NGO Parallel Meeting to the Bali Democracy Forum ‘Advancing Democratic Governance in Asia: Challenges and Way Forward’ 8‐9 December 2010

The conference was held in Hotel Novotel in Bali, Indonesia, on 8‐9 December 2010, prior to the Bali Democracy Forum on 10‐11 December 2010. The conference brought together around 30 participants: human rights defenders and representatives of national movements for democracy, civil society organizations, and policy makers.

Introduction (Yap Swee Seng, Forum‐Asia)

• Programme and Agenda objectives explained, participants introduced to each other.

Session 1 – Democracy and Human Rights in Asia: Recent Trends and Challenges

Bangladesh

• Key Problems in Bangladesh o Impunity o Restriction on freedom of expression o Corruption o Torture o Harassment and restriction of activities of CSOs, HRDs, media, opposition parties o Lack of independence and competency of NHRC and Anti Corruption Commission ƒ Decision making process controlled by government.

Nepal

• “Nepal on the Crossroad of Transition and Democracy” o Current political instability following civil war is hindering: ƒ Peace process ƒ Constitution drafting process ƒ Transitional justice mechanism o Political will to implement Comprehensive Peace Accord (CPA) lacking o Victims of gross violations of human rights are denied justice and reparations following decade long internal armed conflict.

South Korea

• Progress towards democratic consolidation hindered by: o Corruption o Restriction on freedom of expression, assembly o Lack of independence of NHRIs • Other problems: o Forced evictions o Environmental damage

Taiwan

• Globalization has had negative impact • There is lack of independent human rights watchdog • Little civil society participation in decision making process in Taiwan

Session 2 – Democracy and Human Rights in Asia: Recent Trends and Challenges (Cont’d)

Indonesia

• Problems: o Impunity o Corruption o Rising religious fundamentalism o Human rights violations o Lack of security sector reform ƒ Law enforcement often harsh and arbitrary in areas like Aceh and West Papua o Failure to deliver justice for past abuses in cases such as Timor‐Leste o Restrictions on freedom of expression

Malaysia

• Dominance of Executive body over legislative and judiciary • Oppressive laws o Internal Security Act o Emergency Act o Police Act o Defamation Act o Legislation regarding media restricting freedom of assembly and association

Philippines

• Problems o Political instability o Lack of integrity of judicial body o Lack of meaningful public participation in decision making processes o Contradiction among political parties.

Singapore

• Lack of independence among government branches • Unwillingness of Singapore government to apply international standards of human rights o Particularly hindered freedom of expression and freedom of assembly o Repressive laws such as Internal Security Act and death penalty prevails.

Thailand • Political instability following unrest in April resulted in imposition of emergency decree o Restricted fundamental freedoms including freedom of expression and assembly • Political divisions growing, hindering fostering of democracy in Thailand • Question – Agus Wijoyo: Challenge is to break with past culture, the role of monarchy. Democratization can be slow and difficult process, e.g. UK. Do you have vision on how to reconcile between monarchy and democracy in Thailand?

Timor Leste

• Judiciary body easily interfered with by President or others in power o Situation similar to South Korea’s presentation o Many problems with monitoring judiciary – e.g. court gives interpreters who speak local and Portuguese language, only candidates are foreign people who work for the UN o In one case after shooting and death of a political leader, President interfered and perpetrators were released. The people demand to know what is behind the story.

Session 3 – Democracy and Human Rights in Asia: Recent Trends and Challenges (Cont’d)

Burma

• Release of Aung San Su Kyi to overwhelming welcome from the people has instilled hope for national reconciliation. • Election exploitation by government was followed by: o Repression o Torture o Massive displacement o Land mining o Sexual violence o New influx of refugees into Thailand • What kind of drastic measures can you take during transition moment? o Atnike response ƒ In 1998 Indonesia did not talk about legal system, just human rights violations ƒ Human rights adoption into law (1999) ƒ Followed by other laws such as corruption law and institutions law ƒ Still progress to be made in Indonesia; e.g. new commission on witness protection was created but it did not work o Bhathara Ibnu Reza: ƒ Legislations related to punishing judges are wiped out by judges themselves and there is only way to punish judges is through Supreme Court

Laos

• Criminal justice system in Laos does not comply with human rights standards. • Selection process of judges is a problem • When case is related to social dimension then it is difficult to share and get space for people to hear Vietnam

• Problems o Corruption o Restriction on freedom of expression o Lack of implementation mechanism of human rights • Judicial reform is ongoing in Viet Nam • Public participation is needed o Access to information needed o Public anger can make changes on decisions of judges

Session 4 – Introduction on Bali Democracy Forum

Dialogue on Bali Democracy Forum: Introduction and Its Development (Agus Wijoyo, Institute of Peace and Democracy, Indonesia)

• Do not have all answers about BDF o BDF a new initiative o Launched by President of Indonesia on 10 December 2008. Held annually on 10 and 11 December. o Intergovernmental forum. ƒ Invites participants aspiring for democracy. o 1st co‐chairs: President of Indonesia, PM of Australia. 2nd BDF: PM of Japan invited. This year: President of South Korea • BDF established IPD to provide technical support for BDF in generating agenda for dialogue and discussion towards consolidating democracy as a strategic agenda. o Democracy and promotion of stability main agenda o IPD activities include training, seminars, and workshops on various themes related to democracy. o 2009 – IPD conducted seminar on Indonesian election. • BDF established to bring together democratic states and states aspiring to be democratic. o Africa also adopting similar forum o This idea has been pushed by IDEA Sweden. • In 2010 no. of states attending BDF – 74.

Engaging with Bali Democracy Forum: A Civil Society perspective (Mr. Rofiqi Hassan, The Alliance of Independent Journalists, Indonesia)

• BDF is indicative of Indonesian government’s will to promote democracy, especially for minorities. It is meaningful that it is held in Bali, home of Hindu minority in Indonesia. • Problem is it is an open forum o No power, or strong structure o Already losing its identity as its main purpose is not to push states to apply democratic principles. o Worried that BDF is losing essence in Asia‐Pacific. • Believe that BDF actually presented as forum to offer only success stories o Only possible with absence of civil society participation. o Indonesia an example; it is facing problems with small groups creating trouble in democratic system over pretext of religion. ƒ They are obstructing very instrument of democracy and freedom ƒ Publishing wrong messages to serve their agenda. ƒ E.g. Zamate Islamia makes frequent attacks against Ahmadiya Islamic minorities, who are sidelined by other groups with power. o Leads to difficult situation for democracy ƒ Position of government becomes weak due to politicians’ fear of losing elections. ƒ Can lead to crackdowns. ƒ This problem left out of BDF agenda by Indonesian government. • I suspect other countries are also not eager to discuss this issue. • Believe that BDF at present only for government. Civil society and general public has no access to express their minds before BDF.

Questions

• Yap o Has BDF defined democracy? o Do they come up with resolution, declaration at the end? If yes, what is the implementation mechanism and how does implementation take place? • How much attention was generated by civil society presentation on BDF? Is Indonesian civil society involved in the process?

Response from Mr. Agus Wijoyo

o BDF is a political forum. Something is better if we can’t get everything. Bringing leaders together in BDF is one good step. o No exact definition of democracy. BDF has been using loose open‐ended definition and individual member states are free to have deliberations. ƒ In 1st BDF representatives discussed democracy and governance. POV exists that purpose of government is to deliver prosperity to the people. ƒ So question raised – why should we embrace democracy if it doesn’t yield positive results for prosperity of the people? ƒ I also think that BDF has been using loose definition of democracy to bring more countries on board for dialogue on democracy rather than using strong definition and scaring many countries. o As for implementation – BDF is a loose forum which doesn’t end with action plan ƒ Hence there is disconnect between BDF and IPD ƒ IPD makes own plans for operations and carries out a number of promotional activities, workshops, and trainings. o Civil society question ƒ Many emerging challenges on democracy in Indonesia. ƒ There is concept of transitional justice ƒ First, transformation from authoritarian to democratic government is necessary. ƒ Best way would be if court could deliberate justice, but Nuremberg trial in Germany shows old regime’s remnants stick around. ƒ No universal way of transitional justice. ƒ Strong leadership is needed to bring about smooth democratic transition; this is not always the case. • Surya – will there be space in BDF for democratic institutions working on human rights, such as NHRIs. • Wiwiek Awiati, Indonesian center for Environmental Law – How are stakeholders involved in BDF? o Is civil society involved? o What is your advice on strategy regarding civil society engagement in BDF? • Recommendation to BDF ‐ Hope that Bali Democracy Forum will come up with resolution or declaration at the end with some implementation mechanism. o Reality is there is no enforcement mechanism of BDF although IPD was established. o Suggestion that civil society through IPD (Institute of Peace and Democracy) rather than BDF o BDF should also try to get NHRI to participate o It will take some time before there will be direct interface between civil society and BDF. • Yap – Are those IPD activities participated by civil society or only governments? o Is there possibility for civil society and other actors to be engaged with the process?

Response by Mr. Agus Wijoyo:

o IPD activities not limited to government but open to other organizations from civil society. o This is the first time civil society outside the media is holding a conference back to back with BDF. o I think perhaps it is good to learn from media group regarding their experience of BDF and how they obtained information as there is no formal interaction mechanism so far. I will check from them and let you know. Just let them know that there is other from civil society organizations who are working to contribute on BDF.

Response from Mr. Rofiqi Hassan

o I agree there is not much room for CSO involvement on BDF to date. I think there must be civil society involvement in BDF as transparency, accountability are fundamental features for human rights. o BDF should have forum from each state country to express what is happening so that we can learn from mistakes.

Session 5 – Security Sector Reform in Protection of Human Rights and Democracy: Law enforcement, executive branch

Making Progress in Security Sector Reform: The Case of Indonesia (Bhataru Ibnu Reza, Imparsial)

• Components of success in security sector reform: o Regulation based on the rule of law ƒ During Suharto regime all regulations were focused on military’s interest. o Develop policy in defense and security planning; how to build defense policy o Implementation of the policy; how to implement? o Professionalism, especially of military and security agencies in Indonesia ƒ Raise questions about how to respect human rights security issues o Effective control of security actors, especially budget issues ƒ Military made their own decision of budget under Suharto. o Proportional and logical budget o Revealing unfinished human rights violations ƒ How parliamentary decision to make human rights court for disappearance ƒ Part of building legal awareness of society. • Indonesian legal reform o Amendment of UUD 1945 – the constitution o Law no.3/ concerning state defense; military should only engage defense matter (external incidents not civil society) o Law no. 2/ police are under president not administrations; state law structures and power relations (politicizing) o Law no. 15; after Bali bombing; using this law as tool of abusing of human rights o Law no. 34/2002; injury time law; law made 3 month prior to the change of regime • Future regulations o State secrecy bill; important because they are became a supreme law o Amendment of military justice law bill ƒ Failed last time. The military do not want to be investigated by the police; not in civil court but in the military court o State Intelligence bill ƒ Started to discuss this year; have power to arrest and detain ƒ Not enforcement agencies ƒ If intelligence makes mistakes, how can we complaint, to who? o Reserve component bill ƒ Crucial issue in relation to human rights or constitutional citizen rights ƒ What is threat in Indonesia? What is the purpose of this bill? No clear process and use of military (apparatus) • Problems in military reform o No grand design o Failure to amend Law no. 31 o Unclear process on military business o The re‐structuring of territorial command; belongs to the army, political domination of the army • Next agenda for military reform o Continuation of military reform o Parliamentary oversights; key figure of oversight o The awareness of civil society organization o Make military professional; well trained o Welfare of the soldiers; less than 2 million IDR salary • Problems in police reform o Direct supervision under president o Police brutality – 135 cases during demonstrations (shooting etc), o Using torture; very common; part of interrogation o Corruption • Next agenda in police reform o Reform of system o Structure is under the ministry; new bill and national security bill o Reform of integrated criminal justice system o Strengthening the national police commission o Welfare of police o Training police to be professional force • Problems in intelligence reform o No such laws exist o Militarism; historically intelligences were part of military o No effective control o Self tasking o Independence o Budget o Human rights violations issues • Next agenda for intelligence reforms o State intelligence bill o Democratic oversight o Effective control o Strict division of judicial and non judicial intelligence o Ethics code of intelligence; emphasize not violating human rights

Torture and Impunity in Bangladesh (Saira Rahman Khan, Odhikar)

• Torture has its background in martial law o Denied by government o Extrajudicial killings also denied • How is torture used? o Arrest o Remand o Confessional statement, extortion etc • Why resort to torture? o Makes solving cases easier and quicker – but not always accurate o Poor investigation techniques and poor preservation • Reason for persistence of torture o Political ‘tit for tat’ o Lack of monitoring, weak justice system; Magistrates allow the confessional statement o Fear of police harassment o Weak judiciary system • Current legal scenario o No legal definition of torture ƒ Case law: can be followed by BLAST Vs. Bangladesh (2003) – any police force can arrest any civilians without warrant ƒ No police men have adopted this recommendation • International conventions o Article 14(1) of the CAT ƒ No law exists that victim of family should get compensations ƒ Has not signed OP‐CAT ƒ Bangladesh is a member of the UN Human Rights Council. • Odhikar Activism o June 2009; judges and legal experts o August 2009; NGOAB directive closed Odhikar’s anti‐torture campaign program, stating ‘order from the Ministry of Home Affairs’. No other reason given. Bank account is frozen. • HRDs o Network of HRDs/ victim family o Anti‐torture campaigns o Training; inviting judges as guest • Other initiatives o Police reform program was launched on 11 Jan 2005; still continues o Workshop on ‘International human right law linking with domestic law’ o Member of parliament, criminalizing torture; ƒ Private bill – not even brought up for the board • What can FORUM‐ASIA do to help?

Panel Discussion

1. What is position of the bar council in Bangladesh? a. Similar problem in Malaysia b. Bring public scrutiny; internet media, civil society. 2. Military reform/ business involvement of TNIs. In 2006 government cannot afford to pay TNIs, so TNIs have to get involved with business, still same in 2010? a. Situation in West Papua related b. How to access ‐ monitoring and take cases? c. How does Odihkar work? d. NHRC consulted relating torture issues? 3. International mechanism works, what about internal potential mechanism in your system? 4. How many NGOs involved, how about response of government?

Response from Saira Rahman Khan

• Bar council, association; everything is politically divided; they are only interested next presidential election etc.; torture is not a big issue • Torture is a tool for politicians and parliamentarians; o Suing the government ƒ If there is high profile cases it can be useful, but families are scared to report o A few years ago, detention program; rejected to enter to detention centre and jails; only women’s organization working on trafficking issues has access to jail • Tolerance of religions in Bangladesh; it is a criminal offense to disturb any kind of religious activities • Commissioners are picked up by the government; not independently. o SR has to be invited but government is in denial. • Odhikar focuses on torture, prisoners’ rights and extrajudicial killings, solely works on civil and political rights; no other organization works on this issues.

Response from Bhatara Ibnu Reza

• Military reform: o weak SDR o oversight, parliament is weak (they do not understand issues) o Lowest budget in defense ministry • Impunity is issue; e.g. West Papua torture o Military judge > 7 months imprisonment; burden of case is torture • Violation is always happening o Corruption in rural area– illegal logging (border between West Papua‐ Papua New Guinea)

Session 6 – Electoral Reform and people’s parliament: Legislative, people’s participations

Electoral Reform in Malaysia: Lessons Learnt (Richard Yeoh, BERSIH)

• Many changes that are happening in the world basically not from the political party but from the initiative of the people. i.e: Mandela, Martin Luther King. • Malaysian Government often do not act as the way they are supposed to act. • In 2005 opposition in Malaysia decided to sit together which led to the new opposition coalition for the 2008 election • Democratization process in Asia is diverse and evolving at different stages including Indonesia to Malaysia, or from Malaysia to the Philippines. • Raising awareness is one of the pertinent needs to change the electoral policy in Malaysia • There are some demands which are pre‐requisites in the smooth democratization in Malaysia. Major demands are: o Suffrage & Polling o Constituency Redefinition o Contestation and Media o Election Finance o Control of party expenses o Public finance of party expenses o Multiparty democracy o Right to contest election after election o Administration neutrality o Restoration of local government election o Electoral administration o Full judicial scrutiny on Election Petitions o Right to observe elections • However, it still takes time to happen.

Participation in the Legislation Process in Taiwan (Chi‐hsun Tsai, TAHR)

• 1st free election was held on 1992 (every 4 years) on the principles of One vote for candidate, one vote for political party. • How does parliament of Taiwan work? o 8 professional committees o 2 chairpersons in committee to set the agenda o Most legislators are following the instructions from party caucus o Behind committee there is under the table negotiation • Can NGOs influence law making during public hearings? o Usually NGO lobby the committee o When breakdown of negotiation happen, the process should do voting before the 2nd GA o How can NGO/CSO influence legislative work such as Bills/ amendment/ petition by NGOs? ƒ It is not only about law making but also about budgeting. ƒ Press/media, rally/assembly, and public hearing are also part of NGO advocacy ƒ Budget reviewing and screening ƒ Administration and judiciary • Some achievements from civil society participation in Taiwan are: o Success in gathering public support to right to information on the legislative body ƒ Citizen of Congress Watch o Periodical assessment of individuals/parties o Transparency and accessibility • Obstacles and challenges: o Questioning session in the parliament is only used as a showcase o Improving the efficiency and quality of law making o Reducing the influence of party caucus o Electoral bias: favors big parties o The art of compromise

Questions

• Saira ‐ What are the references of the people to vote a candidate in Malaysia? • Yap – From this session we would like to hear input from other participants on the electoral reforms. • How Malaysia deals with the issue of money politics? • Campaigns highlighting the candidates’ track record to prevent people from voting for them in Indonesia. • How CSO in Taiwan can say if a compromise is a positive compromise?

Response from Richard Yeoh

• By and large the people choose the political party, i.e: Muslims choose Muslim party, Chinese choose the Chinese party. But the government also intimidates: if people do not vote for them there will be no development project in their local. People also buy vote, but mostly done by the ruling party, mostly in rural area. But in some cases, people reject the money. • In Malaysia, police abuse is happening mostly in rural areas. • In Malaysia we have ceiling budget for political party, but no one monitors this.

Response from Chi‐hsun Tsai

• We should be careful in compromising in its specific context

Sharing by Roberto on Timor Leste

• Judicial System Monitoring Program (JSMP) has one parliament watch project which is supported by members of parliament. • In all of our activities, from the entire draft bill, JSMP always been asked for comment. o However, we have language problem, because the lawmaking process uses Spanish language, while we talk in other language. o We had a meeting to propose that the use of Spanish language should change. But the parliament prefers to use Spanish language. Negara Timor Leste masih relative baru, let’s hope for better situation. • JSMP gives information about parliament and its work to the people.

Sharing from Laos

• Next year we will have election (party congress) • In Laos, there is single party and the candidate should be the member of the party • How about law making process? o Labour union and other party organization can propose to the parliament

Sharing from Vietnam

• Law making process in Vietnam maybe quite the same as Laos • Law should be proposed to administrative agency. o There should be socialization to stakeholders. o Mass organization can submit their comment. • Law on referendum, freedom of information, are some of the important laws in Vietnam • Normally the ministry is the one who proposes a law to the general assembly. • The general election now can be opened to non party member. But there will be a question about ‘money politics’ • How the citizen can choose the best candidate is one of the key objectives.

Session 7 – Rule of Law and Judicial Independence

Monitoring the Independence of Judiciary: The Experience in South Korea (Prof Sang‐hie Han, PSPD)

• Presentation – “Who will guard the guards? – 16 years experience of judiciary watch in South Korea” – Major points: o Political/economic history; background of judiciary watch ƒ Mobilization of law (1948‐1987) ƒ The coercive powers: national police, the KCIA, The Defend Security Command ƒ Intelligence agencies: exercising power of state’s coercion ƒ Judiciary: no independence from the state ƒ Lawyers: belonged to noblesse de robe to the people • if someone arrests, 50,000 USD to hire lawyers; very expensive o Democratization and distorted rule of law ƒ Distorted by lawyers ƒ Legalization of the State powers ƒ The rule of the public prosecutors; • monopoly on all criminal justice powers > all powers of rule of law • de facto judge – they could pronounce any person guilty in public before judge; could detain anybody o The fetters of Juristocracy ƒ Political power related court ƒ Lack of independence/ hierarchal ƒ Public prosecutors acted as agents of coercive state power ƒ Lawyers; absolute monopoly power over all the legal services; • the smallest group in OECD countries • revolving doors “guilty without money” o The Judiciary Watch Center ƒ Judicial Reform for the People, not for the judiciary ƒ In 1995, 50 major tasks for reform: • Increase in quality and quantity of legal services • Protection of human rights through judicial system o Judiciary Watch goals: ƒ Subordinate political power ƒ Independence of judiciary ƒ Judicial servant to the people ƒ Bureaucratic officers made a legal profession for social/economic development o “Monitoring is my Middle Name” ƒ Constructing several databases ƒ Gathering lawyers’ activities from lawyers and media; ƒ “Name and Shame” based on such information ƒ Campaigning published white papers on public prosecutors based on these databases ƒ Citizen’s review of the judgment; lay‐people’s critics of socially salient ƒ Online publication of disciplinary measures information ƒ Publication of journal of judiciary watch; more than 4,000 judges and lawyers subscribed o Agenda Setting 1 ƒ Setting agenda for democratic rule of law, and proposing policy alternatives such as: • Reform the hierarchal structure of court/judge system • Strengthen people’s accessibility to judicial process • Renovation of the relationship between the public prosecutor’s office and the MOI • Removal of the entry barrier to legal service by increasing number of lawyers • Introduction of law school o Agenda Setting 2 ƒ Participate in judicial reform projects ƒ Contributed to establishment of law school system in Korea o Who should be the justice? ƒ Citizen’s movement to recommend “good justices” of the Supreme Court and the constitutional court ƒ Listening and shouting ƒ As a result we have got – 1st female justice of the S.C and C.C each and abolishment of senior system of judge o Campaign and education 1: ƒ Many seminars, picketing, open lectures, publishing and journalism (co‐ operated with journalists) o Campaign and education 2: ƒ Open court with citizens review of the court’s decisions from the perspective of the common sense of the lay‐people ƒ Organize a discussion panel, and let it make its own judgment and publish the results in the centre’s home‐page ƒ Shadow jury, comparing with real decisions o Court opened to the public ƒ Increasing accessibility of court ƒ Networking; creating group of lawyers’ for democratization o Conclusion ƒ Strengthening is coming from law professionals, backed up by the public as well as liberal part of the lawyers group

Training of Judges and Lawyers (Wiwiek Awiati, International Commission of Jurists)

• Background o Policy and legislation reform o Capacity building of stakeholders o Case advocacy • Assumption o Need to increase awareness of civil society o Enhancement of capacity and skill of public interest lawyers, civil investigator, police etc o Building capacity for coordination and instilling similar perception among law enforcement officers o Lack of systematical and long term planning to do environmental law enforcement • ICEL starts Environmental o More than 5,500 staffs/ 15 Supreme Court judges trained o Big number but this is out of a pool of across 60,000 judges (court), 50,000(Supreme Court) o Some success stories • Judicial independence o Professional judges and prosecutors o Increase the quality and integrity of judges and court staffs o Total reforms cannot be made in short time o Efforts are underway to change attorney office and Supreme Court. ƒ e.g. 1998 first time Chief Justice was appointed by parliament, was not coming from judge background but from University o More stakeholders related to reform process o Problem in building engagement with government • Supreme Court reform goals o Indonesian court excellence o Client needs and satisfaction o Accessible and affordable court services o Public trust and confidence • Achievements o 19,793 > 9,388 > 5,000 (decrease) o Supreme court manages to get paper policy (we can push them to implement polices) o Elimination of court fees; banks will reimburse fee o Sanction and punishment is increased; o Court has annual report of performance which it presents to the public o Female house holders are invited in Bali. The court allocated lots of budget for women and disadvantaged people, not only court fee but also other support. o Judges go to rural areas o Mafka Hukum: anti‐judicial mafia/publishing legal mafia ƒ Everybody can see the potential area mafia can touch • Lessons Learned o Strengthen own ƒ Increasing Capacity o Strategy ƒ Languages we use, people do not understand ƒ Demanding information desk from CSOs, the Court neglected it; ƒ But how to create better strategies? There are real demands from outside too. ƒ Allies and synergy; need to divided our strategies outside and inside ƒ Pressure from without, capacity from within

Questions

• Vietnam – Decentralization of judicial power is an important issue o How can we ensure lower level court of quality? o How can professionalism be achieved? o How to protect HR in judicial system? o What do you do when there is case which violated? • Taiwan – What is function and mandate of Committee for judiciary reform o How are they appointed? o Do NGOs recommend someone? • Malaysia – Legal advice to government o Narrow mindset of judges (look at themselves as councils) o Appointment process of judges also has problem o How can we make them more independent? • Bangladesh – Can there be open criticism of lawyers and judges? o In South Asia, this strategy is pretty dangerous; other strategy? • Yap o For judges, it is difficult to get them to attend training organized by civil society; how could you bring 1,500 judges and how did you overcome this challenge? o If court makes judgment, and civil society decide it was injustice then what happened?

Response by Prof. Sang‐hie Han

o There is no provision in Korea (only defamation case of judges) o We can freely criticize decisions of judges, criticizing court and independence of judges is not related and they are different o Civil law system in Korea (rely on legal interpretation of law) o We would like to them to interpret law not in their way, but people’s way. (It has not been implied by public law rather than judges’ way)

Response by Wiwiek Awiati • There is training centre of court; • Inviting Judges as resource persons from leadership of the court; e.g. chief justice • Engage with foreign contacts o Making comparison studies between Indonesian and Australian system • Interesting part is that they see some institutions as credible institutions • Junior judges are trained by senior judges as there is hierarchic systems in the judiciary • District courts decisions are followed by activists o NGOs concentrate on Supreme Court decisions o Constitutional petitions to the court o Sometimes they organize demonstrations in front of the court • Member of the committees were appointed by President o Most of government committee have 3 paths; ƒ Judges and prosecutor ƒ Lawyers ƒ NGOs • Size of lawyer body has been increased • Constitutional court does not make other decision except matters related to the constitutionality of the debated case

Sharing of Experiences

Malaysia

• Judges involved in corruption; • Citizen cannot criticize or sue them in terms of business and commercial justice • Retired judges are happy to engage with corruption issues; • Regional network for judicial watch work (judiciary and police etc) • How to protect people’s rights is real challenge in Malaysia

Nepal

• Civil society activists have different strategies in dealing with judges o The Judges don’t like language such as “Training for Judges” so the NGOs used different language such as orientation or consultation rather than training • Some of the NGOs such as Forum for Women Law and Development(FWLD) have been successful to orient few human rights friendly judges for landmark decision from the Supreme Court of Nepal • The relation between Nepal Bar and Judges has problems time to time e.g. former President of Nepal was banned to practice in the court for 6 months for criticism of judiciary as corrupt. However the decision was withdrawn followed by pressure from Bar Association and NGO activists.

Laos

• Independent judiciary is lacking • Selection process of judges a problem • Freedom of expression of media important (can check and carry out public opinion on certain cases) • When case is related to social dimension then it is difficult to share and get space for people to hear

Bangladesh

• Independence of judiciary o Judges work in executive influence; o We do not have any more since 2004 as all judicial matter transferred to Supreme Court • No activities related with Ministry; • Government controls all except for money (budgets) they have to go to ministry of finance; • NGOs are trying to work on independence of budgets in Judiciary

Indonesia

• Judicial mafia? o Who they are controlled by? • Terms are made by President for every profession (police, prosecutors, judges, parliamentarian etc) • Corruption is systematically done by judicial mafia o Process of court can be delayed; terms of execution could take year; o Broken process needs to be started from zero; o Democratization and transparency and accountability key • No one eager to be witness (easy to be prosecuted) • Lawyers can play very important role (good supervision by body of lawyers) • Reform conference of top judges asked why do we not reform the system? o System developed by the Dutch 300 years ago; Dutch system is not exercised anymore in Netherlands o Judges are part of system so reform is necessary • Sharia law only applied in certain places in Indonesia; o There is religious court and there is no training for religious court o But at second stage when we are engaged with judiciary under religious court training, we include stakeholders to engage in terms of materials

Viet Nam

• Process on judicial reform is ongoing in Viet Nam; • Public participation is needed o E.g. access of information; • Public concerns such as public anger makes change on decision of judge; • Judicial reform gives more litigation so there is progress Session 8 – Discussion of Statement to the Bali Democracy Forum III

Mr. Renato Mabungo Moderator and members of the drafting team comprising Mr. Surya Deuja and Saira Rahman Khan presented the draft Statement to the Bali Democracy Forum. The participants presented their valuable inputs and suggestions to refine the draft. Once these were incorporated the statement was endorsed by the participants. (See Statement in the Annex part).

Session 9: Plan of Action for 2011

Mapping of Democratization in Asia (Anselmo Lee, Human Rights Foundation, Korea)

• Basic questions about BDF; we need to imagine political motives behind this forum • Why in Bali? –has been held three times; Brunei, Timor Leste and South Korea’s head of states are coming to join • Why in 2008? – 60 years anniversary of UDHR as well as preparation of general election(internal political motive) • Why about democracy? o Why is Indonesian government spending money on this? What are national interests of Indonesia? • Why by Indonesia? o Indonesia suddenly become a champion of democracy o Economic motive o Indonesia would like to talk about Burma to put pressure on Burma o Regional cooperation (building cooperation with outside of ASEAN) o Co‐hosted with South Korea(depends on who are co‐hosts and agendas are different) • Why by SBY (nick name of Indonesian president)? • After Bali bomb in 2002, political structure in Southeast Asia changed • Forums are usually open to everybody; o BDF has only IPD. o We are not invited. Civil society not welcome, why we are not invited? • Do we need alternative platform because we are not invited? Depending on our position, our action plans will be different so need to think about it • Asian/ASEAN values? We have international standards; chair statement (no real negotiation and debate) o No open criticism; we are not sure what way they are going to promote democracy o Forum is inter‐governmental, with Institute for Peace and Democracy, without civil society • Explanations from IPD o BDF is summit (head of states; ministerial meeting) all over Asia; state of Indonesia does the meeting and summit. ƒ Because states would like to have space to talk and learn about democracy; always talking about security and training but never talk about democracy; this is the reason to create BDF in order to discuss democracy. o IPD was created by ministry of foreign affair and used to be under MoF; now under university. ƒ MoF asks what can be agenda of BDF; IPD (institution created by the government but it acts as think tank for government) and BDF (government organized head of state meeting summit) o Only media invited (journalists) ƒ BDF is learning place for states, not for CSO • Why they are not able make a bridge between civil society and head of states? o States need to interact with each other; we would like to contribute for successful forum as tax payers’ o Civil society in Asia is happy to make Forum succeed o There are many meetings and forums; BDF is the only forum which does not invite CSOs when talking about Democracy • 10 main challenges 1. Ideological differences; some remain socialist and communist countries 2. Colonial legacy a. We received democracy from colonial power 3. Authoritarianism 4. Poverty a. It affects democracy; b. Development dictatorship i. This mentality still remains strong 5. National security regime a. War on terror 6. Corporate influence a. Plutocracies set agenda of governments; ASEAN Charter behind corporate interests 7. Bureaucracy, technocracy or elitism’ a. Democracy from top; they have their own interests 8. No legitimate and effective regional inter‐governmental mechanism a. UN dealing with conflicts (e.g. territorial disputes); b. Weak inter‐governmental bodies. e.g. BDF – no recommendations/ IPD is implementing body but has no action plan about Burma issues 9. Weak and fragile institutions 10. Lack of independent and effective civil society organizations; very much politicized with donor‐oriented agenda settings etc. • Typology of democracies Categorization by UNDEF 1. Established democracies 2. Fragile democracy – Philippines, Indonesia (Fragile to emerging) 3. Emerging democracies – Malaysia (emerging but fragile), 4. Post‐conflict democratization process – Nepal, Timor Leste (as well as fragile democracy) 5. Non‐democratic states – Burma, North Korea, Laos and Viet Nam(Non‐democratic state to emerging) o Maldives (emerging democracies; only country talks about democracy in South Asia) o India (largest democracy in the world; Indian democracy‐ too many faces; fragile established) o Indonesia (Indonesian style democracy?) o Thailand (emerging but fragile democracy) o Sri Lanka (post‐conflict) o Cambodia o Brunei (non‐democracy) o China (??? Chinese democracy) o Never gives full definition of democracy by UNDEF • Human Rights, Civil Society, and Asia o Human rights ƒ Inter‐dependence posited between democracy and peace/security, development, human rights etc. by Universal Declaration of Democracy ƒ Next year BDF agenda can be rule of law or human rights o Right to democracy (UN CHR resolution on democracy)‐ Resolution 2001/65‐ ‘non‐ western democracy’ – substantive, ‘democratic and equitable international order’, ‘economic and social dimensions’, ‘right to development, environment and natural resources’ ƒ Two divisions within the UN o Human Rights based approach to democracy (RBA) ƒ Popular among Development agencies but we can also use it ƒ Human rights and the rule of law are essential in making democracy inclusive and sustainable (quality of democracy – substitutive beyond procedural democracy) ƒ 1998 UN Declaration on HRD; it is important to expand meaning of HRDs; HRDs is linking concept • Civil society o Sectors for advocacy ƒ Legislative branch; election, law‐making, budgeting(not many NGOs are closely working on this) • RBAs in terms of using tax and money of governments, should be our one of main focal agenda) ƒ Executive branch; ODA etc ƒ Judiciary branch ƒ Independent institutions ƒ Political parties; ruling and opposition party; hard to draw line between parties and NGOs; monitor and engage with political parties ƒ Media and press ƒ Business partners o Participation in democratic governance ƒ Committee and commission ƒ We are invited to part of establishment ƒ More governments open o Local governance and authorities ƒ Democracy from below or human rights from below ƒ Gwangju – World Forum of Human Rights Cities 2011 • We worked hard with national level as well as Local Level • Regardless of central government, many cities network among local authorities • Role of civil society o Watch dog; monitoring o Barking dog; campaign, naming and shaming o Bulldog; litigation, law suits ƒ Once you win the case, it can be very good exemplar o Smart dog; dining and wining etc. ƒ Face‐to‐ face dialogues ƒ How to do naming and shaming same time with dining and wining? • Mapping of Democracy in Asia ƒ Sub‐regional ƒ OHCHR (opposed by China and India) ƒ We have to use existing platform o Regional/ inter‐regional ƒ International Conference of New and Restored Democracies (ICNRD); initiative by UN after cold war; but latest one 2007 Qatar ƒ Seoul democracy Forum 2009 (supported by American embassy in Seoul) o Global ƒ WMD (World Movement for Democracy initiated by National E Democracy, the US parliament funding) 2 years ƒ UNDP; democratic program ƒ UN Democracy Fund (UNDEF) ƒ Need to think cleverly • DO WE NEED TO CREATE TO SIMILAR THING AS CIVIL BALI DEMOCRACY FORUM? CAN BE USEFUL TO INVEST?

• Response from IPD o Always contribute for BDF o Whoever want to give their thoughts o Condition o Learning arena; loose discussion ƒ People do not know about democracy; process of learning ƒ Rule of law and human rights – we will research on it for next year

Group discussion guidelines 1. Breakout to 4 discussion groups: a. Monitoring Executive Powers b. Monitoring Judicial Powers c. Monitoring Legislative Powers d. Bali Democracy Forum and other international events on democracy

2. Guide questions for discussion groups a. What are the key common challenges? b. What can be done to address these challenges? Make three concrete and practical recommendations.

3. Please come out with 3 action points that are: a. Useful to support your work in the country b. Can be implemented jointly in the region by all to maximize impacts c. Action points should be specific, realistic and achievable

The four groups then made their presentations in the plenary session. Main discussion points of the plenary session are presented as follows:

• Key common challenges: o Lack of access to information o Lack of political willingness from the state engaging with civil society and other stakeholders o Lack of monitoring mechanism/accountability mechanism o BDF is event oriented than process • What can be done to address these challenges? o Need to strengthen civil society movement collectively on issue of democracy in Asia o Engage with other actors such as donor, UN or other institute invest money on BDF who can help in process o Network with other international workers including Think Tank.pro‐active role in helping civil society movement access o Engage with media training and capacity building with us to cover the issues o National level to bring other group in the process to engage with o Indonesian civil society and other co‐host role o To demand inclusion of civil society in the process if tax payers money is used o Make three concrete and practical recommendations. o Make a plan for national and regional level starting with campaigning and sub‐ regional level to make gathering in Bali a larger level. ƒ FA can provide some sort of Guideline to use activities as document of engagement in next BDF. ƒ To start planning in advance e.g. working Group or Steering Committee leading role of Indonesian civil society o To reach media through consultation, training and other interaction programme so that media awareness will help in raising issues for transparency, good governance, democracy and human rights. o Strategy should be designed. ƒ Both event and process ƒ But need to find out what we are going to get out of it? ƒ How we are going to do it?

ƒ Yap – What Initial Action points what can be taken? o It is now December 2010 – what can we do? Some demands rather than action points? How to translate them? o What is most realistic as collective for 2011? o Freedom of Expression ƒ Some initiatives by ASEAN, not sure about other sub‐region o Strengthening national institutions o Anti‐corruption – TI is doing this o Capacity Building on RBA to monitor Executive ƒ Some groups are already doing this o FA can also incorporate in its activities next year o Other ideas about revising the ASEAN inter‐parliament caucus to raise issue o Judiciary ƒ We want judges. These are demands rather than action plan ƒ Legal aid can be done but how? ƒ Jurist system is also demand rather than action points? ƒ Prof. Sang‐hie Han o Is it good time to revise strategy in Burma o Database play important role to help lobby with MPs ƒ e.g. country such as Vietnam can be pushed by Forum‐Asia o We can talk with IPD regarding seminar with them o Couple of workshop and consultations was supported by Malaysia ƒ Yap – Freedom of Expression o Can suggest to IPD to invite parliamentarians in whole Asia and discuss on issues such as good governance etc. It would be one concrete action point. o Strengthening democratic institution already ANNI o Corruption is highlighted as one of the main issue? o What should be our action points? Any recommendations/suggestions? ƒ Declaration of wealth • How can we do it/what we can do? o TI local chapter is focusing on promoting level playing field in election. We should focus more on funding etc. corruption in forestry, industry etc. o In Malaysia TI is a business group. In Pakistan lawyers group. Try to lobby and advocate on corruption and advocacy issues. ƒ They have tool kit in legal aid. TI Malaysia wasn’t interested. TI may help you in support. Contact TI country or Berlin to get resource persons materials etc. Political finance in Malaysia – they are interested to work. o So we can suggest to them to organize one programme on this issue on the topic of corruption to share experiences, practices, etc with the participation of civil society, engaging different stakeholders on the issue. o On judiciary part ƒ Suggestion to have judicial monitoring network? ƒ Wisek Awaiti o In Indonesia we call Judiciary watch. We can link with international network. I do not know how many countries have judicial watch network. ƒ Prof. Sang‐hie Han o I didn’t find information about other networks. Action Programme can’t be made without institutional pre‐conditioning. Some institution to monitor the legal education system, legislation making institution. I think civil society has no way to demand laws on judicial system, which can raise charges. How can we go further than this in this situation? ƒ Wisek Awaiti o We have dealt with structural issues and other issues. There is need of other session to discuss on how civil society can address problems. ƒ Yap – Can I suggest separate session on Judiciary? Bar Association? o Maybe FA can organize workshop on judiciary? ƒ Yap – If people think the network is useful or any strategy to address other issues. o Some very concrete suggestion is to create working group/steering committee o Start campaign on BDF at national level. You go home and can do this o Engage with donors, media o Demand of forum for engagement of civil society can be reflected in the statement. o Fundamental question on our position to BDF? ƒ Saira – It is not only BDF but other such forum as such because BDF is only one forum. ƒ Boyet – I think first we should venture in clarification with IPD on possibilities regarding essence of BDF. Because IPD have hard time to present substantial matters in BDF. If IPD wants us to help them in pushing discussion with BDF, this may be one way of starting our engagement with IPD. ƒ Omar – We need to be clear about what and how we are dealing in terms of engagement with media? o Whether or how we want to continue the process as Indonesia Chair ASEAN and AICHR on 2011. I think Indonesian friends have to assess on this. To get more information if they are using tax payers money. ƒ Yap – I think people are more cautious. More information will help us in taking clear position or dining and wining with BDF. o Basically we will be meeting with IPD to get more information and engage. I think possible entry point is IPD created by them as Think Tank. ƒ We can work with IPD so they can influence the agenda of the BDF and IPD can organize the programme bringing participants from civil society. Even if we don’t attend the BDF we can give inputs for the agenda setting to BDF. ƒ E.g. next year we may suggest themes of democracy, human rights and rule of law which they can propose to Indonesian Government. o We have director of PETA who can speak privately with Australian government. ƒ She can talk with minister and minister can share with others but this is just a strategy. ƒ Indonesian Participant from Media – it is a wakeup call for us. We have responsibility so our group recommended media training for awareness not only for NGOs but for media as well. o We have very limited source of information. It seems to us that Indonesian civil society should discuss these issues more.

Conclusion and Closing (Yap Swee Seng, FORUM‐ASIA)

Mr. Yap Swee Seng concluded the programme with closing remarks. He informed to the participants that the meeting minute and presentations will be sent to all of them by e‐mail as soon as possible.