The State of Human Rights in Ten Asian Nations - 2011 Asian Nations Ten of Human Rights in State The The State of Human Rights he State of Human Rights in Ten Asian Nations in Ten Asian Nations - 2011 T - 2011 is the Asian Human Rights Commission’s (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 Bangladesh • Burma • India and social rights, including the right to food. Indonesia • Nepal • Pakistan • Philippines South Korea • Sri Lanka • Thailand i 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: [email protected] 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 report’s cover is based on a photograph of Filipino artist Nunelucio Alvarado’s painting ‘Fuerza’ – the AHRC thanks the artist for giving it permission to use this image. iii CONTENTS v Foreword Bangladesh Rulers establish an illusion of rule of law and 1 democracy to deprive people by all means Burma 64 From blinkered to market-oriented despotism? India 82 Human rights a utopia without justice Indonesia The Decay of Pancasila and Constitutional 120 Protections Nepal 179 The State of Human Rights in Nepal in 2011 Pakistan 250 The State of Human Rights in 2011 Philippines In a flawed system of justice, the social & 364 systemic implications are irreparable South Korea The State of Human Rights in 2011 393 iv The state of human rights in ten Asian nations - 2011 Sri Lanka International Human Rights Agencies failed 404 to notice the Collapse of Sri Lanka’s Public Institutions of Justice Thailand Consolidating internal security state, complaisant 517 judiciary v 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 AHRC’s documentation of cases throughout the year, show that the failure of these countries’ justice institutions to the deliver justice and protect of human rights is the main factor that propagates the widespread abuse of human rights by state agents as well as non-state actors. As long as these justice institutions remain dysfunctional, the perpetrators of human rights violations will continue to enjoy impunity for their actions. There are currently few consequences faced by perpetrators who violate people’s rights, even though there are provisions concerning the protection of rights under countries’ constitutions, laws and international obligations. The lack of implementation of such provisions ensures that there is no effective deterrent to prevent further rights violations being carried out. The protection of human rights starts with the right to make complaints. The police, as a key law enforcement agency within States’ justice delivery mechanism, should stand at the frontline in the protection of rights, notably by receiving and acting upon complaints. However, in most Asian countries, people generally are not willing to make complaints to the police. This is not vi The state of human rights in ten Asian nations - 2011 only because there is a lack of confidence in the police’s ability or willingness to conduct proper investigations or provide protection to persons at risk, but because there is a fear of reprisals against people if they make complaints. Where victims belong to poor or marginalized communities, or the perpetrators belong to influential or political groups, the police usually refuse to register complaints. Where complaints are against police officers and state agents, victims often face intimidation and threats, forcing them to withdraw their complaints. In many documented cases, the police often framed fabricated charges against the victims and the human rights defenders who were assisting them. The effective functioning of the police is further hindered in situations where they are in practice subordinated to the military. As well as in Pakistan, where the powerful military dominates both internal and external affairs, in countries such as Indonesia, India and the Philippines, the military is given enormous powers in specific areas within the country to maintain public order, in the name of counter-insurgency and counter-terrorism. In Mindanao in the Philippines, soldiers carry out arrest orders and usurp fundamental police powers, such as the investigation of crimes. This has been witnessed as being a common practice not only in conflict areas but also in heavily militarized communities. Substantial regions in Manipur and other north- eastern states in India, as well as in the state of Jammu and Kashmir, remain under the Armed Forces (Special Powers) Act, 1958, under which the military is granted extraordinary powers to detain persons, use lethal force, and enter and search premises without warrants. In Papua in Indonesia, increased military deployments to the region - notably by going beyond the purpose of border control and defence against external threats - seriously affect the rights and living conditions of the region’s people. This militarization subverts the supremacy of civilian oversight over the military, and continues to cause serious and widespread violations of rights, including torture, disappearances and extrajudicial killings in these countries. Furthermore, the prosecution systems in many of these countries have also contributed to the persistence of impunity. In most Asian countries, Attorney General’s Offices and public prosecutors are highly politicized. In cases involving state agents, including the military and the police, as well as those concerning political groups or influential people, prosecutions are routinely obstructed. In Bangladesh and India, ruling political parties appoint prosecutors 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 country’s conflict. As many as 300 cases filed at the district level were at risk of being withdrawn, including cases of serious human rights violations, such as the disappearance and murder of 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