Cambodian League for the Promotion and Defense of Lao Movement Human RightS for Human Rights (LICADHO) Philippine Alliance of Human Rights Advocates

Think Centre (Singapore) Association for Human Vietnam Committee on Rights and Development in Union for Civil Human Rights Cambodia ADHOC Liberties UCL

Submission to the 12th ASEAN SUMMIT 11-14 December 2006 CEBU, Philippines

1. HUMAN RIGHTS DEFENDERS

Throughout 2006, human rights defenders in many Asian States have been subjected to severe repression. In a number of ASEAN states, human rights defenders are still victims of assassination (Philippines, Thailand) or are arbitrarily arrested or under house arrest (Burma, Vietnam). In other countries, the right to freedom of assembly is severely restricted (Cambodia, Malaysia, Singapore). In Laos, it remains virtually impossible to carry out activities in the defence of human rights because of the extremely harsh repression.

In Burma, escalating human rights violations are being perpetrated by the Burmese regime, the military junta known as the State Peace and Development Council (SPDC). Recently, the SPDC has further increased political repression. Indeed, on 27 September 2006, the three most prominent student leaders of Burma, , and were arrested by the Burmese military regime. All had already served over 15 years in prison. They had been released in 2004 and 2005 and since then, they have been working tirelessly to bring about democratic changes in the country by peaceful means.

The effective laws and judicial system do not facilitate the emergence and strengthening of the civil society in Burma. The 1988 Association Law enacted by the regime prohibits formation and function of independent organizations. The judiciary is not able to provide protection for civil society educators and human rights activists given that it is subservient to the ruling military regime.

Despite more than 28 resolutions adopted by the UN General Assembly and the Commission on Human Rights, calling for national reconciliation and democratization in Burma, as well as the actions undertaken by the UN Secretary General Kofi Annan and his office over the past ten years, and the four envoys to Burma mandated by the UN Commission on Human Rights, the SPDC’s unlawful methods of political and ethnic repression have intensified and consolidated.

Indeed, only days after the most recent visit to Burma by UN Under-Secretary for Political Affairs, Mr. Ibrahim Gambari, in May 2006, during which he was allowed to meet briefly with and called for her release, her detention was once again arbitrarily prolonged for yet another year. Furthermore, since Mr Gambari’s last visit, the Burmese military junta has not undertaken any action in favour of national reconciliation. Indeed, in mid-September 2006, the regime publicly declared that it will never engage in discussions with the NLD and ethnic minorities. Instead, NLD leaders and democracy activists have increasingly been subjected to harassment including arbitrary arrests, humanitarian organizations and U.N. agencies remain unable to carry out their missions to help the thousands of displaced, and practices of forced labour and forced relocation remain widespread.

The dire humanitarian crisis is worsened by the increasingly strict conditions imposed by the Burmese regime on humanitarian organizations, in some cases amounting to a complete denial of access, so that they are unable to reach the internally displaced facing the greatest needs. Recently, ICRC, which is mainly contributing to protect and promote the rights of prisoners in Burma, was forced to shut down its offices and leave the country.

In Cambodia, three high-profile human rights defenders arrested in December 2005 and January 2006 (Kem Sokha, Yeng Virak and Pa Nguon Teang) have been released thanks to strong international and domestic pressure. However, intimidation and persecution of human rights defenders continues unabated throughout Cambodia. Staff of human rights NGOs have faced death threats, physical assaults and obstruction to their work, while community activists and trade unionists have increasingly been targeted for particularly serious violations including unjustified arrest and imprisonment.

Human rights defenders in Cambodia are particularly under attack for their efforts to defend citizens' rights to land and natural resources. Land-grabbing by the rich and powerful is reaching epidemic proportions in the country, and individuals who try to help poor communities to protect their land are often targeted for intimidation and violence. This may range from verbal threats and petty harassment, through to serious physical assaults, particularly during land evictions. A particularly common strategy used by perpetrators is to file malicious criminal complaints against community representatives who are active in organizing or advising their fellow villagers to advocate to protect their land. Numerous community representatives have been summonsed to court or imprisoned on spurious criminal charges, in a clear attempt to frightened their communities into giving up their land and to punish those who try to defend them.

Freedom of expression and freedom of assembly remain severely restricted in Cambodia, impacting on human rights defenders' ability to publicly air concerns about serious rights abuses and advocate for judicial and government reforms.1 Defamation remains a criminal offence, subject to large fines, although prison sentences for it were abolished in 2006. Government critics can also be charged with "disinformation", which carries a prison sentence of up to three years. Peaceful public gatherings to highlight human rights issues are rarely permitted, and sometime violently dispersed, by the authorities.

With local elections scheduled to be held in 2007, and national elections in 2008, there are indications of an increase in political intimidation and violence, including several recent killings of opposition party activists for which the perpetrators have yet to be brought to justice. In such a climate, threats to human rights defenders are likely to increase.

The precarious situation for human rights defenders in Cambodia is under-pinned by rampant impunity for human rights abusers and lack of rule of law in the country, with the police, judiciary and civil service wracked by corruption and political control. Key institutions such as the Supreme Council of Magistracy and the Bar Association lack independence.

In Indonesia, by the end of 2005, an investigation had still not been opened into the disappearance of Mr. Abdussalam Muhamad Deli and the assassination of Mr. Raja Ismail, although the two cases had been immediately reported to the National Human Rights Commission

1 FIDH published a mission report last February, with a section under the Observatory, which details those aspects and includes a set of recommendations in order to improve the situation, “Threats to freedom of expression and assembly in Cambodia”, February 2006. (KOMNAS-HAM) and the local police.

They were both volunteers of the Legal Aid and Human Rights Agency (PB-HAM) in East Aceh, an NGO carrying out advocacy through data collection, the organisation of campaigns and the provision of legal assistance. They disappeared in May 2003. The body of Mr. Raja Ismail was found a few days later, and it showed signs of strangulation, knife wounds and bruises.

On 7 September 2004, Mr. Munir Said Thalib, co-founder of the Commission for Disappearances and Victims of Violence (KONTRAS), had died on board of a Garuda Airlines flight from Jakarta to Amsterdam. On 11 November 2004, the Dutch Forensic Institute had made public the findings of the autopsy conducted on the body, and had disclosed the presence of a lethal dose of arsenic, thus confirming the fears that Mr. Munir was murdered. The Indonesian authorities had then initiated an enquiry into his death. Mr. Munir had played a leading role in the investigations into human rights violations perpetrated by the Indonesian army, particularly in East Timor. He had also led numerous investigations into the disappearances of activists in Aceh and Papua, under the Suharto dictatorship.

On 20 December 2005, the Jakarta Central District Court sentenced Mr. Priyanto, Garuda Airlines pilot, suspected of having offered a first class seat to Mr. Munir and of having then put arsenic in his orange juice, to 14 years in prison for “premeditated murder”. The proceedings appeared to disregard the results of the inquiry undertaken from December 2004 to June 2005 by an official investigation team, that suggested the involvement of senior executives of the State airline Garuda and high-level officials of the State Intelligence Agency in the death of Mr. Munir. Mr. Priyanto is currently free.

In Laos, it remains virtually impossible to carry out activities in the defence of human rights because of the extremely harsh repression. For the Lao leaders’ regime, human rights, religious freedom and democracy are strictly stamped as “domestic issues”. Since 1975, there has only been one public demonstration: the “26 October 1999 Movement”, when a group of students, teachers, civil servants and Lao citizens tried to conduct a peaceful March in Vientiane, demanding Justice, Freedom, Democracy and National Reconciliation. They were met with violent repression by the political police, about 100 people were arrested and detained. Five Movement leaders - Thongpraseuth Keuakoun, Khamphouvieng Sisa-at, Sengaroun Phenphanh, Bouavanh Chanmanivong and Keochay - disappeared since then. According to reliable sources, one of them, Khamphouvieng Sisa-at, died in detention from torture and privation. The fate of the four others remains uncertain. The Lao authorities persistently deny the fact that this protest ever took place.

In Malaysia, whilst it is possible to speak out in favour of human rights, the Observatory is deeply concerned about the situation of human rights defenders involved in the promotion of freedom of religion. Indeed the government has issued strict instructions not to speak openly about religious freedom, and defenders have recently been subjected to attacks on the part of fundamentalist groups.

In May 2006, about 300 demonstrators gathered near the Hotel Cititel in Penang, on the occasion of the forum on "A Federal Constitution - Protection for All", organised by the human rights NGO Aliran and Article 11, a coalition of 13 NGOs, in order to discuss issues such as freedom of religion and the safeguard of the secular nature of the Malaysian Constitution. The police had erected roadblocks in the surrounding area to check the access to the hotel.

Just before the forum started, over 100 people gathered at the hotel, holding posters and shouting slogans such as "Allah’s law prevails over human rights". Later in the morning, while several of these demonstrators attempted to assault the hotel, the police ordered the organisers to close the forum within 30 minutes. Consequently, the meeting did not take place. A similar public forum organized by the Article 11 coalition in Johor Bahru in July 2006 was also disrupted to a halt by demonstrators from Islamic groups. In the Philippines, extra-judicial killings have multiplied dramatically and continue to date unabated. The principal targets of the shootings are political opponents, (in particular left-wing party activists), human rights defenders, journalists, lawyers, community leaders, and union workers who speak out against the authorities. Groups and individuals identified with the opposition are increasingly at risk. Witnesses have reported victims being shot dead by unidentified men, usually on motorcycles, suspected of links with the military, police, and other security forces. This situation is further exacerbated by the inability or unwillingness of, if not the complicity by, the Philippine government to stay or resolve the human rights violations perpetrated by non-State actors, such as mining and logging companies, big land owners and armed groups.

This pattern of politically motivated killings has been reported in a number of provinces across the country. The most affected areas are those in which there is a particularly strong military presence, in particular the Sulu Islands, the Luzon Islands, and the central Philippines.

The Observatory denounced seven extra-judicial killings of human rights defenders since the beginning of the year (Ka Eric, Wilfredo Cornea, Eladio Dasi-An, Mario Domingo, Porferio Maglasang Sr, Rico Adeva and Vicente B. Denila). It only represents the top of the iceberg, since the number of peasant leaders, trade unionists, members of political parties who have been killed since last January is much higher. FIDH, together with its member organisation in the Philippines (PAHRA), recorded 52 cases of extrajudicial killings since January of this year, but according to the human rights organisation Karapatan, approximately 600 persons have been victims of extra- judicial killings since 2001; according to the Asian Human Rights Commission (AHRC) approximately 290 persons have been killed since 2004. PAHRA recorded 64 cases since the beginning of President Gloria Arroyo's administration.

Furthermore, economic, social and cultural rights are threatened by 'development aggression' through the government's flagship project of 'mega-regions'.

In Thailand, three human rights defenders have been killed in the course of the last three months.

Mr. Muhammad Dunai’s murder may be linked with his activities in favour of the rights of villagers in the South of Thailand. Moreover, Mr. Muhammad Dunai had also been working closely with the coordinator of the Tak Bai case (South of Thailand) in assisting villagers who had been persecuted since the massacre of 84 persons by soldiers and police, on October 25, 2004, after a protest outside the Tak Bai police station. Before his murder, Mr. Muhammad Dunai had reportedly been contacted by two unknown military officials who wanted to meet with the affected families and the coordinator of the Takbai case. However, at the present time, the Observatory does not have further details about the content of their discussion nor about the military agencies involved.

Furthermore, on October 16, 2006, Mr. Asan Yamaleh, chief of Village n°3, Yala Province, was shot soon after bringing a group of people to meet representatives of the authorities in Yala 3. Before his killing, Mr. Yamaleh had attended a meeting with members of the National Human Rights Commission of Thailand and local human rights groups in order to complain about the brutality of the security forces in a raid on September 13, 2006. On this occasion, over 100 police and army forces had raided his village to search for suspects and bomb-making material. Five villagers were arrested after being brutally assaulted, while the security forces fired into village houses. Up to date, no investigation has been opened into these two murders.

Since 1 December 2006, Mr. Thares Sodsiri, a well-known environmental activist in Ratchaburi, is missing. The police reportedly found traces of blood and three used 11mm handgun cartridges, two bullets and tire traces on the front lawn of Mr. Thares house. Investigators suspect that Mr. Thares may have been shot dead in his house and his body removed.

Mr. Thares has been conducting a campaign against illegal forest encroachment projects in Ban Kha sub-district. He had led villagers to guard the forest from influential figures seeking to mine and plant palm on more than 1,000 rai of forest land.

According to Mr. Thares' wife, just two weeks before the incident Mr. Thares had submitted a VCD showing widespread forest destruction in Ratchaburi by a local influential politician to the Natural Resources and Environment Minister Kasem Sanitwong as well as to the Minister of Interior, and requested them to sack the alleged politician. He was also due to testify in court against suspects in a forest encroachment case. The wife insists that local politicians behind illegal forest encroachment projects were behind her husband's abduction.

More generally, we would like to stress that martial law was installed in Thailand immediately after the military coup of 19 September, restricting freedom of the press and imposing serious limitations on public gatherings and political assembly. Political gatherings of more than five people are banned, carrying a penalty of six months imprisonment. The coup leaders, now calling themselves the Council for National Security, abolished the 1997 Constitution, which contains guarantees for basic rights, replacing it with an interim Constitution, which seriously weakens human rights protection. Under the interim Constitution, there are no mechanisms for holding the military authorities accountable. Furthermore, it gives substantial powers to the military.

In Vietnam, the authorities have continued their attacks on freedom of expression and religion, arresting cyber-dissidents, harassing Buddhist monks and other civil society activists. House arrest, police surveillance, suppression of communications, interrogations and physical assaults are amongst the methods used to isolate and silence human rights defenders and other political and religious critics. New legislation has been introduced to curb press freedom and use of the internet (Decree 56, July 2006), restrict the right to demonstrate (Decree 38, March 2005) and authorise "administrative detention" without trial (Decree 31CP, 1997). During the APEC Summit in Hanoi in November 2006, Security Police systematically arrested, detained, harassed and isolated human rights defenders, placing “No foreigners” signs outside their doors and prohibiting them from speaking to the foreign media and diplomats for the duration of the APEC Summit.

Following the mobilisation of the international community, many well-known human rights defenders have been released, but remain victims of daily harassment, intimidation and Police surveillance, often under house arrest, totally isolated, subjected to administrative harassment, etc. In addition, according to reports from former prisoners of conscience released in 2005-6, many less well-known human rights defenders are still in jail under extremely harsh conditions.

Mr. Nguyen Khac Toan was released in a government amnesty in January 2006, after having been sentenced to twelve years imprisonment and three years house arrest in 2002 on charges of "spying", for helping rural communities file petitions to the Vietnamese authorities protesting confiscated property and land. However, he is still obliged to serve his house arrest sentence, and suffers harassments and grave restrictions on his freedoms and rights. He is even prohibited to step outside his local area without a permit and risks a fine of VND 500,000 if he violates this ban. In August 2006, Nguyen Khac Toan was subjected to intensive interrogations along with four other Hanoi dissidents after they sought to publish an independent bulletin entitled "Freedom and Democracy". Security Police cut his telephone line, impounded his computer and confiscated personal books and papers without a warrant.

Mr. Pham Hong Son, a cyber-dissident, who was released seven months early in an amnesty on Vietnam’s National Day, 2 September 2006, has also been subjected to ceaseless harassments and intimidation since his release. Sentenced to 13 years in prison in 2003 on charges of “spying” for posting pro-democracy articles on the Internet, his sentence was reduced to 5 years thanks to strong international pressure. However, Pham Hong Son remains under house arrest for three years as part of his sentence under Article 38 of the Penal Code. In November 2006, during the APEC Summit in Hanoi, Pham Hong Son was brutally beaten by under-cover Security agents, who also posted signs outside his door marked: “Security area. No foreigners allowed”.

Human rights defender Venerable Thich Quang Do, Deputy leader of the banned Unified Buddhist Church of Vietnam (UBCV) remains a prisoner at the Thanh Minh Zen Monastery in Ho Chi Minh City without any justification or charge. He is under non-stop Police surveillance, forbidden to travel and all his communications are monitored. In November 2006, Thich Quang Do was awarded the 2006 Rafto Memorial Prize by the Norwegian Rafto Foundation for his contribution to the cause of human rights in Vietnam. Despite direct requests from the Norwegian Parliament and government to the Vietnamese Foreign Ministry, Vietnam refused to let him travel to Norway to receive the prize.

2. THE DEATH PENALTY

FIDH welcomes the recent abolition of the death penalty by the Philippines. However, despite the global trend towards the abolition of the death penalty, of all the ASEAN countries, only two have abolished the death penalty (Cambodia, in 1989 and Philippines, in 2006). Indeed, the South- East Asian group of countries is one of the main regions in the world in which the death penalty remains entrenched. Furthermore, when the death penalty is used, it is rarely carried out in conformity with the UN Safeguards guaranteeing the protection of the rights of those facing the death penalty.

In 2005 and 2006, executions were recorded in four ASEAN countries: Indonesia, Malaysia, Singapore and Vietnam. In the same period, in Burma, Laos and Thailand, death sentences continued to be issued, but no executions have been recorded. Brunei is considered a de facto abolitionist state, since death sentences have not been pronounced since 1957.

Death penalty is in force in Burma although not used for the past two decades. Under General 's rle, an army officer Ohn Kyaw Myint was executed for high treason.

Death sentences are handled for premeditated murder and high treason cases. For other serious crimes, the Penal Code and other statutory Laws mostly provide for life imprisonment. There are no public figures regarding yearly death sentences since it is classified as State secret. But as crimes of grave nature like murder have decreased it may reasonably be presumed that the number of death sentences is not very high. Capital punishment is not used against pregnant women and children.

Both political prisoners and persons condemned for ordinary crimes come within the ambit of death sentences if they are charged under murder or high treason. A 1993 legislation provides for the death penalty for narcotic drug cases under certain circumstances.

We would like to stress that detentions under 1975 State Protection Law sometimes end up in death in custody. In addition, disappearances and extra-judicial killings are new tools for the junta whereby trial and death penalty can be circumvented.

In Laos at least nine death sentences have been pronounced against drug traffickers in 2005. Were sentenced to death by the People’s Court: five members of an amphetamine trafficking gang in May 2005; two other Lao citizens in July on the same charges; and two Taiwanese men Woo Jaoxieng, 40, and Seun Siouyuan, 32, in November, after having been convicted of attempting to smuggle heroin in the Lao People Democratic Republic. Officially, Laos reserves the death penalty for drug offences only. The number of death sentences might be on the rise, considering the expansion of synthetic drugs in this country. However, information on the use of the death penalty in Laos is extremely scarce.

In Malaysia, Mohamed Amin Mohamed Razali, the leader of a martial art group Al-Maunah, was executed in August 2006. Mohamed Amin was convicted on the charge of waging war against the king for staging an arms heist in 2000 when they disguised themselves as soldiers and stole more than 100 weapons from two military armouries. In another worrying development, the Malaysian government amended the Penal Code by adding counter-terrorism provisions that provide for death penalty for terrorist activities that caused loss of life. Despite the protest from human rights groups and professional groups such as accoutants and lawyers, whom fear that they may be implicated on charges of prividing service under the new counter-terrorism measures which also carry death penalty, the Parliament passed the bill in July 2006 without amendments to address the civil society’s concerns.

Singapore is believed to have the highest per capita execution rate in the world. The legislation foresees mandatory death penalty for murder and drug trafficking, with no discretion in sentencing being allowed to the trial judges. The law presumes that a person caught in possession of prohibited drugs knows that he is in possession of such drugs, with the burden of rebutting that presumption on the person charged.

As noted by the UN Special Rapporteur on Extrajudicial Executions in his 2005 annual report, “the legislation of a significant number of States provides for the death penalty to be mandatory in certain circumstances. The result is that a judge is unable to take account of even the most compelling circumstances to sentence an offender to a lesser punishment, even including life imprisonment. Nor is it possible for the sentence to reflect dramatically differing degrees of moral reprehensibility of such capital crimes.” The last resolution on the question of the death penalty adopted by the UN Commission on Human Rights urges all states that still maintain the death penalty to ensure that it is not imposed as a mandatory sentence.

In addition, drug offences do not meet the threshold of ‘lethal or other extremely grave consequences’ and, hence, may not be among the most serious crimes according to the UN Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty and the ICCPR.

On 3 November 2006, Took Leng How, a Malaysian Migrant Worker, was hanged for murder.

In Thailand, although the formal judicial process which leads to the imposition of the death penalty is theoretically in accordance with the international legal standards, serious miscarriages of justice can result in condemnations to the capital punishment. 51 criminal offences in total, including offences against the state and serious drug offences, can result in the imposition of the death penalty, in spite of the fact that the UN Human Rights Committee asked Thailand to review the imposition of the death penalty for offences related to drug trafficking in order to reduce the categories of crime punishable by death. In addition, death row inmates are chained 24 hours a day, which may amount to torture and cruel, inhuman, and degrading treatment. This has been condemned by the UN Human Rights Committee in July 2005, who asked Thailand to stop such a practice immediately.

The death penalty is enforced in Vietnam for a wide range of economic as well as criminal and political offences. Executions are mainly carried out for drug trafficking offences. Execution is by firing squad. Statistics on the death penalty remain classified as a “state secret”, in violation of international law. Indeed, the United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions stated that “In a considerable number of countries, information relating to the death penalty is cloaked in secrecy. No statistics are available as to executions, or as to the numbers or identities of those detained on death row, and little if any information is provided to those who are to be executed and to their families. Such secrecy is incompatible with human rights standards in various respects. It undermines many of the safeguards which operate to prevent errors and abuses and to ensure fair and just procedures at all stages. It denies the human dignity of those sentenced, many of whom are still eligible to appeal, and it denies the rights of family members to know the fate of their closest relatives.”...“The countries that have maintained the death penalty are not prohibited by international law from making that choice, but they have a clear obligation to disclose the details of their application of the penalty.” This year, according to information compiled from state media, at least 59 people were sentenced to death in Vietnam, and 25 convicts were executed.

Recommendations: We call upon the 12th ASEAN Summit to launch an initiative aiming at the elaboration of an ASEAN Charter of fundamental rights as the guiding principle of regional integration.

In addition, we call upon ASEAN Member States - To include the issue of human rights, and in particular the situation of human rights defenders as well as the question of the death penalty, as a fixed item on the ASEAN Summit agenda. - To ensure that the important role played by human rights defenders in favour of democracy, freedom and development is acknowledged in the final statement of the Summit - To appoint an independent expert in order to follow-up the situation of human rights defenders in Member states and report to the next ASEAN Summit - To appoint an independent expert in order to document the use of the death penalty in ASEAN Member states and identify recommendations with the view to reduce its use in the region.