping and denounced the incident. Their spokesman Ahmadullah Ahmadi said they had launched efforts for safe recovery of the journalist. Journalists were attacked A bomb was planted at the house of a journalist: The house of Jawed Noor, senior correspondent of daily Mashriq and the president of Wanna Press Club was blown up with explosive device placed by some unknown miscreants in the midnight of Thursday, October 20, 2011, at Wanna, the headquarter of South Waziristan Agency of Federally Administrated Tribal Areas of Pakistan. Noor told PPF that some miscreants blow up his house by placing a bag of explosive device outside. He was in Peshawar at the time of attack. His family members awakened when they heard a big sound of blast, all members are safe, however the walls and window panes of the house were damaged, he said. He told that he had received death threats on phone calls few days ago, but he didnt take any notice of it. Noor said, there are many militant groups in FATA, and they dont want journalists to publish the truth or any news against them. Seven journalists were injured in attack by students: Shahzad Anwar, Vice president of Multan Press Club and chief photographer of Daily Pakistan Akhbaar and six other journalists were injured in a clash with the students of state-run Bahauddin Zakariya University (BZU), when students were protesting for their demands outside the Press Club, in Multan, the city of Punjab province in Pakistan. According to press reports, around 200 students from the BZU Veterinary Department had been protesting for their summer vacations to be announced but the head of the Veterinary Department had yet to issue a notice in this regard. The students were also protesting that the Pakistan Veterinary Medical Council (PVMC) had not yet accredited their courses even after a passage of five years. They blocked the traffic and did not pay heed to appeals for ending the blockage. Seven media persons including photographer of daily Sang-e-Meel, Ayaz Ali Sheikh, cameraman of Samaa TV, Iqrar, reporter from Naya Daur, Zafar Iqbal, chief photographer daily Din Zafarul Islam, cameraman Apna TV, Suhail Qureshi, cameraman Dunya TV channel Tariq Nazir Chaudhry and
284
photographer Daily Pakistan Akhbaar, Shahzad Anwar sustained injuries. Ayaz Ali Sheikh and Iqrar were rushed to Nishtar hospital. Jahangir Moon, 60, the coach of Multan Cricket Club and associate member of the press club, who was injured as a stone hit him at the head, was also shifted to the Nishtar Hospital where he died. (Pakistan Press Foundation) President of Hyderabad press club was under attack A meeting of the General Body of the Hyderabad Press Club (HPC) has demanded the immediate arrest of criminals involved in firing on the car of a senior journalist and clubs former president Mahesh Kumar. President HPC Jafar Memon condemned the firing incident which took place on Friday outside the club. Some motorcyclists fired upon the car of Mahesh Kumar. (Pakistan Press Foundation) Media teams of Samma TV were attacked two times: The Samaa TV channel was attacked two times during the year. On January 1, it was attacked by unknown armed men who detained the media team for over two hours in the Industrial town of Faisalabad, Punjab province. The reporting team included, Reporter Mannan Ashraf, Cameraman Salman Ashraf, Trainees Muhammad Sajid and Muhammad Saeed, Satellite Engineer Irfan Serwer and driver Mohammed Majeed. While the SAMAA team was conducting the interview, two men came and hit DSNG van. When Serwer and Majeed who were present in van asked the reason, they used abusive language and demanded the reporting team leave the area. After exchange of hot words, both men went back to call their accomplices. On July 28, 2011, a reporting team of SAMAA TV, a private news channel, was attacked by a group of miscreants who manhandled the crew for one and half hour and warned them of dire consequences if they continued coverage in the area. They also attacked the channels van, setting it ablaze on 28 July 2011 in Karachi, the capital city of Sindh province of Pakistan. The reporting team included reporter Ghayasuddin, cameraman Faisal Aghai and driver Zahid Shah. Foreign channels live coverage from Abbottabad barred The Pakistan Electronic Media Regulatory Authority has barred all major foreign television channels from making live broadcasts from Abbottabad five days after US commandos killed Al Qaeda chief Osama bin Laden there in the May 2 operation by US navy commandos, reflecting the governments unease over the coverage of perceived failures of its agencies.
Pakistan
285
The Pemra issued a restraining order in a statement released by the governments Press Information Department on Saturday evening, accusing nine channels, the BBC and CNN included, of violating section 30 of the Pemra Act. The statement added that Pemra had stopped foreign satellite TV channels from illegal uplinking of signals and live covering (of ) news from Abbottabad. The agency named the channels as Fox News, NBC News, CNN, CNS, IBN, BBC, Al-Jazeera, Voice of America (VOA) and Sky News.All foreign channels have been issued notices to show cause (about their alleged illegalities) and stop illegal activity immediately, the statement said. It said: Pemra issues temporary uplinking for covering any event live from Pakistan for a specific event and time and added: Pemra being a regulator is steadfast in discharging its regulatory responsibility and ensuring level playing field for all stakeholders. Daily Dawn May 8, 2011. Pemra asks cable operators to shut Aag TV: Continuing its vicious persecution campaign against the Jang and Geo Group, Pemra has now asked cable operators to shut down another Geo channel, Aag TV, The News reported on April 4, 2011. These Pemra orders were given verbally to cable operators to close the youth channel of Geo, which had planned to show the IPL cricket matches to the cricket loving people of Pakistan after its sports channel, Geo Super, was shut down. However, not all cable operators have followed the verbal instructions and some have asked Pemra to send the orders in writing. Pemra struck the Jang Group within days with this new ban on Aag TV after it denied the people of Pakistan to see the IPL cricket matches through their most popular Geo Sports channel. Govt orders Geo Super not to air from Pakistan: The countrys most popular and exclusive sports TV channel Geo Super stands punished by the government for its overwhelming popularity and incessant efforts to promote sports. At the governments behest, the Pakistan Media Regulatory Authority (Pemra) has ordered Geo Super to stop airing from Pakistan. Geo Super had earned exclusive rights to telecast the cricket World Cup, and the Supreme Court of Pakistan made Pemra give an undertaking to make sure Geo Super is not disturbed. These orders were not only violated but right after the World Cup was over, Pemra refused Geo Super permission to air from Pakistan. The government has not issued the uplink licence to Geo Super to telecast from Pakistan. Geo Super had earned exclusive rights to telecast the cricket World Cup, and the Supreme Court of Pakistan made Pemra give an undertaking to make sure Geo Super is not disturbed. These orders were not only violated but right after the World Cup was over, Pemra refused Geo Super permission to air from Pakistan. The government has not issued the uplink licence to Geo
286
Super to telecast from Pakistan. When Geo Super contacted Pemra for a new permission on April 1, it (Pemra) sought several details in a letter on April 4, besides issuing orders that Geo Super should not be telecast from Pakistan. Pemra also warned Geo Super of action under the Pemra Ordinance in case the orders were violated. Militants blew up radio station FM 93: Suspected militants blew up parts of the privately-owned radio station FM 93 Dilbar Radio at about 1:30 a.m. on April 20, 2011 after planting explosives around the building housing the station. Radio Dilbar is located in the town of Charsadda, 120 kilometres southeast of Peshawar in Khyber-Pakhtunkhwa province, and broadcasts a mix of news and music. According to press reports, unknown persons planted powerful explosive material around the station; two rooms and the boundary wall of the radio station were completely destroyed and some equipment was also damaged in the blast. Two technical staff members and two security guards were present at the time of the blast but no injuries or loss of life was reported. Shahryar Shah, station manager of Radio Dilbar, told Pakistan Press Foundation (PPF) that the radio station had temporarily stopped transmission for 18 hours, but had resumed transmission later that evening. 3. Rule of law Throughout the year 2011 the absence of rule of law was observed as people were killed in sectarian, religious, ethnic and targeted violence which included high profile personalities. The government and its institutions remained silent and have proven themselves incapable of maintaining control. The state has proved itself dysfunctional. The state has not only failed to recognise but actually turned a blind eye to the large scale abductions, extra judicial killings, torture in custody, the torture cells of armed forces, religious intolerance, rape, persecution of religious minorities and their insecurity, child abuse and the absence of the rule of law. The state and the government do not take any effective action to protect the rule of law and respect the citizens. In fact, the popular perception is that these violations, abductions and killings take place with the knowledge of the countrys intelligence services and other authorities. Nowhere in the country is the rule of law found. The law enforcement agencies are complicit in the un-rule of law. These recent incidents, as well as other incidents during the past six months expose the complete breakdown of the rule of law in the presence of an independent judiciary and parliament. The
Pakistan
287
army firmly believes that it is above the law of the land and never misses an opportunity to thumb their noses at the government whenever it gets the chance. The basic concept of rule of law is totally eroded from the governance which is why, time after time, such incidents take place. The army also exerts pressure on the media, never allowing it to work freely. This is plainly evident by the fact that the aforementioned incidents were down played by the media because of threats and intimidation to media houses and journalists. Many journalists have already been tortured and killed the army and its intelligence agencies which is a forceful reminder for self censorship. There can be no possible justification for the deaths of innocent persons in the name of religion. Religious minorities see no form of protection or redress from the government whose campaign promise was to provide protection for every citizen of the country. However, it is ironic that one of the very people responsible for these atrocities is being protected by the very government that is supposed to be protecting his victims. 4. extra judicial killings Extra-judicial killings are typically the end-point of a string of human rights abuses that include encounters, abduction or arbitrary arrest, forced disappearance and torture. The bodies of disappeared persons are often dumped on the roadside, riddled with bullets. This pattern of abuse has reportedly become a routine method used by Pakistans intelligence agencies. During 2011, over 120 persons are thought to have been killed extrajudicially following their abduction and disappearance by the State. According to independent sources thousands of people are reported to have been subjected to enforced disappearance in recent years, in particular in resource-rich Balochistan including form Sindh, Khyber Pakhtunkha (KP) and Punjab provinces. Despite the scale of the problem of extra-judicial killings in Pakistan, and despite the fact that the country now has a civilian government since the ouster of President General Pervez Musharraf, the authorities have not taken any meaningful steps to address this grave problem. Indeed, many of the disappeared and subsequently killed persons were arrested in the presence of the police. In most cases, when complaints concerning these persons
288
disappearance are made by relatives of human rights defenders, the police refuse to lodge an FIR, because of the involvement of state intelligence agencies and their collusion with or subservience to this powerful entity in Pakistan, which appears to operate above the law and with total impunity for even the gravest rights abuses. Saleem Shahzad, Pakistan Bureau Chief of the Asia Times Online, an online news agency based in Hong Kong, who had earlier announced the danger to his life from the intelligence services (ISI) in Pakistan was abducted on Sunday, May 29, and his body was discovered on May 31. This is one more of the mysterious abductions and extrajudicial killings that have been taking place in Pakistan on a regular basis. He is the 70th journalist to meet this fate since 2000. Many other civilians have also been abducted and disappeared and their numbers are counted in the thousands. The state has failed to recognise these large scale abductions and killings and take any effective action to prevent them from occurring. Mr. Saleem Shahzad, was going to a private television channel, the Dunya News, to participate at a talk show in the programme, In-Session, on the issue of the terrorist attack on PNS Mehran Naval base Karachi. On Sunday, 29 May 2011, he left home at 5.30 in the evening to join the TV talk show but did not reach the station. Later on the US government came out with a statement that Pakistans notorious intelligence agency was involved in the killing of Saleem Shazad. 215 missing persons were extra judicially killed in Balochistan The Asian Human Rights Commission has documented that in Balochistan province 215 missing persons were extra judicial killed during the period from July 2010 to October 2011 and more than 100 persons were killed during the 10 months of 2011 alone. The family members of the victims claimed that the killed persons were abducted or taken into custody by the law enforcement agencies. The journalists, teachers, political activists, students and human rights defenders have been targeted in particular.
Pakistan
289
Please find here the list of 169 persons, who were extra judicially killed after their disappearance: http://www.humanrights.asia/news/ahrc-news/pdf/ AHRC-STM-144-2011.pdf http://www.humanrights.asia/news/ahrc-news/AHRC-STM-144-2011/ http://www.humanrights.asia/news/ahrc-news/AHRC-STM-174-2011/ During the period in which thousands have reportedly been subject to forced disappearance and hundreds are known to have been tortured and executed extra-judicially, Pakistan has been a member of the Human Rights Council. All this time, the situation in the country has hardly featured in discussions held by the Council, despite clearly being one of the flashpoints of insecurity and human rights violations in the region and the world. Children were also not spared from the extra-judicial Killings There were reports that children were also not spared from the extrajudicial killings on the charges of taking participation in the protest meetings and having links with such organizations. The first two victims of the brutal kill and dump policy were Irfat Baloch and Kareem Jan Baloch. Irfat, a teenage boy, was a student of Turbat Degree College. He was abducted along with two other friends on September 23, 2011 from Pasni Cross. Their vehicle was intercepted when they were on their way to Quetta for a study tour. Kareem Jan Baloch, a political and social activist, went missing on August 8, 2011 from Tump, district Kech. He was detained illegally for 58 days before his brutally tortured body was found along with Irfat Baloch. On October 9, the Baloch nation witnessed one of its most terrible days when the bullet-riddled bodies of 11-year-old Abdul Wahid Baloch (who was also called Balaach) and Ghulam Ullah Baloch, General Secretary of Baloch Watan Movement, were found from Baghbana, Khuzdar. Balaach was abducted on August 8, 2011 from Khuzdar in the presence of several eyewitnesses. Personnel wearing plain clothes in several vehicles abducted him at gunpoint from a busy market in broad daylight. His tiny body had to bear inhumane torture for 62 days before a bullet in his brain ended his suffering in October. http://www.humanrights.asia/opinions/ columns/AHRC-ETC-049-2011 Cold blooded killing of a young man by the Rangers The people of Pakistan were stunned when they watched the video showing
290
Rangers personnel killing a young man in cold blood in a public place in the evening of 8 June 2011. Passers-by gathered around the scene and made videos of the incident. Footage of the incident, filmed by cameraman Abdul Salam Soomro, was broad cast for the whole day which proved that the victim was unarmed and refusing the charges of stealing. The Cameraman was threatened by the rangers and is in hiding. Before the video was aired, making the reality of the incident public, a spokesperson of the Sindh Rangers, a paramilitary force, issued a press statement claiming that the 25 year old Sarfaraz Shah was killed during an encounter with Rangers deployed outside a park in Karachi. The accused officials were arrested after the protests from different corners and media and they were punished by the Anti-terrorist court but they have appealed and case is pending in the high court. Please see the video presentation at: http://www.youtube.com/watch?v=usCgLI nO0V8&feature=channel_video_title encounter killings to justify extra judicial killing The pretext of an encounter killing is typically used by law enforcement or security forces to justify extra-judicial killings. One horrific example amongst many is the alleged reprisal killing by the police of a lawyer and human rights defenders son, which shows the significant obstacles that are faced by those who wish to seek redress concerning the killing of their loved ones in Pakistan. It is alleged that the local police and persons involved in land-grabbing had a score to settle with the lawyer, Mr. Muhammad Yousuf Butt, for his work against land-grabbing and his social work. Mr. Butt was an activist during the lawyers movement for the restoration of the Chief Justice Iftekhar Choudhry, when he was suspended by the then-military ruler, General Musharraf. On December 28, 2010, in Manzoor colony, Jamshed quarters town, Karachi, Sindh province, Mr. Butts son, Mr. Muhammad Ali Butt, who is a constable in the reserve police, was taken away by six policemen and five men in plain clothes. Assistant Sub Inspector (ASI) Faisal Jaffery, stated that he was required at the police station, and told his father to come to Firozabad police station. However, when they went to the police station they were turned away. When
Pakistan
291
the father returned the next day, he was told that his son had been killed the previous night in a police encounter. His body had six bullet wounds to the torso and many torture marks. Mr. Butt contacted the Baloch colony police station, in whose jurisdiction police encounter reportedly occurred, but the police refused to record a First Information Report (FIR). He also tried to lodge an FIR at Firozabad police station against the police officials who abducted his son, but was reportedly threatened with also becoming the victim of a fake police encounter. The court ordered the police to file the FIR against the accused persons. During the court proceedings, the police claimed that Mr. Butts son died in a police encounter. But the post-mortem report proved the report of police to be false. A police statement said that accused police officials were suspended but later on in the court it was proved that they have never been suspended. The case is still in the court. Absence of rule of law provides impunity to military officials In the recent days it is observed that officials of the Pakistan army and Paramilitary have been on a rampage, taking the law into their own hands and have received impunity through pure force. The sad aspect of these incidents is that the print and electronic media are purposely avoiding coverage of the events because of self censorship on the pretext of national security. In one incident that occurred on August 24 police officers from R.A. Bazar police station, Rawalpindi, Punjab province, arrested two suspected persons from a market place. The men were collecting extortion money and teasing the women. The arrested persons told the police that they were from the army but could not prove their identity. The officers took them to police station but one of the arrested persons managed to escape from police custody. In an astonishing act as the police brought the remaining accused to the station 50 army personnel, under the command of a captain, attacked the police station. They forced their way into the station, severely beat all the policemen present, abducted two police officials and kept them in illegal detention. The abducted officers were also severely tortured in military custody and were finally released four hours later. The whole police station was ransacked and bullets were fired inside the building. In another incident, just three days after the above incident, on August 27, officials of the army tortured to death a Station House Officer (SHO) of the Chacrala police station, Mianwali, Punjab province. Other police officials
292
were also severely injured. The SHOs sin was that he stopped a truck of the Pakistan armys Frontier Works Organisation (FWO) for a routine check at the high way. A case was filed but no arrests have been made because of hindrance from the army. http://www.humanrights.asia/news/ahrc-news/AHRCSTM-113-2011/. Young hindu was abducted from police station by a religious mob and his whereabouts are unknown. Police refuse to investigate A young Hindu scheduled cast man, Mr. Mohabat Mal son of Veero Mal, resident of Mirpurkhas, Sindh province, was abducted by a mob of hundreds of persons from a police station. The police stopped further investigation because of the involvement of a powerful religious group. Since his abduction on May 12, his whereabouts are unknown. This is the second time he was abducted. He was previously abducted by a group of local religious leaders including the leader of the mosque and kept in their custody, allegedly for nine months. The victim alleged that he was raped during his captivity and forced him to convert his religion by signing plain papers. The high police officers of the district Mirpurkhas, Sindh have told the family members, leaders of the Hindu community and the lawyers that they could not do against the mob as there were chances of riots. Since then police have stopped the investigation into the case. On May 12, victim went to police station where a big mob amounting to hundreds of people were gathered outside. The police took him inside the police station to record his statement before producing him in sessions court. The mosque leader and others told the police officials that he is Muslim and they will produce him before the sessions court. The police once again when confronted by religious extremists remained silent spectators. The high officers of the police arrived at the scene but told the family members that they cannot stop the mob as there are chances of Hindu/Muslim riots. The police did not stop and follow the mob when they took the victim and the mob continuously announced that the victim was their new Muslim friend when they took away him to an unknown destination. Instead of arresting the perpetrators police have arrested victims father and his two maternal uncles on the charges of abduction on the application of the Mosque leader. The mother and other family members are in hiding. http://www.humanrights.asia/news/urgentappeals/AHRC-UAC-097-2011/
Pakistan
293
Religious intolerance and killings The government has a policy of appeasement to the groups who were responsible of the bloody clashes. During the year in Karachi, the capital of Sindh province and largest industrial and commercial, 1800 persons were killed in street fighting between the ruling parties and also in targeted killings. Because of the Supreme Courts intervention it was possible to control the killings in Karachi. In Balochistan province, around 60 persons were killed in sectarian killings by a dominant Muslim militant sect and more than 100 missing persons were extra judicially killed during captivity of law enforcement agencies and militant groups.
Assassinated Shahbaz Bhatti, former Minister of Minorities and former Governor Salman Taseer Punjab province remained the strong hold for banned militant organization where the extremist elements killed members of different religious groups including Christians and Ahmadis, a minority sect of Islam. The year started with the killing of provincial sitting governor in day time by a police man who was part of his security detail for supporting one accused Christian lady, Aasia, accused of blasphemy. Later on the killer became the hero and there were strong protests for his release. Only, within two months of the assassination of governor of Punjab, Salman Taseer a federal minister, Mr. Shabaz Bhatti was assassinated in broad day light near to his house. The federal minister was Christian and holding the charge of Ministry of Minority Affairs. He was also driving a movement against the misuse of Blasphemy laws and implication of Christian and other religious minority groups. There was jubilation in favour of killings of high profile personalities and it is found that government machinery at provincial level was complicit in the jubilation. http://www.humanrights. asia/news/ahrc-news/AHRC-STM-005-2011/; http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-036-2011/
294
The killer of the governor Taseer has announced that before killing him and requested the higher officers of police to depute him out of turn on the security duty of the governor. The killings of the former governor and former federal minister started after the open threats from the religious leaders and mosque leaders (Imams) for the killing of those persons who are against the blasphemy law or supporting the accused persons who committed the blasphemy. The Muslim religious have also announced head money for the killings and reservation of killers in the paradise. The civil society was very critical of such threats but the government and law enforcement authorities did not take action against such religious leaders who got impunity by the government machineries. The government has not enforced the law against the misuse of loudspeakers from the mosques. According to law of 2004 the loudspeakers from the mosque can be used only for the Friday sermons and Azan, five times calling for prayers. But throughout the country the mosques are using loudspeakers to preach their hate messages and authorities remain silent. On 9 January 2011, a rally was organised by Tahaffauz-e-Namoos-e-Risalat, which is a conglomerate of religious parties, opposed to amendments of the countrys blasphemy laws. It is these possible amendments that were behind the assassination of the governor of the province, Salman Taseer by one of his own security guards. The rally, while demonstrating against the amendments also showed support for the assassin, Mumtaz Quadri. He is a hero and we salute his courage, the speakers declared. It is known that more than 3,000 police officers were present, supposedly to maintain law and order. However, when the speakers announced over their public address system that anyone showing support for the amendments to the blasphemy laws should face the same fate as Salman Taseer no officer or government official moved to silence them. The vast majority of the participants were students from the Madrassas. One of the speakers was a member of the banned organisation, Jamaat-ud-Dawa which is banned by both Pakistan and the United States; however, once again, no move was made to prevent him from publically representing this banned organisation. http://www.humanrights.asia/news/urgent-appeals/AHRC-UAG-001-2011/ A YouTube presentation recently found on the internet shows Mumtaz Quadri, the assassin of the slain governor, Salman Taseer, singing in the custody of the police during his interrogation. The officers are seen standing by and sitting next to him, enjoying the performance. Quadri was reciting Naat, a poem in praise of the Prophet Mohammad, peace be upon him. The Pakistani police are infamous for their inhuman and cruel treatment of the prisoners in their
Pakistan
295
custody but Quadri is being given celebrity status. The video was recorded by one of the officers in the presence of a Superintendent of Police who arranged for it to be distributed in order to make Quadri a hero in the Muslim community. http://www.youtube.com/watch?v=p95jH90vpjw Still the Muslim leaders are preaching killings of those parliamentarians and persons who were demanding the amendments but no case has been initiated by the government to prosecute the Muslim leaders. One member of the ruling party and member of the national assembly, Ms. Sherry Rehman, was also threatened with death for putting the bill in the assembly for the amendment in the blasphemy law. She was provided security but the perpetrators were not nabbed. In similar fashion to the lack of action by the police and the security detail during and following the death of high officials the government has taken no action whatsoever to curtail the hate speeches and religious intolerance by the fundamentalist. government is silent in the wake of call for nuclear jihad by religious extremist The Asian Human Rights Commission (AHRC) has consistently reported in the recent weeks on the issue of the governments refusal to take action on the incitement to murder and civil disobedience by religious extremists. Several high profile cases have been reported on both matters by the AHRC and other international NGOs, however, the government has taken no action to either arrest or halt the messages of hatred and intimidation. Taking advantage of the governments appeasement policy towards religious intolerance and the killing of people, the extremists have openly started preaching the use of nuclear weapons against a neighbouring country in the name of Jihad. Now in a recent and shocking incident in Lahore on February 6, 2011, an extremist by the name of Hafiz Saeed, the leader of the Jamaatud-Dawah (JuD), spoke in a public rally of 20,000 people calling for Jihad in the form of a nuclear war against India. Saeed is wanted in connection with the bombings in Mumbai and the JuD itself is banned in Pakistan. However, once again the government has turned a blind eye and taken no action to either arrest this man or control the situation. This is, indeed a routine attitude of the government. In an effort to fend off responsibility for the bombings Saeed accused India of masterminding the attacks for political gain. By tolerating such threats of the use of nuclear weapons it seems that the government does not fully appreciate the horror of a nuclear attack. The most
296
dangerous interpretation of such announcements would be that the nuclear assets of the country are not in safe hands and Muslim extremists have or can have access to these weapons. By failing to reign in the extremists and stop their messages of hate the government is, in fact, colluding with them. http://www. humanrights.asia/news/ahrc-news/AHRC-STM-031-2011/ The Son of assassinated governor was also abducted by the religious banned organization and government was unable to recover him Shahbaz Taseer, 27-year-old and son of assassinated governor of Punjab, Salam Taseer, was kidnapped in the month of August by a militant banned group, named as Lashkar-e-Jhangvi (LeJ), since then he was not recovered by the government as it was feared that if authorities take action against the abductors the terrorist would create problem for the provincial government of Punjab. It is confirmed that he is being held in the tribal badlands of Waziristan; his captors are religious extremists, and Taseer was sold to Taliban by the LeJ. It was reported that the LeJ is negotiating through the Punjab government for the release of Qadri in exchange for Shahbaz Taseer. The negotiations are apparently being carried out under the supervision of the law minister of Punjab province who is notorious for having relationships with the banned militant groups. Therefore all efforts for the release of Shahbaz have been in the interests of the militant organisations. The state has totally failed to provide protection to the citizens from the religious militant organisations who are surviving on the mercy of Jihadis. A militant who confessed killing of more than 100 persons was released by the Supreme Court It has been stated before in many forums that the government of Pakistan is turning a blind eye to the atrocities perpetrated by the religious militant groups. Malik Ishaq, well known as a killer in many incidents of sectarian violence and bomb blasts has been taken by the state after killing over 100 victims. Malik remained in detention for 14 years but the government could not provided protection to witnesses. Also the prosecution produced very weak cases which ultimately benefitted his defence. Subsequently he was released on bail by the Supreme Court on the grounds of these weak cases. He still faces seven cases and confessed that he had planned the attack on the Sri Lankan Cricket Team when he was in jail in March 2009. In the attack seven security personnel were
Pakistan
297
killed. Immediately after his release on bail he visited many places and roused the people on sectarian issues. It is suspected that he was involved in the killing of the 29 Shia pilgrims from the Hazara tribe in Mastung, Balochistan province as they were going in a bus to visit the shrines of religious leaders in Iran; the LeJ has come out openly and announced that it would continue its movement against the Shia sect. http://www.humanrights.asia/news/ahrc-news/AHRCSTM-126-2011/ The killings of persons from Shia sect of Islam is ignored Shias in the incident of September 20, 27 persons from The Shia sect of Islam were ambushed by the death squad of a banned religious organization, Lashkare-Jhangvi (LeJ) within half a kilometer from a FC check post. According to official reports the gunmen shot dead 26 Pakistani Shia Muslim pilgrims travelling to Iran, the deadliest attack on the minority community in Pakistan for more than a year. In the brutal assault, gunmen ordered the pilgrims to get off their bus, lined them up and assassinated them in a hail of gunfire in Mastung, a district 50 kilometers (30 miles) south of Quetta, the capital of the southwest Baluchistan province. An hour after the first attack, unidentified gunmen killed another three Shias on the outskirts of Quetta whom police said were relatives of victims of the first incident en route to collect their bodies. In the month of October again Shias from Hazara tribe were attacked in Balochistan and nine shias were killed. The whole Kurram agency is under the control of the Haqqani network, a very powerful terrorist organization under the leadership of Mr. Siraj Haqqani, who carries out terrorist activities inside Pakistan and Afghanistan and was involved in the killing of Nato forces. It operates from the Kurram agency which is at the borders of three Afghan cities and provides a short cut route to Kabul, the capital of Afghanistan. The Kurrum agency is also known as Parrots beak because of its geographical position inside the territories of Afghanistan. This whole area is under control of FC and Pakistan army all roads for exits have hundreds of check posts. But still the roads leading to Peshawar, capital of Khaiber Pakhtoon Kha province, particularly Thall road is under the control of Haqqani network and Taliban. In the month of April, 2011, 33 persons (all Shia) were abducted by the militant Taliban group from the Thall road, leading to Peshawar city, and 13 out of them were burnt and maimed and thrown on the road where, in those days, the Pakistan army has deployed a new contingent to start a new operation against the terrorists. In the last 18 months at least 250 people, the majority of
298
them belonging to the Shia community, have been killed and 3000 have been injured at the hands of bloodthirsty criminals. The main Thall-Peshawar Road has been closed for the last several months. This figure rises to more than 800 the Shias killed in terrorist attacks during the past three years after the FC received the powers of the police. After every terrorist attack on Shia religious community the LeJ claims that they were in fact, target. The LeJ is distributing leaflets in Balochistan province particularly, in Quetta, the capital of the province that Shias are infidels and they are liable to be killed according to Islamic teachings. These campaigns against the Shia religious community is very well known to Police, Frontier Constabulary, the Army and its intelligence services but no action has been taken against the LeJ. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-124-2011/ Absence of rule of law provides impunity to military officials In the recent days it is observed that officials of the Pakistan army and Paramilitary have been on a rampage, taking the law into their own hands and have received impunity through pure force. The sad aspect of these incidents is that the print and electronic media are purposely avoiding coverage of the events because of self censorship on the pretext of national security. In one incident that occurred on August 24 police officers from R.A. Bazar police station, Rawalpindi, Punjab province, arrested two suspected persons from a market place. The men were collecting extortion money and teasing the women. The arrested persons told the police that they were from the army but could not prove their identity. The officers took them to police station but one of the arrested persons managed to escape from police custody. In an astonishing act as the police brought the remaining accused to the station 50 army personnel, under the command of a captain, attacked the police station. They forced their way into the station, severely beat all the policemen present, abducted two police officials and kept them in illegal detention. The abducted officers were also severely tortured in military custody and were finally released four hours later. The whole police station was ransacked and bullets were fired inside the building. In another incident, just three days after the above incident, on August 27, officials of the army tortured to death a Station House Officer (SHO) of the Chacrala police station, Mianwali, Punjab province. Other police officials were also severely injured. The SHOs sin was that he stopped a truck of the
Pakistan
299
Pakistan armys Frontier Works Organisation (FWO) for a routine check at the high way. A case was filed but no arrests have been made because of hindrance from the army. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-113-2011/ Children were booked on blasphemy charges There were two very prominent cases of blasphemy against the young students who written some words in their examination copies which were termed as the blasphemous and they arrested and one of them sent to jail. Controller of examination and the teachers have become so much fundamentalist that they even not considered that the examination copies are for the students to express their views freely and those can not be made public. A case of blasphemy has been registered against 17-year-old Syed Samiullah, an intermediate student. The incident was reported to the police by the controller of examinations of the Intermediate Board of Education, Karachi, who attached copies of Samiullahs answers sheets as evidence of his alleged blasphemy. The professor charged that Samiullah wrote derogatory remarks in his answer sheets against the Holy Prophet Muhammad (Peace Be upon Him). He was arrested on January 28, 2011 on the complaint of the chief controller. In a another case a ten-year-old Christian girl, Ms. Faryal Bhatti, misplaced a full stop in her Urdu examination paper on September 22, 2011, which has made hers and her mothers life unbearable. Faryal was a student in Sir Syed Girls High School, Pakistan Ordinance Factory Colony, Havelian. They have been accused of hatching a conspiracy against Islam and its Last Prophet (PBUH). When completing her paper the girl, who has not studied Islam and is therefore unfamiliar with the terminology of the religion, inadvertently placed a dot incorrectly in the word, Naat, meaning a poem in praise of the Last Prophet which changed it into the word, Lanaat which means the opposite: a curse. The news of her alleged transgression spread outside the school into the community and she was labeled a blasphemer. The mosque loud speakers helped to spread the news and rallies were arranged in protest against the mother and daughter. In response to these protests the administrators of the Pakistan Ordinance Factory Colony immediately transferred the mother who was serving as a nurse at the colonys hospital. They were asked to leave the colony immediately. ;http://www.humanrights.asia/news/ahrc-news/AHRC-STM-022-2011/ http://www.humanrights.asia/news/ahrc-news/AHRC-STM-130-2011/
300
A judge was forced to leave the country by the muslim extremists and lawyers A judge of the Anti-Terrorist court who awarded death sentence to the killer of former governor of Punjab province was forced to leave the country after receiving threat calls and attacks on his court and house not only from the religious fundamentalists but also lawyers. The government has also exposed its powerlessness to provide security to its own judicial officer by sending a judge Pervez Ali Shah to leave the country along with his family to Saudi Arabia with his family. The judge, Malook said the government, on the reports of law enforcement agencies, opted to send him abroad. Judge Pervez Ali, as the Judge of Anti-Terrorist Court, handed down the death sentences to Qadri on October 1, 2011 following a trial that took place behind closed doors in the highsecurity Adiyala prison in Rawalpindi, Punjab province. The monster of intolerance, because of the failure of the rule of law has reached such a level that the custodians of the rule of law themselves find it easy to resort to violent tactics for the implementation of their unlawful designs. After the decision from the Anti-Terrorist Court, dozens of furious militant Islamist lawyers ransacked the courtroom of Judge Mr. Pervez Ali Shah, smashing windows to protest against the judgment. Finding no security from the Punjab government the Judge Shah is now not attending his office. The leaders of the attacks were the same lawyers who were the leaders at district level during the lawyers movement. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-160-2011/ The representatives of multi-national companies also use the blasphemy law for their business The misuse of the blasphemy laws is not restricted only with the fundamentalist Muslim groups or leaders but is being misused by multinational pharmaceutical companies as well. They take advantage of the law when they are not happy with doctors that do not prescribe their pharmaceuticals. This relatively new misuse of the blasphemy laws was applied on a practicing doctor who is well known in the community for not over prescribing medicines to his patients but rather advising them to rely on the bodys natural resistance and exercise. The Cantt police of Hyderabad, Sindh province have arrested a practicing doctor, Naushad Valyani, on charges of committing blasphemy at the protest demonstration by the medical representatives of different pharmaceutical
Pakistan
301
multi-national companies. Dr. Valyani belongs to the Agha Khani Muslim community. They are followers of Prince Abdul Karim Agha Khan. The incident was held during the second week of December, when a medical representative of Pfizer Pharmaceuticals, Mohammad Faizan, visited the doctor. As the doctor was busy in his usual practice he put the business card of the medical representative in a box on the side of his table. When Faizan realised that the doctor was not going to entertain him he left the doctors room shouting that he had committed blasphemy by throwing his business card in a dustbin. His reasoning was that the business card contained the name of the Prophet Mohammad (Peace be Upon Him). http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-257-2010/ The persecution of Ahmadis In the hate crimes against the Ahmadiyya community more than 111 Ahmadis have been killed in target killings since 1984 when an ordinance against Ahmadis were issued by a military dictator. In May last year, more than 88 people were killed in Lahore, the provincial capital of Punjab, when gunmen opened fire at two separate places of worship and, one year on, no progress has been made by investigators. The religious minority group of Ahmadis is under constant threat of religious hate crimes and no serious efforts have been initiated by the government to provide protection the community. During the year 2011, the target killings of members of Ahmadi community was continued and a new phase was started by the Muslim extremists on the patronage of Punjab government to use pressure on the educational institutions to rusticate the students from Ahmadia community. In the hate campaign the religious extremists have ordered their membership to dig out the graves of Ahmadia persons who are buried in grave yards. The campaign has started from the central Punjab and many dead bodies were excavated and thrown out of different grave yards. A campaign against Ahmadi students studying in mainstream schools and colleges The AHRC has recently received information that on September 22, a public meeting was held in Dharanwali, a settlement near Hafizabad, Punjab, which was addressed by mischief monger Mullahs whipping up hatred against Ahmadis. Using heart piercing slanderous filthy language against the followers
302
of Ahmadis and its leadership, they announce that they will never allow the burial of any Ahmadiyya Muslim in their cemetery and they will never let any Ahmadi child study in their schools. Quickly after the inflaming provocation, ten Ahmadi students and a teacher were expelled from the local schools of Faisalabad district, Punjab. They were all expelled from Chenab Public school (Principal Muhammad Yasser Arafat), and Muslim Public school, Dharanwali (Principal Yasser Abbas). Moreover, an Ahmadiyya teacher Rafiya tul Bari, daughter of Amjad Zaid Ahmad, teaching in Chenab Public school, Dharanwali, was also expelled for being an Ahmadiyya Muslim. In the far-flung areas of Pakistan, students from the Ahmadi community have to face such practices by local religious groups, influential in the school, which force Ahmadi students to hide their identity or to migrate to urban centers where Ahmadis face fewer persecutions. After the rustication of 15 Ahmadi female students and 8 male students from the Punjab Medical College, Faisalabad, Pakistan, the Mullahs and extremist groups in Pakistan have ferociously accelerated their campaign against the Ahmadi students. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-129-2011 http://www.humanrights.asia/news/ahrc-news/AHRC-STM-139-2011 Advertisements to kill Ahmadis were distributed openly and government turns blind eye In a hate campaign a band religious group is openly issuing pamphlets calling on citizens to kill people from the Ahmadiyya community. This should be done in the open and crowded market places as a Jihad (holy war). Killing, beating and punishing them would be rewarded by God. In the Faisalabad city of Punjab province, the second largest industrial and commercial city of the country a plan has been chalked out to kill the owners and their family members of 36 commercial and industrial establishments belonging to Ahmadiyya community. The plan includes the people working in those establishments which means more than 150 persons are targeted. Doctors and other professionals are not exempt from this threat. For two weeks now pamphlets and advertisements have been distributed calling the citizens to kill people from the Ahmadis community. This should be done in
Pakistan
303
the open and crowded market places as a Jihad (holy war). Killing, beating and punishing them would be rewarded by God. The pamphlets were published by the All Pakistan Student Khatm-e-Nabowat Federation and were issued by the information department of Aalmi Majlis-e-Khatm-eNabowat Shafaat-eMuhammadi with their phone numbers and email address. These pamphlets are being distributed on a mass scale, openly in the city from where more than four ministers are in the cabinets of Punjab and federal governments. These ministers have failed to take action on this plan of killing people from a religious minority group because they fear these extremists as they themselves would also be declared supporters of Ahmadis or infidels. In Faisalabad and its neighboring cities a good number of Ahmadis and Christians have been residing for at least a century but for some decades now these minority community people have been killed and abducted by the extreme Muslim organizations to purify the Muslim areas. In the far-flung areas of Pakistan, students from the Ahmadi community have to face such practices by local religious groups, influential in the school, which force Ahmadi students to hide their identity or to migrate to urban centers where Ahmadis face fewer persecutions. The Islami Jamiat Talaba (IJT), under the guidance of extremist religious leaders, has been allegedly assigned the task to clean the educational institutions, including universities and professional colleges in particular, of Ahmadi students. The staff of the educational institutions is being forced to provide details of the students. After the rustication of 15 Ahmadi female students and 8 male students from the Punjab Medical College, Faisalabad, Pakistan, the Mullahs and extremist groups in Pakistan have ferociously accelerated their campaign against the Ahmadi students. A senior surgeon from Ahmadiyya community was missing with his child The doctors from Ahmadiyya community remained the target of Muslim extremists. A senior surgeon belonging to the Ahmadiyya sect of Islam has been missing since October 30, 2011. He was traveling in a car with his son of eleven years. The car was found abandoned far away from his home. Dr. Shah Muhammad Javed, a resident of Sadiqabad Mohallah Kotli Azad Kashmir, the Pakistani part of Kashmir, is a Senior Surgeon in Kotli District Hospital and also owns and operates a private clinic, under the name of
304
Dr. Shah Muhammad Javed Surgical Clinic, which is located opposite to the General Post office. He has been missing since 10:30 pm, October 30, 2011. At the time he was in the company of his eleven year old son, Fahad Javed. They were returning to their home from their in laws house which is about a five minute walk from their home. At 7:00 am on October 31, 2011 The Motorway Police called his clinic (as they found his visiting card from his car) and informed that his car Licence no: IDN 611 was parked near Dina, Jhelum,Punjab province. His family filed a report of an incident at the local Police Station in Kotli, Azad Kashmir. However, there is no clue about their whereabouts. http://www.humanrights.asia/news/ahrc-news/AHRCSTM-167-2011/ Blasphemy Lawsthe best tool for ruining the rule of law The blasphemy law is only one of many institutionalized forms of religious discrimination in Pakistan. The Constitution declares Islam Pakistans official religion and states that sovereignty belongs to Allah, effectively willing powers of legislation and legal interpretation to the Muslim clergy. In Pakistan, blasphemy is punishable by death, and desecration of the Holy Quran carries a life sentence. According to data collected by the AHRC from 1986 to 2011 at least 1000 persons were charged under these anti-blasphemy clauses while more than 60 persons were killed extra-judicially by the angry mob or by individuals. No one has been executed under the blasphemy law but it is believed as many as 10 people have been killed while on trial. Read more: http://www.smh.com.au/world/critic-of-blasphemy-law-shot-deadin-pakistan-20110302-1bexg.html#ixzz1eV9GOnFi Throughout Pakistan, members of religious minorities -- Hindus, Christians, Sikhs, Jews, Ahmedis, and Buddhists, among others -- encounter discrimination, oppression, and abuse at the hands of both state and nonstate actors. These men, women, and children are systematically politically, socially, and economically disenfranchised. Members of these minorities are also targeted as victims of random violence, sexual assault, abduction, forced conversion and marriage, and other forms of assault on the basis of small infractions or perceived slights. Provisions of the Constitution, including Articles 227, 228, and 229, require that all laws be interpreted in the light of the Quran and that laws shall be
Pakistan
305
brought in conformity with the Injunctions of Islam as laid down in the Quran and Sunnah. Their legal rights and protections are tenuous at best. Muslims are able to coerce members of religious minorities and even entire communities with threats of groundless legal accusations -- for example, forcing individuals not to report crimes and making communities abandon land. http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-064-2010/ 4. PAKISTAN -- enforced Disappearances The government has turned its back on the concept of justice and fair trial. No sensible inquiries into disappearances are conducted and no one is ever held accountable. Despite the testimonies of the few fortunate people who have survived their abductions and torture, the courts take no action, even when the perpetrators are positively identified. 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. The major political parties, who are in sizeable number in parliament, are also silent on the issue of enforced disappearances and torture in military detention cells. The distress caused by the disappearances is that, despite the departure of the government of President Musharraf, the menace continues under the present civilian government. On average, every month at least five or six persons are abducted and disappeared by plain clothed persons in Balochistan alone. This is frequently done in the presence of police officers who then refuse to lodge FIRs saying that the intelligence agencies are involved. Whereas, in Sindh province, the nationalist groups are the targets of arrest and disappearances including the persons form the religious groups. In the provinces of Punjab and Khyber Pakhtunkha (KP) the disappearances are conducted by the military forces and Taliban and sometimes Taliban first kidnap them and keep for many days then Pakistan Army or Frontier Corps (FC) arrest and disappear them on the suspicion of having links with Taliban. According to Defence of Human Rights, an organization working enforced disappearances, there are abundant and over whelming evidences, affidavits and eye witnesses which have already confirmed the presence of loved ones in the custody of local agencies, many of whom have been handed over to foreign
306
agencies. The irony of the situation is that former president General Pervez Musharraf and former minister of interior Aftab Ahmed Khan Sherpao have authenticated, with a criminal pride, in their books and media statements that they have been disappearing Pakistani citizens in exchange for American dollars. Even more distressing is the fact that the crime of enforced disappearance has accelerated under the present democratic government. The perpetrators of this crime not only kidnap people but harass their families so much that most of them do not dare to launch a complaint. More than 1200 families have contacted and registered their cases with Defence of Human Rights. Due to different hurdles and lack of enough funds Defence of Human Rights is representing only 322 cases in Supreme Court. Punjab stands at number one with 174 cases whereas KPK, Balochistan, Sindh, Azad Jammu Kashmir, Islamabad Capital Territory follow with 96, 19, 25, 7, 11 cases respectively. The situation of abductions, forced disappearances and extrajudicial killings has been prevalent not only in Balochistan but all through Pakistan and the government has done nothing to rein in the intelligence agencies believed to be responsible, despite overwhelming evidence that this is so. A new trend has been reported in forced disappearances and that is the extrajudicial killings of the victims. Through this method it is easy for the abductors to wash away all evidence of the disappearance--no question of FIRs, legal process or placing blame. During the period of former President Musharraf, the phenomenon of disappearances started through the state agents, though this process has continued in the civilian government at federal and provincial levels killings through extrajudicial methods is new phase in the disappearances particularly, in the province of Balochistan. There are many cases wherein the people who were agitating against the enforced disappearances were also abducted by plain clothed persons and since then their whereabouts were not known. In some cases the bullet riddled bodies of such persons were found on the roadside. Such types of cases were reported from Sindh and Balochistan province. This type of introduction of a new phenomenon in the cases of disappearances has stopped the people protesting against the disappearances. In Balochistan province the police and members of other law enforcement have warned the family members of the disappeared persons to close down their protest camps otherwise more members of their families would face the same situation.
Pakistan
307
The nationalists groups in Balochistan claim the that more than 13000 persons have been disappeared since year 2002 when previous military dictator, General Musharraf, had started the military operation against the nationalists who were demanding right to self rule on their own province. In the Sindh province the opposition groups claim that around 100 persons are missing who were arrested by the law enforcement agencies. Around 400 persons are missing from Khyber Pakhtunkha province and Punjab. These figures are provided by the different groups but officially there is no confirmed data available. The National Crisis Management group has compiled a list 1600 persons who are missing since many years. According to Amnesty International, the practice of enforced disappearances has increased dramatically since Pakistan joined the US-led war on terror in 2001. Disappearances occur across the country but especially in Balochistan province in the south-west, which faces violence from ethnic and religious armed groups and state security forces. Activists, journalists, and students have been especially targeted and an increasing number have been found dead with their bodies showing signs of torture. The Supreme Court and the judicial commission formed to investigate forced disappearances have disappointed the family members and people at large for the recovery of disappeared persons from the captivity of armed forces and intelligence agencies. The courts were much more interested with appeasing the military than providing justice to the families of the disappeared. In the hearings the judges and conveners made loud pronouncements for the sake of the media but do not have the courage to call the military officers and others indentified by the victims and their families to appear. What this lack of action shows is that the Judicial Commission does not have power to take action against the intelligence agencies. The issue of disappearance is awkward for the united States The Washington Post reports that the disappearances are growing, according to international and Pakistani human rights organizations8, which estimate that thousands of people have been kidnapped and detained incommunicado in secret prisons in the past decade. Some have been killed, they say. Exact numbers are unknown, in part because many people are afraid to report the abductions, according to Human Rights Watch.
8 http://www.amnesty.org/en/appeals-for-action/end-enforced-disappearances-in-Pakistan
308
Most of the disappeared are believed to be suspected of ties to Islamist militants or separatist movements viewed as threats by Pakistans potent security establishment, in particular the militarys Inter-Services Intelligence spy agency, rights advocates and Pakistani officials said. The open secret of disappearances illustrates the grip the military establishment retains over Pakistani society, including its dysfunctional justice system and feeble civilian government, which has repeatedly vowed to stop the problem. A government commission has traced several dozen missing people and publicly said Pakistani intelligence agencies are involved, but it has held no one accountable. President Asif Ali Zardari recently approved regulations that lawyers say gave the military expanded latitude9 to detain and try suspected militants. Privately, however, Pakistani officials say security forces hold many suspects because they believe the nations substandard police and courts would otherwise release them. In its 2010 human rights report, the U.S. State Department referred to disappearances, extrajudicial killings and torture as Pakistans major human rights problems but said a culture of impunity10 surrounded crimes involving security forces. We urge appropriate Pakistani civilian and military authorities to investigate all credible allegations of human rights abuses and hold accountable those proven to be responsible for such violations, said Mark Stroh, the U.S. embassy spokesman. We have discussed allegations of human rights abuses with Pakistani officials frequently and continue to monitor the situation closely. But the issue is awkward for the United States, which over the past decade has provided billions of dollars in aid to support Pakistans counterterrorism efforts and has frequently urged Pakistani officials to be aggressive in rounding up alQaeda and Taliban fighters. Former Pakistani president Pervez Musharraf wrote in his memoirs of earning millions of reward dollars by handing terrorism suspects over to U.S. custody.
http://tribune.com.pk/story/219750/war-against-the-taliban-govt-tramples-on-civil-rightsin-tribal-areas 10 http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154485.htm
Pakistan
309
The family members of disappeared persons have announced a boycott of the court proceedings because of their allegiance with the armed forces: The families of enforced disappearances from Balochistan have been boycotting the Supreme Court and Judicial commissions hearing of cases of disappearances since last April. They told the Court that the only ones who can feel our pain are those whose brother, father, or son or daughter is missing. They do not know from one day to the next if their loved ones are dead or alive. At night time, they often sit with their eyes fixed on the front door, hoping against hope that the missing persons will walk through it. Until that happens they cannot sleep or eat without thinking about that person. They live on hope that is fast dwindling. In view of the apparent lack of action on behalf of the judicial and government authorities the family members have lost all confidence in the institutions of justice. They have only their hope that one day soon, the missing persons will be returned to them alive. The government of Pakistan must take action to halt the forced disappearances by the military and intelligences agencies or face the possibility that the people of their country will lose patience and take the matter into their own hands. http://www.humanrights.asia/news/ ahrc-news/AHRC-STM-055-2011/ During the hearing the three member bench of the Supreme Court, the family members of the disappeared persons said that whenever anybody is found on the road side in anywhere in Balochistan, the largest province of the country, they rush to see whether the body is of their loved ones who has been missing after his arrest or abduction. They said they want to know whether their missing persons are alive or dead. Amnesty International says in a report that the judicial Commission of Enquiry on Enforced Disappearances has failed to resolve the crisis or to hold the security forces and intelligence agencies to account in cases implicating them. The case of the disappearance of a master tailor exposes how the army is involved and the weaknesses of the judicial system The details of the saga of disappearance of a master tailor who was arrested on two occasions by army personnel and how since October 2001 his whereabouts are unknown. The high officials of the Pakistan army including Corps Commander of Balochistan province, a major general, the governor of the province and above all of them, the chief of the Inter Services Intelligence agency (ISI) had confessed on the holy Quran in 2003 that the victim was in the custody of the ISI and that he would be released after the investigation.
310
The Judicial Commission to probe the cases of missing persons has also submitted a report to the Supreme Court of Pakistan that Mr. Bangulzai, the master tailor, was in the custody of secret services of Pakistan. The dilemma is that since 2001 to date, the higher courts, the governments of the federation and Balochistan have failed to recover him because of the involvement of the army and its intelligence agencies in his disappearance. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-014-2011/ To-date 215 disappeared persons have been extra judicially killed in Balochistan during the past 15 months The government does not consider extrajudicial killings anything out of the ordinary and one of the reasons for this is that they have lost all control over the military, Para-Military forces and state intelligence agencies that control the province. These military forces brook no interference into their affairs and use national security and the protection of ideological boundaries to justify the killings and disappearances of innocent persons, particularly students. Not a single day goes by without an extrajudicial killing. In the recent years a new phenomenon has been introduced in the cases of disappearances where the victims are extrajudicially killed in order to destroy any evidence of wrong doing. Since the July 2010 to date 215 persons have been killed extra judicially. Amongst the 215 corpses 34 of them were not identified as their bodies were too badly decomposed. Many persons were identified by their clothes, shoes and personal effects. Please find here the list of 169 persons, who were extra judicially killed after their disappearance: http://www.humanrights.asia/news/ahrc-news/pdf/AHRCSTM-144-2011.pdf http://www.humanrights.asia/news/ahrc-news/AHRC-STM-144-2011/ The bullet riddled bodies of nine more missing persons including one journalist were found; http://www.humanrights.asia/news/ahrc-news/AHRCSTM-174-2011/ Pakistans secret, dirty killings in the province of Balochistan are escalating Since the beginning of this year, at least 36 Baloch journalists, writers, human rights defenders, students, nationalists and political activists have been killed
Pakistan
311
extrajudicially. Pakistans security services are accused of orchestrating the murders, in a bid to crush Baloch nationalism. This intensified wave of repression is corroborated by Amnesty International. It has documented the disappearance or murder of 90 persons11 in kill and dump attacks between last November and February 2011. The Asian Legal Resource Centre estimates that more than 120 people have been abducted and killed12 by Pakistani security forces between October 2010 and May this year. The best known victim was Dr Saba Dashtiyari13. A leading Baloch democrat and scholar who taught at the University of Balochistan, he was assassinated last month in a Quetta street. Another prominent victim, Naeem Sabir Baloch, a district coordinator of the Human Rights Commission of Pakistan, was gunned down in Khuzdar market by masked assailants on a motor bike. At the time, he was compiling a list of abducted and missing persons for the Supreme Court of Pakistan and the High Court of Balochistan. Human rights defender and journalist, Siddique Eido and his colleague, Yousaf Nazar Baloch, also met a grisly fate. They were seized by the paramilitary Frontier Corps and dragged into a van. Police who tried to protect them were severely beaten. Eido and Baloch were taken to an unknown location. Their bloodied, battered bodies were discovered on 28 April. Despite Pakistans transition from the military dictatorship of General Pervez Musharraf to a democratically-elected civilian government, the armed forces and state intelligence agencies are operating in Balochistan in the same brutal fashion as before: abducting peaceful, lawful campaigners, imprisoning them in secret detention centres in sub-human conditions and torturing them in a bid to force them to name others. They are then shot, usually in the back of the head. Their bullet-riddled, mutilated bodies are dumped on roadsides in the middle of the night.
11 http://www.amnesty.org/en/for-media/press-releases/pakistan-balochistan-atrocities-continue-rise-2011-02-23 12 http://www.humanrights.asia/news/alrc-news/human-rights-council/hrc17/ALRCCWS-17-04-2011 13 http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-026-2011/
312
Much of Balochistan is under military lock-down and quarantine. Journalists and human rights defenders from outside are usually denied access to the area by the Pakistani authorities. Islamabad doesnt want the world to see evidence of its crimes against humanity, including the indiscriminate bombing and strafing of villages using US-supplied F-16 fighter aircraft and Cobra attack helicopters. A senior journalist was abducted and killed after exposing the Al-Qaida network in the navy Mr. Saleem Shahzad, Pakistan Bureau Chief of the Asia Times Online, an online news agency based in Hong Kong, was going to a private television channel at a talk show in the programme, on the issue of the terrorist attack on PNS Mehran Naval base Karachi. On Sunday, 29 May 2011, he left home at 5.30 in the evening to join the TV talk show but did not reach the station. His whereabouts remained unknown for two days and on May 31, 2011 his dead body was found which was bearing torture marks. His body was found 200 kilometers away from his house. He was abducted from Islamabad, the capital of Pakistan and remains under the tight surveillance of state intelligence agencies. This is one more of the mysterious abductions and extrajudicial killings that have been taking place in Pakistan on a regular basis. He was continuously receiving death threats from the intelligence agencies for breaking the news that there were Jihadis from banned militant organizations in the Pakistan Navy and they were well protect over there. The US has also confirmed the involvement of Pakistani notorious intelligence agency, the ISI, in his abduction and extra judicial killing. AHRC-UAC-112-2011-- Statement Jun 02, 2011 09:18 AM Cases of abduction and killing of children by the law enforcement agencies: Cases of abduction and killing of children by the law enforcement agencies were also reported in the media. On October 18 a young man, Master Abdul Majeed, aged 14, son of Haji Mohammad Ramzan Zehri, a well known trader, was abducted, allegedly by the Frontier Corps, as claimed by his family, and on 24 October his body was found in Koshak river at Khuzdar district. There were bullet wounds on his head and chest. He was an activist of the Baloch Student Organisation Azad and was a student in class eight.
Pakistan
313
Another student, Master Mohammad Khan Zohaib, aged 14, also an activist of Baloch Student Organisation Azad, was abducted in July by plain cloth persons riding in a black coloured Sarf pickup, which is generally used for abduction by the state intelligence agencies. His bullet riddled body was found In Khuzdar, Balochistan province, on 20 October. His family members claim that he was arrested by the personnel from Frontier Corp (FC) for having links with militants who are fighting for the greater autonomy of the province. Sindh university authorities use law enforcement agencies for disappearances of students When seeing that enforced disappearances have become the rule of the day, the other sections of society have also started the method by using law enforcement agencies. Even, the universities authorities have used this method to punish the students who want seek the students facilities provided in the law. In such a case the authorities of Sindh University, Jamshoro, Sindh province are allegedly involved in disappearance of the students. It is alleged that they used police and spies from the state intelligence agencies in an effort to hide malpractices and corruption in the university. The disappeared students had filed a petition in the Sindh provincial High Court for the denial of their basic rights to access of better education facilities but the authorities connived with the law enforcement authorities to cause the students to be disappeared punish so that the state would be blamed as responsible not the authorities. The prominent student activists were arrested by the police and plain clothed persons from a crowded market place and have been missing for four months. Their whereabouts are currently unknown. Since last one year 10 persons from different nationalist groups are missing after their arrest. http://www. humanrights.asia/news/urgent-appeals/AHRC-UAC-203-2011 A man is missing for the second time along with his nephew after being abducted by the law enforcement agencies Mr. Illahi Bux Bugti (40) son of Bayar Khan Bugti, resident of Haji Murad Gujjar Goth, Hub Chowki, Balochistan province, was abducted in presence of many witnesses on June 26, by persons from the Frontier Corps (FC), police and plain clothed men, suspected of being from state intelligence agencies, and was taken along with his nephew in an FC armoured car. He was coming from Karachi, 30 kilometers from Hub Chowki, on a motorbike with his nephew, Shah Murad Bugti son of Jhanda Khan Bugti, who is employed as guard on a
314
private plot. As they reached on the bridge connecting Karachi city, capital of Sindh provice, at the check post of the FC, there were more than 20 officers of the FC, police and persons in plain clothes. There was also an armoured car and other army jeeps. They were stopped and blind folded before being thrown in an armoured car and taken away to an unknown destination. Illahi Bux, was also abducted in 2007 by the persons from the army in their uniforms and police and was missing for nine months. After nine months he was thrown in an injured condition on the Netti Jetty Bridge at Karachi. He told his family members that he was kept in different torture cells, blind folded and army officers were investigating him about the nationalist movement in Balochistan and about some militant groups including Baloch Liberation Army (BLA). He was tortured in army detention centers by army officials. After the new government came into power he was thrown on the road side. http://www. humanrights.asia/news/urgent-appeals/AHRC-UAC-160-2011 four activists protesting the disappearance of their leader were also disappeared after their abduction by the law enforcement agencies Four activists of a nationalist political group were abducted from a crowded part of Karachi city by the police and plain clothed persons in police and military jeeps when they were ending their six day hunger strike in protest against the second disappearance of their leader who has been missing since 25 February 2011 after his arrest by persons from Army, Rangers and police. The parents of the disappeared person, in an application to different authorities, accuse Inter Services Intelligence (ISI) and military intelligence (MI) for the kidnap and disappearance. During the past two years around eight persons from the Sindh province have been disappeared after their abduction by the law enforcement authorities. The state intelligence agencies are following the same methods of arrest and disappearance as to what they are doing in Balochistan province for many years for the control of the natural and mineral resources of the province. On 11 April 2011, around a dozen activists from Jeay Sindh Mutehda Mahaz (JSMM), a Sindhi speaking nationalist group struggling for greater autonomy of the people of Sindh province on their resources, were going back to their cities after completing their six day hunger strike in front of Karachi Press Club for the recovery of their leader, Mr. Muzaffar Bhutto, who has been missing since 25 February.
Pakistan
315
Mr. Bhutto was again disappeared after his arrest by the law enforcement agencies on 25 February 2011. He was travelling in his car on 25 February with his wife and younger brother, when they were stopped by around twenty men in plain clothes who came out of unmarked cars and were escorted by a number of police waiting at the area of Saeedabad Tool plaza in Hyderabad city of Sindh province. According to eyewitness accounts, after a brief scuffle during which police fired three rounds into the air, Muzaffar Bhutto was forcibly detained at gun point. http://www.humanrights.asia/news/urgent-appeals/ AHRC-UAC-078-2011 Wife disputes husband was killed by Al Qaida Amina Janjua holds a photo of herself with her husband, Masood Janjua, who disappeared in Peshawar in 2005, and remains missing. She has since formed a network of more than 1,000 families whose relatives have disappeared. The government submitted before the Supreme Court of Pakistan that Masood Janjua, husband of Ameenah Masood Janjua of Defence of Human Rights, and Faisal Faraz, both of whom have been missing, were killed by Al Qaida. Though the government has been keeping mum over the whereabouts of Janjua so far, the convenient blaming of Al Qaida did not change much in the court as well as in eyes the public. His wife has challenged the statement and asked the court to review many proofs and evidences she has been submitting regarding his illegal custody by the countrys intelligence agency. Speaking to Gulf News she said the statement of Dr Imran Munir under section 161 CrPC on oath clearly proves Janjuas custody by the official spy agencies. The joint investigation team he appeared before was constituted by the ministry of interior and the Commission of Inquiry for Enforced Disappearance. Dr Imran had submitted that he was detained with Janjua in Westridge garrison near Zakariya Masjid Road of Rawalpindi cantonment.
316
Over 3,000 missing In his affidavit, Ameenah Janjua said, Dr Imran clearly mentioned that he met three people in detention, including Faraz who was picked up along with Janjua from Rawalpindi in December 2005. She cited UK-based International Lawyers of Cage Prisoners and Reprieve which said the CIA has been party to the heinous crimes of enforced disappearances. Ameenah has set up the Defence of Human Rights to get justice for her husband and over 3,000 known missing persons in the country. Until the fateful evening in 2005, she lived the life of a traditional housewife for 17 years. Her prime responsibility was to serve her ageing parents-in-law and raise her three children Mohammad, now 21, Ali, 19, and Aisha, 15. She has vowed to fight till the end of her life. I have only opted for the legal course to locate my husband while there are dozens of other options I have yet to explore. my son was born seven months after my husband went missing My son was born seven months after my husband went missinghe has never met his father, he just looks at his pictures.- Zahida Sharif speaking to Amnesty International about her husband, 48-year old Dr.Abid Sharif, June 2010. Dr Abid Sharif and his assistant Mansoor Mehdi have not been seen since 16 September 2005, when they were en route to a medical clinic for the poor in the northern Pakistani city of Peshawar. Relatives blame Pakistans intelligence agencies for their disappearance because Dr Sharif was a vocal critic of Pakistans military ruler at the time, General Pervez Musharraf.The two are among the thousands who have been forcefully disappeared in Pakistan. 25 journalists, writers, human rights defenders, students and activists were killed during the first four months of this year During the first four months of the year 2011, as many 25 journalists, writers, human rights defenders, students, and nationalists and political activists were killed extra judicially.
Pakistan
317
In the latest extra judicial killing, one prominent human rights defender and journalist, Mr. Siddique Eido and his friend, Mr. Yousaf Nazar Baloch, who were arrested by the FC and police on December 21, 2010, his and his friends mutilated bodies were found on April 28 at Makran coastal highway near Ormara, Balochistan province. According to the list following are the activists who were extra judicially killed during the months from January 2011 to 28 April; Mr. Hameed Shaheen, student, his bullet riddled body was found on March 22, 2011from Saddar Karez area of Quette. On 20 March 2011, he was abducted by the security personnel in both uniform and plain clothes stopped the bus near Sona Khan Police Station Quetta when he was on the way to Karachi for his medical check-up by bus. Since then his whereabouts were not known. Fareed Baloch, son of Haleem Ahmed Balcoh,a student, was abducted on February 2011 allegedly by personnel of state agencies. He was student of Balochistan University of Engineering and Technology Khuzdar and Zonal president of the Baloch Students Organization (BSO Azad). On 27 March his bullet riddled body was found at Ferozabad nullah of Khuzdar District some 360 km away from Quetta of Balochistan province. There were also marks of torture on his body. Mr. Fareed Ahmed Baloch, was abducted from outside the check post of Frontier Corps (FC) at Sariab road, Quetta, capital of the province, on February 9 after 6 pm when he was travelling with his cousin in a three wheeler. He was stopped at the check point by the FC persons along with some persons who were in plain clothes and taken away in a jeep bearing no registration number. His cousin, Mr. Changez Gichki was beaten at the post when he tried to intervene and his cell phone was also snatched along with his wallet. Mr. Saleh Muhammad, son of Nuroz Khan, the activist of Baloch Nationalist Movement (BNM) was abducted from a passenger van by plain cloth persons in Bariat area of Awaran district, Balochistan, on 27 March his bullet riddled body was found in a mountainous area of Awaran. Arif Noor, son of Noor Muhammad Baloch, a public officer at Gwadar Development Authority (GDA), was abducted on 31 October 2010 in the presence of his mother, sister and other family members by the Karachi police and intelligence agencies from his residence in Karachi of Sindh province, he was an employed as a 16 grade officer in. On 23 March his bullet riddled body was from Windar area near Hub industrial town of Balochistana province.
318
The body of Muhammad Nawaz Marri, a nationalist, was found on 5 January, 2011, just inches away from Arif Noor Blochs body. His body has marks of extreme torture and there were bullet wounds to his head. He was abducted from Lasbella , Balochistan, while he was returning to his home from work. Mr. Yasir, son of Haji Nasir, a student, resident of Gawader, was an activist of Baloch Student Organization (BSO Azad) abducted from Gawader port city of the province on 29 October 2010. Deen Muhammad Marri, 55, son of Sher Muhammad Marri, was a baloch activist abducted from Hub Sakran No, 6 on 28 February 2011, along with his two friends Shareef Marri and Haji Azal Khan Marri. Later Haji Azal Khan was released and Muhammad Shareef Marri is still missing. Deen Muhammads body was found on 8 March 2011 from Zero point Liari he received two bullets on his head and torture Faiz Muhammad Marri, son of Jalal Marri an activist of Baloch Republic Party, was abducted from Karachi on 6 November 2010. His bullet riddled body was found on 2 February 2011, from Dasht Mastung District, Balochistan province. One bullet shot was found on his forehead. Nuroze Khan, son of Allah Baksh was found March 22 from Jiwan area of Kalat District, Balochistan. His body has the bullet marks. The bullet riddled body of Mr. Mahboob Ali Wadela was found on February 23, 2011, from Hadh Cross, Ormara town of Gwader district in an abandoned area. The body bored bullet and marks of torture. He was a senior member of the Baloch National Movement (BNM) which is part of the Baloch National Front (BNF), a nationalist movement struggling for greater autonomy of the province. Arif Rehmans bullet marked body was found along with Mehboob Wadhela on February 23. He was abducted on September 3, 2010 from Ranchore Line Karachi while he was returning home after some medical checkups of his relative from a local Karachi hospital. The bullet riddled body of Jameel Yaqoob was found from Turbat district on February 11. He was abducted on August 28, 2010 by people in uniform and plain clothes from a motor service station at 4 am. The family members alleged that security persons carried out the abduction after they identified one of the men as being from the state intelligence agency. Yaqoob was activist of the Balochistan Nationalist Party (BNP).
Pakistan
319
Comrade Qayyume, a student, had been missing since December 11, 2010 after he was abducted from his uncles house at Gwader, port city by the security forces as claimed by his family members. His bullet riddled body was found from Heronik district Turbat on February 11, 2011. Comrade was member of the organising committee of BSO-Azad. Saeed Ahmed Mengal of the Balochistan National Party (BNP) had been missing since September after his arrest from his house at Hub district. His bullet riddled body was found in Koshak, district Khuzdar, on February 14, 2011 in the bed of a dried river. Mutilated bodies of Mr. Qambar Chakar and Mr. Ilyas Nazar were found near Turbat on January 5, 2011. Both the bodies clearly showed signs of severe torture with several bullets shot in the head. Chakar, 24, a student of Balochistan University of Information Technology, Engineering and Management Sciences (BUITEMS) was abducted on November 26, 2010 for the second time. Mr. Ilyas Nazar, 26, a journalist, was whisked away by the Pakistani paramilitary forces on December 22, 2010. Arzi Khan, son of Mehar Khan Marri, a student, was abducted by men in uniform and plain clothe in December 2010. His bullet riddle body was found on February 10, 2011 from Uthal districts far flung area of Kehnwari on the main national high way. An FIR regarding his abduction was lodged at the Hub police station despite the fact that his body was found far away from this area. Three more bullet riddle bodies were found on April 25, 2011 from the Turbat and Khuzdar districts of the province. They were abducted on the different dates of April 2011. All of them were from Baloch Republican Party. Their names are; according to the report published in Dauly Jang, the largest circulated newspaper, Mohammad Aube Husni, Ghulam Murtaza Zehri and Hafeez Bajoi. Their ages were ranging from 25 to 30 years. The bullet riddled body of Zareef Faraz,a poet and editor of quarterly literary magazine, the Shabjoo, was found on April 25, 2011 from Turbat. According to the media reports, Zareef was abducted one week before his killing and he was abducted when he was going in a passenger bus by uniform and plain clothe persons. Sami Ahmeds body was also found with the body of Zareef, he was from Tump sub district of province. The bodies of Siddique Eido and Yousuf were found on April 28.
320
According to the journalist body, since November 2010 to till five journalists were killed extra judicially and all were recovered from the Makran division of Balochistan. Baloch Voice of Missing persons, an organization compiling the record of missing person, claims that around 149 persons were killed through extra judicial killings by the state agencies. Please also see the statement of AHRC14 dated November 24, 2010, about the rapid increase of extra judicial Killings in Balochistan. Enforced disappearances, illegal detention, torture, extra judicial and incustody killings have become rampant in Balochistan with a media blackout on the gruesome incidents. Since last year a new trend of enforced disappearances has been observed, with Baloch activists being abducted by law enforcement officials and kept incommunicado for several days. After a while, it is learnt that they had been extra judicially killed. This method makes it easy for the abductors to wash away all evidence of the disappearance: no question of FIRs, legal process or blame. Widespread disappearances at the hands of the state agents started at the time of former President Musharraf. Now under a civilian government, this phenomenon continued and the disappearances are followed by extrajudicial killings, in particular in the province of Balochistan. Two bullet riddled bodies of disappeared persons were found in the Murgab area, some 20 km away from Turbat town of Kech district; according to the daily times a leading news paper of Pakistan and local news papers of Balohcistan province. On 23 January 2011 Mr. Abid Saleem, son of Haji Muhammad Saleem along with his friends Nasir Dagarzai, Mehrab Baloch son of Muhammad Umar and Abid Rasool were allegedly abducted from chetkhan area of Panjgur district. The very next day Abid Rasools bullet riddled body and Nasir Dagarzai was found in a seriously injured condition in the Gowargo area of Balochistan province. A case was registered against the Frontier Corps (FC) and the state security agency at Panjgur police station. Mr. Hameed Baloch, a resident of Kudabadan area of Panjgour district went to Quetta for his medical checkup and was on the way to his home on 13
14 http://www.humanrights.asia/news/ahrc-news/AHRC-STM-233-2010
Pakistan
321
December 2010 in a passenger bus when intelligence personnel intercepted the bus at the Sabzaap area of Panjgur district and Mr. Hameed was abducted. According to the newspaper reports, on 24 May 2011 his bullet riddled body was found in the Tehsil Gawargo area of Panjgour district. It is estimated that he had been partially buried three weeks earlier. His body showed signs of severe tortured. On 23 May two bullet riddled bodies were found from Murgab Turbat district. They were identified as Khalid Baloch and Ahmad Ali. Khalid was abducted one day before from his home Nasir Abad Balochistan province while Ahmad Ali was missing after his abduction one week ago respectively from Mand Balochistan province. Their bodies bore marks of torture and bullet wounds. Another bullet riddled body was found from Khuzdar district Province Balochistan. On 25 May 2011 Jamal Khans bullet riddled body was found in the Khuzdar district. He was a resident of Nokajo Mashkey district Awaran. On 26 July, the bullet riddled bodies of two cousins, student Ashfaq Ahmed Mullahzai and Muhmmad Farooq Mengal, were recovered in Quetta, in the Kili Qambrani area. Their relatives claim they had been abducted in May 2010. On 6 September, the body of Baloch lawyer Zaman Marri was found in Mastung. He had received a single bullet to his forehead and his body showed torture marks. The lawyer was reportedly abducted by intelligence agents near his place of work in Quetta on 18 August. On 23 September, the bullet riddled body of missing Baloch lawyer Ali Sher Kurd was found in Khuzdar district. Kurd was reportedly abducted by Pakistani intelligent agents three days before. His neck was broken and he showed marks of torture. On 15 August 2010 Mr. Abid Shah Baloch along with his two friends Abdul Sattar Blaoch and Safeer Baloch were allegedly abducted by the law enforcement agencies from Mand, district Panjgoor. Mr. Abid Shah Baloch was the former vice chairman of the Baloch Students Organization Azad (BSO, Azad). He was the resident of Panjgoor. Safeer Baloch was the former district organizer of Baloch National Movement (BNM). He was also a resident of Panjgoor district. Abdul Sattar was a government teacher and the chairman of government teachers association (GTA), and activist of Balochistan National Party (Awami). He was a resident of Balochistan province. On 11, May 2011 their bodies were found together from the mountainous area of Farwan district Panjgoor.
322
On 21 October at 4am Tariq Karim, son of Muhammad Kareem along with his two friends were abducted by the intelligence agencies from Al-Rauf Royal City, Block 19, Flat no. C-614, Gulistan-e-Johar Karachi. He was an activist of the BSO-Azad (BSO Azad). His brother Asim Kareem was previously abducted by security forces and extra judicially killed. His bullet riddled body was found on 31st October 2010, he was also a member of BSO-Azaad. On 17 April 2011 Muhammad Jan son of Muhammad Bilal was abducted allegedly by personnel of state agencies from Chamrok district Kuzdar from the service station of vehicles. He was the resident of Hozai Bisema Balochistan province. Police did not register the first information report (FIR) regarding his disappearance. On 11 May his bullet riddled body was found from Raja Khuzdari road district Khuzdar. There were marks of torture, drill marks and bullet wounds on his body. 5. Torture in Pakistan The civil society has been striving since 2010 to make torture a crime in the laws of Pakistan by holding seminars, discussions, workshops and rallies. The ministers and different functionaries of the government also participated including the leaders of the political parties and they all had committed to introduce and support the bill criminalizing the torture when it is introduced in the parliament. The government itself many times committed make a specific law against torture but nothing has been done; not even the bill for criminalizing torture was introduced. Instead the government has recorded its reservations on the ratification of the UN Convention against Torture (CAT). The government even declined to implement the article 4 of the CAT as it is not in conformity with Shariah. The article 4 binds upon the countries after ratification that each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Its clause 2 says that each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. How the government is determined to refuse the CAT and the criminalization of the torture and it can be seen that it has dodged not only the UN but also the European Union who pursued the government to withdraw all the reservations on the many articles of the ICCPR and the CAT. The European Union had conveyed that these reservations had made Pakistan ineligible for
Pakistan
323
the Generalised System of Preferences (GSP) Plus status to be accorded in 2014 by the European Union. To settle the issue, the Prime Minister chaired an Inter-Ministerial Meeting, the cabinet, at the end of June 2011, in which it was decided to withdraw the reservations on Articles 6, 7, 12, 13, 18, 19 and 40 of ICCPR. The reservation on Article 3 was narrowed down to Personal Law and Law of Evidence, and the reservation on Article 25 was restricted to the election of the President of Pakistan. On the CAT it was decided to withdraw reservations on Articles 3, 4, 6, 12, 13 and 16. This is the very ample proof that the government is not in a mood to make the torture a crime. There are many reasons behind this intentions as the bureaucracy, which is the legacy of the colonial era, does not want that such laws would be introduced which take away powers from Police and other law enforcement agencies to control the people and maintain the fear psychosis among the people. The armed forces are running their own torture cells where the abducted persons are kept incommunicado for several months and passed through torture. Therefore the main objections are from armed forces and bureaucracy. Torture in custody is a serious problem affecting the rule of law in Pakistan. It is used as the most common means by which to obtain confessional statements and also for extracting bribes. Torture in custody has become endemic and on many occasions the police and members of the armed forces have demonstrated torture in open place to create fear in the general public. The absence of proper complaint centres and no particular law to criminalise torture makes the menace of torture wide spread. The torture cases have to be reported to the police, therefore the police, being the main perpetrators of torture refuse to register the cases. This is the main reason why official data about the cases of torture is not available. As yet, there has been no serious effort by the government to make torture a crime in the country. Rather, the state provides impunity to the perpetrators who are mostly either policemen or members of the armed forces. Furthermore, there is no means for the protection of witnesses. This discourages victims from making complaints. While international jurisprudence on the issue has evolved into very high standards, the situation in Pakistan resembles the Stone Age. Domestic jurisprudence concerning the use of torture is underdeveloped in Pakistan. The appreciation to exercise the right, as envisaged under Article 14 (2) of the Constitution, has thus far been minimal. To make matters worse, in claims against torture, victims bear the burden of proof, and there are
324
no independent investigating agencies that are empowered to inquire into a complaint against torture. In spite of the prohibition of torture in the Constitution, the Pakistani Army is running detention and torture cells in almost every city in the country. A report15, by the Asian Human Rights Commission16 has identified 52 such detention centres run by the military where people who were arrested and disappeared are kept incommunicado and tortured for several months to extract the confessions. As of now there are no independent investigation procedures in Pakistan to investigate cases of torture. In addition, there is an alarming level of insensitivity among legal professionals, including the judiciary, regarding torture in Pakistan. The Asian Human Rights Commission has documented evidence that the Pakistan Air Force and also the Pakistan Navy are also running detention and torture cells in private houses inside their headquarters compounds. It is believed that the main reason for the recent attacks on the armed forces headquarters is the existence of these torture cells. In the attack on the Naval base in Karachi which took place in May the intention of the attackers was to release the prisoners held in the bases torture cells. This particular torture cell was created to hold prisoners which had been sent into the country for interrogation by foreign forces with the collusion of the Pakistan military and government. The domestic jurisprudence concerning the use of torture is underdeveloped in Pakistan. The appreciation to exercise the right, as envisaged under Article 14 (2) of the Constitution, has thus far been minimal. To make matters further worse, in a claim against torture, the victims have the burden of proof, and there are no independent investigating agencies that are empowered to inquire on a complaint against torture. The AHRC in conjunction with the Karachi Union of Journalists has drafted a bill against torture and it was supported by many civil society organisations in 2010. Several members of the Assemblies and ministers have committed themselves to work towards this bill however, after the passing of one year no response has been seen by the legislators and government.
15 http://www.humanrights.asia/news/ahrc-news/AHRC-STM-158-2008 16 http://www.humanrights.asia/
Pakistan
325
The Pakistani police is among the most corrupt and brutal forces in the world The notorious Pakistani police torture and violence towards innocent people is not a concealed aspect of the countrys history and the media, civil society activists and human rights organization time and again unveiled the brutal face of these beasts in the police uniform. The Pakistani police is among the most corrupt and brutal forces in the world due to its reliance on torture as an investigation tactic. Hundreds of innocent people lose their lives to illegal police detention and in the fake police encounters every year. In Pakistan the police are an organized mafia with strong political influence on the police officials and the loyalist in the force. In 2010, as a conservative estimation, more than 1441 people faced the worst police torture. The majority of them were innocent and the police played their negative role and got them involved in fake charges. The media highlighted the dark face of the police dark towards the masses and the horrible footage raised anti police sentiments among the society. The police officials tried their best to defend themselves in the various talk shows but they failed as they cannot justify the wild torture of police on the prisoners and accused. After the massive campaign of media against the police torture in the country the judicial authorities joined in the action against a few incidents of ruthless police torture but it was just a formality, as the judiciary in Pakistan is trying to save its already worsen credibility and worth. Physical remand in police custody -- a legal way of torture The Pakistani judiciary and government have adopted a legal way of torture in custody through the method of physical remand in police custody. According to law the judicial magistrate can grant up to 15 days in police custody for further investigation of the case. This method is commonly practiced by the magistrates that provide a way for the police to complete their investigation and the easiest way to obtain results is to torture the person. The law generally known as police remand was introduced at the end of the 19th century by
326
colonial powers to get more confessional statement through torture and police brutal methods of investigations. This law is continued which gives legal way to police and law enforcement authorities to get confessional statements through physical torture. Police torture is a colonial legacy, and red chili spray was one of the favorite tools by the police then, which used to extract confessions from the accused by applying this method. In fact, it is a ready technique, still popular. The main source of torture in South Asia and particularly in Pakistan is the physical remand in custody. According to law the magistrate has to ask from the accused person whether he/she went through the torture in custody but this practice is generally not followed. The lack of proper training of the police force is one reason for the perpetuation of the use of torture in custody. Because of the lack of awareness and training, investigation officers do not use the basic tools that can help point the investigation in the correct direction. They resort to outdated techniques, which leads to inefficient, slow or even unlawful proceedings. The claim that there is no need to change century-old traditions thus helps the perpetuation of mistakes and abuses, such as torture. There is therefore a great need for better training, awareness-raising and equipping of Pakistani police forces in order to put an end to human rights abuses. A thorough reform of the policing system must be implemented on compensation: According to the existing legal framework in Pakistan, a claim for compensation for an act of torture could be settled under the Shariah law17, an opportunity often subject to absolute misuse in the country. Under the existing circumstances in the country, this procedure often benefits the perpetrator. Often the terms of the compensation are decided by the perpetrator, given the fact that in Pakistan, the law-enforcement officers enjoy a higher degree of authority in the society. By far, the courts in the country have been avoiding dealing with the question of torture. This undermines the possibility of using the civilian court proceedings to obtain compensation, as often the compensation proceedings also require a police report to substantiate a claim against torture.
17 http://en.wikipedia.org/wiki/Sharia
Pakistan
327
The magnitude of the problem: It is in the day-to-day work of the lower judiciary that this underdevelopment is mostly visible. One example is the practice of the lower court judges allowing remand custody of the detainees with ease while it is clear that anyone detained will be subjected to torture in Pakistan. The courts even fails to make use of the little space available in the Criminal Procedure Code18 of Pakistan, where a judge could demand a reason from the investigating agency for demanding the custody of an accused than transferring the accused into judicial custody. According to research for gauging the total number of police tortures during the last five years in Lahore, capital of Punjab province, alone, 16.42 percent of youth aged between 15 to 19, 25.38 percent adults aged between 20 to 24 and 18.9 percent of adults aged between 25 to 29 years, were tortured by the police, during the period of research. Similarly, 18.62 percent of detainees were subjected to some sort of mechanical torture, including all forms of violence, besides domestic violence and blunt-tools were most commonly used. A similar study on prisons has further noted with concern that 91.54 percent of detained men and 8.46 percent detained women were victims of physical torture by the police therein. Moreover, 12.14 percent of detained women were subjected to psychological torture by the police. Because of their socio-economical helplessness, labor community, followed by the business community, was an easy prey of the police. It was also pointed out that body parts most frequently targeted for battering included buttocks, foot soles, back, front and back of thighs, palms and wrists. The most common tool used to inflict severe pain is the cane-stick and a broad flat leather slipper (dipped in mustard oil to inflict maximum pain) more commonly known as Chhithar. This full-sized fury is a big symbol of fear for many. Actually, the post-9/11 scenario is embroiled with a situation marred with violence & torture and the violation of public rights in the war against terror is not an uncommon phenomenon. The developed nations of the world have incorporated various institutional methods for safeguarding public rights and their media is also playing an important role in upholding this check. Western media gives importance to societal issues like public rights and no government agency can dare to flout it. However unlike them, protection of public rights was not given any priority by the past governments in Pakistan. And, its a welcome step that the Shahbaz Sharif government is going to introduce sufficient
18 http://www.ecoi.net/file_upload/1504_1216207715_code-of-criminal-procedure.pdf
328
checks to remove public complaints against the gubernatorial police. Actually, lawyers movement has given impetus to the issue of rule of law and now the democratic regime should develop necessary paraphernalia to implement this manifest desire of the nation. This situation requires immediate steps-both administrative as well as political, to put some institutional checks and balances in it. http://www.pakspectator.com/police-torture-culture-in-pakistan/ The judiciary is also desensitized to the menace of torture and its impact on the very people the government and the judiciary are meant to protect. According to the laws of Pakistan the courts should inquire of the prisoners brought before them as to whether they have been tortured or not but this practice is generally ignored by the courts and particularly the lower judiciary. This is particularly so in cases where the prisoner has been held incommunicado for months or even longer. When the prisoners testify that they have been tortured while in custody the courts ignore the testimony and no action is taken. This provides legal impunity to the perpetrators of torture. In the cases of habeas corpus it is generally found that the courts do not go beyond the production of the prisoners or the denial of the authorities that they have illegally held the prisoner. The courts use the excuse that the purpose of the hearing was to produce the prisoner, not to go into detail about the mistreatment they have suffered. There is therefore a strong need for the sensitization of the judiciary on the subject of torture. It is also observed that legislators are the least interested party in making a law against torture. They have consistently refused to make the law against torture. Following are the some reports and videos of torture in custody which are documented. The victims can not report the torture because the ultimately police have to investigate the cases. Therefore victims are scared to go through another way of torture by reporting it. For further information please see the links for the video presentations below. Video clippings about torture in custody http://www.dailymotion.com/video/xaodvt_video-shows-pakistan-armyabuse_news army officers torturing in open place http://www.youtube.com/watch?v=Ul7gERJR-Aw&feature=related http://www.youtube.com/watch?v=-U8s6C3lhQ0&feature=related
Pakistan
329
police torture young men in before masses http://www.youtube.com/verify_age?next_url=http://www.youtube.com/ watch%3Fv%3Dg12_bZ9dWDI%26feature%3Drelated http://www.youtube.com/watch?v=6MrJu5jL_yQ&feature=related police torture in open place http://www.youtube.com/watch?v=M9Ouy4zyfaI a media person was tortured in police station http://www.youtube.com/watch?v=M9Ouy4zyfaI http://www.youtube.com/watch?v=BAfyAKpHz9U&feature=related women are beaten During the year the women and children were not spared by torture cases, in many cases the women were tortured by police in open places in the effort to thwart women folk who agitate on the killings and torture of their male members of family by in the custody. A woman was tortured and then thrown outside her house Anila Bibi was arrested in the second week of July 2011by Girjakha Police Station Gujranwala district, Punjab province, on alleged theft charges and she was brutally tortured there. After three days of constant torture when she turned disabled, then police left her outside her house in very critical situation and went away. Anila took help of her brother and reached the local court, in a very serious condition, to get justice from there. The court sent her to District Headquarters Hospital (DHQ) for medical checkup. The medical report issued by the DHQ Hospital proved that she was tortured brutally by the policemen at the police station. After receiving medical report yesterday, the court ordered the arrest of Sub Inspector Saad and sent him to jail on judicial remand. But they were released on bail as they were not arrested on the charges of Torture. A girl was raped and tortured in the captivity of policemen and army official for entire one year A teenage girl was repeatedly raped by several persons in the captivity of army and police officials for almost one year. She was arrested by the police officers in the presence of an army officer and remained missing since then. She is now six months pregnant. When the girl was sold by the perpetrator she managed to escape from those who were holding her captive at that time. She was able to
330
call her brother and managed to reunite with her family. The provincial police did not act in accordance with their sworn duty for the recovery of the girl during her entire period of captivity. Similarly the courts did nothing to assist and the perpetrators were granted bail by the High Court. A high-level inquiry committee of the provincial government has recommended the arrest of police officials but to-date neither the police officers nor the army personnel have been arrested. Her case exposes the weaknesses of the rule of law, justice system, the collusion of forces of law and order with the powerful element of the society, the fact that Pakistan is a male dominant society and the status of poor women as a sexual commodity before the affluent members of society. Please see Urgent Appeal Case: http://www.humanrights.asia/news/urgentappeals/AHRC-UAC-226-2011 A Christian young woman tortured in police custody for the punishment of his brother who had a love affair with a muslim girl A young Christian woman was tortured in police custody at the behest of Muslim powerful people on the accusation that her brother was in love with a girl from the Muslim family. Police also beat the relatives of the girl when they were in court premises. The family of Sajid Ashraf Masih, whose elopement with a young woman from the Gujjar family in Sheikhupura last month led the influential Muslims to kidnap Masihs sisters, said Asif Aqeel. Gujjar family members kidnapped Rakhel Ashraf, the sister of Sajid Ashraf Masih, who is in her early 20s, on May 13; they released her on May 17 but forcibly took her 17-year-old sister Maryam Ashraf that day. A 15-year old boy was brutally tortured in police custody A 15-year-old boy was illegally arrested on November 8, and severely tortured by Lahore police after being connected to a kidnapping of children in the country. The boy, the son of Mohamed Syed, reportedly a resident of Khaarak, was later released after police said he was likely not involved in the alleged kidnappings. He was continuously tortured for at least 6 hours and police attempted to force the boy into confessing to the kidnapping allegations. After the boy fainted, the father was called in and was able to take his son home. The police threatened the father of the victim to keep quiet over the detainment.
Pakistan
331
The police first denied the charges of the torture and when the hospital authorities confirmed the torture then the government also confirmed the torture. The boys both eyes were severely injured and he is not able to see. His whole body bears the marks of torture. The police officials were arrested but because of absence of any law against the torture in custody the perpetrator would get impunity for conducting torture to get confessional statement. Impunity to police officials who tortured a poet to death in custody Five police officials allegedly responsible for torturing to death a poet in their custody are still at large. They have not been arrested and the investigation to book them is still ongoing after one month. It is reported that because of the influence of a provincial minister and other legislators from the ruling party the two police stations of the Chiniot district of Punjab province have become notorious for the use of torture. The police receive impunity through the good offices of provincial law minister and his family members. Examination of the victims corpse revealed 29 torture marks on his body and that his fingernails had been torn out. These injuries were inflicted upon the victim within a period of only 24 hours while he was in the custody of the police. Mr. Mohummad Anwar Sahar son of Mehmood, a resident of Chiniot district, Punjab province, a popular poet, was asked on September 6, to record his statement in the case of one Zahid Arain who was murdered by unknown persons on August 14. He reported to the police at Langrana Police Station in the presence of some notables of the area. The Police Station House Officer (SHO) sub inspector Zaffar Witto and investigation officer (IO) of the murder case, Assistant Sub Inspector (ASI) Jafar Wittoof told the notables that they will question him for the investigation of the murder case and he will be freed after some time so they should return to their work. However, on the night of the 7 September the poet was shifted in severe condition to another police station, the Bhawana police station, and in the morning of 8 September people came to know that Sahar had died of the severe torture inflicted on him during the investigation. www.humanrights.asia/news/urgent-appeals/AHRCUAC-189-2011
332
A jeweler was killed during torture in police custody Police brutality was again exposed when a 50-year-old jeweler died in police custody owing to serious police torture on August 22. Muhammad Rafi, 50, father of two children, a resident of Ichhra Zaildar Road, was a jeweller and running his business in Latif Plaza located in the gold market for the past many years. The deceased was arrested by police some two days ago when two already arrested robbers confessed in police custody that they have sold gold ornaments weighing six to seven grammes to Rafi. Policemen managed to stop the traders from lodging any serious protest. Police claimed that Rafi committed suicide after drinking acid during their visit at his business place in order to recover the looted gold from him. Traders from Ichra Market and Rafis family reached the scene and after reaching the hospital claimed that Rafi died owing to serious police torture. A man was kept in military torture cell (www.humanrights.asia/news/urgentappeals/AHRC-UAC-160-2011) A man who was kept in army detention centers for more than nine months after his abduction by secret agencies and the Frontier Corp (FC) was again abducted, this time with his nephew and at the time of writing both of them remain missing. He had just recovered from his wounds of torture inflicted during the illegal detention in army torture cells. It is feared by the family members that the victims would be killed following their disappearance and illegal detention by the FC as it is a common phenomenon in Balochistan that after abduction the torture-mutilated bodies are found on the road side. Mr. Illahi Bux Bugti (40) son of Bayar Khan Bugti, resident of Haji Murad Gujjar Goth, Hub Chowki, Balochistan province, was abducted in presence of many witnesses on June 26, by persons from the Frontier Corps (FC), police and plain clothed men, suspected of being from state intelligence agencies, and was taken along with his nephew in an FC armoured car. He was coming from Karachi, 30 kilometers from Hub Chowki, on a motorbike with his nephew. Illahi Bux, was also abducted in 2007 by the persons from the army in their uniforms and police and was missing for nine months. After nine months he was thrown in an injured condition on the Netti Jetty Bridge at Karachi. He told his family members that he was kept in different torture cells, blind folded and army officers were investigating him about the nationalist movement in Balochistan and about some militant groups including Baloch Liberation Army (BLA). He was tortured in army detention centers by army officials. After the new government came into power he was thrown on the road side. His body
Pakistan
333
clearly showed signs of torture, his kidneys were damaged and he was severely traumatized. Army officials torture police officers and get impunity In an incident that occurred on August 24 police officers from R.A. Bazar police station, Rawalpindi, Punjab province, arrested two suspected persons from a market place. The men were collecting extortion money and teasing the women. The arrested persons told the police that they were from the army but could not prove their identity. The officers took them to police station but one of the arrested persons managed to escape from police custody. In an astonishing act as the police brought the remaining accused to the station 50 army personnel, under the command of a captain, attacked the police station. They forced their way into the station, severely beat all the policemen present, abducted two police officials and kept them in illegal detention. The abducted officers were also severely tortured in military custody and were finally released four hours later. The whole police station was ransacked and bullets were fired inside the building. In another incident, just three days after the above incident, on August 27, officials of the army tortured to death a Station House Officer (SHO) of the Chacrala police station, Mianwali, Punjab province. Other police officials were also severely injured. The SHOs sin was that he stopped a truck of the Pakistan armys Frontier Works Organisation (FWO) for a routine check at the high way. A case was filed but no arrests have been made because of hindrance from the army. There are examples of journalists like Saleem Shahzad, Hyatullah, MusaKhel and many from Balochistan who were killed after their disappearances by the powerful intelligence agencies of the army. A prominent journalist, Umer Cheema, was also abducted by the intelligence agency, the ISI, severely tortured and sodomised by army officials. But, as is typical where the military are concerned, no perpetrator has ever been prosecuted nor has any enquiry been concluded. http://www.humanrights.asia/news/ahrc-news/AHRCSTM-113-2011/ A campaigner against torture was implicated in robbery case Mr. Dilshad Bhutto, son of Mohammad Bux Bhutto, is a prominent human rights defender from Sindh province and he heads the campaign against torture
334
in custody the Anti Torture Movement Pakistan. Every year on the occasion of June 26, the international day in Support of Victims of Torture, he organizes different seminars and workshops against the practice of torture in custody with the collaboration of different human rights groups, including the Asian Human Rights Commission (AHRC). Many times, he was intimidated by powerful landlords cum politicians who opposed his activism in favour of human rights. A case of robbery was filed against Mr. Dilshad Bhutto and his elder brother Mr. Mashooq Bhutto in Taluka police station, Larkana district, Sindh province. The robbery is alleged to have occurred in the house of Mr. Nazeer Bhutto, city president of Sindh National Front and Dilshad and Mashooq were accused of looting valuable items from the house. The police immediately acted upon the first information report (FIR) and went to arrest them from Dadu city, 200 kilometers far from Larkana city. Dilshad Bhutto was not present in his house at that time and the police arrested his elder brother who is working as an officer in the department of education, Sindh government, in the early hours of July 29. Local journalists say that the complainant was also not aware that a case was filed on his behalf. www.humanrights.asia/news/urgent-appeals/ AHRC-UAC-127-2011 A nationalist was sent to the custody of ISI for torture Manzoor Hussain Parwana, the Chairman of the Gilgit Baltistan United Movement (GBUM), has been arrested by Pakistan Rangers, FC and Gilgit City Police commandos after his speech in the convention of Balawaristan National Students Organization (BNSO) on 28th July 2011. He was already framed in sedition charges by the occupation regime of Pakistan, because he was exposing Pakistan Forces and their intelligence agencies illegal activities in Gilgit Baltistan, a newly created province of Pakistan. It is reported that Mr. Manzoor has been taken to Inter Services Intelligence service (ISI) Centre at Sonikote Gilgit, where he will be interrogated by ISI, MI and other forces. It is obvious that he will be tortured and will be framed in any fake case to malign the nationalist movement in this disputed are, so the attention of arrest of ISI agent Ghulam Nabi Fai by FBI in Washington is neutralized. Mr. Fai was arrested in the USA on the charges of being a spy of Pakistan. http://www.humanrights.asia/news/forwarded-news/AHRCFOL-009-2011/
Pakistan
335
Another Azad Kashmiri becomes the victim of ISI butchery Dr Rizwan son of Mohammed Sarwar resident of Muzaffarabad was kidnapped by officials of ISI on 7th May 2011 from his house; and today on 23 May, he was killed. http://www.humanrights.asia/news/forwarded-news/AHRCFPR-027-2011 No case was ever registered against Dr Rizwan and he was kept in the torture cells of the ISI. The local police demanded family of the deceased to pay them 60,000 rupees and they will release him. While the family struggled to make arrangements for this money, to their horror they discovered that they have killed innocent Dr Rizwan. The police took many days to release the body of the deceased. Police officials kept newlywed couple in a private detention center and torture and released them after receiving ransom Mr. Shahid Ali Shahani, 20, son of Haji Shah Nawaz Shahani, resident of Ghotki, married Ms. Nazia, 18, daughter of Ghulam Hussain Shahani, who was missing after their arrest by police officers from two stations on the instructions of a high ranking police official, was kept in a private detention place unofficially run by the police, for many days where they were tortured and abused. The release of the couple was possible only after the issuance of urgent appeal by the AHRC (Please see the original Urgent Appeal: http:// www.humanrights.asia/news/urgent-appeals/AHRC-UAC-038-2011/) on which enquiries were initiated by the offices of the prime minister and chief minister of Sindh, but even then police took huge amount of ransom before releasing them. The officials of Ghotki police in retaliation also illegally occupied the houses of the all the brothers of the grooms father and destroyed the standing crop of wheat in seven and a half acres of the land and stopped the crop of the sugarcanes to be delivered at the sugar factories. The father of the bride has again threatened that the couple should be killed or burned alive. Even after the directives of the offices of the prime minister and chief minister of Sindh the police have still not started any enquiry in to the case.
336
A lady health worker raped and forced by police to withdraw her complaint Rehana Malik, 30, a lady health worker at Civil Hospital, Digri town, Mirpurkhas district, Sindh province, also an employee of the health department of the government of Sindh, was raped in her house while her husband was out for his daily job. On December 9, 2010 at 8 pm three police informers and gangsters entered her house, locked her children in a room and one gangster, Gulzar Arain, who is known to run a drug den, overpowered and raped the victim with the help of two police informers, Shahid Jat and Shoukat Jat. The attackers also injured her during the rape and stole Rs. 85,000. (USD 1000) and jewelry of the same amount. The perpetrator, Arian raped her while the two accomplices held her hands and legs for the rape. After the rape the attackers threatened her that if she went to the police she would be raped in an open place. http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-048-2011 The First Information Report (FIR), a criminal case for legal proceedings was lodged by the police intentionally after five days of the attack in order to destroy the evidence. The police, instead of filing a rape case, filed a case of attempted rape so that perpetrators could not be tried for committing the heinous crime. The high raking police officers of the concerned district are coercing the victim to settle the case with perpetrators. The alleged rapist was arrested for attempted rape but the police informers, who restrained the woman and who had beaten her during the rape, are enjoying the protection of the police. 6. Women Human Rights.an obligation
Articles 25, 27, 35, 37 of the constitution of Pakistan state that All citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex. Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Nothing in clause (1) shall prevent the State from making any special provision for women and children. No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth.
Pakistan
337
The State shall protect the marriage, the family, the mother and the child. The State shall: Make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment..
universal Declaration of human Rights

All human beings are born free and equal in dignity and rights. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. Everyone has the right of equal access to public service in his country. Motherhood and childhood are entitled to special care and assistance.
Women and Laws The Government of Pakistan and legislators have failed to fulfill their constitutional obligation of ensuring equality before the law to men and women. They have also failed to guarantee that women are aware of their legal and constitutional rights and to put in place sufficient measures to ensure that these rights and liberties take precedence over other customs which reject the concept of equality. Women comprised 22.2 percent of the 342 seats in the National Assembly and 17 seats in the Senate. During the year, women parliamentarians were
338
seen as the most active legislatures. Out of 26 private bills, 22 were presented by women parliamentarians. However, there was no representation of women parliamentarians in the Constitutional Reforms Committee formed to draft the 18th Amendment Bill. It is unfortunate that instead of progressing forward with every passing year the situation of women in Pakistan seems to be going steadily downhill. Significant actions, concrete and sustained steps have to be taken seriously. Before that it is essential that Government publicly condemn all forms of violence against women and respect all UN ratified conventions by reforming laws and criminal justice system to ensure provide greater protect to women. Though government seems interested in making some laws for the uplifting the women folk but the parliament is mostly consisted of men from background of landed aristocracy, right wing politics, usurping the rights in the name of Islam, customs of marrying more than one women and much more dependent on taboos and religious customs who always resist legislations be passed through the parliament. The two bills are pending before the Senate since 2009 which were passed by the national assembly. The bills about domestic violence and Acid attacks on women have been tabled by the women parliament which is in number of 72 out of 344 members of National Assembly. The women members from the parties in government and opposition are working hard to pass the bills. On November 16, the national assembly passed a bill The Prevention of Anti-Women Practices Bill 2008 which was demanded by the civil society since many decades. The bill specifically targets forced marriages, marriages to the Holy Quran and denial of the right of inheritance. According to the bill whoever, by deceitful or illegal means, deprives a woman from inheriting any movable or immovable property at the time of opening of succession, will be punished with imprisonment for a term of up to ten years and no less than five years or with a fine of one million rupees or both. Women in Pakistan face various kinds of brutal treatment, including sexual violence by family members, strangers or state agents, honor killings, domestic abuse and torture. They are burnt, raped and murdered. The intensity of crimes against women is on the increase while the verdicts of jirgas (tribal illegal judicial system) continue, leading to heinous wrongs against women. This alarming and worsening situation of structural violence against women does not extend official response to offer them greater protection. Generally the culprits go unpunished because of discriminatory laws, the incompetence, corruption, and sexual biases, run rampant throughout the judicial system. It is believed that 70% of people committing honor killings across the country escaped without being penalized.
Pakistan
339
It is imperative that judges, lawyers and police officials are educated about the terrible consequences for women of many customs, such as honor killings. It is also essential that the process of justice be made easier so that women do not hesitate in going to police stations to file their complaints. Under the Qisas and Diyat Ordinance, the Shariah Laws, the heirs of the victim have the right to decide if Qisas (equal punishment) inflicted on the offender. They may choose to waive this right. The accused (who is often member of the victims family) is usually forgiven or son negotiates with the offenders family to determine how much compensation would be required for them to grant mercy to him. The offences under the Qisas and Diyat laws go against the order of a state that is exclusively responsible for protecting the lives and physical integrity of its citizens. The Govt. must stop the application and misuse of the Qisas and Diyat laws and declare offences of violence against women as Non-Compoundable. The Qisas and Diat laws are generally benefit the perpetrators in the cases of rape, molestation, feuds between the families and exchange of minors to settle the murder disputes. The victims of domestic violence are not only facing injustices at home but also victimized by the state for not ensuring them protection by law. Domestic Violence Bill of 2009 was passed unanimously by the National Assembly on August 2010, but lapsed when Senate failed to adopt it within three monthperiod prescribed by constitution. Nothing has been done on the same so far although all human rights watch groups report says the high figures of wide range of all forms under Domestic Violence. The Federal Shariat Court ruled that the section 11, 28 and 29 of the Women Protection Act, 2006 was unconstitutional, on the contention that these negated the over-riding effect of the Hudood Ordinance of 1979. The government and the civil society have challenged the FSC decision to ensure that womens rights were not compromised again. Womens freedom depends on males choice More than half of the women population in the country need permission to step out of the house and 91% received support from their families in terms of decision making only after they started earnings. Majority of women do not have the concept of having the way of life with their own choice. Their lives are generally governed by male counterparts from their families. Most
340
of the women consider such setting as natural with high level of acceptance. The limited awareness and information among women even about their basic right is visible because they believe that it is good for women to forgo their rights. The spirit of sacrifice is built so strongly among women within the family structure, means that giving up their rights is a feeling of doing good and claiming rights is not of their culture.--Sustainable Development Policy Institute (SDPI). Though, many plans and programs have been launched to increase the literacy rate among females the drop out ratio among the girls and the number of out of school girls remains the highest in the world. It is extremely important that concrete steps are taken to bridge the wide gap between male and female literacy. The fact shows how the Government has failed to ensure that women are aware of their legal and constitutional rights and has failed to put in place adequate measures to ensure that these rights and freedoms take precedence over other norms which deny women equality. Most women are confined to their homes or to a small private sphere and have little access to information outside their homes which is why they consider men to be superior to them and consider exercising their will a sinful and shameful act. The Constitution of Pakistan guarantees gender equality in several articles. Pakistan has also ratified the UN Convention on the Elimination of All Forms of Discrimination against women (CEDAW). The consist denial of fundamental rights has resulted in the increased susceptibility and vulnerability of Pakistani women for all kinds of violence such as murder in the name of honor, mental/ physical domestic violence, rape, gang rape, abduction, murder, forced conversion, forced marriages, trafficking and prostitution. Women in Pakistan have been denied enjoyment of their economic, social, civil and political rights for years. Pakistan is third among five most Dangerous Countries in the World The recent study done by Trust Law has shown that Pakistan ranks third among the dangerous countries for women in the world. They asked 213 gender experts from five continents to rank countries by overall perceptions of danger as well as by six risks include: health threats, sexual violence, nonsexual violence, cultural or religious factors, lack of access to resources and trafficking. Those polled cited cultural, tribal and religious practices harmful
Pakistan
341
to women, including acid attacks, child and forced marriage and punishment or retribution by stoning or other physical abuse. In Pakistan, more than 1,000 women and girls are victims of honor killings every year, while 90% of women in Pakistan face domestic violence. http://www.trust.org/trustlaw/womens-rights/dangerpoll/ Flaws in Criminal Judicial System & impact on Womens Rights The case of Mukhtaran Mai, who was raped in 2002 on the instructions of the local Panchayat, an illegal local court run by the tribal elders, is an ample example which shows the biasis of the judiciary against the women. In 2005 the chief justice of the supereme court took Suo Moto notice of the case. Despite the intervention it took more than nine years to come up with this decision, which is a source of concern for the women of Pakistan. Supreme Court has delivered the verdict into Mukhtaran Mai rape case upholding the Lahore High Courts verdict, acquitting all the accused except one Abdul Khaliq. In cases of complaints women victims are burdened to provide series of evidences which is not possible for them. It is the responsibility of the police to do the investigation and come up with the requisite evidence. Currently, methods of recording evidence by police are biased against women; and that is one reason that they do not get justice from the courts. The judgment has shaken the confidence and sense of security of women through out the. It reflects a faulty investigation of the police and the loop holes that are left intentionally to side with the power brokers. The outcome of Mukhtara case discourages survivors of rape and gang rape to report. However, laws are made for a society that is based on the rule of law and where individualism reigns supreme. Since that society is non-existent, our whole legal edifice is working on a fictitious basis with disturbing consequences. The law declares that sanctity of life is guaranteed under Article 9 of the constitution. Pakistan: Politicization of Reproductive health/Sexual health Aid The issue of sexual and reproductive health and rights (SRHR) in Pakistan is very important, and can be assessed from three interrelated perspectives: womens social status, state priorities and donors agenda. As a traditional patriarchal, as well as feudal and tribal society, Pakistan harbors strong values on issues regarding family, sexuality, SRHR and gender relations. The state of
342
SRHR in Pakistan cannot be understood without Islamic, social and cultural norms shaping societys collective attitude towards SRHR in general and womens issues in particular. This situation is generating dismal facts, such as low literacy rates, gender-based violence, lack of discussion and education on sexuality issues, whether formal or in public discourse, and womens lack of autonomy to make decisions regarding their bodies. These in turn translate to poor sexual and reproductive health. Consequently, poor womens health in Pakistan is as much a social as a medical problem. Since its inception through 1980s, the National Family Planning Programmethe main reproductive health service provider in Pakistanhas been poor in terms of density, service provision and quality. There are number of socio-economic, religious and cultural reasons behind this poor performance but a main factor is the lack of priority given to this issue by state. The security-obsessed state of Pakistan, which allocates its maximum resources to fight the US-led war on terrorism, has very low priority for social sector spending and womens development. Even its other South Asian neighbors, like Bhutan and Nepal, are spending 10 times more on the health sector. The sexual and reproductive health-related initiatives in Pakistan have been mainly donor-dependent. Donors funding is mainly related to mother and child care however, and though it brought the MMR down to marginal extent (from 346 to 276/100,000 in one decade), much more is needed to provide comprehensive sexual and reproductive health services, provide comprehensive sexuality education, and address sexual and reproductive rights. Bushra Khaliq (www.arrow.org.my): www.arrow.org.my/publications/AFC/v17n1.pdf Aasia Bibi case and misuse of Blasphemy laws The recent verdict of a lower court, sentencing a Christian woman to death in a blasphemy case and consequent murder of Punjab Governor who supported the imprisoned woman, has put forth the very vital question-weather Pakistani society has become intolerant, violent and extremist to the point of incorrigible. The Asia Bibi case was occurred in June 2009 in Pakistans Punjab province when a group of female Muslim laborers complained that Asia Bibi, a Christian woman and a fellow farm laborer, had made derogatory remarks against the Islamic Holy book and Prophet Mohammed. A police investigation was opened, which led to a trial and guilty verdict for Asia. The verdict has attracted worldwide attention. The incident is clear indicative that Pakistani society is totally dominated by traditional religious values. Although the assassinated Governor Taseer was not
Pakistan
343
accused of blasphemy, his crime was to seek presidential pardon for an illiterate peasant Christian woman accused of blasphemy. In his court testimony, the Governors assassin proudly declared that he was executing Allahs will. Hundreds of lawyers showered him with rose petals while he was in police custody. Two hundred lawyers signed a pledge vowing to defend him for free. This kind of mass frenzy, loaded with religious extremism taking new heights is matter of great concern for the progressive forces of Pakistan. By Bushra Khaliq http://www.wise.pk/inner.php?pageid=32&menuid =22&sectionid=&articleid=11 Some opportunities The Gender Reforms Action Plan (GRAP) was initiated in 2005 to help improve the status of women through fiscal, political, legal and institutional reforms in the government structures at the federal, and district levels in order to ensure gender equality in society. The project barely managed to spend 84 of 250 million and unable to achieve desired objectives. However GRAP is continuing its program for next two years. A positive development was the enactment of two laws to deal with sexual harassment. Pakistan Penal Code to provide for a harsher penalty for the offence under Section 509 besides offering a better definition of sexual abuse. The other law, adopted in March 2010, was the Protection against Sexual Harassment at Workplace Act, which laid down a code of conduct devised to prevent and punish sexual harassment at workplace. The Government of Pakistan has declared December 22 as National Working Womens Day, including agricultural field workers, police officers, parliamentarians, doctors and senior government officials and a woman has been appointed as the first female Ombudsperson for Womens Rights and implementation of Anti Sexual Harassment legislation in the country. Two key bills were presented in the National Assembly in April 2011. One proposed by female MPs, seeking enhanced punishments for perpetrators of acid crimes against women and the other for a ban on the production, transportation and sale of firearms. Female MPs from all political parties called for an effective implementation mechanism after a National Assembly panel recommended to the house to approve a bill seeking enhanced punishments for those responsible for acid crimes against women.
344
In its report on Acid Control and Acid Prevention Bill, 2010, the National Assembly standing committee on womens development urged the house to accord an approval to the legislation that proposed life imprisonment and a minimum Rs1 million fine for the crime. The committee argued that the crime was becoming more common by the day in the absence of a proper legislation to prevent it from happening. Women crisis centre were established in 12 districts in Punjab to provide free security, health treatment, legal aid and counseling facilities to women victims of violence. Currently, these crisis centers are working across 25 different districts of the country under the supervision and guidance of Ministry of Women Development. As per the Aurat Foundations report, 14,429 women victims of violence had received temporary shelter, health treatment and legal aid services through these centers in Punjab. Impunity in the cases of rape of teenage girls The gang rape in captivity always gets impunity by the law enforcement agencies and through the Shariah laws. The gender biases and prejudices of the officials, courts, lawyers and the law enforcement agencies the perpetrators of the rape get impunity and prosecution always helps the perpetrators in the cases of violence against women. The police always complicit with the perpetrators and avoid to file the cases in the effort to destroy the evidences and also police force the complainant/s to withdraw the case in the name of honour of the family and victim. In many cases police do not provide the letters to the complainant for medical examination of the victim until the complainant gets order from the courts. The government has accepted several recommendations concerning womens rights and violence against women. But these remain a critical issue in the country and authorities are not taking any credible or effective action to address the abuses of the women. http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-226-2011/ http://www.humanrights.asia/news/ahrc-news/AHRC-STM-166-2011/ http://www.humanrights.asia/news/ahrc-news/AHRC-STM-162-2011/ http://www.humanrights.asia/news/ahrc-news/AHRC-ART-057-2011/
Pakistan
345
A 12 year-old Christian is gang raped for eight months, forcibly converted and then married to her Muslim attacker Miss Anna (name withheld), is a 12-year-old Christian girl and the daughter of Arif Masih. Arif is employed as a street sweeper (scavenger) at WAPDA. He is a resident of quarter number 44, WAPDA colony, Shahdra, Lahore, the capital of Punjab province. Anna was kidnapped by two Muslim men on December 24, 2010, one day before Christmas. In the first week of September 2011, more than eight months after her disappearance, Anna called her family from Tandianwalla, district Faisalabad, 190 kilometers from Lahore, and told them that she had been abducted but had escaped and was hiding at a bus stop. The parents went there and recovered her. The rapists then immediately contacted the police through their religious group and produced a marriage certificate showing that one of them, Muhammad Irfan, was married to her. When Annas parents went to the factory area police station to change the FIR to include the names of the rapists in the case the police flatly refuse to allow this and said she that as she had married and converted to Islam it would be better to hand over the girl to her legal husband. If they refused they were told that a criminal case would be filed against them. http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-199-2011/ A minor girl was gang raped by a powerful man, his son, his brothers and nephews in the shadow of a fabricated marriage Ms. Mallah (full name withheld),11-years-old, the daughter of Ahmed Mallah, a resident of Goth Haji Abdullah Kadhro Daro, Taluka Mirpur Bathoro, District Thatta was gang raped by Mr. Gulab Palari, the sons of Liyar Palari, his brother Pinyal Palari, his son Noor Muhammad and his nephews after her abduction. According to victims family, in the month of July Mr. Gulab Palari and Mr. Pinyal son Liyar Palari visited her village, and invited her family consisting of her father Mr. Ahmed Mallah, Mother, Mst Hujjat Mallah, her and her two year-old sister Ms. Farzana to their area in Nooriabad, Sindh province for the cultivation of Land at Nooriabad which is situated between the cities of Hyderabad and Karachi. On this offer, her father Ahmed Mallah decided to move his family to their village Goth Azeem Palari with all their belongings and household goods. After moving there, they were surprised to know that there was neither land nor any cultivation there.
346
According to the case filed in the Additional Session Court of Kotri, the alleged rapists namely; Yar Mohummad, Gulab, Pinyal and other their other accomplices of Palari family detained them in an illegal private detention center at their village house. After some days Yar Muhammad asked the father of the girl to marry his daughter with his son. Shabanas father refused it because of her young age. This refusal infuriated Palaris and the accused persons abducted her and forcibly married her to Noor Muhammad, the son of Yar Muhammad. It is said by the victim that she was forcibly put before a bearded person who read some verses from the holy book of Quran and then it was declared that she was married to Noor Muhammad who confined her and raped her the entire night. http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-177-2011/ A Christian woman was raped for four days; the rapist identified himself as a senior officer in the Inter Services Intelligence Agency Ms. Sehar Naz, aged 24, from Christian Town, Faisalabad, Punjab province, works as a sales officer in the State Life Insurance, a government insurance company. She was going with her area manager and sales manager in their car to attend a conference on 14 April 2011. As the car reached the circuit road near the Serena Hotel crossing a person in a black shirt and trousers stopped the car and introduced himself as Arif Atif Rana, a Major in the Inter Services Intelligence (ISI). He was standing with a traffic police official and asked the occupants of the car to show their identity papers. As he received the identity card of Sehar Naz he told the insurance officers that a call has been received by him against Sehar and that he wanted to take her for investigation. The insurance officers tried to prevent this but he threatened to kill them for interfering with his official work. The insurance officers quickly lodged a police report on the same day at Civil Lines Police Station, Faisalabad, that she was abducted by an army officer who claimed that he was a Major in the ISI. Major Rana took her on his scooter to different places and then to his house in Samanabad, Faisalabad. He kept her at that location for two days and then took her to Lahore, the capital of Punjab province and raped her in his custody on each of these four days. On 18 April he dropped her at the Faisalabad railway station and threatened her that if she told anyone about the rape he would arrest her parents in a bomb blast case. He went on to say that it is easy to book Christians in any case. http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-085-2011/
Pakistan
347
A 16 year old girl was gang raped almost for one month -- perpetrators were released by the police Six armed men from a group of land grabbers from Karachi, working in nexus with different police stations, attacked the house of Mr. Abdul Rafiq Jagirani alias Mohib Ali, son of Maula dad Jagirani, in Faizabad, Khairpur Mirs, Sindh province, on 14 October 2010 and abducted his 16 years old girl, Miss S (name withheld), and his son, Muhammad Afzal, 14, at gunpoint for ransom. They threatened Jagirani not to report it to the police otherwise they will kill both children. After half an hour of the abduction Jagirani reported the matter to the police but because of threats from the abductors he did not identify them. After two days the abductors asked for Rs. 500,000 (USD 5883) as ransom for the release of his children. He sold his some agriculture land for the payment and handed over the money to the abductors in Karachi, 400 kilometers away from his city. It took him one month to arrange the money. The payment was paid in Bhitai abad, Gulistan-Johar, Karachi to the main accused, Abdul Kareem Marfani, and in return the abductors released his children. Following her release his daughter told him that she was raped during her captivity. The perpetrators are enjoying impunity and police is satisfied that the children are released. http:// www.humanrights.asia/news/urgent-appeals/AHRC-UAC-053-2011/ A lady health worker raped and forced by police to withdraw her complaint Rehana Malik, 30, a lady health worker at Civil Hospital, Digri town, Mirpurkhas district, Sindh province, also an employee of the health department of the government of Sindh, was raped in her house while her husband was out for his daily job. On December 9, 2010 at 8 pm three police informers and gangsters entered her house, locked her children in a room and one gangster, Gulzar Arain, who is known to run a drug den, overpowered and raped the victim with the help of two police informers, Shahid Jat and Shoukat Jat. The attackers also injured her during the rape and stole Rs. 85,000. (USD1000) and jewelry of the same amount. The perpetrator, Arian raped her while the two accomplices held her hands and legs for the rape. After the rape the attackers threatened her that if she went to the police she would be raped in an open place. However, after the incident she went to Digri police station at 9.30 pm where she was told by the station house officer (SHO), Mr. Zulfiqar Khoso that as it
348
was night nobody could record her statement and to come back the next day. She returned and spent the whole next day trying to file her report but in the evening was told that she should go back to home and the police station would send someone to see her. In the meanwhile news of the rape was reported in the media. The police telephoned her to come the house of Haji, an influential person of the town. There she found that police officials were also present. Haji and police officials pressured her to accept Rs. 10,000 (USD117) as compensation which she refused. One of the police officials, Munawar, the assistant sub inspector (ASI) took her signature on a plain paper forcefully saying he would make an application on her behalf. She asked the police officials to file a case of rape so that she could have a medical report.It was only after five days of her rape, on December 13, that the FIR was filed. However, the FIR only mentioned that it had been an attempted rape. On February 26, Mr. Zulfiqar Mehar, the district police officer (DPO), the highest police officer of the district, also tried to coerce her to withdraw she had to withdraw. http:// www.humanrights.asia/news/urgent-appeals/AHRC-UAC-048-2011/ A girl was stoned to death, a woman was paraded naked and brother kills her married sister in the name of honour The killing, forced marriage, or the dishonoring of a woman is not that important for a government in a country where scores are killed and maimed in bomb explosions in the name of religion. It is a sad irony that these socalled religious warriors struggle throughout their life to attain several beautiful women in the afterlife. In the month of June Miss Shazia, 19, was stoned, burnt with acid, and then shot dead for an unknown sin in Mardan, Khyber Pakhtunkha province,the second largest town in northern Pakistan after Peshawar. Originally from a village in the Swat Valley, Shazia was snatched by her ex-husband from her mother, taken into the mountains, tortured, and eventually killed. Her mother, Noor Jehan, a widow with no male relatives, has lodged complaints at three different police stations about her daughters fate, but her wailing, so far, has fallen on deaf ears. Law-enforcement agents keep telling her that investigations are under way. Days before Shazias heinous murder, another woman was stripped and paraded around Haripur, a city near the now-infamous suburb of Abbotabad, the last dwelling of Al-Qaeda chief Osama bin Laden. The woman, in her 50s, was punished because her son was found guilty of having illicit relations with the wife of another man. This was the local jirgas sentence to restore the mans honor -- although it dishonored an innocent woman.
Pakistan
349
Mrs Odhas was an adult, living with her husband who had no objection to her singing on television and the stage, her brothers felt the act dishonored them. One morning they knocked on her door, before shooting her repeatedly when she stepped out to meet her visitors. This shows the collective mentality of a society where women, instead of being thought of as equals, are dealt as a commodity owned by men -- father, brother, or husband -- from birth to death. http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-033-2011/ Section 265-K of the (CrPC) empowers a court to acquit an accused at any stage The Pakistan Criminal Procedure Code empowers the courts to acquit any person which generally provides impunity to rapists. The section 265-k says that nothing in this chapter to prevent a court from aquiting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. In the cases of rape this clause is generally used when the victim of rape or her family members avoid the open court hearing and cross examinations before many persons in the court room. Two lawyers facing trial in agang-rape case have been acquitted by a Sessions judge. They were charged with kidnapping two teenage sisters and subjecting one of them to gang-rape in November 2008 in an apartment within the remit of the Ferozabad police station. Additional District and Sessions Judge (East) Hafiza Usman took suo motu progress of the case and observed that the prosecution had miserably failed to produce a single witness in support of its case despite the fact that the case was about an incident that happened in 2008. The court was also told that the gang-rape victim, her sister and their father were not willing to appear in court. Due to the reason mentioned above and in compliance of Judicial Policy the court took suo motu progress and itself asked to DDPP (deputy district public prosecutor) as why the accused shall not be acquitted under section 265-K of CrPC due to lack of interest of prosecution and non producing of any single witness since 2008, the judge wrote in her order.
350
The forced conversion to Islam of women from religious minority groups Article 20 of the Constitution of Pakistan clear states that protection must be provided to all citizens regardless of their religion. The forced conversion to Islam of women from religious minority groups through rape and abduction has reached an alarming stage which challenges interfaith harmony due to the total collapse of the rule of law and biased attitude of the judicial officers. It appears today that no one, from the judiciary to the police and even the government has the courage to stand up to the threats from Muslim fundamentalist groups. The situation is worse with the police who always side with the Islamic groups and treat minority groups as lowly life forms. The dark side of the forced conversion to Islam is not restricted only to the religious Muslim groups but also involves the criminal elements who are engage in rape and abduction and then justify their heinous crimes by forcing the victims to convert to Islam. The Muslim fundamentalists are happy to offer these criminals shelter and use the excuse that they are providing a great service to their sacred cause of increasing the population of Muslims. The most victim communities are Christians and Hindus who are open to cruelties of Muslim fundamentalists without the protection from the law. Approximately 90 percent of the Christians and Hindus are the poorest of the poor and live in slum areas. They are forced to do the jobs of scavengers, sweepers, garbage collectors and other types of the lowest menial work. Their access to education is very limited. Their communities are not treated as equal citizens and being not provided equal opportunities in the open market of jobs, which make them very fragile before the powerful Muslim groups and Muslim leaders in view of the weak justice system. This is a very basic issue of the rule of law that the police take it upon themselves to act as judge and jury when it comes to a conflict between Islam and the religious minorities. They decide which FIRs to accept and even then when they deign to record the complaints they seldom make any investigations into the cases unless ordered to do so by a court. And even then, they delay the issue for as long as possible. An FIR is the first step in the registration of a complaint and every police station has the non-transferable duty to record them. It is very simply not their choice to decide which FIR to file. No action can be taken into a complaint until the FIR has been registered and therefore this alone is ample evidence that the police collude with the perpetrators.
Pakistan
351
Similarly, the lower judiciary fails in their responsibilities. In the vast majority of cases the judicial officers, including magistrates and judges question the traumatised victim in open court in full view of her family members, the alleged perpetrators and complete strangers. They do not considered the sensitivity of the feelings of the victim and pay no attention to the sanctity of the women, regardless of their religion. In the cases of forced marriages the courts even allow marriage to the already married woman without following the teachings of Islam and Muslim personal laws of the country that declare such marriages as against Islam and as Haram (Illegitimate). In many cases when this situation has been arrived in the case of Muslim the courts have awarded them punishment on the charges of adultery. The religious minoritys hope from the courts is shattered by such decisions where the Muslim seminaries have been allowed to perpetuate freely. In the Sindh province where Hindus are residing in good numbers they are generally victimized by the mushrooming growth of the Madressas which are very much active in forced conversion to Islam through abduction. The decision of courts in the case of Anita will obviously encourage the religious zealots to speedily convert the Hindu women by abduction and rape and use the courts rulings in their favour. The courts were complicit in the forced conversion to Islam of a young hindu woman Anita, (22), the mother of two children, was abducted on April 27 from her house, situated at Mohalla Surya, Moro, district Nau Shahroferoz, Sindh province, when her Hindu husband, Suresh Kumar, was not at home. The two children, one boy of four years and one girl of 22 months were beaten up by the abductors and were locked in the house. The Hindu community then filed a habeas corpus petition in the Sindh High Court Sukkur bench, on May 5, where on the next hearing on May 7 only the lawyers from the abductors appeared. The lawyer from the Hindu community asked the court to produce the victim and the court replied that when the lawyer representing the main abductor is present then there is no need for her appearance in the court. The court after seeing the marriage certificate announced that she had embraced Islam by marrying a Muslim man. Whereas, the lawyer of the victim said that she should be produced in the High Court so that she can testify as to this but court relied on the decision of a session court and Muslim marriage certificate and dismissed the case.
352
Supreme Court on the 22 July, 2011 where a two member double bench heard the appeal and asked that Anita and her husband be present in the court. When perpetrator with his Muslim wife, her name had been changed from Anita to Aneela Fatima Pervez, after becoming Muslim. The perpetrator came to the Supreme court with many of his family members and friends who were also armed as she told later to her Hindu husband on the telephone. When she was produced she was not asked to give her statement but she was first asked to recite the Kalma (Islamic testimony or the Islamic declaration of faith) before taking her statement as to whether she wants to live with new husband or she was forced to marry. The court was full of the relatives of the Muslim abductor so she first saw the audience and after a while she recited the Kalma. The court declared that she is now Muslim. Then she was asked whether she wants to go with her Muslim husband and according to her Hindu husband she saw her children who were crying at that time but suddenly she saw the relatives of her new husband were looking at her with threatening gestures. She said before the court that she wanted to live with her Muslim husband. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-176-2011 A Christian family was first booked in Blasphemy and when it was not proved then they were forcibly converted to Islam Amanat Masih was arrested under blasphemy law in 2007, along with his son Waris Masih but later acquitted by higher court as charges were false. Amanat Masihs another son Shahzad Masih aged 23 and his wife Rukhsana Bibi aged 20 went to their native village in Farooqabad, Sheikhpura to take care of their property, from where they were abducted on October 26, 2011. When Amanat Masih tried to contact his son Shahzad Masih via cell phone, he was unable to reach them. Amanat Masih contacted one Christian in his village, who told him that Imam of mosque came with Muslim landlords to his home and forcibly took his son and his wife and later announced on mosque loudspeakers that Shahzad Masih and Rukhsana Bibi have accepted Islam and denounced Christianity. (Pakistan Christian Post) The Kiln factory owner rapes then forced them to convert their religion In a case of rape and forced conversion to Islam which occurred in the month of August, the owner of a kiln factory, Muhammad Amin alias Sony, forcibly
Pakistan
353
entered the house of one of his employees, a 13-year-old Christian girl and allegedly raped her at gunpoint. Sony then forced the victim to place her fingerprints on a set of marriage papers to provide himself with legal protection if he was to be accused of rape. Anwar Masih, the father of the victim and a resident of Harbans Pura, Lahore, the capital of Punjab province, was working in Sonys factory for daily wages with his wife and daughter. During August, because of heavy rains the kiln was closed and the victims parents went out in search of work leaving their daughter alone in the house. Immediately following the incident the parents filed a case with the Harbans Pura Police Station. However, to date, the police have not taken action against the accused person as he is a powerful man. Also, he sought the help of a Muslim religious group who has threatened the police that if any case is filed against the alleged rapist the houses of the Christian community will be burned. On October 22, after many delayed proceedings, the Session Court of Lahore ordered the Harbans Pura police to file the case which should have been done immediately. However, once again the police no action has been taken and the police are avoiding their sworn responsibilities. In Sonys factory there are around 70 employees most of whom are Christians. One lady worker who was widowed two years ago has become pregnant and Sony has been forcing her to convert to Islam but the Christian community is trying to prevent it. They have accused Sony of being responsible for the pregnancy and have reported the matter to the police who once again refuse to file a case against him. Instead the police have threatened the Christians with dire consequences should they proceed. This lack of action by the police is due to threats by a Muslim group that the police themselves will suffer dire consequences should they side with the Christians. every year 700 Christian and 300 hindu girls were converted to Islam Minorities Concern of Pakistan claims that at least 700 Christian girls are kidnapped and forcibly converted to Islam every year in Pakistan. Forced conversions of Hindu girls to Islam are often unreported out of fear. Most of the cases are from Punjab province where Christians live in good numbers and banned Muslims organizations operate freely because of the freedom from the Punjab provincial government which provides them shelters. There are also many cases from Khyber Pakhtunkha (KP) province where Taliban and other forces are operating to convert the minorities to Islam.
354
In the Sindh province there are some shrines and seminaries (Madressas) are operating to convert forcibly the Hindu girls to Islam. From Karachi, the port city of Pakistan and capital of Sindh province, every year around 50 girls are being abducted by the Madressas people and then whereabouts are not known to their parents. The police always say if the girls have embraced the Islam then how can they stop. From the interior of province, where Hindu population lives near the Pakistan India border, it is a common practice of Madressas to abduct the girls, rape and provide them shelter inside the Madressas. If it is proved that girls are there then they bring the marriage certificates, which were forcibly signed by the girls, and claim they are Muslim. One Shrine in one district the Sanghar, head of the shrine claims that it has converted 4000 Hindu girls to Islam during previous four years. The Hindu community claims that every year atleast 300 Hindu girls are forcibly converted to Islam. There have been many cases reported by the Christian rights groups concerning rape and forced conversion. The following cases which all involve Christian women are but a few: http:// www.humanrights.asia/news/forwarded-news/AHRC-FAT-015-2011/ Sidra Bibi, (14) in the district of Sheikhupura in Punjab, is the daughter of a worker in the cotton industry. A Muslim from the village had his eye on her and began to molest her, and eventually abducted and raped her before threatening her with death. Physically and psychologically abused, the girl became pregnant. She managed to escape from her tormentor and is now back, in a state of exhaustion, with her family. The police have refused to accept her complaint because of the involvement of a Muslim religious group and now the CLAAS lawyers are handling the case. Tina Barkat, (28), was approached by a Muslim friend who, after being friends with her for several months, asked her to convert to Islam. His family began to read her verses from the Quran, kidnapped and threatened her, and then gave her in marriage to a Muslim family member. Her lawyers have a current action to dissolve the marriage.
Pakistan
355
The same fate has befallen Samina Ayub, (17), who lives with her family near Lahore. Kidnapped by a Muslim, she was forcibly converted to Islam, and renamed Fatima Bibi and was forced to marry in the Muslim rite. Her family reported the abduction but the police have not prosecuted those responsible. The case remains unsolved and the family calls for the mobilisation of civil society to save Samina. Shazia Bibi, (19) from Gujranwala, in Punjab, worked as a maid in the house of a Muslim woman, the owner of a grocery store. A Muslim boy from the shop fell in love with Shazia and in agreement with the owner, held a conversion and forced her into marriage. The plan was successful but now, thanks to Shazias family the case has ended up in court. Uzma Bibi, (15), from Gulberg, and Saira Bibi, (20), a nurse from Lahore, were taken by force by Muslim neighbours, converted to Islam and then forced to marry in the Islamic rite. The families of the girls have reclaimed their daughters and the cases are currently before the High Court of Lahore, represented by lawyers provided by CLAAS. (PA) (Agenzia Fides 13/4/2011) Two Christian sisters Rubecca Masih and Saima Masih from Jhung, Punjab province were kidnapped and forced to convert to Islam. Both sisters were on their way home when by Muhammad Waseem and his five friends abducted them in and sped off in a vehicle. Muhammad Waseem married Saima Masih the day after her kidnapping. Jhang is an area where the majority of Muslims are radical. They believe that if a woman marries a Muslim, she automatically embraces the faith of her husband as a direct consequence. honour Killings Honour killings are still occurring in Pakistan beside a law made in the year 2004 which also provides the perpetrators to bargain with the victims family through intimidation, coercion and threats through the law enforcement agencies. Karo-kari (honour killing) is a tradition whereby a man can kill a woman, claiming that she brought dishonour to the family, and still expect to be pardoned by her relatives. Once such a pardon has been secured, the state has no further writ on the matter.
356
Most of the females got killed innocently due to their males enmity with other tribes, caste, community or some times within families due to many awesome reasons of their male egos! Precise figures are hard to obtain, especially for the more remote rural and tribal areas; but Pakistan is thought to hold the world record in honour crimes. During last decade or so thousands of case registered on Karo-Kari killing legitimate or unlegitimate according to the law enforcement agency the Police. The concepts of women as property and honor are so deeply entrenched in the social, political and economic fabric of Pakistan that once labeled as a Kari, male family members get the self-authorized justification to kill her and the co-accused Karo to restore family honor. The latest of the incidents took place in which five people were killed on the pretext of karo-kari in two different incidents in the districts of Sukkur and Sanghar on April 19 and 20, 2011. Three persons, including a woman, were killed in the village of Moula Bux Mastoi near Kandhra, taluka Rohri on 20th April, 2011. Sono Mastoi had been suspecting that his wife Kaneez Mastoi had illicit relations with two youths of the area. First he shot dead his wife and then went to the house of Rano Bugti and Soomer Bugti and killed them. Police shifted three bodies to the Kandhra police station. Neither the post-mortem of the bodies carried out nor anyone was arrested. While the case was also not registered till late Wednesday evening. A young girl and a boy were killed in the village of Naz Latif near Shahdadpur on Tuesday 19th April. Some unknown killers shot dead Abdul Majeed Kaloi, an 18 year old, and Ms Rasheeda Brohi, a 17 year old girl. Police has handed over the bodies to relatives after a post-mortem. Abdul Kareem Kaloi, brother of Abdul Majeed, lodged a murder case with Shahdadpur police, alleging that his younger brother had been informed by girl`s brother Kareem Brohi that his father Mohammad Sharif Brohi would kill Rasheeda Brohi and Abdul Majeed Kaloi because they had illicit relations. Most of the events take place on the basis of suspicion as well as misunderstandings which flare up peoples honor; and instead of thinking twice they just go and kill the person.
Pakistan
357
12th April 12, Mukhtaran when her husband, Farooq, accused her for having illicit relations with Asif Unnar, a resident of the same village, and tried to kill her. However, Mukhtaran managed to escape and took shelter at her parents house. Next morning, Farooq went to a landlord, Mohammad Hassan Unnar, and told him about the story. Mohammad Hassan immediately summoned a meeting (jirga) of community elders at his house. The alleged karo, Asif, has not been seen since that night and is said to be on the run. Therefore, the jirga ordered that both Mukhtaran and Asif be killed. Another young woman and a man were gunned down in Ajab Lohar village, the village is a district of Jacobababad, Sindh province on suspicion of having an extra-marital affair. Farmer Israr Lohar returned home for lunch when he found his wife Robina sitting with Dargahi Lohar. Incensed at the sight, Israr immediately took out his pistol and opened fire, killing them instantly. He, then, fled from the crime scene. Both bodies were shifted to Garhi Khairo hospital and the accused was still at large till the filing of this report. A very shocking incident in which a 25 year old son killed his 55 year old mother on the pretext of karo-kari took place in Hajano village on 22nd February; the accused then surrendered before the police. Begum Khatoon was sleeping when her son, Hussain Bux Lohar, shot her. Hussain and his friends later threw her body into Sherkot Shakh, situated 50 metres away from the village. The victims husband had gone to the fields. Hussain suspected his mother was having an affair with a man named Gulzar Jaffery. The shameful moment was when Hussain (while speaking from jail) said, I dont have any regrets for killing my mother because she was kari and deserved punishment. Another two shot dead in the name of honour when a man shot dead his niece and a young man in the village of Sharifani, 30 kilometres off Larkana, on February 5, on the pretext of karo-kari. Khuda Bakhsh Chandio shot dead a 28 year old guy named Roshan Ali Chandio in a village street and later killed his 18 year old unmarried niece Marvi who was busy in household work. Police have arrested him and seized a gun from him. He has confessed to have committed the crime and labelled it as honour killing. Relatives of Saima Bibi, 21-year-old woman, are under arrest for allegedly electrocuting her because she secretly married a man they didnt approve of. Police arrested her father and three other relatives after being tipped off by an anonymous caller, said police official Muhammad Ismail.
358
Bibi, an ethnic Baluch, defied demands from her family to marry a Baluch relative and instead ran away about one month ago to the southern port city of Karachi to marry a fellow villager, police official Rao Zahoor said. Her father and several other relatives traveled to Karachi and duped her into coming back home. When she didnt listen to further demands they electrocuted her, he said. Bibis family told police she committed suicide on Friday in their village in the district of Bahawalpur in Punjab, but a medical report showed signs of torture and electrocution on her hands, legs and back, police said. 7. flood and food insecurity Floods are not a new phenomenon in Pakistan. There have been 50 floods in the last 28 years. In each of these calamities, those whose lives were devastated never recovered to the state where they were before the disaster. Those who suffer are always the same people. They are not the well-heeled politicians, generals, bankers and journalists in Islamabad, but the poor and oppressed working masses of Pakistan. Before even a year has passed from flood in 2010, flood hit Sindh province and Balochistan, in addition to the areas affected in 2010. This year, it claimed about 1040 people, directly affected 2.2 millions, 20 millions in overall, collapsed houses of 1.5 million, inundated 4.2 million acres of land. The loss of crops alone is estimated to be Pakistan Rupees 5.6 billion while three millions are still in need of food while some affected were dying of hunger and starvation. Most vulnerable groups exposed to flood and rains were children and women, pregnant women in particular, who are the majority of deaths and the affected. Yet, the government of Pakistan failed to manage emergency to secure peoples lives despite having gone through a catastrophe last year. The government aids for the affected failed to reach the affected due to corrupt bureaucratic system dealing with humanitarian aid. Civil society was not encouraged to associate with the government for immediate and successful implementation of national and international aids. One year ago (year 2010) during the months of July and August the floodwaters that ravaged the southern parts of Pakistan have long receded. Though gone are the makeshift tent camps on roadsides b u t re v i va l o f n o r m a l l i f e a n d livelihood still remain a challenge.
Pakistan
359
Thousands continue a daily struggle to support their families and re-establish livelihoods. As a new monsoon season was in full swing, last years trauma and economic pain still linger. While last years victims struggle to recover, others now worry that changing world weather patterns will cause renewed flooding. The international donors provided aid through the National Database and Registration Authority who is in charge of distribution of WATAN card, and reportedly set up the accountability to transfer the fund to the government account and conducted a survey on the affected families since July. However, many affected families made a number of complaints that they have not been given a card. One affected family living in Muzaffargarh district testified that the local Patwari (land record officer) had asked for a bribe to include their names in the list of people eligible for compensation under WATAN card. Me m b e r s o f t h e Mu z a f f a r g a r h b a r association found that the floods caused avoidable destruction in the district since the decision to breach embankments was monopolized by local influential to protect agriculture land in their possession, including occupied state land. The compensation money from the government has been unevenly distributed. Widows and female-headed families faced discrimination in distribution of Watan cards (relief money) and rehabilitation programs. Despite tall claims the Government has failed to decrease the rising vulnerability level of poverty among women after one year. While donors promises of some $600 million in aid have not arrived. As a result squeezing livelihood options coupled with price hikes are impacting the poor families and women in worst manner. Other monetary aids by the provincial government did not properly reach the affected either. International donors were allegedly afraid that the fund would be misused without reaching to the affected as the government officials are highly corrupt and the state is militarized. These rains are recorded as being the worst to ravage Sindh in last 200 years and have erased hundreds of the villages while depriving millions of their homes, belongings, savings, beloved ones and lives forever. Roads and farms are
360
submerged in water, putting estimated relief, rehabilitation and reconstruction costs at billions of Rupees. Those entrapped and displaced had been suffering acutely due to lack of boats, helicopters, ground transport, shelter, food and clean water. Its the human suffering that stares one in the face - collapsed houses, desperate faces, people running after relief materials, scores of families entrapped on roofs, huddled in temporary shelters and destruction of standing crops on lacks of acres of land. All the districts and most of the towns and villages of Southern and Northern Sindh province have been badly hit, dozens of towns including Badin, Mirpurkhas, Jhudo, Nawabshah, Khairpur, Hyderabad, Dighri, Tando Bago, Sanghar, Thatta, Kaacho, Dadu, Kashmore, Tando Muhammad Khan, Kandhkot, Johi, Daharki, Omarkot have been inundated and damaged severely, more than 2 million helpless people are still encircled by water, hundreds of villagers including women and Children have drowned and disappeared, houses, domestic animals, vehicles, fish ponds, tubewells and crops have been completely damaged. Mr. Muhammad Usman (38 years old) living in ward 7 of Moro city in Sindh province testified that his house has collapsed on September 30, after flood and continuous heavy rain, and his wife and daughters got injured. He could not manage to reconstruct the house for his family, which is supposed to be assisted by the fund that provides Pakistan rupees 20,000 and food items through Watan card. He had to sell out his inherited house instead for medical treatment for his families. His family has not received the monetary aid, 50,000 Pakistan rupees for the injured either. At present, his family rents the house and finds it difficult to manage proper meals merely from his daily wage. No officials and assembly members visited the affected area in Moro city. Financial assistance for the agricultural loss did not target the actual tillers tenants but reached to the landowners. It exposes government failure in ensuring food security of the farmers who are mostly tenants in Pakistan, proving that the government policy for remedy for the affected by natural disaster such as flood or drought does not reflect its constitutional principle and the international human rights laws. The Article 38(a) of the Constitution of Pakistan says, The state shall secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of
Pakistan
361
living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants. In many villages, the affected repaired and rebuilt their houses on their own, from the material retrieved from the debris. On the other hand, many were unwilling to leave the relief camps as they had no resources to rebuild their houses being afraid that they might be deprived of what they receive in the camps, which is the only that they depend on. Women and floods The devastation caused by the 2010 floods was the worst in Pakistans history; almost 2,000 deaths, nearly 20 million displaced or affected and one-fifth of the country went under water. The deluge inflicted unprecedented catastrophic damage on a country already reeling from the effects of US-led war on terrorism. A year later, the picture is dismal. Their lost possessions have been replaced at higher costs or not at all. Many marriageable girls who lost their dowries and valuables are making a fresh start to make it again to get marry. To address the issue a new culture of collective marriages is gaining ground, which was earlier unknown to these areas. Unfortunately, the phenomenon is giving rise to another social trend of early girl marriages. Though the custom of girls early marriages is already present in Pakistan however, the post flood conditions have given new impetus to this trend. Another particular problem is womens health, which is generally ignored. Although during the floods, pregnant women had the opportunity to avail themselves facilities of ante-natal and post natal care, provided through emergency medical camps, but the moment the relief phase was over, these women were left in conditions, much vulnerable to reproductive-related diseases. Moreover, women and children are also facing nutritional problems on account of non-availability of proper healthy diet. Those who lost their livestock are in fact deprived of milk and a permanent source of livelihood.
362
The compensation money from the government has been unevenly distributed. Widows and female-headed families faced discrimination in distribution of Watan cards (relief money) and rehabilitation programs. Despite tall claims the Government has failed to decrease the rising vulnerability level of poverty among women after one year. While donors promises of some $600 million in aid have not arrived. As a result squeezing livelihood options coupled with price hikes are impacting the poor families and women in worst manner. floods-disaster affected children It is a bitter fact that Pakistan stands at the upper echelon on the index of food insecure countries. Frequent disasters in past few years have enhanced the importance of adequate food for the vulnerable population, notably children; however, a clear lack in policy formulation process, resources and implementation mechanism have made it difficult to protect and promote childrens right to adequate food, especially in disaster situation. It is confirmed the death of at least 220 people, including children, during the heavy rains in just three months of 2011. Additionally, media and government agencies mentioned that torrential rains have affected 5 million people, including thousands of very little children, across the Sindh province. However, it is observed that due to huge displacement the relief camps were insufficient to accommodate the affected population. The food, drinking water and medicines are the most urgent required things for the affected population. The World Food Program (WPF) has explained that food security exists when all people, at all times, have physical and economic access to sufficient, safe, and nutritious food, and to meet their dietary needs and food preferences
Pakistan
363
for an active and healthy life. However, increasing food prices and peoples decreasing purchasing power are certainly very valid in disaster like situation the phenomenon of food shortage has become much intense and affected the most vulnerable segment of the population, notably the children. Mai Nooran from Tando Allahyar, Mirpurkhas was traveling on a donkey cart along with her husband and five children. She said that severe rain has forced her family to vacate their muddy house and take shelter in any government relief camp. Mai Nooran said that due to severe weather availability of basic food for her five children, two boys and three girls, was the main cause of her decision to take refuge in relief camp. I was really shocked to see her very week children and one child, named Azam, told that, in normal days my mother gives me food twice a day but in present disaster like situation we have been out of food for last three days. A recent survey conducted by UNICEF in interior of Sindh province revealed an acute malnutrition rate of 23.1% among children between six months and five years. The rate is well above the WHO emergency threshold of 15%, which requires an urgent humanitarian response. Due to huge number of children in relief camps, the authorities generally ignored to provide adequate nutrition and balanced diet to children of all age groups.
364
PHILIPPINES
IN a fLawEd SyStEm of juStIcE, tHE SocIaL & SyStEmIc ImPLIcatIoNS arE IrrEParabLE
The situation of human rights this year has seen little or no change in terms of the nature of the violations that are taking place--extrajudicial killings, forced disappearance, torture and displacements due to armed conflict. Here, we observe that promulgation of policies on human rights and the strengthening of the legal framework for the protection of rights are doomed to fail if the institutions of justice responsible for the implementation of rights continue to suffer endemic institutional defects. The cases documented this year were not exceptional cases. They are rather evident of the ongoing, systematic and widespread violations of human rights that continue to thrive regardless of who sits in power. These repetitions of violations, in addition to the apparent absence of conclusion of the previous cases, are a manifestation of the countrys inability to afford even the most elementary form of the protection of rights of its own people. The dominant presumptions that the change of leadership--from the old political order to the present ones and the latters exercise of political will-as prerequisite to the effective implementation of rights are nothing more than empty rhetoric. They were doomed to fail because they do not have any semblance to the practical realities of the Filipinos lives. The presently absent, if not non-existent, discourse on the severe negative implications of the flawed system of justice as a core problem on protection of rights has become an obstacle in the promotion and protection of rights. By failing to examine and critique the ill-functioning of the system of justice, as the main obstacles in the protection of rights because of the nature of how it functions contrary to established normative framework, has further pushed the country whose elementary investigations, prosecutions and adjudication of cases in courts, have already lost their real meaning. The notion of seeking remedies from institutions of justice hardly operates in reality.
Philippines
365
In this report, we will examine the character and behavior of the institutions of justice in addressing the human rights problems of this year. We will examine whether the establishment of a new political order, the exercise of political will and the strengthening of the legal framework in the protection of rights is itself sufficient to deal with deeply-rooted and systemic problems within the institutions that ought to protect the rights. Prosecution of cases & the human rights discourse The importance of studying and critiquing the character of how the police investigate, the prosecutor prosecutes and the judicial bodies hear cases, is hardly the subject of discourse as having implications on the protection of human rights. This is evident by repetitions of, if not becoming rituals, of criticisms and condemnation on cases of violations, rather than the discussion on how possible these violations persisted. The comment by the Task Force 211 of the Department of Justice (DoJ) in its latest report of the inability of the government to present supporting evidence to secure a conviction1 must be taken seriously. Here, we observed that unlike in the past, at present there is recognition of the difficulties in prosecution of cases of extrajudicial killings of human rights and political activists; and journalist; however, mere recognition of these problem by the very institutions legally obliged to pursue prosecution of cases had little impact on finding practical solutions to prevent, if not completely stop the phenomenon of extrajudicial killings. What we see is that the very institutions of justice obliged to pursue prosecution to punish perpetrators, particularly members of the security forces, is trapped between their will to find the solution to address the extrajudicial killings and the practical difficulties of doing so. In their report, one of the problems the task force had cited is difficulties in securing the testimonial and material evidence sufficient enough for the case to stand on trial. This resulted to negligible result of cases that they were handling-for instance of the 200 cases, only four resulted to conviction, 20 are still pending and 16 were dismissed by the court. In their defense, the Task Force 211 argued that without the active support of society and an entire focused justice system, (its) mandate will proved to be way beyond the capabilities.
Task Force 211: Review of mandate and accomplishments, November 2007 to July 2010
366
Therefore, in the prosecution of cases, the will of the prosecution and the political will of the executive to whom they are accountable to as sources of their action, must also have support of adequate structures of the institutions of justice. In the case of how the justice institutions functions in the country, the will of the prosecution is hardly complemented with an adequate structure to make it work. For example, in most criminal cases the obstacles in prosecution is the lack of or absence of witnesses. They are too frightened to testify due to continuing threats, fear of reprisal and uncertainties due to endemic delays in trial of cases. The court still heavily depends on oral testimonies to hear cases. Here, to compliment the prosecutions will there must be an adequate means to encourage witnesses to come forward. There must be an adequate protection, security and support of their person and their family sufficient enough for them to last in a perennially lengthy and tedious trial. At present, the Witness Protection, Security and Benefit Act (R.A. 6981) is structurally weak. It does not provide for an emergent interim protection for witnesses prior to approval of their application for admission in the program. The murder of Suwaib Jessie Upham, a potential witness to the Maguindanao massacre, in June 14, 2010 prior to his admission in the witness protection program is evidence to this. Uphams situation prior to his murder is no different to witnesses and families of victims of extrajudicial killings this year. Take the case of Gerry Ortega,2 a broadcast journalist and mining activist, who was murdered in Puerto Princesa City in January 24, 2011. The murder case for his death against the alleged mastermind, Joel T. Reyes, a governor of Palawan province, who was accused by a person whom he allegedly paid P500,000 pesos to murder Ortega, former Marine Sgt. Rodolfo Bumar Edrad, has yet to reach in court for trial. Edrad surrendered to the authorities to testify against the mastermind. The prosecutors at the Department of Justice (DoJ) has yet to conclude the reinvestigation, after it was dismissed during the preliminary investigation to determine whether or not Reyes had a case to answer in court. Therefore, whether the mastermind and the perpetrators of the killings are identified or not in reality this does not matter. It is evident that the prosecution department takes action depending on who the victims are, who are the accused and what political implications it would have on the
2 AHRC Statement No. 012, 2011,Murder of Gerry Ortega, an anti-mining activist, cannot be passed off as a robbery, 25 January 2011
Philippines
367
government. Here, the will of the prosecution to pursue prosecution of cases in court is qualified. The key witness, Edrad, may have had protection after he was admitted in the witness protection program; however, when the prosecution--the institution that protects him given the value of his testimony-in reality does not give them meaning to ensure the possibility of prosecution rendering the protection he had from them ineffective. This explains why witnesses to the extrajudicial killings, force disappearance, torture and the threats against human rights and political activists; families of the victims who pursues prosecution of cases in court to seek legal remedies to the violation committed on their loved ones, hardly have confidence that the system of justice operates in affording remedies and justice to the victims of violations. Those who decided to pursue the prosecution of cases, like the family members of Ortega and in the case of Maguindanao massacre, had to endure the realities that the system of prosecution hardly operates in their interest. Apart from providing physical security to witnesses, the program does not provide adequate resources to witnesses and their families in the event of prolonged trials. The endemic delays of cases in courts also rendered the protection program for witness inoperative. Those admitted into the witness protection program would have to endure the restraint of their movement, contact with the outside and waiting until they could testify without other means of personal development. The legislative body, however, does recognize the need to introduce reforms and amend the existing law governing the protection of witnesses; however, the fundamental requirements in order to ensure the program functions to the point that is needed from it were not included in the proposed amendments to the law. The proposals of the two bodies--the Senate (Senate Bill No. 2368) and the Congress (House Bill No. 15)--were only to perpetuate the testimonies of the witness, to prepare in event that witnesses would be murdered; and to provide psychological and trauma counseling, to ensure that the witnesses are supposedly in their state of mind before they would have to testify or make their testimony. The perpetuation of testimonies and the provision of counseling do not address the core problems as to why witnesses refuse to come forward. These are rather a topical solution to a deeply-systemic problem.
368
Irreversible impact of political killings & the murder of criminals After a decade of widespread and systematic extrajudicial killings targeting political and human rights activists; and the murder of suspected criminals, the irreversible damage that has been left to the Filipino society has been immense. The inability of the government to afford any sort of remedies and carry out lawful punishment, particularly against those perpetrators who are agents of the States, has left the families of the victims and the society without closure. The absence of closure to this phenomenon had evolved into ongoing distrust and lack of confidence to pledges the government has made to eliminate extrajudicial killings. An already distrustful society, which is a byproduct of the governments inability to ensure the protection of their rights and of making remedies available to them, would be even more difficult to encourage for active support, as what the Task Force 211 had earlier expressed as limitations to their work, in any quest for remedies. The unresolved killings--whether they are political in nature or not--has resulted in society being apathetic and indifferent; nor because they are not aware of what was happening around them or not wanting to find solutions to the phenomenon of killings ravaging their communities, but the absence of any sort of protection and remedies from what they see has developed this mindset. In cases of politically motivated killings, the present norm is gradually becoming not a protest against the murder of an individual who was helping others pursue cases in court, expressing their opinion to criticize the ills and corrupt practices of government officials or anybody fighting for a cause, but rather a question on why would the person choose to continue doing his work despite knowing well the risk. In cases involving murder of suspected criminals, the innocence or guilt of the victim no longer matters, but the justification for his murder is rather a presumption of guilt in committing a crime. While the nature of the targeted and politically motivated extrajudicial killings, which are deliberately planned to silence a person, is grave in itself, particularly when it involves security and often draws controversy forces; however, mostly the prosecution of these cases suffers identical difficulties to cases of murder of suspected criminals. Of course, depending on the background of the victim and his influence, and the ability of his supporters to protest, pushing the government to the wall to do something, some sort of redress can be done. But largely, this phenomenon of extrajudicial killings in reality is part of the way of life.
Philippines
369
The society, however, never ceases to be shocked when killings of activists advocating for the rights of the poor and the oppressed are done, priests advocating for the right of the ethnic minorities and opposing mining operations, environmental activists advocating for the preservation and protection of natural resources who are in conflict with local politicians and warlords, the murder of journalists due to their harsh criticism, amongst others. These types of extrajudicial killings that have since been part of the Filipinos way of life that merely repeats itself in the course of time. The documented cases of extrajudicial killings this year are no different in terms of how they were executed, their motivation of killing and the lack of judicial remedies once taken to court for prosecution. Apart from the irreversible damage to the social mindset and way of life, the decades of extrajudicial killings wherein those targeted are human rights and political activists, the very persons involved in documenting human rights violations, the recording of violations were immensely affected. Where there are person who could document, one has to endure ongoing and real risk to ones life; where documentation has become difficult because, the exposure of the real picture of human rights conditions, is a huge challenge. When there is no ready documentation of cases, this do not necessarily mean that such incidents-extrajudicial killings, forced disappearance, torture, massive displacement due to armed conflict and demolitions--did not happened, but rather those who are trained and supposed to document these cases have themselves becomes victims. Local politicians, warlords assuming control: With the failure of the institutions of the government to afford remedies and carry out lawful punishments, the people and the society in these places turned to the local politicians, some of whom are warlords in their communities, for protection and remedies as an expedient solution. These warlords then effectively assume control of all aspects of the peoples lives. What happened in the cities of Davao, Digos, General Santos and Tagum, in Mindanao; and in Cebu, in the Visayas, are proof on what could happen in communities when the governments institutions become detached from the actual realities of the people in these geographically fragmented societies. As most of the people in these places are fully aware, the systematic vigilantestyle extrajudicial killing of persons, including minors, over suspicions of committing crimes has been occurring for over two decades before it became the object of investigation by the Commission on Human Rights (CHR) in March 2009.
370
In Davao city it was concluded that The killings were mainly attributed to the shadowy Davao Death Squad (DDS), the same group that the CHR investigated for the deaths of more than 1,000 persons, mostly drug suspects from 1998 to 2009. 3 However, two years after the public inquiry was conducted, to our knowledge none of the perpetrators in these vigilante-style killings have been convicted in a court trial. Apart from these symbolic hearings and demonstrations, of late organized by the CHR in Davao itself, purposely to principally aimed at stirring public vigilance no conviction of perpetrators have been seen. The progress of the CHRs investigation and status of the recommendations after their conclusion of their public inquiry in March 2009 is also yet to be known by the public. The arrogance of the local political leader, particularly the Dutertes in Davao city, by its distortion of their core to their obligation to protect the right to life of the people in their community has continue to maintain the status quo. Thus, with the apparent support and consent by the locals, as evidenced by their keeping in power of the same political clans, the acts of commission or omission by the Dutertes in relations of vigilante-style killing, is beyond the reach of any sort of accountability to their own people. It means, whether or not there are measures to prevent these killings, investigations results to remedy and conviction and to afford protection to persons facing threats, they no longer matter. The local discourse on human rights protection in these communities is reduced to these politicians own interpretations than discourse on legal obligation. They are in direct control. However, despite the enormous amount of documentation as to how possibilities of remedies are deprived due to systemic defects in the process of investigation and prosecution of cases involving vigilante-style killings in places identical to what happened in Davao, this practical knowledge is yet to transform into social discourse in order to develop ways how to effectively deal with the phenomenon of, if not the already accepted norm and habit of, killing people without fear of any sort of prosecution. The social public discourse did not depart from or remain confined to deeply flawed presumption that the institutions of justice, on which the people seek to obtain remedies, function in a manner of being capable of providing justice to victims of extrajudicial killings. This presumption, however, disregard the practical realities as to how, in the daily reality, the investigation, prosecution
3 Philippine Daily Inquirer, CHR holds rally vs summary killings in Davao, 28 July 2011, see: http://newsinfo.inquirer.net/32377/chr-holds-rally-vs-summary-killings-in-davao
Philippines
371
and the adjudication of cases, actually happens in these public institutions. flawed investigation is obstacle to prosecution Apart from the new cases documented, this year we also examine how the police and the Office of the Ombudsman, the government body responsible in prosecuting security forces who are accused in violations; conducted its investigation and prosecution of cases. The role of the policemen, by conducting its investigation; and the Ombudsman, on deciding whether or not those accused have the case to answer is very important. The boundary is very thin between what occasion the policemens findings of their investigation are credible in the prosecution of security forces who were of their same uniform; and, how the Ombudsman performed its role to investigate, like on evaluating the police and the prosecutors investigation report, to ensure the possibility of remedies to victims. Here, we analyze how the Ombudsman functions in conducting its investigation over serious allegations of violation against the security forces. Systemic delays in investigation: The Ombudsmans decision not to pursue charges against court personnel, after almost four years of its investigation, for deliberately misinforming an NGO staff helping the families of the victims of extrajudicial killings that the arrest order for a military sergeant, Jerry Napoles and his accomplice, accused of murder had not yet been issued in July 2006, because it has become moot and academic4 is symptomatic of how excessive delays in investigations, as a result of their neglect and incompetence, effectively denies possibilities of remedies. The court personnel involved, who were responsible for disinformation, which resulted to the delay in the arrest of the soldier to be arrested for murder, were never held to account. The policemen, who also neglected the execution of the arrest resulting to the delays in the trial of the case, have not been held to account. The soldiers arrest was important because the trial could not proceed unless they are presented in court. Even when the Ombudsman completes its investigation on a case, after say seven months, it nevertheless excuses itself from any responsibility to investigate. The case of three torture victims, Charity Dio, 29; Billy Batrina,
4 AHRC Urgent Appeals Case No. 039, 2011,Ombudsman investigated public officers for years without a case filed, 9 September 2011
372
29; and Sonny Rogelio, 26; Talisay, Batangas on 23 November, 20095 are evidence to this. The Ombudsman did not investigate the allegations of torture arguing that it was within the jurisdiction of the Commission on Human Rights (CHR) to investigate torture case. However, by invoking this argument, the Ombudsman ignored its legal obligation under the Ombudsman Act of 1989 that requires them to investigate the aspect of civil and criminal liability (of state agents) in every case where the evidence warrants in order to promote efficient service by the Government to the people of a complaint. Here, the Ombudsman has indeed completed their investigation but it result to nothing. While the Ombudsman claimed no responsibility to investigate, the institution--the CHR, whom it implored to have the legal obligation to do so, also did nothing. Even the simple matter of posting their completed investigation report, say from the Philippines to Hong Kong on the case of ongoing threats on Enrico Estarez and his family6 in January 20, 2006, took them four years to do. This may be considered an administrative matter; however, its impact on the case was irreversible. By failing to ensure the copy of their completed investigation report reached the complaining party, in this case the AHRC, it denied any sort of possibility to question the content of the report. Here, after four years the family involved could hardly be located to be informed of their investigation report; or, for them to comment on their present situation. The Ombudsmans endemic delay to conclude its investigation, whether or not the accused who are agents of the State have the case to answer, is not exceptional. The Ombudsmans decision to prosecute the policemen involved in the torture of five victims, collectively known as the Abadilla Five7, 14 years after the incident happened is evidence to this. With the case was finally filed in court for prosecution, two of the accused are already dead. Here, even after the complaints are filed in court, there was no substantial progress to the hearing of the case--which is typical to the status of cases in courts.
5 6 7
AHRC Urgent Appeals Case No. 036-2011, No investigation to complaint of torture filed one and a half years ago, 15 July 2011 AHRC Urgent Appeals Case No. 035-2011, Ombudsman did not investigate cases of threat and torture on its own, 30 June 2011 AHRC Campaigns, Abadilla Five: Convicted without real review, see: http://campaigns.ahrchk.net/abadilla5/
Philippines
373
Failure to investigate: Similarly, on the case of Enrico Estarez and his family even when Ombudsman knew full well of their power to investigate on its own allegations of wrongdoings committed by the agents of the State they did not do so. In his case, despite having identified the soldiers responsible for threatening him, forcing him to leave from his place for fear of his life; however, the Ombudsman did not inquire on its own but rather depended heavily on the questionable investigation by the CHR, to terminate the case invoking that CHR has concluded that what transpired was to his own liking and decision. Similarly in the case of the Talisay 3 mentioned earlier, the lack of or absence of adequate investigations into serious complaints of torture, illegal arrest and detention by the police and the soldiers, is a common occurrence. In their case, too, despite repeated appeals and open letters addressed to the CHR asking them to investigate the allegations of torture, to our knowledge none of those appeals were acted upon. Because the CHR and the Ombudsman failed to investigate, the torture victims were effectively deprived any possibilities of remedies of any sort. No charges for violation of Anti-torture Act of 2009 were filed. They had to endure the trial of their case with evidence on them that was questionable, if not taken by way of torture. In another case, the Ombudsman completed its investigation into the case of torture and disappearance of a farmer, Ambrosio Derejeno8 in September 13, 2011, in a month. The speed of its investigation in this case, however, did not mean the Ombudsman was in reality prompt in concluding their investigation; however, they are rather quick in getting the case they were investigating out of their responsibility once they find legal justifications in doing so. Here, the Ombudsman, as usual, depended heavily on the report of the CHR without performing their power to review the investigation reports submitted to their office. In concluding their investigation, the Ombudsman ignored concerns to the exclusion from the prosecution of Arbitrary Detention, under Article 124 of the Revised Penal Code (RPC) the commanders of the perpetrators, namely Lt. Col. Paloma of the 63rd IB and Lt. Col. Narciso of the 20th IB in the CHRs report. Under the legal procedures, the Ombudsman had the power to approve or dismiss the recommendations for prosecution made before them by the CHR and the Department of Justice, whether or not a case should be filed in court; however, their exercise of their power is completely inconsistent in most cases.
8 AHRC Updated Urgent Appeals Case No.031-2011,Ombudsman abdicates its power to review, 10 June 2011
374
Here, while they could have reviewed the findings of the CHR or, on its own conduct their investigation rather than depending on the investigation reports that the CHR had produced, but apparently they did not do so. Police are law breakers, not law enforcers The nature of how the police functioned, as shown by the cases documented this year, has reaffirmed what we have known long before. The police arrest and detain persons disregarding any requirements of legal procedures, they investigates cases--motivated not by their legal obligation to afford remedies to victims of violations--but rather their expediency, reward or purely convenience depending on which suits them; their use of power to arrest, detain and as an aide to prosecute any lawbreakers is in reality not likely to upheld rule of law in real sense. The notion that the role of the police force is to serve & protect the people is deeply flawed and unrealistic; nevertheless, the only purpose that serves is to remind the people, who remain subject to its power and control, of its inherent complete contradiction. Not to serve and protect: This observation is not merely a simple criticism but rather the conclusion by the parents of John Paul Nerio9, a 17-year-old student tortured inside the Women and Childrens Desk office at the local police in Kidapawan City in December 11, 2011. It took him three months before he disclosed his torture to his parents. Nerio was illegally arrested, detained, he was questioned without counsel, his parents were not informed of his arrest and he was tortured over the false allegation he was among those involved in a fight at a bar. He happened to be at the scene where the fight happened, but was never involved in the fight. When his parents pleaded to the superior officers of the policemen, their request to have their complaint investigated were ignored. The police instead questioned them as to why their son was still out at late night, they rejected their request to have the policemen involved identified, investigated and imposed with sanctions upon, obviously in defense of their own colleagues. It was only after appeals from the AHRC that their complaint of torture was investigated, not by the local police, but rather by the district Public Attorneys Office (PAO) and the regional office of the Commission on Human Rights (CHR) in Cotabato city.
9 AHRC Urgent Appeals Case No. 063, 2011, Torture of a 17-year-old boy at the Women and Children Desk at a police station, 18 March 2011
Philippines
375
But even the PAO and the CHRs investigation reports were problematic. Instead of prosecuting the policemen mainly for the violation of the Antitorture Act of 2009, the public lawyers sued them for violation of Special Protection of Children Against Abuse, Exploitation and Discrimination Act (R.A. 7610). The AHRC had to appeal from them to consider including their complaint charges for violation of the Anti-torture Act against the accused. Another complaint was also filed for abuse of authority at the Peoples Law Enforcement Board (PLEB), a citizens complaint mechanism against members of the police force. The result of these, however, was no longer known. When the administrative complaint was heard, the accused policemen also intensified its threats, intimidation and bribery offer to the witnesses and the families of the victim. The victims family was forced to withdraw the complaint against policemen in exchange of monetary settlement due to threats. In two other cases, the continued detention of two persons who were arrested in place of the real accused, namely Ramon Dadulo10, whom police illegally arrested in Glan, Sarangani, in place of the real accused in the Maguindanao massacre in November 10, 2010; and Daud Ali Manampan Rahim who was arrested in September 22, 2011 in Pikit, North Cotabato, demonstrates the outright disregard to due process in making arrest, detention and prosecution of persons in their custody. Dadulo is still in prison despite strong evidence that he was not the same person the policemen were to arrest. His identity is different from the real accused in a photograph that the police had, his defense of alibi that he was not in the massacre when it happened and testimonies by the persons known to him are too strong to be ignored to logically justify that the real accused and him are the same person. Nevertheless, he has not been released and remains in jail, supposedly to wait for the trial of his case. In Rahims case, the police did not question the legality of his arrest by the soldiers. Under the law, only the police have the power to legally arrest, unless the offender was in the act of or escaping from the crime he had just committed; however, in arresting Rahim this condition did not exist but the soldiers arrested him ignoring any notions of legality and due process. The soldiers explained that they arrested Rahim as he has had existing arrest order in connection with a bombing incident. Here, nothing in the Revised Rules of Criminal Procedure justifying conditions for warrantless arrest could apply,
10 AHRC Urgent Appeals Case No. 195, 2011,A man is detained for Maguindanao massacre in place of the real accuse, 7 October 2011
376
thus, Rahim could have been released when turned over to the police for custody but they did not do so. There is also a gap between what is stated as a policy of the police establishment, like the statement of Director General Nicanor Bartolome, chief of the Philippine National Police (PNP), that the (PNP) are strictly maintaining a rights-based policing system with all police personnel11 to the actual practice of the policemen the country. Thus, PNP chief Bartolome claims that promotion of rights-based policing is a norm in the service are likely to stagnate as a norm unless there are substantial proofs that those policemen responsible for violations are punished. In this same interview, while the PNP chief Bartolome claimed that the police establishment adheres to maintaining a rights-based policing system but apart from the usual orders that police personnel under instruction to fully observe police operational procedures Bartolome did not elaborate on how accountability is upheld and the legal application of the doctrine of command responsibility within the police establishment are enforced. This rhetoric of police adhering to norms and standards in the protection of human rights is typical, but their application in reality, as explained this report, is far from reality. Police functions subordinate to military: Soldiers implementing arrest order sor usurping the rudimentary police power, like investigation of crimes, has been a common practice not only in conflict areas but also in heavily militarized communities, where the police basically lost its control. In these places, there is no real police force civilian in nature that is functioning in its real sense. In communities ravaged by war, decades-old insurgencies, military presence on pretext of restoring law and order and pretext of fight against terrorism, the role of the military have found its legal justifications. The legal justifications on how the soldiers should be allowed to perform within the legal framework of the policing that is civilian in nature is done, for example by the local executives who has influence, control and the authority in part on the local police and military should function, signing memorandum of agreements to create join task forces between the units of the military and the police forces. This merging of military and the police has since, for decades
11 Journal Online,PNP maintains rights-based policy system, 14 November 2011, see at: http://www.journal.com.ph/index.php/news/national/17440-pnp-maintains-rights-basedpolicy-system
Philippines
377
blurred the limitations and role of the military and police should be. The existence and operation of joint forces is the prevailing standards in Mindanao. In heavily militarized communities, there is no police that is civilian in nature-whether they do function according to their legal obligations or not--that exist to operate, but has become subordinate to the military. The police had virtually yielded its authority to soldier to enforce laws in communities, supposedly legally within their area of jurisdiction, but are in reality controlled by the military because of their heavy presence. Here, the discourse as to whether the soldiers are subordinate to the police is pointless. The illegal arrest, detention and torture of Abdul-Khan Balinting Ajid12, who was arrested by soldiers in Sumisip, Basilan on July 23, 2011 is evident to this. When he was arrested, the soldiers did not have arrest orders with them, did not explain to him the reason for his arrest and tortured him by pouring gasoline in his body to set him on fire. To justify his arrest and his continued detention, the soldiers invoked that the person mentioned in a warrant of arrest, which was different to Ajid, was him. In the militarys custody, he was paddled using a piece of wood on his back, stomach and shoulders; he was kicked about the head, not given any food, blindfolded, repeatedly punched and kicked, the neck of a bottle was inserted into his anus four times before he was set on fire on three occasions after his torturers poured gasoline on his head down to his lower abdomen. In Ajids case, his continued detention at the provincial jail in Basilan, despite his identity being different from the real accused, Kanneh Malikil; is devoid of legal procedure. He was remanded to jail for safekeeping purposes without any charges filed in court in his name, his conclusion of his supposedly urgent petition for habeas corpus was deliberately delayed and none of his perpetrators have so far been charged in court for violation of the Anti-torture Act of 2009. The military establishment, apart from disclosing some of the names of the soldiers who were involved in torturing him, routinely refused to divulge the task organisation, the list of names of soldiers who took part in the operation, from scrutiny on pretext of confidentiality but in effect was to cover-up their men. Despite knowing this full well, too, the police establishment who has territorial jurisdiction where the torture of Ajid took place did nothing. The police, instead of investigating on its own the crime of torture that the soldiers had committed, did nothing. The investigation and identification of the soldiers
12 AHRC Urgent Appeals Case No. 157, 2011,Soldiers torture a man and set him on fire, 8 September 2011
378
involved in torture of Ajid was firstly left to his legal counsel; or, to the victim and his witnesses himself in proving that he was tortured. The CHR, who also investigated the case, strangely though put the burden in identifying the torturers on the victim and his witnesses when one of their investigators argued that: Ajids camp failed to produce other witnesses that could corroborate and pinpoint the three military personnel as responsible for torturing him.13 In another case, when torture victim Asraf Jamiri Musa, a 17-year-old Education student, his illegal arrest and detention in Lamitan City, Basilan on June 23, 2011, was a result of a joint police and military operations. The military and police accused him of being a member of Abu Sayayaf, an illegal armed group involved in kidnap-for-ransom. They also planted evidence of explosives on him and forced him to admit his membership to the group.14 His wrists were cuffed behind his back and he was blindfolded with a handkerchief; his ankles were bound with rope and his head wrapped with cellophane. He was then repeatedly punched in the stomach and left side of his body. On three occasions he was submerged in a water-filled drum. The soldiers repeatedly threatened to kill him if he did not admit his membership with the group. In another case, the local policemen also did not question the soldiers when they turned over to them a visibly injured Jedil Esmael Mestiri, a 27-year-old torture victim, whom they also illegally arrested in Lamitan City, Basilan June 26, 2011 on allegations he was involved in the bombing incident in Lamitan City in 2010.15 He was also questioned about the incident of kidnapping of an engineer, while they repeatedly punched his chest. In custody, he was not given food to eat for breakfast, only water to drink. Irreparable damage of military intervention: The systematic, widespread and routine intrusion by the military on rudimentary police functions did not only undermine the supposedly civilian nature of the policing system but rather have severe implications in terms of law, criminal procedures and notion of supremacy of the civilian over the military. This practice has been for years tolerated and consented by variety of legal agreements and memorandums
13 Philippine Daily Inquirer, CHR report: Torture and disappearances attributed to security forces continue in Mindanao, 12 November 2011, see at: http://newsinfo.inquirer. net/92859/chr-report-torture-and-disappearances-attributed-to-security-forces-continue-inmindanao 14 AHRC Forwarded Urgent Appeal Case No. 015-2011,Torture of a 17-year-old boy falsely accused of being a member of a kidnap-for-ransom group, 7 September 2011 15 AHRC Urgent Appeals Case No. 174-2011,Investigate two separate incidents of torture in Basilan, 23 September 2011
Philippines
379
between the military establishment, the police and the civilian government, have already become an acceptable norm. At present, in communities where military presence is heavy, it is meaningless to argue that the police should be law enforcers and the military is subordinate to it because in reality it is otherwise. Of late, the renewed hostilities between the Philippine Army (PA) and the Moro Islamic Liberation Front (MILF), a rebel group in Mindanao, in October 18, 2011 in Al-Barka, Basilan province, was prompted by soldiers usurping what should have been the role of policemen. It was reported that the nineteen soldiers on a mission to arrest those behind the 2007 ambush of government troops in Basilan 16 , particularly Dan Laksaw Asnawi, who the MILF confirmed was an MILF commander under the 114th Base Command. In this renewed fighting, 19 soldiers were killed. Apart from the illegal role military took in conflict areas, it has also become their habit to exercise control by means of military authority in communities, be they in urban or remote areas, they consider as their target areas for their counter-insurgency operations. In these areas, for example in pineapple plantations operated by Dole Philippines Inc., also known as Dolefil, in Polomolok, South Cotabato, the military are used virtually as private armies of these private firms to protect their interests on their pretext of ensuring the security. Here, soldiers summons and questions plantation workers over allegations they are engaged in illegal activists of the communist rebels, but in reality designed to suppress legitimate union activities that threatens the firm the soldiers were to protect. The use of soldiers, like their routine, widespread and illegal practice of summoning plantation workers and union leaders, in remote villages effectively harasses and intimidates them in carrying out their legitimate union activities, has had severe damage in communities and work places where soldiers had heavy presence. In some plantations areas, factories and mining activities with support from the government, soldiers are deliberately embedded to spy on and monitor the activities of workers and the villagers to ensure that they do not threaten the operation of these private firms. The militarys intervention and role in these types of activities had found their legal justification on counterinsurgency operations.
16 Philippine Daily Inquirer, 10,000 cant go home yet in Al-Barka, 14 November 2011, see at: http://newsinfo.inquirer.net/93895/10000-can%E2%80%99t-go-home-yet-in-al-barka
380
This may happen in urban, remote, conflict area and even in places--in which presence of the military should have been very unlikely--like inside shopping malls, the military establishment had found its justification to justify their presence and operations. In the countryside, it is a common scenario in which passengers of public transport, like buses, had to get off, including those carrying children, for routine inspection in every checkpoint and military detachments along national highways as possible. Often, one would notice that soldiers who conducts the inspections inside these buses are visibly confused as to what he was looking for or inspecting about from the passenger; however, it is presumed that he was looking for explosives and person carrying firearms who possibly potential of carrying out attacks. Not only along the highways and in communities, military presence are also seen in bus terminals where passengers would have to open their luggage for them to inspect, before they are allowed entry in these terminals. This role should have been performed by police personnel; however, in a country with long history of military intervention and usurpation of authority over the police and the civilian government, the stark contradiction is very evident. The people are presumed to comply with this practice without question. anti-torture law: of its limitations, inadequate remedy Two years after the Anti-torture Act of 2009 took effect, only the case of Darius Evangelista, the man in the widely publicized police torture video in August 2010, was known to have reached the court for trial. The DoJ concluded in its August 22, 2011 resolution, a year after the complaint was filed, that the policemen involved are liable for charges for Torture Resulting in the Death of any Person, as defined and penalized under Republic Act No. 9745(Antitorture Act of 2009).17 The accused policemen were: Senior Inspector Joselito Binayug, who was seen in the video severely beating and torturing his genitals pulling it by a string, and his accomplices attached to the Manila Police Districts Police Station 2. In this case, Evangelistas body has not been found, but nevertheless the DoJ other supporting evidence sufficient enough to established the courts requirement of probable cause as the cause for action against the policemen. There are concerns as to the limitations on which the accused would be successfully convicted, however.
17 ABS-CBN, DOJ OKs filing of torture raps vs Binayug et al, 13 September 2011, see at: http://www.abs-cbnnews.com/nation/metro-manila/09/13/11/doj-oks-filing-torture-raps-vsbinayug-et-al
Philippines
381
Apart from Evangelistas case, the complaints of the torture of Misuari Kamid of General Santos City in April 30, 2010, a man whom the Special Unit of Illegal Drugs had illegally arrested, detained and tortured after planting evidence on him; the torture of Lenin Salas 29; Rodwin Mando Tala, 26; Jose Llones Gomez, 44; Daniel Kalayaan Navarro, 26; Jerry Pamandanan Simbulan, 32 of Pampanga province; and, the torture victims Allamin Samal, 42; and his companion Ibrahim Alimanan, 37, who were accused for allegedly bombing a bust in Matalam, Cotabato on October 21, 2010; did not reached the court for prosecution after they were dismissed by the prosecutors during the preliminary investigations of these complaints. In Misuaris case, the charge was reduced to physical injury from a far serious criminal charge of torture. In the complaint of Salas and four other victims, the provincial prosecutors office junked the case claiming the victims were either lying with their faces down or blindfolded when they were allegedly tortured and could not have seen the person torturing them18. The torture complaint of Samal and Alimanan were also dismissed due to insufficient evidence19 by the city prosecutor in Kidapawan City were purely based on conjectures and presumptions regarding the absence of the existence of torture. In justifying the dismissal of Samal and Alimanans complaint, the prosecutors resolution was quoted in this report that the injuries the victims had suffered could be that owing to the fact that the arresting officers were in civilian attire, complaining witnesses have offered some resistance at the initial stage of the arrest. It could be also that in order to subdue them, the arresting officers employed some degree of force upon complaining witnesses which was reasonably necessary in order to effectively enforce arrest. This could be the reason why upon examination, a hematoma was noted on the left lower quadrant of Ebrahim Macasulay Alimanan,20 Furthermore, the prosecutor in this case, whose role is supposedly to determine whether or not there is probable cause to the commission of torture by the police, rather deliberately assumed as both a medical practitioner, by giving his own interpretation of the doctors findings; and as a trial judge, but exonerating the police by concluding that there is much reason to believe (the policemens) claim of innocence.
18 Philippine Star, Rally held vs anti-torture law, 9 November 2011, see at: http://www. philstar.com/nation/article.aspx?publicationsubcategoryid=67&articleid=746023 19 Mindanews, Torture complaint vs NorthCot cops dismissed, 17 October 2011, see at: http://www.mindanews.com/top-stories/2011/10/17/torture-complaint-vs-northcot-copsdismissed 20 See footnote No. 19
382
The filing of torture case in court on Evangelistas case and the dismissal of the others demonstrates the stark contradiction as to how prosecutors functions in evaluating torture case in determining probable cause. The determination of probable cause is not a determination of innocence or guilt of the accused; however, as invoked by the prosecutor in the case of Samal and Alimanan, that the reason to believe (the policemens) claim of innocence effectively the purpose as to what the role of the prosecutor should have been is itself contrary to its own established rules of procedures. remedy by publicity, not by trial Due to absence of effective remedy in the criminal justice system, there has been an ongoing practice of victims, their families and those who supports them, to obtain some sort of remedy by way of publicity, not in the trial process. Meaning, it is not enough to file a complaint against security forces accused of human rights violations, but complainants would have to muster support within and outside the country in order to draw attention to their case with expectations that some sort of remedy can be obtain in that way. This mustering of support, for example protest and demonstration, has been a common scenario in most cases where victims and there are seeking legal remedies. There is a dominant assumption without the victims and complainants presence in public to demand for redress and remedies being vigilant of the case involved, it is very unlikely that the system takes the case seriously. This practice has made evident that those involved in the court system on which victims seek remedies from--the prosecution and the court--have already lost their credibility or that victims themselves had no confidence in them that they function in their own course. There is an assumption of a corrupt, incompetent and a system of justice vulnerable to political control justifying the importance of publicity to be able to obtain some sort of redress and remedies from them. This notion explains the common practice of witnesses, the victims and the complainants exposing to the journalists for them to report publicly about the threats in their lives before going to police stations to register a complaint or request for protection. In most cases, those experiencing threats or at imminent risk of their life, are not often keen on making a complaint or requesting the police to protect them. To have the threats on them exposed by the media and identities of those involved are disclosed in public, by mere publicity and exposure in it there is some sort assumption that the victim will have the remedy for protection. Here, the remedy for victims seeking protection is
Philippines
383
longer within the policing system or any other protection mechanism under the countrys system of protection. The remedy for protection has become selfhelp in which remedy for protection depends on how the victim facing threats is capable of publicizing his case. However, even if on occasions wherein witnesses, victims and their complainants do take this strategy of remedy by publicity in itself it is problematic in reality. Often, what was presumably expected as the result that there is a possibility of some sort of remedy in this strategy does not happen. Because this is a by-product of the victims having to find alternative methods of protection to ensure survival, not only of their own person, but also of the case they are pursuing in court, there is no involvement of the State. Here, everything is very unpredictable, not organized and dependent on how much victims or complainants facing threats could endure the threats in their life while their case is in progress. the maguindanao massacre What happened to Myrna Reblando, the wife of Alejandro Bong Reblando and one of the complainants in the massacre case, illustrates the stark reality as to how witnesses, victims and the complainants had to endure risks to their life as they engaged in the process of seeking remedies and redress from the system of justice. Myrna is the vice-chair and spokesperson for the Justice Now! The group is composed of family members and relatives of the victims of the Maguindanao Massacre, particularly the 32 journalists who were murdered. Myrnas public criticisms of the Ampatuans, an influential and powerful political clan in the southern province has put her life at risk. The Ampatuans, whose patriarch, Andal Ampatuan Sr., former governor of the province; his son, Andal Jr., a town mayor in the province whom he wanted to succeed as his post; and the latters brother, Zaldy, former governor of the Autonomous Region in Muslim Mindanao (Armm) and many others, have been accused of being either responsible for giving orders to carry out the massacre or accomplices to it. Myrna, who speaks on behalf of some of the families of the dead, is not only a complainant in the case but she has also been helping their private prosecutors and fellow complainants in locating for possible witnesses. She continuously monitors the trial of the case, by being present in every court hearing possible. The fear of reprisals of the witnesses from the Ampatuans was so intense that it was difficult for the complaints, like Myrna, to be able to convince any
384
witnesses to testify in court. The murder of one of the potential witnesses, Suwaib Upham (nicknamed Jessie), in June 14, 2010 was evident to this. Upham was one of those hundreds of armed militia men who executed the victims on the orders of the Ampatuans. At the early stage, Upham had gone into hiding for fear of reprisal from the Ampatuans and for lack of trust in the former Arroyo government. He, too, took the strategy of publicizing the threats in his life, his initial confessions as to what he knew of what happened being one of those who executed the victims and his request to be considered for protection under the Witness Protection, Security and Benefit Act (RA 6981) were widely reported by the local and international media. However, before he could even be admitted for witness protection and to testify in court trial of what his personal knowledge were, he was murdered. Here, we see that even in cases where the victims threats are widely publicized, there is no assurance or guarantees at all they would be effective. Uphams murder illustrates the gross failure by the Department of Justice (DoJ) in promptly responding to applications for witness protection requiring urgent response. At the time of his murder, Suwaib Upham was not officially yet under the program. He had been waiting for the DoJs decision for inclusion in the program since March after submitting the necessary application papers, but the DoJ rejected his application in April 2010, after a long delay, without giving an adequate explanation. While private prosecutor Harry Roque considered Suwaib Upham, who took part in the killing of 57 people in the November 23 massacre, as being a strong witness, former DoJ acting secretary Alberto Agra, referred to him as a killer. Roque reportedly said that Agra did not give a reason for not taking him under the programme. Suwaib was killed the day before he was to fly to Metro Manila to re-apply for inclusion in the program after learning about the change of leadership in the DoJ. Under the law a person who is testifying or about to testify before any judicial or quasi-judicial body can be admitted to the programme. However, under the existing practice, witnesses are only admitted when the case they are testifying in has been filed in court. There is no interim protection mechanism available for persons who are waiting for a decision by the DoJ, which screens witnesses for the program to determine if the person is qualified to act as a witness. There is also no time limitation for the DoJ to resolve applications for protection under the program.
Philippines
385
Since the charges on the Ampatuans were filed, the families of the deceased had been approached through backdoor negotiations to settle the case out of court. There were offers of allegedly paying for Php 3 million (USD70,000) to the families of the dead in exchange for their withdrawal from the prosecution of the case in court. Myrna and her family was one of those families of the dead offered this amount. She and her children were also one of those who have been exposing in public continuous attempts to bribe them, the offer of blood money and for out of court settlement by the accused in the murder charges. In Myrnas situation, despite the confirmation by the regional office of the Commission on Human Rights (CHR) in Mindanao, of the real threats to her life and her family, she and her family were not given an effective and adequate state-sponsored protection. Myrna has a bounty of P3million pesos reward for her murder. Like other witnesses and complainants had done, the absence of protection and security forced her into enduring the threats on her life, her family and to live a life on the run. In the manila bus hostage incident In their effort to obtain some sort of remedy and redress to the death of their relatives, some of the families of eight Hong Kong residents who were killed in the August 2010 Manila bus hostage incident also drew the governments and the publics attention through the media. As they commemorate the first year of the incident, they expressed their disappointment in the journalists in Manila hoping that the government takes their concern seriously. One of them, Ban, remarked in an interview that: we are still angry now a year after the incident, because we never received any note, any word of apology from the government of the Philippines.21 But, despite this case having been widely publicized and drawing so much attention internationally, their request for formal apology from the government of the Philippines for mishandling the case and causing deaths and injuries has not been taken into consideration; and the reasonable compensation which can properly reflect the respect for the value of human lives in their terms has not been met. However, none of the two demands were adequately met on the terms of the survivors and families of the victims.
21 MediaCorp, Relatives of HK bus hostage victims demand direct apology from Philippines President, 22 August 2011, see at: http://www.youtube.com/watch?v=iTJquLx1dAI
386
But apart from their groups request for formal apology and adequate compensation from the government, they too want to contribute in improving the plight of the Filipino people and foreigners in its territory who are vulnerable to risk. They were shocked about how the policing system functions in the country. Their incompetence and their own violations to their rudimentary rules in handling hostage incidents. Here, the group desires to also contribute to:
more importantly, we do hope that in the process of the legal prosecution, we can make use of this opportunity to: contribute to the domestic efforts of the civil society in the Philippines to push for better governance and a more responsible government through arousing more public discussion and demanding accountability support the movement in the Philippines to demand justice and respect for human lives (we have heard about the cases of extra-judicial killings in the Philippines, that many human rights activists were killed without even a proper investigation, we are appalled and indignant about this. Also the low level of compensation level for loss of lives in the Philippines is outrageously shameful and does not reflect the respect and value of human lives at all; there should be a review on this too).
In response to the groups request for apology, President Benigno Aquino III has rejected calls from the families of the victims for a formal apology22 by justifying that the the tragedy was the act of one man (Rolando Mendoza, a police officer who was dismissed on corruption charges) who should be blamed and not the government. Aquino, however, expressed deep regrets for the deaths of eight Hong Kong tourists. President Aquino, nevertheless, said the government has complied with the request for reasonable compensation but he did not mention the actual amount that was given. But under section 2 (d) of the Republic Act 7309, the maximum amount of compensation the Board of Claims under the Department of Justice (DoJ) could provide for any person who is a victim of violent crimes is P10,000 pesos (HKD1,800). The level of financial compensation that is mandated by the law, according to the family of the victims, was outrageously shameful and (it) does not reflect the respect and value of human lives.
22 Philippine Daily Inquirer, President Aquino: Regrets, but no apology, 24 August 2011, see at: http://newsinfo.inquirer.net/46737/president-aquino-regrets-but-no-apology
Philippines
387
The group also supports demands for thorough review as to the applicability of this law, which was first enacted 19 years earlier (in March 30, 1992) of the present condition following the incident. The government, particularly the Department of Justice (DoJ) who is responsible in the implementation of this law, made no mention about lobbying to amend this law. Also, the absence of adequate legal aid for foreign nationals wanting to pursue administrative and criminal charges against members of the security forces in the Philippines have deprived them possibilities of remedies. Here, the group suffered obstacles in pursuing the charges in courts because they could not afford to pay for the private legal counsel. Also, President Aquino has interfered in the process of criminal prosecution when he instructed the justice department in October 2010 not to file criminal charges against an official and the policemen involved in the Manila bus hostage incident23 that resulted to the death of the eight tourists in the course of the rescue mission. Aquino rejected to implement in full the recommendations of the Incident Investigation and Review Committee, a Committee he also created to inquire in the hostage incident, contained in the September 17, 2010 report. The Committee of inquiry was jointly conducted by the DoJ and the Department of Interior and Local Government. Therefore, on cases that are high profile in nature, meaning there are interests from local and international audiences, the possibility of obtaining some sort of remedy is there. In it they are not adequate and effective because they are subject to how the media and public would show interests in the case; however, it also shows that even on a high profile cases, hardly any sort of remedies and redress are possible. The political interference, notably of President Aquinos rejection to implement in full the recommendations of the investigation Committee he himself created, illustrates a system of prosecution subject to political control. This explains the difficulties of some lawyers group in taking up the case of the families of the victims, unless they would also be able to sufficiently fund the prosecution in domestic courts. It is because once local law group represents them in local courts, they could antagonize many powerful people in the Philippines. Here, we see that even when a case involved is publicized widely and that the government of the foreign nationals supports the victims
23 AHRC Statement No. 207-2010,PHILIPPINES: A politicised, underdog system of justice, October 15, 2010, available at: http://www.humanrights.asia/news/ahrc-news/AHRC-STM207-2010/?searchterm=manila%20bus
388
prosecution of the case in court; however, the lack of a rudimentary form of legal aid in the country denies complainants possibilities of remedy. Political interference by the executive branch into how the Department of Justice (DoJ) should function was obvious, not only when President Aquino decided to reject the recommendations to pursue criminal prosecution of those involve in the Manila bus hostage incident, but also in cases that are highly political in nature. Here, we observed that the executive and the governments offices under its control operate only to gain public support; this is most typical when they can benefit from its publicity. Structurally, the DoJ operates and functions under the executive branch; and its direct control over the governments prosecution arm, the National Prosecution Service (NPS), interference by the executive branch depending on the extent of pressure on them and nature of cases, has become a common practice. This has become a norm and standards and the benchmark on how the regime in the country should operate. In the morong 43 case On situations wherein the victims, their families and the groups who support them had the capacity to campaign to put pressure on the government, the possibility of some sort of remedies and redress, as shown in the case of Morong 43, is there. In this case, the victims were illegally arrested, detained, tortured and falsely charged. If we take the ordinary criminal procedures, the victims should have been released from detention in no time; however, given the nature of their case being highly political, the security forces of the government, who had accused the victims of having involvement in armed insurgencies, had their interest of putting them in jail stronger than observing their rights to due process. In these types of cases, the established rules of criminal procedures hardly operate in its own course. Therefore, when President Aquino ordered on December 10, 2010 to the DoJ to withdraw the charges against the Morong 43, his actions could be viewed as either necessary to stop the wrongful prosecution of these victims or the DoJ and the NPS are exposing themselves to political control by the executive branch. But these hardly become a matter that requires serious attention from the public probably because the executive has since and has this habit of politically intervening for many years anyway. Here, publicity, popular support and expediency rather than due process of law have become the considerations.
Philippines
389
This could probably explain the peoples practice and habit of holding protests and demonstrations routinely in front of the Presidential Palace in Manila, even on petty issues that do not require Presidential intervention. The gradual subsuming by the executive in the functioning and the role of its subordinate branches demonstrates its disregard for the independent but credible functioning of these offices. The role of the executive have by the day being obscured as not only the head of State implementing laws, but rather as an entity or person who could give swift justice. This type of habit demonstrates that the people have shown a lack of confidence and trust that the system of justice operates in its own course. This also illustrates that for one to obtain some sort of remedies or redress, it has become a precondition that they should also have the ability to publicize their case, muster wide support and to put pressure on the government to intervene. Here, it shows the extent of the chronic deprivation of the possibilities of remedies and redress, particularly for victims and groups who have no capacity to put pressure on the government. They are more vulnerable to chronic corruption, incompetence, abused and manipulation by the public officials who often disregards their grievances because they have no influence anyway. failure in complying with human rights obligations On November 28, the Asian Legal Resource Centre, the sister organization of the Asian Human Rights Commission (AHRC) submitted its stakeholders submission24 for the Universal Periodic Review (UPR) of the Philippines. It observed that three years after the Philippines was reviewed there have been improvement in the legal framework for the protection of human rights, particularly the enactment of the Anti-Torture Act of 2009 (Republic Act No. 9745); however, due to defects in the system responsible in ensuring this rights are implemented, these domestic laws had a negligible contribution for the protection of rights. In its special report published in Article 2 in March 2011 titled Torture in the
24 Asian Legal Resource Center, Stakeholders Submission concerning the Universal Periodic Review of the Republic of the Philippines, 28 November 2011, full text available at: http:// www.alrc.net/PDF/ALRC-UPR-13-002-2011-Philippines.pdf
390
Philippines & the unfulfilled promise of the 1987 Constitution,25 it observes that the failure in the actual implementation of this law was due to: The ineffective and prolonged investigations by the Commission on Human Rights, breaching the 60-day period limit to complete their investigation required by the law; the prosecutors and the court judges depends heavily on oral testimonies ignoring the importance of forensic evidence, particularly on cases where eye witnesses could not be produced due to threats; and the investigation conducted by the CHR, police and medical doctor does not conform to the internationally acceptable guidelines of the Istanbul Protocol in investigating torture cases. The PNP and the Armed Forces of the Philippines (AFP), on cases wherein their men are accused of or subjected to an investigation for torture, extrajudicial killings or forced disappearance, are routinely failing in imposing summary disciplinary sanction required by their own internal disciplining mechanism--like suspending, disarming or not giving them any assignment to ensure that they could not use their authority to oppress or threaten the complainants and victims. Also, the prosecutors and the courts are failing to comply with the Speedy Trial Act of 1998 to ensure speedy trials and speedy disposition of cases in courts. This law has become inoperative because of their failure to examine whether or not the motions or petitions by the perpetrators accused in torture, particularly at the early stage of determining the probable cause were done in good faith or were deliberately part of the accused dilatory tactics; thus, remedial rights have been abused and manipulated by the perpetrators to escape any responsibility from prosecution emboldening impunity. One case mentioned in that report, the torture of Lenin Salas et. al, the prosecutors have already dismissed the torture complaint for reasons that the victims, who were blindfolded when they were tortured could not positively identify who had tortured them. The investigating prosecutor argued that due to the victims failure to identify the perpetrators the evidence against those charged were insufficient.
25 Article 2,Torture in the Philippines & the unfulfilled promise of the 1987 Constitution, March 2011, full text at: Vol. 10 - No. 01 March 2011 --Special Report: http://www.article2. org/pdf/v10n01.pdf
Philippines
391
We have observed that there are chronic and systemic problems. Thus, improvement in terms of the legal framework for the protection of rights, unless the problem within the system that is responsible for the protection of rights are address, they would have little contribution in ensuring freedom from torture or other rights are protected. The discourse should not only focus on whether the governments actions of enacting domestic laws or makes superficial criticisms; but rather questions as to why, despite the Philippines now welldeveloped legal framework in terms of human rights, the rudimentary forms of implementation in the domestic level have been ineffective in that their failure or inability to comply with the international legal obligations requires a thorough scrutiny. However, within and outside the country this discourse has yet to substantially develop. Reading from some of the views and opinions of UN HR Committees on individual communications on the Philippines, it also failed in implementation of the views and recommendations not only on cases of torture, but also on cases of extrajudicial killings, on which the AHRCs previous reports on extrajudicial killings in the Philippines have also been referred to as the complainants supporting documents. In these cases, the Committee has already ruled the Philippines to have committed violations to its international legal obligations, particularly of the Article 2 of the ICCPR. Here, the lack of implementation of the HR Committees views, opinions and recommendations, were not only a generic problem on cases of torture, but also in extrajudicial killings. The lack of clear, established, effective and adequate implementing mechanism within the domestic level, the HR Committees views would have less importance in the practical realities of the lives of the victims and complainants involved. Here, we see the Philippine government violated the ICCPR and other treaties; however, due to the absence of an effective implementing mechanism in the domestic level, virtually it is immune from this violation. Therefore, the importance of the Committees decision are more on affirming the State had committed violations, that the norm and standards are further developed and that exhaustion of domestic remedies does not include when domestic remedies are ineffective and prolonged. conclusion In the Philippines today, there is some sort of strength in terms of the recognition of human rights, as they are well established in the legal framework and the relatively, at least judging on how the regime advocates to protect the
392
rights of the Filipino people. This is probably because of the active role of the present government to ensure for the protection of human rights. The discourse on human rights has been the benchmark on how the government would be assessed of its performance in governing the country. Among the Filipino people, there is common and shared perception of democratic space presently being enjoyed; however, the confusion and obscurity shown by some Filipinos and the public officials illustrates that perhaps, the understanding of how human rights should be protected by the State--and not by way of victims and families finding their own alternatives and expedient means to get remedy from as the common practice, could probably tells us of the difficulties of articulated human rights problem; or, the unarticulated human rights problem is the byproduct a system of justice that is chronically and systemically dysfunctional making it difficult to comprehend how human rights should be protected. In this report, we put emphasis on illustrating how, in reality; rights are protected or not protected within the framework of the domestic mechanism that is legally obliged to implement them--the criminal justice system. Here, we conclude that the chronic defects in the countrys system of justice had tremendous implications for the protection of on human rights. The discourse, we challenge here, should not only be about describing the violations of rights and to refer to norms and standards on which they have been violated; but rather to be able to thoroughly examine whether the system itself is capable of dispensing justice. The ongoing violations of rights, from torture, illegal arrest and detention, targeted killings of activists, abduction and forced disappearance of activists and killings of ordinary people, amongst others, taking place in the country, are no longer exceptional in nature. They are rather inevitable where the system of justice operates and functions contrary to how they should have been functioning. However, it is unfortunate that the ongoing discourse on the protection of rights within the country today has yet to develop towards this.
South Korea
393
SOUTH KOREA
THE STATE Of HUmAn RIgHTS In 2011
Overview In the fourth year of Mr. Lee Myung Baks presidency, many corruption related cases have recently been reported, with flawed investigations however. While South Korea has a law criminalizing corruption, its scope is limited and narrow, only covering acts relating to official duty. As reported in our previous report (2010), one right that has seriously deteriorated under Lee Myung Bak is the freedom of expression. This will further worsen with the governments intention to restrict the freedom of expression and opinion over the internet as well. South Korea has a large number of internet users, with a significant amount of communication occurring through the internet. After one particular podcast criticizing the government and President had the highest downloads globally, the Korea Communications Standards Commission (KCSC) introduced an organ with exclusive control over the Social Network Service (SNS) and application for smart phones in early December. I. Human rights violations by business enterprises While rights abuses by business enterprises are a serious problem in South Korea, they have not been properly discussed. The long struggle of Ms. Kim Jin Suk in this regard however, as a member of the Korean Confederation of Trade Union (KCTU), has drawn the attention of both the local and international community. The Korean society remains unclear regarding the governments obligations and duties to respect, protect and fulfill human rights in cases involving business enterprises, and Ms. Kims case may serve as an indicator of the issues involved. The Hanjin Heavy Industries & Construction Co. LTD, where Ms. Kim has been working, is one of the countrys top ship manufacturers, based in Busan,
394
South Korea. When the company expanded its shipyard to Subic Bay in the Philippines in February 2006, the company made an agreement with the trade union on March 14, 2007 for workers fearing dismissal. Ignoring the agreement however, the company started dismissing workers in late 2009, in the guise of voluntary resignation. About 3,500 employees including irregular workers were dismissed, allegedly due to financial difficulties. Contrary to this explanation, it is known that the Philippine subsidiary of the company was able to manufacture 23 ships in the first half of 2010, whereas not a single order was allocated to the South Korean factory in the same year. After heavy criticism, the company made an initial agreement for the manufacture of a few ships in the Busan shipyard. The main problem with regard to layoffs or dismissals is the broad interpretation of the legal definition urgent need for management, which is the commonly used justification for dismissals. However, the reason for such urgent need for management was never scrutinized before layoffs or dismissals were made. In fact, they are the easiest way for business enterprises to reduce their overheads. The Local Labour Relation Commission, which has the authority to judge whether or not a dismissal is legal or otherwise, makes decisions in favour of business enterprises using the limited information provided by them. Serious procedural flaws, such as the overlooking of any existing agreements between the company and trade union for instance, are not given much weight by the Commission. Reaching an agreement, regardless of how it was reached, is all that matters. This often results in violence. The government has an obligation to protect individuals and groups against human rights abuses. While the workers occupied the shipyard and protested since December 20, 2010 against this massive dismissal of workers, the company asked the Busan District Court to issue an eviction letter against the protesters, which was approved on June 13, 2011. Although negotiations between the company and trade union were supposed to start from June 24, the announcement of the courts eviction plan was announced, resulting in the failure of negotiations. In the process of forced eviction, many protesters were assaulted by law enforcement agencies and those acting on their behalf. No action has been taken against them. Due to South Koreas insufficient social safety nets, workers perceive a loss of employment as a sentence of social death. The continuous support of civil groups for Ms. Kims struggle is therefore not meant as the support for only an individual, but for all those in such vulnerable positions, with minimal social safety nets.
South Korea
395
Due to domestic and international pressure, on October 7, 2011, in order to solve the dispute between the company and the labour union, the Environment and Labour Committee at the National Assembly proposed recommendations that were accepted by the CEO of Hanjin Co, provided that Ms. Kim comes down from the crane tower which she had occupied for the last 10 months. After the new leadership of the union, the negotiations were accelerated and on November 10, both parties finally reached an agreement. Although this particular dispute is solved, the governments obligations in cases of rights violations by business enterprises are still in question. II. I s s u e s r e l a t i n g t o t h e n a t i o n a l H u m a n R i g h t s Commission of Korea A. Silence-mode continued After the appointment of the new chairperson of the National Human Rights Commission of Korea (NHRCK) on July 20, 2009, it appears that the NHRCK has increased self-censorship over politically sensitive issues. Leaving aside major issues that the NHRCK had previously focused on, the new chairperson prioritized issues of human rights and business enterprises. For this reason, the NHRCK took part in an international forum in October 2010, where it presented its role in providing non-judicial remedies and making policy recommendations. It then held a similar forum in Korea in October 2011. Despite holding such forums however, the Commission does not speak out or take action against any violations. The case of Ms. Kim mentioned above is a clear example of this. When the Hanjin Heavy Industries & Construction Co. LTD prevented union members from sending her basic necessities such as food and water, Ms. Kim asked the NHRCK for urgent intervention. Her case was discussed during the commissioners meeting, but dismissed when the company promised to allow necessities to reach her. Although this promise was not kept, no further action was taken by the NHRCK. It is also reported that the NHRCK dismissed two cases requesting urgent intervention. The first case involved the alleged surveillance and wiretapping of union activists by Korea Railroad. The NHRCK dismissed the complaint for the reason that it was not under its authority. The second case, involving a group of protestors against redevelopment facing power cuts, was dismissed because the Korea Electronic Power Corporation is not a government institution.
396
B. Suspicious termination and disciplinary punishment An NHRCK investigating officer and trade union vice president, working with the Commission since its establishment, and who was critically outspoken over the arbitrary management of the chairperson, did not have her contract renewed in February 2011. It is widely held that this was due to her union activism as well as critiques on the mismanagement of the chairperson. This is substantiated by the disciplinary action imposed on staff supporting her: 11 staff members picketing in front of the NHRCK building to protest the discontinuance of her contract received disciplinary punishment; four staff were suspended while seven had their salaries deducted. The reason given for this punishment was a duty to uphold dignity and prohibition of collective action (articles 63 and 66 of the State Public Officials Act). The NHRCK is clearly on a path to becoming an entity for which human rights exist only on paper. Another matter of concern is the lack of diversity of commissioners at the NHRCK. Since many commissioners have a background in law, the standards of whether or not a complaint is permissible are decided by existing laws despite the fact that they may be incompatible with international human rights instruments. Additionally, if the NHRCK voluntarily limits its role and mandate, it will mitigate its reason for existence, and will become little different than various human rights bureaus under other ministries, some of which are, in fact, in a better position to influence legal reform. III. Legal attacks on rights activists On January 19, 2009 a group of people occupied the top of a building in Yongsan, Seoul, protesting against their forced eviction and demanding proper compensation. The special police force was deployed and whenever they attempted to raid the building, the protesters threw Molotov cocktails at them. The police then decided to forcibly disperse the protesters despite being aware that the watchtower built by the protesters was full of thinner. In this process, five protesters and one police officer were killed by the fire. Due to the use of Molotov cocktails, the police as well as conservative newspapers and politicians labelled the protesters as terrorists. After this Yongsan Incident took place, a committee consisting of hundreds of civic groups represented by two rights defenders, Mr. Park Lae-gun and Mr. Lee Jong-hoi, was organised and held commemoration ceremonies. Here, relatives of the deceased had the opportunity to voice out why their family members had no choice but to protest against the forced eviction. They held
South Korea
397
meetings to discuss how to organise peaceful assemblies. Such assemblies and demonstrations were held once a week, asking for thorough investigation and punishment of those responsible for the deaths, as well as due process in the redevelopment approach. Such activities continued for about three months after the incident. Meanwhile, an arrest warrant was issued against the two rights defenders and they were prosecuted for criminal offences. On January 24, 2011, the two were given a three-year and one month jail sentence suspended for four years and a two-year jail sentence suspended for three years respectively, by the district court. According to the judgment, they were found guilty of organising assemblies and demonstrations that clearly pose a direct threat to public peace and order, organising banned assemblies and demonstrations, organising outdoor demonstrations after sunset and obstructing general traffic. The planning meetings to organise commemoration ceremonies for the deceased were also interpreted as a communal criminal offence. They appealed, but their conviction was upheld on May 18. IV. Conscientious objection Although conscientious objectors against military service were imprisoned for several decades, since 2001 the situation has slowly been changing. While some progress was made between 2004-2008, the rule of the Lee Myung-bak regime has reverted back to a conservative outlook. A. Background According to the information obtained from the NGO World Without War, conscientious objectors against military service in Korea have been going to prison for the past several decades, yet it was only after 2000 that the issue became known to the public. That the cumulative number of conscientious objectors who served prison sentences exceeded 10,000 at the time profoundly shocked Korean society. Long considered an issue for Jehovahs Witnesses only, conscientious objection became a social movement with the public declaration of the first non-Jehovahs Witness conscientious objector, the pacifist and Buddhist Oh Tae-yang in December 2001. In early 2002, the Korea Solidarity for Conscientious Objection (KSCO) was formed by 36 civil and social organizations. They began to raise public awareness about conscientious objection through various activities such as discussion forums, lectures, public hearings, campaigns, and articles.
398
The criticism and outcry against the conscientious objection movement was tremendous at first. The idea of national security was so absolute in the anticommunist Republic of Korea that more armament was considered socially good, while any kind of counter-argument was severely repressed. In South Korea, society went through a series of militarist regimes where a 100 percent enlistment rate was set as a social objective and the conscription-based military system was sanctified. These circumstances made it difficult, if not impossible, to reflect and discuss on the military as state-monopolized violence, as well as different points of view based on democracy and tolerance. A movement for change however, was slowly created by the tremendous amount of jail time and pain that conscientious objectors endured. This was coupled with the efforts made by both of the recent conscientious objectors who publicly announced their objection, and their supporters. B. Gradual change Afterwards, the duration of the usual prison term sentence for conscientious objectors was cut down from three years to one and a half. In 2002, a case of conscientious objection was brought to the Constitutional Court for review for the first time, and in 2004, a conscientious objector received a verdict of not guilty for the first time. In late 2004, assemblymen Mr. Im Joing-In and Roh Hoe-Chan each submitted a Military Service Act Amendment Bill to the South Korean National Assembly. In late 2005, the National Human Rights Commission of Korea announced a recommendation to introduce alternative service. This was the first time for a Korean national institute to do such a thing. In addition, the international community, upon recognizing the situation of Korean conscientious objectors, began to apply pressure on the Korean government. For example, the UN Human Rights Committee repeatedly ruled that the Korean government should consider alternate service for Korean conscientious objectors. Thanks to these social changes, it appeared that the imprisonment of conscientious objectors which had continued for more than 50 years after liberation, might end in the very near future. On September 18, 2007, the Ministry of National Defense (MND) announced plans to allow conscientious objectors to perform alternative civilian service, which was supposed to start in January 2009. In addition, at the Universal Periodic Review held in Geneva on May 7, 2008, the Chief of Human Rights Division of the MND confirmed the position of Korea to introduce alternative service for conscientious objectors. But once the conservative Lee Myung-Bak government took office, the MND suddenly changed its position. Having made little effort to prepare
South Korea
399
for alternative service with an excuse of national consensus, the MND publicly announced it would nullify the introduction of alternative service for conscientious objectors in December 24, 2008. Their supposed basis for the decision was an opinion survey which was a very small part of the research commissioned by the Military Manpower Administration in which there were more responses against alternative service. While the 500 page research paper concludes that alternative service must be introduced, the MND arbitrarily chose to use only part of the survey data for their own interests. The hardfought changes by civil society were so easily overturned by the regime change. Up until now, more than 15,000 have been imprisoned for their objection to military service since Koreas liberation from Japan in 1945. And in particular, more than 5,000 have gone through imprisonment since 2000, the year when the issue of conscientious objection began to be discussed in public. Yet it was not only the Conscientious Objection (CO) movement participants who thought that the situation was unjust, but the militaristic and nationalistic Korean society had been changing slowly over the course of time and as the CO movement has continued. In the summer of 2008, the NHRCK officially expressed concern and sent a statement to MND, urging it to quickly introduce alternative service for conscientious objectors. There have been a series of requests with the Constitutional Court for a determination of constitutionality of the Homeland Army Reserve Act. Furthermore, followed by two individual communications in 2010, the Human Rights Committee expressed its views on 100 individual communications in March 2011. In the meanwhile, a petition of adjudication on the constitutionality of article 88(1) of the Military Service Act (stating that the person who refuses to serve in the army without justifiable reason shall be imprisoned for not more than three years with prison labour) was filed at the Constitutional Court and its controversial judgment was delivered on August 30, 2011. The Court did not find the article to be unconstitutional, maintaining that it does not violate the principle of equality or article 6(1) of the Constitution, regarding respect for international law. The controversial reasoning made by the court compares criminal punishment for conscientious objectors with the sacrifice of the freedom of conscience and concludes that the article does not violate the freedom of conscience because military service is very important to public interest. However, the court should ensure that in the case of a conflict between a constitutional right and constitutional duty, a harmonious way to implement both is found, rather than the sacrifice of one.
400
Secondly, the Court concludes that the article is not discriminatory because it applies to everyone equally. However, it fails to take into account that a particular group of people are criminally punished because the government has not introduced alternative military service for those who object on the basis of conscience. In addition, the Court also concluded that the International Covenant on Civil and Political Rights (ICCPR) has neither acknowledged the right of conscientious objectors nor are there any international human rights laws codifying the right. While this right may not be written into the ICCPR, the Court is overlooking the Human Rights Committees understanding and observations on the topic. V. Problematic article relating to migrant workers
Many migrant workers come to South Korea under the Act on the Employment of Foreign Workers. Under this Act, they are legally allowed to stay in the country for five years, but are restricted in the number of times their workplace may be changed. This particular article of the Act received considerable criticism, making many migrant workers illegal. Although the article was submitted for review to the Constitutional Court, its judgment of September 29, 2011 concluded that the article does not violate the fundamental right of the applicants. VI. Torture and confessions Under the military dictatorship in South Korea, ignorance of due process and the routine practice of torture by investigating authorities such as prosecutors, intelligence agents and police officers was a key problem. In cases of espionage, the mindset of authorities carrying out the arrest was that they had a limited time in which they could hold the suspect, making it necessary to obtain a confession as quickly as possible. As a result, the authorities used torture or ill treatment during interrogation and suspects were often denied access to lawyers. Confessions obtained through torture were accepted in court without being questioned. The social impact of this was a public tolerant to the ill treatment of the accused if the matter was related to national security. After the overthrow of the military regime, through several amendments of criminal procedure law in Korea, the rights of the accused are deemed to have been strengthened to a limited extent. The definition of torture and ill treatment however, has not been codified in accordance with international law. As a result, torture is still used during
South Korea
401
interrogation by agents including the investigating police in ordinary police stations. For example, the National Intelligence Service (NIS) arrested and detained five persons and investigated a dozen others under the National Security Act. During the interrogation, authorities forced or threatened Mr. Lee and Mr. Im to confess, allegedly humiliating and threatening them. Authorities are apparently not trained to deal with the accused, who enjoy the right to remain silent, despite it being one of the basic principles in the Criminal Procedure Act. Three men accused of robbery were arrested and tortured in the Yangcheon police station during their interrogation in February 2010. The investigating police threatened them into confessing to other robberies as well. For the purposes of looking good and chances of promotion, the police station then reported the resolution of some 110 unsolved robbery cases to higher authorities. Later, the three torture victims filed a case asking for compensation, in which the court ordered the government to pay compensation on September 23, 2011. The Yangcheon police officers responsible for the torture and ill treatment were suspended and indicted by the prosecutor at the time of the incident. The supervising authority meanwhile, received the deduction of two months salary as disciplinary action for negligence on supervision and management over junior police. This action was quashed by the court in August however, on the grounds that only partial, abstract negligence was found, not any specific behaviour found to violate any law. Even though South Korea is a state party to the UN Convention against Torture (CAT), it has so far refused to codify the definition of torture and ill treatment in its Criminal Act, leaving a serious gap between the international and domestic laws. This results in the definition of torture being narrowly interpreted. Moreover, the government has stepped back from its pledges of May 2006 at the Committee Against Torture, where it said it would revise its law. VII. Security Service Industry Act shifts state responsibility to third party Previously, it was easy to identify which government--including law enforcement agents--action violated which human rights, and to hold those
402
responsible accountable. Now however, after the creation of the Security Service Industry Act, the local government contracts security agencies to undertake certain tasks, making it difficult to identify those responsible because the omission to act by the government needs to be proved. This began with the governments initiation in 1976, due to the limited police force and budgetary allocation, to legally authorize a third party to protect important national facilities as a quasi law enforcement agency, acting on behalf of the police. Through this legislation, thugs were mobilized to evacuate the poor from their residence in the process of redevelopment and used by the local government to evacuate vendors during the Seoul Olympic Games in 1988. Although this law received much criticism and many amendments were made, such thugs continue to be hired by corporations in labour disputes, redevelopment projects and so forth. In most such instances, the result is extreme violence. The continuous creation of violence is the easiest way to drive away victims and complainants (residents of a redevelopment project for instance) with little compensation. It is also the easiest way for law enforcement agents not to be directly involved, allowing them to be exonerated from criminal liability if a lawsuit is filed. This malpractice continues because of the considerable economic benefits for the thugs to gain, with little to lose. Furthermore, the thugs sometimes hire a vulnerable group of people such as persons with disabilities, students or elderly who need money, and let them do the job. The dispute then seems to be a dispute between vulnerable groups. This also makes it easy to file a criminal case against the residents, who are often psychologically unstable due to the long period of exposure to violence. Moreover, the thugs assault or use violence with the consent or acquiescence of law enforcement agencies, which in fact would make the practice fall under the international definition of torture. As long as the thugs are in collusion with law enforcement, this practice cannot be eradicated. VIII. Absence of domestic mechanism to implement international principles The UN Human Rights Committee (HRC) has issued opinions concerning 10 human rights cases in South Korea. The following cases were found to be in violation of the ICCPR by the South Korean government since 1994: Sohn v. Republic of Korea, Kim v. Republic of Korea, Park V. Republic of Korea, Kang
South Korea
403
v. Republic of Korea, Shin v. Republic of Korea, Lee v. Republic of Korea and Yoon & Choi v. Republic of Korea. After the communication of Mr. Yoon & Choi v. Republic of Korea regarding conscientious objection, hundreds of such communications were submitted. The views by the HRC were released in March 2011, finding that the South Korean government violated the ICCPR. Despite this, the South Korean government has taken no action in the individual cases, proffering no remedies to the complainants.
404
SRI LANKA
INteRNAtIoNAL HumAN RIgHtS AgeNcIeS fAILed to NotIce tHe coLLApSe of SRI Lankas PubLic institutions of Justice
The government of Sri Lanka (GOSL) considered human rights as an irrelevant issue and talks only about development. The concept of development does not include the guaranteeing of human rights. In fact, the violations of human rights are justified on the basis of the priorities that should be given to what is called development. What development seems to mean is the building of some roads and the construction of some highways and the like. The adoption of the 18th Amendment to the Constitution has further strengthened the position of the executive president who already has absolute power under the 1978 Constitution. Some attempts were made to limit this power by way of the 17th Amendment and the 18th Amendment negated all those attempts. The result is that the judiciary is incapable of protecting the rights of the individual as against the power of the state. When the state crushes the rights of the people no room is left for the judiciary to intervene and invalidate any illegal interference into the rights of the people. Basically, the liberties enshrined in the Magna Carta do not exist for the people of Sri Lanka now. The GOSL in its propaganda treats human rights as an alien concept and as a means that western countries use to punish the Sri Lankan government. The anti human rights propaganda is intense. The result of this propaganda is that the free media is looked upon as a hostile element and severe repression is used to curb the media. The repression of the human rights organisations and all civil society movements which refuse to go under the governments agenda is also intense. Resulting from the repression there is a fear psychosis which in turn reinforces self censorship and the withdrawal of people from active participation relating to matters that affect their lives.
Sri Lanka
405
Naturally the public dissatisfaction is widespread and deep. That in turn has led to the giving of enormous powers to the Ministry of Defence which is exercised through the Secretary to the Ministry who is the brother of the president. The Ministry of Defence has developed an extensive network of surveillance through the intelligence agencies. The making of lists of persons who are considered hostile to the government is maintained and distributed through the security apparatus. Fear of a peoples uprising and the ways to prevent that is the main strategy of the Ministry of Defence. For this purpose propaganda about a second coming of the LTTE is cultivated in the country. On that basis all civil society organisations are supposed to provide detailed information about everything they do. Despite of the intense violations of human rights in the country the international community has failed to grasp the real situation in Sri Lanka and has failed to develop an effective strategy to ensure protection for the human rights of the people. The above mentioned issues will be discussed in detail below. 1. challenge to Human Rights community The international community, including leading human rights agencies and organisations, has failed to understand the depth of collapse of rule of law in Sri Lanka and have failed to make any effective intervention in this regard. International conventions for several decades now have centered around minority rights and more recently on alleged war crimes. However, violations of minority rights are only a part of the abysmal lawlessness that prevails in the country as a whole and this affects both the majority and the minority. These violations cannot be separated in any meaningful manner. Without addressing the general conditions that have lead to collapse of rule of law, none of the violations of the human rights, including harsh violations of rights of the Tamil minority, can be resolved. It is impossible to remove a part out of the total problem and treat it successfully. The heart of the problem is the 1978 Constitution and the practices that have accumulated over the last 33 years under this Constitution. The problem of this Constitution essentially, is that it places the executive president above the law and outside the jurisdiction of courts. This means anything that the executive
406
president wants to keep outside law, can be kept outside the law. This applies to all, including the minorities. It is a sad reflection on the global human rights movement that despite many local human rights organisations and regional organisations like the Asian Human Rights Commission having stressed and emphasized this constitutional issue, not a single international agency or organization has taken up this issue in their interventions and their statements. The issue of constitutionally generated lawlessness has gone unnoticed. As a result the other issues raised by the international organisations are incapable of achieving any positive result. When, the most central element leading to violations is ignored it is naturally not possible to find solutions to the other problems raised by these organisations. The ultimate beneficiary of all this are the violators of human rights and the political machine which creates the environment for the gross abuse of human rights. Why did the international community fail Sri Lankan citizens so badly on the violations of their rights? This question may be answered by many persons in different ways. It is perhaps better to raise one fundamental conceptual issue which may be at the bottom of this failure despite of many well intentioned people trying to contribute in many ways for the solving of human rights problems in Sri Lanka. This conceptual issue is well articulated by an American lawyer who has been involved in litigation in many less developed countries and has been able to see the absence of the functioning public institutions of justice. In a speech made at Colombia University he identified the problem thus: Looking back at the story, one can see that two generations of global human rights work have been predicated, consciously or unconsciously, upon assumptions of a functioning public justice system in the developing world which, if incorrect, effectively undercut the usefulness of those efforts for their intended beneficiaries. Now, absent an effective enforcement mechanism, the great work of the first two generations of the international human rights movement can deliver to the poor only empty parchment promises. Today the international movement for human rights finds it difficult to move away from the work of the first two generations, that is articulation of international norms and encouraging domestic legislation into the stage of ensuring functioning public institutions for justice.
Sri Lanka
407
Instead of undertaking the difficult task of the study and the understanding of situations which are different to the situation in developed democracies where functioning public institutions of justice have already been established through, perhaps the work of over two centuries. The developed country-based human rights organisations assume that similar functioning public institutions of justice as theirs own exist elsewhere. Based on that assumption when they hear reports about violations of rights they put forward the demands to investigate, prosecute and pay compensation. These demands do not lead to any real response from the governments of less developed countries. Some countries, for various reasons, try to give an appearance of compliance which is often highly appreciated by the persons from more developed countries thinking that such gestures are meant well and that the violations will be addressed to some extent at least. Increasingly, more of the governments of the less developed countries completely ignore the formula from the developed countries for investigation, prosecution and payment of compensation. The former Special Rapporteur for torture and ill treatment, Manfred Nowak, on the basis of a review of recommendations made to several countries as a Rapporteur concluded that none of his recommendations had been implemented. If similar reviews are made into the recommendations made by different agencies of the United Nations human rights agencies to the governments of less developed countries the result is most likely to be no different than that. When one of the special representatives for the UN Secretary General for Cambodia visited Cambodia for one of his visits the United Nations human rights centre made a list of recommendations the representative had made to the government earlier. There were nearly 50 such recommendations. Against each recommendation there was a column under the heading actions taken. In that column under each recommendation the comment recorded was: No action. Similarly if one were to collect the recommendations made by the office of the UN High Commissioner for Human Rights, by various Rapporteurs such as that of the Rapporteur against extrajudicial killings, torture and ill treatment and discrimination against women, just to take a few, it would become clear that the formula, to investigate, prosecute and pay compensation has not resulted in any positive action. The same is true about the recommendations from the new Human Rights Council during the Universal Periodic Review and other occasions. A similar fate met the recommendations made by the UN panel appointed by the Secretary General to inquire into alleged violations which took place at the end of the conflict with the LTTE. In this instance the government openly rejected the report and the recommendations.
408
2. High-Lights of 2011- Selection from AHRc Statements 2.1 The need for a nation-wide public hearing on rape and bad policing1 As the International Day for Women is celebrated today it is only fitting to give some thought the major areas of concern regarding womens rights in Sri Lanka. One of the most disheartening aspects of the treatment of women in Sri Lanka is the utter neglect about the cases of rape and harassment. The Asian Human Rights Commission has reported many cases in Sri Lanka which have revealed the carelessness with which the police in Sri Lanka deal with investigations into cases of rape. The recent case of a mentally retarded young woman from Weligodella, Bombuwela who was raped and thereafter the Officer-in-Charge of the station tried to hush-up the case, obviously after receiving some gratification from the alleged suspect is simply scandalous; it also reveals the breakdown of the disciplinary process within the police where the hierarchy from the Inspector General of Police down to the Assistant Superintendents demonstrate no capacity to impose even the basic discipline among the lower ranks. Had the Assistant Superintendent of Police, just above the Officer-in-Charge looked into the failure of the OIC to carry out his duty in one of the most morally reprehensible and disgusting episodes in the territory under the ASPs control, the story about this rape case would have been different. Today the Officers-in-Charge of the police stations do not feel any kind of fear of being supervised by the officers higher in rank. No such supervision takes place. In a large number of cases the Asian Human Rights Commission has reported on an almost daily basis, it is quite clearly evident that the obligations of the ASPs under the departmental orders to carry out inspections relating to the inquiries at the stations under their control, is no longer respected by either ASPs or those above them. If the police demonstrate this amount of culpability even in cases of rape which is one of the most reprehensible offences under any jurisdiction ,there is little that women can expect by way of protection from the the Sri Lankan police. Therefore it is hardly surprising that over three dozen women interviewed by the Asian Human Rights Commission as to whether they would seek the assistance of the police in the event that they have some problem categorically
AHRC STM 038 2011; March 08, 2011.
Sri Lanka
409
stated that seeking such assistance would only lead to more trouble for them. A woman who complains about domestic violence finds that the harassment they face at the police station is even worse than they receive at home. (For more details see Women Speak Out, Ethics in Action, Vol4 No 5) In many jurisdictions today people talk about the increase of women police officers as a safeguard for the rights of women. However, in Sri Lanka in the cases that have come to public notice the policewomen quite eagerly participate in the ugly scenes that are created within the police stations by their male counterparts. In many instances of sexual abuse at the police stations when the prisoners are exposed to humiliating treatment there are instances in which the women police officers quite eagerly participated with their fellow officers. All this points out that the morale in police stations has degenerated so much that the average citizen finds it difficult to approach them, when they are faced with serious difficulties. Women being the more vulnerable section of society would find this even more difficult and in many instances more humiliating. Paying lip service to womens rights is quite easy and many politicians engage in making promises to improve their rights. However, the test of all protection is that which is available to all citizens. When the basic law enforcement agency fails to carry out its basic obligations to its citizens no such protection can be expected. A nation that fails to take the issue of the rape of women with the utmost seriousness is one that is obviously facing a deep societal crisis. Even the guardians of morals such as the religious leaders remain silent in the face of the degrading treatment meted out to all citizens and particularly the more vulnerable sections of society such as women by the countrys law enforcement agencies. The hypocrisy underlying the society is manifest more intensely in the relation to the failure of the state and society to take strong steps in order to ensure legal protection for the women-folk in the country. The most pathetic events being reported such as case of rape which took place at Weligoda Bomboowela to the physically and mentally handicapped woman is a stark manifestation of a wider reality that is affecting the entire nation. Under these circumstances it is the duty of the parliamentarians above all to
410
speak out about the horrible conditions that prevail in our police stations. The countrys parliamentarians have been failing in their duty in this regard. The failure of the parliament to protect the citizens in general affects the more vulnerable sections of society and particularly the women. Before anything else, it is time for the people to demand parliament to take appropriate action to maintain discipline within the police stations so that the police will be able to become the law enforcement agency that it is meant to be. Until such a fundamental reform happens the possibility for protection to women will be confined only to loud words which only manifest the lack of will within the nation to protect its women. A public hearing relating to police protection to women in general and regarding law enforcement relating to rape is urgently needed to address the problems mentioned above. Legislators must create this opportunity for the public and women in particular to air their grievances. Such a public hearing will provide the much needed opportunity to bring about the end bad policing in Sri Lanka. 2.2. Mr. Roshan Chanaka Rathnasekara - Negombo and Seeduwa Police Station/s2 According to the information that the Asian Human Rights Commission (AHRC) has received Mr. Roshan Chanaka Rathnasekara (22) of Gal-Oluwa, Minuwangoda in the district of Gampaha, succumbed to his injuries on 1 June 2011 as a result of gunshot wounds received when police officers attached to the Negombo and Seeduwa Police Stations opened fire on a group of protesters and others who were not involved in the demonstration. After completing his school education Roshan joined a company inside the Free Trade Zone (FTZ) in Katunayake in January 2011. The Katunayake FTZ is situated in the Gampaha District on 190 hectares of land and there are about 84 factories on the land employing 50,000 workers. On 30 May 2011, about 600 persons gathered within the FTZ protesting the Employees Pension Benefits Fund Bill. Hundreds of police officers, mainly from the Negombo and Seeduwa Police Stations, were present in the area and at around 12.03 pm, the officers attempted to disperse the crowd by using tear gas. This was done without any warning against peaceful protesters.
2 AHRC UAC 184; September 30, 2011
Sri Lanka
411
When the workers attempted to flee the police officers, armed with guns and iron poles charged the FTZ workers. Some officers threw stones and other unidentified objects at them. Some of the workers were critically injured and warded at various hospitals. During the melee the police opened fire and witnesses have testified that there was no reason for the police to use live ammunition as the protesters were actually dispersing at the time of the shooting. It was also noted that the police used deadly force and did not fire warning rounds as was required of them. After the police opened fire at the gathered workers they forcefully entered the FTZ and broke open several company gates. They then entered those companies and started to shoot the workers inside. Roshan was among those injured and it must be highlighted at this point that none of the workers who were inside the companies had taken part in the demonstration. During the death inquest held before the Magistrate of Negombo in giving evidence the Negombo Assistant Superintendent of Police (ASP) Adikari Wijayananda Silva of Negombo, stated that Roshans death was a result of the shooting by the police. As a result of this collective and massive assault by hundreds of police officers more than 300 workers were severely injured. Out of those injured some were admitted to the Negombo Base Hospital and other more seriously injured workers were then transferred to the Ragama Teaching Hospital. Among the injured eight workers were found to be in critical condition and were admitted the Intensive Care Unit (ICU) of the hospital. Roshan was among them. The shooting was not the result of indiscriminate firing by any one officer. The Deputy Inspector General (DIG) of the range and the two Senior Superintendents of Police (SSP) along with several ASPs were present. The shooting and the subsequent killing of Roshan occurred under the close supervision of these senior officers. After the shooting the injured workers were brought to the Kesselwatte Police Station. They, with Roshan amongst them, were kept in the police compound without being afforded medical assistance. The denial of medical assistance to an injured prisoner or suspect constitutes torture under the laws of the country. Roshan underwent several surgeries in an attempt to save his life but by 7.30pm of 1 June 2011 he succumbed to his injuries. When announcing his death the doctors further detailed that the gunshots in the hip area had caused massive damage to the internal organs. The doctors further explained that Roshan died due to severe hemorrhaging.
412
Apart from the unjustified shooting the conduct of the police officers violated the legitimate right to the workers freedom of expression, freedom of speech and freedom of peaceful assembly as well as their right to freedom from torture and arbitrary arrest. It was only due to the heavy internal and external pressure from different parts of the word and peoples forums that the Inspector General of Police (IGP) accepted responsibility for the incident and announced that he was withdrawing from his service. (He was later given the post of Ambassador to Brazil, hardly a punishment posting). Several days later only two police officers, the Officer-in-Charge (OIC) of Seeduwa, Chief Inspector R M Rathnayaka and the OIC of the Environmental Unit of the same police station Inspector of Police (IP) RPKL Ranasinghe were arrested by the Criminal Investigation Division (CID) of the Sri Lanka Police. They were produced before the Magistrate of Negombo and remanded. The case was taken up on 15 August 2011 for consideration of the bail applications filed by the two police officers. The Magistrate transferred the matter to the High Court of Negombo for further consideration. When on 18 August the matter was taken up the High Court Judge enlarged both officers on bail. The act of murdering a person and causing serious injuries to many others by indiscriminate discharge of weapons constitutes crimes under the Penal Code of Sri Lanka. Legally suspects arrested for committing murder cannot be enlarged by a Magistrate. Even the High Court cannot enlarge a suspect arrested for committing murder until the investigation into the case is concluded. Further, if the matter received a high degree of public interest this should also have been considered by the deciding judge. In this particular matter several thousand workers, trade unions of the country and civil rights movements, nationally and internationally paid attention from the very beginning of this case. They all collectively raised their voices seeking justice for the victims (For further photo of protest, please see http://www.humanrights.asia/news/urgent-appeals/images/2011/AHRCUAC-184-2011-03.jpg/). However, as is customary in Sri Lanka the states law enforcement authorities have not shown any interest in carrying out a credible investigation. Further still, the state has not arrested all the responsible police officers who took part
Sri Lanka
413
in the incident. These are the DIG, SSPs, ASPs and OICs who were at the scene of crime and who guided and supervised the shooting which caused the killing and injury. Later the Presidential Secretariat announced that Roshans family would be granted Rs. one million i n c o m p e n s a t i o n . H o w e v e r, Roshans family have categorically stated that this compensation must in no way compromise the responsibility of the state to prosecute the guilty parties. Due to the unwillingness of the police to take action against their own and the failure of the state to bring them into conformity with international norms justice has been denied to the victims and their families. Who gave the orders to use live bullets on protesters at Katunayake?3 The government of Sri Lanka has announced the appointment of a oneman commission to inquire into the shooting at Katunayake on May 30, where, according to reports over 200 persons were injured when police opened fire against demonstrators using live ammunition. About 20 workers are reported to have been critically wounded and are being treated at hospitals. The protests were part of an Island-wide campaign against a proposed law endangering the provident fund of the workers of the private sector. In the aftermath of the shooting the government announced that the bill will not be presented to the parliament. The use of live ammunition has come under public condemnation, even from some of the government ministers. The one-man commission of inquiry was appointed in answer to such criticism.
AHRC STM 069 2011; June 1, 2011.
414
However, the mandate of the one-man commission is not clear. The basic questions that any public inquiry must resolve are: Who gave the orders to use live ammunition against the protestors? What is the top most authority that authorized such use? Who was the highest ranking officer on the ground who gave the orders to use live ammunition? Were the protestors warned prior to the police opening fire and were warning shots fired before deadly force was used. How many rounds of ammunition were expended and by whom? Was it the intention of the authorities to use of such deadly force in order to bring the protest to an end and was it pre-planned? As for the top most authority that authorized the use of live ammunition it is most likely that the orders came from the Secretary of the Ministry of Defense or someone working under him. Further, it is also unlikely that such a shooting would take place without the knowledge, if not the tacit consent of the Inspector General of police. Will the one man commission have the power and the will to investigate this matter in order to meet the requirements of the rule law? Will there be a forensic inquiry into all aspects of the shooting, for example an examination of all the weapons used during the incident? What are the means available for the one-man commissioner to conduct such an inquiry in terms of the requirements of criminal law? These are just a few of the questions that need to be answered if the inquiry is to be credible and genuine and not just another white wash. 2.3 SRI LANKA: A report on 323 cases of police torture4 (The Asian Human Rights Commission has issued a report on 323 cases
AHRC-STM-085-2011; June 24, 2011.
Sri Lanka
415
of police torture in Sri Lanka. We reproduce below the introduction to the report) The Asian Human Rights Commission (AHRC) has compiled a report of 1500 cases of police torture in Sri Lanka between 1998 and 2011. This particular report summarizes 323 of the most serious cases of torture. The most notable finding of this report is that almost all of the victims whose cases were summarized were randomly selected by the police to be arrested and detained for a fabricated charge. Perhaps the most shocking aspect of the criminal justice system in Sri Lanka is the overwhelmingly large number of charges which are fabricated by the police on a daily basis. Torture is used to obtain a confession for these fabricated charges. The Failure of the Complaints System The reason for such arrests lies in the inefficiency and ineffectiveness of the complaint system. Firstly, complaints give rise to opportunities for the police to make social, political or financial gains, by means of bribery or extortion of the victims. If victims fail to pay these bribes, they may be tortured. There are numerous complaints made by citizens regarding crimes and disputes that the police are unable to resolve by way of competent criminal justice enquiries. The inaction of the police leads to a rise in public pressure which the police counter by randomly selecting people, usually from those of less privileged socio-economic statuses, as perpetrators of these crimes. These unsuspecting people rightly deny their involvement in the crime in question, and torture is used to force them to sign confessions written by police officers. There may be occasions in which the police are able to determine who the true offender is, but these offenders are often well-experienced in the art of bargaining with the police and maneuvering the criminal justice system, and are thereby kept from their rightful punishments. The Loss of Command Responsibility The use of police torture has become endemic to the criminal justice system in Sri Lanka today, but it has been a problem since the establishment of the criminal justice system in colonial times. The most striking difference between the torture that took place then and that which takes place now is
416
the pervasiveness of state-sponsored violence today. In the past, there were controls placed on the police from the high-ranking officers, from the Inspector General of Police (IGP) to the Senior Superintendents of Police, the Deputy Inspector General of Police, Assistant Superintendent of Police (ASP) as well as the Officer-in-Charge (OIC) of each police station, to ensure professional integrity at each level of the system. These controls, which served to maintain professionalism and efficiency within police stations, have been dissolved. The Failure of ASPs to Supervise Police Stations The officer immediately responsible for any problems within the police station is the ASP. While the OIC supervises the daily goings-on within the police station, it is the duty of the ASP to supervise the OIC and, by extension, the activities of the police station. The ASP should ensure that each station within their area is following all the rules stated by the police departmental code. Within this code, there are a number of standard procedures for supervision. For example, the duties of the OIC include reviewing criminal files, looking into the conditions of the detainees and ensuring that procedures regarding arrest and detention are followed. This supervisory aspect has all but disappeared. Any understanding of police torture in Sri Lanka should involve an examination of the failings of the ASP in their basic duties. The ASP and other high-ranking officers are supposed to supervise the OIC and other police officers, and ensure that police duties are carried out with efficiency and professional integrity. However, such responsibilities exist only in name, and are rarely carried out in practice. The Control of the Policing System by Politicians At this point, an examination of the factors that led to this deplorable state is required. It is clear that the 1978 Constitution had an extremely negative effect on the policing system. This constitution led to the politicization of the police by politicians - particularly the President and the Minister of Defense, as well as powerful members of the ruling party who began to control the actions of the police. Since professional etiquette had to be flouted in order to meet the needs of these politicians, investigations were not carried out according to the rule of law. Politicians would demand for certain citizens to be arrested or released for reasons of social gain or political expedience. Police officers have repeatedly said that to deny requests from high-ranking state officials would result in demotions, transfers or even the loss of their jobs. Nevertheless, this is not a sufficient excuse for their departure from the procedures of the law. The law states that police officers should not obey any orders other than lawful orders
Sri Lanka
417
from lawful superiors, i.e. the OIC up to the IGP. However, this hierarchical order embodied in the command responsibility doctrine does not operate effectively in Sri Lanka. As a result, the policing system is failing. Moreover, the police officers themselves have lost confidence in the political system due to their constant need to grapple with the internal contradictions of the inability to enforce command responsibility and a presumed obligation to use their roles to meet the needs of politicians. A few case examples Roshan Chanaka: This situation has produced cases which are undeniably deplorable. Each of the cases we will discuss is a demonstration of the dire state of the Sri Lankan policing system. The most recent case was of a young worker in the Free Trade zone, Roshan Chanaka who was shot by police in the factory where he worked. Government officials later admitted that there had been no reason for the police to use firearms on workers, particularly one who had not aroused their suspicion in any way. As a result of this incident, government officials ordered for each of the 80 officers at the local police station to be transferred. But such a transfer does not alleviate the problem. Gerald Perera: Another well-known case is that of Gerald Perera. Mr. Perera resided close to Sri Lankas capital city Colombo, in the suburb of Wattala. In the nearby town of Hendala, there was a triple murder, but the police were unable to ascertain any suspects for this crime. The case was passed on to the ASP who asked the special team of police headed by an ASP to investigate the crime. Under the guidance of the ASP, the team arrested Gerald Perera. There was no evidence of any kind to warrant suspicion of Mr. Perera specifically, the only information the unit had was that a man named Gerald knew something about the incidents. This information led the unit to arrest the first man named Gerald who they could find. Mr. Pereira was a harbor worker and was married with three children. He was arrested and taken to the police station without any information as to why he was being arrested. He was then hung from ceiling beams and beaten with iron rods as police officers demanded information about the murders. These facts were established in the Supreme Court. The court found that there was no reason for arrest and, even if there had been reason, Mr. Perera should have been released upon the police learning of his whereabouts on the night of the murder.
418
However, this did not happen, and as a result of the torture inflicted upon him, Mr. Perera suffered renal failure and was unconscious in the hospital for over two weeks. This incident underwent a criminal investigation over three years after it took place, and the Supreme Court found the police officers who handled Mr. Pereras case to be guilty of torture. During the investigation, when the police officers became aware that they would be imprisoned for seven years for this crime, they killed Mr. Pereira before he could give evidence in court. The murder case of Gerald Pereira continues to this day. Case of Sarath Kumara Nidos: Another case that demonstrates the irrationality and violence with which police officers treat suspects is that of a man called Nidos from Moratuwa. Nidos was a worker who was arrested, brought to the police station and subjected to physical assault, as officers demanded that he hand over gold items that he had stolen from a residence. Nidos had no involvement in the crime in question, but police officers continued to torture him for over nine days, under the assumption that he would divulge information under duress. Over the course of the nine days, Nidos family made a number of complaints to the IGP, the countrys national human rights commission as well a number of other organizations. The various institutions informed the police of the familys complaints, and the police produced fabricated evidence in court that Nidos had been found in possession of illegal drugs on the night before his arrest, and was therefore ineligible for bail. Even though his family had made official complaints to a number of authorities about the behavior of the police towards Nidos, no enquiry of the police was made because this would have led to disciplinary action and potential suspension of the OIC of the station. The other supervisory officers were well aware of what had happened, but chose to keep silent on the matter. Many months later, a high court judge released Nidos on bail, stating that the charges had been found to be false. This is the manner in which the police operate within the criminal justice system. Higher officers do not investigate charges that lower-ranking officers have committed torture. ASPs do not act on complaints made by citizens for efficient, effective action and intervention into crimes. Why has this System Ruptured? Firstly, lower-ranking police officers often have connections with local politicians, whose word takes precedence over that of higher-ranked officers.
Sri Lanka
419
Secondly, the police officers are well aware of the failings of the system, but they are under pressure by the public to convict criminals. Furthermore, they often feel that if they interfere with this method of handling cases, there will be conflicts between the higher and lower ranks, and they are wary of disturbing this established order. The Constitutional Reasons for the Collapse of the Police -- Replacing Legal Mechanisms with Extra-Legal Measures: The fissures within the institution of the police are symptomatic of a deeper collapse of the rule of law in Sri Lanka. The 1978 Constitution paralyzed public institutions. The 17th Amendment, which introduced a system of credible selection of higher officers on the basis of merit rather than political interference, was passed to remedy the effects of this constitution. However, the 17th Amendment was indirectly abolished by the 18th Amendment, which nullified the statutes outlined in the 17th Amendment. As a result, there is no working rule of law system in Sri Lanka. In the absence of such a system, the state must rely on extralegal methods to control crime and other forms of civil unrest. Numerous problems then arise because it is not possible to control extralegal methods through legal means. Those who adopt ad hoc mechanisms to deal with civil unrest cannot be expected to act according to the rule of law. It is this difficulty that makes it almost impossible for Sri Lankan society to effectively counter police torture, extrajudicial killings, disappearances and corruption. When all effective mechanisms are extralegal, and there is no legal mechanism that functions effectively, the rules by which society operates lack structure and order. The Sri Lankan people are making efforts to publicize their complaints with the use of YouTube and other such technological means. But ultimately, these complaints are of no use because the system is grounded on extralegal mechanisms, so these complaints will never be seen within a rule of law framework, and therefore cannot be investigated according to legal methodologies. Impossibility of Investigations into the State Approved Extra-Legal Actions This has led to a situation of chaos; it is impossible to effectively investigate a case of torture in Sri Lanka. There have been attempts to change this system. Act 22, which was passed in 1994, did recognize torture and other cruel, inhuman and degrading treatment as a crime. Moreover, it stated that the punishment for torture by a police officer would be seven years imprisonment.
420
This act has been enforced in the past, but has not been implemented in recent years. Stopping Investigations into Torture by Special Investigations Unit of C.I.D The method of enforcing the Convention against Torture (CAT) Act was through investigation, which, between 2005 and 2008, was done through a special unit of enquiry of the criminal investigation division of Colombo. The special unit consists of a number of highly experienced police officers who work outside of the normal system and are under strict supervision by higherranked officers. A high level of investigation and discipline is expected from these officers. Cases would be referred to this unit by the Attorney Generals department or the IGP, and then investigated. While the original system was in place, investigators had sufficient evidence to find that torture had taken place in over 60 cases, and indictments were filed against the suspects in question. However, since the appointment of CR De Silva and, thereafter, the appointment of Mohan Peiris as Attorney General of Sri Lanka, references to the special unit have been halted. CR De Silva and later Mohan Peiris have stated that they do not want to bend to pressure from external agencies, namely the United Nations and other human rights organizations, which have called for credible investigations into crimes. CR De Silva made a policy to dismiss these complaints and employed a new system where complaints are received and investigated by the Attorney Generals department, and if necessary, are then referred to this special unit. This system has also been dissolved. Today, there is no credible method of investigation into torture in Sri Lanka. Despite numerous recommendations by UN agencies and human rights organizations, the recommendations of the act have not been implemented, and the CAT Act is seen as little more than a piece of paper. So long as credible investigations into torture do not exist, there is no possibility for the elimination of torture at the hands of state officials. Stopping Inquiries by the National Human Rights Commission There have been minor forms of criminal investigation into torture by the countrys National Human Rights Commission. However, rather than being thorough investigations in a criminal law sense, these investigations are more like mediation sessions similar to a labour tribunal. But even these investigations have ceased due to lack of compliance. Indeed, Sri Lankas human rights commission does not have any effective, functioning capacity.
Sri Lanka
421
The Changes in the Adjudication of Fundamental Rights Cases The third remedy available for remedying torture is that of fundamental rights. With this remedy, the complainant would file a complaint as an affidavit. If the court is satisfied that there is prima facie case, they will issue notice. A rule has been established within the Attorney Generals department with reference to cases of torture that states that the Attorney General will not defend defendants, and will not interfere even if the Attorney General is made a party to the complainants. Moreover, the Attorney General will not testify on behalf of police officers. However, when a case is brought to the Supreme Court, the case is often referred to the Attorney Generals department without issuing notice. The Attorney Generals department then contacts the police for their opinion on the matter. This opinion is often given without investigation, and the Attorney Generals office will then state these objections to the petition in court. Since objections are made at this stage rather than when the notice is initially issued, the trial is delayed, sometimes for many years, and justice for the torture victim becomes a distant dream. Since the victims of torture generally come from a lower socio-economic background, a drawn out legal process is particularly difficult because Sri Lanka does not have a state-sponsored legal aid scheme. Delays and Absence of Witness protection Moreover, the delays in trials for numerous years often result in increased pressure on both victims and witnesses of crimes. There is no witness protection scheme in Sri Lanka. A law was proposed about two years ago by the Parliament, but it has not been brought forward for discussion since then. This is a deliberate attempt to allow these practices to continue. Indeed, if witnesses do have protection, more witnesses will come forward with credible information about cases and the legal process will be forced to operate more efficiently. The absence of a witness protection scheme serves to paralyze the legal process. Consequently, people are reluctant to make complaints and those who do complain often rescind their complaints partway into the investigation process. If victims and witnesses do not come forward with complaints and information about crimes, constitutional remedies cannot take place. As a result of this legal paralysis, an inherent understanding of what is legal and illegal is rendered meaningless.
422
Displacement of the Law These are the kinds of problems that are intertwined with the issue of police torture. Torture at the hands of state officials is a great problem, but in the wider scheme of Sri Lankas collapsed rule of law system, it is only a symptom of a larger problem of state and societal loss of respect for the law. There is no investment being made into the maintenance of a functional legal system under command responsibility and legal rules. The politicization of these systems has collapsed the legal process and made the welfare of citizens dependent on the whims of politicians. When there is a legal vacuum, society and the state rely on extralegal forces to control civil unrest and other illegalities. Thereafter, there is greater potential for military agencies to play a primary role in the maintenance of societal control. Criminals Allowed Function as Enforcers of Law Moreover, there is greater possibility for criminals to take on roles as enforcers of order and maintenance of society. We can take the incident that took place with the boy in Karunika as an example of this. When people organized demonstrations, there were employees of politicians waiting to assault them with poles. Since these assailants play a great role in the rule of law system, people tend to go to them rather than law enforcement agencies to make complaints and solve problems. The Executive is Above the Law The most important element of the criminal justice system that must be altered for torture to be eliminated is the 1978 Constitution, which allows for the supremacy of the executive over the judiciary. The judiciary must be re-empowered to play the role required of them in a functioning democracy. They must work to bring the policing system back to function with command responsibility. These are difficult challenges but if they do not happen, there will inevitably be more torture and more criminality. In the future, the military could step into the vacuum created by the collapse of the policing system l, and the anarchy that exists at present could become even worse.
Sri Lanka
423
2.4 The body of the disappeared human rights activist Pattini Razeek exhumed 5 Mr. Pattini Razeek, a well known human rights activist and a member of the executive committee of Forum Asia disappeared on February 11, 2010, yesterday (July 28) his body was exhumed before the Valachchenai Magistrate. The body had been buried within a half built private house in a remote village in Uddamaveli, Valachchanair and the location was identified due to a lead given by a suspect. The body has been sent to the government analyst department for scientific identification on the orders of the Magistrate. For the last one and a half years there had been a continuous demand from the members of his family, from the people in his residential area as well as from human rights organisations in Sri Lanka and abroad for an investigation into his disappearance. Razeek was the head of the Community Trust Fund (CTF), a Sri Lankan NGO based in the town of Puttalam. The discovery of the body should be the beginning of the process of uncovering the circumstances leading to the death of this human rights activist and community leader. It is the duty of the government to ensure a thorough enquiry into all the circumstances surrounding the mystery of this disappearance and to place before the courts the entire evidence relating to the conspiracy for this murder. Obviously this murder and the disappearance is a part of a well thought out criminal conspiracy.
Pictures courtesy of Daily Mirror
AHRC-STM-099-2011; July 29, 2011.
424
The circumstances of this disappearance and murder suggest the involvement of powerful forces for the causing of this crime as well as for the attempt to hide the body. The reports published earlier suggest political motives for this murder. The events relating to the disposal of the Community Trust Fund also suggests that there were interested parties to make claims for this trust fund after his disappearance. All these factors need to be thoroughly investigated and brought to the notice of the court and the public. The public in Sri Lanka has a great interest in the outcome of these investigations. For a long time the causing of forced disappearances has become a common phenomenon in the country. So far there has not been a single case of a disappearance which has led to the discovery of the culprits. The perpetrators of disappearances have enjoyed immunity in almost all instances of such occurrences. This first discovery of the body of a person who was considered to have been disappeared should lead to a great demand from the community for accountability. As the inquiries are of the greatest public importance such inquiries should be conducted with transparency. It is necessary, not only to uncover the direct perpetrators of this crime but what is even more important is to uncover the conspiracy behind this disappearance and murder. The Asian Human Rights Commission urges the government of Sri Lanka to conduct speedy and credible inquiries through competent and impartial investigators and to speedily bring the matter before the court for trial. The AHRC also urges complete transparency into the inquiries so that the public should have access to all the information relating to this heinous crime. The AHRC also urges the Office of the High Commissioner for Human Rights to ensure proper monitoring of this important case with the view that the circumstances surrounding such occurrence could be fully revealed. Thousands of other cases of forced disappearances remain unresolved. The families of such disappeared persons should be given opportunities to make their complaints to competent authorities and to demand inquiries into such disappearances. The failure to ensure enquiries into such heinous crimes amounts to a conspiracy to ensure secrecy relating to such crimes. As the numbers of the persons making such complaints are many there should be a more robust response from the government to ensure credible enquiries. At the time of the recovery of Razeeks body the case of Prageeth Eknaligoda will naturally come to the minds of the Sri Lankan public. The demand for
Sri Lanka
425
enquiries into his forced disappearance has been made forcefully by his family as well as many concerned groups in Sri Lanka as well as by the international community. It is the duty of the Sri Lankan governemtn to responde to such demands and to ensure a credible inquiry by competent and impartial investigators into his disappearance. 2.5 A review of Sri Lankas compliance with the obligations under the Convention against Torture and Ill-treatment6 The following is a review of Sri Lankas compliance with the obligations under the CAT. The Asian Human Rights Commission receives complaints relating to the practice of torture and ill-treatment by the police in Sri Lanka on an almost daily basis. After verification these reports are published by the Urgent Appeals programme of the AHRC and letter are written to the authorities of Sri Lanka and the relevant authorities in the UN agencies relating to each of these cases. During the time between the 46th Session of the Committee and the 47th Session literarily thousands of such cases have been received and dealt with in the manner described above by our commission. The 323 cases which are summarised in a report recently published by the AHRC (See the link below) and these are only a fraction of the actual number cases of torture. This cases summarised in the report are a sample of the kind of complaints relating to torture which describes the circumstances under which torture takes place, the type of torture which is being practiced, the reasons for such practice and the deficiencies of the law, legal procedures and the mechanisms of the receipt of complaints, investigation of complaints, the prosecution of such complaints and the litigation process. The defects in the substantive aspects relating to the obligations of the state: The CAT Act is merely a paper law: Sri Lanka has criminalised torture by the CAT Act , Act No. 22 of 1994 which has created a criminal offense relating to torture and ill-treatment and prescribed seven years of compulsory imprisonment and a fine of Rs. 10,000/=. However, this is by now merely a paper law. As a matter of policy the government has stopped investigations
AHRC STM 095 2011; July 8, 2011.
426
into complaints under this act and/or to prosecute under this law. Until about 2008 there were some investigations conducted due to international pressure. However, this practice has been officially abandoned since then. From 2009 there has not been a single case investigated or prosecuted under Act No. 22 of 1994 despite of the complaints related to torture being received almost on a daily basis from almost every police station in the country. The decision not to conduct investigations or prosecute under this Act was the governments response to the resistance developed by some sections of the police against such investigations and prosecution. The failure to implement this law is also for policy reasons in order to discourage complaints being received relating to torture and ill-treatment. In recent years the government has developed the public policy to the effect that making of complaints relating to torture and other human rights abuses are against the public image of the government and the government is being internationally embarrassed by such complaints. Internally the government carries on a heavy propaganda attempt against human rights organisations who support the victims of torture and ill-treatment and other human rights abuses as being unpatriotic. Heavy pressure is exercised against the complainants of human rights abuses as well as organisations and individuals who support such victims. When the government openly pursues a public policy of portraying victims of abuse and human rights organisations as unpatriotic the whole purpose of Act No. 22 of 1994 is defeated. No law relating to compensation: Sri Lanka does not a law relating to compensation for victims of torture and ill-treatment. Thus, the state fails to respect the requirements of article 14 of the CAT. There has never been any discussion at a legislative level of bringing a law to articulate the rights of the victims for compensation. The constant policy of discouraging victims from complaining also goes against the state obligation to create a conducing atmosphere for bringing legislation in order to meet with the obligations of the state in this regard. The civil society organisations are discouraged by such negative atmosphere against free speech for the promotion of human rights. No law relating to rehabilitation: The Sri Lanka government has failed to recognise its obligation regarding rehabilitation of victims. The very idea of the legal responsibility to restore to the victim that which he has lost by way of abuse remains alien to Sri Lankas legal culture. The obligation to provide trauma counseling or to provide medical assistance for acute stress disorder or post traumatic stress disorder and other psychological problems are not acknowledged in any manner by the state. No legislative provisions have been made for such ends. There are also no policy discussions and therefore it is most unlikely that any legislative measure will be created for this purpose in the near
Sri Lanka
427
future. The general atmosphere of discouragement of public speech and debate affects negatively the development of law and practices regarding rehabilitation of victims. Procedural requirements for implementing the obligations of the state relating to the CAT The absence of a credible and functioning complaint mechanism regarding torture and ill-treatment. The state has failed to develop such a complaint mechanism and the tendency in recent years is to discourage the development of any such mechanism. Even some avenues which existed under the countrys criminal procedure for making such complaints at police stations is not implemented due to negative practices which have been allowed to take place at police stations. The persons who go to make complaints are often sent away with having their complaints recorded and often are also abused and even threatened when they reveal that their complaint is relating to police officers. The higher ranking officers are not trusted by the people as being willing or capable to conduct investigations relating to their subordinates. Many complainants have repeatedly complained about various harassments they have suffered due to making such complaints. In the past there have been two assassinations of torture victims due to the complaints they has made against those who subjected them to torture. The cases of Gerard Perera and Sugath Nishanta Fernando are well known. Sugath Nishanta Fernando who was killed while pursuing a complaint against the police was assassinated and there has been no credible investigation into his murder despite of attempts by even international agencies to demand an inquiry. A case is pending before the United Nations Committee against Torture relating to the failure of the state regarding this murder. In the past there had also been some forms of complaint making at the Human Rights Commission of Sri Lanka (HRCSL). However, this commission has lost its credibility due to arbitrary appointments and for the absence of any serious actions regarding violations. The absence of a credible and functioning investigation mechanism into torture and ill-treatment. For a short period between 2006 and 2008 the investigations into complaints of torture and ill-treatment was handled by a Special Inquiry Unit of the Criminal Investigation Division. During this period over 60 cases were found to have adequate information for the filing of indictments under the CAT Act, Act No. 22 of 1994. The practice of referring cases for investigation by the SIU was started as a result of interventions by Theo Van Boven, then the Special Rapporteur against Torture and Ill-treatment. The methodology adopted was for the Attorney Generals Department to refer
428
cases to the SIU and the SIU, after investigations would submit their report the Attorney Generals Department for consideration for the filing of indictments. This practice was discontinued after 2009 when C.R. De Silva became the Attorney General and the present Attorney General, Mohan Peiris continues the same policy. The result is there is no credible investigator to investigate complaints under Act No. 22 of 1994. As pointed out earlier the result is the absence of prosecution under the CAT Act and thus this law of criminalising torture has just become a paper law. The non-prosecution of cases under torture is now a matter of GOSL policy. The change of policy relating to torture and ill-treatment at the Attorney Generals Department. The policy change which took place in the Attorney Generals Department from the time that C.R. De Silva became Attorney General has been pointed out in the earlier paragraph. Besides this the overall approach of the AGD regarding torture has also changed drastically. Since the late 1990s there was a policy for the Attorney General not to represent any public servant accused of torture and ill-treatment under the fundamental rights provisions of the Constitution. After 2010 this policy has been changed by Mohan Peiris as the Attorney General. Now, when applications are filed under the Constitution on violations of fundamental rights relating to torture notice is issued to the Attorney General. The Attorney Generals Department thereafter appears in the Supreme Court to take objections for continuing of applications under fundamental rights. Thus the Attorney Generals Department contacts the police officers who are made respondents and assists them in filing objections and taking up objections against this application. Thus, the original policy of non-appearance for public servants has been altered by the Attorney Generals Department. The present position of appearing for respondents is contrary to principles as the Attorney General is the prosecutor if cases are to be filed against respondents under the CAT Act. To defend respondents against accusations of torture under fundamental rights and at the same time to be officially responsible for prosecutions in torture cases is to play a self contradictory role. It is ironical that the Attorney General also usually accompanies the government delegation to the CAT Committee to present the governments position relating to the implementation of the CAT. The role that is usually played is to deny the violations of the CAT or to create a portrait that the obligation under the CAT is being carried out faithfully by the government. In playing these many roles the Attorney Generals Department has to twist facts relating to allegations of torture. In any case the Attorney Generals Department by now has become a department that directly functions under the executive president and carries out the instructions of the government. No impartial role regarding the protection of the victims of torture can be expected from this department by now.
Sri Lanka
429
Defects in judicial interventions for the protection of victims of torture. Under the CAT Act, Act No 22 of 1994. The problems relating to complaints, investigations and prosecutions mentioned in the earlier paragraphs affects the judicial interventions as virtually no new cases are filed under the CAT Act. The court can act only if investigations are made and prosecutions are filed. However, even regarding the earlier cases where such cases have been filed the defects in the judicial system seriously hamper the effective redress under the CAT Act. The trials at the High Courts take many years, as much as four to ten years, and as a result the prosecutions have become ineffective. During the long periods many judges and prosecutors change while each case is taking place before a particular court. In many instances as much as six or seven judges many sit before a trial is completed. The judge who finally writes the judgment has not had the opportunity to see the demeanor of many of the witnesses. The judges have to rely on reading the written record of evidence alone in writing judgments. Some of the judgments create doubts as to whether the judges have, in fact, read the written report. For example in the case of Lalith Rajapakse which was heard before the Negombo High Court there was detailed medical evidence including a written medial report stating that the victim had suffered many injuries including injuries to the foot. The victim himself also gave evidence to that effect. However, the trial judge strangely held that there was no evidence to support the allegation relating to the beatings on the foot. An appeal on this case is now pending. The delays also provide the opportunity for witnesses to be threatened, physically harmed or even killed. As mentioned before two of the torture victims awaiting trials were assassinated. There are many instances where complainants either do not come for cases before courts to give evidence or even change their earlier versions of the statements due to threats or sometimes other incentives to abandon their claims. Besides this some witnesses die and other witnesses leave the country for employment and other purposes thus making it impossible for their testimonies to be recorded in courts. It can also be said that many of the Sri Lankan judges do not demonstrate adequate legal knowledge about torture and ill-treatment and often some tend to sympathise with the officers who are facing the charges. The victims of torture come from the poorer sections of society while often the officers are those who frequent courts for various official purposes. Besides the absence of adequate knowledge and seeming lack of interest there are also matters of policy in the time of civil conflict which seems to mitigate against the prosecutions against the torture. These prosecutions are often perceived as having a disturbing impact on police and military officers who enjoy privileged positions due to the overall security policies pursued in the country.
430
Fundamental rights -- the fundamental rights jurisdiction also suffers from many defects. Declarations do not lead to any consequences: The declarations made under the fundamental rights jurisdiction by the Supreme Court stating that violations relating to torture have been done by the respondents, meaning police or military officers for the most part, does not have any direct practical consequence. It does not affect the further employment of these officers in their departments or their promotions. The respondents of many cases are still in the police and several of them have received promotions even to higher positions. Amounts in financial awards low: Further, where compensation is awarded the financial awards are of very low amounts and in no way reflect the obligations of the state under the CAT for compensation of torture victims in terms of covering their medical costs, legal costs as well as compensation for the psychological damage. The Sri Lanka Supreme Court has not yet adopted legal principles relating to the assessment of responsibilities for causing psychological damage to the victims. Many of the victims suffer serious abuse at the hands of the respondents which can cause trauma, acute stress disorder, post traumatic stress disorder as well as many other forms of psychological damage. A few years ago the Supreme Court adopted better standards for the assessment of compensation, for example, in the case of Gerard Perera and also a few other cases. In Gerard Pereras case the total compensation came to Rs. 1.6 Million which is around US$ 16,000. That was even then not calculating the damages from the point of view of psychological injury. However, in recent cases where the torture is proved damages may run to around Rs 5,000 to 100,000 in very rare instances. That is between US$ 50 to 1,000. Perhaps the reasons for reducing the amounts of damage may be to discourage more persons from pursuing cases. However, the clear policy reason for such reduction has not been stated. Attorney General plays a negative role: A further defect of the fundamental rights jurisdiction is that from very recent times even before notice is issued to respondents the Attorney General is given notice and he comes before the court to object to notice being given on these applications. As the objection taken by the Attorney General at this stage is on the instructions of the respondents there is no evidential basis for the Attorney General to appear at this stage. The Constitution provides that the court can issue notice if they are satisfied that there are grounds for a prima facie case. This new practice of hearing the Attorney General before issuing notice for the respondents acts in favour of the respondents and is quite open to abuse.
Sri Lanka
431
Evidence on affidavits alone is adverse to the victim: An even further defect in the fundamental rights jurisdiction is that the entirety of the proceeding depends on affidavits and no credible inquiry by an investigating unit makes an inquiry into torture and submits a report to the court. When the Supreme Court received a complaint of torture by way of a fundamental rights application it could refer the matter to a Special Investigation Unit of the CID through the IGP who is always an official respondent. If a special unit makes such an inquiry under the instructions of the Supreme Court they are likely to conduct a credible inquiry and thereby an inquiry into torture by the state in terms of its obligations could be ensured. Mere reliance of affidavits is often to the disadvantage of the applicant who is a lay person and more often than not, a person from the poor classes of society. Thus such torture victims cannot be expected to have all the resources and the capacity in order to find out all the matters relating to the violations of their rights to be placed before the courts. In cases where an SIU of the CID have conducted investigations into torture complaints they have come out with a great deal of evidence which the ordinary layman is unable to have access to. For example in such SIU inquiries documents in the possession of the police stations have been looked into and often much evidence has been found to support the victims allegations. All the considerations shown above require a reexamination of Article 126 of the Sri Lanka Constitution and ways to improve this remedy should be found. However the present policy of the GOSL to discourage investigations into torture and other allegations of human rights is likely to affect the fundamental rights as a remedy adversely. GOSLs constitutional impediments to implement the obligations under the CAT. The 1978 Constitution of Sri Lanka places the executive president above the law and thus diminishes the power of the judiciary to protect the individual as against the state. Sri Lankas Constitution is incompatible with the principles of rule of law. The country has been suffering from a collapse of the rule of law since 1978. Sri Lanka is, in fact, incapable of implementing the obligations under the CAT due to the nature of the constitution in the country. Without a fundamental change to the constitution to bring the executive under the rule of law it is not possible for the GOSL to implement the obligations under the CAT within a legal framework. In fact, this is the most important factor in dealing with the human rights problems in Sri Lanka. The impunity relating to human rights abuses including violations relating to torture and ill-treatment are guaranteed by the constitution itself. Sri Lanka has a system of constitutionally entrenched impunity.
432
Perhaps this may not be an issue that the CAT Committee can deal with in their usual procedure. However, without dealing with this issue the GOSL will not have the capacity to implement any of the recommendations of the CAT Committee. It is respectfully submitted that in order to have any practical impact the CAT Committee needs to go beyond their normal procedures and to question the GOSL regarding the constitution itself particularly in relation to the impunity guaranteed to the executive and the diminishment of the capacity of the courts to protect the rights of the individual conclusion The GOSL is neither willing nor capable of implementing the obligations under the CAT. That is the challenge that the CAT Committee needs to deal with if any kind effective remedy regarding the implementation of the state obligations relating to the CAT is to achieve any tangible results in keeping with article 2 of the International Covenant on Civil and Political Rights (ICCPR). As Jean-Jaques Rousseau has said in his Discourse: What is the Origin of Inequality Among Men, and is it Authorized by Natural Law: I should have wished then that no one within the State should be able to say he was above the law; and that no one without should be able to dictate so that the State should be obliged to recognise his authority. For, be the constitution of a government what it may, if there be within its jurisdiction a single man who is not subject to the law, all the rest are necessarily at his discretion. Please see the link to the report: http://www.humanrights.asia/countries/srilanka/countries/sri-lanka/resources/special-reports/AHRC-SPR-001-2011SriLanka.pdf executive presidential system and the supremacy of t56 2.6 Murders of father, mother and two children in Udawalawe7 While the whole nation was shocked by the multiple killings at Mulleriyawa, another set of gruesome murders have been reported from Puhulyaya, Panahakaduwa, in Udawalawe. A father M K Lalith (37), mother R Indrani
AHRC STM 149 2011; October 16, 2011.
Sri Lanka
433
Gnanalatha (32), son M K Dilan Chathuranga (12), daughter M K Nadeeka Sevuwandi (8) were killed due to a shooting which, according to reports, the police believe to be shots from a T 56 gun. The killings at Mulleriyawa also were done through the firing of automatic weapons. As of now, the killers of the family in Udawalawe are not known. The initial reports are that some persons who had come on a vehicle had stopped the vehicle a little way away from the house where the family lived, then walked to the house and killed the family, then gone back to the their vehicle and fled. However this story seems to be mere speculation, as there had been no witnesses to any of the aspects of this incident. After hearing some sounds like firecrackers some neighbours had gone to the house and found all four persons dead. There is also speculation that the deaths may be due to some financial transaction. Mr. M K Lalith, the father, is said to be a private bus owner and also engaged in some financial business. Again, hardly any details about these matters are available at the moment. Also, the killings of the wife and the two young children throws doubt about the motives for these murders. It may well be like in Mulleriyawa, the blast of automatic fire aimed at one may have kill them all. According to police reports they have no clue of any sort about the murder and they are investigating into the matter. Murders by automatic weapons have brought the acute problem of the increase in gruesome crimes to a new height. However, the use of such weapons during the conflicts in the south, north and the east were well known. These weapons are freely available, and there are also former solders, members of paramilitary groups and others who are well-trained to use such weapons. Under these circumstances this new trend in crime in no surprise. The spread of the news of the four murders of the family members has brought unrest in the area and it was reported that the police had to make special arrangements and reinforcements to deal with the issue. Such unrest is now a common feature as the recent incidents in Dompe after the extrajudicial killings of a young man arrested by the police, and the incident at Mulleriyawa, show. What were earlier called Grease Devil incidents sparked crowd protests against strangers who had entered into other areas and were suspected of having committed crimes. The fear of any stranger is now a common feature and this reflects enormous stress and unrest among the ordinary folk.
434
However, the most disturbing factor is that the government has neither the willingness nor the capacity to deal with these crimes, as the instrument through which the government deals with the control of crimes is a competent, independent and adequately funded policing system. It is through the introduction of the executive presidential system, which has politicized all public institutions in Sri Lanka, that the Sri Lankan Policing System came to the present state of leaderless incompetence and became extremely poor in its organizational capacity. The pathetic plight of the Sri Lankan Police is a truth known to the government, the leaders and others of the policing system itself, as well as the public. The government is deeply committed to the executive presidential system as found in the 1978 constitution. In fact, the government strengthened the executive presidential system by passing the 18th amendment to the Constitution thirteen months prior. Under this Constitution the most essential aspect of the rule of law, which is the supremacy of the law, was displaced by placing the executive president above the law. It is this displacement of the most essential component of rule of law that has brought the Sri Lankan Policing System to what it is today. The criminal elements in Sri Lanka are fully aware of the present order or the causes of what one retired Justice Kulatunga stated as Sri Lankas disorder. Criminal intelligence consists mainly of the capacity to explot the weakness of the criminal justice system for their own advantage. The weaker the system, the greater is their mastering of the skills to undermine law and order, and their engagement in crime to achieve their ends. 1978 Constitution has placed the president above the law. However this has not made him the Supreme Being who is capable of controlling everyone and everything. In fact he has been reduced to a powerless onlooker who has to keep on watching the most gruesome crimes every day and can do nothing about it. Even people who are most close to him like his brother, the Secretary to the Ministry of Defence Gotabaya Rajapaksha, and the Member of Parliament of his party Duminda Silva take law into their hands. Today it is the automatic weapons that have become supreme in the country. The government may have used this situation for their own advantage in elections and in the suppression of opponents. However now things have gotten out of control so completely that the government is unable to prevent its own members from killing each other with the use of automatic weapons.
Sri Lanka
435
The Secretary to the Ministry of Defence has cultivated a mentality of adulation for weapons and for those who are willing to use them, even if they are part of the underground elements. The close association of The Secretary to the Ministry of Defence with Duminda Silva, who is known to be one of the masters of the underground elements, speaks glaringly about the nature of the present day crisis. The problem of this crisis is that the government has no solution to it. The government has to go on their knees to such political figures as Duminda Silva, as shown by the manner in which the some of the top government leaders have been behaving since the Mulleriyawa murders. The government is today incapable of even disowning a person accused of multiple murders and other socially unacceptable activities. The government incapacity to deal with crisis is due to the importance given to the executive presidential system and the placement of the president above the law. This is a position that the government is neither willing nor capable of abandoning. The government when coming to power promised to abolish this system but since has done everything possible to strengthen it. The people are unhappy, angry and insecure. The incident at Udawalawe shows them what might happen to them on any day at any time. Once the dispute settlements are taken over by the criminal elements with automatic weapons, anyone could become a target anytime. Professionals such as lawyers, doctors, university professors and everyone else today face this danger. It was not long ago that a doctor working at the Uragasmanhandiya was assassinated and even up to now this crime remains a mystery. Even Dr. Nonis, the registrar of the Sri Lankan Medical Council, was attacked in open daylight for carrying out his duty relating to medical exams. In the future, in all these matters criminal gangs with automatic weapons may have the ultimate sa. People now need to find a political expression to their sense of insecurity, helplessness and frustration by finding a way to restore the supremacy of law by displacing the executive presidential system as found in the 1978 Constitution and strengthened by 18th amendment.
436
2.7 The criminal Justice system in Sri Lanka is a dead tree 8 That murder should not be looked on lightly and the murderers must be punished is one of the most basic moral judgments in any human society. The attitude taken by the Sri Lankan government that no legal action need be taken against Duminda Silva, who has been identified by witnesses as having instigated and taken part in an incident that ultimately ended in the deaths of four persons, is nothing less than scandalous. Playing games with this issue indicates the perversion that has taken the place of moral judgment. If there is no moral condemnation of murder what standard can a society base condemnation on -- nothing at all? Not long ago, there existed in this society the belief and feeling that a murderer must be brought to book irrespective of whatever high status he may enjoy. The manner in which Duminda Silva has been treated by the higher echelons of the government makes a nonsense of all that. Perhaps, the explanation is that once the rule of law system sinks into the abyss, a societys moral foundations sinks with it. The collapse of Sri Lankas rule of law system is such that the society cannot any longer protect its basic moral code. Even murder becomes an amoral issue. If political interference is the reason for taking no legal action against Duminda Silva then the IGP and Attorney General should have resigned in protest. That at least would have shown the public, there is still some reason for hope. However, the system is so dead, that even the idea of resigning in protest does not arise. The only morally justifiable course open to the public now is to boycott this dead system. 2.8 The 47th Session of CAT -- the government makes empty statements without firm commitments to halt violations9 Yesterday (November 8, 2011) the government delegation gave the state report relating to the questions raised by the Committee against Torture (CAT)
8 9 AHRC STM 153 2011; October 18, 2011. AHRC-STM-170-2011; November 9, 2011.
Sri Lanka
437
at the 47th Session of the CAT Committee. Mr. Mohan Peiris, a former Attorney General and now an advisor to the government presented the report. After making the report the committee members raised a large number of questions for which they sought answers from the government delegation. The government is expected to answer these questions today (November 9). The session was made available online. You may watch it at http://www. ustream.tv/channel/cat-webcast1. The opening presentation by the government delegation and their concluding comments at the end of the session demonstrated that the government is not taking this meeting seriously at all and is not making any commitment on concrete issues relating to the violations of the CAT in Sri Lanka. The government of Sri Lanka (GOSL) spent most of its time giving a very general commitment stating that the eradication of torture and ill-treatment is a common concern of all, including that of Sri Lanka. However, it failed to address the causes for the widespread use of torture and ill-treatment in the country and also the widespread impunity. The questions of the constitutional justification of impunity arising out of article 35 of the Constitution, which places the executive president above the law and outside the jurisdiction of the courts, thus making widespread impunity possible; the virtual stopping of serious investigations into torture by the Special Investigation Unit (SIU) of the Criminal Investigation Division; the failure to implement the CAT Act, No. 22 of 1994, the problems caused by policy changes at the Attorney Generals Department which now takes the side of the alleged perpetrators, rather than the victims of torture, enormous delays in the judicial process which frustrates any judicial action against torture and other serious defects in the system of the administration which acts to benefit of the perpetrators; the failure of the government to bring before the parliament and pass the witness protection law that has been pending for many years; the enormous defects in the exercise of fundamental rights jurisdiction; the pauper-like compensation awarded for serious violations of torture and the complete absence of the rehabilitation of victims, were all ignored in the governments presentation. No commitment of any sort was given on any concrete action to remedy these fundamental defects of the administration of justice. The GOSL harped on about what it calls an Action Plan for Human Rights which is not a law and about which very little known in Sri Lanka. It is more a cabinet paper designed for the purpose of being presented at international forums than for any practical purpose within the country. This Action Plan does not provide any answers to the questions mentioned above.
438
The overall tone was reflected in the concluding remarks of Mr. Peiris who said that the GOSL agrees 110 percent with the concerns of the Committee. In view of the absence of any concrete commitment to resolve long standing problems that violate the obligations under the CAT this was nothing more than an empty statement. In reality there may be torture but our law against torture is fine10 The second day of the 47th Session on Sri Lanka at the CAT took place yesterday (November 9, 2011). For our comments on the first day please visit http://www.humanrights.asia/news/ahrc-news/AHRC-STM-170-2011.. At this session the Sri Lankan delegation was required to reply to the long list of questions posed by the committee members the previous day. However, Mr. Mohan Peiris, who spoke on behalf of the government of Sri Lanka (GOSL) preferred to give a long tedious lecture on the law in Sri Lanka instead of answering questions which were about factual situations and actual violations. He was trying to turn the CAT session into a theatre of evasion. It was a performance more suited to Mr. Bean, not a person representing a sovereign government before an august body of the United Nations. Even on the law the impression that Mr. Peiris tried to create about Sri Lanka having a good system of law is altogether false. The 1978 Constitution has caused a complete collapse of the rule of law system in Sri Lanka by placing the executive president above the law and outside the jurisdiction of the courts. This has virtually diminished the importance of the judicial branch in Sri Lanka. Besides this fast track procedures established to amend even the Constitution and to pass other legislation is totally contrary to the process of making laws under a rule of law system. Some of the statements of Mr. Peiris were blatantly false. For example the statement that the habeas corpus have fallen out of fashion due to the provisions of the Fundamental Rights under the 1978 Constitution. Hundreds
10 AHRC STM 171 2011; November 10, 2011.
Sri Lanka
439
of habeas corpus applications have been filed since 1978, and as a recent study has clearly established, most of these applications have failed due to trivial reasons. Besides this the habeas corpus procedure which should be speedy, as it is in most countries, takes many years in Sri Lanka totally defeating the whole purpose of the application. Thus, the peoples unwillingness to file habeas corpus applications is due to the popular realisation of the futility of pursuing this remedy. This sense of futility of pursuing redress for violations of rights is a result of a judicial system that is being neglected and which has failed. In the same manner he refused to answer questions posed on the attacks on journalists and human rights defenders. When asked about the publication in Ministry of Defence website naming several lawyers as traitors his reply was that the publication, in fact, did no harm. He was unwilling to consider the liability of the Ministry of Defence in making such inflammatory claims against these lawyers. When asked as to what action was taken against the persons responsible in the Ministry for making such publications or what measures in place to ensure that this would not recur, it did not occur to Mr. Peiris to address such questions of accountability. Without any sense of ethics and responsibility Mr. Peiris made some remarks, like for example on the issue of the forced disappearance of Prageeth Eknaligoda. He said, that according to reliable information that he could vouch for, Mr. Eknaligoda has taken refuge in a foreign country and that the campaign against his disappearance is a hoax. Mr. Peiris failed to provide detailed information on the alleged whereabouts of Mr. Eknaligoda despite claiming that he had reliable information. The making of such statements as a representative of the GOSL is mean and totally unbecoming. Similar conduct displayed by anyone representing a state would lead to the taking of disciplinary action against him if, in fact, Sri Lanka was observing the rules of accountability as expected of any civilised country. The committee questioned the willingness of the GOSL to ratify the Optional Protocol to the Convention against Torture, the Convention against Forced Disappearances and the Rome Statute of the International Criminal Court. Despite of repeating the questions for the second time, there was no answer forthcoming from Mr. Peiris. On answering a question relating to the throwing of a grenade at the house of a lawyer Mr. Peiris replied that as the lawyer, Mr. Weliamuna himself could not tell the government who threw the grenade it was not possible to identify the culprit of this act. If this principle is followed in all cases of crimes the burden
440
will be squarely laid on the victim to discover the perpetrator, thus exonerating the state from conducting investigations into the crime and discovering the culprits through competent investigations. Considering that Mr. Mohan Peiris once held the post of Attorney General this answer demonstrates that he may not have had the basic knowledge of criminal law and procedure to qualify for such a position. Mr. Peiris also went on to say that the reason for not allowing the presence of lawyers during police interrogations is because confessions made to the police or other authorities are inadmissible in a court of law. What he was trying to evade was the responsibility of the state to ensure that a person in custody is not subjected to torture for whatever reason. The presence of a lawyer is a safeguard to ensure the absence of such ill-treatment at the police stations. When Mr. Peiris talked about Sri Lankas zero tolerance of torture one of the committee members pointed out that given the overwhelming evidence received from many sources about widespread torture practiced in the country he cannot accept that there is zero tolerance of torture in Sri Lanka. He reminded the Sri Lankan representative that what really matters is what happens in reality and that is what the committee was trying to clarify. These repeated requests to reveal information on the basis of questions asked on the real situation were blatantly dodged. When questioned about the allegations of sexual misconduct of Sri Lankan police officers sent to Haiti Mr. Peiris objected on the basis of not having prior intimation about the question. However, when pressed he was unable to inform the committee about what actions had been taken against these police officers regarding such serious violations relating to sexual abuse. No process of accountability of human rights can succeed if the government faced the United Nations human rights bodies with the intention of dodging all the pertinent questions posed. However, the Sri Lanka government adopting this position is no surprise as in so many public statements the GOSL treats the human rights bodies in the United Nations as hostile elements who are engaged in trying discredit the government. That the west is engaged in a propaganda war on human rights against Sri Lanka is a common propaganda line pursued by the highest officers including the president himself. Mr. Peiris dodging and evasion was surely in terms of the instructions he had received.
Sri Lanka
441
Epilogue to the CAT Committee proceedings on Sri Lanka 11 The meeting of the Sri Lankan delegation with the CAT Committee took place earlier. Kindly see our comments on those meeting of the 8th12 and 9th13 November. It is now a suitable moment to take an overview of the dialogue with Sri Lanka which the Sri Lankan delegation obviously did not treat as a dialogue. Why did the Sri Lankan delegation dodge the dialogue and instead, really provide the least amount of information on the most vital issues relating to the elimination of torture in Sri Lanka? In the Asian Human Rights Commissions report to the CAT Committee the AHRC stated that the GOSL is both incapable and unwilling to implement the obligations under the CAT. If we look into the reasons as to why Sri Lanka has become incapable of implementing the CAT we can easily find the explanation as to the manner in which the Sri Lankan delegation participated or some would say, did not participate in a constructive and cooperative dialogue with the CAT Committee. The reasons for the incapacity to implement the CAT are fundamental because these are constitutional. Sri Lankas Constitution which was adopted in 1978 is the source of the impunity to the head of the state as well as to any agency of the state of which he is the head. Article 35 of the Constitution places the executive president above the law and outside the jurisdiction of the courts. As total control of all actions of the executive are with the president almost all acts done by state officers are virtually outside the jurisdiction of the courts. All matters of public policy come from the president. The direct result of this situation was the displacement of all the public institutions of Sri Lanka, the police, the election commission and the civil service. By 2001 there was a general realisation that all the basic public institutions had collapsed due to over politicisation which meant the control of the executive president. There was public dissatisfaction. Responding to the public protest the parliament, with near unanimity passed an amendment to the Constitution, which is known as the 17th Amendment which brought about some limitations on the power of the president to make appointments,
11 AHRC-STM-175-2011; November 11, 2011. 12 http://www.humanrights.asia/news/ahrc-news/AHRC-STM-170-2011. 13 http://www.humanrights.asia/news/ahrc-news/AHRC-STM-171-2011.
442
transfers, promotions and dismissals of public servants working in the above mentioned institutions. This was an attempt to bring about at least some limited control over the presidents super powers. The present government got rid of these limited controls over the president by passing the 18th Amendment which virtually negated the 17th Amendment. The direct result was that all the public institutions are now under the direct control of the president. Here lies the basic incapacity of the Sri Lankan state to function under the rule of law and to respect the international norms and standards relating to human rights. The political order created by the 1978 Constitution and the practices that have become entrenched in the following 33 years have created a situation in which the commands of the president become law. Anything could be treated as legitimate as long as the president approves it. For example the extrajudicial killings of those persons who are considered as unwanted or bad criminals has now become a frequent practice as a way of dealing with law and order as understood by the regime. A long list of such things which within a rule of law system would be considered illegal and criminal but which within the Sri Lankan system is now considered legitimate could be made. The total control of the president of all public institutions directly resulted in the disempowerment of those who hold higher positions in these institutions. For example in the police the Inspector General of Police and his deputies today have very little control over their subordinates. This has led to the virtual collapse of the disciplinary controls which has earlier worked reasonable well. Today when torture is practiced at police stations there is hardly any possibility for the higher ranking officers of the police to impose disciplinary sanctions and punish recalcitrant officers. The institution thus faced such serious internal contradictions and is thus incapable of functioning in order to achieve goals as expected under the CAT Convention and by international norms. What the CAT Committee members referred to as reality as against the law as it appears in the books is something that the superior officers of the hierarchy have little control of. In the real world they are powerless. The real power is with the political master. It is not surprising that persons who have had their upbringing and education in developed democracies fail to grasp what the Sri Lankan legal system is today. This is perhaps the challenge the CAT Committee will be faced with in
Sri Lanka
443
making recommendations for achieving torture elimination in Sri Lanka. The recommendations of the last session were totally ignored by GOSL. The usual recommendations for investigating, prosecuting and provide judicial remedies are of course, always valid but however, in terms of Sri Lanka are unlikely to produce any positive result. Under the 1978 Constitution the word impunity does not carry much meaning. The impunity for all executive actions is guaranteed by the constitution itself. Thus, the security forces are protected from any legal consequences as long as the executive can exercise such impunity. The courts in Sri Lanka do not have the legal capability to alter this situation. Unfortunately in the past the court interpreted article 35 of the Constitution to mean that the presidential impunity is absolute. Over the last 33 years the jurisdiction of the courts in public law and criminal justice issues has been greatly curtailed. In response the peoples expectation of the courts has also diminished greatly. Can the CAT Committee make meaningful recommendations in order to make a difference in a situation of this sort? This is the kind of question that international lawyers working with situations like that of Sri Lanka and of many other countries with similar situations need to deal with. To act on the presumption that Sri Lanka still has a rule of law based legal system is to ignore reality. The real practice of torture which is the reality faced by the people cannot be altered if the recommendations themselves ignore the reality of constitutionally guaranteed impunity. 3. How Lawlessness affect Women 3.1 Ms. Srini Wasana Amaratunga - Wattala Police Station14 In this case 33 year old English teacher who went to saloon get a haircut, was murdered for the purpose of stealing the jewelry she was wearing, worth little over Rs.100,000 ( around USD.1000. The alleged murders, a couple, paid a mortgage with the money. They put the dead body in a toy box and dumped in a far way place.
14 AHRC UAC - 190 2011; October 04, 2011.
444
The details are as follows. According to the information that Asian Human Rights Commission (AHRC) has received the body of Ms. Srini Wasana Amaratunga (34) of Daluwakotuwa, Kochchikade, Negombo was found 25 September 2011 at the Elakanda, Wattala in the Gampaha District. Her body was a found by a police team attached to the Wattala Police Station around 3 am while they were on patrol on that night. Srini was married and a mother of two children. She was a music teacher by profession and worked at the Loyola College, Kochchikade, Negombo. Srinis husband is employed overseas and she lived with her mother and two children. On morning of the 24th Srini left home for Negombo town to pay some bills after having her breakfast with her family. Before she left she told her mother that she need not cook since she would be bringing home lunch. But as did not return home the worried family members made a complaint to the Negombo Police and requested the officers on duty to take all the possible measures to search for her and protect her life. Her colleagues too started their own search. Later the victims family were informed on the morning of the 25th a team of police officers attached to the Wattala Police Station found the body of a woman from a canal at Elakanda of Wattala Police Division. Later Srinis relatives went to the hospital and indentified her body. According to the police there were no visible external injuries on her body and there was no evidence of her having been raped. However, there were some burn marks around her mouth. According to the government analysts department where certain parts of her body was sent for examination it was found that she had died three hours after breakfast. Her earrings, gold bracelet, chain, and two rings were missing. In the last two months alone, there have been similar robberies in the Negombo Police Division and other parts of Gampaha and Colombo Districts. The families of the victims have blamed the police for failing to solve any of these crimes. Human rights activists believe that a gang of women could very well be behind these crimes but as the police have so far failed to investigate any of these cases
Sri Lanka
445
this is not confirmed. It is believed the victims are followed and then enticed with narcotic drugs before the robberies. The gang act in a systematic method where one group is responsible for befriending and drugging the women and then another given the responsibility of stealing their valuables including gold jewellery before abandoning them in a desolate spot. There is more to these incidents than meets the eye and state protection for women and children leave a lot to be desired. In the last two or three months alone, more than a hundred cases of murder, abuse and rape were reported in different parts of the country. Laws are aplenty in our country vis--vis protection to women and children and religions practiced here profess non-violence but violence has beset our nation since independence and it sees no sense of abating despite having ended a reign of terror for over four decades. Srinis relatives state that even after they made a complaint on the 24th the officers of the Negombo Police Station did not take appropriate measures to undertake a meaningful investigation. The AHRC has observed that there is an exceptional collapse of the rule of law in the country. The law enforcement agencies simply turn a blind eye to the situation and forget their statutory duties. The lethargic approach of these officers and the undue delays in judiciary have exasperated the situation to the point where the general public live in constant fear. The relatives of the victim are fear that they will not be able to obtain justice for Srini due to the apathy on the part of the police. 3.2 Rape of a 9 year-old girl - Peradeniya Police Station15 Mr. Mohammad Mulafar and Ms. Siththi Farina are the parents of three children, two boys and a girl, residing in Mowbray Estate, Mahakanda, Hindagala. Their only girl is 9-years-old. She was a student at Peradeniya Tamil School in year 5. The father is a labourer and the mother works in a house as a helper. They are the only Muslim family living in Mowbray Estate. On 5 October 2010 the daughter could not go to school due to the heavy rain and her elder brother also stayed at home; only the second brother went to
15 AHRC UAC 026 2011; February 11, 2011.
446
school. On that day both parents left for work. The elder brother who stayed home went to play with some other children of the estate. Around 11am a well known neighbour Sinnamuttu Kirubakiran alias Raja came to the house and asked her to come to his sisters house which was very close. The child complied and when she entered the house she was raped by the suspect. After the assault she was given five twenty rupee notes. Further she was threatened that she will be killed if she revealed to anyone what had happened to her. Further she was forced to bathe and wash her clothes. A few hours later, the girl went to a boutique which is close to the house to buy biscuits with the money given to her by the suspect. Then she met the wife of the suspect who beat her, accusing her of stealing the money. The girl fainted and the neighbours came to assist. With their intervention they were able to rescue the child. When she regained full consciousness she revealed what had happened to her. When her parents learned what had happened they took the child to the Peradeniya Police Station at around 8 pm and made a complaint. Then immediately after completing the complaint they took her to the Teaching Hospital of Kandy. The doctors who examined the child admitted her for treatment immediately. She was treated in ward 7 of the hospital until 7 October. Before she was discharged the Judicial Medical Officer (JMO) also examined her and recorded the medical situation. Officers attached to the Peradeniya Police Station visited Mowbray Estate during the evening and searched for the suspect. However, he was not arrested and after the police left the estate he went to the childs house and pleaded with the parents for a settlement without going for court proceedings. The family members learned that the suspect was subsequently arrested. He was produced before the court on 7 October. He was represented by a lawyer and accused the child of stealing money and denied the charge of rape. The suspect of the case is a very influential person as he is wealthy and an entrepreneur owning two business shops and a passenger bus. Presently the parents fear that he will influence the police officers to withdraw the original case of rape and file a fabricated charge of stealing the money against the victim child. The victims family stated that the police did not take any sufficient steps to properly complete the investigation into the case of rape. Meanwhile the brother-in-law of the suspect threatened to kill the parents of the child if they pursue this case. The parents made a complaint to the Peradeniya Police Station regarding the incident on the 8 October the police recorded the complaint under reference No. CIB 390/210.
Sri Lanka
447
However, the police did not investigate the complaint of threats and presently the virtual complainant and the witnesses of the case are in fear of their lives. According to the parents the suspect was accused of raping another 14 year Tamil girl, living in the same estate on 14 October. Though the case was reported to the Peradeniya Police Station still the police have not taken appropriate steps to either arrest the suspect or take the necessary legal action against him. The residents of the estate and the victim of the case believed that this is due to him bribing the police. Furthermore, the parents fear that the medical report pertaining to the case would be changed due to the influence of the suspect as it has not yet been submitted to the court. The parents of the victim are pleading for protection for themselves and their children. Further they are seeking speedy justice as this alone will alleviate the threat and danger to the child and her family. 3.3 Rape of a 10 year-old girl - Nawalapitiya Police 16 According to the information that the Asian Human Rights Commission has received Mr. Kandiah Mahendra and Mrs. Manori Chamini Perera of No: 188, Ambagamuwa Road, Nawalapitiya are married with two daughters, the youngest of which is just 10-years-old. Mr. Mahendra has travelled to Bangladesh for work. Anoma (not her real name), is studying in year 10 at a reputed girls school in the district. She is clever and a brilliant student. On 31 December 2010 Mrs. Manori was out at a nearby house helping for an almsgiving while her younger daughter was alone at home, having her lunch at around 11.30 am. Anoma answered a knock on the door and found a man who asked for a knife in order to do some repair work on his vehicle. However, when she handed over the knife the man forced his way into the house. The man threatened the child and attempted to rape her but she started to struggle. In the course of this attempt he stabbed the child on her head and the neck. He further slapped her, knocking out a tooth and breaking her nose. Finally the child was able to run out of the house and shout for help.
16 AHRC 031 2011; February 16, 2011.
448
The suspect fled when a neighbour came to the scene. This neighbour then took the girl to the Nawalapitiya hospital, however, due to the seriousness of the injuries she was transferred to the Kandy Teaching Hospital where she was treated at ward 4 for 8 days. The hospital authorities informed the Nawalapitiya Police Station and officers came to the hospital and visited the house at around 10 pm. After the child was discharged from the hospital, she was called to the Police Station several times by the police to identify the perpetrator. The child and the eye witness both gave enough information on the identity of the perpetrator but to-date, the police have failed to arrest him. On 31 January 2011 Anoma went to the school for the first time after the incident and saw that the perpetrator was waiting at the school gate. As she was sure that it was the perpetrator she informed her mother who in turn informed the officers at the Nawalapitiya Police Station however, by the time the officers arrived he had already left the place. Mrs. Monari categorically states that that the virtual complainant of the case, the eye witness and she herself have provided enough credible information on the identification of the suspect to the police. She further stated that the suspect was a resident of the house where she was helping with the almsgiving. Mrs. Manori is aware that the suspect belongs to an influential family in the area and is closely associated with the police. She believe that it is due to this relationship that the officers are reluctant to arrest the suspect and do not want to proceed legally against him. Mrs. Manori believes that the suspect came to the school when her victim daughter was there with the intention of causing further harm to the child. She further states that her daughter and the witness are now exposed to danger as the police officers are not implementing the law. She says that the victim and the witness should be provided with protection and the case should be referred to the Magistrates Court so that the learned Magistrate can be made aware of the situation, especially the danger posed to the victim and the witness. The victim and her family members appeal to the Inspector General of Police (IGP) to make the necessary order to investigate the complaint in this regard; arrest the suspect and produce him before court. When the police as a law enforcement agency of the country fail to carry out impartial investigations into an incident and take the culprit before the law it curtails the rights of the victims for redress.
Sri Lanka
449
3.4 The rape of a 17 year old girl 17 Mr. Mohamed Niyasdeen of No. 439 Peradeniya Road Kandy is a businessman by profession and engaged with businesses in Kandy. He is married with one daughter aged 17 years. On the 24 December 2010, Aaeesha (not her real name) went for her tuition classes as usual but never returned home. Later in the evening she Mr. Niyasdeen and informed him that she was in a train and cannot understand anything and then the line got cut. Following the telephone massage Mr. Niyasdeen made a complaint at the Kandy Headquarters Police Station and it was registered with the number CIB (i) 381/509 the same day. Though Niyasdeen explained his grievances the police did not pay proper attention and take any necessary measures to search for his daughter. Then he made another complaint to the Child & Women Care Bureau in the same station on 28 December 2010. In March 2011 Mr. Niyasdeen received a message that his daughter was abducted by a person named Yasitha Yohan who is working at George Goonaratne Optometrists in Piliyandala and that she was being kept in his house at No: 9 Heraliyawa, Temple Road, Polgasowita, Kahathuduwa. Mr. Niyasdeen went to the Kahathuduwa Police Station on 29 March 2011 and made a complaint on the abduction of his child. It was recorded and the number was CIB 283/482. Then he went to the house at No: 9 Heraliyawa, Temple Road with two police officers. When they visited the place Yasitha, his mother, brother and brothers wife were there. The police officers went inside the house and found the fact that Aaeesha also present but Mr. Niyasdeen was not allowed to talk to her or see her. After having a confidential talk with the residence of the home, the police officers informed Mr. Niyasdeen that if he wants to take his daughter back, he should come with the Kandy Police officers and that they cannot do anything. The officers at Kahathuduwa Police Station did not investigate the complaint that Nayasdeen made properly. Mr. Niyasdeen returned to the Kandy Headquarters Police Station and informed the situation to the officers and sought their assistance to take the necessary steps to inquire into the matter and retrieve the child. But the officers on duty said that they could only inform Kahathuduwa Police Station but they
17 AHRC UAC 107 2011; May 26, 2011
450
too cannot do anything. Mr. Niyasdeen believes that the police officers are under the influence of a powerful politician and that Yasitha has his support. Four months later in April Mr. Niyasdeen received a message that Yasitha has married Aaeesha in April 2011 by providing false details to the registrar. At the time of abduction Aaeesha had her laptop and an expensive mobile phone. Further, according to the parents, Aaeesha is a kidney patient who has being treated at Kandy Teaching Hospital. Mr. Niyasdeen is seeking justice as he believes that his daughter was abducted and detained by force and that the police have failed in their duty to investigate the matter. Furthermore, when the child was found they blatantly refused to take any action to retrieve her or ascertain as to whether she was, in fact, abducted or had gone of her own free will. Mr. Niyasdeen states his fundamental rights guaranteed under the constitution of the country have been violated by the police officers attached to both Kandy and Kahathuduwa Police Stations by not investigating any of his complaints. 3.5 The lady editor of the Sunday Leader threatened with death18 The Editor of The Sunday Leader, Frederica Jansz last Thursday (27) received a death threat via the post to her residence. Frederica lodged a complaint with the Mirihana Police after receiving the threat. This is not the first time and it certainly will not be the last that Editors at this newspaper receive death threats. Sometimes handwritten, sometimes typed, these vicious little notes (this time it was four pages long) always come anonymously posted by persons too cowardly to be identified. The threatening letter is written in the most abusive and insulting language. conclusion The cases cited above have been randomly chosen from many such cases reported daily by the media. The acts of utter lawlessness make women and young girls into victims. The state agencies are unwilling and often unable to assist these victims. Quite often the police take the side of the perpetrator due to the influence of bribes or other favours or pressures.
18 AHRC-UAC-235-2011; November 17, 2011.
Sri Lanka
451
When the law is unable to provide the least amount of protection to women is there any point in talking about the rights of women? Nice speeches can be made the rights of women but where they are unable to get the protection of the state all the talk about their rights is not taken seriously by anyone. Deep insecurity is the result of the realisation that the state is unable to provide basic protection and that there are lawless elements who will exploit the situation to their advantage. Thousands of incidents similar to those cited above have created a sense of helplessness in the population at large. Generally there is an agreement on the part of the general public that the police and the courts are not interested in their problems. Women try to solve this situation by imposing huge restrictions on themselves. They avoid travel in the evening and even during the day they will ensure that they are accompanied by someone. Particularly the mothers of teenage girls accompany them to schools, tutorials and any other place due to the fear that they might be harmed if not accompanied. Now as a habit most women do not wear jewellery, not only to prevent theft but also so as not to draw attention to themselves. Added to all this, the language used by the police as well as the criminal elements against women is most crude. References to their genitalia and the sexual abuse they could be exposed to are told in the most uncouth language. What worries everyone is that there is no solution to these problems as the state has abandoned their duty to protect the rule of law. 3.6 Young Tamil complainant in a bribery case against a police officer faces attempts on his life and is in hiding19 Devarathnam Yogendra ( 28 ) is the complainant in a bribery case against IP Wijesuriya of the Hatton Police Station, who has been indicted on a charge of obtaining bribes. This charge has been filed on the basis of a complaint made by Yogendra on November 6, 2010 and it is alleged that the police officer was arrested a decoy from the Bribery Commission immediately after accepting
19 AHRC-STM-009-2011; January 18, 2011.
452
a bribe. Ever since the arrest of this police officer Devarathnam Yogendra has faced several attempts on his life, according to several complaints that he has made to the police, including the Inspector General of Police and also many other authorities including the Human Rights Commission of Sri Lanka. Yogendra has also complained that several fabricated charges have been filed, one of which was dismissed by the Magistrate on January 11, 2011. Another such case is scheduled to be taken up on March 1, 2011. Four days after the first case was dismissed by the court Yogendra faced another threat to his life. Following are the details of this incident: On January 15, 2011 on the Thai Pongal day morning around 01.30 a.m. about 5 police officers in police t-shirts had come to Yogendras house and woke him up and said that they needed to question him. When his father has asked the reason for his arrest, the police officers have said that there is a complaint against Yogendra and they need to question him. Then they have taken Yogendra walking towards a white van with tinted glasses and pushed him in to the van. It was not a police jeep. It happened to be a rainy day and there was noise of crackers being lighted to celebrate Pongal. Inside the van he was blindfolded and handcuffed and they have taken him about 200 meters into a lonely place where there was a cemetery. When he was taken out of the van, the cloth that blindfolded him was removed and Yogendra was asked to kneel down. Then he was threaten and told that they would kill him if he acted against the police. Yogendra was then assaulted on his shoulders and his body and this stage Yogendra has identified a police officer by the name of sergeant Sarath. Yogendra told him that if he is killed that the whole world will know that the Hatton police officers had done it. Further he told, the police officer you are Sergeant Sarath and I know you at this stage police officers were drinking, laughing and making merry. After this they further assaulted him and took out a gun which they fired in the air. Then they have shown him the cemetery and said that he would be soon be there if he continued to act against the police officers. Having kept him for more than one hour he was threatened repeatedly. Then the handcuffs were removed and the officers left in the van. Yogendra has collected 2 bullets casings from the ground and also a rain coat which was thrown out by him while he was in the van to prove that they were from Hatton police. Yogendra is now afraid to go home and is now in hiding.
Sri Lanka
453
This is one more case of a person who is being hunted by the police due to complaints made by him to the Bribery Commission and other authorities. Sugath Nishanta Fernando from Negombo was assassinated after making complaints against the police regarding torture and bribery. At the time he was killed several police officers were being charged by the Bribery Commission and were also made respondents in a torture case. Earlier Gerard Perera, who was pursuing his complaint against torture by several officers from the Wattala Police Station was assassinated while he was traveling on a bus. A case is before the Negombo High Court relating to the murder of Gerard Perera in which the accused is a police officer and an accomplice who was earlier charged under the CAT Act, No. 22 of 1994 for torturing him. Devarathnam Yogendra is now in hiding, afraid for his life. In a 53 minute taped interview he described to the Asian Human Rights Commission the series of attempts that were allegedly made on his life which he narrowly escaped. The AHRC calls on the Inspector General of Police and the police authorities as well as the Human Rights Commission of Sri Lanka and the National Police Commission to investigate the complaints of Devarathnam Yogendra and also to provide him protection. 4. censorship 4.1 Censorship is an integral part of the contemporary political system20 The government decision to call for registration of websites that publish any material relating to Sri Lanka has come under severe criticism from local journalists and other concerned persons and groups and also from many international organisations. While requiring registration the government has taken action to close down the facilities for the viewing of several websites. Many of these websites have existed for a considerable time and have wide readerships. For several years the Sri Lankan government directed its attacks on the print and television media. This goal was pursued ruthlessly. The killing of editors and other journalists, serious physical injuries caused to others involved in the media, attacks on television crews and attacks on stations became part of the normal routine in Sri Lanka. Everyone who takes a new initiative to publish was aware of the great risk that follows such initiatives.
20 AHRC-STM-173-2011; November 10, 2011.
454
Only those who are with the government are allowed the freedom of expression and publication. A virtual monologue has been imposed on the whole nation. Keeping all those shut for the free media and for persons with views opposed to the government is perhaps the most primary objective that is followed passionately by the government, particularly through enthusiastic project management by the Ministry of Defence. Contemporary censorship in Sri Lanka is a comprehensive one. While the government creates various kinds of pressures against the free media another branch is also employed for activities for achieving this same objective. This is the underworld element that is today a very integral part of the machinery of repression. Recent events relating to Duminda Silva has revealed the details of the link between the illicit drug business and the underworld. Monies earned from the drug trade are generously used for payments to slum dwellers that are then brought into the roads to support the government and oppose all opposition forces. During the Katunayake incident at which a young man was killed, in order to prevent protestors participating at the funeral, people armed with poles were placed on the roads in all parts of the city. They were to compliment the police and the army in suppressing protestors who were expected to come to attend the funeral. The inner core of the social fabric of Sri Lanka today is seriously crushed and trampled by militaristic and mafia combinations together with the lawless policing. This is supplemented also by the ever expanding intelligence services. These intelligence services are now engaged in the collection of information from all organisations about all their activities. The grand explanation for all that is that there is a possibility of the revival of the LTTE and that there is also the possibility that the LTTE may gain a linkage with the state sector. The propoganda line is to preach the story of this great danger of an LTTE revival as an excuse to interfere with all independent organisations and persons so that the government would have the monopoly of creating public opinion. The present attempt to suppress the web publications under the pretext that some of the countrys leaders are being maligned by them is an extension of this censorship that has been achieved in other areas. The government is thoroughly aware of the mass discontent. By taxation on commodities and services the government has imposed a heavy burden on the people. The failures of economic policies compelled the government to impose more taxes and hardship on the people.
Sri Lanka
455
To rule over an unhappy people is the task the government is faced with. In earlier times during times of such discontent the possibilities for regime changes acted to prevent crises of discontent. However, the present government has taken away this option. Thus, what is being done is to punish discontented and unhappy people. Censorship therefore has become an integral part of government policy. It is a component of the overall strategy of repression. 4.2 Tamil newspaper Uthayan, Mr. Gnanasundaram Kuganathan Head Quarters Police Station, Jaffna21 According to the information that the Asian Human Rights Commission (AHRC) has received the chief news editor of the Jaffna-based newspaper Uthayan, Mr. Gnanasundaram Kuganathan (59) was assaulted by a group of unidentified persons on 29 July 2011 and was admitted to the Jaffna Teaching Hospital in critical condition. Kuganathan received a telephone call on the afternoon of the same day from someone who inquired as to what time he would leave the office. Under the impression that the caller meant to visit the newspaper offices regarding some potential information, Kuganathan provided the caller with the information. On his way home from work, Kuganathan was assaulted by two men who beat him with iron bars. Following the attack he was admitted to the Jaffna Teaching Hospital where the hospital authorities confirmed that his condition was critical. Following the incident it was reported that the Sri Lanka Army had sent several teams into the area to track down the suspects. While the area is ostensibly under civilian control there is a heavy military presence. It was also revealed that the police also had deployed several teams to arrest the two men who had arrived on a motorbike to assault Kuganathan. Later following the instructions of the president himself the Inspector General of Police (IGP) N.K. Ilangakoon immediately launched an investigation into the incident. The IGP later handed over a preliminary report on the attack to the President who, in typical manner, has not revealed the contents. It was also revealed that further investigations are currently being carried out on the attack by the Jaffna police. Much has been said about the lack of
21 AHRC UAC 138 2011; August 10, 2011.
456
investigative skills of the Sri Lankan police who resort to torture rather than actual investigation technique to find the real culprit so it is widely believed that any person they produce, if they do produce anyone at all, is unlikely to be the actual perpetrator. The IGP himself has publicly noted the lack of policing skill by the men under his command. To date, twelve days after the attack neither of the suspects has been arrested or produced before the courts for prosecution. The protest against this ruthless attack is narrated in the YouTube presentation at the following link: http://www.youtube.com/watch?v=xwQY5_uElsI 5. torture And Ill treatment 5.1. Devarathnam Yogendra - Hatton Police Station22 According to the information received by the Asian Human Rights Commission Mr. Devarathnam Yogendra (28) of Shanon Estate, Hatton is the complainant in a bribery case number: 50600/01 in the Chief Magistrates Court Colombo, against IP Wijesuriya of the Hatton Police Station, who has been indicted on a charge of obtaining bribes. This charge has been filed on the basis of a complaint made by Yogendra on November 6, 2007 and the police officer was arrested a decoy from the Bribery Commission immediately after accepting a bribe. Ever since the arrest of this police officer Devarathnam Yogendra has faced several attempts on his life, according to several complaints that he has made to the police, including the Inspector General of Police and also many other authorities, including the Human Rights Commission of Sri Lanka. Yogendra has also complained that several fabricated charges have been filed, one of which was dismissed by the Magistrate on 11 January, 2011. Another such case is scheduled to be taken up on 1 March, 2011. Four days after the first case was dismissed by the court Yogendra faced another threat to his life. Following are the details of this incident:
22 AHRC UAC 007 2011; January 19, 2011.
Sri Lanka
457
On the 9 December 2007 SI Silva has threatened Yogendra when he was on his way to Hatton from Talawakelle. On the 1 April 2009 Yogendra was arrested with fabricated charges, produced and remanded until the 21t April 2009. (Case Number: B/296/09) (38152). this case was settled on the 11 January 2011. Once again Yogendra was arrested on the 1 December 2010 on the chargers that he had weapons in his possession. (Case Number: B/902/2010). This case is pending in Hatton Magistrate Court and the next hearing will be on the 1 March 2011. On 15 January, 2011 on the Thai Pongal day morning around 1.30 a.m. about 5 police officers in police t-shirts had come to Yogendras house and woke him up and said that they needed to question him. When his father has asked the reason for his arrest, the police officers have said that there is a complaint against Yogendra and they need to question him. Then they have taken Yogendra, walking towards a white van with tinted glasses and pushed him in to the van. It was not a police jeep. It happened to be a rainy day and there was noise of crackers being lighted to celebrate Pongal. Inside the van he was blindfolded and handcuffed and they have taken him about 200 meters into a lonely place where there was a cemetery. When he was taken out of the van, the cloth that blindfolded him was removed and Yogendra was asked to kneel down. Then he was threaten and told that they would kill him if he acted against the police. Yogendra was then assaulted on his shoulders and his body and this stage Yogendra has identified a police officer by the name of sergeant Sarath. Yogendra told him that if he is killed that the whole world will know that the Hatton police officers had done it. Further he told, the police officer you are Sergeant Sarath and I know you at this stage police officers were drinking, laughing and making merry. After this they further assaulted him and took out a gun which they fired in the air. Then they have shown him the cemetery and said that he would be soon be there if he continued to act against the police officers. Having kept him for more than one hour he was threatened repeatedly. Then the handcuffs were removed and the officers left in the van. Yogendra has collected 2 bullets casings from the ground and also a rain coat which was thrown out by him while he was in the van to prove that they were from Hatton police.
458
Yogendra is now afraid to go home and is now in hiding. This is one more case of a person who is being hunted by the police due to complaints made by him to the Bribery Commission and other authorities. Sugath Nishanta Fernando from Negombo was assassinated after making complaints against the police regarding torture and bribery. At the time he was killed several police officers were being charged by the Bribery Commission and were also made respondents in a torture case. Earlier Gerard Perera, who was pursuing his complaint against torture by several officers from the Wattala Police Station was assassinated while he was traveling on a bus. A case is before the Negombo High Court relating to the murder of Gerard Perera in which the accused is a police officer and an accomplice who was earlier charged under the CAT Act, No. 22 of 1994 for torturing him. Devarathnam Yogendra is now in hiding, afraid for his life. In a 53 minute taped interview he described to the Asian Human Rights Commission the series of attempts that were allegedly made on his life which he narrowly escaped. The AHRC calls on the Inspector General of Police and the police authorities as well as the Sri Lanka Human Rights Commission and the National Police Commission to investigate the complaints of Devarathnam Yogendra and also to provide him protection. 5.2. Selema Lebbe Mohammed Amir Sultan - Katupotha Police Station23 According to Mr. Selema Lebbe Mohammed Amir Sultan (40) of Madalahisa, Kakunagolla in the Katupotha Police Division he was illegally arrested, detained and tortured by a Katupotha Police Station on 9 October 2010. On that day Amir received a telephone message from telephone number 077 8751160 which belongs to Mr. Nijam, a well known businessman in the area. He was told that one of his elder brothers, Rasik had been assaulted and at that moment he was being taken to a police jeep. Amir was asked to come to Kirimatiyawa to help his brother. When he received the message he was at the Narammala bus stand. He immediately went home and informed his relatives and started to travel to Kirimatiyawa on a motorbike belonging to one of his brothers. When he reached Kirimatiyawa he saw that his brother was inside the jeep with two others, Imran and Safeek. The time was around 1 pm. Amir
23 AHRC UAC 015 2011; January 27, 2011.
Sri Lanka
459
observe that there were four police officers attached to the Katupotha Police Station, namely Court Sergeant (CS) Jayawardana and officers Janaka, Herath and one other. All were in uniform. When CS Jayawardana saw Amir he ordered him to get into the jeep. When Amir asked the reason CS Jayawardana started to scold him in a derogatory manner. He then slapped Amir several time to force him into the jeep. During the journey to the Katupotha Police Station Amir learned that there were had been a quarrel between his brother Rasik and the others in the jeep. At the police station Amir was taken was made sit on the bench. CS Jayawardana told Amir to be ready to go the mother-in-laws house for six month. This is a euphemism for sending someone to remand prison. CS Jayawardana repeatedly questioned Amir as to why he sought the intervention from the higher authorities for his rights violations. Amir replied that he wanted to get justice. Another police officer, Janaka, got a big knife from Mr. Jesmin, the elder brother of Mr. Safeek who had quarreled with Amirs brother. Jesmin was an owner of the beef stall at Madalassa and as such is a person of influence in the area. Janaka handed the knife to Amir handle first and asked him to hold it. However, Amir refused to do so as he realised that the officer wanted his fingerprints on the potential weapon. It was at that time that CS Jayawardana ordered Janaka to remove Amirs clothes. Janaka dragged Amir into an adjoining room. There Amir observed that there were other police officers, namely Herath and two women officers, one of whom Amir identified as Manike. Immediately they brought in Farseek, Imran, Jasmin and Amirs bother Rasik into the same room. Then police officer Herath forcefully took Amirs wrist watch, and he searched Amirs pocket and took Rs. 105.00. Amirs T-shirt was forcefully removed while CS Jayawardana continuously beat him about the face. vest of Amir as well. After his sarong was torn off and Amir was completely naked he was pushed onto the table. Then all the police officers included the two women started to clap, make rude noises and laugh. This was done in the presence of Jesmin, Imran, Farseek. The only one that remained silent was Rasik, the brother of Amir. This degrading and humiliating punishment continued for some time. The women police officer called Manike started to scolded Amir with obscene
460
language and told him that this punishment was not enough for someone who complained to higher authorities like Amir. She said that that further punishment was required. Manike told Amir that there were pens and paper and that he could write whatever he wanted but to remember that the courts would only accept the version provided by the police. She further threatened him not to fight with the police. During this time they treated Amir in very humiliating manner. Being a Muslim it was religiously and culturally unacceptable for him to have been forcibly stripped naked, particularly so in front of strangers and women. Due to this Amir suffered great mental anguish. Police officer Janaka gave Amir back his sarong and then started to write a statement. Amir was never asked to make a statement but was forced against his will to sign the one prepared by the police. Then police officers brought Amir, his brother Rasik, Faseek and Imran to the Katupotha District Hospital. When Amir was produced before the doctor he revealed how he was torture at the hand of the police officers. However, the doctor did not examine Amir, nor did he answer any of his questions. Amir was brought to the residence of Acting Magistrate Mr. Abdulla and remanded. He was not told the reason for filing a case against him and vehemently states that it was a fabricated charge. He was first taken to Kuliyapitiya Prison Lock Up and then on 10 October transferred to Wariyapola Prison. On 20 October he was released on bail and leaned that the case number of the fabricated charge the police filled against him was B/1995/2010. Amir is certain that the police officers filled this case to take revenge on him for seeking justice from the higher authorities for what had happened to him and to please the influential people. He narrated the way that he was tortured and violated his rights by the police officer in the video24 .
24 http://www.youtube.com/user/janasansadaya#p/u/19/4gUJAZk55Rg
Sri Lanka
461
5.3. Karasinghe Arachchilage Kumarasinghe Appuhami - Kolonna police25 According to Mr. Karasinghe Arachchilage Kumarasinghe Appuhami (55) of Temple Road, Wijegiriya, married, a father of 5 and a farmer by profession. He lives in the Kollonna Police Division in Rathnapura District. On 30 April 2010, he received a message from the Kolonna Police Station to appear at the station for an inquiry at 9 am. After waiting for several hours he was asked by officer Thilakarathna to answer some questions. Thilakarathna was in civilian clothes at the time. Kumarasinghe was accused of stealing electricity from the village electricity plant for his home which he strongly denied. Each time he denied the charge officer Thilakarathna slapped him heavily. Then Thilakarathna grabbed hold of his shirt collar and dragged him forward and stared to beat him about the head. During this assault Kumarasinghe struck his head against the wall. Thilakarathna locked Kumarasinghe in a cell headless of the pain that the man was suffering. After 30 minutes Thilakarathna came to the cell along with another officer and shouted at Kumarasinghe in obscene language and warned him that two fabricated cases would be filed against him. Then Thilakaranthna ordered the other officer to take Kumarasinghe to the hospital and bring him back. Two officers came to the cell and took Kumarasinghe to the Kolonna District Hospital. At the hospital Kumarasinghe was produced before a doctor to whom he explained how he had received his injuries and that the police had tortured him. After examining Kumarasinghe the doctor informed the police officers that he should be admitted for further treatment. The officers told the doctor that they could not allow him to be admitted as they had to take him back to the station. Further they denied that they had tortured him. The doctor informed the officers that they had to wait until the District Medical Officer (DMO) came and made a decision in that regard as he (the doctor) could not release the patient. For the next 15 minutes Kumarasinghe was asked to sit on a bench and it was then that he started to vomit. When the DMO arrived he also examined Kumarasinghe who was able to explain the history of the case. The DMO specifically asked him whether he had vomited and felt faint. Kumarasinghe said that this was the case and that
462
he had already started vomiting. Then the DMO again asked one of the officers to take Kumarasinghe back to the bench while he spoke with the second officer. Following their conversation both of them came out from the examination room and the DMO said that he had to go the ward. Kumarasinghe pleaded with the DMO that he needed treatment but the DMO left without considering his request. Kumarasinghe firmly believes that the DMO willfully allowed the police officers to take him from the hospital in the full knowledge of his medical condition and that he was suffering severe pain. Vomiting after suffering a head injury is a symptom of the seriousness of the patients condition. As the police officers tried to take Kumarasinghe back to the police he pleaded them to admit him for treatment. However, heedless of his request the officers started to forcefully drag him away. Kumarasinghe held on to the bench with his right hand pleading with them not to take him back to the police station as he was in fear of being subjected to further torture. One officer called the police station and a short while later another five officers, including the Thilakarathna, came to the hospital. They shouted at him with obscene language and Kumarasinghe begged them to at least give him some medicine for the pain. Then one officer told him, Thota Beheth Dennam (The direct translation is: we will give you medicine, however, it is a euphemism for we will give you torture). Then the officers tried to carry Kumaransighe out of the hospital but he held on to one leg of the bench. His fear was so great and his grip so strong that when the officers tried to drag him the heavy bench moved from the wall. Another officer took hold of Kumarasinghes left hand and started to beat and twist it thereby causing enormous pain. All the while Kumarasinghe was screaming and pleading with the doctors and the bystanders to save him. However, no one came to his assistance. He saw a large number of health staff looking on but none intervened to save him. Meanwhile other officers tried to release Kumarasinghes right hand from the bench. Finally the officers were able to drag Kumarasinghe out of the hospital and into a vehicle parked in the hospital premises. Kumarasinghe lost consciousness but not before he realised that his sarong had been torn off. When he regained consciousness he found that he was back at the police station. With difficulty they brought Kumarasinghe to a cell. After sometime Kumarasinghe was taken out from the cell and brought before the Officer-in-Charge (OIC) of the station. Then he was able to explain what had happened to him. After listening to this the OIC told him, Mama
Sri Lanka
463
Hitiyanam Thota Gahanne Redde Revenna (If I was here I would have beaten you until you shat yourself ). He was then returned to the cell and at around 7 pm one of his relatives came to visit him. After explaining his pain he was able to take some Panadol. Altogether Kumarasinghe took six pills after getting some water from an officer. Then at around 10 am officer Thilakarathna came to Kumarasinghe and informed him that they needed to record a statement from him and took him to another room. Then Thilakarathna wrote a statement one and half pages in length and asked Kumarasinghe to sign it. When Kumarasinghe asked the officer to read the statement before he signed it Thilakarathna blackguarded him and ordered him to shut his mouth and sign. After Kumarasinghe again refused to sign the statement Thilakarathna brought him before the OIC and told him that he refused to sign the document. Kumarasinghe told the OIC that he needed to know the contents of the document before signing it. The OIC then requested Thilakaranthna to read over the document. Thilakarathna brought Kumarasinghe back to the room and shouted at him, ordering him to sign the document but Kumarasinghe again refused and stated that even if he were to be killed he would not sign the document if it was not explained to him. Then again officer Thilakarathna brought Kumarasinghe back to the OIC who told Kumarasinghe that there was no law that says a statement should be explained before get being signed which of course is completely contradictory to police regulations. He showed Kumarasinghe a book and explained that according to the information contained therein there was no need to explain a document before getting it signed. At that time Kumarasinghe noted that members of the Electricity Plant Association of the village had also come to the station. Then the OIC warned Kumarasinghe that they will file two fabricated charges against him and that Kumarasinghe would be sent to remand prison for 14 days. The OIC called an officer and ordered him to inform the Magistrate that he needed to send Kumarasinghe for to remand prison for 14 days. Then OIC told that Yako S B Dissanayaka Mahatthaya Awurudy 2 Hire Hitiya, Sripathi Suriarachchi Mahaththaya Kalayak Hire Hitiya, Sarath Fonseka Mahaththaya Thawama Athule. A Minissu Giye Katawal Hinda. Thotai Apitai Kohoma Karaida? A Nisa Umbata Viruddawa Nadu Danawa (Devil! Mr. S B Dissanayak imprisoned for two years, Sripathi Suriarachchi also for certain time, Sarath Fonseka is still in prison. All of them went prison because of their
464
mouths. Then what would happen to you? So we will file two cases against you.) Then Kumarasinghe pleased with the OIC not to file cases stating that his two children and the wife were hospitalized and the other his 3 children were in school when he came to the police. He told the OIC that he did not know what will happen to them. Finally he agreed to sign the document and was released. The OIC then informed all the members of Electricity Plant Association and the others to come to the station the next day, 2 May. On that day first Kumarasinghe went to the Kolonna Hospital for treatment but had to go to the police station for the inquiry. As all the members of association were present the inquiry was held and at the end it was found that there was nothing against Kumarasinghe. He was informed that the police would not file any case against him. This was stated in front of everyone present. When he returned home although he used the medicine which was given to him by the hospital he understood that the pain was getting worse so he went to the Base Hospital of Ambilipitiya. Then the doctors admitted him for further treatment to the ward number 2. The police officers at police post of hospital also recorded a statement from him on 7 May. Then on the same day the Judicial Medical Officer (JMO) examined him and recorded his condition. He was discharge on that day. Then Kumarasinghe went to the Assistant Superintendent of Police (ASP), Ambilipitya on 11 May and explained the incident to him. Another officer recorded his statement which they got him to sign. Kumarasinghe made complaints to the Inspector General of Police, Deputy Inspector General (Sabaragamuwa), Senior Superintendent Police (Rathnapura), National Police Commission, Human Rights Commission of Sri Lanka regarding the unjust treatment he had received at the hands of the police. As a result of these complaints he was informed by the police that they would file a fabricated charge against him which they later did. He narrated the way that he was tortured and the violation of his rights by the police officers in the video26.
26 http://www.youtube.com/watch?v=UABuyMF3hKQ.
Sri Lanka
465
5.4. P.G.W.G. Jayarathna - Vavuniyawa Headquarters Police Station27 P.G.W.G. Jayarathna (37) of number 7/3, Panwatte, Ovilikanda, Matale is married and a police constable (PC) attached to the Sri Lanka Police Department. On 2 May 2009 he served at number 7 bunker of Sub Zone 1 of Zone 14 of Vavuniyawa District. His bunker was at the Vavuniya Mannar main road. On the particular day at around 6 pm as usual he prepared to light the lantern to the Lord Buddha statue. While completing his religious ritual he heard the horn of a police jeep. Immediately he went to the front of the bunker where he saw a police jeep with two senior officers and few junior police officers. Immediately Jayarathna saluted the seniors and approached the jeep with his weapon. He knew the two senior officers, Assistance Superintendent of Police (ASP) Jayantha Athapaththu and Inspector of Police (IP) Nishantha Alwis. IP Nishantha alighted from the jeep and asked Jayarathna the reason for not coming to him immediately. He answered that he was carrying out his religious ritual by lighting the lantern to the Load Buddha. Then IP Nishantha slapped him severely. Jayarathna understood that IP Nishantha was inebriated at the time as where the officers accompanying him. When he was assaulted it was witnessed by Sergeants Jayarathana and Kularathna who were the assistants of ASP Athapaththu. Further the incident was witnessed by another police officer, Thilakarathna, who also served in number 8 bunker as well. Just after Jayarathna was assaulted Sergeant Jayarathana and Sergeant Kularathna went to IP Nishantha. They were staggering as they walked as they were both drunk. They urged IP Nishantha to return to the vehicle. Jayarathna told the ASP that he worshiped Lord Buddha every day by lighting a lantern. Then the ASP told IP Nishantha that they had to go and they left the place. Jayarathna felt unbearable pain in his ear along with an unusual eco on in ear. Also he lost his sense of balance and was not able to stand properly. Jayarathna called the State Information Centre on 1919 and asked the telephone numbers of Deputy Inspector General (DIG) Vavuniya and Senior Superintendent of Police (SSP) Vavuniya. Though he was able got those numbers he was not able to contact the officers. Then he called to 118, the Emergency Service number and asked them to inform a senior police officer at Vavuniya to come and take him for treatment as he cannot travel unaided. He waited for some time but no one came.
466
Then Jayarathna went to meet his immediate senior, the Officer-in-Charge (OIC) of the Sub-Zone 1. He was able to make a record about the incident. Then the OIC (Administration) of Zone-14, Maddumabandara, came to him and told Jayarathna that he should not go for treatment as the IP Nishantha was drunk and would face future problems if the complaint went any further. Then Jayarathna informed him that he was in great pain and could not stay. Then Madduamabandara went away saying that he would return with a vehicle but he never did so. When he could no longer bear the pain he went to the office of the Zone-14 after making a record on the record book of the Sub-Zone officer. At that time he met IP Nishantha who told him that he can go anyplace he wished as he was not afraid of any of those authorities. Then Jayarathna handed over his official weapon to Bunker 6 of Sub-Zone 1 and kept a note of the record. He then went to the Government Hospital of Madawachchiya at 10.55 pm where he was admitted. Before he was admitted an officer from the Madawachchiya Police Station also recorded a statement from Jayarathna regarding the incident. While he was treated at the ward he vomited around four times and suffered a severe headache as well. After the doctors examined his ear they decided to transfer Jayarathna to the Anuradhapura Teaching Hospital for further treatment. He was transferred with an ambulance. After admitting him to the Anuradhapura hospital he was examined by the ENT consultant and informed him that that there is a perforation to his ear drum (tympanic membrane). Jayantha then made a complaint to the SSP Vavuniyawa, DIG Vavuniyawa and to the police headquarters. He also made complaint with the Human Rights Commission of Sri Lanka. Then the HQ Police Station Vavuniyawa filed a criminal case against the IP Nishantha in the Magistrate Court Vavuniya and the case number was 56816/2009. In this case IP Nishantha was accused of committing a crime of grievous hurt by perforation to the ear drum. The witnesses for the case were all police officers including the seniors and few junior officers. Presently the case is pending. Meanwhile the case Jayarathna filed at Human Rights Commission was taken up for inquiry and the when it was concluded the Commission decided that IP Nishantha had violated the fundamental rights guaranteed to the Jayarathana and further ordered him to pay sum of Rs. 10 000/= as compensation.
Sri Lanka
467
Jayarathna states that if a government officer is found to be inebriated while on duty it should be considered as one of the most serious offences and that officer should be dismissed from service after being found guilty. Instead of that happening a few weeks later he found that IP Nishantha was promoted and appointed as the Personal Assistant to the Senior Deputy Inspector General (Sabaragamuwa and Uva Provinces). After his appointment Jayarathna observed that police officers attached to the HQ police station of Vavuniya have shown no interest in proceeding with his case. Further he found that all of the witnesses were failing to appear in court as they were reluctant to give evidence due to the influence of the IP. Further he states that his life has been placed in danger by the higher authorities of the police department by their silence and reluctance to take action against IP Nishantha. Jayarathna further state that he learned that certain steps have been taken to change the order of the HRC decision which was in his favour. Presently Jayarathna is in fear of his life. He narrated the way that he was tortured and the violation of his rights in the video28. 5.5. Kapila Sampath Jasingha - Chillaw Police Station29 According to the information received by the Asian Human Rights Commission, Mr. Kapila Sampath Jasingha (28) of No: 91/31, 3 Lane, Aluthwaththa, Chillaw in the district of Puttalam is a bachelor and a well known fruit seller in the Chillaw Public Market. On the 23 January, 2011 Sampth was running his fruit stall in the front part of the Public Market of Chillaw. As he wanted to go home for a personal matter he handed over the stall to his assistant Mr. Charith. In the afternoon at around 3.30 pm two persons, who were both drunk, in civilian clothes came to the stall and ordered Charith to remove the fruit stall. Then Charith informed the men that the stall belonged to Mr. Sampath and called him on his mobile phone. Soon
28 http://www.youtube.com/watch?v=a-LQbFNHlcw. 29 AHRC UAC 027 2011; February 11, 2011.
468
after Sampath came to his fruit stall by his three wheeler bearing number NWOF 5716. He explained to the two people that the stall belonged to him. As the two men rudely demanded him to remove the stall, Sampath, in turn, demanded their identity. They started shouting at Charith in a defamatory manner. Then when Sampath tried to approach his stall one of them asked Sampath for his identity. Then Sampath again explained that he is the owner of the stall and his name is Kapila Sampath. The man further asked whether Sampath had permission to run a fruit stall whereupon Sampath explained that he had been running his fruit stall for many years. After hearing that the two men both threatened Sampath and ordered him to remove the fruit stall with immediate effect. Sampath explained that he had been selling fruit in the stall continuously for many years legally and he was paying tax to the local government authority. Sampath tried to explain that as he was legally running the stall he was not ready to remove it on the instructions of two drunken men. At that time one of them announced that they were both police officers attached to the Chillaw Police Station. Further one of the officers appeared to be in a state of extreme inebriation and shouted that he was police officer Senarath of the Chillaw Police (later identified as PN Senarath (54808)). Sampath told the officer that he was drunk, not in uniform and, in fact, had not produced his identification to prove that he was a police officer he had no reason to obey him. By that time many businessmen and a large number of people witnessed the violent and shameful behavior of the two inebriated officers. Officer Senarath ordered Sampath to go the police station with him. When Sampath explained that as he had not committed any crime there was no any necessity for him to go the station. Further he explained that as he doubted the identity of the two men he would not go the police station. On hearing that officer Senarath started to assault Sampath about the head and face. During this attack Sampaths nose was fractured and began to bleed. One of his teeth also was knocked out. Senarath held Sampaths neck and dashed his head against the gate post situated nearby. Then Sampath fell to the ground. Thereafter Senarath dragged Sampath by the neck of his T-shirt along the road to the police station. During this time Sampath was unable to resist or defend himself as he was semi conscious.
Sri Lanka
469
At the police station Senarath pushed Sampath into the cell. Despite the fact that he was bleeding profusely the other officers paid no attention to his situation. Later between 4 to 5 pm several police officers came to the cell and asked Sampath to settle the matter with Senarath and not to proceed against him. But none of these officers provided any medical treatment. Then Sampath told them that he intended to go the court as he was assaulted for nothing. After sometime two of his friends, Indunil Madusanka and Anton came to the police station with Hillary Prasanna, Attorney-at-Law. Sampath noted that the lawyer spoke to the police officers at the station and went off without providing any relief to him. Then around 7.30 pm two police officers along with the police officer Senarath brought him to the Base Hospital of Chillaw. When the police officers referred Sampath to the doctor at the Out Door Patient Department doctor he specifically asked whether Sampath has taken liquor. Then Sampath clearly told the doctor that he has not taken liquor and he explained how he was tortured by the police officers. Further he explained the doctor that the police officer responsible, Senarath was drunk at the time of the assault. But the doctor did not made any attempt to consider that. Further Sampath showed the doctor that he is still bleeding and he showed the blood on his hands also. Then the doctor explained to the police officers that Sampath needed to be admitted for further treatment. He was admitted to ward number 4 of the hospital for treatment. Sampath was X-rayed and transferred to the ward 7. Later two police officers came to the bed and guarded him. Later on 24 January the officers went away. Then Sampath learned that his friends and relatives had sign for a surety and the police had released Sampath. However, Sampath was later asked to appear before the Magistrates Court of Chillaw on 9 February for a case B/R/71/2011. Sampath was discharge from the hospital on 26 of January. While he was in the hospital the doctors informed him that his nose has been fractured due to the assault of the police officer. On 27 January two police officers went to his home and informed Sampath that he needed to go to the police station which he did. At the police station
470
officers asked for his name, address, age and marital status and he noted that the officers were making some notes with the data. But Sampath was not aware about the content of those documents. Sampath believes that the likely purpose of the assault was to force him out of the location so that the officers could sell it to another vendor. Sampath made a complaint to the Human Rights Commission regarding the violation of his fundamental rights guaranteed to him by the constitution of the country. Sampath categorically states that he has not committed or attempted to commit any crime. But he presently in fear of the police filing fabricated cases against him as he did not agree to the request of police officers not to proceed against Officer PN Senarath. 5.6. Alagumail Mohan - Thalawakele Police Station30 According to information received by the Asian Human Rights Commission Mr. Alagumail Mohan (25) of Line-10, Thalawakele Estate, Thalawakele in the Nuwara Eliya District is a mentally retarded patient. He has been diagnosed as such for several years now by the doctors at the Peradeniya Teaching Hospital where he receives treatment. Further the consultant issued a special letter of concern asking people to pay special attention to his condition. On 15 February 2011 Mohan went to a shop situated in close proximity to the Thalawakele Tea Factory belonging to Mr. Ranaweera and asked for a bottle of Fanta (a soft drink). The shop owner gave him a bottle which Mohan drank before returning it to the shop owner. He remained at the shop talking with the owner and other customers. He then left the shop forgetting to pay the price for the drink. Mohan went to his house at Line-10 in the Thalawakele Estate. After a short while two persons in civilian clothes came by a three-wheeler and asked him to come out of his home. The two persons arrested Mohan and explained that they are from the Thalawakele Police Station. They had received a telephone call from Mr. Ranaweera that Mohan had not paid the price for the Fanta drink he bought. Then the officers brought Mohan to the police station by the same three-wheeler.
30 AHRC 057 2011; March 10, 2011.
Sri Lanka
471
After Mohan was brought inside the police station he was produced before Sub Inspector (SI) Gunarathna who started to shout at Mohan and blame him with obscene language. Mohan was not able to understand any of these things. Then SI Gunarathna started beat him with punches and kicks and struck him about the head. Then he grabbed Mohans left wrist which he twisted and wrenched. Mohan was not able to bare the pain and started screaming loudly. SI Gunarathna released Mohan and he was able leave the station and return home. When he went to the home he felt severe pain in his left arm. Then his relatives informed the Estate management and they arranged for an Estate Ambulance to take Mohan, who was in severe pain, to Nuwara Eliya Base Hospital. Due to the seriousness of his condition the doctors at that hospital transferred Mohan to the Teaching Hospital of Peradeniya. Mohan was admitted to the Peradeniya Teaching Hospital and underwent an X-ray examination and the doctors informed the relatives that there was an oblique fracture (please see X-ray above) due to the tortured he suffered. Mohan had to undergo surgery to treat the fracture and a plate and pins were inserted. Mohan was instructed to attend the orthopedic clinic of the Peradeniya Teaching Hospital for further treatment. There is no doubt in the minds of Mohans relatives that he simply forgot to pay for the drink due to his mental illness and that if reminded, he would have paid for it before leaving the shop. They also believe that there was no malice or mischief intended. They state that the police tortured and broke Mohans wrist at the whim and fancy of a private party. Mohan and his relatives state that SI Gunarathna and the officers of Thalawakele Police violated Mohans rights. Despite his obvious mental disability (which is widely known and understood in the area) the police showed no respect or understanding. He was humiliated and tortured in the cruelest manner for what was, in fact, a minor matter that could have been easily resolved. Due to this injury Mohan has to take treatment for a few more months. They also believe that the State of Sri Lanka should be responsible for violation of Mohans rights.
472
The mother of the victim narrated the story in the video31. 5.7. Wickramasinghe Arachchige Ranjith Chandrasiri Perera - Criminal Investigation Department and the Colombo Crime Division32 According to the information that the Asian Human Rights Commission (AHRC) has received Lieutenant Colonel Wickramasinghe Arachchige Ranjith Chandrasiri Perera (47) of No: 5B/27, Army Quarters, Kendalanda, Homagama is a permanent residence of Diayatalawa in Badulla District. He is a commissioned Officer attached to the Sri Lanka Army. In 2009 Lt. Col. Wickramasinghe was serving as the Commander of the Transit Army Camp at Ratmalana. Lt. Col. Wickramasinghe was arrested by a group of officers attached to the Criminal Investigation Division (CID) of the Sri Lanka Police on the 14 May 2009 at around 11.30 am with the vague accusation that he had committed a crime against the state. He vehemently denied the accusation at that time and continues to do so now. Lt. Col. Wickramasinghe questioned the arresting officers for further reasons for arresting him. The officers were not able to answer. Lt. Col. Wickramasinghe then understood that the arresting officers did not have any reasonable doubt in their hands against him. Lt. Col. Wickramasinghe was then taken to an unknown location close to Bambalapitiya and a few hours later transferred to the Colombo Crime Division (CCD) in Dematagoda. Then several officers blindfolded him and severely assaulted him on separate occasions during the course of the day. According to Lt. Col. Wickramasinghe he was brought to the Harbour Police Fort Colombo and detained there until the 23 June 2009. On that day at around 10.30 am officers again blindfolded him and forcibly took him to an unknown location by a vehicle. At this new location he was severely assaulted until he fell unconscious. When he regained consciousness he could not stand up. The torture caused grievous injuries to him and he was then taken to the CCD at around 10.30 pm that evening. On the morning of 24 June at 10:30 he was produced before a doctor who advised the police officers immediately to admit him to a hospital. He was
31 http://www.youtube.com/watch?v=4Ax1q-AuSz8 32 AHRC UAC 140 2011; August 12, 2011.
Sri Lanka
473
then taken to the National Hospital of Colombo at 3:30 pm. The doctors who examined Lt. Col. Wickramasinghe considered the severity of his injuries and referred him to be admitted to the Intensive Care Unit (ICU). But the police officers working against the doctors advice brought him to the Military Hospital, Galle Face Colombo at 5.30pm on the same day and admitted him. The doctors at the Military Hospital admitted him to the ICU and started treatment for his injuries. He remained there until the 14 July and was thereafter brought back to the CCD. Lt. Col. Wickramasinghe was detained at the CCD until 19 September. Following that, after almost one year of detention without charge or being produced before a court he was transferred to the CID in police headquarters and detained there until 14 August 2010. It was on that day, (14 August) that he was produced before the Magistrates Court of Colombo, remanded and sent to the Magazine Prison in Colombo. At no time did the magistrate question the length of his illegal detention. Lt. Col. Wickramasinghe clearly indentified the police officers who tortured him at the CCD and CID as Anura Senanayake, Deputy Inspector General of Police (DIG), Senior Superintendent of Police (SSP) Doole, SSP Vaas Gunawardena the director of the CCD, Chief Inspector (CI) Jayathilaka the Officer-in-Charge (OIC) of the CCD, Inspector of Police (IP) Wijertatne of CCD, Sub Inspector (SI) Jayakody of State Intelligence Service (SIS), Police Constable (PC) Chathuranga of CCD, PC Ranathunga of CCD, PC Rahuman of SIS, PC Rohan of SIS, PC Madushanka and Major Bulathwela attached to the Military Intelligence. Lt. Col. Wickramasinghe has filed a fundamental rights application in the Supreme Court on the basis that his rights guaranteed under the Constitution of the country have been violated by these perpetrators. The case was registered as SCFR/879/2009 in the Supreme Court. Later Lt. Col. Wickramasinghe was produced before the Chief Consultant Judicial Medical Officer (JMO) Ananda Samarasekara to assess his medical condition. The medical report pertaining to Lt. Col. Wickramasinghe, prepared by the JMO number O/60304 has clearly stated that there is sufficient medical evidence to support the allegation of assault after 14 May 2009. It further states that Lt. Col. Wickramasinghe was unable to stand on his feet due to severe assault and had fallen unconscious. Clinical notes of the medical records are consistent with the statement in the petitioner. The medical report further records as follows;
474
The findings of presence of contusion, joint pain, body pain, generalize body pain, presence of cervical color (treatment), mild tenderness of the abdomen and poor hydration as observed in the clinical notes on the day of the admission 25-06-2009 to the hospital. Therefore the observation on the medical condition that have been made in this regards in the clinical notes of the medical records are consistent with the statement in the petition
The medical report further stated that,
The damaged muscle that releases nephrotoxins and other substance and hypovolemic state could finally lead to Crush syndrome and acute renal failure. This condition is life threatening situation which is fatal in ordinary course of nature.
Lt. Col. Wickramasinghe is still detained at the Magazine Prison Colombo. He still does not know what charges have been leveled against him by the police officers. He believes that as a military officer he worked very close to General Sarath Fonseka, the former Military Commander of the Army. General Fonseka later became the opponent of the present government as he ran against the incumbent president as the common opposition presidential candidate. Lt. Col. Wickramasinghe vehemently states that he has not committed any crime against the state and executed his duties as a well-disciplined military officer, following the legitimate and lawful orders of his higher ranking officers at all times. Lt. Col. Wickramasinghe appeals that he should be released from detention and compensated given redress for the violation of this rights. 5.8. Udaya Pushparaja Antony Nithyaraja - Jaffna Headquarters Police Station33 According to the information that the Asian Human Rights Commission (AHRC) has received Mr. Udaya Pushparaja Antony Nithyaraja (31) of Jaffna District was illegally arrested and severely tortured by seven police officers from the Jaffna Headquarters Police Station on 20 September 2011. Antony learned that the police had started an investigation into a crime and that his name was on the list of persons to be questioned. As a law
33 AHRC UAC 175 2011; September 23, 2011.
Sri Lanka
475
abiding citizen Antony on the same day went directly to his lawyer Mr. Thawabalasingham and then to the Magistrates Court of Jaffna and voluntarily made motion and an application to the Magistrate and informed the court that if there is any necessity of his presence or assistance for the investigation he was ready to cooperate. Further he said that if the court needed him to be prosecuted for any crime then he was ready to assist by voluntarily obeying any order even to the extent of remanding him. The Magistrate called the case in open court and considered his application with the assistance of the police officers appearing for the Headquarters Inspector (HQI) of the Headquarters Police Station of Jaffna. Then the Magistrate announced that according to the B-report filed by the HQI Jaffna there was no mention of Antony and that he was not mentioned as a suspected person who was to be arrested or prosecuted. The Magistrate then duly released Antony. However, immediately upon his release a group of seven police officers in civilian clothes entered the court house and started to severely assault Antony in front of the Magistrate. Antony started to plead with the officers not to assault him and cried out, seeking others to rescue him from the beating. This heinous assault took place inside the court house while the Magistrate was on the bench still hearing cases. Lawyers, the staff officers of the court and the general public witnessed the assault. The police then dragged Antony from the court house and brought him to the Headquarters Police Station of Jaffna. The Bar Association of Jaffna District has protested against the ruthless and arrogant behaviour of the police officers and have refused to appear in all five courts in Jaffna District from the 21st onwards until the responsible police officers are taken before the court for prosecution. The lawyers of the Jaffna Bar Association demanded that efficient and coherent steps are taken against the responsible police officers, that the Chief Justice and the other Judges of the Supreme Court intervene and made necessary steps to prevent police officers from carrying out such gross violations and for the Bar Association of Sri Lanka to intervene and take strong actions to prevent the repetition of such incidents. Immediately following the incident the Magistrate called the senior police officers of Jaffna District to the courts and demanded that steps be taken to provide justice for this violation. The two senior police officers who appeared before the Magistrate apologised. However, no steps have been taken to investigate the violation of Antonys rights. Furthermore, none of the law enforcement agencies have initiated any steps to bring the responsible police officers before the law and prosecute them.
476
Once again justice has been denied in Sri Lanka. If action is not taken against the responsible officers then the very operation of the Magistrates and courts of the country will be in jeopardy. The independence of the judiciary has been challenged and is now in peril because of the errant behaviour of the Sri Lankan police. The incident which occurred in Jaffna is nothing less than contempt of court and the Inspector General of Police should be held accountable. 5.9. Jayasinghe Arachchige Chathura Manohara - Pitabaddara Police Station34 According to the information that the Asian Human Rights Commission (AHRC) has received Mr. Jayasinghe Arachchige Chathura Manohara (29) of Darshani, Deniyaya Road, Pitabaddara in the Matara District was illegally arrested and severely tortured by police officers attached the Pitabaddara Police Station on 10 July 2011. He is the Secretary of the Traders Association of Pitabaddara and a trader by profession. On 10 July 2011, Manohara returned home after seeing a musical show with his wife and daughter. At around 11.55 pm, someone shouted in a threatening manner near his bedroom saying open the door. Manohara asked him who he was and the man replied, I am an Army person. Manohara heard three other fellows talking and became suspicious. He then made a phone call to the Pitabaddara Police Station on 041 228126. Manohara informed the police officer through the phone that he was facing a problem from an unknown gang that had come to his home and threatened him. He urged them to take action to secure the safety of himself, his family and property. While he was making this call the people in front of his house demanded that he open the door and that if he refused they would break it open. By 12.20 am no one from the police had come to investigate the matter so Manohara made a second call and the officer who answered said that they would send someone immediately.
34 AHRC UAC 176 2011; September 23, 2011.
Sri Lanka
477
However, when no one came from the police, Manohara phoned three of his colleagues and informed them of what was happening. Within moments he heard shouting in front of his house and knocks to the doors. Manohara heard one fellow ask Who are you? and realised that the voice belonged to his friend Buddhikas, one of the men whom he called for help. At that time, Manohara opened the door and saw two persons, one wearing an army T Shirt. When Buddhika asked who they were and what they wanted the one wearing the army T shirt tried to strike him with his fist and Manohara tried to protect him. The same person seized a wooden pole and tried to assault Buddhika while the other tried to run away. However, by now Manoharas other friends had arrived and they caught him. Manohara questioned one of the assailants who told him that they had gone there by mistake. The other remained silent. By now there were a large number of neighbours at the scene and finally, at 12.35 am three officers of the Pitabaddara Police Station came to his home. Manohara complained to the police officers that they always arrived late forcing the members of the community to do their job for them. He went on the say that they only arrived after the job was done and that they offered no security to the villagers. In this manner Manohara expressed his disfavour about the police. He further told the officers that he and his friends had handed all the accused to the police but that he never expect any justice from the Pitabaddara Police. He went on to say that he would complain in person to the Senior Superintendent of Police (SSP), Matara. A junior police officer, named Sugath made a phone call to Arjuna Wijewardane, the Officer-in-Charge (OIC), of the Pitabaddara Police Station. Sugath informed Manohara that the OIC was not available and that they could not take the suspects to the police station because the OIC was attending a birthday party at Ellalagawawatte Gedara. However, within five minutes at around 12.45 the OIC came to Manoharas home. The officer was not in uniform and appeared to be inebriated. Manohara complained to the OIC about what had happened earlier and the lack of action by his officers. At that time around 15 villagers were there at Manoharas house.
478
Then the OIC asked Manohara Are you going to teach me about my duties? I will show you how I am doing my duties. At that point he stated beating Manohara about the face. The OIC told Manohara he would never give him a chance to complain about this and asked the officers to take the suspects. After they left Manohara discussed what had happened with the people who were still gathered around his home. Around 1.15 am the OIC returned to his home with five other officers by three-wheeler and two bikes. The OIC had a wooden pole and warned everyone to stay away. Then he started to assault Manohara with that stick. When the OIC instructed an officer to handcuff Manohara his wife came and asked the OIC what he had done wrong? In response the OIC assaulted Manoharas wife and pushed her aside. At that time, Manoharas daughter was hanging onto his leg and the OIC kicked her so that she fell to the floor. When Manoharas wife pleaded with the OIC not to hurt the girl he told her to take the daughter and leave. Following that the OIC continued to hit Manohara until he was brought to the police station by three-wheeler. The OIC kept Manohara in a room and ordered the officers to close all the doors and windows of the building and close the main gate also up to 6 am. He told them not to allow anyone into the police station and that none of them should go out for any duty. Then, the OIC went to the room where Manohara was detained, closed the door and started to assault him with a steel chair. He assaulted Manohara for 20 minutes continuously while Manohara pleaded with the OIC not to beat him. The OIC continued Manoharas torture by holding him about the neck and striking his head against a table until the table glass was broken. After that he started to kick him in the abdomen. By this time Manohara was bleeding from his mouth and nose. Then the OIC called some officers and ordered them to remove all of his clothes. The OIC then told the same officers to bring two wooden poles and some rope. Once again the OIC kicked Manohara and said that at that time when he went to Manoharas house Manohara wanted to complain to the senior police officers against the Pitabaddara Police Station. He taunted Manohara by asking how he expected to go to the ASP now?
Sri Lanka
479
After few minutes, the officers came with two wooden poles and several fabric ropes and the OIC tied Manohara wrists and ankles. He was then hung by the two poles that had been placed on two tables. Manohara started screaming and pleaded with the OIC to release him as he suffered with enormous pain. Then the OIC shouted that no one could transfer him from that station. Although Manohara was in great pain he realised that the OIC was too drunk to realise what he was doing. Then the OIC called the officer called Sugath and ordered him to record Manoharas screaming with his mobile phone while he was being tortured which Sugath did. Then the OIC threatened Manohara that he would only be released after 5 am. As Manohara continued screaming the OIC ordered Sugath to stuff his mouth with cloth. When this was done Manohara felt that he was suffocating. While he was hanging on the pole Manoharas legs started to cramp up and this added to the pain. The OIC told him that the next day he was going to play the recorded screams to all the people of the town. He went on to boast that he had killed 52 Sinhalese people and an uncountable amount of Tamils as a Special Task Force (STF) officer in his service and that he had worked for STF for 16 years. He said that it would be an easy thing for him to kill Manohara but that too many people had seen him at his home and witnessed his arrest. After being hung in this manner for an hour Manohara was brought to another room inside the police compound of the Pitabaddara Police Station. There he was seated on the ground near the bed inside the room and one of his wrists was cuffed to a leg of the bed. Manohara noticed that his hands, legs and face were swollen. He further noticed that he was still bleeding from his face mouth and nose. At around 7 am an officer came to the room where Manohara was detained and he told Manohara that the OIC had behaved like animal; that he was barbaric and very cruel. After some time another officer, later identified as Yasapala, approached Manohara and suggested that to finalize the matter Manohara should plead guilty for some crimes. Manohara vehemently refused the suggestion. Then at 8 am, the officer Sugath approached Manohara and shouted that he was talking too much and not following the orders. He then kicked him two times. Another officer later identified as Chamara also beat him three times.
480
At 2 pm of the same day police officers produced Manohara before the District Medical Officer of the Morawaka Government Hospital. Manohara explained the way in which he was tortured by the OIC and the other officers. After making some notes the doctor simply stated that this was the way of treating the people who assisted the police in their activities. Then at 2.30 pm Manohara was produced before the Magistrate at the Kotapola Magistrates Court. There he learned that the police had filed two fabricated charges against him. In one case he was charged with obstructing the duty of the police officer by holding the collar of the OICs shirt. The second charge was that of causing minor injuries to a person. Manohara vehemently denied both cases. When he was produced before the Magistrate the several lawyers appeared for him and submitted the facts relating to the severe tortured Manohara suffered at the hand of police. The Magistrate observed the injuries and signs of torture on Manoharas body and released him on bail. Manohara later learned that the case numbers that the police have filed against him were: 18414 on obstructing the official duties of the police officer and 18413 for the causing minor injuries to a person. Immediately Manohara was admitted to the General Hospital of Matara and was treated at ward number 3. He was discharged on 15 July after five days of treatment. During his stay at the hospital he underwent six X-ray examinations by the doctors. The doctors explained that there were injuries to the spinal column so he has to rest for a time. While he was treated at this hospital the Judicial Medical Officer (JMO) also examined him. While Manohara was being treated at hospital a person who himself identified him as police officer Yasapala of the Pitabaddara Police Station called him on 12 July to tell him that the general public was going to hold a protest in the town of Pitabaddara against his torture by the police officers attached to the Pitabaddara Police Station. Yasapala pleaded with Manohara to prevent that from taking place but Manohara explained him that he was still under treatment and unable to do anything. Yasapala further explained that the OIC was ready to provide any support for him. After 10 minutes Yasapala called him again and explained that he had made the earlier call at the request of the OIC of the station.
Sri Lanka
481
Later Manohara learned that there was a large gathering of the public and a large protest in the Pitabaddra Town with the participation of around 2000 on 13 July. Manohara further learned that the police department had transferred the OIC of the Pitabaddara Police Station to the office of the Assistant Superintendent of Police (ASP) of Matara. Manohara states that later he learned that the name of the police officers who participated in torturing him also included, PC 40078 Chaminda, PC 40629 Pradeep, PC 84066 Lakmal and PC 85875 Yogananda. He further states that if the suspects are produced before an identification parade he could identify the suspects. Manohara further states that he has complained to the Human Rights Commission (HRC), the Senior Superintendent of Police (SSP) Matara, the Inspector General of Police (IGP) and the Deputy Inspector General of Police (DIG) Southern Province seeking justice against the violation of his rights. However, neither the police department nor any other law enforcement authority has yet started any investigation on the matter. He further states that he was illegally arrested and detained, laid with two fabricated charges after he helped the police to catch criminals. Manohara has also filed a fundamental rights petition before the Supreme Court. 5.10. Perumal Sivakumara - Special Task Force of the Sri Lanka Police 35 According to the information that the Asian Human Rights Commission (AHRC) received Mr. Perumal Sivakumara (32) of Kalpitiya Road, Norochchole in the Puttalam District was a father of three children. He was a leaf vender by profession. Perumal was a human rights defender and worked very closely with many civil rights protection movements and organizations in the area. Perumal first started to work with the Right to Life Human Rights Secretariat in Katunayaka and till his death he was one of the most active human rights activists working with the Right to Life Organizations to achieved its objectives. He further worked with many peoples councils and forums works for the promotion and protection of human rights. Perumal was directly involved with many individual human rights violations cases and did his best to assist the individual
35 AHRC UAC 183 2011; September 28, 2011
482
victims to get justice for their violations. Perumal was instrumental to many human rights organizations to organize demonstrations and protests against human rights violations in the area. He was highly recognized and respected by the people of the area and the society as a whole as a social worker and the civil rights defender. Perumal played a pivotal role in building the Human Rights Defenders Group for Nerochchole with the large peoples gatherings in year 2006. In 2006 Perumal was diagnosed with heart disease and underwent surgery following which he was continuously under treatments. On 22 August 2011 he wanted to buy some medicine prescribed by his doctor and went to the Kalpitiya Town at 5 pm. He went with one of his friends, Mr. Janaka Pradeep. Perumal was a Roman Catholic by religion. While he was in town he heard that the bell of the church ringing. Janaka and Perumal after identifying the special need of the church for the peoples interventions went there. Then he so around five hundred people gathered at the church. Perumal questioned the crowed the reason for being there. Then he learned that a strange person has come to the area and the scared people had come to the church for protection. This was the publicly well known factor that strangers coming to the village are called Grease Devils, who try to terrify the people and abuse women and girls. The people have gathered and have sought the protection from the authorities. Within a few moments a large number of police officers attached to the Special Task Force (STF) came to the church in a police jeep. They all had wooden sticks in their hands. Without inquiring anything or giving any warnings the STF officers started to beat the people who were at the church who tried to run away. Then several police officers approached Perumal and mercilessly assaulted him with sticks. Perumal pleaded with the officers not to assault him as he is a heart patient. Without listening to his pleadings the officers continuously assaulted Perumal who also tried to escape. Finally Perumal fell to the ground. With the help of other people he was able stand up again and started to walk.
Sri Lanka
483
Perumal suffered ten injuries on his legs and hands and was in great pain. With difficulty he was able to came to his home where he informed his family of the situation. Several hours later his condition became severe. The relatives brought Perumal to the Base Hospital of Puttalam at 9.30 pm. Then the doctor who examined advised him to be admitted for further treatment and he was subsequently admitted to the ward number 6 of the hospital. While he was undergoing treatment his condition deteriorated and he passed away at 10 am on 23 August 2011. Shortly following his death several senior police officers approached his relatives and warned them that they should not state that the death of due to the assault which happened at the church compound. They further warned the relatives not to take any legal proceedings against the killings. They told the relatives that if the assured that there would not be any further legal proceedings against the police then they can make necessary steps to handed over the death body that day itself. The officers requested a statement to the affect that there would be no action against the police but the relatives did not agree. Human rights organizations along with the relatives of Perumal complained to the law enforcement agencies seeking justice against the public torture of Perumal and for an impartial, prompt and effective investigation into his death. But the relatives and the civil society groups states that still none of these law enforcement agencies have started any investigation unto the incident. Justice has been denied. 5.11. Ganearachchi Appuhamilage Gayan Saranga - Dompe Police Station36 According to the information that the Asian Human Rights Commission (AHRC) received Mr. Ganearachchi Appuhamilage Gayan Saranga (29) of Katulanda, Dekatana, Dompe in the Gampaha District was arrested and extrajudicially killed by police officers attached to the Dompe Police Station on 29 September 2011. Saranga was married, the father of one child and a three-wheeler driver by profession. According to his mother, Ms. Lalani Ajantha (54), Saranga
36 AHRC UAC 187 2011; October 03, 2011.
484
was arrested while he was at his wifes home at Pattiwela in Dompe on 29 September 2011 at 5.15 pm. Five police officers attached to the Dompe Police Station requested Saranga to accompany them to the police station to record a statement. Sarangas father identified one police officer, who was a closely known friend, went to the police officers and demanded the reason for the arrest. The officers explained that they are only arresting him to record a statement about transporting a water pump by his three-wheeler. The mother, father and the wife of Saranga followed the police officers and pleaded with the police officers not to assault Saranga, stating that he had never engaged in any crime. The police officers promised them that they were not going to harm Saranga. They then took Saranga to the police station along with his threewheeler. When Saranga did not come back, his wife Rashika went to the police station to see what had happened to her husband. However, when she tried to enter the station the police officers in front prevented her and asked her to go home. Then she was afraid for Sarangas safety and once again she pleaded with the officers not to torture him. Then she returned home. Later in the morning of the following day she learned that Saranga had been killed and his body handed over to the Mortuary of Dompe Government Hospital. Then she and hundreds of relatives and friends of Saranga rushed to the hospital mortuary and observed the dead body and demanded the reason for his death. They all were able to see several dozen marks of injury very clearly on the body. They further learned that Saranga had been hung and beaten by the police officers while he was in the custody and that the noise of the torture and his pleading with the officers had been heard by many people in the vicinity of the police station. Police Headquarters then issued a communiqu stating that the police had arrested a suspected criminal wanted for more than 20 crimes and that while the suspect was being taken to a place where he had hidden the stolen property he had fallen from the speeding police jeep and succumbed to his injuries.
Sri Lanka
485
However, when the communiqu was received, along with the news of his death thousands of people surrounded the Dompe Police Station and demanded the quick and speedy action against the police officers who were responsible for the death. On 2 Octorber 2011 the Inspector General of Police (IGP) issued a statement that the earlier version of the police could not be proved. The IGP further stated that he had directed the Criminal Investigation Division (CID) of the police to investigation the incident. The CID is currently conducting further investigations into the suspicious death of Saranga and has arrest five policemen including the Officer-in-Charge (OIC) Crime Branch of the Dompe Police Station. Also, according to reports the entire contingent of officers at that police station in question has been transferred. Along with the Crimes OIC, the CID arrested a Sub Inspector, a Police Sergeant and two Police Constables on 2 October evening. Later on three of the arrested police officers were produced before the Magistrate of Gampaha and remanded till the 14 October. The case has now been postponed pending the development of further investigations into the incident. The Sri Lankan police have adopted a systematic practice of extrajudicially killing its citizens in the name of crime prevention. The innocent, even after arrest by the police, especially by the Special Task Force (STF) have been killed while in police custody. In a recent incident the police claimed that one suspect drowned while trying to escape their custody. They offered no explanation when it was pointed out to them that the suspect had been a navy specialist and an expert swimmer. The prevention of crime is a one of the sacred and paramount duties of the any civilized state. According to the Constitution of the country the law enforcement authorities are bound to protect the right to life of the people and their constitutionally enshrined rights. Sri Lanka, while running the country with a democratic framework is bound to support the judiciary and impose the rule of law and protect the civil liberties of the people. The killing of civilians by police officers has become a peremptory norm in the country. For many years now there has been no command responsibility in the Sri Lanka police and it is the supervisory officers that should be held primarily responsible for the killings perpetrated by the officers under their command.
486
5.12. Kamaranga Hannadige Lalith Susantha Peiris - Moratuwa Headquarters Police Station37 According to the information that the Asian Human Rights Commission (AHRC) received Mr. Kamaranga Hannadige Lalith Susantha Peiris (32), No: 80, Tsunami Housing Scheme, Modara, Moratuwa in the Colombo District was arrested and extrajudicially killed by the police officers attached to the Moratuwa Headquarters Police Station on 3 October 2011. Lalith was arrested along with four of his brothers by a police team attached to the Criminal Branch of the Headquarters Police Station Moratuwa on 3 October 2011. The police team was commanded by the Officer-in-Charge (OIC) of the Crime Branch Inspector of Police (IP) Hettiarachchi. Then Lalith, his brothers, Jagath Nishantha Peiris, Sanath Nilantha Peiris, Ajith Prasanna Peiris were brought to the police station and detained. Later Lalith was brought to the Bolgoda River by a group of police officers, allegedly to show them where he had concealed a knife. According to the official police version he drowned while attempting to escape. Before Laliths death, several hours earlier in the morning of 3 October a police constable attached to the Police Guard Point Modara in Moratuwa Police Division was injured while trying to settle a dispute between two parties which arose in the Modara area. He later succumbed to his injuries. Following the officers death a police team headed by the Officer-in-Charge (OIC) of the Headquarters Police Station of Moratuwa arrested Lalith and his brothers along with other persons. Later the police announced that after the arrest they had brought Lalith to a location at one Islet in the Bolgoda River where he revealed that the sword and the large knife used in the killing was hidden by him. Then when they were bringing him back to the police station the deceased had committed suicide by jumping into the water. The police further claimed that before jumping into the water he attacked a police officer who was in the boat as well. It is normal that the Sri Lanka Police make these statements in the belief that no one can prove them wrong. However, in this case they may have gone too far. In their statement they admitted that Lalith was handcuffed during
37 AHRC UAC 193 2011; October 06, 2011.
Sri Lanka
487
the entire incident. If this is truly the case then it is most suspicious that he managed to attack and cause harm to an officer while several other armed officers were observing the situation in a small boat. Even more suspicious is the fact that it is customary with dangerous suspects to cuff their hands behind their back. This then makes the police claim that Lalith injured an officer even more preposterous. The Sri Lankan police have adopted a systematic practice of extrajudicially killing its citizens in the name of crime prevention. The innocent, even after arrest by the police, especially by the Special Task Force (STF) have been killed while in police custody. In a recent incident the police claimed that one suspect drowned while trying to escape their custody. They offered no explanation when it was pointed out to them that the suspect had been a navy specialist and an expert swimmer. The prevention of crime is a one of the sacred and paramount duties of the any civilized state. According to the Constitution of the country the law enforcement authorities are bound to protect the right to life of the people and their constitutionally enshrined rights. Sri Lanka, while running the country with a democratic framework is bound to support the judiciary and impose the rule of law and protect the civil liberties of the people. The killing of civilians by police officers has become a peremptory norm in the country. For many years now there has been no command responsibility in the Sri Lanka police and it is the supervisory officers that should be held primarily responsible for the killings perpetrated by the officers under their command. 5.13. Eighth case of extrajudicial killing of beggars - Kalaniya Police38 We, the Asian Human Rights Commission (AHRC) are making this exceptional Urgent Appeal after observing the increased numbers of systematic extrajudicial killings of beggars in the cities of Sri Lanka over the past few months. According to information that the AHRC has received, another beggar was clubbed to death by unidentified assailants with a sharp weapon during the early hours of 4 October 2011 in Kelaniya in Gampaha District. The beggar was found with severe head injuries on the road in front of Priyantha Iron Tech of Biyagama Road, Gonawala, Kalaniya.
38 AHRC UAC 194 2011; October 06, 2011.
488
This is the eighth such instance in which a beggar was killed by a blow to the head in the past 3 months within the Kalaniya Police Division. Earlier, the police recovered the bodies of seven beggars from various locations in urban areas with severe head injuries. The extrajudicial killing of beggars has been reported in the Paliyagoda, Kaliniya and Kiribathgoda areas of the Kalaniya Police Division. The police have yet to uncover the motive behind this mindless killing. The police reported that they believe these killings are being carried out by cliques who make money from these beggars, and ask them to meet specific monetary targets. When the beggars are unable to meet the targets, they are badly assaulted or killed. The beggars who were reported dead to the Kalaniya Police Division were found at the following locations: 1. 2. 3. 4. 5. Nawaloka Circle, Paliyagoda Pattiya Junction, Paliyagoda Near the Sanasa Bank of Biyagama Road in Paliyagoda Near the 4th mile post, Kandy Road in Paliyagoda At turning road to the Pattiya Junction from Biyagama Road in Paliyagoda 6. At Kiribathgoda Town 7. At seventh mile post in Kelaniya
In 2010, as the Sri Lankan government prepared for the International Indian Film Academy Awards (IIFA) the government created propaganda about the need to beautify the city by removing beggars. Soon after, there was a mysterious series of extrajudicial killings of around a dozen beggars in the city of Colombo. Beggars are usually disabled people in wheelchairs, and as such it is not necessary for a thief to kill a beggar. Moreover, by their very nature, beggars have very little and it is hard to imagine anyone wanting to steal what little resources they do have. As no accidental circumstances have come to light, it is clear that these killings are not accidents. In one reported case, the beggar was a disabled lottery ticket seller. He suffered a severe head injury which proved to be fatal, likely caused by a blow with a heavy stone. The circumstances suggest a deliberate intention to kill.
Sri Lanka
489
Over the past two years, the AHRC has observed that those who were alleged to be criminals were killed at police stations shortly after they were arrested. Sri Lankan society seems to have gotten used to the idea of killings as the solution to wider societal problems. It is the peremptory norm of the state to protect the citizens of its country. Moreover, the state has implemented laws which oblige it to protect the rights and safety of every individual. In order to fulfill such an obligation, the state has established law enforcement agencies to investigate violations and the breaching of implemented laws so as to bring those who has violated these laws before a court of law for appropriate sanctions. In any democracy, the poorest of the poor must be given extra protection Affirmative action must be adopted so that social justice is a reality for every individual in Sri Lanka.. The meaning and value of human rights lies in the understanding that every member of society will be under its care, not just certain segments of society. When the basic elements of the investigation and prosecution process are paralyzed, the practice of killing and the adoption of systematic practices that are used to eliminate many of the problems faced by society are used instead. Such a practice will ultimately destroy the basic structure of civil society in Sri Lanka. The deaths of these beggars should be investigated promptly, efficiently and impartially. The responsible perpetrators should be brought before the court of law and should be prosecuted and those who are found guilty should be penalized. 6. Report on the examination of the third and fourth periodic reports of Sri Lanka by the uN committee against torture First round The Committee against Torture (hereinafter the Committee), presided over by Mr Claudio GROSSMAN 39, began its consideration of the third and fourth periodic reports submitted by Sri Lanka pursuant to Article 19
39 President of the Committee (Chile). Dean of the Washington College of Law at the American University in Washington, D.C., United States of America.
490
of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the Convention) on 8 November 2011, in the morning, in Geneva, in the headquarters of the United Nations High Commissioner for Human Rights in Palais Wilson with a nice view over Lake Lman. The Sri Lankan delegation was introduced by Her Excellency Tamara KUNANAYAKAM, Ambassador, Permanent Representative of Sri Lanka at the United Nations Office in Geneva. The delegation was led by Mr Mohan PEIRIS, Senior Legal Advisor to the Cabinet of Ministers of Sri Lanka and former Attorney-General. It also included Messrs W.J.S. FERNANDO and A.H.M.D. NAWAZ, Deputy Solicitors General at the Attorney-Generals Department, and Mr M.A.M. NAVAS, Acting Director (Legal) at the Department of Police, as well as several Geneva-based Sri Lankan diplomats. Mr Peiris took the floor to present the report. He noted at the outset that the armed conflict in Sri Lanka had mercifully ended, and the country was now on its way to recovery. The conflict posed unprecedented challenges to the authorities. But now the authorities mission is to maintain law and order, implement the ambitious national development plan, and pursue civil peace. In the submission of Mr Peiris, in May 2009 the terrorism was defeated in Sri Lanka, and the process of re-building the fractured nation began, accompanied by the renewed hope but also the new challenges. The authorities focus in this process is on rehabilitation, reconstruction, and reconciliation. Domestic home-grown solutions are being used in this process. Sri Lankas human rights commitments were evidenced by the invitations extended to the UN Special Rapporteur on Torture who visited Sri Lanka twice. Mr Peiris assured that Sri Lanka had never sought to invoke any justification for torture, and that the authorities maintained the policy of zero tolerance of torture. Absolute right not to be tortured is enshrined in the respective constitutional guarantee. Mr Peiris argued that Sri Lankas progress in the fight against torture had in many areas been exemplary. In 2009 the Sri Lankan authorities commenced the process of formulation of the national plan for the promotion and protection of human rights. That plan includes eight thematic areas, torture being one of them. Civil society is included in the drafting process. Outcome of the universal periodic review is
Sri Lanka
491
also used. The action plan includes measurable indicators in order to ensure the proper monitoring and evaluation. The draft composite plan has recently been submitted to the Cabinet of Ministers of Sri Lanka. The directorate on human rights and international humanitarian law has been established in the Sri Lankan Army. Likewise, the human rights division has been established in the Sri Lankan Police Department. Sri Lankas commitment to eliminate torture has been evidenced by the evacuation of the civilians in the final stage of the armed conflict in 2009, as well as the rehabilitation, reinsertion, and reintegration of ex-combatants and internally displaced persons. The Lessons Learnt and Reconciliation Commission has been established to ensure the era of peace, harmony and prosperity for Sri Lankan people, and that the internal armed conflict never recurs. The focus of that commission is on restorative justice. It conducted the public sittings in Colombo and the areas affected by the armed conflict. The commission is due to report to the President shortly. It is supposed to contribute to the task of forging common Sri Lankan identity. The authorities attempt to bring about a paradigm shift. For example, the idea of establishing an office of an investigating magistrate is on the table. Emergency Regulations is now thing of the past. However, Mr Peiris readily admitted that there was much more to do. He assured that the Sri Lankan authorities were sensitive of the human rights context, and that their desire was not to pay lip service to the international obligations of Sri Lanka but to ensure the real progress in their realisation. Mr Peiris concluded by the following: We look forward to the constructive interactive dialogue with the Committee. The President of the Committee invited the co-rapporteurs of the Committee on Sri Lanka, Ms Felice GAER40 and Mr Alessio BRUNI41, to pose their questions to the delegation of Sri Lanka. Ms Gaer pointed out that she was pleased to welcome the distinguished delegation of Sri Lanka in Geneva. She emphasised, however, that the Sri
40 Vice President of the Committee (United States of America). Director of the Jacob Blaustein Institute for the Advancement of Human Rights at the American Jewish Committee. 41 Member of the Committee (Italy). Former senior officer at the Office of the UN High Commissioner for Human Rights in Geneva.
492
Lankan report to the Committee had been two years late. She then went on to say that the Committee had received extensive allegations of torture and illtreatment in Sri Lanka, including enforced disappearances, sexual violence, unacknowledged detention, lack of investigations, etc. She pointed out that the Convention cannot be effectively implemented without the rule of law. She stressed three worrying trends, including the lack of data, the lack of independent investigations and prosecutions, and the continuing threats to civil society, journalists, lawyers, and other dissenting voices. She said that only scant data had been provided by the Government of Sri Lanka to the Committee in response to the questions contained in the Committees list of issues. She went on to repeat the questions concerning the safeguards against torture contained in the point no. 2 of the list of issues. She requested clarifications on the enforceability of the Presidential Directives referred to in the report. She requested practical information on the monitoring activities of the National Human Rights Commission and the magistrates accompanied by the concrete data including the statistics on the number of the complaints lodged with the National Human Rights Commission and their outcome. She requested data on the availability of Tamil-speaking interpreters. She requested information on the location of legal aid officers. In connection with point no. 4 of the list of issues Ms Gaer asked who would order the medical examination of the detainees and within which timeperiod such examination would be conducted. She asked whether judicial medical officers are required to issue their reports to the torture survivors or their next-of-kin. She inquired about the number of successful habeas corpus complaints. She asked a range of questions about the modalities of the administrative detention pursuant to the Prevention of Terrorism Act and requested information on the total number of people detained under that Act. Having noted that Sri Lanka has the biggest amount of cases of disappearances registered with the UN Working Group on Enforced or Involuntary Disappearances (hereinafter the Working Group) than any other country in the world, Ms Gaer invited the delegation to comment on the allegations of undisclosed detention centers in existence in Sri Lanka, and secret detention facilities run by the Sri Lankan Army. Ms Gaer touched upon the issue of intimidation of lawyers. She mentioned the case of Amitha Ariyaratne who allegedly faced death threats from the police in 2009, and emphasised that Sri Lanka was under the obligation to investigate even in absence of the formal complaint. She also referred to the attack on Mr Weliamuna, and defamatory publications against the lawyers in which the
Sri Lanka
493
latter were labelled as traitors (especially one at the website of the Ministry of Defense). She again requested the information on the number of complaints lodged with the National Human Rights Commission and their outcome. She questioned the independence of the National Human Rights Commission given that its members are solely appointed by the President. Ms Gaer requested information on the number of custodial deaths and deaths in encounters with police, and investigations into such deaths. She asked whether the report of the Lessons Learnt and Reconciliation Commission would be published. Ms Gaer also asked how many indictments were made under the CAT Act. Ms Gaer had much more to say but was interrupted by the President Grossman who gave the floor to Mr Bruni. Mr Bruni started by warmly welcoming the representatives of Sri Lanka. He asked whether Sri Lankan authorities were still considering making declarations under Articles 21 and 22 of the Convention (possibility of lodging communications with the Committee, by the States and individuals, respectively). He referred to 322 cases reported and precisely documented by the Asian Human Rights Commission, and how this was consonant with the zero tolerance policy advocated by the Government. He also referred to the report submitted to the Committee by the organisation Freedom from Torture (London) and numerous allegations sent to the Special Rapporteur on Torture. Mr Bruni asked about the resources allocated to the National Human Rights Commission. He asked whether the Commission visits the places of detention including military camps. He referred to the surprise visit made by the National Human Rights Commission to the Mount Lavinia police station on 15 August 2011. Several persons detained there for more than seven days and allegedly tortured were found at the premises of that police station. Mr Bruni inquired about the outcome of that sudden visit, in particular, whether it led to any prosecutions.
494
Mr Bruni asked about the effectiveness of the human rights training programmes for police, in particular, whether the Istanbul Protocol was used. He asked for the examples of the unannounced visits by the magistrates to the places of detention. Like Ms Gaer, Mr Bruni asked to provide information on a number of persons detained pursuant to the Prevention of Terrorism Act, as well as the conditions of their detention. Mr Bruni mentioned so-called rehabilitation programmes for the excombatants given that the Committee had received a flood of negative information about those programmes. Is it possible for the ex-combatants to decline the so-called rehabilitation? Mr Bruni explained that many nongovernmental organisations informed the Committee that the so-called rehabilitation centers were in fact detention facilities with deplorable living conditions. He therefore asked the delegation what had been done to improve those conditions. Mr Bruni touched upon the issue of overcrowding in Colombo remand prison. He asked about the measures envisaged in order to reduce overcrowding there. He asked about the rate of occupancy of cells in that remand prison. He inquired as to whether the independent investigation body would be established in Sri Lanka. Mr Bruni asked for examples of the disciplinary proceedings brought against the police officers allegedly implicated in torture. Mr Bruni mentioned the report by Amnesty International on the ineffectiveness of the Lessons Learnt and Reconciliation Commission. He asked whether the involvement of the international fact-finding body was envisaged. He asked for the governmental comment on the torture methods allegedly used in the Boza prison. Mr Bruni then said that he was forced to skip the questions on Article 14 of the Convention. Mr Bruni referred to the fact that the inquiry conducted by the Committee pursuant to Article 20 of the Convention found that torture had been
Sri Lanka
495
frequently resorted to by the paramilitaries associated with the Government. He therefore asked for any follow-up with regard to that concern. Whether any paramilitaries were prosecuted for torture? Questioning was continued by Ms Essadia BELMIR.42 She raised an issue of the independence of the judiciary in Sri Lanka, in particular, in the context of the appointments and removals of the magistrates by the President, as well as arbitrary transfers of the judicial officers. Her question essentially was whether the separation of powers existed in Sri Lanka. Ms Belmir also questioned the true nature of the Presidential Directives referred to by the Government of Sri Lanka in their report to the Committee. She also mentioned the problem of the delays of justice and urged the reforms of the judicial system capable of ensuring its independence and fair trial. Another question from Ms Belmir concerned the separation of males from females and of adults from children in the places of detention. She also mentioned the long duration of pre-trial detention in Sri Lanka. Ms Nora SVEAASS 43 took the floor and asked the delegation what had been done in Sri Lanka to guarantee the independence of the judiciary. She continued the line of questions commenced by Mr Bruni about the so-called rehabilitation centers and asked how many detainees are in those centers voluntarily and how many of them are there pursuant to the court orders. She asked whether it was true that the detainees were brutally handled in the rehabilitation centers and whether any possibility of redress for victims existed, including psychological damage. Ms Sveaass also developed the theme of gender-based violence and inquired whether there would be any investigation into such crimes. Do the victims of gender-based violence have any possibility to seek redress and assistance? She also touched upon the obligations flowing from Article 14 of the Convention and whether compensation for torture is paid. She requested detailed statistics in this connection.
42 Vice President of the Committee (Morocco). President of the Chamber at the Supreme Court of Morocco. 43 Rapporteur of the Committee (Norway). Senior Researcher and Head of Section for Refugee Health and Forced Migration at the Norwegian Centre for Violence and Traumatic Stress Studies in Oslo, Norway.
496
Mr Fernando MARIO MENENDEZ44 asked whether the database on the detainees existed and if it existed whether it covered the detainees apprehended pursuant to the Prevention of Terrorism Act. He further asked what efforts did the State of Sri Lanka take to protect the stateless persons in Sri Lanka and the Sri Lankan nationals working overseas, such as the domestic servants working in the countries of the Gulf. He referred to the statement on the domestic workers issued by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families.45 He then turned to the issue of police interrogations: how do they progress? who is present at those interrogations? are they being taped? He also mentioned the problem of incommunicado detention. Mr Mario Menendez then referred to the institution of the AttorneyGeneral in Sri Lanka. He mentioned the position of the Asian Human Rights Commission about the changed role of the Attorney-General during the tenure of Mr Peiris head of Sri Lankan delegation before the Committee, and that the Attorney-General now defends possible perpetrators of torture instead of protecting the torture victims. He asked for the first-hand account on this issue. Mr Mario Menendez posed the question about the competence of the military justice system. Mr Abdoulaye GAYE46 took the floor. He asked about the problem of the lack of judicial intervention in the extradition proceedings and how it was compatible with the principle of non-refoulement. His other question concerned the issue of inadmissibility of proof obtained through torture (Article 15 of the Convention), whether this principle is clearly recognized in Sri Lankan law. Ms Myrna KLEOPAS 47 joined the others in welcoming the Sri Lankan delegation but went on to express her concern that impunity was a rule in Sri Lanka rather than an exception.
44 Member and former President of the Committee (Spain). Professor of Public International Law in Madrid, Spain. 45 Doc. CMW/C/GC/1 (23 February 2011). 46 Member of the Committee (Senegal). Prosecutor General at the Court of Cassation in Dakar, Senegal. 47 Member of the Committee (Cyprus). Former Cypriot career diplomat whose last post was High Commissioner of Cyprus in London.
Sri Lanka
497
She referred to the recommendations contained in the report of the UN Panel of Experts on Accountability in Sri Lanka made public on 25 April 2011. She asked whether those recommendations had been taken by the authorities into account in formulating the national action plan. Mr WANG Xuexian 48 declared that terrorism could not be tolerated and encouraged the implementation of the national action plan on human rights. He then mentioned a number of allegations of extrajudicial killings including an unnamed 7 years-old boy who was allegedly gunned down in a market. Mr Wang inquired whether an investigation ensued. The session was wrapped up by Mr Grossman. He asked for the list of cases decided by the Supreme Court of Sri Lanka allegedly expanding the statutory definition of torture. He asked about the punishment for torture applicable in Sri Lanka. He went on to on ask about the legal grounds to keep people in detention after the repeal of the Emergency Regulations. He asked about the outcome of habeas corpus petitions and the gender and ethnic balance in the Sri Lankan judiciary which is very important, in the submission of Mr Grossman, for the legitimacy of the judicial power. Mr Wang then referred to the report of the Asian Human Rights Commission in the part concerning the immunity from suit granted to the executive branch of power in Sri Lanka. He also posed the questions about the prevalence of the human rights phenomenon of disappearances in Sri Lanka including the abductions of the internally displaced person who especially find themselves in the position of weakness. Mr Wang asked how many indictments have been filed pursuant to the CAT Act. He further asked the delegation whether the Government of Sri Lanka is considering ratification of the new International Convention for the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the Convention and the Rome Statute of the International Criminal Court, as well as making declarations under Articles 21 and 22 of the Convention. He also asked whether the Government is contemplating new visits by the special procedures of the UN Human Rights Council.
48 Vice President of the Committee (China). Career Chinese diplomat, formerly Deputy Permanent Representative and Ambassador Extraordinary and Plenipotentiary of the Peoples Republic of China to the United Nations and Ambassador Extraordinary and Plenipotentiary to the Republic of South Africa.
498
Mr Peiris assured the Committee that the Sri Lankan delegation would take on board all matters raised by the Committee with full sincerity and that all those matters would be addressed by them with openness. He said that both the delegation and the Committee had a common objective, namely to make Sri Lanka an ideal place to live. Mr Grossman closed the meeting. Second round In absence of Mr Grossman, the meeting of the Committee on 9 November 2011, in the afternoon, was presided over by Mr Wang, Vice President of the Committee. Mr Peiris, on behalf of the delegation of Sri Lanka, started answering the questions posed by the Committee members. He pointed out that those questions were formidable and that they had required formidable efforts on the part of the delegation. He cited Alan Derschowitz.49 Mr Peiris then said that it was indispensable to provide the Committee with some background. He assured the Committee that the delegation had given their earnest consideration to all matters raised by the Committee members. Mr Peiris went on to cite the provisions of the Constitution of Sri Lanka mandating the Government to promote international peace and security, respect for international law and treaty obligations. He then referred to the absolute prohibition of torture, cruel, inhuman and degrading treatment contained in the fundamental rights chapter of the Constitution (Article 11). He then went on and on citing the various constitutional provisions and the case-law of the Supreme Court of Sri Lanka on the right to life and the grant of reparations for ill-treatment suffered including those rendered by Justice Mark Fernando. Mr Peiris then went as far back into the history as 1884 citing various statutory provisions. He referred on numerous occasions to the Constitution and Criminal Procedure Code of Sri Lanka. He explained that the Criminal Procedure Code provided for the legal framework in order to implement the constitutional safeguards.
49 American lawyer, author of Why Terrorism Works: Understanding the Threat, Responding to the Challenge.
Sri Lanka
499
After recounting some totally irrelevant stuff Mr Peiris pointed out that it was obvious to everyone even when he himself had been in his nappies. The Committee met this brilliant joke with silence. Mr Peiris then cited the case-law of the European Court of Human Rights on the reversal of the burden of proof in torture cases. He attempted to defend the provision that there was nothing wrong in use in the criminal proceedings of the statements given by the accused without his or her lawyer being present. He conceded accordingly that there was no right for a lawyer to be present in a police station under Sri Lankan law, but that its introduction into the legislation was being considered. He informed the Committee that the Government of Sri Lanka was considering establishment of a duty attorney scheme, as well as an institution of the investigatory magistrates. On 11 June 2009 the Inspector-General of Police issued a circular no. 2178/2009 on the police officers way of interaction with the lawyers. It led, in the submission of Mr Peiris, to the marked improvement of the overall situation. As to the status of the Presidential Directions, Mr Peiris remarked that any non-compliance with them would be visited with strong sanctions. He further assured the Committee that no criminal trial in Sri Lanka would ever commence without the interpreter being available. He confirmed that there was a dearth of interpreters and suggested that it was an area where additional capacity building would be necessary. He regretted that there were no more trilingual (English-Sinhala-Tamil) interpreters available. He then said that in the North and in the East of the country the court proceedings were conducted in the Tamil language. As to the functioning of the National Human Rights Commission, Mr Peiris gave no data to the Committee referring to its non-availability as the Commission is an independent body. He said that there were 765 persons in administrative detention, they are provided with medical treatment by an in-house doctor, family visits, recreational and religious facilities, visits by the International Committee of the Red Cross (they conducted 5 visits in 2010) and the National Human Rights Commission. He then cited some legislative provisions on the status and independence of the National Human Rights Commission. He promised to
500
provide the Committee with additional data contained in a separate schedule. He then quoted numbers of the fundamental rights petitions lodged with the Supreme Court every year. As to the medical examinations, Mr Peiris confirmed that no police officer was allowed to be present when a suspect is being examined by a judicial medical officer. The latter does not issue a receipt to the patient, the medical reports are kept confidentially in the custody of judicial medical officer before being submitted to the court, when required. As to the writ of habeas corpus, Mr Peiris very helpfully explained that it was an old legal mechanism coming from English law, he explained that this writ was not fashionable today because of the availability of the fundamental rights litigation. As to the rehabilitation centers for ex-combatants, Mr Peiris acknowledged that the choice the people faced was either to go to the rehabilitation centre or to go to the jail. He emphasized that Sri Lanka had opted for restorative justice rather than purely retributive justice. He said that there were 689 persons detained in rehabilitation centers, but with a new peaceful dawn in Sri Lanka this number is constantly decreasing. As to the number of cases pending before the Working Group, Mr Peiris explained that most of them are from 1980s, the time-period of the JVT insurrection and Northern insurrection. Mr Peiris then said that every person may petition the Lessons Learnt and Reconciliation Commission for issuance of a death certificate in respect of a missing relative. He went on to explain that the mandate of the Lessons Learnt and Reconciliation Commissions would soon be terminated. Order to detain pursuant to the Prevention of Terrorism Act is amenable to judicial review by way of writs for certiorari and is subject to fundamental rights litigation. Judges can exercise their discretion and impose sentences lower than minimal statutory threshold. Any attorney-at-law may meet with a detainee, police officers would be present during such an interview, but in the hall rather than in the immediate vicinity. He explained that it was in fact the same situation in England where
Sri Lanka
501
such meetings are recorded with CCTV cameras. The police officer in a hall is indispensable in order to ensure that nothing unusual happens during the interview. As to the status and activities of the National Human Rights Commission, Mr Peiris repeated that they were permitted to visit all places of detention. Mr Peiris affirmed that there were no unverified detention centers in Sri Lanka. List of all gazetted detention centers is available at www.document.gov.lk. Database on detainees is available for every person who is next-of-kin. But many detainees do not want the data on their detention to be disseminated. The National Human Rights Commissions also keep the database built by the United Nations Development Programme. Mr Peiris said that Amnesty International was wrong and there were no secret detentiojn centers in Sri Lanka. There is no shortage of the official detention centers in Sri Lanka. All information on the detention centers was published in the Official Gazette for 14 July 2011 and 30 July 2011. Touching upon the issue of the threats to lawyers, Mr Peiris confirmed that the police officers implicated had been transferred out and disciplined by the Inspector-General of Police. Overzealous police officers have been dealt with. In particular, 44 police officers were indicted in 2006-2011, some more cases were recommended for the disciplinary proceedings. There is a very small number of complaints about the enforced disappearances in Sri Lanka, if one agrees with the estimates of Mr Peiris. As to the torture cases, Mr Peiris promised to make available a chart with gender and ethnic breakdown to the Committee. It is not clear whether this chart has been or is intended to be made public. Mr Peiris said a few words about the attack on the house of Mr Weliamuna. Mr Peiris referred to Mr Weliamuna as his colleague and to the attack itself as a sad event. He went on to explain that Mr Weliamuna himself was not capable of telling the authorities who was responsible for the attack. Mr Peiris said that the authorities denounced the attack but the investigation did not proceed.
502
As to the attacks on the lawyers in the media, Mr Peiris expressed his hope that his colleagues would not be deterred by them. He said that those attacks had no impact on anyones practice and as such had nothing to do with the problem of torture. Concerning a seven-year old boy who was gunned down, Mr Peiris said that that particular event had nothing to do with the Convention as it was a shootout between the offenders and the police pursuing them, and the boy was unfortunately caught in cross-fire. As to the accession to the Optional Protocol to the Convention and the Rome Statute of the International Criminal Court, Mr Peiris explained that Sri Lanka was a dualist jurisdiction, therefore, recommendations of the Human Rights Committee were of no consequence for its legal order, that is one of the reasons why acceptance of the procedures under Articles 21 and 22 of the Convention still continues to be under consideration by the Government of Sri Lanka. It is not clear how in making that statement Mr Peiris connected the distinct issues of the accession to the Optional Protocol and the Rome Statute and making declarations under Articles 21 and 22 of the Convention. As to the national action plan on the promotion and protection of human rights, Mr Peiris once again said that it was developed following broad-based consultation. Mr Peiris then repeated that that plan had elements in respect of torture. He then said that the plan comprised goals, issues, activities, key performance indicators, timeframe, responsible agencies identified in respect of the implementation of the Convention. This official documentation will be published in December 2011. Mr Peiris concluded by saying that he was conscious of the fact that there remained some outstanding issues. Mr Wang welcomed the presentation by saying that he admired energy of the speaker (Mr Peiris) who was capable of speaking without a pause and without a sip of water. Ms Gaer then took the floor. She thanked the delegation for very interesting information but said that their responses had just hit the tip of the iceberg. She admitted that she was still left with many questions. She referred to the draft human rights action plan as a fine initiative but said that its implementation would be crucial. She said that there was not a single
Sri Lanka
503
reference in the description of the plan to prosecutions, though prosecution of torturers is a central obligation under the Convention, if there is a reasonable ground to believe that torture had taken place, even in the absence of a formal complaint to that effect. Ms Gaer said that the Committee had no information as to what locations had been visited by the delegates of the International Committee of the Red Cross, and others. She mentioned her question on the list of detainees and other persons in the custody of the Government and asked the delegation to fill that gap (although that information was one of the few topics clarified by Mr Peiris in his presentation). As to the cases pending before the Working Group, Ms Gaer said that those had still not been clarified. The people are missing, and there have been many disappearances. She asked about the allegations of sexual violence against women at the end of the conflict. She also mentioned sexual violence in which the Sri Lankan peacekeepers in Haiti (MINUSTAH) had allegedly been involved. She asked about the investigations, if any, conducted into those well-founded allegations, as well as to provide the results of the investigation into the behavior of the Sri Lankan peacekeepers in Haiti. Were the individuals jailed, suspended, or dismissed? Mr Peiris interrupted and said that the whole issue of Haiti was completely new for the delegation as it had not even been hinted the day before. Mr Wang said that if the delegation could not respond to that question immediately, they would be able to respond to it later. Ms Gaer then returned to the question of the treatment and intimidation of civil society, human rights defenders, lawyers, and journalists. She pointed out that the response given by Mr Peiris to that question had been very brief. She then mentioned the killing of Mr Perera and that still no-one was held accountable for that crime, as the principal suspect is still working as a police officer. Ms Gaer then cited other cases referred to in the list of issues under this rubric.
504
Ms Gaer explained that all those incidents created a sense of fear among the civil society in Sri Lanka whose normal functioning and ability to uphold the values of the Convention are central to the work of the Committee. Ms Gaer asked Mr Peiris to confirm the Governments support of the work of the human rights defenders. Mr Bruni again referred to the possibility for Sri Lanka to make declarations under Articles 21 and 22 of the Convention, whether the Government is considering making them, as well as ratifying the Optional Protocol to the Convention. Mr Bruni then said that reality was very different from the legislative and administrative frameworks referred to by the Government, as amount of credible allegations of ill-treatment coming from Sri Lanka is enormous. Mr Bruni reiterated his precise questions about the resources allocated to the National Human Rights Commission, its access to the military camps, and asked for precise answers, possibly even yes or no answers, and information on the follow-up given to the recommendations of the National Human Rights Commission. Mr Bruni said that he had accompanied (as a member of the secretariat) confidential inquiry to Sri Lanka previously conducted by the Committee. He asked about the follow-up to the conclusions of that inquiry. As to the rehabilitation centers, it seems it is an offer that cannot be refused, as the only alternative is jail. He asked for recent examples of the Supreme Courts case-law on the substantive compensation. Mr Mario Menendez again inquired about the treatment of stateless persons and the protection afforded by the Sri Lankan authorities to the migrant workers particularly women in the countries of the Gulf and other countries. He asked about accessibility of the central police register. He asked about who is entitled to sign the interrogation warrant normally and pursuant to the Prevention of Terrorism Act. He also asked about the incommunicado detention, the decision-making authority in this respect and its duration. Ms Kleopas declared that the fight against impunity was in the very heart of the Convention. Therefore, she questioned the approach of Mr Peiris that there was no problem in the lack of presence of a lawyer in a police station, as torture can be committed not only for the purpose of obtaining information.
Sri Lanka
505
Ms Belmir returned to her questions about the independence of the judiciary in Sri Lanka. She said that it was not enough to issue a death certificate for a missed person, every case of disappearance should be investigated as to what has happened with the loved ones of those who applied for the issuance of death certificates. Ms Sveaass raised the case of the disappearance of Prageeth Eknaligoda, and that the Government promised the Committee to provide it with supplementary information about that case in October 2011. Ms Sveaass asked whether there would be a special programme of rehabilitation for women and children exposed to sexual violence. She declared that in order to move ahead those who are guilty should be held accountable. Mr Wang reminded the members of the Committee that there was no additional time available for their questions. He explained to the delegation that the outstanding questions might be answered in writing. He then gave the delegation twenty minutes to address the Committee orally. Mr Peiris started responding to the questions by tackling the issue of Eknaligoda. He said that Eknaligoda had taken refuge in a foreign country, and that the matter was being investigated. He pointed out to a huge window of opportunity for filing civil cases in tort against State. Civil cases may also be filed against the military. As to the issue of death certificates he fully agreed with Ms Belmir, and that autopsy and inquiry are indispensable in all cases of deaths from unnatural causes. As to the migrant workers, it is an important thing which is seriously addressed by the Government which at some point even considered stopping sending Sri Lankan female workers abroad at all. It is one of the thematic areas of the proposed national human rights action plan. Sri Lanka has a specialized ministry of foreign employment. Sri Lankan migrant workers working abroad are a valuable asset for their country. Mr Peiris conceded that reality might be different from high-flying jurisprudence. He said that amid all doom and gloom there were million good things in Sri Lanka. 6 000 people are arrested annually, and there are only 400 torture allegations. Mr Peiris assured that he was completely with the
506
Committee that there is no room for torture, and that it should be brought to a minimum. He then went on to conclude. He said that contemporary terrorism was extremely sophisticated. That is why Sri Lanka needed special legislative response to the terrorist threat under the Prevention of Terrorism Act, given that ordinary law was completely impotent to deal with terrorism. Sri Lankans based themselves on the laws of the United Kingdom and India. Testimony in absence of a lawyer is admissible evidence only if it is given to a police officer of a particular rank or above. In any case, this evidence is to be tested in court for its voluntariness. Mr Peiris then cited extensively from the draft national action plan on human rights and promised to make that document available to the Committee. He repeated once again that prevention of torture was a special thematic area of that plan. He went on to criticize the report of the UN Secretary-Generals Panel on Accountability in Sri Lanka. He said that the Panel did not have investigatory powers, therefore, it scarcely possessed any objective information. The sole objective of the Panel was to advise the Secretary-General, its report itself qualifies that the material collected is unchecked and unverified. Mr Peiris questioned whether it is fair to base oneself on this report. Mr Peiris assured the Committee that the Government of Sri Lanka would take every bit of critique on board if that critique had been made in good faith. He explained that reports similar to that broadcast on Channel 4 are very convenient vehicle for ex-combatants seeking refuge in green pastures. However, many applications for asylum submitted by such individuals have been rejected in Switzerland and elsewhere in Europe. In fact, it is economic asylum, that is why this game is being played, in the firm submission of Mr Peiris. Mr Peiris declared that the Convention should not be exploited by the terrorists and mercenaries. In his submission, the Committee should focus on legal issues and should not let the Convention to be exploited by the terrorists. He thanked the Committee for their patient hearing. Mr Wang asked for supplementary written submissions. He added that the Committee would not allow the Convention to be used by anyone including the terrorists. He thanked the delegation of Sri Lanka. That concluded the
Sri Lanka
507
examination of the third and fourth periodic reports of Sri Lanka by the Committee. Concluding observations On 25 November 2011, the final day of its 47th session, the Committee published its concluding observations on Sri Lanka.50 As to the quality of the Sri Lankan reports, the Committee remarked that it regretted that the report lack[ed] statistical and practical information on the implementation of the provisions of the Convention.51 The Committee pointed out that it remained seriously concerned about the continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings,52 about the Sri Lankas failure in practice to afford all detainees, including those detained under anti-terrorist laws, with all fundamental safeguards from the very outset of their detention,53 and about the reports documenting individual cases of torture and ill-treatment where the victims were allegedly randomly selected by police to be arrested and detained for what appears to be an unsubstantiated charge and subsequently subjected to torture or illtreatment to obtain a confession for those charges.54 The Committee mentioned the allegations of secret detention centers55 and enforced disappearances including those documented by the Working Group.56 The Committee expressed its concern at the reports of intimidation and harassment of human rights defenders, lawyers, journalists, and other civil society actors.57 It mentioned by name the cases of Prageeth Eknaligoda, Mr Weliamuna and some others.58
50 51 52 53 54 55 56 57 58
UN Doc. CAT/C/LKA/CO/3-4. Ibid., para. 2. Ibid., para. 6. Ibid., para. 7. Ibid., para. 11. Ibid., para. 8. Ibid., para. 9. Ibid., para. 13. Ibid.
508
As to the conditions of detention, the Committee expressed concern at the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care59 and reports on death in custody.60 On the National Human Rights Commission, the Committee expressly requested the Government of Sri Lanka to provide information on the followup to its recommendations made after the surprise visit to the Mount Lavinia police station on 15 August 2011.61 The Committee expressed its concern on the fact that the independence of the National Human Rights Commission had been undermined.62 Most importantly, the Committee underlined the prevailing climate of impunity in [Sri Lanka] and the apparent failure to investigate promptly and impartially wherever there is reasonable ground to believe that an act of torture has been committed.63 The Committees concerns about the lack of protection of victims and witnesses were supplemented by the mention of the assassinations of Messrs G. Perera and Mr S.K.A.S. Nishantha Fernando.64 The Committee reiterated its previous recommendation on the establishment of an independent body to conduct the prompt, impartial, and spontaneous investigations into the allegations of torture and ill-treatment committed by the police officers.65 As to the Lessons Learnt and Reconciliation Commission, the Committee noted its apparent[ly] limited mandate and alleged lack of independence.66 As to the training of law-enforcement personnel, the Committee invited the authorities to [a]ssess the effectiveness and impact of training programmes and education on reducing the incidence of torture and ill-treatment and support the training on the use of the Istanbul Protocol.67
59 60 61 62 63 64 65 66 67
Ibid., para. 14. Ibid., para. 15. Ibid., para. 16. Ibid., para. 17. Ibid., para. 18. Ibid., para. 19. Ibid., para. 18 (a) and (c). Ibid., para. 21. Ibid., para. 28 (b) and (c).
Sri Lanka
509
On redress, the Committee noted lack of the legislative provision on compensation or other forms of reparation for torture victims. The Committee reiterated its previous recommendation that the Government of Sri Lanka should ensure that appropriate rehabilitation programmes are provided to all victims of torture and ill-treatment, including medical and psychological assistance. 68 The Government of Sri Lanka is requested to furnish the follow-up information to the Committee by 25 November 201269 and their fifth periodic report by 25 November 2015.70 Some thoughts instead of conclusion The Sri Lankan delegation led by former Attorney-General Pereira skillfully avoided answering most concrete questions posed by the Committee. Instead of focusing their analysis, the Committee members frequently repeated themselves and went into unnecessary length. The Committees concluding observations are relatively detailed. It is important that the Committee chose not to isolate the human rights violations committed during the final stage of the armed conflict, but rather preferred to address, in rather firm and strong language, the demise of the rule of law in the country as a whole. The concluding observations, however, suffer from the same defect as the Committees review as a whole. Lack of focus did not allow the Committee to concentrate upon the most important institutional issues which lead to the problems in numerous other areas. All in all, this exercise although somewhat useful in calling snake a snake internationally has very little to add to the already ongoing debate within the Sri Lankan society as to the widespread phenomenon of torture, its root causes, and the ways forward to overcome this scourge. (Put together by Sergey Golubok, representative of the Asian Legal Resource Center at the 47th session of the Committee against Torture, in November 2011 in Russia, Germany, and France.)
68 Ibid., para. 29. 69 Ibid., para. 38. 70 Ibid., para. 39.
510
7.
development proposal of the medico-legal Service in Sri Lanka
(This proposal was prepared by Several Judicial Medical Officers) Medico-legal work of Sri Lanka is covered by Consultant J.M.O.S, MOs(Medico-legal), D.M.O.s in the government hospitals in the health ministry and also by Professors / Senior Lecturers who are attached to the Departments of Forensic Medicine in faculties of Medicine. Medical Officers (Medico-legal) who have trained in Forensic Medicine for a short period are working in some of the government hospitals and they refer certain medicolegal cases to consultant JMOs. In addition, District Medical Officers, perform medico legal work within their capacity and they too, refer the medico legal cases as do MO(Medico legal). In late 1980s there were only 4 consultant JMOs and by the end of year 2011 there are 26 consultant J.M.O.s working in 18 out of 25 districts of Sri Lanka. However, this number is far below the cadre position for the Consultant J.M.O.s proposed by the Ministry of Health. Medico-legal work in districts where there is no consultant JMOs is covered by non specialized doctors (Medical Officer in Medico legal, D.M.O.s and MOs). In Sri Lanka Consultant Judicial Medical Officer has to work in clinical forensic medicine, postmortem examination and examination of skeletal remains (anthropology), administration and teaching . Certain deficiencies and problems have identified when the doctors working in these medico-legal units and they are classified according to three main streams as described below. 1. Deficiencies found in the infra structure of the medico-legal set up. 2. Matters in relation to the work in medico-legal units. 3. Matters arising with the work in other disciplines of the medico-legal examination. 1. Deficiencies detected in the infra structure of the medico-legal set up and the suggestions to overcome these matters. 1.1. There are no separate office complex and mortuary complex in medico-legal units of certain hospitals. This is particularly evident where a consultant judicial medical officer is appointed to a district general hospital for the first time without setting up an office complex.
Sri Lanka
511
The mortuary set up in such hospitals is also sub standard. i.e.: no body coolers or frequently broken body coolers. no water, electricity and adequate ventilation facilities. No changing rooms and no shower room for doctors and mortuary staff to clean themselves after finishing the postmortem examinations, etc. No clothes and aprons to wear at the time of conducting the postmortem examination. It has been noted that these requirements are extremely difficult to be fulfilled in hospitals that are under the provincial councils. 1.2. Lack of required equipments for clinical and postmortem examination to perform the proper medico legal work. It has been noted that required equipments are not available in most of the medico-legal units. The list of essentially required equipments are described below.
CLINICAL FORENSIC EXAMINATION EQUIPMENTS ESSENTIALLY REQUIRED 71 Sphygmomanometers (Blood pressure apparatus) Stethoscopes Hand lenses Weighing scale Measuring tapes Bed side screens Bed side lamps Examination bed (With facilities for gynaecological examination ) Infra red lamps Ultra violet lamp Vaginal speculums (Eg: Cuscos bivalve type) in different sizes Otoscopes Ophthalmoscopes
FOR INVESTIGATIONS Light microscopes (Brand like OLYMPUS) Sterile swabs with close containers Sterile containers (Screw capped or rubber toped bottles and vials)
71 The total cost for one unit is approximately SLR 3.5 million. Thus for 26 units is SLR 91 million. Out of this total cost the cost for portable x-ray and body coolers per unit is 2.5 million. Thus the total cost for these two items for 26 units is SLR 65 million.
512
Standard labels adhesive type Standard tags Sample sealing tapes RECORDING AND STORAGE Computers (Desk top and laptop) Computer printers (Laser type Monochrome preferable) Scanners Photocopy machines Digital cameras (With high mega pixels) Digital voice recorders Ordinary steel cupboards and file cupboards Racks
COMMUNICATION Telephone Fax machine Internet facility AU TO P S Y E X A M I N AT I O N E QU I P M E N TS E S S E N T I A L LY REQUIRED Body coolers Autopsy tables Portable X-ray unit Autopsy instruments Skull saw (Electric) o Scissors o Forceps (Tooth and non tooth) o Hammers o Chisels o Scalpel handles o Brain knives o Rib cutter o Hand lenses o Lamp with movable arm o Insufficient human resources (Consultant Judicial Medical Officers, Medical Os, trained Mortuary attendants and labourers, data entry operators, photographers, laboratory technicians).
1.3.
Sri Lanka
513
2.
Matters arising in working in the medico-legal set up.
2.1. Lack of uniformity in medico-legal documents that are used in medicolegal work. There is no uniformity in reporting of COD after the postmortem examination. The present postmortem report should be upgraded
514
Investigation request forms ( govt. analyst., MRI, histo path.,lab., ILMT,ect.)has to be made uniform and upgraded Uniform and more descriptive diagram forms( body, genital, bones, ect) Upgrading existing MLEF, referral forms, MLR
2.2. Lack of in service training for most of the non specialized doctors who are involved in medico-legal work (e.g.: D.M.Os in district hospitals, etc). CME for specialist Regular island wide in-service training programs for non -specialized dos. who are engaged with medico-legal work. Comprehensive and mandatory training for new coming MOML, preferably at provincial levels Training programs form mortuary attendants Conducting research and attending CME programs by specialists
2.3. Lack of communication and consultation regarding medico-legal work that is performed by non specialized doctors and other relevant authorities. The consultant should be freely communicable by the nonspecialized doc. when and where necessary To have a monthly mortality meeting at the hospital with the participation of the director / MS / DMO, JMO, coroner, relevant specialist, , etc.
2.4. Lack of auditing of medico-legal work and documents. Medico legal documents prepared by specialists and non- sp. has to be audited anonymously and/ or pear revived mutually
2.5. Matters arising when dispatching of specimens to forensic laboratories. Dispatching samples should be done under the supervision of the JMO preferably via a hospital minor staff member
2.6. Maintaining registers MLEf reg. PME reg. summons. Labs. Reports to courts. BHT receive and dispatch reg. etc..,
Sri Lanka
515
3.
Matters arising with other disciplines that are related to medico-legal work. Police. a) poor communication b) non compliance c) delayed presentation Inquirer in to Deaths. a) to have a mandatory training programmed for ISDs ( inquirer into deaths) in death investigation at the time of their appointment. b) Justice ministry should have criteria in appointing ISDs c) ISD should have a proper working environment/place Forensic Science Services. (Government analysts Department etc.) a) It takes a long time to get the report of results once the specimens are sent to the govt. analyst dept. Therefore the final PM report is delayed. b) Limited number of toxicological tests that are being performed. c) Absence of quantitative analysis other than very few as alcohol. d) Absence of other forensic science investigations such as DNA, etc. e) Absence of reception of specimens throughout the day/ 24 Hrs. f ) Poor communication with the JMO g) Absence of comments regarding the positive findings in investigation results. Judiciary. a) National format to summons an expert witnesses including relevant information of the case and the patient or the deceased examined. b) Summons should be served with adequate time to respond/ to send the report to court( a minimum of two weeks) c) Summon the JMO only when medical evidence will be taken in high court. d) Undue delay in disposal of cases cause enormous inconvenience to JMO. Effective measures adopted to remove undue delays could ensure a more efficient service from JMOs which at the same time will remove the inconveniences to JMOs. e) To assist to locate the Medical Officer who performed the
516
f) g) h)
medico-legal work. A list of medical officers who perform/have performed medico-legal work can be included in the web site of the Ministry of Health with their present stations. Making facilities available to display photographs to court with multimedia facilities. Police messages are routinely sent for all the calling dates and therefore should not be practiced. The present arrangement to attend district court for medical officers (specialists and non specialists) is unsatisfactory and unacceptable therefore there is a need to develop a practice which is reasonable and just regarding such payments. The initiative in this regard should be taken by the JMO themselves in consultation with the Attorney Gen. Dept.
Difficulties encountered in govt. hospitals and in referring patients to other medical specialties. a) To obtain a blood sample from patients at the time of admission to whom a MLEF will be issued and where their lives are endangered or when blood investigations will be necessary for further medico-legal investigations and to preserve it in a refrigerator b) A non specialist medical officer (Medical Officer Medico-Legal / DMO / MO) should be able to refer a person directly to a specialist medical officer and specialized units to get his opinion in relation to medico legal work, preferably by a referral form. Medico-legal work in Pvt. Hospitals a) To formulate a guideline to attend to medico-legal work (mainly MLEF) at private hospitals Ministry of health a) To have a separate financial allocation for medico legal services in the annual health budget. b) At present there is no uniformity in issuing reports for insurance purposes and therefore a reasonable practice should be adopted in this regard initiated by JMOs in collaboration / consultation with Ministry of Health.
Thailand
517
THAILAND
CoNsoLIDATINg INTerNAL seCurITy sTATe, CompLAIsANT juDICIAry
In its 2010 annual report, the Asian Human Rights Commission focused on the consolidation of the revived internal-security state in Thailand. Emergent after the 19 September 2006 coup, the revived internal-security state has been characterized by the persistent violation of human rights, using strategies both legal and extralegal. It has been accompanied by the use of a constellation of repressive mechanisms to prevent redress of rights violations, including the constriction of speech, the stifling of protest and blocking of access to justice. At the close of 2010, the human rights situation in Thailand was precarious, with the violent state crackdown on red-shirt protestors by the government of PM Abhisit Vejjajiva still reverberating amidst other long-standing injustices. The first half of 2011 saw the start of the trial of independent news site webmaster Ms. Chiranuch Premchaiporn, a devastating appeal outcome foreclosing justice in the case of the disappearance of human rights lawyer Mr. Somchai Neelaphaijit, and difficulties faced by the Truth and Reconciliation Commission of Thailand (TRCT) in their attempt to investigate the political violence of April and May 2010. Politically, for many the central event of the year was the overwhelming victory of Yingluck Shinawatra and the Pheu Thai Party in the 3 July 2011 elections. While it is too early to definitively assess the Pheu Thai Partys progress on human rights, early signs are not positive, with continued arrests and prosecutions for alleged lse majest, slow progress towards accountability for the violence of April-May 2010, and a continued failure to protect the rights of victims and survivors of torture and other forms of state violence. Yet, in the assessment of the AHRC, the initial failure of the Yingluck government to make meaningful changes in the status of human rights in Thailand is less about the individual governments policies and instead reflective of a deep-seated, ingrained culture of impunity that spans the state security forces, judiciary, and civil service, all of which operate with tacit approval from many quarters of the civilian population. This impunity, and the methods by
518
which the internal-security state has been consolidated outside and through the judiciary, are particularly reflected in the violation of rights of victims of torture to seek redress, continuing persecution of human rights defenders, the expansion of charges and prosecutions under article 112 (the provision of the Criminal Code dealing with the alleged crime of lese majesty), and a series of failures by the courts and other institutions to act to secure justice. The criminalization of victimhood Documented instances of the use of torture by the Thai state security forces, including the army, police, and Internal Security Operations Command (ISOC) date to the period of 1970s Cold War counterinsurgency in Thailand. Torture has been used both during formal conflict and as part of routine law enforcement. Within the last decade, as the Asian Human Rights Commission has repeatedly noted, since the declaration of martial law in the three provinces of Yala, Pattani, and Narathiwat in southern Thailand in January 2004, there has been a sharp resurgence and expansion of the use of torture. The terms of martial law, which permits pre-charge detention for seven days, as well as the Emergency Decree, which went into force in the three southern provinces in July 2005 and permits an additional 30 days of pre-charge detention, create windows of unaccountability for state security forces who choose to use torture as a tool of investigation or arbitrary punishment. During the 37 days of pre-charge detention, detainees can be detained in non-standard places of detention, are not required to have access to a lawyer, and have no rights to habeas corpus. Amidst this expansion of the use of torture, on 2 October 2007 Thailand became a state party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Since becoming a state party, over the past four years the Thai government has failed to pass a national law criminalizing torture and is therefore currently not in compliance with its obligations under the treaty. In the absence of a national law, citizens have attempted to use existing Criminal Procedure Code and Constitutional measures to hold state security forces accountable. Yet these attempts have failed to compel state responsibility and there has instead been a consolidation of impunity in the years since Mr. Somchai Neelaphaijit Thailand acceded to the CAT.
Thailand
519
Of even greater concern, during 2011 the prosecution and conviction of a torture victim who spoke out against his torturers indicates an increasingly proactive approach to the production of impunity across the state security forces and the judiciary in response to allegations of gross human rights violations. On 10 August 2011, the Criminal Court in Bangkok sentenced Mr. Suderueman Malae to two years in prison for having spoken out against his alleged torturers. In Black Case No. 2161/2552, Police Major General Chakthip Chaijinda brought a criminal complaint against Mr. Suderueman Malae, one of the clients of forcibly abducted and disappeared human rights lawyer Mr. Somchai Neelaphaijit. Mr. Suderueman, along with four others, was accused of stealing guns from the Pileng Army Camp in Narathiwat province on 4 January 2004, detained under the terms of martial law, and initially charged with attempt to kill. While they were under detention, they were tortured and pressured to confess. Mr. Suderueman and the other four men were the clients of Mr. Somchai Neelaphaijit. In addition to preparing their defense, Mr. Somchai prepared a complaint detailing their torture, which he submitted to the Department of Special Investigation (DSI) on 11 March 2004. On 12 March 2004, Mr. Somchai Neelaphaijit was disappeared. In the intervening seven years, the initial charges of attempt to kill against Mr. Suderueman have been dropped and the perpetrators of Mr. Somchais disappearance have not been held to account. On 28 March 2005, during the trial of the officers of the Royal Thai Police who were accused of abducting and presumably killing Mr. Somchai Neelaphaijit, Mr. Suderueman and other victims of torture whom Mr. Somchai represented testified under oath that they had been tortured. The manner of torture included electrocution, urination on the head and face, smacking on the base of the ears, and assault on the body. The testimony of Mr. Suderueman and the other victims were consistent not only with one another but also with the accounts of other victims of torture in the south of Thailand. Within the Thai legal framework, and particularly under martial law, there are few options to make a formal complaint of wrongdoing by state security officials. In this particular case, the DSI took up the formal investigation of the torture of Mr. Suderueman and the other four men with whom he was detained. At the completion of their investigation, the DSI submitted their report to the Office of the National Anti- Corruption Commission (NACC), whose mandate includes investigating all illegal wrongdoing committed by civil servants, since no specialized agency exists for the investigation or prosecution of perpetrators of torture or other abuses in custody. The NACC then commenced investigation of Police Lieutenant General Bhanupong Singhara
520
Na Ayuthaya and eighteen other police officers involved in the arrest and detention of Mr. Suderueman and the other four men. On 22 December 2010, the NACC dismissed the complaint against Police Lieutenant General Bhanupong and the other police officers. The NACC claimed that the physical examination reports failed to establish if the torture really took place while the victims were held in official custody. Even without addressing the NACCs profound delay and mishandling of this case, it is pertinent to note that the vast majority of the cases with which they are concerned deal with strict examples of financial wrongdoing, rather than violence perpetrated against citizens by state officials, and therefore the NACC lacks the mandate, staff, resources and other basic necessities with which to conduct effectively inquiries of the sort required in this instance. While the NACC dismissal of the case officially absolved all of the named police officers from any responsibility for the torture of Mr. Suderueman Malae and the other four men, two top police officers chose to bring legal charges of filing a false statement to the DSI and the NACC. Police Lieutenant General Bhanupong Singhara Na Ayuthaya and Police Major General Chakthip Chaijinda each brought separate cases against Mr. Suderueman in the Criminal Court in Bangkok. The case brought by Police Lieutenant General Bhanupong was dismissed after examination by the court on 27 September 2009. The Criminal Court maintained that the defendant used his basic rights as a citizen to make a complaint to the DSI. Police Lieutenant General Bhanuphong appealed and at present, the case is still under examination by the Appeal Court. Meanwhile, in the case brought by Police Major General Chakthip Chaijinda, the Criminal Court made a decision that runs counter to basic principles of the protection of victims of torture and other forms of state violence. On 10 August 2011, Mr. Suderueman was sentence to two years in prison for allegedly making a false statement to the authorities. The details of the allegations and the court decision speak to the ingrained lack of respect for victims of state violence and contempt for human rights in Thailand, which underwrites the project of the revived internal security state. The statement of Mr. Suderuemans which Police Major General Chakthip alleged was false is the following: During the daytime on 22 February 2004, Political Major General Chakthip and his colleagues assaulted Mr. Suderueman by slapping his ears and kicking his trunk many times. The assault was carried
Thailand
521
out over a period of ten minutes. It took place in a meeting room in Tan Yong Police Station. Police Major General Chakthip claimed that he was not present for these events, and that he had been injured by the testimony. Police Major General Chakthip claimed that he was falsely implicated in the torture of Mr. Suderueman. The basis for his denial of involvement was in part that although he had been listed in the police records as heading up a unit responsible for the arrest and detention of Mr. Suderueman in February 2004, he had not actually been present at the time. In other words, he argued that the police records of the case were themselves at very least inaccurate, and possibly fabricated. Police Major General Chakthip argued that for this reason he could not be held to account for the torture of Mr. Suderueman. The Criminal Court found, in part on the basis of the NACCs investigation, that there was no evidence to support the complaint brought by Mr. Suderueman against Police Major General Chakthip. The court convicted Mr. Suderueman and sentenced him to two years in prison under sections 173 and 174 of the Criminal Code, for maliciously giving false information to inquiry officers. These sections of the code were cited, even though no evidence exists to show that the naming of Police Major General Chakthip was in any way malicious, and furthermore, even though the naming of the officer was done in a court of law and under oath on the examination of a lawyer. At this time, Mr. Suderueman has been freed on bail while he files an appeal against the decision. He remains under witness protection by the DSI, who have protected him ever since the beginning of the case of the disappearance of Mr. Somchai Neelaphaijit, as he is a primary witness in that case. The conviction of Mr. Suderueman by the Criminal Court in this case suggests a backpedaling of support for victims of torture in Thailand. Given that the NACC already absolved Police Major General Chakthip of any responsibility, this decision suggests a growing crisis in Thailand, and one that goes to the heart of the countrys rights abuse-complaisant judicial system, since if a victim of torture or other gross abuse cannot even state what happened to them under oath and in a court of law, on the questioning of a legal professional, then what prospect exists for open debate or complaint about such widespread and deeply institutionalized abuses? The prosecution and conviction of Mr. Suderueman represents a violation of the Government of Thailands obligations under the CAT, to which Thailand has acceded, notably article 13, which mandates that,
522
Each state party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
The prosecution of Mr. Suderueman is a clear example of official intimidation as a consequence of making a complaint. Particularly given questions surrounding the efficacy of the NACC investigation, his prosecution raises troubling questions about the prospects of respect for human rights in Thailand, and speaks to the continued entrenchment of absolute impunity for gross abuses by senior personnel of the security forces, as well as for most of their subordinates. The impunity for torture and other gross abuses of human rights that these men enjoy is guaranteed not only by assurances that they will not be held responsible, but also that arrangements exist to enable them to exact revenge upon those persons who have the temerity to complain. It requires both deliberate decisions not to do certain things that should have been done, and to do certain other things that should not have been done. These decisions involve people in all key agencies, and in particular, depend upon the role of the courts as guarantors of failed prosecution where prosecution must fail, and successful prosecution where it must succeed. Impunity for the torturers of Suderueman required, to begin with, the thwarting of any effective investigation of both the abduction and presumed killing of his lawyer, Somchai Neelaphaijit, and the acquittal of the accused in that case. Since the case attracted huge domestic and international interest, to give the appearance of some sort of justice being done, the court reached a compromise ruling in which it acknowledged police involvement and convicted one of the five accused of a minor offence. Impunity then required a process that included the mysterious disappearance of the one convicted policeman, and his subsequent acquittal in an appeal ruling. It also required the persistent and deliberate refusal to take any steps to address seriously the question of What happened to lawyer Somchai? Indeed, in March 2011 the director of the AHRC, Wong Kai Shing, sent a letter to the justice minister of Thailand, Pirapan Salirathavibhaga, describing the handling of the Somchai case as a travesty of justice. The letter read in part as follows, beginning with a summation of the findings of the Court of Appeal in the
Thailand
523
case in a 59-page verdict handed down on March 11, a day before the seventh anniversary of the human rights lawyers abduction:
1. The case against all defendants was dismissed. The one policeman of the five convicted in the Criminal Court, Pol. Maj. Ngern, had his conviction overturned. Thus, there is now no longer even a single state officer who has been found guilty of an offence in this case, despite officials at the highest levels of government, including the former premier, Pol. Lt. Col. Thaksin Shinawatra, stating publicly that they knew that state officers were responsible, and despite the court of first instance also having indicated the same. 2. The Court of Appeal based its ruling on a lack of evidence against the accused. This is not because evidence did not exist but because the court ruled that it was not admissible. Specifically, the telephone records of the five defendants, which showed clearly that they were in contact with one another in the days leading up to the abduction and in the vicinity of the scene of the crime were not admissible, because they were not original or certified copies of the records. 3. The Court of Appeal also removed the wife and children of the disappeared man from being co-plaintiffs in the case, which has serious implications on their rights and capacity to be able to represent the familys interests in any further legal actions. The reason that the court gave for removing them was that under section 5(2) of the Criminal Procedure Code, a co-plaintiff must only be of a deceased person or a person who is unable to act for him or herself. In this case the court ruled that the victim did not meet those criteria. It is fair to say that the travesty of justice began in the Criminal Court and wrought upon the victim and his family has been further enlarged through the appeal courts ruling. The question remains as to what you and your ministry will do about it. In that regard, I put to you the following specific questions, in light of the above facts: 1. Why was it not possible for DSI investigators of your ministry to obtain original or certified copies of the telephone records that would prove the relationship between the accused and link them to the scene of the crime? Presumably, as these records are of electronically stored data, the data still exists somewhere and could be produced in court if found and if the telecommunications providers concerned could be legally obligated to produce it. As this is a case involving the abduction and presumed killing of a person, please explain to me, what is the legal or institutional failure preventing the collection and presentation to court of evidence that would satisfy its procedural requirements?
524
2. The removal of the family from the case as co-plaintiffs as per the Criminal Procedure Code raises the problem of a huge lacuna in the criminal law of Thailand, and that is, if someone or a group of persons is successfully able to abduct, kill and dispose of the body of a person without any remains being found, as in this case, then practically no type of effective criminal action can be taken against them. The family cannot be a party to the case, and furthermore, no criminal offence can even be shown to have been committed. This lacuna is underscored in the present case by the absurd character of the charges against the accused, for coercion--the act of bodily forcing the victim from his vehicle-and theft of his property, the vehicle itself, but not the act of presumed killing and disposal of the body. Under international law, this act is now recognized globally as enforced disappearance. At present, a new convention on enforced disappearances is being established with global effect. I ask you, when will Thailand sign this convention, and when will it introduce a law to criminalize enforced disappearance and make amendments to its criminal law accordingly?
Once the case of Somchai was utterly perverted through the machinations of the police and other agencies, the way was opened for action against his family, his former clients and any other witnesses. This action included deliberate failure to protect the family effectively, which the AHRC director set out further in his letter:
1. CCTV equipment that was installed at the front of the familys house has been broken for some time. Despite repeated requests to have it fixed, so far it has somehow been beyond the resources of your ministry to do even this much. As such, at present if intruders come to the familys residence there will be no footage taken of what transpires. 2. The family has been subject to threatening telephone calls. When they complained to the DSI about this and asked for some investigation, they were informed that if they wanted to know who was calling, they could contact the telecommunications firm to find out. In light of the recent ruling on inadmissibility of evidence in the case of Somchai, perhaps the personnel concerned were being ironic, or simply insensitive and disinterested. In either event, the DSIs response trivializes the familys genuine concern for their safety. 3. A large bone, too big to be carried by a dog, was left on the doorstep of the familys premises recently, and this incident both the family and the AHRC have brought to the attention of the DSI; however, when AHRC staff met DSI personnel in Bangkok and raised this matter it was brushed aside as if the family were being paranoid and it was nothing to worry about at all. The unconcerned attitude of the DSI personnel surprised and disappointed our staff, given that the bone is just the latest in a string of incidents at the front of the familys residence, including a previous case where both cars belonging to the family
Thailand
525
were broken into by intruders who were apparently not interested in theft of items like CD players and other valuables. It is also alarming given that the AHRC knows from many years of work with human rights defenders and the families of victims of extrajudicial killings and torture in Thailand that violent attacks are usually preceded by a series of warnings of this sort: indeed, Somchai was himself the target of such threats, which he disregarded, right up to the moment of his abduction.
Even more seriously, one of the torture victims, Abdulloh Abukaree, was also abducted and forcibly disappeared on 11 December 2009. Another is in jail awaiting the outcome of an appeal on a conviction in another case unrelated to that over which the men were tortured and in which Pol. Maj. Gen. Chakthip was, on paper, involved. Finally, it required the use of state resources not to investigate the crimes of the police, but the crime of their victim: that is, the crime of impertinence for making a complaint against the police. Thus, the human rights priorities of the state in Thailand are made patently clear: not to investigate alleged abuses of human rights but to investigate, prosecute and imprison persons who allege such abuses. Not to criminalize torture and imprison torturers, but the criminalize the complaint of torture and imprison the tortured. The message, which comes from the police but is broadcast through the courts as their mouthpiece is in its essence, Dont try to stop us. All that will happen is that we will destroy your life. What we want to do, we can do. This is a message that people in Thailand already know well. Consequently, the number of complainants of extrajudicial killing, enforced disappearance, torture and other gross abuses of human rights in Thailand remain few, not because the incidence of such abuses is low but because only the bravest persons, or those thrust into the spotlight like Suderueman, speak out. Most of those who do complain never complete the process of bringing a case to court, withdrawing under a combination of threats and offers of money to remain silent. Of those who do, some end up like Suderueman, prosecuted for their victimhood. Others end up in hiding, or dead. The case of Suderueman illustrates vividly, then, how much further the struggle against impunity in Thailand has to go. For the time being, at least, all the courts of Thailand have to offer the public for these efforts is contempt for basic human rights. It should be noted that in highlighting this case, the AHRC is not suggesting that there is explicit collusion between state security forces and the judiciary to violate the rights of torture survivors. While this kind of collusion may well exist, securing evidence to prove it is not possible. Instead, what can be
526
traced here is the existence of a willingness to prevent the securing of justice in multiple locations within the state, some of them more explicit and overt, others perhaps more habitual and less strategic in nature. persecution of Human rights Defenders The situation of human rights defenders (HRDs) in Thailand has long been precarious in Thailand. Speaking out against state or private interest leaves one vulnerable to a range of abuses, including assassination, which was particularly prevalent during the years of the government of ousted prime minister Thaksin Shinawatra. More recently, officials have increasingly turned to forms of legal and quasi-legal harassment of rights defenders, including criminal prosecution. During 2011, the trial of Ms. Chiranuch Premchaiporn, web director of Prachatai.com, a news site that has provided alternative news and a platform for critical discussion and dissent since 2004, began. She has been accused of insulting the monarchy and is on trial under article 112 and the Computer Crimes Act of 2007 not for anything she wrote or said, but for allegedly not removing the comments of others quickly enough from the Prachatai.com webboard. At this time, the witness hearings in her trial are ongoing, and will continue into 2012. The Asian Human Rights Commission is deeply concerned that in light of recent political and legal developments in Thailand she will be convicted, in which case she will face a potentially lengthy sentence for her work creating a space for others to discuss vital issues of national importance. The prosecution of Ms. Chiranuch Premchaiporn is of concern within the broad frame of the ongoing constriction of freedom of speech in Thailand and increased prosecutions of citizens for allegedly committing the crime of lese majesty. Yet it is also deeply concerning within the context of prosecutions of other kinds of HRDs. These prosecutions can be seen as an attempt to criminalize dissent and prevent citizens from improving and changing their society. In an exceptional example of this, in October 2 0 1 1 , M s . Ji n t a n a K a e w k h a o , a n H R D i n Prachuab Khiri Khan, was sentenced to four months in prison resulting from a Supreme Court decision in a case that has been in process since 2004. This decision, and the process by which it was reached over the past eight years, indicates that the very right of citizens to exercise their rights and
Ms. Chiranuch Premchaiporn
Thailand
527
freedoms to protest and defend their communities from harmful environmental consequences is under threat in Thailand. Like the case of the conviction of Mr. Suderueman for speaking out against his torturers, this conviction has foreclosed, rather than supported justice and the consolidation of human rights in Thailand. For more than ten years, Ms. Jintana has fought against coal-fired power and other environmentally destructive development projects in Hin Krut and Bo Nok areas of the province. She and her colleagues in the Bo Nok-Hin Krut Nature and Environmental Conservation Group successfully prevented the construction of coal-fired power plants in their communities and have worked to develop clean and environmentally conscious forms of power in their communities. The initial case against Ms. Jintana Kaewkhao was heard in the provincial court in Prachuab Khiri Khan province (Black case no. 1480/2545; Red case no. 3283/2546). The prosecutor alleged that the plaintiffs, who were the management of the office of Union Power Development in Prachuab Khiri Khan, were holding a party on the afternoon of 13 January 2004. While they were setting the table and otherwise preparing the room, a group of people burst into the room and threw rancid water on the table and in the ice buckets. Ms. Jintana Kaewkhao testified that she went to the offices of Union Power Development on the afternoon of 13 January 2004, but was instead there with other activists in order to present a petition to the company. When they arrived, they were met by a group of over 50 tough-looking men, and decided to return home instead. There was a clear discrepancy in the testimony of the plaintiff witnesses and that of Ms. Jintana; further, while some plaintiff witnesses claimed that Ms. Jintana was the leader of the people who came into the dining room, others did not recognize her as among the group of trespassers. On the basis of this discrepancy, the provincial court dismissed the charges against Ms. Jintana Kaewkhao. The provincial court also made reference to the broader context of the opposition to the coal-fired power plant and the environmental, health and occupational reasons why Ms. Jintana and other community members and activists in Bo Nok and Hin Krut organized against the proposed plant. The plaintiff appealed this decision and on 1 August 2005, the Court of Appeals for the 7th Region overturned the dismissal and convicted Ms. Jintana Kaewkhao of alleged violations of articles 362 and 365 (2) of the Criminal Code (Black case no. 3533/2546; Red case no. 2355/2548). Article 362 of the Criminal Code defines the crime and punishment of trespassing: Whoever,
528
entering into the immovable property belonging to the other person so as to take the possession of such property in whole or in any party or entering into such property to do any act disturbing the peaceful possession of such person, shall be imprisoned not out of one year or fined not out of two thousand Baht, or both. Article 365 (2) elaborates Article 362, and notes that if the trespassing is carried out by a person carrying arms or by two persons upwards participating then the punishment can increase to imprisonment not exceeding five years or fined not exceeding ten thousand Baht, or both. The Court of Appeals overturned the decision of the Prachuab Khiri Khan provincial court on the basis that the evidence, including that provided by Ms. Jintana herself, indicated that she was present at the offices of the Union Power Development Company on the day in which the party was disrupted. While the court noted that there were discrepancies in the testimony of the plaintiff, they maintained that the defendant herself did not provide sufficient evidence to prove that she was not guilty of trespassing and leading others to throw dirty water on the dining tables. The Court of Appeals further noted that the discrepancies in the testimonies of the plaintiffs might have arisen because they were afraid of the influence of the defendant, who was a leader of the group opposing the coal-fired power plant in Hin Krut. On this basis, the Court of Appeals sentenced Ms. Jintana Kaewkhao to six months in prison. The defendant appealed the Court of Appeals verdict, and the Supreme Court upheld the decision and sentenced Ms. Jintana to four months in prison in a decision dated 20 December 2010 (Supreme Court case no. 13005/2553), which was read in the Prachuab Khiri Khan provincial court on 11 October 2011. The Supreme Court noted that in this case what is at stake is whether or not the defendant was the leader of the people who trespassed and dumped dirty water on the party tables of the Union Power Development Company. It held that the inconsistencies in the testimony of the plaintiffs, and the failure of some plaintiff witnesses to identify Ms. Jintana Kaewkhao, did not diminish the weight of the testimony. The Supreme Court further argued that since there was no evidence to suggest that the plaintiff had a pre-existing conflict with the defendant, there was no reason to believe the bringing of charges was malicious. Since the defense was unable to provide conclusive evidence that Ms. Jintana was not the leader of the group who trespassed prior to the lunch party, the Supreme Court upheld the decision. The sentence was reduced to four months from six months, given that she cooperated with the process. She began Ms. Jintana Kaewkhao
Thailand
529
serving her sentence in the Prachuab Khiri Khan provincial prison after the decision was read on 11 October 2011. Of additional concern, the Court of Appeals indicated that the plaintiffs might have feared the influence of the defendant. The word influence has a particular meaning in Thailand, and is often used to refer to the confluence of private and state influences, which have access to and are not afraid to use extrajudicial means to secure their interests. For the Court of Appeals to use this language, and the Supreme Court not to challenge is not only incorrect but also cynical. Like HRDs throughout the country, those in Prachuab Khiri Khan have long faced intimidation and harassment by private capital and state officials who collude with them. But those who oppose human rights have also resorted to open violence. On 21 June 2004, Mr. Charoen Wat-aksorn, who was another leader against the coal-fired power plant and other environmental destruction in Prachuab Khiri Khan, was assassinated as he alighted from a bus after returning from testifying in front of the Senate in Bangkok. Furthermore, earlier this year, on 31 January 2011, Mr. Pachern Ketkaew, another colleague of Ms. Jintanas, survived an assassination attempt. Mr. Pachern has worked against another proposed power generation project in Prachuab Khan, one that rather than using coal as raw material has a planned source material of trash. While the methods are different legal sanction as opposed to extrajudicial violence the cases of Ms. Jintana Kaewkhao, Mr. Charoen Wat-aksorn, and Mr. Pachern Ketkaew all indicate the risks for defending ones community, health and way of life against those who would destroy it in the service of profits in Thailand. Article 112 and constriction of speech Section 8 of the 2007 Constitution positions the King centrally within the Thai polity: The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action. Article 112 of the Criminal Code then prescribes punishments for violations: Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished (with) imprisonment of three to fifteen years. The 2007 Computer Crimes Act stipulates additional punishments for alleged violations of national security, including insulting the monarchy, which take place or are mediated online. The terms of the law are very broad and the AHRC has indicated in the past, and in light of how the law is being used continues to hold the view that it has been introduced to constrict further opportunities for people in Thailand to raise issues of vital importance
530
to their society and country. On October 10, its position was reinforced by a statement from a UN human rights expert, the Special Rapporteur on freedom of expression, Frank La Rue, who issued a statement in which he called for the law to be amended and was quoted as saying that:
I urge Thailand to hold broad-based public consultations to amend section 112 of the penal code and the 2007 Computer Crimes Act so that they are in conformity with the countrys international human rights obligations. The recent spike in lse majest cases pursued by the police and the courts shows the urgency to amend them. The threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage selfcensorship and stifle important debates on matters of public interest, thus putting in jeopardy the right to freedom of opinion and expression. This is exacerbated by the fact that the charges can be brought by private individuals and trials are often closed to the public.
The Special Rapporteur highlighted that Thailand has been a party to the International Covenant on Civil and Political Rights since 1996, which contains legally binding human rights obligations, including the obligation to fully guarantee the right of all individuals to seek, receive and impart information and ideas of all kinds. He acknowledged that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason, under certain exceptional circumstances, the right may be limited, including to protect the reputation of individuals and to protect national security; however, that these circumstances had to be clearly stipulated and delimited, which was not the case in Thailand, he said:
The Thai penal code and the Computer Crimes Act do not meet these criteria. The laws are vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security.
The Special Rapporteurs calls come as in the years since the 19 September 2006 coup, there has been an exponential expansion in the use of Article 112 and the 2007 Computer Crimes Act to intimidate dissidents and constrict speech more generally. While the case of Ms. Chiranuch Premchaiporn is the case most widely followed internationally, in 2011 there have been a number of other significant sets of charges brought and prosecutions completed. In March 2011, Tanthawut Taweewarodomkul, was sentenced to 13 years in prison for allegedly violating both laws in material posted to Norporchorusa.com. In
Thailand
531
May 2011 Joe Gordon, a Thai-American man, was charged under both laws for allegedly posting a link to a Thai translation of the English-language book, The King Never Smiles, by Paul Handley, on his website. In late November 2011, the trial of Mr. Somyos Prueksakasemsuk, long-time labour rights activist and editor of Voice of Taksin and Red Power magazines, will begin. These are only several of many known, and perhaps many more unknown cases, of people charged under either article 112 and/or the Computer Crimes Act. In most article 112 and Computer Crimes Act cases, the court refuses to grant bail, and so those charged must also endure many months of pre-trial conviction. The AHRC also was alarmed during the year at the blatant threats issued against outspoken human rights defenders by members of the army and establishment. For instance, at a press conference on April 24, Somsak Jeamteerasakul and several coalitions of academics, human rights activists, and journalists released statements calling for the protection of freedom of speech in Thailand. These statements were in response to a series of blatant threats made towards Somsak over comments that some people have considered amounted to criticism of the royalty. Among the threats, the most alarming was that from the commander of the army, General Chan-ocha, who directly criticized and derided Somsak in an interview on April 7, describing him as a mentally ill academic who is intent on overthrowing the institution of the monarchy. At the same time, Somsak was threatened extralegally. Unknown men had come on motorcycles to nearby his house, and he had been receiving harassing telephone calls. With particular concern to how the courts have gone beyond their duty to become a proactive space of the restriction of rights, the Asian Human Rights Commission has also sought to highlight a recent Constitutional Court decision in the case or Ms. Daranee Charnchoengsilpakul. Ms. Daranee was arrested in July 2008, after making comments with alleged lese majesty content in them during rallies at Sanam Luang, in Bangkok. After being held in precharge detention for the longest period possible (84 days) under the Criminal Ms. Daranee Charnchoengsilpakul Procedure Code, she was (Photo source: New Mandala)
532
then charged with six counts of lese majesty. After close to nine months of pre-trial detention, Daranee was tried in a brief, closed trial in June 2009. On 28 August 2009, she was sentenced to 18 years in prison for three alleged violations of article 112. For the entire duration of her case, Ms. Daranees human rights have been systematically violated and her access to justice denied. She was repeatedly denied bail prior to her trial and repeatedly denied access to necessary medical case, despite serious health concerns. The Constitutional Court decision, like the Criminal Court decisions in the cases of Mr. Suderueman Malae and Ms. Jintana Kaewkhao, points to a deep willingness across the judiciary and state security forces to violate the human rights of citizens seen as dissident and foreclose access to justice. Immediately following her conviction, Ms. Daranee appealed the decision on the basis that the closed trial, which the judge mandated for the vague reason of national security, was unjust. While a closed trial is possible under the criminal law, the 2007 Constitution guarantees citizens a right to an open trial. In Ms. Daranees case, when the prosecutor requested a closed trial and the judge approved this motion, she and her lawyer filed a motion to have the point examined by the Constitutional Court. However, the Criminal Court has discretion to determine whether or not a matter has a question of constitutionality, and it decided not to forward the motion and instead kept the trial closed. On 9 February 2011, the Appeal Court ruled that the original conviction by the Criminal Court was null. The Appeal Court ruled that the closure of the initial trial was an improper action by the Criminal Court judge and finally sent the file to the Constitutional Court to examine whether or not the closure of Ms. Daranees trial was a violation of the Constitution and her rights as a citizen under it. Despite her sentence being vacated, Ms. Daranee was not granted bail while her case was examined by the Constitutional Court. The task of the Constitutional Court in this case was clear. There is an explicit tension between the Criminal Procedure Code, which allowed for trials in camera, and the 2007 Constitution, which has the scope to prohibit them, depending on the interpretation. Article 177 of the code reads:
The court has the power to order a secret trial when it is suitable either via the courts own authority or the request of either party in the case. It must be for the benefit of the peacefulness and order or good morals of the people, or to protect secret state information related to the safety of the country from being known by the people.
Thailand
533
Section 29 of the 2007 Constitution reads:

The restriction of rights and liberties of a person as recognized by the Constitution shall not be imposed except by virtue of law specifically enacted for the purpose determined by this Constitution and to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties.
Part 2 of section 40 of the 2007 Constitution, which addresses the rights of citizens in a judicial process, notes that these rights:
shall consist at least of the right to public trial; right to be adequately informed of the facts and to inspect documents, right to present ones facts, defenses and evidence, right to object to judges, right to be considered by the full bench of judges, and right to be informed of the reasons for a ruling, judgment or order. The tension between the procedural law and the constitution is unmistakable. What are the meanings of the words necessity, rights, and liberties in this phrase in section 29: the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties?
In its examination, the Constitutional Court did not shy away from the tension present. In fact, as it noted several times in the four-and-a-half pages of text ruling on the matter, the court had never before examined the constitutionality of article 177 of the Criminal Procedure Code. So, in those four-and-ahalf pages, the Constitutional Court acted explicitly and swiftly to create a constitutional interpretation for the violation of citizens human rights. The court noted:
Examination in secret does not mean that either side will not be treated fairly in the judicial process and does not in any way restrict the rights of the defendant in a criminal case. This is because in regards to examination in secret, Article 178 of the Criminal Procedure Code mandates that involved individuals have the right to be in the courtroom, such as the plaintiff and the plaintiff s lawyer, the defendant and the defendants lawyer, the defendants guards, witnesses, experts, interpreters, etc. This shows that Article 177 of the Criminal Procedure Code is an article in line with the basic rights for individuals in the justice system put in place by the Constitution even though it has some limiting effects on the rights and freedoms of individuals. But this is a limiting of individual rights and freedoms only to the extent that it is necessary. There are no significant repercussions on rights and freedoms. (AHRC translation)
By placing the emphasis on articles 177 and 178 of the Criminal Procedure Code, rather than the issue of what constitutes national security, the
534
Constitutional Court ruled that trials held behind closed doors are absolutely fine. This is clear, deliberate and explicit step backwards for human rights and justice in Thailand. In the case of Ms. Daranee Charnchoengsilpakul, it is not only that the court has failed to be a site in which human rights can be secured, but it has become a site in which human rights are actively violated and justice is proactively foreclosed. As such, the ruling in this case signifies the larger condition of human rights for people in Thailand generally under the revitalized internal security state. The Asian Human Rights Commission has for some time been warning the international human rights community that Thailand has been steadily regressing towards a new type of anti-human rights and anti-rule of law system in which the values associated with these concepts are advertised widely at home and abroad but in which state institutions are not only emptied of those values, but in fact are inverted to serve precisely the opposite ends from what they purport to serve. It is by now clear that the project towards this antihuman rights and anti-rule of law system in Thailand is well underway. The elections of 2011 do not appear to have brought an end to the progress of this project, although they have perhaps slowed it. Notwithstanding, if the creeping entrenchment of military-backed authoritarian forces in Thailand is not forcefully and openly addressed by all persons concerned for the future of human rights in that country, then it will add many years to the amount of time that it will already take for the country to dig itself out of the hole into which the 2006 coup put it.
Help with a Donation

to the AHRC and its sister organization the Asian Legal Resource Centre Ltd. (ALRC)
You can make a difference. Contribute and make a donation to our human rights work.
Your donation will help to document human rights violations, advocate for reforms to end them or support victims in need. The Asian Human Rights Commission (AHRC) was founded in 1986 by a prominent group of jurists and human rights activists in Asia. The AHRC is an independent, non-governmental body, which seeks to promote greater awareness and realisation of human rights in the Asian region, and to mobilize Asian and international public opinion to obtain relief and redress for the victims of human rights violations. AHRC promotes civil and political rights, as well as economic, social and cultural rights.
Subscribe me to AHRCs weekly digest! Email address: I wish to make a donation to the Asian Human Rights Commission Ltd. / Asian Legal Resource Centre Ltd. 1. My details Surname: Given name: Address: Country: 2. Donation method Cheque/Demand Draft (Payable to Asian Legal Resource Centre Limited)
Please write your full name and postal address at the back of the cheque/draft. Donations can be made in HK or US Dollars. Fill out this form and mail both to the address at the end of the page LEGAL RESOURCE CENTRE LTD., Swift code: HASEHKHH Bank Address: Hankow Road Branch, 4 Hankow Road, Tsim Sha Tsui, Kowloon, HONG KONG
Bank Transfer Hang Sang Bank Limited, Account: 295-7-075621, Legal Account Holder: ASIAN
Visa/Master Card For credit card donations via Paypal and other donation methods visit our website at www.humanrights.asia/getinvolved/donate or via the QR code on the right. Yes, I would like to have my tax receipt. My return address is given above. (Available for donations over US$1000 with valid address provided.) 3. Purpose of Donation I am donating for general use, wherever it is needed most. (default option) I wish to donate to specific country work: Bangladesh Burma Cambodia Indonesia Nepal Pakistan South Korea Lanka Sri Thailand India Philippines
Please return the completed form along with your cheque/demand draft to: Fax: +852 26986367 Email: ahrc@ahrc.asia Postal: Unit 701A, Westley Square, 48 Hoi Yuen Road, Kwun Tong, Hong Kong SAR, China
he State of Human Rights in Ten Asian Nations - 2011 is the Asian Human Rights Commissions (AHRC) annual report, comprising information and analysis on the human rights violations and situations it encountered through its work in 2011. The report includes in-depth assessments of the situations in Bangladesh, Burma, India, Indonesia, Nepal, Pakistan, the Philippines, South Korea, Sri Lanka and Thailand. The AHRC works on individual human rights cases in each of these countries and assists victims in their attempts to seek redress through their domestic legal systems, despite the difficulties encountered in each context. Through this work, the organisation gains detailed practical knowledge of the obstacles and systemic lacuna that prevent the effective protection of rights and enable impunity for the perpetrators of violations. Based on this, the organisation then makes recommendations concerning needed reforms to the legal frameworks and state institutions in each setting. This work aims to enable the realisation of rights in a region that remains blighted by crippled institutions of the rule of law, which are enabling systemic impunity for the gamut of grave human rights violations, including torture, forced disappearances, extra-judicial killings, attacks on and discrimination against minorities, women and human rights defenders, as well as widespread violations of a range of other political, economic and social rights, including the right to food.

The State of Human Rights in Ten Asian Nations

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

The State of Human Rights in Ten Asian Nations

Caricato da

Copyright:

Formati disponibili

The State of Human Rights in Ten Asian Nations - 2011

AsiAn HumAn RigHts Commission (AHRC)

The state of human rights in ten Asian nations - 2011

Asian Human Rights Commission 2011

ISBN 978-962-8314-54-6 (Print version) ISBN 978-962-8314-55-3 (PDF version) AHRC-PUB-004-2011

v 1 64 82 120 179 250 364 393

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

http://newagebd.com/newspaper1/archive_details.php?arcid=19397 http://newagebd.com/newspaper1/archive_details.php?arcid=19772 http://www.washingtonpost.com/world/an-interview-with-bangladesh-pm-sheikh-hasina/2011/10/10/gIQAXAQRcL_story_2.html

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

According to Article 21 of the ICCPR:

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

FRoM BliNkeRed to MARket-oRieNted despotisM?

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

According to the Special Rapporteur in his report to the General Assembly,

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

HumAN rIgHts A utopIA wItHout justIce

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011

The state of human rights in ten Asian nations - 2011