ASIAN humAN rIghtS defeNder Forum Asia

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					ASIAN humAN rIghtS defeNder   1
    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,
    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                                          •
    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

                                                                                                     cover design: Sohoon lee
    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
    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

     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

     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.

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

Villagers march against the POSCO project. (Photo:

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 Scheduled tribes 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                • The ministry 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

 Business and Human Rights:
                                                                                              expressed about the recent changes in
                                                                                              the NHRCK. Korean civil society has
                                                                                              doubt if the NHRCK can effectively keep

 the Case of NHRCK
                                                                                              an eye on the human rights-related ac-
                                                                                              tivities of the state and the business and
                                                                                              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

    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 Kuala lumpur 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

              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:

   10                                                                                              Vol. 6 No. 2 • december 2010

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 Third bali 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

        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 in The Women’s International the president can denounce the po-

   12                                                                                               Vol. 6 No. 2 • december 2010

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

        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.                                                                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          5.64%
                                                         seats (          ) 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
        criminalize peaceful dissent and free-
                                                   16 seats (1.39%) were won by the National Democratic Force, the
                                                   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

   14                                                                                             Vol. 6 No. 2 • december 2010

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

        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, lin 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

   16                                                                                                 Vol. 6 No. 2 • december 2010

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,
   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

        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           The mongolian 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.

   18                                                                                                Vol. 6 No. 2 • december 2010

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:

ASIAN humAN rIghtS defeNder                                                                                             19

       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
                     1980s                          1990s
        Aim          Overthrow the dictatorship     Democratic reform of politics,
                     Revolution                     economy and society
                                                                                        Current situation and challenge
        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
                                                                                        dom of opinion and expression. The
                                                    - campaigns to sway public
                                                    opinion                             uN Special rapporteur on the pro-
                                                                                        motion and protection of the right to

  20                                                                                         Vol. 6 No. 2 • december 2010

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

    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:
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. People are
                               Democratisation          RSF’s Press Freedom Index Ranking of East Asian Countries
        able to communicate and exchange
        their political ideas freely due to the
        extension of the political arena into
            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
n Democratisation                                                                                                     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 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 cambodiamental 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

           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:

   24                                                                                                Vol. 6 No. 2 • december 2010

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’suse 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.         References
ion guterres, president of the timor
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
                                                                                        chairatana, P., 2010, boost, block, and
renewal of their license which makes 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
Vietnam                                                                            index-2010,1034.html
                                         learn from each other about how to
                                                                                        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-
                                                                                   dom challenges for 2010
take place. The government enacted 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-
                                                                                   east Asia meeting on freedom of expression
opinions regarding politics, religion, 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:
        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 President mahinda 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’s rehabilita-           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

                                           human rights defenders as defined by
       there is a proliferation of civil soci-                                          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
                                           ing on the needs identified by the
       ers. These include: provision of safe                                         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
                                                                                     2010. Statement on “ASeAN human rights
       Peace brigade International (PbI). tion of the different rights recognized
                                                                                     commission stumbles at first hurdle”. http://
       urgent Action fund (uAf) and under the uN declaration on 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:
                                                                                          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://

  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 hungervember 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.

ASIAN humAN rIghtS defeNder                                                                                                       33
Human Rights Defenders

        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-

                       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
                                                                                 Tagore peace prize (12 September 2010),
rabindranath Tagore Peace Prize (1).     forces to make arrests or conduct
                                                                                 available at
                                         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
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
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
dian union. The Indian government        declared by the Indian government
                                                                                       (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
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.

ASIAN humAN rIghtS defeNder                                                                                                       35
Human Rights Council Review 2011

        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
        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
                                                                                                 the Human rights council, particu-
        Defenders Network
                                                                                                 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.

ASIAN humAN rIghtS defeNder                                                                                                   37
Human Rights Council Review 2011

          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.
                                                                        erative approach
          insitu by independent ac-
          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-
                                          Unlike fact-finding, moni-    mandate on a country or       evant Special Procedures, the
          with the assistance of 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
                                          cil debate of the situ-                                     following consultation with the
        engaging with the uN hu-
                                          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 High commis-        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

ASIAN humAN rIghtS defeNder                                                                                                 39
Human Rights Council Review 2011

       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 themechanism 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
       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
 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

 Which mandate of the HRC needs most improve-
 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

 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,
        ARC International, FORUM-ASIA, Baha’i International, Cairo Institute of Human
        Rights Studies, Canadian HIV/AIDS Legal Network, Centre for the Development of
        Democracy and Human Rights, CODAPYouth Resource Center on Human Rights,
        CIFEDHOP, Coalition pour l’Examen Périodique de la Côte d’Ivoire, Commonwealth
        Human Rights Initiative, Conectas Direitos Humanos, CRIN, Democracy Coalition
                                                                                                compilation and
        Project, Edmund Rice International, International Federation for Human Rights (FIDH),
        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

        1     National consultations with
                                                                                                of stakeholders’ submissions to
                                                                                                be introduced to the uPr Work-
                                                                                                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.

                         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

4     Responses to
   responses to each recommendation should be
                                                                6     Second cycle

                                                                   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.

5     Followup assessment                                       7     Non-ECOSOC NGO
   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

       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

  44                                                                                         Vol. 6 No. 2 • december 2010

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

       8 Points for the APF                                                                        Fifth, we strongly urge the APF to
                                                                                               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

                                      recognize, protect and promote the
    The current birth registration sys-                                         yans, like the most of the filipino
tem of the Philippines is culturally  rights of indigenous peoples. NSO         indigenous people, live below the
                                      A.o. No. 3 Series of 2004: rules and
insensitive to the traditional lifestyle                                        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 filipinoalso 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
               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
              CF: We went to 3 Barangays in
                                                     Children peer through a public school window in Mindoro, Philippines. Indigenous
          Bongabong, many villages in Lisap in-
                                                     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 nearbyand 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 the task               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

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