ASIAN human rights defender 1 Contents Business and Human Rights Human Rights and Environmental Violations of the POSCO Project in Orissa, India...... 4 The Role of NHRIs in Business and Human Rights: the Case of NHRCK...... 7 FORUM-ASIA is a membership-based regional Kuala Lumpur Guidelines for a Human Rights human rights organisation committed to the promotion Approach to Economic Policy in Agriculture...... 8 and protection of all human rights including the right to development. Democratisation FORUM-ASIA was founded in 1991 in Manila Advancing Democratic Governance in Asia: and its regional Secretariat has been located in Bangkok Challenges and Way Forward...... 10 since 1994. At present, FORUM-ASIA has 47 member Despite Election, Burma's Sham Constitution organisations across Asia. Guarantees Military Control...... 12 Taiwan: Violence Overshadows Big Change Head Office in Local Governance...... 15 Rue de Varembé 1, 2nd Floor, 1202 Geneva, Ultra-Nationalism in Mongolia Switzerland and the LGBT Community ...... 17 Democratization and the Role of HRDs Regional office in Korea...... 19 Room 12-01 12th Floor., Times Square Building, Freedom of Expression in east Asia: 246 Sukhumvit Road, Between Soi 12-14, On-line Censorship Rising...... 22 Klongtoey, Klongtoey, 10110 Bangkok, Thailand Country Focus Tel: +66 (0)2 653 2940-1 Fax: +66 (0)2 653 2942 Victims wait for Justice...... 26 Disaster Highlights Discrimination of Religious [email protected] • www.forum-asia.org Minorities...... 28 Asian Human Rights Human Rights Defenders DEFENDER Gendered Challenges in Defending Human Rights...... 29 The Asian Human Rights Defender is the newsletter Irom Sharmila's Hunger Strike issued every four months by the Asian Forum for Human Rights and Development (FORUM-ASIA). to Repeal the AFSPA...... 33 Editors: Edgardo P. Legaspi • Yap Swee Seng UN Human Rights Council Review 2011 Tailoring the Human Rights Council’s Response Staff Contributors: Emerlynne Gil • Sejin Kim • to Situations of Violations of Human Rights...... 36 Sohoon Lee • Surya Deuja Survey on the UN HRC: Guest Contributors: Cheery Zahau • Mary Jane Real • Views from the Ground...... 40 Wonsuk Park 7 Issues to Strengthen the Universal Periodic Review...... 42 Design and layout: Edgardo Legaspi and Wattana Sahaikaen

Cover design: Sohoon Lee Advocacy On the Rules of Procedure, ASEAN Declaration of This publication is NOT for sale. It is distributed to our Human Rights and the Work Plan of AICHR...... 44 members and partners only, and NOT for commercial 8 Points for the APF...... 46 purpose. Contents of this publication may be freely quoted or reproduced, provided acknowledgement is made. Features Improved Socio-economic Conditions Promote Respect The views expressed in this publication may not for Cultural Rights...... 47 necessarily reflect the position of FORUM-ASIA. Recognizing the Role of Defenders Comments and contributions are welcome. in Strengthening and Building a Democracy...... 50 FORUM-ASIA wishes to thank the Swedish International Development Cooperation Agency (SIDA) for their support for this publication.

2 Vol. 6 No. 2 • december 2010 Message from the Secretariat

Greetings from Bangkok!

I am happy to share with you the latest issue of the Asian Human Rights Defender.

The collection of articles for our theme in this issue--building democracries-- aims to reflect the various continuing challenges relating to democratisation in the region. This issue has been a central concern of the organisation when FORUM-ASIA was founded some 20 years ago in 1991, when dictatorships dominated the helms of governments in the region.

Today, Asian political systems are very diverse, and most suffer from a democ- racy deficit. These include single-party governments in China, Laos, Singapore and Vietnam; monarchies in Brunei and Bhutan; and the military dictatorship regime in Burma. On the other hand, countries with multi-party systems--such as Pakistan, Bangladesh, India, Sri Lanka, Cambodia, Malaysia, Thailand and the Philippines--are generally saddled by weak democratic institutions, deeply entrenched corruption and the lack of will to move forward towards genuine democratic reform. Even newly de- mocratised countries such as Nepal, Maldives, Indonesia and Timor Leste are facing serious difficulties in the transition period to restore peace and the rule of law while others are confronted with challenges of non-state actors such as fundamentalist groups and former armed groups.

Naturally, attention has been on top-level concerns, rather than on the currents, concerns, forces and ideas that exist in societies. This issue of AHRD presents some of these issues that illustrate how complex democratisation is in practice: beyond ensur- ing free and fair elections (Burma), effective and efficient local governance (Taiwan), the role of human rights defenders (Korea), discrimination (Mongolia) and freedom of expression.

In this context, we have seen it fit to draw attention to these various issues that ac- company democratisation. Organisationally, democratisation will be a central focus of FORUM-ASIA’s advocacies in its next three-year plan. As we begin our 20th year in 2011, we invite our members and partners to continue our reflection to improve our contribution towards democratisation in the region.

With the other articles on our other advocacies at FORUM-ASIA, we hope this is- sue would, in one way or another, help you understand our work and mission to build Asian solidarity to promote and protect all human rights for all. Thank you to all our contributors.

Yap Swee Seng Executive Director

ASIAN human rights defender 3 Business and Human Rights

Fact Finding Report Human Rights and Environmental Violations of the POSCO Project in Orissa, India

On June 22, 2005, the Pohang POSCO project villagers. Protests Iron and Steel Company (POS- CO), having taken interest in the On 19 February 2008, a group of After the first fact-finding mis- abundant minerals of Orissa, India, 18 Korean civil society organisations sion, violence took place between signed a MOU (Memorandum of held a press conference in front of the two sides on 21 June, during which Understanding) with the Orissa gov- POSCO headquarters building. They some villagers caused the death of an- ernment to develop a 12 million ton pointed out that POSCO project was other villager who had fought against capacity steel plant, mining project, moving ahead without the villagers' the POSCO project. Since then, the and construction of related social participation and agreement, and police have continuously blocked the overhead capital based-facilities. asked POSCO to respond to this alle- anti-POSCO project villages. No gation. On the same day, the POSCO one, including State government of- As 3,500 out of the total 4,000 countered the group with their own ficials nor POSCO officials, has been acres required for the steel plant is press release. allowed to enter the villages. classsified as public land, POSCO and the Orissa government had as- To verify the counter-arguments On 26January 2010, anti-POSCO sumed that the project could be released by POSCO, Korean civil so- project villagers began raising their launched without any difficulty or ciety conducted the fact-finding mis- voices concerning the visit the of opposition. sion from 26 April to 6 May 2008. Korean President Lee Myung-bak to They found that the villages opposing the POSCO steel plant project area. Among the three Gram Pachayats the POSCO project did not demand Korean civil society also released a (representative bodies elected by the compensation of the land but wished statement demanding that Korean villagers) of Dhinkia, Nuagaon and to remain on the land on which the enterprises including POSCO should Gadakujang, a portion of the land villagers have been depending on for respect human rights while establish- was expected to be contributed for their livelihood, preserving their tra- ing their investment in India, giving the POSCO project. Because of this, ditional way of living. In addition, it particular attention to President Lee's the villagers of Dhinkia started op- was discovered that Khandadhar, the visit to India. posing the POSCO steel plant proj- area targeted for the mining project ect. In November 2007, violence of POSCO, has been confronting se- By 15 May 2010, the villagers broke out between pro- and anti- rious environmental destruction. had continued their protest for four months had to face the violent sub- jugation by the police force who had This is a modifed version of the factfinding mission report of the Korean House of Inter- national Studies (KHIS). The original and full text version, can be downloaded at been sent by the State government. http://forum-asia.org/2010/Fact_Finding_Report_on_POSCO_final.pdf

4 Vol. 6 No. 2 • december 2010 Business and Human Rights

Villagers march against the POSCO project. (Photo: www.orissaconcerns.net)

More than 100 villagers were report- clearly proves that POSCO, which vice on the cancellation of the forest edly injured. has been mainly targeting the abun- clearance given to the POSCO proj- dant minerals of Orissa for the proj- ect. The Saxena Committee report Korean civil society immediately ect, has failed to even obtain the li- pointed out that the tribes and the released a statement denouncing the cense for mining. forest dwellers who have been living police violence against the villagers. in the areas for more than three gener- On 25 May, Korean civil society held The ScheduledT ribes and Other ations, or 75 years, were to be protect- a press conference in front of the Traditional Forest Dwellers (Recogni- ed by the Forest Rights Act; and that POSCO headquarters and directed tion of Forest Rights) Act 2006 that it was necessary in accordance with their inquiry to POSCO, which the protects the forest as well as the vil- the Forest Rights Act for POSCO to latter did not respond to. lagers living in the forest, mainly the get their agreement and participation tribes of India, was passed in Decem- in order to launch its project, which Legal Issues ber 2006 and entered into force in POSCO did not. The Orissa govern- December 2007. Based to the Forest ment strongly denied what the Saxena In July 2010, the Orissa high Rights Act, the Saxena Committee, Committee report said. court rejected the State government's which had conducted a survey in July decision to allot an iron ore license 2010 on the areas to be allotted for Later, the Meena Gupta Commit- in Khandadhar hills in Sundergarh the POSCO project, reported that the tee conducted a research on the areas district to the POSCO. The Orissa State government as well as POSCO for two days from 27 to 28 August, government filed an appeal to the had infringed the Act. Accordingly, and this committee report released on Supreme Court. Apart from the on August 6, 2010, the Ministry of October 18, 2010 raised similar issues judgment of the Supreme Court, it Environment and Forests gave an ad- to the Saxena Committee report.

ASIAN human rights defender 5 Business and Human Rights

The Second Fact Finding Mission sisted during the interview with the plant construction could be initiated, was conducted on 28 August to 5 fact-finding mission that the villag- it is expected that POSCO will face September 2010 to verify the find- ers who were living in the areas of more difficultyin the mining project. ings of the Saxena report, find out the proposed POSCO steel plant the progress of the POSCO proj- construction site have been residing Recommendations ect, and gauge the villagers’ level of there less than 75 years and accord- agreement towards the project. ingly are not entitled to be protected • The Orissa government, which under the Scheduled Tribes and Oth- has been promoting the develop- Findings er Traditional Forest Dwellers (Rec- ment project without consulta- ognition of Forest Rights Act) 2006. tion and discouraging the affected 1. The villagers' viewpoints regard- villagers' participation, should ing the POSCO project To the contrary, Mr. Prashant provide compensation and apol- Paitaray, the spokesperson of the ogy to the villagers who have been It was observed that the number POSCO Pratirodh Sangram Samiti vicitms of human rights violations of anti-POSCO project villagers is (PPSS), provided documents sub- and exclusion. much greater than the number of mitted to the Saxena Committee as • As experienced by fact-finding those who are in favour of the POS- well as the Meena Gupta Committee, team, who were taken to the po- CO project. According to the leader proving that the villagers are indeed lice station and investigated im- of the anti-POSCO movement, Mr. beneficiaries protected by the For- mediately after visiting the anti- Abya Sahoo, not only do most of the est Rights Act 2006. In addition, it POSCO project villages on 30 the villagers of Dhinkia oppose the was observed that the Orissa govern- August, the police should stop the project but also of Nuagaon. Fur- ment had so far been ignoring and suppression and surveillance of thermore they expressed determina- concealing the opposing views raised the anti-POSCO project villagers, tion not to leave their land regardless by the anti-POSCO project villagers. which violates their human rights. of the amount of compensation from Because of this, the POSCO project • The Orissa government should ac- POSCO, which had been suggested can be described as legally as well as knowledge that the POSCO proj- suggested at 1.7 million rupees (46 morally flawed. ect cannot be successfully launched million Korean won, or approxi- without the villagers' participation mately USD 41,343) for each acre of It was not only the issue of alloca- and agreement, and it is highly rec- private land. tion of land for the POSCO project, ommended to thoroughly recon- but also the issues of environment sider the POSCO project. Pro-POSCO project villagers were and the villagers' rights that were • Starting with the POSCO project, also not satisfied with the compensa- not properly discussed and sorted the Orissa government should re- tion level proposed by the POSCO. out. POSCO’s mining project in the spect and observe the principles of POSCO India had acknowledged Khandadhar hills (Sundergarh dis- transparency and democratic con- that pro-POSCO project villagers trict) also faces the issue of impact on sultation, including the villagers’ raised some issues about the amount the forest and its residents. Although participation, in any development and the manner of compensation POSCO was able to get the mining project. that had been proposed. On the license in Khandadhar, it is highly • TheM inistry of Environment and other hand, the representative of pro- possible that the issue of contraven- Forests of India should immedi- POSCO project villagers, Anandi tion of the Forest Rights Act will also ately respect and fulfill the rec- Rout, said that pro-POSCO villag- be raised. As verified through our first ommendations proposed by the ers welcome the POSCO project and fact-finding mission, Khandadhar is Saxena Committee, the Meena wish to obtain economic benefits predominantly occupied by the local Gupta Committee and the Forest from the project as soon as possible. tribes who have been confronting se- Advisory Committee (FAC), a key rious environmental destruction. This committee of the Ministry of En- 2. POSCO's contravention of the implies that the Forest Rights Act will vironment and Forests. Forest Rights Act 2006 be strictly applicable. Given the fact • The central government of India that POSCO India ascertained that also should immediately conduct Priyabrata Patnaik, a chairperson the main purpose of the steel plant a thorough re-survey and re-ex- of the Orissa Industrial Infrastruc- construction was to acquire the iron amination of the entire POSCO ture Development Corporation, in- ore by mining, even though the steel project.

6 Vol. 6 No. 2 • december 2010 Business and Human Rights

The Role of NHRIs in Thirdly, growing concerns have been expressed about the recent changes in the NHRCK. Korean civil society has Business and Human Rights: doubt if the NHRCK can effectively keep an eye on the human rights-related ac- tivities of the state and the business and the Case of NHRCK urge them to take appropriate actions in order to protect and promote human rights. The NHRCK began to take note This article was originally presented by KHIS during the NGO parallel meeting on the 10th International Conference of National Human Rights Institutions of the importance of business and hu- on “Business and Human Rights” in Edinburgh, Scotland on 8-10 October 2010. man rights issues and launched research initiatives on this topic in 2008. The step, though relying on outsourcing in the be- Korean House for International Soli- violations by companies except ‘discrimina- ginning, was expected to develop into darity for Human Rights and Peace (here- tion’ cases. But it has been granted enough the advanced level. inafter the KHIS), an advocacy group in power to research human rights issues Seoul, Korea, aims at protecting human and situations and provide policy recom- However, since its forced downsiz- rights by closely watching activities of mendations. Disappointingly, the NHRCK ing and appointment of ineligible chair- overseas Korean companies. We moni- did not take any measure to monitor and person in 2009, there have been no signs tor human rights-related performance prevent possible human rights violations of the NHRCK making any effort to ap- of these Korean companies abroad, con- by Burma business of related companies. point and cultivate experts on business duct investigations including field visits, It shows not only that the NHRCK does and human rights.Instead, the NHRCK inform human rights abuses by compa- not have any mandate to offer remedies seems to support the so-called ‘resource nies to the public, and support victims for human rights violations committed by diplomacy’ policy of the present adminis- of such violations. Besides this, the KHIS overseas Korean companies but also that tration which degrade human rights into works on improving understanding and it has no interest or concern to prevent accessories of the policy. If so, as far as participation of the public on the issue human rights violations. business and human rights be concerned, of business and human rights. It has held the NHRCK is in danger of becoming an workshops on the issues and developed Secondly, in October, 2008, the KHIS an alibi of the administration or a mere human rights performance assessment submitted a complaint, in cooperation with window-dressing as a national institution tools applicable to business. In particular, Shwe Gas Movement group and the Earth that exists but is not functioning. the Burma Shwe Gas Movement, which Rights International to the Korean Ministry the KHIS has been undertaking for the of Knowledge and Economy as the Nation- Lastly, case study through NHRCK’s last decade, shows significant points to al Contact Point of the Organisation for experience proposes some lessons to be considered regarding the works and Economic Co-operation and Development enhance NIs’ responsibilities in business roles of the National Human Rights (OECD NCP). However, the Ministry did and human rights: to authorize NIs to in- Commission of Korea (NHRCK) and not consider the complaint. A number of vestigate alleged human rights violations other National Human Rights Institu- Korean civil society organizations criticized by companies generally and to expres- tions (NIs) to business and human rights the Ministry for not being positive enough sively articulate the provision on the em- issues. in dealing with OECD NCP process, de- powerment in establishing laws; to en- spite the OECD’s standing Guidelines for hance internal capacities of NIs to treat Firstly, in April, 2008, the KHIS, in Multinational Enterprises. companies-involved human rights issues; cooperation with other Korean NGOs, and to guarantee independence of Nis Burmese activists in Korea and Interna- By Article 19.1 of the NHRCK estab- and to appoint eligible chairperson and tional Human Rights Clinic of Harvard lishing Act, the NHRCK has the author- members, these are prerequisites for ef- University submitted a petition of “Re- ity to recommend related governmental fective performance of NIs in the pro- quest for Policy Recommendation and institutions to conduct effective remedies motion and protection of human rights. Investigation” to the NHRCK on the for human rights violations. Nevertheless, Besides, NIs should work together for issue. The NHRCK dismissed it, stating the NHRCK has made no action with monitoring human rights abuses by mul- that “the contents of a petition do not regard to OECD NCP operations. Thus, tinational corporations and providing fall within the scope of the matters sub- the NHRCK cannot be free from criti- remedies for the victims. Here, ICC is ject to investigation by the Commission” cism that it is abandoning opportunities to expected to present practical and specif- under Item 1, Clause 1, Article 32 of the contribute to encouraging governmental ic means for disclosure and distribution NHRCK Act(hereinafter establishing organizations which have monitoring and of related information, urgent actions law). The NHRCK has not been given supervising authority on Korean overseas and working guidelines. the authority to investigate human rights companies to protect to human rights.

ASIAN human rights defender 7 Business and Human Rights

An Overview

Kuala Lumpur Guidelines for a Human Rights Approach to Economic Policy in Agriculture

In the context of an unparalleled The Kuala Lumpur Guidelines were jointly elaborated by the following organizations: convergence of food, energy, climate, FORUM-ASIA , Center of Concern (US), Centro de Estudios Legales y Sociales-CELS (Argentina), Desarrollo, Educación y Cultura Autogestionarios-DECA Equipo Pueblo financial, ecological and economic (Mexico), International Gender and Trade Network, International Network for Economic, crises, a group of human rights ad- Social and Cultural Rights-ESCR-Net, Kenya Human Rights Commission (Kenya), Land vocates of various fields of exper- Center for Human Rights (Egypt), Southeast Asian Council for Food Security and Fair tise from every region of the global Trade-SEACON (Malaysia), Southern & Eastern African Trade Information & Negotiations Institute-SEATINI (Uganda), Terra de Direitos (Brazil) and Women and Law in Southern South came together to develop the Africa (Zambia). ). The Kuala Lumpur Guidelines are one concrete outcome of a larger Kuala Lumpur Guidelines for a Hu- pilot project co-coordinated by ESCR-Net and Center of Concern, entitled Bridging man Rights Approach to Economic Trade, Investment, Finance and Human Rights: A Pilot Project on Agriculture. Policy in Agriculture. This Overview provides a brief account of the ob- national human rights law in relation upholds human dignity. Founded in jectives, context and content of the to economic law and policy as per- the centrality and primacy of human Guidelines. taining to agriculture. rights law and norms, this section lays out how the principles of univer- Background Part I: Guiding Principles for sality, interdependence, indivisibility, a Human Rights Approach to non-retrogression, non-discrimina- The three-part Kuala Lumpur Economic Law and Policy tion, maximum available resources, Guidelines are designed as a tool minimum core content, participa- to provide basic information and a Human rights provide a clear and tion and accountability relate specifi- methodology for use by anyone con- universally-recognized framework cally to economic law and policy. cerned with ensuring the primacy founded in international and domes- and centrality of human rights of tic law for guidance in the design, Part II: Human Rights Actors, those affected by trade, investment implementation and monitoring of Issues and Threats in Agriculture and finance rules as well as fiscal, economic policies. monetary and other economic poli- Agriculture provides economic cies related to agriculture. The Kuala Part I of the Kuala Lumpur Guide- activity and sustains livelihoods for Lumpur Guidelines aim to contrib- lines presents the general human more than a billion people in the ute to the further development, ap- rights principles available for guid- world, significantly contributing to plication and interpretation of inter- ing economic policy in a way which rural development, as well as setting

The full text of the Kuala Lumpur Guidelines can be downloaded at http://www.escr-net.org/usr_doc/KualaLumpurGuidelines-Final-Full.pdf

8 Vol. 6 No. 2 • december 2010 Business and Human Rights

alyzed. UN agencies, the World Trade Organiza- tion, multilateral develop- ment banks, international financial institutions, regional development banks, regional economic integration programs, and regional political alliances all figure prominently here. As both members and beneficiaries of these organizations, States' du- ties to human rights, it is argued, supersede other considerations. As both decision-makers over and/or parties to a loan, grant, trade or other eco- nomic agreements, States must uphold the primacy Workers clear a forest to make way for a new plantation in Indonesia (Photo: Building and Wood of human rights law and Workers’ International) principles. Moreover, in- the stage for attaining food security chosen, the way they are designed, ternational economic policies and and realizing human rights in rural the way they are implemented, and practices must not affect the ability and urban areas. the way their implementation is of States to discharge their human monitored over time. State's human rights obligations at home. Part II of the Kuala Lumpur rights obligations-not other private Guidelines describes in context the or investment commitments-must be Lastly, the Kuala Lumpur Guide- crucial and multidimensional role the central reference point in decid- lines explore what a human rights- of agriculture in providing a neces- ing upon the correct mix, type and centered economic policy in agricul- sary foundation for the enjoyment intensity of economic policy tools in ture would look like extraterritorially, of a plethora of human rights-from agriculture. beyond borders. While the primary the right to work to the right to duties of governments rest within food to the right to culture. The key Part III of the Kuala Lumpur their borders, and while the funda- state and non-state actors in agricul- Guidelines starts by describing a mental norm of State sovereignty ture are identified, and the existing number of economic policy tools af- must be respected, the obligations to threats to realizing human rights in fecting agriculture which bears inti- promote, respect, protect and fulfill agriculture-from market concentra- mately upon a country's capacity to human rights are not circumscribed tion to genetic modification to agro- meet its human rights obligations. by national borders alone. States also fuels-are briefly discussed. have duties of international coop- The Guidelines then go on to eration and assistance in economic Part III: Human Rights Obligations draw the analytical and practical policy. The KualaL umpur Guidelines and Economic Policy Tools in links between the human rights prin- conclude by exploring this shared re- Agriculture ciples and obligations in economic sponsibility to work actively towards policy as they concretely manifest in a just and equitable trade, investment Economic policy is public policy. agricultural policy domestically and and financial system which complies Fiscal and monetary policy as well as internationally today. In this con- with international human rights laws trade, investment and finance poli- text, governments' human rights ob- and principles, and which provides an cies generate positive or negative out- ligations in economic policy within enabling environment in the full real- comes for human rights in agricul- inter-governmental organizations ization of human rights in agriculture. ture depending on the tools that are which impact agriculture are also an- (Source: ESCR-Net)

ASIAN human rights defender 9 Democratisation

Advancing Democratic Governance in Asia: Challenges and Way Forward

Final statement of the NGO parallel meeting to the Bali Democracy Forum 8-9 December 2010

We, members of the non-govern- honor the long tradition and history of governments and their instrumen- mental organizations and people’s of the peoples’ movements in Asia in talities. Human rights advocates in all movements from 13 Asian countries their continuing struggle and quest countries in Asia continue to face the gathered together to critically dis- for democratic and just societies. We risks of personal safety and security in cuss and reflect at the NGO Parallel pay special tribute to our fellow ad- carrying out their activities towards meeting to the 3rd Bali Democracy vocates who have sacrificed their lives the establishment and enhancement Forum; the role of human rights de- for the cause of democracy, human of democracy. fenders and people’s movement on rights, justice and peace. “Advancing Democratic Governance We affirm the values and prin- in Asia: Challenges and Way For- Despite perceived rapid economic ciples of democracy. We believe that ward”, in Bali, Indonesia December growth in some Asian countries, we promotion of stability and security 8-9, 2010. remain concern that corruption has in the region is dependent on the ac- been one of the major challenges in tive and meaningful participation of We congratulate the continuing the realization of good governance and its peoples, respect and realization of initiative of the Government of In- democracy, especially on economic, democracy and the rule of law, pro- donesia and the local government of social and cultural aspects. Civil so- fessionalism in the bureaucracy, fair- Bali for hosting and institutionalizing ciety organizations and journalists, ness in the administration of justice, the Bali Democracy Forum (BDF) as playing the role of “whistle blowers” independence of the judiciary and an a process in promoting regional and against corruption have been sub- environmentally sound sustainable international cooperation in the field jected to systematic attacks including development for all. of democracy and political develop- killing, threats and harassments, and ment amongst Governments in Asia fabricated accusations to deter them We note that the fundamental since 2008. from monitoring the performances democratic rights and freedoms such

We receive with enthusiasm the positive developments in many Asian States in opening up possibilities for and taking with great interest the workings of democracy in the region. In the same light, we also commend FORUM-ASIA and AJI-Indonesia for jointly organizing the 1st NGO Parallel Meeting to the 3rd BDF for the timely opportunity for Human Rights Defenders (HRDs) in Asia to share experiences, struggles and aspi- rations for democracy and peace; and to strengthen solidarity between and The Bali Democracy Forum (BDF) is an initiative of Indonesia aimed at the promotion of regional international cooperation in the field of democracy and political development among social movements. amongst countries in Asia. Among the heads of state who attended the thirdh BDF are Timor Leste Prime Minister Xanana Gusmao, South Korea President Lee Myung-bak, and As we go through this meeting, we the Sultan of Brunei Hassanal Bolkiah. (Photo: www.presidenri.go.id)

10 Vol. 6 No. 2 • december 2010 Democratisation

as freedom of expression, association task to end the culture of impunity mocracy and constraints in the and assembly are undermined in the which has made a mockery of our es- promotion of peace and stabil- pretext of protecting national secu- tablished democratic institutions. ity of the Asian region including rity and “war on terror” in almost gross violations of basic rights, all countries in the region. We are We believe that the main theme of acts of impunity, hunger, unem- alarmed that Asian governments are the ThirdB ali Democracy Forum on ployment, and violence against introducing more laws that restrict "Democracy and the Promotion of women and children; and obstruct the works of advocates Peace and Stability" provides oppor- and human rights defenders and tunity for the Asian governments to • To establish national and regional their organizations, which contradict consider and generate dialogue and mechanisms for dialogue and co- the letter, and intent of the Bill of discussion on good governance for operation with various stake-hold- Rights and other international hu- the people, by the people, and of the ers towards ensuring democracy, man rights instruments which they people. That, “democracy and the rule of law; respecting, promoting ratified. promotion of peace and stability” ne- and realizing human rights and cessitates inclusion of all stake-hold- development for all; We assert that human rights must ers including the broad civil society be at the center of democratization and women’s participation in the • To ensure independence of judi- and the peace-building processes consultation and decision making ciary; accountability and trans- in Asia. We are convinced that po- processes; the right to information, parency of the executive, and the litical compromises at the expense of freedoms of opinion and expression, legislative; in fostering democracy peoples’ basic rights and democratic of thought, conscience and religion, and addressing human rights is- practices have no place in a commu- of peaceful assembly and association. sues including corruption in the nity of caring and dignified societies. prosecution of cases, enactment We believe that rule of law can never Hence, we would like to make fol- and implementation of laws, poli- be established as long as perpetrators lowing recommendations: cies and guidelines; of violations remain free. Experiences show that failure to address impunity • To recognise the role of civil so- • To establish a mechanism within leads to perpetuation of injustice, in- ciety as partners in advancing de- the Bali Democracy Forum for equality before the law, and denial of mocracy and human rights; and meaningful dialogue, sharing and people’s rights to effective remedies. address pressing human rights is- eventual participation of civil so- Towards this end, it is our urgent sues which impose threats to de- ciety of the region to the process.

ASIAN human rights defender 11 Democratisation

Despite Election, Burma's Sham Constitution Guarantees Military Control

by Cheery Zahau Human Rights Education Institute of Burma

It is a critical time in my coun- ment will have to adopt the sham phone networks during periods of try’s history. Military juntas have 2008 Constitution, which guaran- social unrest. ruled Burma since 1962, and today tees military control over all sectors it is called the State Peace and De- of government. In the controversial In democratic countries, after a velopment Council (SPDC), which constitution there is no mention of parliamentary election, the govern- contines the reign of violence and federalism, despite federalism being ment allocates members for different the severe repression of dissidents, an important way of managing the ministries and committees. With this ethnic armed-resistance groups, and ethnic conflicts in Burma, a coun- carefully designed Constitution, Bur- pro-democracy leaders. try comprising eight major ethnic ma’s new ministries and committees groups and many others that togeth- will be solely influenced by military On Sunday, 7 November, the er constitute 30 percent of the the personnel, which means we cannot SDPC will hold a general election, population. The 2008 consitution expect political, social, or economic the first since 1990 when they reject- also requires the chief minister - the policy changes. The power of the mil- ed the result of National League for head of each region or state - to an- itary will not be challenged by these Democracy's (NLD) landslide vic- swer to the president. Additionally, two parliamentary houses, which do tory and placed Daw Aung San Suu the chief ministers will now be ap- not possess any real power because the Kyi – a leader who has the potential pointed by the president. State gov- constitution reserves 25% of parlia- to lead the country forward - under ernments also lose control over their mentary seats for military personnel, house arrest. Because of this, she is natural resources, ethnic literature, while any major policy change will re- unable to contest the elections. and culture to the central govern- quire a vote of more than 75 percent ment’s control. of the members of parliament. There- At first glance, an election seems fore, the Army will still control the to offer new hope for the people of The most powerful decision mak- decisions. The fact that the Defense Burma who have been fighting for ing body, according to the 2008 con- Ministry, Security Ministry, Home democracy for so long. Yet, while the stitution, will be the National De- Ministry, and Border Affairs Minis- authorities claim the elections will fense and Security Council (NDSC), try will be controlled by the president be free and fair, the political space which consists of 11 members with further incidates that the parliamen- is tightly controlled, and opponents six from military personnel. This tary houses do not possess any real of the ruling regime are routinely body along with the president has power to decide on these important harassed, detained, tortured, and im- the mandate to declare a state of national policies. prisoned. emergency anytime, which allows for the immediate removal of all basic The president also has direct con- Constitutional limits human rights by the Constitution. trol over the judicial system, and The SPDC is already known for therefore there will be no indepen- Furthermore, the new parlia- cutting off internet access and cell dent judiciary. The chief justice will be appointed by the president and Note: This article originally appeared on 2 November 2010 inThe Women’s International the president can denounce the po- Perspective, www.thewip.net

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Exiled Burma activists protest in New Delhi to urge the Indian government to reject the sham election. (Photo: Burma Partnership) sition of the chief justice whenever This violent behaviour will continue under the Convention on the Elimi- he or she likes. The Army will have and the protection of human rights at nation of All Forms of Discrimina- their own judiciary system called the the domestic court level will remain tion Against Women (CEDAW), Court Martial, which is a contradic- non-existent. which it ratified in 1997. tion to transparency and account- ability before the law. One-sided election laws Electoral laws are separated into six categories, none of which promote Articles 444 and 445 of the Consti- Burma's electoral laws were an- the rights of the candidates or political tution grant the military blanket im- nounced on 8 March 2010, which parties. These elections will not fulfill munity for past, current, and future is ironically International Women’s the mandate of the Universal Declara- human rights violations committed Day, and elsewhere a day when many tion of Human Rights that “the will against civilians, including war crimes governments and NGOs around of the people shall be the basis for the and crimes against humanity. System- the world promise and pledge to authority of the government.” atic sexual violence against women is promote women’s political partici- rampant; forced labour is widespread; pation. However, Burma’s electoral Candidates and parties cannot the use of child soldiers continues; laws do not promote women’s politi- criticize the Army, the Constitution, and over 2,100 political prisoners re- cal participation. There are over 70 or the State. So, it is not a real elec- main behind bars. In the fall of 2007, women political prisoners in Burma. tion because people cannot debate. Burmese citizens and Buddhist clergy By failing to promote women’s equal Freedom of assembly and associa- were shot while peacefully protesting. participation in politics through the tion are fundamental components In addition, monasteries were raided, electoral laws or constitutionally, the of democratic elections. All parties and monks were beaten and arrested. regime fails to comply its obligations should have the right to campaign

ASIAN human rights defender 13 Democratisation

Unfair contest: and documentation, and political A candidate of the empowerment. Inside the country, opposition party National Democratic the people will once again voice their Force campaigns in anger and dissatisfaction with the Rangoon. Aung San SPDC by boycotting the polls, cam- Suu Kyi’s party, the paigning against the elections, cast- National League for Democracy called ing invalid votes, voting for opposi- for a boycott of the tion candidates, and other means. election. (Photo: www. asiapacific.anu.edu.au) Inside Burma, some have dared to take risks to contest the election, knowing they are playing with a ma- nipulative and dangerous regime.

freely in the lead up to the elections, of dissidents, journalists, members of It is now time for the interna- to hold meetings and rallies to ex- the political opposition, and anyone tional community, particularly gov- plain their policies to potential vot- deemed a threat to the regime‘s power ernments, to show their commit- ers, and to persuade voters to elect will continue. Conflicts and military ment to genuine democratic change. them to power. Vital to this is the tensions in ethnic areas will result in The general elections will not bring right to freely criticize the current more refugees and internally displaced democracy, peace, or stability to ruling party. persons. Military personnel and their Burma. Instead it will be a step back- business cronies will continue to gain wards that will only strengthen and While the registration process is privileges through legislation passed cement military rule. It is shameful short, candidacy fees are high, and in favor of the elite. for government officials to sit and publicity is restricted for most politi- talk with these generals who are not cal parties. Meanwhile, the military Outside of Burma, the Burmese really elected by the people. party, the Union Solidary and Devel- diaspora will continue to raise aware- opment Party (USDP) has access to ness to people at home about the The international community the entire country, including access constitution and elections through should expose the elections for what to public resources such as schools, community development, capacity they are—a sham—and not recog- community halls, and health care building, human rights education nize the results. centers. USDP even uses interna- tional humanitarian assistance to buy votes from the people. Ethnic parties By the Numbers: 7/11 Election Results are extremely suppressed due to their firm position to maintain their de- 883 seats (76.52%) won by the Union Solidarity and Development Party, fense armies. the SPDC proxy party. Breakdown: 259 seats (79.69%) the People’s Assem- bly (Lower House), 129 seats (76.79%) in the National Assembly (Upper House) and 495 seats (74.89%) of Division and State Parliaments. Post-election outlook 25% of the total parliament seats are reserved for the military. together After the elections, Burma will with the USDP, they can unilaterally amend the constitution and elect the face the same social and economic president. gap between military elites and the rest of the population who remain in 15.69% or about 181 seats were won by candidates from ethnic- dire poverty. It will be extremely dif- based parties. ficult to create a larger middle class within this political environment. 63 seats (5.64%) were won by the National Unity Party, the second largest vote winner, which is also pro-junta The corrupt and arbitrary tax system will remain in place, and the laws that 16 seats (1.39%) were won by the National Democratic Force, the criminalize peaceful dissent and free- largest opposition party to win seats. dom of expression will not be chal- lenged or removed. The repression Source: Burma 2010 Election Recap by ALTSEAN-Burma

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Taiwan Elections Violence Overshadows Big Change in Local Governance

Yeh Ting Chun Taiwan Association for Human Rights

It is estimated by the United Na- • As a small island state, the new Voters confirmed status quo tion that by 2050, the metropolitan design could prevent Taiwan’s lo- population will comprise over 70% cal governance system being too Taiwan’s society has been long di- of the global population. In Taiwan, divided and avoid fatigue upon vided by the two political ideologies, the revolution of local government citizens caused by routine elec- Democracy Progress Party (DPP), system which is generally referred as tions in local and national levels recognizable through its green colors, “upgrade of the five municipalities” held almost every year; and the Kuomintang (KMT, or the responded to the global tendency of Chinese Nationalist Party), known “metropolitanization”. • before, powers were in the hands through its blue party colors. of a big central government where Before the amendment of the Lo- there was very little space for small The election only confirmed the cal Government Law, there were only local government structures to ini- status quo, with no major shifts in two municipalities in Taiwan, one in tiate development plans in district the five metropolitan cities in terms the north and one in the south, name- or cross-district scale. After the of the overall political landscape. ly Taipei and Kaohsiung. After the reorganization, power and sover- amendment, it was increased to five eignty of local governments could The KMT retained hold of Taipei municipalities, which are two in the be really established so they could City, Sinbei City and Greater Tai- north, one in the middle, and two in act independently instead of only chung, while the DPP maintained the south. The five municipalities are: being the follower of central poli- control of Greater Tainan and Great- 1. Taipei City, cies. er Kaohsiung. Numerically speaking, 2. Sinbei City which was formed The amendment of the from the old Taipei County, Local Government Law 3. Greater Taichung which is com- took effect on 3 February bined of the old Taichung City 2010. According to the and Taichung County, amendment, the election 4. Greater Tainan which is combined of mayors and city coun- of the old Tainan City and Tainan cils in the five municipali- County, and ties was to be held on 27 5. Greater Kaohsiung which is com- November. The five mu- bined of the old Kaohsiung City nicipalities cover half of and Kaohsiung County. Taiwan’s population, or about 13.7 million people. In the age of metropolitanization, The election results are not only states but also mega-cities viewed to be a barometer will play a key role in the global com- for the 2012 presidential petition. Benefits brought from the election. reform will be:

ASIAN human rights defender 15 Democratisation

however, the total vote count was in candidate to be elected, the number apologized to the public for the inci- the DPP’s favor as the party garnered represents the most votes ever ob- dent and claim to find out the truth, 3,772,373 votes or 49.9 percent of tained by the party. The increase also as rumours still abound almost one all votes cast in both mayoral and indicates that the social issues present- month after the election. DPP politi- councilor elections in the five special ed during the campaign, including cians called it an intentional incident municipalities. Meanwhile the KMT poverty, environmental protection, directed by KMT party; while the only obtained a total of 3,369,052 youth employment, social housing KMT party insists that DPP refuses votes or 44.5 percent. and LGBT-friendly city had been rec- to admit failure. This fierce debate in- ognized more widely by the public. dicates that while the shooting is still The proportion if significant when under investigation, it is certain that compared with the 2008 presidential Democracy overshadowed by no party will be convinced no mat- election during which President Ma shooting incident ter what the investigation result is. Ying-jeou received more than 4.5 The disagreement between the green million votes in the five special mu- The night before the municipal camp and blue camp has widened, nicipalities. The 27 November results elections, a son of former vice presi- as has the distrust of people belong- indicate that the KMT has lost more dent Lien Chan, Sean Lien was shot ing to either camp increased because than 1 million votes, while the DPP during a campaign rally as he was of the incident. Taiwan society has a gained more than 340,000 votes in on stage campaigning for one of the long way ahead to achieve reconcilia- the five municipalities. The resulta KMT Sinbei councilor candidates. tion after the election. On a broader have raised the spectre of crisis with The alleged gunman,L in Cheng-wei, perspective, the people’s belief in de- the KMT though it won more may- 48, ran up to the stage and shot him mocracy may require to be repaired. oral seats. in the face. Lin was immediately ap- prehended by police. Loss of political participation for According to the Central Election Indigenous peoples Commission (CEC), the overall turn- The bullet allegedly went through out was approximately 71.7 percent Lien’s face and accidently killed a The election noise has drowned a for the mayoral and city council elec- 29-year-old man, Huang Yun-sheng, small bvut important voice: that of in- tions in the five special municipalities. who was in the crowd. digenous peoples in five areas located in the municipalities, especially in Triumphal loss of activist groups The incident, which received ex- Sinbei City and Greater Kaohsiung. tensive media coverage hours before Indigenous peoples will lose their Any election in this scale is bat- the polls opened, was augmented by power to elect their township prin- tlefield between the two major par- remarks from several KMT politi- cipals directly. In the old system, the ties, but each time social activists cians calling the incident a “political principals of indigenous townships try to earn some breakthroughs in shooting.” have to be indigenous. However, af- the mainstream election campaigns. ter the reorganization of local govern- The Green Party - Taiwan, a branch Senior DPP officials estimated ments, these indigenous townships of Global Green Party which is half- that the remarks made by KMT and will be merged with other non-indig- political-party-half-NGO, tries to the way media covered the incident enous townships into districts, and merge social activism with political approximately affected the voting in district principals need not necessarily participation. Since its establishment the hundreds of thousands. Some be indigenous, as representatives will in 1996, the Green Party has par- DPP legislators pointed that the one be appointed by mayors directly. ticipated in several major elections in bullet led many undecided voters Taiwan, including elections for par- to cast sympathy votes which very Indigenous peoples in these areas liamentarian and city councils. likely changed the course of the elec- sensed that this deprives them of of tion. The fallout probably cost the their political participation at the lo- In the recent polls, there were five mayorship for DPP in the closely cal level, and will diminish their au- candidates from Green Party-Taiwan fought Greater Taichung race, where tonomy. As a result call to amend the for city council seats of Taipei. They the KMT candidate won by only 2.2 Local Government Law to protect the won 24,650 votes or 2.34% of the to- percent. political rights of minority indigenous tal in Taipei City. Although it was not peoples has surfaced after the election. enough for any Green Party-Taiwan Interior Minister Jiang Yi-huah

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Ultra-Nationalism in Mongolia and the LGBT Community by Anaraa Nyamdorj LGBT Centre Mongolia

Ultra-nationalist rhetoric is being espoused at the highest of levels in Mongolia. It is even reflected in the recently-drafted National Security Concept Paper, which was approved on 15 July 2010. The paper’s section 1.2.1 defines “patriotic nationalism to be foundation of the national se- Mongolian ultrainationalist groups, Dayar Mongol (left) and Tsagaan Khas (right) use curity”. symbols and language similar to Adolf hitler’s Nazi movementy. (Photos, www.amjilt.info In September 2009, three and The Guardian) transgender females were abducted off the streets of Ulaanbaatar in broad than a third of the population lan- Swastika”) group as saying, "If we daylight. As dusk fell, they were driv- guishing below the poverty line. start mixing with Chinese, they will en to the outskirts of the city to the They're easy targets as they neither slowly swallow us up. Mongolian cemetery, where they were physically enjoy public acceptance nor real and society is not very rich. Foreigners and sexually abused for hours by nine demonstrable legal protection. come with a lot of money and might men. These perpetrators even had Most people tend to think that start taking our women” thd the gall to record the incident on ultra-nationalists are only targeting In another article in 2009, Time video. One of the victims was just 15 Chinese in Mongolia. This is untrue. magazine interviewed Zagas Erdene- at the time. Those men claimed to be While their agenda is one of racial bileg, 50-year-old leader of the Dayar from the Dayar Mongol (“All Mon- purity and preservation of Mongo- Mongol who said, "If our blood mix- golia”) group. lian culture, it is also driven by what es with foreigners’, we'll be destroyed According to one of the victims, they perceive to be traditional male/ immediately." their attackers told them, “This is only female gender roles. Mongolian ultra-nationalist a warning. Stop shouting 'gay rights' groups use symbols and language or we will hunt you and find you, Ultra-nationalism similar to Adolf Hitler’s Nazi move- even beneath the ground, and will kill ment, which may prompt some to you... Don't even think of going to The Encarta dictionary gives a ask what are the links between Nazis police. They will never blame us. You definition: "Extreme nationalism: and the Mongolian ultra-national- will be the ones to be sorry." Nationalism that is so extreme as to ists, and why the association. Dayar Mongol is but one of a be detrimental to international inter- In the same Time article, Erdene- number of ultra-nationalist groups est or cooperation". But the impor- bileg, who is described as having in Mongolia who appear to be en- tant element is that ultra-nationalism “run unsuccessfully for parliament joying a growing level of tacit and at is a subjective concept involving the four times, says he reveres Chinggis times explicit public support. Among subjective interpretation of ethnicity, Khaan, who he says “influenced Ad- these groups, however, they are one culture, society and values. Recent olf Hitler.” of the most visible and the most vo- articles in international publications When asked if he found it ironic cal about using violence. illustrate this point. that Hitler singled out and executed Foreigners and some minorities A Guardian article on 2 August people with Mongol features from have become the scapegoats for failed 2010, quoted Battur, a 23-year-old among Soviet prisoners, Erdenebileg economic policies that have left more member of the Tsagaan Kas (“White replied, "It doesn't matter, we share

ASIAN human rights defender 17 Democratisation

the same policies." In Mongolia, The US state De- Mongolian national identity. Direct partment has noted increased reports consequences are delegitimation of Why is it on the rise now? of xenophobic attacks, the Guardian identities and expressions that are article notes. seen to be “un-Mongolian”, leading In a London School of Econom- Mongolians en masse are be- to justifications of various acts of vi- ics paper written in 2000, Othon coming more economically more olence committed by ultra-national- Anastasakis who studied the far right impoverished, disempowered and ists or their supporters with the view movements in Europe, says that disenfranchised. At the same time, of imposing boundaries of conduct the emergence of these movements Mongolians are witnessing corrupt and values. could be explained by four dimen- officials going unpunished, and po- In other words, the rhetoric of ex- sions: historical, structural, political litical institutions of representations treme nationalism institutionalizes and ideologico-cultural. Anastasakis failing them, leading to political dis- negation and devaluation of diversity explains: empowerment. They are watching within the society, and goes against “(1) Historically, its connection with foreigners come in and buy up the the very concept of equal dignity and fascism is mostly impressionistic. country's assets as a result of a transi- human rights for everyone. As a di- Fascism is a specific phenomenon tion to a market economy, capitalism rect result, victim communities ex- of regimes and movements com- and globalization. perience deeper discrimination and prising ideologies, personalities, persecution from the wider society policies, structures and a style all Links between the ultra- and especially from the ultra-nation- peculiar to it, all of which oper- nationalists and law-enforcement alists. ated and interacted policies, struc- agencies Discrimination against certain tures and a style all peculiar to it, groups, usually minorities, is com- all of which operated and interact- In the Guardian article, Tsagaan mon in any extreme right-wing ed during the particular context Khas leader Javkhlan described his setting, and can manifest through of the inter-war period. …[T]he group as simply a "law enforcement" systematic persecution. Extreme ex- contemporary extreme right is the body. Javkhlan details their activities: amples of such policies include the outcome of a new environment, “We do checks; we go to hotels and Holocaust, racial purgation of Ar- in the form of new parties and restaurants to make sure Mongolian menians in Turkey in the early 20th movements with updated ideas. girls don't do prostitution and for- century, and more recently the geno- “(2) Socio-economically, recession, eigners don't break the law." They cides in the Balkans and in Rwanda unemployment and personal in- rely on police and media pressure to in late 20th century, and Darfur in security within the context of reform such business, he added. the 21st century. multi-cultural societies can act TheM ongolian LGBT communi- as catalysts for social distress di- ty has been subject to police harass- Implications for freedom, rected towards extremism. But ment and arbitrary detentions and democracy and human rights there is no straightforward casual its members are under active intel- relationship between recession, ligence agency surveillance. Hence, When Mongolians rose up and unemployment and multicultur- the LGBT community is mistrustful fought for democracy, they fought alism, on the one hand, and sup- and fearful of law-enforcement bod- for a system that allowed them to port for extreme right forces, on ies. This makes them reluctant to re- have the freedom to choose. This the other. port incident of violence from ultra- was for freedom that was not limited “(3) Politically, extreme forces are re- nationalist groups to the police. to the political sphere; it was also inforced within a context of dis- the freedom to make their own life trust against the political class but Implications of extreme choices. they are also developing within nationalism However, ultra-nationalists es- the context of democratic party- pouse and through violence practice politics by whose rules they are Extreme nationalism has a pur- the imposition of a rigid system of forced to abide in order to escape pose of imposing certain hierarchies racial control that embodies so-called their peripheral existence. within the society along the lines "traditional" Mongolian values. “(4) Ideologically,... the extreme right of differences that it may perceive Through their very beliefs, these ultra- is xenophobic and exclusionary..." to be furthering or hindering the nationalists are the antithesis of de- formation and maintenance of the mocracy that Mongolians fought for.

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Democratization and the Role of HRDs in Korea Wonsuk Park, People's Solidarity for Participatory Democracy

Within the 20th century the politi- first change of governmental power rested and tortured in the pretext of cal system of Korea underwent con- between the opposing political par- national security and public order. tinual change. Following the end of ties was achieved by peaceful means. the Joseon dynasty (1392-1910), Ko- Nevertheless, innumerable human rea became the colony of Japan. After In 2004 the partisan attempt by rights defenders willingly devoted liberation from harsh colonial rule in right-wing opposition party at im- themselves to the anti-dictatorship 1945 the country was ruled by a U.S. peaching President Roh Moo-hyun democratic movement and they military administration. failed within the National Assembly played a key role in the building and and received its democratic comeup- strengthening democracy in Korea. While Korea's First Republic was a pance in the following elections. Fi- semi-democratic presidential system, nally the principle of democratic rule Particularly, the students' move- the second was an unstable parliamen- gained stability. ment during that time deserves men- tary cabinet system which was finally tion. toppled by a military coup in 1961. Korea's route to liberal democracy was not always straightforward, but There were several historical In 1963 Park Chung-hee intro- it led to a high degree of consolida- turning points of democratization duced a special kind of military rule, tion in the long run. in Korea such as 19 April Revolu- appointing civilian ministers before tion in 1960, 18 May Gwang-ju he established his authoritarian re- It allowed opposition leaders and democratization movement in 1980 gime of the Fourth Republic. dissidents to participate actively and and June Democratic uprising in finally to become stake holders in the 1987. The student movement trig- After his death Chun Doo-hwan system. Today rival parties take turns seized the power by another military in governing the country. The public coup in 1979. The Gwang-ju democ- system's political order has matured ratization movement in 1980 aroused into a sound legitimacy. But the situ- public outrage, so that civil society ation has taken step backward since was able to pave the way for the first current Lee Myung-bak government. democratic elections in 1987. The role of human rights The 1987 Constitution broke defenders in democratization away from the authoritarian past. It was only with the advent of the Sixth During the military dictatorship Republic of Korea in 1987 that the from 1961 to 1987, there was nei- nation gained stability and gradually ther democracy and nor fundamen- came close to what can be called "lib- tal freedom and basic rights in Korea. eral democracy". No social organization and individ- ual could criticize the Government In 1992, Kim Young-sam was openly and directly . If someone did, elected as the first civilian president some type of revenge would certainly since 1960. When Kim Dae-jung follow. Hundreds and thousands of The Gwang-ju student uprising in 1980. finally assumed office in 1997, the people were killed, disappeared, ar- (Photo: koreanhistory.info)

ASIAN human rights defender 19 Democratisation

gered those events and performed their role under authoritarian regime a pivotal role to pave the way for was democracy fighter, they expand- democratic transition. ed to become planners and advisers of political, economical and social In 1980s, the student movement reform generated by democratic gov- became more systematic and pow- ernment. erful by establishing theory, strat- egy and nationwide organization. A Strategic positioning of human number of well-educated and well- rights defenders gradually changed trained student activists spread out (See Table). In this context, newly across society and became profes- emerged and expanded space be- sional activists, community organiz- tween the state and individuals, or ers, journalists, educators, political what we call civil society, became leaders, experts, etc. Those are still important framework for democracy. important bases of Korean democ- The number of NGOs significantly racy. increased and they had objectives, structures and actions. Mr Wonsuk Park speaks dyring the Why was the student movement 4th Regional Human Rights Defenders powerful at that time then? There The ideas and concepts of demo- Forum on 2-4 December 2010. are two reasons in my opinion. One cratic reform including a set of laws comes from the tradition and culture and mechanisms mostly came from ism such as watch and participation valuing learning and intellectual's human rights defenders in the area became strategic points for human pioneering role. Another fact is that of advocacy. Accountability, trans- rights defenders. the students' movement group es- parency, fairness and the rule of law pecially in the 1980s had the most that Human rights defenders and A representative example that excellent intellectual capacity in the NGOs constantly advocated became shows the highlight of human rights society. the spirit of the times. defenders and NGOs’ active role and power in democratization was Since democratization began from The issues were diversified and the the blacklisting and defeat campaign mid-90s, the role of human rights way of working and methods also against corrupt politicians in 2000 defenders gradually changed. While changed. Expertise and new activ- General Election. The campaign af- fected almost one-third of seats in Strategic positioning change of Human Rights Defenders the National Assembly and eliminat- ed 70 per cent of those on the black Before Democratization After Democratization list. 1980s 1990s Overthrow the dictatorship Democratic reform of politics, Aim Current situation and challenge Revolution economy and society Nature Radical, resistant, militant Radical & resistant Rational & moderate The situation has drastically been changed since Lee Myung Bak and Main Student movement Various NGOs Forces Labour movement Intellectual groups his right-wing party came to power. Issues Mainly big discourse Diversified & concretized issues - anti-dictatorship Democracy, transparency, The state of democracy has repeat- - anti-imperialism quality of life, gender equality, edly regressed and faced crises. Fun- - labour emancipation environments, damental freedoms and basic rights Human rights, peace etc have frequently been violated by Way and Resistance Watch, critique, participation Government. Method - mass rally - intervention in policy making - agitation and propaganda - employing law and policy We have so many issues on free- -struggle on the street methods - campaigns to sway public dom of opinion and expression. The opinion UN Special Rapporteur on the pro- motion and protection of the right to

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freedom of opinion and expression, Mr. Frank La Rue, officially visited Korea in May 2010.

Freedom of assembly and peaceful demonstration are not respected and protected as well. In 2008 there was a big protest against the beef import agreement between ROK and US. People held a candle light vigil to de- mand the government to rescind the agreement.

The protest started spontaneous- ly, mostly by young middle school and high school students but it had The massive candlelight protest against beef importation was in fact a protest since lasted in every night for more against the dengeneration of democracy under the Lee Myung-bak government. than hundred days. While the pro- (Photo source: blog.peoplepower21.org) test seemed to be against beef import policy neglecting people's concern of ing of undemocratic management by ple's rights as well as themselves like mad cow disease problem of US beef the Chair of the Commission, Hyun the past. and fair trade, it was in fact a protest Byung-cheol. They also expressed against the degeneration of democ- great concerns about the indepen- Another challenge is to advance racy under the Lee government. dence of the commission. socio-economic democracy as well as political democracy at the same time. Despite twice issuing an official In fact, since Hyun's term of of- It is clear that the state of political apology from the President, the gov- fice, the commission has tended to democracy in Korea though severely ernment was severly offended by the respond with silence on important challenge after Lee Government is protest. The government and some human rights cases and issues. The not irreversible. What we have to right wing media tried to defame independence of the Commission rather consider is to enrich the sig- the event as propaganda from anti- has deeply been damaged; the gov- nificant substance of democracy for American extremists. However, such ernment tried to put the commission balanced democratic development. attempt became an object of ridicule. under the president's control and Later the police put key activists of downsized its staff by 21 per cent in If one considers the social struc- the organizing committee including 2009. Now Korean NGOs and Hu- ture of the country which is in the myself put on the wanted list and man rights defenders have a stay-in context of globalized and polarized arrested them so that more than 50 strike at the commission building economy, human rights defenders human rights defenders were im- urging Hyun's resignation and hav- should focus on socioeconomic de- prisoned. Around 2,000 ordinary ing a democratic process for the ap- mocracy in various areas and phases. public individuals were also charged pointment of commissioners. Job, education, housing, health and with participating in illegal assembly security for the aged are often said and demonstration. After the event While transparency and account- to be the five unstable factors of the the police regarded candles as illegal ability in decision making and ad- life of Koreans today. The common goods for demonstration. ministration has declined by lack of probplem of these issues is that the communication in running state af- government’s responsibility or social The rule of law has deeply been fairs, socioeconomic disparity have security is very weak in Korea. ruined. The independence of judi- been increased through a rich-biased ciary is now questionable. There is economic and social policy. It is therefore important to HRDs also a current crisis in the National to present vision and alternative Human Right Commission. Recent- In this worsening political situ- and take possible action to solve the ly three commissioners out of nine ation human rights defenders are problems for better democracy. resigned from their posts, complain- faced with dual tasks to protect peo-

ASIAN human rights defender 21 Democratisation Democratisation

Freedom of expression in East Asia On-Line Censorship Rising Sejin Kim

“Freedom of expression is democracy” — Aung San Suu Kyi

The rapid spread of information Freedom Index of the group Report- from 164th to 174th. According to technology in the first decade of the ers Without Borders. In particular, it Reporters without Borders, the Bur- new millennium has brought about will examine how governments in this mese military junta successfully in- a momentous chance for increased region violate the right to freedom of troduced a censorship system and it democratization in East Asia. In par- expression. Finally it will attempt to will continue doing so. As was seen ticular, the rapid popularization of the identify general trends and present an during the November 7 election, internet has been able to provide new overview of freedom of expression in the absence of independent media avenues for individual political ex- the region. coverage was a large handicap to the pression (Rodan 2001; 64). Absence goal of having free and fair elections. of a hierachy, open interaction and Burma Restrictions imposed by the censor- globalization are important charac- ship board hinder widely freedom of teristics of the internet that promotes Since 2006, the ranking of Burma expression in the country. Further- the free flow of information, which is in the Press Freedom Index decreased more, many bloggers were arrested a key value for democracy.Democratisation People are able to communicate and exchange RSF’s Press Freedom Index Ranking of East Asian Countries their political ideas freely due to the extension of the political arena into cyberspace. In this vein, the emerging “digital politics” that came with the develop- ment of digital infrastructure across East Asia has played a key if not cen- tral role in relation to several political incidents in the subregion. For in- stance, recent political upheavals in Burma (Myanmar), the Philippines, and Thailand have shown opportu- nities for advancing of democracy. However, these have also revealed ef- forts of governments to securitize and monitor their critics by attempting to control the electronic media (Chai- ratana 2010; 5). Censorship includ- ing defamation laws and regulations is a method which is used by govern- ments in order to countermeasure critics and political dissidents. This article attempts to present the key issues on freedom of expression in cyberspace and the press in East Asian countries, in the context of the Press

22 Vol. 6 No. 2 • december 2010 DemocratisationDemocratisation Democratisation

and sentenced with the excuse of low position in ranking of Press South Korea protecting national security. Freedom Index—171st out of 178 Especially after the Saffron Revo- countries—due to consistent censor- South Korea went up 27 places lution, the military junta came up ship and repression against freedom in the Press Freedom Index 2010, with new policies to curtail all forms of expression, especially in Tibet after its noteworthy fall to 69th in of new media. Internet cafes have and Xinjiang. China has about 400 the 2009 Index. Fortunately, edito- been under strict online censorship. million internet users, which makes rial independence of the state-owned In addition, infrastructure has been it the country with the highest con- media has increased, while arrests put in place to slow down internet nectivity in the world in terms of and violence have ceased this year. In signals on demand, thus limiting the number. However, the Internet has terms of connectivity, South Korea kinds of activities that users could be become an ‘intra’-net and is entirely has the highest rate in East Asia with involved with, including exchanging state-owned. If someone wants to around 80 per cent of the households files, and documents. establish a network, they need prior connected to the Internet. However, approval from the government. Fur- a level of control and the mechanisms Cambodia thermore, individuals are required to of censorship is well entrenched, so follow registration procedures which the system is geared against freedom Cambodia’s press freedom rank include providing personal details of expression. has steadily declined from 108th in and employment information as well Moreover, the Korean Communi- 2006 to 128th in 2010. Although as consenting to sign a pledge not to cations Commission and the Korean digital politics is emerging in Cam- access information that threatens na- Standards Communication Commis- bodia, there are still limitations on tional security (Abbott 2001;102). sion exist in order to set the standards freedom of expression. For example, for censorship over the Internet. anyone who is critical towards the Indonesia government could be subjected to Japan defamation charges. Also, the Cam- The dynamic movement that bodian People’s Party owns and con- brought down Suharto in 1998 was Japan occupies the most favorable trols all media, television, broadcast partly driven by the underground position in East Asia with a ranking and licensing, which has often placed press and the Internet (Siriyuvasak of 11th in 2010. alternative media under allegations 2010; 8). The Internet was still a of defamation and disinformation. new technology at that time, but the Laos It is worth noting that the coun- anti-Suharto movement succeeded try’s political leaders have ignored in using it to mobilize Indonesians In September 2009, Laos ratified Cambodia’s Press Law of 1995 and worldwide. the International Covenant on Civil “instead invoked the more dispro- Despite this achievement, the and Political Rights (ICCPR) which portionate provisions of the coun- country’s rank in the Press Freedom guarantees freedom of expression try’s newly revised criminal code”. Index has declined since 2006, with and association. In spite of this prog- Such was the case for a report in the Indonesia now occupying 117th ress, Laos still suffers from lack of the Global Witness website which re- place in 2010. Significant action by spaces for free expression. Country’s vealed family ties between the prime players in the media is often respond- media still largely remain dominated minister and his business partners. ed to with repressive measures. In and heavily controlled by the State. Anybody who distributes this report 2009, two journalists were killed and In addition, defamation of the State can be arrested. However, a positive several others received death treats, and false information are criminal- fact is that there is no regulatory re- mainly for their reports on environ- ized in Laos. gime for the Internet in Cambodia mental issues. Moreover, the Infor- although there was an initiative to mation and Electronic Transactions Malaysia establish a state-owned hub to con- Law (ITE) carries prison terms up to trol cyber space. six years and fines up to a maximum Malaysia has declined significant- of 1 billion rupiah for online defa- ly from 92nd to 141st in in the Press China mation. In 2008, when the law was Freedom Index of 2010. Although implemented, two Indonesians were the country’s new Prime Minister, Despite its dynamic growth of charged under it and the number of Najib Razak, pledged to guarantee Internet users, China occupies a cases increased twofold in 2009 . freedom of expression, implementa-

ASIAN human rights defender 23 Democratisation Democratisation

tion is unlikely to happen. Religious Singapore and religious harmony, or public and ethnic tensions were continuous- morals” (2010 SEAPA; 35). ly used to rationalize restrictions on According to Minister Mentor the press and cyberspace in 2010. In- Lee Juan Yew “there is no censor- Taiwan formation Minister Rais Yatim stated ship but foreign journalists must in July 2010 that his ministry has not interfere in national affairs” Taiwan raised its ranking in the been actively monitoring blog con- (Tey 2008; 7). This quote illustrates Press Freedom Index by 11 places tents. For instance, blogger Bernard a reason for Singapore’s low ranking from 59th to 48th. According to Re- Khoo was questioned by the police in the Press Freedom Index, even porters without Borders, a democrat- over the posting of a modified image though there was a slight improve- ic government needs to take pride in of the police emblem in November ment from 146th to 136th in 2010. defending the state-owned media’s 2009. The government continues to However, the country’s defamation independence. It is essential in order suppress political dissent and thus law, Printing Press Act, Newspapers to guarantee a genuine democratic prevent a legitimate and meaningful and Printing Presses Act, Undesir- political system. political debate which could eventu- able Publications Act, Broadcasting ally lead to deeper conflict instead of Act, Internal Security Act, Films Thailand giving vent to political sentiments Act, and Official Secrets Act widely (Siriyuvasak 2010; 7). prevent freedom of expression. Pe- Since the coup in 2006, the trend nal Code amendments introduced shows that the government strength- Mongolia in 2006 included a provision that ened its internet censorship mea- closely resembles the Sedition Act. sures, particularly against the “red- Mongolia has managed to make It has been used against young blog- shirt” movement. The government solid gains in freedom of expression gers (ibid. 13). In addition, the gov- crackdown in April and May 2010 over the recent year which places it at ernment blocks around 100 websites resulted in 91 deaths, including two position 76th of Press Freedom In- and all internet service providers are journalists, and nearly 2,000 injured. dex 2010. Although there were a few required to register and comply with The government used emergency cases of dismissals of civil servants the Media Development Authority’s powers to shut down red shirt media based on political opinion, which of- (MDS) Internet Code of Practice. access and several magazines. ten happen after elections, Mongolia The MDS is “empowered to order Due to this political instability is the 4th highest ranked country service providers to block websites and acts of violence, the Press Free- among East Asia countries. that are deemed to undermine pub- dom Index ranking of Thailand fell lic security, national defense, racial to 153rd in 2010. A total of 17,775 Philippines

As of June 2009, almost a quarter (24 million) of the population had access to the Internet in the Philip- pines. As a result, bloggers and citi- zen journalists have played signifi- cant roles in politics in recent years. However, the massacre of reporters in Mindanao caused the Philippines to drop 34 places in the Press Free- dom Index in 2010. As evidenced by the few perpetrators of the massacre being brought to trial, impunity still prevails in the country. On the other hand, the absence of a regulatory board for the internet is seen as posi- tive for free expression and indepen- dent media. Journalists mark the first anniversary of the Ampatuan massacre in the Philippines on 23 November 2010 (Photo: www.cmfr-phil.org)

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web sites have been blocked under the arrested in 2009. Eight bloggers targeting bloggers and online jour- emergency decree, computer crime were sentenced on charges of anti- nalists as forcefully as journalists act and the strict lèse majesté laws government propaganda, a violation in the traditional media. Reporters (Sirawongprasert 2010; 12). Censor- of article 88 of the Criminal Code in without Borders also raised concerns ship is one of the key instruments of October 2009. about the rise of online censorship. the Thai government to address po- Along with controlling Internet In order to overcome this challenge, litical instability. The Prime Minister’s use including harassing and arrest- enhancement of the network would Office recommended that “the Na- ing cyber-dissenters and blocking be a powerful tool against anti-cen- tional Telecom Commission should websites, Internet café owners are also sorship which offers alternative plat- be equipped with a mandate to censor required to obtain photo identifica- forms for news, information, and program contents of broadcast media” tion of Internet users, and to moni- political mobilization in the region (2010 SEAPA; 40). tor and store information about their (Chairatana 2010; 3). Since the new online activities. It is even more wor- avenues have evolved and broadened Timor Leste risome that continuous curtailment the arena for people to express freely of free expression will be increase in their views, advocacy on freedom of Timor Leste is ranked at 93rd in the light of new plans, similar to the expression in cyber space needs to be the Press Freedom Index 2010. As a Chinese Internet filtering system, to continued as well. young and newly independent coun- block and take down more websites. try, Timor Leste needs to develop further legislative framework in or- While governments have recognized that “the der to guarantee freedom of expres- sion. A Media law was drafted in Internet can play a key role in the fight for 2009. However, this law will be re- viewed with the help of stakeholders democracy” they are establishing new methods and re-drafted. According to Virgil- of censoring it. ion Guterres, president of the Timor References Lorosae Journalists Association Conclusion Abbott, J. P., 2001, Democracy@Inter- (TLJA), licensing journalists would net.Asia? The challenges to the Emancipatory limit their freedom of expression. While the level of freedom of Potential of the Net: Lessons from China and The reason is that their work will be expression varies across East Asia, Malaysia, Third World Quarterly, 22(1) p dependent on an annual government we could still define a general trend 99-114 renewal of their license which makes Chairatana, P., 2010, Boost, Block, and within the region. Online and offline Ban: the next decade of digital politics in journalist more vulnerable to legal censorship are one of the main tools Southeast Asia, Digital Politics, Issue 4. and bureaucratic harassment. to hamper freedom of expression. Press Freedom Index 2010. [website], Governments are now beginning to available at http://en.rsf.org/press-freedom- Vietnam learn from each other about how to index-2010,1034.html Rodan, G., 1998, The Internet and Po- control the Internet. Defamation litical Control in Singapore, Political Science Vietnam ranks consistently low in law is also widely used in the region. Quarterly, 113(1) p 63-89 the Press Freedom Index, at 165 in These restrictions on information Southeast Asian Press Alliance (SEAPA) 2010. Crackdowns on bloggers often online have become more sophisti- 2010, Under Fire: Southeast Asia’s Press Free- take place. The government enacted dom Challenges for 2010 cated. Furthermore, countries often Siriyuvasak, U., 2010, Digital Democ- new regulations banning blogs from invoke the issues of national security, racy: a new era of digital connectivity, Digital “disseminating or linking to content cyber crime or the protection of chil- Politics, Issue 4. that opposes the government, under- dren as an alleged reason to rational- Sirawongprasert, P., 2010, Digital Picket mines national security and social ize their restrictions on free expres- Line: Future of political technologies, Digital Politics, Issue 4. order, or reveals state secret” (SEAPA sion on the Internet (Wong 2010). Tey, H. T.., 2008, Confining the Free- 2010). In addition to this, blogs shall While governments have recognized dom of the Press in Singapore: A “Pragmatic” be restricted to “personal content that “the Internet can play a key role Press for “Nation-Building”?, Human Rights and refrain from posting articles or in the fight for democracy” they are Quarterly, 30(4Wong, C., 2010. (in South- opinions regarding politics, religion, east Asia Meeting on Freedom of Expression establishing new methods of censor- and the Internet), Global Trend and Con- and social issues” (ibid.). As a result, ing it (Press Freedom Index 2007). cerns surrounding Internet Freedom, 13th around 12 Vietnamese bloggers were In this vein, the governments are November 2010.

ASIAN human rights defender 25 Country Focus

Post-War Sri Lanka Victims Wait for Justice Surya Deuja

Despite the end of the war with the Liberation Tigers of Tamil Eelam (LTTE) in 2009, human rights and fundamental freedoms continued to be suppressed in Sri Lanka. From the massive internal displacement during the war period, some 80,000 people remained in camps and an- other 300,000 remain displaced in communities. Together these people comprise the huge population of in- ternally displaced persons (IDPs) in vulnerable situations whose homes and infrastructure were badly affect- ed due to the destruction and dam- age by the war.

Moreover, restriction of activities Relatives of the disappeared stage a protest in Vavuniya in Northern Sri Lanka in May of human rights and humanitarian 2010. (Photo: www.jdslanka.org) organizations, as exemplified by the decision of the International Com- Secretary-General and Sri Lankan minister. The Government refuted mittee of the Red Cross (ICRC) to President Mahinda Rajapaksa fol- formation of the panel by announc- close its office in Mannar, demon- lowed by his Sri Lanka visit .in May ing that visas would not be granted strates the denial of access to human- 2009. The expert panel is chaired by for the panel members. itarian services to conflict victims. Marzuki Darusman from Indonesia, Therefore, the government should and the other two members are Yas- Sri Lanka consistently denies its ensure swift measures for the protec- min Sooka of South Africa and Ste- forces violated international humani- tion of the IDPs. ven Ratner of the United States. The tarian law during the long conflict, UN Secretary General’s panel has maintaining that only the Tamil Ti- UN Expert Panel tasked to advise him regarding an in- gers did so. In December however, dependent investigation into alleged the Government announced the In response to international calls massive human rights violations in relaxation of the ban on UN expert for investigation of alleged war Sri Lanka. panel . crimes and crimes against humanity during the final offensive of the Sri The move however has been chal- Lessons Learnt and Reconciliation Lankan Army against the LTTE, UN lenged by the Sri Lankan govern- Commission Secretary General appointed a three- ment. The formation of the expert member expert panel to advise on panel was strongly denounced by The PresidentM ahinda Rajapaksa implementing the commitment on the Sri Lankan government. Various appointed the eight-member ‘Les- human rights accountability made groups protested against the UN, sons Learnt and Reconciliation’ in the Joint Statement issued by the including a hunger strike by sitting Commission (LLRC) . This move of

26 Vol. 6 No. 2 • december 2010 Country Focus

not be repeated in Sri Lanka. The concrete steps such as strengthening national protection mechanisms and ratification of some of the key hu- man rights treaties such as the UN Convention of Enforced Disappear- ances can be good starting point to deliver the message that the state is committed to deliver a new vision for post-conflict Sri Lanka where human rights will be respected and the conflicts will be resolved through peaceful means through democratic political process. Moreover, the Gov- The term of Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) beginning ernment of Sri Lanka should ensure on May 2010 has been extended for another six months. The Commissioners appointed that the 18th Amendment of the under provisions of Section 2 of the Commissions of Inquiry Act (Chapter 393) are: Constitution of Sri Lanka (see Box) Chitta Ranjan de Silva, PC – Chairman, Dr. Amrith Rohan Perera, PC, Prof. Mohamed will not be used as tool to suppress Thahir Mohamed Jiffry, Prof. Karunaratna Hangawatta, Chandirapal Chanmugam, Hewa Mathara Gamage Siripala Palihakkara, Mrs. Manohari Ramanathan, and Maxwell Parakrama opposition and silence the media and Paranagama. (Photo: The Sunday Leader) human rights defenders. the Government received criticisms non-state actors country are in dire The victims of human rights vio- and at best cautious appreciation need of resources to compensate lations and abuses of Sri Lanka are from different organizations within for damages incurred and rebuild- in dire need of protection from the Sri Lanka. One of the major short- ing their lives from the destructive state. The truth about the fate of comings of the Commission is that conflict. Despite the inadequacies their family members who have been its mandate is restricted to the period of the LLRC in terms of contribut- killed, disappeared, tortured and from 21 February, 2002 to 19 May ing towards transitional justice, the prosecuted during the war needs to 2009 and will not cover the entire Commission should be able to come be ascertained. Sustainable peace span of the 20-year conflict between up with strong recommendations and stability in Sri Lanka will not government and the LTTE. addressing the aftermath of the war, be achieved by just the end of the including the resettlement of all the war but healing of the wound of the The LLRC gathered information, war displaced and ascertaining the victims, giving reparations, restoring reports and testimonies from differ- fate of all who went missing. This rule of law and justice. Participation ent sources including the victims of can help heal the wounds of the past. of the local people and civil society violations and abuses. Many people The perpetrators of gross violations organizations from the war affected from hard hit conflict areas faced of human rights and humanitarian areas including the North and East enormous challenges to speak the law must brought to justice. More- Sri Lanka should be ensured in the truth before the LRRC because of over, the material and psychological process of planning, reconstruction threats, intimidation and harassment damage suffered by people belonging and development without any dis- aimed at preventing them from testi- to all of Sri Lanka’s communities--, crimination. There must be a mecha- fying. However, some former LTTE Sinhalese, Tamil and Muslim--must nism for the healing of memories leaders and supporters have also be- be healed with urgent priority to de- and for trust-building within and gun to speak with LLRC saying that liver the real message that the war amongst all communities. The di- the LTTE missed the opportunities and terrorism is over. rect and indirect restriction in the to avoid the loss of thousands of lives freedom of expression should be re- and suffering of the people of Sri Sri Lankan Government has ex- moved so that the people will have Lanka . pressed commitment on human increased access to information and rights before the international com- they can participate in the process of The victims of human rights vio- munity that the history of gross vio- national unity and reconciliation. lations and abuses during the pro- lation of human rights and serious longed war between the state and violation of humanitarian law will

ASIAN human rights defender 27 Country Focus

Pakistan Floods Disaster Highlights Discrimination of Religious Minorities

The 2010 floods were the worst minorities of Pakistan in providing were reportedly expelled from a gov- natural disaster in Pakistan’s history. humanitarian assistance has been ernment school in Dera Ghazi Khan It has caused the loss of lives of thou- also reported in the media. For in- and from rented lodgings elsewhere sands of persons, damage in billions stance, a fact finding report by Hu- in Southern Punjab following pres- of dollars worth of property, and man Rights Commission of Pakistan sure from clerics, who had issued to the massive displacement of the (HRCP) mentions that non-Muslims edicts that the affected Ahmedis people. The international commu- and minority Muslim sects experi- must not be provided help . nity mobilized urgent humanitarian enced a more difficult time in coping response through the UN and other with the impact of the flood disaster. The regional arrangement among international organizations. Accord- Similarly, a number of media reports the SAARC countries also remained ing to official data more than 2,000 have highlighted that members of re- passive in providing necessary assis- people have died since the flooding ligious minority communities were tance. The SAARC Food Bank has began in July from Khyber Pukh- often threatened specifically on ac- not been activated even though this tukhwa province. count of their beliefs without any could have help Pakistan cope with specific protection measures from the disaster in the immediate and Out of a total of 124 districts, the Government. medium term. SAARC’s failure to 79 have been affected by the floods. develop a common regional disaster These include 24 districts in Khyber The Federally Administered Tribal management policy has come into Pakhtunkhwa, 19 in Sindh, 12 in Area (FATA) was more vulnerable, focus. Punjab, 10 in Baluchistan and seven where religious extremist groups each in Kashmir and Gilgit-Baltistan. who exercise de- facto control over More than 20 million people due to weaker ex- across the country have been af- istence of the gov- fected. The government of Pakistan ernment. estimated economic losses inflicted by the floods amount to $43 bil- In August, 500 lion, with about 20 million people Ahmadi families affected, including 7.5 million dis- were displaced placed. United Nations agencies and by floods from Pakistan's National Disaster Man- DeraGhazi Khan agement Authority (NDMA) esti- ,Muzaffargarh and mate that crops over 1.38 million Rajanpur districts acres have been washed away and 1.2 of southern Pun- million homes destroyed. As result, jab. They were there will be adverse impact on the reportedly denied agriculture for another year, posing a relief goods and serious threat of food insecurity. shelter by gov- ernment officials Pakistan’s lack of preparedness and local cler- in responding to the disaster have ics on account of been widely criticized. Moreover, their faith. The the discrimination to the religious displaced families

28 Vol. 6 No. 2 • december 2010 Human Rights Defenders

Women Human Rights Defenders Gendered Challenges in Defending Human Rights Mary Jane N. Real Women Human Rights Defenders International Coalition

The State and its agents are still Aside from State violence, an leave the village entirely within the among the most common perpetra- alarming trend is the increasing next five days. Witnesses from the tors of violations against women and prominence of allegations of abuse community identified that among all other human rights defenders. The committed by non-state actors. The the attackers were the alleged per- United Nations Special Representa- identified perpetrators are varied, petrators accused of raping and tive of the Secretary General for hu- including fundamentalists, para- physically abusing two victims of man rights defenders Ms Hina Jilani military units, insurgents, criminal rape that WOREC staff assisted. observed in 2005 that “increasingly, gangs, drug cartels, and in several (Forum Asia Case File 2007) defenders have been accused of terror- instances, members of the family or ist activities, subversion, aiding and community. The physical and sexual International mechanisms abetting illegal organizations, endan- attacks against women human rights gering the integrity of the State….” defenders in Nepal as documented At the international level, defend- Based on an in-depth survey in 2009 by FORUM-ASIA in the 2007 case ers have availed of the United Nations tracking government counter-terror- below is emblematic of violations Special Procedures as the most com- ism policies from over 40 countries committed by community members mon channel of protection. Defend- in response to the 9/11 attacks, the that occur in ultra-conservative con- ers try to raise their concerns during International Commission of Jurists texts increasingly prevalent in South- the Rapporteurs’ country visits or concluded that the framework of east Asian communities: in annual reports delivered before international human rights is being the United Nations Human Rights actively undermined, not only by re- on 14 June 2007, some 60 -70 Council or General Assembly. For gimes who are notorious for doing so, men with sticks marched into the example, Special Representative Jilani but also by liberal democracies that in office of the Women’sR ehabilita- highlighted the plight of women hu- the past have subscribed to the impor- tion Center (WOREC) in the Sir- man rights defenders in her 2002 re- tance of human rights. aha District, Nepal. They threat- port. The 2011 report of incumbent ened the staff with rape, physical Special Rapporteur on Human Rights Under the cloak of the ‘war against abuse and verbally abused them of Defenders Margaret Sekaggya will terrorism’, several governments in being “loose women”. On 9 June, specifically focus on women human Southeast Asia have twisted the legal the main gate of the office was dis- rights defenders. As mentioned above, system and issued counter-terrorism mantled and thrown in the middle the Special Rapporteurs through the measures or revived the application of the road. On 2 June, sharp bricks communications system also make of national security acts to crimi- were thrown at the office while the contact with the government of the nalize political dissent. Repressive staff were inside, and when they State where the alleged violation oc- regimes like Burma simply cracked tried to go out to check, they were curred by sending an urgent action down on any form of human rights again hit with sharp bricks hurled letter (concerning a violation that is activism to retain military rule. by attackers hiding in the dark. allegedly on-going or about to occur) The staff were threatened that they or an allegation letter (if the violation would be killed and were told to has occurred already). Note: This is an excerpt of paper presented at the first International Conference on Hu- man Rights in Southeast Asia organized by the Southeast Asian Human Rights Studies Net- In several instances, both the Spe- work (SEAHRN) on 14-15 October 2010 in Bangkok,. cial Rapporteur on Human Rights

ASIAN human rights defender 29 Human Rights Defenders

Defenders and the Special Rapp- review process or during any of its 72 countries and the development of porteur on Violence against Women regular sessions. These channels how- a local human rights strategy (LS) in have issued joint communications in ever serve more as venues for political 64 countries, including all the coun- cases involving women human rights advocacy rather than legal account- tries in Southeast Asia except Laos. defenders. However, Jilani noted in ability mechanisms for human rights These institutional steps are expected here 2008 report that the average violations against defenders. to further reinforce the relevance of rate of response from governments the EU Guidelines in third countries. is at 52%, decreasing from 64% in At the regional level, the European 2004 to only 34% in 2007. Union Guidelines on Human Rights Regional Mechanisms Defenders (revised in 2008) can also For defenders who are citizens of be applied in third countries or in Launched in October 2009, the countries that are party to certain UN countries where the European Union ASEAN Intergovernmental Commis- human rights treaties, they could file (EU) has established missions, includ- sion on Human Rights (AICHR) was individual cases under the Optional ing embassies and consulates of the established after two years in gestation Protocol of the treaties, including the members and delegations of the Euro- with the mission to “promote and pro- Optional Protocol for the Conven- pean Commission. Under the Guide- tect human rights and fundamental tion for the Elimination of All Forms lines, the EU can adopt a range of dif- freedoms of the peoples of ASEAN.” of Discrimination against Women ferent measures to protect defenders However, criticisms abound that it is (CEDAW). But the requirement of including maintaining contacts and a ‘toothless’ human rights body since exhaustion of national remedies has monitoring and reporting on the situ- it will make decisions by consensus— made this more of a remote rather ation of human rights defenders. meaning authoritarian regimes like than a relevant mechanism for redress. Singapore, Burma, Cambodia, and Many of these missions have been others can wield veto power and in- A more recent development is tapped to assist defenders at risk, and dividual governments can appoint or the inclusion of defenders’ concerns in several instances like the mission of remove commissioners as they see fit. in the Universal Periodic Review Sweden, for example, they have been There are speculations that the body (UPR) conducted by the Human active in giving particular focus to will merely be used as an excuse to Rights Council, such as the submis- women human rights defenders. Dur- whitewash human rights violations sion made by civil society represen- ing the Spanish Presidency of the EU among the ASEAN member-states. tatives in the Philippines included that ended last June 2010, the Span- Civil society groups have been skep- in the OHCHR Report considered ish leadership has built on the nation- tical that the body could function to during the Council’s review of the al launching of the EU Guidelines in protect defenders. country. Defenders can further raise various third countries and pushed for their claims through oral interven- the appointment of liaison officers in At its first meeting last 28 March tions before the Council during the to 1 April 2010, NGOs submit- ted reports of human rights viola- tions against defenders, including women and other defenders killed in the massacre in Ampatuan town, in Maguindanao province in the Philip- pines in November 2009.

Noemi E. Parcon, the widow of one

30 Vol. 6 No. 2 • december 2010 Human Rights Defenders

of the 32 Filipino journalists killed in as proceedings before the human their case. Both writs have been in- massacre pleaded: “I appeal to the rights court in Indonesia or applying voked in several instances of extraju- Commission to help our families to the Supreme Court directive in 2007 dicial killings and forced disappear- seek justice,” adding that “the Philip- to adjudicate cases involving political ances of defenders such as requiring pines government is not responsive to activists in regional trial courts in the the release of the military ‘order of our petition. We, therefore, come here Philippines. There are government- battle’ that ‘blacklisted’ defenders or to appeal to the AICHR.” However a established witness protection pro- ordering investigations in cases in- statement from Amnesty Internation- grams in the Philippines, Indonesia, volving the abduction of defenders. al said that, while a Commissioner Malaysia and Thailand. reportedly met with Ms. Parcon and Aside from the Philippines, there other victims of human rights viola- It is important not to simply treat are also national human rights insti- tions and representatives of civil soci- women human rights defenders as a tutions in Indonesia, Malaysia and ety, they were simply informed them separate category, rather to consider Thailand. In varying degrees, these that the Commission will receive the- gender as a concern that cuts across the institutions possess the power to in- matic reports on human rights issues, different categories of defenders. As vestigate cases, including complaints but not individual complaints. women human rights defenders in the involving human right defenders. There is no data available to track It is important not to simply treat women the extent to which these institutions have assisted defenders, or women human rights defenders as a separate category, human rights defenders in particular. rather to consider gender as a concern While it does not have the same that cuts across the different categories of formal investigative powers as Kom- nas HAM (National Commission defenders. on Human Rights), Komnas Perem- puan (National Commission on Such refusal to include investiga- 2008 Coalition survey complained, Violence against Women) in Indone- tion and reporting on cases of human some form of abuse are “integrated in sia has trail blazed it role to moni- rights violations among its mandate the security measures provided by the tor violations against women. It has to “develop strategies for the promo- State” such as harassment, including developed its own initiatives for the tion and protection of human rights sexual, and surveillance. protection of women human rights and fundamental freedoms” confirms defenders such as conducting official the criticisms that this mechanism In the Philippines, innovative le- visits to local authorities with partici- would not be useful for the protec- gal remedies have been introduced: pation of women’s organizations and tion of human rights defenders. The 2007 ‘writ of amparo’ is a con- advocates; extending emergency as- stitutional remedy available to any sistance such as urgent interventions National Mechanisms person whose right to life, liberty during the height of armed conflict and security is violated or threatened in Aceh and East and West Timor; There are no specific laws protect- with violation by an unlawful act or capacity building that include pro- ing women or other human rights omission of a public official or em- visions for psychosocial help and defenders in any country in Asia, ployee or a private individual or en- long-term empowerment. In 2007, Southeast or elsewhere, although hu- tity. The reliefs provided for include it conducted a consultative study to man rights groups in Nepal were pro- pro-active measures such as protec- document the specific situation of posing a “Human Rights Defenders tion of witnesses or a court order women human rights defenders in Security Act” for the Parliament to for an investigation or inspection. Indonesia, developing its own typol- establish a Human Rights Defenders The 2008 ‘writ of habeas data’ is also ogy of naming the violations and Commission. available to individuals whose right identifying the sources of strength of to privacy in life, liberty or security is the women defenders themselves. Defenders seeking protection or violated or threatened. The remedies redress at the national level can avail include updating, rectification, sup- NGOs of existing mechanisms in their re- pression or destruction of database spective national legal systems such or information or files pertaining to To fill the gaps in State responses,

ASIAN human rights defender 31 Human Rights Defenders

there is a proliferation of civil soci- human rights defenders as defined by Not employing gender as a cross- ety initiatives to protect and sup- the Coalition. The support extended cutting analytical lens could lead to port women human rights defend- by these organizations vary depend- reification of the category of women ers. These include: provision of safe ing on the needs identified by the and sexual minorities, which on the houses; giving of awards of recogni- defenders such as fact-finding mis- one hand could point to the need tion; psycho-social networks; advo- sions; temporary relocation within for women or LGBT-specific inter- cacy campaigns; consultations and the country or abroad; legal aid; trial ventions, but on the other hand, re- solidarity meetings and visits. monitoring; solidarity visits; protec- inforces the “ghettoization” of their tive accompaniment; stress manage- rights. As a result, the development of The following members of the ment programs; and fellowships. responses appropriate to the specific Women Human Rights Defenders nature of the experiences of women International Coalition (WHRD Meeting the challenge human rights defenders continue to IC) have also developed programs to be under-resourced and as pointed respond to urgent appeals and emer- Gender-responsiveness requires out by WHRD IC members, wom- gency support to defenders, includ- women or LGBTI specific responses. en’s rights and sexual rights advocates ing women and LGBT activists in For example, a transgender activist in the network continuing to bear the different countries or regions: Am- could experience harassment because bulk of the burden of identifying and nesty International, FORUM-ASIA, the ‘sex’ indicated in the passport is meeting the gender-specific needs of Frontline, International Federation different from his/her physical ap- women human rights defenders. of Human Rights (FIDH), and Ob- pearance. But in addition, gender-re- servatory for the Protection of Hu- sponsiveness also requires integrating References man Rights Defenders (OMCT) a gender analysis in the interpreta- Amnesty International (AI). 31 March Peace Brigade International (PBI). tion of the different rights recognized 2010. Statement on “ASEAN human rights commission stumbles at first hurdle”. http:// Urgent Action Fund (UAF) and under the UN Declaration on Hu- theonlinecitizen.com/2010/03/asean-hu- Women Living Under Muslims Laws man Rights Defenders. man-rights-commission-stumbles-at-first- (WLUML) specifically assist women hurdle/ Asia Pacific Forum on Women, Law and Development (APWLD). 2006. Claim- ing Justice, Claiming Rights: A Guidebook on Women Human Rights Defenders. Chaingmai: APWLD International Commission of Jurists (ICJ). 2009. Assessing Damage, Urgent Action: Report of the Eminent Jurists Panel on Terror- ism, Counter-terrorism and Human Rights. Geneva: ICJ Jilani, Hina. 2005. Report of the Special Representative of the Secretary General on the situation of Human Rights Defenders, Com- mission on Human Rights Council 61st ses- sion, 31 January 2004 [E/CN.4/2005/101] Jilani, Hina. 2008. Report of the Special Representative of the Secretary General on the situation of Human Rights Defenders, Human Rights Council 7th session, 31 Janu- ary 2008 [A/HRC/7/28] Komnas Perempuan. 2007. Women Hu- man Rights Defenders: Struggling Under Pres- sure. Indonesia: Komnas Perempuan Real, Mary Jane N. and Chai, Michael, eds. 2006. Resource Book on the International Consultation of Women Human Rights Defend- ers. Chiangmai: APWLD Real, Mary Jane N. 2008. Women Human Rights Defenders Questionnaire Report. http:// www.defendingwomen-defendingrights.org/ resources.php

32 Vol. 6 No. 2 • december 2010 Human Rights Defenders

Irom Sharmila's Hunger Strike to Repeal India’s AFSPA

FORUM-ASIA initiated an in- 10th year of Irom Sharmila’s hunger go on a hunger strike after a massa- ternational petition against India's strike. A series of cultural programs, cre in the town of Malom, where 10 Armed Forces Special Powers Act literary and artistic activities, public civilians, including women and chil- (AFSPA). This is in solidarity with meetings, public rallies, and poster dren, were killed by a paramilitary the hunger strike of woman human campaigns will mark the countdown group on 2 November 2000. At that rights defender Irom Sharmila in which will culminate into a Festival time, Irom Sharmila was a volunteer protest of the draconian law. The pe- of Hope, Justice and Peace from 2 to working for Human Rights Alert and tition is also aimed to complement 6 November 2010. was involved in preparing for the In- the initiatives of its members and dependent People’s Commission of partners in India. These activities are Who is Irom Sharmila? Inquiry (IPCI). Human Rights Alert aimed towards facilitating the hu- had set up this initiative headed by man rights movement in Asia and Irom Sharmila, also known as the H. Suresh, a former justice of the around the world to stand as one in “Iron Lady of Manipur”, is a civil Bombay High Court, to examine the demanding that the Indian govern- rights and political activist, journalist prolonged impact of the AFSPA in ment should repeal the AFSPA so and poet. Since the beginning of No- Manipur. The IPCI released its find- that Irom Sharmila ceases her hunger vember 2000, she has been on a hun- ings which it submitted to the Union strike once and for all. ger strike demanding the Indian state of Home Ministry and called for the government to abolish the Armed immediate repeal of the AFSPA. At the same time, Civil society Forces Special Powers Act (AFSPA). groups in India launched a 100 Days The Malom massacre occurred a Countdown Campaign to mark the Irom Sharmila was prompted to week after the IPCI released its find- A campaign banner for activities marking the 10th anniversary of Irom Sharmila’s hunger strike.

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ings. The 8th Assam Rifles, a para- fles after it was ambushed by armed for the repeal of the AFSPA. On 6 military group, fired indiscriminately insurgents a few days earlier. November, three days after she start- at a group of civilians gathered at a ed her hunger strike, she was arrested bus shed at Malom. It was said to be It was this incident that made by the police and charged with “at- a retaliatory act by the 8th Assam Ri- Irom Sharmila go on a hunger strike tempted suicide”, a crime under Sec-

Petition AFSPA Must Be Repealed: Irom Sharmila’s 10-year Hunger Strike Must End Now!

We, the undersigned 108 human rights NGOs, human well as to enter and search without warrant any premises to rights defenders, and women human rights defenders from make arrests. The Act further stipulates that any officer of the all over the world, celebrate Ms. Irom Chanu Sharmila’s un- armed forces may only be prosecuted upon the permission of wavering courage for standing as a voice for thousands of the central government, a provision that further entrenches voiceless people demanding to repeal the Armed Forced the culture of impunity. Special Powers Act of 1958 (AFSPA). Her 10-year fasting symbolizes the journey of the people of Manipur and other The repeal of the AFSPA has been demanded over the areas of Northeast India for genuine peace and freedom years by the international community including the AFSPA Re- from violence. view Committee which formed by the Government of India as well as many human rights defenders in India and all over The direct cause for the hunger strike of Ms. Irom the world. In fact, in 2009, the High Commissioner for Hu- Sharmila is the Malom massacre in 2 November 2000 which man Rights, Ms. Navanethem Pillay, during her visit to India in had claimed lives of 10 civilians, including women and chil- March 2009, said that the Act breached "contemporary inter- dren, by the Indian security forces. Ms. Irom Sharmila took national human rights standards." The European Parliament, in an indomitable stand that she will only end her fast when 14 June 2010, also raised the demand for the repeal of the the Government of India repeals the AFSPA. Ironically, the AFSPA. In 2007, the UN Committee on the Elimination of Ra- Government of India responded to this act of peaceful pro- cial Discrimination urged the Government of India to repeal test by arresting her several times on charges of attempted AFSPA and replace it with a more humane Act within one year. suicide which is unlawful under Section 309 of the Indian The Committee on the Elimination of Discrimination against Penal Code. The cycle of arrests of Ms. Irom Sharmila has Women also asked the Indian Government to “provide infor- continued for the past 10 years. mation on the steps being taken to abolish or reform AFSPA.”

Ms. Irom Sharmila has been recognized internation- The criminalization of Ms. Irom Sharmila’s peaceful protest ally for her work on the issues of women’s empowerment, against the AFSPA violates Article 1 of the UN Declaration peace and human rights, and her non-violent means of fight- on Human Rights Defenders, which guarantees the right of ing for human rights. In 2007, Ms. Irom Sharmila has been human rights defenders and women human rights defenders awarded the Gwangju Prize for Human Rights and in 2010, to promote and protect the realisation of human rights. More- the Rabindranath Tagore Peace Prize. Despite the interna- over, restriction imposed on Ms. Sharmila depriving her access tional community’s recognition of Ms. Irom Sharmila’s work, with public media, human rights defenders and other people is the Indian government insists on keeping her under judicial in violation with said Declaration which ensure freedom of as- custody in the Security Ward of the Jawaharlal Nehru Hos- sembly and the right to communicate (Art. 5) and the right to pital in Imphal, Manipur, and forcibly feeding her through access and disseminate human rights information and to draw nasogastric intubation. public attention to human rights issues (Art. 6).

The AFSPA was initially introduced in 1958 and was en- Last 2 November 2010, Irom Sharmila as well as the peo- forced in Manipur in 1980, initially intended to be in effect ple of Northeast India marked a decade of hunger not only for only 6 months in order to maintain public order in areas for fundamental human rights but also for truth on the foun- deemed to be “disturbed” by the Indian government. How- dations of Indian democracy. We join the collective message ever, the AFSPA is still being implemented in Manipur until that we do not want another year of celebration of Ms. Irom now. The Act allows wider discretionary power to an officer Sharmila’s hunger strike and we do not want another year of of the armed forces to arrest without a warrant, and with the AFSPA’s enforcement in India. the use of necessary force, anyone who has committed cer- tain offenses or is suspected of having done so. Moreover, We, human rights defenders and women human rights de- the Act also grants officers of the armed forces to fire upon fenders, stand as one in demanding that the AFSPA should be or otherwise use force, even if this causes death, against any repealed immediately and that the hunger strike of Ms. Irom person who is acting in contravention of any law or order as Sharmila must end now.

34 Vol. 6 No. 2 • december 2010 Human Rights Defenders

tion 309 of the Indian Penal Code, and disharmony even among the Ma- In 2004, the Union of Home and was later transferred to judicial nipuri in the region. Ministry of India established the custody. Because of her refusal to Committee to Review the AFSPA. take food or water, Indian authori- According to Okram Ibobi, chief This committee was led by Justice ties had force feed her through a tube minister of Manipur, 8,000 civilians Jeevan Reddy, a former Judge of running up her nose (nasogastric in- and 12,000 members of Govern- the Supreme Court. In 2009, a bill tubation) to keep her alive while un- ment Forces and Armed Opposition amending the AFSPA was placed be- der arrest. Groups (AOGs) have been killed as fore the Indian Parliament for discus- of 2004 since the separatist move- sion by the Government of India. To Under the Indian Penal Code, ments started (1). From 2006 on- this day, the proposed amendments a person convicted of the crime of wards, an average of one person is have not yet been made public for a attempted suicide may only be im- killed extra judicially every two days discussion. (6) prisoned for no more than one year. (3). These killings include those from Hence, after each year lapsed the forced labour and internal displace- UN Human Rights Committee, Indian authorities would momen- ment, plunder, arson, use as human the UN Committee on the Elimina- tarily release Irom Sharmila, only to shields, torture, rape, enforced disap- tion of Racial Discrimation, and the re-arrest her under the same charges pearances, extrajudicial executions European Parliament. In 2009, the immediately thereafter. and massacres. UN High Commissioner for Human Rights, Ms. Navanethem Pillay, dur- Irom Sharmila has been recog- Because of similar situations in ing her visit to India in March 2009, nized internationally for her work on India’s Northeast and other places, said that the Act breached "contem- the issues of women’s empowerment, the Armed Forces Special Powers porary international human rights peace and human rights, and her Act (AFSPA) was enacted in 1958 by standards." (7) non-violent means of fighting for hu- the Indian government in order to man rights. In 2007, Irom Sharmila maintain public order in areas it had Notes: has been awarded the Gwangju Prize considered as “disturbed”.(4) The for Human Rights and in 2010, the Act allows an officer of the armed (1) The Hindu, Irom Sharmila awarded Rabindranath Tagore Peace Prize (1). forces to make arrests or conduct Tagore peace prize (12 September 2010), available at http://www.thehindu.com/news/ searches without warrant and with national/article627268.ece Manipur state under the AFSPA the use of necessary force, anyone (2) Human Rights initiative for indig- who has committed certain offenses enous advancement and conflict resolution, For nearly 2000 years, Manipur en- or is suspected of having done so. Human Rights in Manipur (2010), available at http://hrimanipur.org/index.php/human- joyed independence and sovereignty Moreover, the Act also grants officers rights-in-manipur as one of the kingdoms in Southeast of the armed forces to fire upon or (3) Ibid. Asia and had its own traditions and otherwise use force, even to cause (4) The State of Arunachai Pradesh, cultural heritage. In 1949, India an- death, against any person who is act- Assam, Manipur, Meghalaya, Mizoram, Na- nexed Manipur to become one of its ing in contravention of any law or galand and Tripura are considered as “dis- turbed” under the AFSPA 1958. states. Since the annexation by India, order. The Act also stipulates that (5) Amnesty International, India: Brief- various nationalist armed groups have the central government must give its ing on the Armed Forces (Special Powers) been active in Manipur. General dis- permission to prosecute any officer Act, 1958 (9 May 2005), available at http:// content, plundering of local resources of the armed forces, which in effect hrimanipur.org/index.php/human-rights-in- manipur. and lack of development became the further consolidates the phenomena (6) INDIA: Briefing on Armed Forces primary reasons for armed groups of immunity. Special Powers Act for Members of Par- to thrive in northeast India and ask liament (29 November 2009), available for an independence from the In- In 1980, the state of Manipur was at http://www.ahrchk.net/pr/mainfile. dian Union. The Indian government declared by the Indian government php/2009mr/691/ (7) IPS, Draconian Law under the Lens responded to this growing discon- as one of the “disturbed areas” and (21 September 2010), available at http://ip- tent through violent military attacks hence, under the AFSPA (5). This has snews.net/news.asp?idnews=52919 which in turn widened and deepened contributed to the rise of more and the degree and complexity of unrest more armed groups in the region.

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UN Human Rights Council Review 2011 Tailoring the Human Rights Council’s Response to Situations of Violations of Human Rights

Joint NGO Submission on the 2011 Review of the Human Rights Council by the African I. General Framework of Centre for Democracy and Human Rights Studies, ARC International, Asian Forum for Cooperation at the Human Rights Human Rights and Development (FORUM-ASIA), Asian Legal Resource Centre, Cairo Institute of Human Rights Studies, Canadian HIV/AIDS Legal Network, Centro de Estudios Council Legales y Sociales, Commonwealth Human Rights Initiative, Conectas Direitos Humanos, Democracy Coalition Project, East and Horn of Africa Human Rights Defenders Project, There has been much talk about Human Rights Watch, International Federation for Human Rights (FIDH), International improving cooperative approaches at Service for Human Rights, Open Society Foundations, West African Human Rights Defenders Network the Human Rights Council, particu- larly when it comes to addressing sit-

uations of violations of human rights 15 October 2010 around the world. Proponents of the use of more cooperative approaches This paper focuses on the role of their human rights obligations.” This argue that many countries would cooperation in the Human Rights paper proposes ways of effectively benefit from technical assistance to Council’s response to situations of using cooperation and dialogue as a address their human rights problems violations of human rights. It was tool to respond to situations of vio- and criticize the lack of mechanisms prepared through the collective effort lations. The response of the Council to respond to the technical assistance of the undersigned nongovernmental should be tailored both to the needs needs of States at the Human Rights organizations, all of which are com- arising in the specific situation and Council. They often criticize the use mitted to improving the response of the level of genuine cooperation and of socalled naming and shaming tools the Human Rights Council to assist engagement by the concerned State. because those approaches are said to the victims of human rights viola- have been unsuccessful in provoking tions. This paper also focuses on the im- change and have isolated rather than portance of avoiding selectivity when engaged those countries that are fac- General Assembly Resolution addressing situations of concern. ing human rights challenges. 60/251 states that “the promotion One way to address this would be for and protection of human rights the Human Rights Council to allow As Brazil recognized in its non- should be based on the principles of a restricted number of UN institu- paper on cooperation, cooperation cooperation and genuine dialogue tions or related mechanisms to bring needs the consent of the concerned aimed at strengthening the capacity situations of violations to its atten- State in order to work. Furthermore, of Member States to comply with tion for debate. cooperative approaches can only be

36 Vol. 6 No. 2 • december 2010 Human Rights Council Review 2011

used where there is a genuine will- When it comes to human rights the Council, it is therefore impor- ingness and commitment by the and the work of the UN, there are tant to take into account the qual- concerned State to acknowledge and varying levels of engagement in and ity of cooperation. It is not enough address the violations taking place on commitment to genuine dialogue by for governments to participate in the its territory or in territory under its States. Mechanisms such as the UPR UPR or to accept the existence of a effective control. Yet, when egregious and the Special Procedures have Special Procedure. The government’s violations of human rights are taking helped test the openness to inter- engagement with these and other place, the concerned State frequently national scrutiny and willingness of human rights mechanisms needs to dismisses the allegations or makes no States to address human rights viola- demonstrate a commitment to ad- genuine efforts to address violations. tions, as have country specific man- dressing human rights problems and In these cases, violations often occur dates and fact finding missions. The their solutions. Cooperation is about as a deliberate policy of the State, practice of the Human Rights Coun- allowing unhindered access to infor- rather than because the State fails to cil has shown for instance, that a mation, engaging transparently, rec- act or lacks the capacity to protect number of States have been willing to ognizing violations and taking steps human rights. use the UPR to reflect on their weak- to address them. nesses and have engaged in a genu- It is clear that all stakeholders fa- ine debate on the solutions. At the For cooperation to work, the re- vour an approach which reinforces same time, other States have sought sponsibility to cooperate with the the full range of approaches to coop- to camouflage any criticism of their mechanisms of the Human Rights eration, including when addressing rights record during the UPR by or- Council should fall equally upon all situations of violations. However, chestrating praise by friendly States governments. The Human Rights most proponents of cooperation or by denying the existence of prob- Council should recognize the efforts concede that in situations where vio- lems and rejecting outright the prof- of those that cooperate and engage lations reflect intentional repressive fered recommendations. The same genuinely, distinguishing them from state policies, technical cooperation discrepancy can be observed in the those that clearly fail to do so. It cannot solve the problem. So how way in which governments engage should develop a system that treats can the Human Rights Council iden- with Special Procedures. While some those states that engage in good faith tify the situations where cooperative States are open to Special Procedures differently from those that prevent strategies are appropriate and useful? visits, monitoring and advice, other scrutiny and resist genuine dialogue. And how can it improve its response States are averse to it, rejecting the to situations in which the concerned findings of Special Procedures or re- In order for the Human Rights State lacks the will necessary to ad- fusing to engage on the substance of Council to pursue a cooperative ap- dress the violations? their conclusions, particularly on is- proach in a given situation, a con- sues where the government is known cerned State should meet three basic II. In which situations can to face significant challenges. requirements. It should: cooperative approaches be pursued? In order to strengthen the gen- 1. acknowledge the violations that eral framework of cooperation in are the source of the Human In order for cooperative ap- proaches to yield results it is impor- tant to draw distinctions between governments that engage in genuine dialogue and cooperate with the Hu- man Rights Council and its mecha- nisms, and those that don’t. If such distinctions are not drawn, there is a risk that some governments will use the idea of cooperation as a way of avoiding scrutiny or accountability rather than to address real human rights challenges.

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Rights Council’s concerns; Tool & objective Examples of response Examples of response when 2. allow unhindered access wean concerned State concerned State engages in to information including engages in a non-coop- a cooperative approach. insitu by independent ac- erative approach tors such as the UN High Fact Finding An international inde- The concerned State is Specific action carried pendent commission, involved in the fact-finding Commissioner for Human out to obtain and clarify fact-finding mission or process. This involvement Rights, UN Rapporteurs, facts of a situation when group of experts is ap- could take different forms such media and human rights they are disputed, un- pointed and dispacted to as a hybrid international and defenders; and known or require inter- investigate the fact and national fact finding mission or 3. demonstrate a verifiable national investigation. report back to the Hu- inviting the concerned State to commitment to remedy man Rights Council. provide an annex as part of the these violations through fact-finding report. concrete action, including Monitoring Special Procedure In addition to reports by rel- with the assistance of the Unlike fact-finding, moni- mandate on a country or evant Special Procedures, the toring is the observation specific situation, visits concerned state participates Human Rights Council. of a situation over a and reports. in discussions and presents its sustained period of time. own report on the situation. These three conditions This is particularly useful would allow the Human in prolonged or chronic Rights Council to draw an situations of violations of objective distinction between human rights. governments committed to Human Rights Coun- Special Session Special Session is conducted engaging with the UN hu- cil debate of the situ- following consultation with the ation concerned State. man rights system in a bona fide way and those that are Urgent Debate Urgent debate is conducted not. These conditions can be following consultation with the equally met by all States. They concerned State. only require the political will of the State and are not de- Briefing in the HRC is organised by the UN with the pendent on a State’s capac- involvement of the concerned ity to address human rights State and the participation of violations through financial relevant actors in the filed of or other means. Being able to human rights. assess a government’s level of Decisions and out- Resolutions Resolutions or presidential engagement can help the Hu- comes of the Human statements expressing views of man Rights Council tailor its Rights Council the HRC on areas of concern. response in order to ensure Declaration of Commitment by that cooperative governments the State to take priority ac- are provided with the assis- tion to remedy the situation tance they need to secure hu- man rights improvements on Record of the debate the ground. Technical Assistance Technical assistance can only be effective with the co- operation of the State. By its nature, technical assistance The tools that the Council Technical cooperation requres the concerned State to agree to an assistance uses to address situations of is a concrete tool used plan and to support its implementation. Recommendations to assist government to from Special Procedures and from UPR can help guide violations serve not only to fulfill their human rights areas in which techical assistance can be provided. The Hu- respond to identified needs obligations by helping man Rights Council could also decide to dispatch techni- but to provide incentives for them build their capacity cal assistance missions aimed at independently assessing cooperation. The next section in specific and specialized the technical assistance need in a country. The concerned identifies ways of adapting the areas. State’s views, coupled with Special Procedures and UPR tools of the Human Rights recommendations emanating from an independent assess- ment should together provide basis for an agreement on Council to match the level the technical assistance to be implemented.

38 Vol. 6 No. 2 • december 2010 Human Rights Council Review 2011

of cooperation from the concerned cil’s attention for debate. This would a genuine dialogue with the Hu- State. in no way preempt or determine the man Rights Council on the prob- Human Rights Council’s response to lem and solutions. III. Tools to address situations the situation but would ensure a less of violations and incentives for selective approach to situations. The The concerned State’s response to cooperation following actors could be requested the tabling of an issue at the Council to alert the Human Rights Council will then be reflected in the Coun- The Human Rights Council has on situations that need to be consid- cil’s discussion. As noted, the Hu- a number of tools at its disposal ered: man Rights Council will need to to respond to situations of human reflect on which tools are appropri- rights violations and implement the a. The UN SecretaryGeneral ate to address the situation at hand mandate provided by GA Resolution b. The UN High Commissioner for and tailor its response to the level of 60/251. These tools can be used in Human Rights cooperation of the concerned State. different ways in order to respond c. The President of the Human The Human Rights Council also has to varying degrees of cooperation by Rights Council the possibility of identifying innova- the concerned State. The chart below d. A group of at least five Special tive ways of addressing the situation. shows that a tool such as factfinding Procedures could be implemented in different It is essential for the Human ways depending on the approach of The request by the HighC ommis- Rights Council to consider victims the concerned State. It looks at ways sioner, the UN SecretaryGeneral, the needs first when addressing a situa- of “rewarding” cooperation without Human Rights Council President tion. The aim should be to ensure an changing the nature of the Council’s or five Special Procedures would be end to the violations and remedies engagement. As this chart illustrates, formally tabled and would explain in for victims. Fact finding missions, when a State is cooperative, it has the writing why it is important for the commissions of inquiry and special advantage of being able to help de- Human Rights Council to consider procedures missions can be useful fine and participate in the Council’s the issue. The Council would con- when trying to clarify the facts and actions. vene a session to discuss the situation document the violations so that vic- of concern at the earliest possible tims’ needs are adequately addressed. IV. Process through which the time. The outcome of that discus- Human Rights Council chooses its sion would be entirely dependent on V. Conclusion response to a given situation member States. The aim of this paper is to con- Ensuring nonselectivity in Once it has been suggested that tribute in a constructive manner Council discussions on areas of hu- an issue be taken up, the concerned to the 2011 review of the Human man rights concern State should have an opportunity to Rights Council. We hope the ideas in respond. As noted, a State can set the this paper will help shape the debate Currently there are different ways Council’s engagement on a coopera- on improving cooperative approach- in which situations are brought for- tive track by: es and more effective engagement in ward for discussion by the Human the Human Rights Council. As stat- Rights Council, all of them Stat- 1. acknowledging the human rights ed, we believe that the ultimate goal edriven. States have used special violations raised by the Human of this work should be to improve sessions, urgent debates, informal Rights Council; the Council’s ability to address the briefing and/or tabled decisions or 2. allowing unhindered access to needs of victims of human rights vio- resolutions in order to address a situ- information on the situation, in- lations. We encourage governments ation. cluding insitu, by relevant stake- to adopt the recommendations con- holders, including UN mecha- tained in this paper in order to create In order to avoid selectivity and nisms, human rights defenders a more impartial, less selective and double standards, the Human Rights and the media; and more transparent process to address Council could also consider allowing 3. demonstrating a verifiable com- situations and strengthen coopera- a restricted number of independent mitment to remedy these viola- tion and genuine dialogue in the Hu- institutions or mechanisms to bring tions through relevant concrete man Rights Council. issues to the Human Rights Coun- action and is willing to engage in

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Views from the Ground

Preliminary results of a survey of national NGO perceptions on the work and function of the Human Rights Council

Oral Statement Delivered by Ms. Giyoun Kim on behalf FORUM-ASIA on 25 October stakeholders. Furthermore, the UPR 2010 during the st Meeting of the OpenEnded Intergovernmental Working Group on the mechanism should be equipped with Review of the Work and Functioning of the UN Human Rights Council. followup procedures at the Council level for midterm or periodic updates Thank you, Mr. President. FO- rights violations. Meanwhile, the on the status of implementation of RUM ASIA firmly believes that the views from the ground point out that recommendations. Council’s review of its work and the foremost obstacle hindering the functioning should be centered on a Council from adequately addressing Mr. President, this Working Group substantive assessment as to how ef- human rights violations is the ten- also should pay attention to the voices fectively the Council has been fulfill- dency of States to respond to the in- that the impact of the actions taken ing its mandate and responsibilities, terests of regional or political groups by the Council has been rarely felt on which should be rooted in the needs rather than human rights causes. The the ground. The Council should seek and experiences of victims of human failure of the Council in addressing tangible solutions for effective coordi- rights violations as well as human the issue of noncooperation by States nation and mainstreaming with the rights defenders on the ground. In with it and its suborgans also serious- UN system as well as for cooperation this light, FORUMASIA together ly undermines its credibility. As such, with regional human rights mecha- with Cairo Institute for Human we present these as most pertinent is- nisms. Awarenessraising and coherent Rights Studies, Conectas Direitos sues during the deliberations of this action at the national level need to be Humanos and International Service Working Group. undertaken for the resolutions and for Human Rights have conducted a decisions adopted by the Council to survey to solicit views and inputs of Mr. President, the Universal Pe- be actualized beyond remaining as the NGOs outside Geneva, in particular riodic Review (UPR) has potential written outcomes of intergovernmen- those at the local and national levels, to further enable the participation tal diplomatic exercises in Geneva. in anticipation of enhancing the rel- of stakeholders at the national level. In addition, barriers for the victims evance of this review process to the However, the NGOs on the ground and human rights defenders to have perspectives and expectations from emphasize that the strength of the access to and interact with Special the ground. UPR can only depend upon how far it Procedures mandate holders, such as is viewed as an inclusive and ongoing limited numbers of country visits, re- The survey results indicate that process in the country. The barom- stricted time allocation during the in- while the Council has made merits eter for the UPR to be a meaningful teractive dialogues at the Council ses- in serving as a forum for dialogue mechanism is the full involvement sions, and risk of facing intimidation on thematic issues on human rights, and genuine consultation process at and reprisals, should be thoroughly the work of the Council to prevent the national level with victims, civil examined by this Working Group. human rights violations and respond society, parliamentarians among other Thank you, Mr. President. promptly to human rights emergen- cies remain as the area in need of Accessibility most improvement. In this regard, the Council should provide opera- How has your organization engaged with or participated in the tional devices to drive the implemen- work of the HRC? tation of States’ human rights obli- 27% Participate in UPR gations and strengthen its tools to 24% Cooperate with Special Procedures detect emerging situations of human 24% Attend sessions of the HRC or its sub-organs for advocacy activities

40 Vol. 6 No. 2 • december 2010 Human Rights Council Review 2011

Survey Findings on the Performance of the HRC Credibility

Which mandate of the HRC has been best interaction achieved? 27% HRC does not dedicate enough time and at- 29% Serve as a forum for dialogue on thematic issues on tention to follow-up to previous resolutions all human rights and reports by the special procedures 21% Make recommendations with regard to promotion 26% Arrangements for the participation of NGOs and protection of human rights in UPR plenary sessions are not favourable to 17% Address and make recommendations on situations the realities faced by national NGOs of HR violations, including gross and systematic violations

Which mandate of the HRC needs most improve- ment? 23% Prevent human rights violations and respond promptly to human rights emergencies 17% Promote the full implementation of human rights obligations by states and follow-up commitments from the UN conferences 15% Address and make recommendations on situations of HR violations, including gross and systematic violations

What is the foremost obstacle to be tackled by the HRC in its efforts to effectively address viola- tions of human rights? 33% States tend to respond to the interests of regional or political groups rather than human rights causes Visibility 23% HRC fails to address the issue of non-cooperation What is the main reason why there is little by States with it and its sub-organs or no national media coverage of the work of 22% Merely emphasizing cooperative spirit and dialogue, the HRC? the HRC fails to hold States accountable 30% Journalists and media workers have little un- derstanding on the work of the HRC What is the area to be prioritised by the HRC in 24% There is little effort made by the government its efforts to promote effective coordination and to publicise its interventions and activities at mainstreaming within the UN system, as well as the HRC cooperation with regional mechanisms? 17% The situation of our country is hardly dis- 29% Awareness-raising and coherent action for the im- cussed at the HRC plementation of resolutions and decisions adopted by the HRC What is the perception of victims (or the 25% Guidance into the development of regional human representatives of victims) of human rights rights instruments for consistency with interna- violations on the work of the HRC? tional norms and standards 29% Many victims are not aware of the work of the 19% Active solicitation of their inputs into the work of HRC the HRC 25% Recommendations from the HRC and its sub- organs are important however they usually Which of the following challenges needs to be remain unimplemented most addressed with respect to the methods of 15% The HRC has few mechanisms for directly work of the HRC? considering the voices of victims 32% The limited time allocation for NGOs during the interactive dialogues with the special procedures or at the panel discussions does not allow substantive

ASIAN human rights defender 41 Human Rights Council Review 2011

7 Issues to Strengthen the Universal Periodic Review

This list of issues was delivered in a Joint Oral Statement of 37 NGOs on the Universal Periodic Review (UPR), including Action Canada for Population and Development, African Women Millennium Initiative in Zambia, Amnesty International, Introducing ARC International, FORUM-ASIA, Baha’i International, Cairo Institute of Human Rights Studies, Canadian HIV/AIDS Legal Network, Centre for the Development of OHCHR Democracy and Human Rights, CODAPYouth Resource Center on Human Rights, 2 CIFEDHOP, Coalition pour l’Examen Périodique de la Côte d’Ivoire, Commonwealth compilation and Human Rights Initiative, Conectas Direitos Humanos, CRIN, Democracy Coalition Project, Edmund Rice International, International Federation for Human Rights (FIDH), summary FIACAT, Forum Human Rights Germany, Foundation for Marist Solidarity International, Four Freedoms Forum, Geneva for Human Rights, Franciscans International, Human Rights House Foundation, Human Rights Law Resource Centre, Human Rights Watch, International Service for Human Rights, NGO Group the CRC, North South XXI, Opportunities should be given OceaniaHR, Open Society Foundations, Save the Children, Unrepresented Nations during the interactive dialogue and Peoples Organization, UPRInfo, Vivat International and World Vision International for the OHCHR compilation of UN information and summary National consultations with of stakeholders’ submissions to stakeholders be introduced to the UPR Work- 1 ing Group. The UPR is based on three reports: the national report, National consultations should be well prepared, be based the OHCHR compilation of UN on a clear timeframe and held well in advance of the prepara- information and the OHCHR tion of the national report and fully include civil society. Ac- summary of information by cording to resolution 5/1, States are “encouraged” to hold a stakeholders, including NGOs. “broad consultation process at the national level with all rel- Currently, only the national re- evant stakeholders.” However, the nature of such consultations port is introduced during the is not detailed and varies drastically from country to country. UPR Working Group by the State National consultations should be held systematically in every under Review. The two other doc- country, follow standards developed by the OHCHR and in- uments could also be introduced volve a broad range of civil society actors, including NGOs. during the review in the Working Group to provide for a complete picture of the human rights situa- Recommendation tion in the country. 3 Recommendations should be focused, actionoriented and clustered thematically in the outcome report. Particular attention should be giv- en to recommendations which are based on recommendations from other human rights mechanisms. The high interest in the UPR has translated into numerous, general and broad recommendations made to States under Review. Focused and action-oriented recommendations would facilitate their effective implementation on the ground and their further assessment process.

42 Vol. 6 No. 2 • december 2010 Human Rights Council Review 2011

Responses to Second cycle 4recommendations 6 Responses to each recommendation should be The second cycle should be devoted to both the provided in advance and in writing. All recommen- assessment of the implementation of recommen- dations should receive a response and reasons for dations made in the previous review and an assess- rejection should be provided. Recommendations ment of the current human rights situation in the should not be rejected for reasons that are incon- State under review. Resolution 5/1 stipulates that sistent with the SuR’s international human rights “the subsequent review should focus, inter alia, on obligations. In order to strengthen the process, the implementation of the preceding outcome”. States should provide responses to all recommenda- The second cycle should devote time to assess both tions in advance of the HRC adoption and in writ- the implementation of recommendations made ing, following a consistent approach based on good during the previous cycle and the evolution of the practices already developed. Reasons for rejection human rights situation since the previous cycle. of recommendations should be explained and not The three documents on which the review is based contrary to the Vienna Convention on the Law of should reflect those two assessments. Treaties and other obligations under international human rights law. Non-ECOSOC NGO 5Followup assessment 7participation Mechanisms and modalities for the assessment of NGOs without ECOSOC status should be the implementation of recommendations should be able to make comments on the UPR outcome at developed and the civil society should play an active the plenary adoption. NonECOSOC accredited role in this process. No particular followup assess- NGOs are allowed to provide information on ment mechanism exists to date. To ensure the pri- the human rights situation in the country under mary objective of the UPR to “improve the human review. Those NGOs without ECOSOC status rights situation on the ground”, the HRC should should also be able to take part in the adoption tackle this issue by ensuring that the implementation stage by taking the floor during the HRC plenary’s of recommendations is assessed between two reviews. consideration of the outcome.

HRC Review Survey Results on UPR What is the strength of the UPR which needs to be reinforced by the What should be the ways and methods Which area needs most HRC? for effective follow-up to Universal Peri- improvement to make UPR a 24% UPR takes a holistic approach by odic Review (UPR) recommendations? meaningful mechanism? reviewing all HR issues as well as all 29% The State translates the recom- 32% Full involvement and genu- of the State’s obligations and com- mendations into national HR action ine consultation process at mitments plans in consultation with all relevant the national level with all 20% The UPR enables participation of all stakeholders relevant stakeholders relevant stakeholders including non- 21% The HRC establishes follow-up 29% Tools to ensure effective ECOSOC NGOs through submis- procedures for midterm or periodic follow-up to the UPR rec- sion of stakeholders’ information updates on the status of implementa- ommendations 17% The UPR allows scrutiny of human tion of the recommendations 18% Provision of recommen- rights situations of the States that 19% The State mainstreams the recom- dations that are action- have ratified few core human rights mendations into the work of all oriented, time-bound and treaties state organs, including government consistent with internation- 17% The UPR is designed to ensure uni- ministries, local government and the al Hr norms and standards versal coverage and equal treatment judiciary of all states

ASIAN human rights defender 43 Advocacy

On the Rules of Procedure, ASEAN Declaration of Human Rights and the Work Plan of AICHR

Submission to the AICHR Meeting 20-24 September, Kuala Lumpur

1. WE represent more than 50 cedure, its work plan and the draft- the work of AICHR as stipulated civil society and people’s organiza- ing process of the ASEAN Human in Article 4.9 of the Terms of Refer- tions from Southeast Asian region Rights Declaration. ence. participating in the Third Regional Consultation on ASEAN and Hu- On the Rules of Procedure of the 6. The rules of procedure should man Rights, organized by the Soli- AICHR acknowledge the existence of differ- darity for Asian Peoples’ Advocacy ent stakeholders on the protection Task Force on ASEAN and Human 4. We are concerned that after al- and promotion of human rights in Rights (SAPA-TF AHR), from 16- most a year since its inauguration, ASEAN region, including civil soci- 18 September in Kuala Lumpur, the AICHR has yet to adopt a set of ety organizations, people’s organiza- Malaysia. rules of procedure. The presence of tions and the national human rights the rules of procedure is important institutions. 2. We wish to express our disap- to determine how the AICHR will pointment on the failure of AICHR carry out its work and lay out its re- 7. We strongly urge the AICHR to respond to requests from the lations with other parties. However, to consider the proposal submitted SAPA-TFAHR and the Southeast we reiterate that the absence of the by the SAPA Task Force on ASEAN Asian National Human Rights In- rules of procedure should not stop and Human Rights on the rules of stitution Forum (SEANF) to meet AICHR from meeting with civil so- procedure of AICHR during the 1st with their delegations. This failure ciety organizations and other stake- AICHR meeting in Jakarta, March is in contradiction to the ideal of holders who wish to provide input 2010. a people-oriented ASEAN, as envi- and recommendations on the rules sioned in Article 13 of the ASEAN of procedure of AICHR and other Charter, “To promote a people- related matters. We urge AICHR On the Work Plan of AICHR oriented ASEAN in which all sec- to adopt as soon as possible, pro- tors of society are encouraged to cedures which will enable it to 8. We welcome the adoption of participate in, and benefit from, the work effectively for the protection the first workplan of AICHR by process of ASEAN integration and and promotion of human rights in the ASEAN Ministerial Meeting in community building.” ASEAN in accordance with interna- July 2010. We call upon AICHR tional law and standards. to apply fully international human 3. We would like to make this rights standards in implement- submission to the ASEAN Inter- 5. The rules of procedure should ing the workplan. For meaningful governmental Commission on Hu- also provide space for dialogue and participation and transparency, we man Rights ahead of its meeting engagement with civil society as urge AICHR to inform the public on 20-24 September 2010 in Kuala stipulated in the Terms of Refer- about its planned activities and the Lumpur. This submission concerns ence, Article 4.8 and modalities on progress as stipulated in Article 6.7 the status of AICHR’s Rules of Pro- consultation with civil society on of the Terms of Reference that “the

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AICHR shall keep the public peri- b. Designation of a focal person On the ASEAN Human Rights odically informed of its work and within the AICHR for each dis- Declaration activities through appropriate pub- advantaged and marginalized lic information materials produced group to address specific issues. 15. Members of the Task Force by the AICHR” that will draft the ASEAN Human c. measures to ensure ASEAN states Rights Declaration must be inde- 9. We urge AICHR to include adopt minimum standards for pendent, competent and possess the regular and frequent consultations the recognition and protection necessary expertise in human rights. by commissioners with civil society of the rights the disadvantaged External independent experts work- in their respective countries in the and marginalized sectors, includ- ing on different fields of human workplan. Representatives should ing recognition of the collective rights should be appointed to the report back to AICHR on feedbacks rights of Indigenous Peoples, as Task Force to ensure that the uni- from the stakeholders. set out by international human versality, indivisibility and interde- rights instruments. pendence of all rights, in line with 10. The workplan should include international standards, are safe- a review of human rights situation 13. The workplan should allow guarded. The selection of the task in each member state. flexibilities that will enable AICHR force members should be conducted to deal with urgent and serious hu- with participation and consultation 11. We welcome the decision to man rights developments promptly of civil society. embark on a first thematic study and in a timely manner. by AICHR on the issue of corpo- 16. The Terms of Reference for rate social responsibility. The terms 14. In view of the continuing the Task Force should provide for of reference of this thematic study widespread and systematic viola- an inclusive, transparent process. It should include the objective of ex- tions of human rights and interna- should provide for regular consul- amining corporate responsibility tional humanitarian laws in Burma, tations with civil society and other in the region and the role of states and the intensification of suppres- stakeholders at national and region- in ensuring corporate responsibil- sion of freedom of expression, asso- al levels, and publish drafts widely ity. The thematic study should pro- ciation and assembly in the run-up to allow comments from stakehold- duce recommendations on ensuring to the elections, we call upon the ers. Experts from inside the region corporate responsibility to human AICHR to address this appalling and outside it should also be con- rights, including a legally binding situation as a matter of urgency. sulted. regional instrument in ASEAN. This should include obtaining infor- mation from the Burmese authori- 17. The Terms of Reference 12. The workplan should also ties, under Article 4.10 of the Terms should ensure that the ASEAN Hu- include thematic studies and other of Reference, on the human rights man Rights Declaration complies programs addressing the human situation. In particular, information with international human rights rights situation of disadvantaged should be sought on the steps taken laws and standards, in line with and marginalized individuals, to ensure that human rights law and AICHR’s obligation under Article groups and peoples, including wom- standards are respected and protect- 1.6 of its Terms of Reference, “to en, children, the elderly, indigenous ed during the election period and uphold international standards as peoples, persons with disabilities, beyond, that political prisoners are prescribed by the Universal Dec- migrants, refugees, homeless and released unconditionally, and that laration of Human Rights, the Vi- displaced peoples and ethnic minor- systematic violations of the human enna Declaration and Programme ities, as well as lesbian, gay, bisexual rights of ethnic nationalities cease. of Action, and international human and transgender people and people rights instruments to which ASEAN in detention. This should include: Member States are parties.” a. conduct of dialogues and meet- Kuala Lumpur, 19 September 2010 ings with the leaders and repre- SAPA Task Force on ASEAN sentatives of affected groups to & Human Rights develop effective strategies.

ASIAN human rights defender 45 Advocacy

Fifth, we strongly urge the APF to 8 Points for the APF be mindful of its members’ vital role of engaging with international human rights mechanisms. We propose that the APF From the Asian NGO Network assists its member institutions in devel- on National Human Rights Institutions (ANNI) oping their expertise and capacity on submitting substantial reports to UN treaty bodies and in ensuring that the We the members of the Asian NGOs work with NGOs in helping develop recommendations of these bodies are Network on National Human Rights In- these references. Hence, we feel that it implemented by their governments. We stitutions (ANNI), thank the Asia Pacific would be important that there should be also propose that the APF encourages Forum (APF) for the opportunity to a commitment from the member insti- its member institutions to proactively speak in this forum. We note the changes tutions of the APF to seriously consider engage with the UN Special Procedures, to the usual format of the APF meeting, and take clear steps to implement these particularly on advocating their govern- and we sincerely hope that these chang- recommendations. For instance, we ap- ments to extend invitations to mandate es were not meant to preclude meaning- preciate the practical steps issued by the holders for official country visits. ful participation of civil society groups in APF with respect to its 5 member insti- the discussions of the APF. tutions (Australia, Philippines, Mongolia, Sixth, we welcome the proposed es- New Zealand, and Indonesia) to help tablishment of sub-regional offices by the From 1-2 August 2010, the ANNI them implement the reference of the APF. We trust that these sub-regional of- and defenders from groups working on ACJ on SOGI issues. fices will be established in countries ac- sexual orientation and gender identity cessible to human rights defenders from (SOGI) issues, met to discuss emerging Third, we welcome the recommen- nearby areas, and that the APF ensures topics relevant to national human rights dation from the APF donor review on that there will be an entrenched mecha- institutions (NHRIs) in Asia, as well as to developing a mechanism for civil society nism for working with civil society in dialogue with the NHRIs from the region. participation in the APF annual meetings. these sub-regional offices. During this meeting, after extensive dis- We would like to inquire however what cussions, the participants came to agree are the steps being taken to develop this Seventh, we urge the APF to play on eight (8) points which we are now mechanism. The ANNI also offers its as- an active role in the workshops on the putting forward for the APF to consider sistance in developing such a mechanism. regional cooperation in the protection during its strategy-planning process. and promotion of human rights. We em- Fourth, we note the importance of phasize this since the Tehran Framework First, we note that many reports training programmes for the purpose of identifies NHRIs as one of the four pillars from the NHRIs this year reflect the is- improving the work of NHRIs. On this in the promotion and protection of hu- sues raised by the ANNI in its previous point, we call upon the APF to ensure man rights in the region. The APF should reports. We appreciate this as a sign that that such training programmes are given also build the capacity of its members in NHRIs are listening to the voices of civil to its member institutions. It is impor- promoting the adoption of national hu- society and placing value on civil society’s tant for the APF to emphasize that these man rights action plans (NHRAPs) by views with respect to their work. To fur- training programmes are not only for the governments and monitoring the imple- ther enrich these reports, we propose staff of NHRIs, but also for its members, mentation of these plans. that the APF develops a template for including chairpersons. We also believe reporting for its members, which would that members and staff of specialized Eighth, we urge the APF to work include information on how the NHRI NHRIs (e.g. women’s commissions and with parliaments and governments in protects human rights defenders and Dalit commissions) should be included countries where there are no NHRIs women human rights defenders on the in these programmes. Moreover, in con- and assist them in the establishment of ground. This is important since we see a ducting these trainings for NHRIs, the Paris Principles-compliant institutions in rising trend of violence against defend- APF must ensure that the participants their countries. We also urge the APF to ers, particularly against those working on are given the opportunity to study past include these parliaments and govern- the issues of freedom of expression and and present references of the ACJ so ments in the meetings of the APF so that sexual orientation and gender identity that they can be fully utilized by NHRIs they would be exposed to other mod- (SOGI). The ANNI extends its offer to in their work. We further encourage the els in the region and learn to appreciate assist the APF in developing this template APF to utilize the existing expertise from the value of establishing an NHRI for for reporting for its member institutions. civil society in these trainings by inviting the promotion and protection of human civil society representatives as resource rights in their country. Second, we note that the APF invests persons to speak to the members and With these eight points, the ANNI huge amounts of time and resources staff of NHRIs and to share with them reiterates its commitment to engage towards the development of the refer- their work. This may also pave the way with the APF and its member institu- ences of the Advisory Council of Jurists towards better understanding between tions in promoting and protecting human (ACJ). We welcome the APF’s efforts to civil society groups and NHRIs for bet- rights in Asia. ter collaboration and cooperation.

46 Vol. 6 No. 2 • december 2010 Featured Project

Recognising Traditions in Civil Registration of Indigenous Peoples

Sohoon Lee

The current birth registration sys- recognize, protect and promote the yans, like the most of the Filipino tem of the Philippines is culturally rights of indigenous peoples. NSO indigenous people, live below the insensitive to the traditional lifestyle A.O. No. 3 Series of 2004: Rules and poverty line, and the policies and the of the indigenous peoples (IPs). This Regulations Governing Registration rules can only work when due con- is alarming especially given the fact of Acts and Events Concerning Civil sideration to their socio-economic the indigenous peoples comprise a Status of Filipino Indigenous Peoples conditions is paid. significant proportion in the Filipino also says that “the State shall recog- population—8% according to an of- nize, respect and protect the rights of The Mangyan Civil Registration ficial source and as high as 18% ac- the ICCs/IPs to preserve and develop Project under the partnership of cording to an unofficial survey. their cultures, traditions and institu- FORUM-ASIA and Team Mission tion. It shall consider these rights in Philippines Inc. with PMU Interlife The cultural rights of the indig- the formulation of national laws and and Local Churches, and Indigenous enous peoples are enshrined in Uni- policies.” Cultural Communities has met dif- versal Nations Declaration on the ficulties when registering children Rights of Indigenous Peoples (UN- Despite the said commitment from the Mangyan traditional mar- DRIP) as well as the national laws from the Government, the imple- riages as well as children adopted ac- of the Philippines—the 1987 Con- mentation of the mandate has ne- cording to the Mangyan customary stitution and Indigenous Peoples glected socio-economic dimensions laws. This has prevented some in- Rights Act (IPRA), which seeks to of the indigenous people. The Mang- digenous children from being regis-

ASIAN human rights defender 47 Featured Project

tered—which is to say not only vio- ries of administrative paperwork and clerical errors and erroneous infor- lation of one’s cultural rights but also pay administrative fees. Considering mation are entered into the marriage denial of one’s basic right to name, the burden that the traveling time contracts rendering it an ineffective identity, nationality and identifica- (which is often more than a day), the document and a burden to correct. tion of civil status. travelling cost and the administrative fees imposes, altogether with the rate UNDRIP and the mentioned na- NSO A.O. No.3 Series of 2004 of illiteracy and unfamiliarity with tional laws clearly dictate the respon- Rules 2.7 defines Persons Authorized administrative requirements, it is not sibility of the Government to in- to Solemnize Marriage as “commu- a surprise to see rarity of the certi- corporate the indigenous traditions nity elders, tribal leaders or authori- fied tribal leaders. This shows that and customary laws in matters such ties and traditional socio political cultural rights can only be protected as marriage, family formation, and structures certified by NCIP”, and when their socio-economic rights are education. It is a responsiblity of the Rule 8 declares traditional mar- addressed at the same time. Government of the Philippines to riages in accordance with customary devise and implement a civil registra- laws, rites, traditions and practices One solution that local officials re- tion process and an education system as valid. However, for a tribal leader sort to legitimize customary law mar- that are sensitive to the indigenous to be certified, s/he has to travel to riages is to conduct mass weddings. cultures, taking into consideration the local NCIP office, undergo a se- However, it has been observed that their socio-economic concerns. Becoming Citizens An experience of birth registration of indigenous peoples FORUM-ASIA met with Concepcion Sumbad Fontaron, a local deputized Birth Registration Agent and Facilitator in the Citizenship Program of Team Mission Philippines Inc. (TMPI). The Citizenship Program has been carrying out the civil registration of the local indigenous peoples (as known as Mangyans) in the town of Victoria and neighbouring towns in Oriental Mindoro, the Philippines.

FORUM-ASIA (FA): Can you tell me your role in the Citizenship Project? Concepcion Fontaron (CF): I’m the women’s facilitator at the Team Mission Philippines and at the same time the Citizenship Program Facilita- tor. I am trained as Deputized Birth Registration Agent (DBRA) and per- form registration of Mangyans in the villages. I am Mangyan myself and work with other educators and leaders of the community.

FA: So what villages have you entered? CF: We went to 3 Barangays in Bongabong, many villages in Lisap in- Children peer through a public school window in Mindoro, Philippines. Indigenous children are often excluded from availing of state social services because they do not cluding: Fanuban, Atoy, Akliang, Liguma, not have birth registration papers. Bahayao, Hingin, Cigao, Alianon. There are also other villagers from nearby and distributed to people, and at least about ten people together. My other who came down to Cigao. 1,500 more are in process. companions are educators TMPI staff and we arrange time to go to a village FA: How many people did you FA: How does the registration pro- together. We first ask permission of Si- register? cess exactly work? tio leaders who will announce to the CF: 645 cases have been finished CF: We usually travel as a group, people the time our team will come.

48 Vol. 6 No. 2 • december 2010 Featured Project

Or else, we go to the village on their Mangyans don’t have a marriage ceremo- tion, if the neighbour doesn’t have a market day. The market day is good ny. According to the Mangyan tradition, boy and you have many, you just give because everyone from the nearby marriages are arranged by their parents one to the neighbour. Likewise, if your communities comes to the market, and that is it-- no marriage ceremony. neighbour has many children and can’t and people from far away come to the That’s our culture. But this marriage is feed them all, you adopt one. If the market to sell their products, so we get not recognized by some government of- neighbour child is orphaned, you adopt to register many people from other fices because it is not done by a marrying one too. But according to the laws of villages. It’s also a good place to meet official. They are married in a traditional the Philippines, you have to go through Sitio leaders to whom we tell our plan way but they don’t have a paper to prove the Department of Social Welfare and to visit their villages. We set up a little it. That’s why the villagers request a mass Development and apply for adoption booth to explain to people there the wedding to legitimize their children and beforehand. They have to access your importance of birth registration. to register them. socio-economic status and determine Confirmation by an attendant physi- if you’re eligible for adoption. So the FA: Tell me about the registra- cian at the time of delivery is also needed. adopted children cannot be registered. tion process in detail. But a lot of times, this cannot be provided CF: We register first the fathers. We as it is their husbands who assist the deliv- FA: How has your experience of ask their names, and then the Maiden ery as it is our tradition. Sometimes they working with the government name of the mothers. We also ask the have nobody if they’re on their own at been? name of fathers (of the fathers), and the time of delivery—we heard stories of CF: We work with the local Munic- sometimes they don’t remember the women who were walking in the moun- ipal Civil Registration (MCR) officials surnames of their fathers so it helps tain and gave births by themselves. and most of them have been quite to have a lot of people around in the accommodating. The process is slow, market because other people (elders FA: What are the difficulties you though, because we give them a bulk especially) can shout out what they faced? at a time. remember. According to the Mangyan CF: Getting the information is hard, We have successfully negotiated traditions, it’s a taboo not to say their also encouraging the people to register is dropping the registration fee in some father’s surname, and their surnames challenging. We have to explain to them MCR’s, as the indigenous peoples are are usually their father’s given names. the benefits of registering. Many people poor and cannot afford to pay the fees. Sometimes they don’t even re- understand the benefits and agree since Not all, though, but we are working member their birthdays. They just say many of them have children about to on it. Some reported cases of neglect- “harvest time”, “Thursday” “Friday” enter schools. There are many schools ing of the indigenous peoples, but the and there are so many Fridays! Or that are newly built in the villages in the ones I have experienced, most I’d say, sometimes they just say “I’m forty” last five years as the government saw the have been accommodating. when the person clearly looks like he’s needs. Before that, the schools were far More than 50 village representa- in his sixty’s. The mothers of newly away, and I had to walk for an hour when tives from across Oriental Mindoro born’s often don’t remember their I went to school. But there are now worked on the Citizenship Programme baby’s birthday, too. They just say, “one many villages that have schools. in eight municipalities and have reg- day before we planted the rice”. The Adopted children are another dif- istered almost 2,500 Mangyans, with process takes patience because it takes ficulty. According to the Mangyan tradi- more in process. a long time. It takes almost one hour for one person. That’s long! We also need the ages of the mother and the father at the time of the birth of their children and some- times they can’t remember the birth order of their children. You need to register all siblings at the same time when they’re all together so that you can compare. Otherwise, you have sib- lings with same birthdays and different surnames as some used their mother’s and the other their father’s. Sometimes they have different spellings. Changing o to w, i to e… Getting the correct in- formation is important because if you make a mistake, you have to go to a court hearing. We also ask the marriage dates of their parents—this is hard because Volunteers and tribal elders participate in a workshop about the civil registration project. (Photos: Sohoon Lee)

ASIAN human rights defender 49 Featured Activity

The 4th Regional Human Rights Defenders Forum Recognizing the Role of Defenders in Strengthening and Building a Democracy Every other year, since 2001, FORUM-ASIA holds a regional human rights defenders forum to provide a platform for human rights defenders (HRDs) and women human rights defenders (WHRDs) to discuss and share the challenges they face in their work and the strategies they use to overcome these challenges. These forums are also meant to provide HRDs and WHRDs the opportunity to directly engage with the UN Special Rapporteur on Human Rights Defend- ers, be familiar with the mandate, and share with the Special Rapporteur issues from the ground for her at- tention and possible intervention. On 2-4 December 2010, the 4th Regional Hu- man Rights Defenders Forum was in Manila, Phil- The Forum was an opportunity for defenders in Asia to meet and engage with the UN Special Rapporteur on Human Rights ippines. The forum was co-organised with theT ask Defenders, Ms. Margaret Sekaggya (front row, second from right.) Force Detainees Philippines (TFDP), as convenor of FORUM-ASIA members in the Philippines, and the Women Human Rights Defenders International Co- alition (WHRD-IC). Defenders working at the local, national, regional, and international levels came from all over Asia and the world to meet and engage with Ms. Margaret Sekaggya, the UN Special Rapporteur on Human Rights Defenders.

Participants from all over Asia and the world gathered in Manila for the Forum. (Photos: Wensislaus Fatubun)

Supporting and protecting defenders is important in strengthening de- mocracy building efforts. In fostering a culture of democracy, there is a need Mr. Homayoun Alizadeh of the UN to establish a vibrant and active civil society and strong state institutions that Office of the High Commissioner for Human Rights and Mr. Santiago Canton, treat citizens in a fair and just manner. The rights that defenders are working Executive Secretary of the Inter-American to promote and protect provide the very foundations of a democratic society. Commission on Human Rights This is a crucial link between human rights and democracy. Human rights violations are an indication of the lack of democracy in a society.

50 Vol. 6 No. 2 • december 2010 Featured Activity

According to Ms. Hina Jilani, for- mer UN Special Representative of the Secretary General on the situa- tion of human rights defenders, “[T] he active presence of defenders, free from retribution, is one indicator of the health of a State’s democratic processes.” The work of many hu- man rights defenders strengthens the accountability of public officers as they act as watchdogs against corrup- tion and abuse of public office. They Mr. Ahmed Irfan from the Maldives and Ms. Sabitha Shantha from India speak about how also contribute to the development defenders in their countries formed networks for protection and to facilitate the reporting of domestic legislation as they assess of human rights violations. In the right photo, Mr. Jun Lozada from the Philippines shares to other defenders about his experience as a whistleblower. the compliance of laws with interna- tional human rights standards. Many The work of defenders contributes to increasing the quality of public par- defenders also work on investigating ticipation in democratic processes, especially of vulnerable or marginalized human rights violations and some- groups. Defenders within the indigenous peoples groups, for instance, work times taking violators to court, there- for the voices of their communities to be heard in decisions involving their by helping prevent impunity. ancestral lands. More often than not, it would be the defenders who would offer alternative views on various issues and gather and share information independent of government propaganda. (Below) Defenders from indigenous peoples’ groups were also at the Forum to speak about their work.

Defenders of sexual orientation and gender identity (SOGI) rights from the Philippines, Thailand, and Indonesia share their experiences about bringing forward LGBT issues.

The Philippines has been cho- sen as a venue to recognize the de- fenders in the country who have made their work on building and strengthening democracy a model in the region. This is also to rec- ognize that the country is now at a crossroads facing challenges to sustain its democracy amidst the pervasiveness of corruption in the government, continuing charges of gross human rights violations by state agents, and the lack of politi- cal impetus to fully actualize wom- en’s rights such as the controversies around reproductive rights.

ASIAN human rights defender 51 52 Vol. 6 No. 2 • december 2010