[asia-apec 859] THREATENED RIGHTS IN ASEAN COUNTRIES

[Sinapan Samydorai]

ASIAN HUMAN RIGHTS COMMISSION
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THREATENED RIGHTS IN ASEAN COUNTRIES

This article is based on the observations made by the AHRC through its many
channels of data collection and particularly through many consultations it
has conducted in the region. Due to the peculiar nature of the problems
relating to rights impediment in the region, a more holistic approach has
been adopted. While the Western States have achieved a comprehensive
State-structure development with many concentrating on fine-tuning their
systems, in the countries of the region the development of such structures
itself remains a problem.

In the world today the rights are in search of remedies. While there has
been a relatively considerable progress in the economic development in some
countries of the Association of South East Asian Nations (ASEAN), there has
been no improvement in providing remedies for human rights abuse. In fact,
some countries have not even ratified basic human rights instruments (see
Table 1). The spread of the culture of human rights has been ideologically
prevented such political doctrines as the peculiarity of Asian values. 

TABLE 1
Countries in Southeast Asia with their Ratification Status of ICCPR and ICESCR
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Country	ICCPR	ICCPR - First 	ICCPR - Second	ICESCR
                                    Optional Protocol         Optional
ProtocoL
----------------------------------------------------------------------------
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Brunei 				
Burma				
Cambodia	     *	                                                     		      *
Indonesia				
Laos				
Malaysia				
Philippines	    *	     *		                                           *
Singapore				
Thailand				
Vietnam	   *	     *		
----------------------------------------------------------------------------
------------

Right to Life

"Foremost among rights is the right to life, from which flow other rights
and freedoms. The right to life is not confined to mere physical or animal
existence but includes the right to every limb or faculty through which life
is enjoyed. It signifies the right live with basic human dignity, the right
to livelihood, the right to a habitat or home, the right to education and
the right to a clean and healthy environment, for without these there can be
no real and effective exercise or enjoyment of the right to life. The State
must also take all possible measures to prevent infant mortality, eliminate
malnutrition and epidemics, and increase life expectancy through a clean and
healthy environment and adequate preventive as well as curative medical
facilities. It must make primary education free and compulsory." (ASIAN
HUMAN RIGHTS CHARTER - A People's Charter, pp. 10 - 11.)

This statement is an affirmation of the provisions in the Universal
Declaration of Human Rights (UDHR), the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR).

The reality in ASEAN countries contrasts sharply with this objective. From
the ICCPR point of view, right to life implies that no persons should be
deprived of his/her life or liberty except through the due process of law.
And further, the international human rights movement insists that the death
penalty needs to be abolished anyway. However, the death penalty still
remains in many countries. Regarding the due process of law, we will comment
under the section on fair trial. 

Right to life also implies basic economic, social and cultural rights. Of
these, the most important right is the right to food. The Indonesian
Minister for Food, in a statement made in September 1998 to Parliament, has
said that out of 308 regencies in Indonesia, 150 had a food shortfall, and
53 of the 150 faced a severe shortage. United Nations Children's Fund
(UNICEF) has also stated that four million children in Indonesia are facing
a serious malnutrition problem. Burma and Cambodia too face serious problems
of food availability. The massive problem of prostitution in several
countries including Thailand indicates grave food problems faced by the
women. The economic crisis now affecting all Asian countries have caused
unemployment and will lead to cuts in welfare expenditure, which in turn
will aggravate the food problem. Already in south Korea there were several
instances of workers committing suicide (in some cases together with their
families) as the workers have lost their jobs. Added to the international
financial crisis, countries face harsh measures imposed by international
financial agencies for receiving aid. Thus the food issue is likely to
remain a vital human rights issue in the region.

Apart from the issue of food-related human rights violations, medical care
and the availability of medical facilities are also issues of concern. In
several countries in the region the availability of medical facilities for
the rural masses and the urban poor are very scarce. In none of the
countries is medical insurance a compulsory. While privatisation schemes
have introduced advanced medical facilities in some countries, for example
(Bangkok) Thailand, Malaysia and Singapore, the income levels of most of
these countries will not allow a vast section of their populations to have
the use of these medical facilities in case of serious illnesses. Indonesia,
Burma, Cambodia, Laos and Vietnam are among the countries that face acute
problems in these areas. Besides, the high cost of medical care in some
countries is also due to the absence of a sufficient number of trained
doctors. 

Meanwhile, the spread of HIV/AIDS is life threatening to a considerable
section of the population in several countries. In Thailand and Cambodia
this problem figures most prominently. 

In terms of the universal instruments of human rights, right to work is also
a basic right. Article 7 of the ICESCR speaks of the right to just and
favourable conditions of work that ensures fair wages of equal value, a
decent living for workers themselves and their families, safe and healthy
working conditions, equal opportunity for promotion on the basis of
seniority and competence, rest leisure, reasonable limitations of working
hours and periodic holidays with pay. However, this right has not being
realised to a satisfactory degree in most of the countries in the region.
The prevailing economic crisis is likely to make the situation worse. Some
countries of this region attracted a large number of migrant workers to
low-paying jobs during the last decade while others produced them. These
migrant workers, of whom women constitute a very large portion, are
threatened with termination of contracts and deportation due to the
prevailing economic crisis. Generally, migrant workers do not enjoy any
legal right in the countries in which they work. 


Right to Fair Trial

Article 10 of the UDHR deals with the right to a fair and public hearing by
an independent and impartial tribunal. The right to a fair trial is also
linked to freedom from arbitrary arrest (Article 9 of the UDHR), the
presumption of innocence until being proved guilty (Article 11 of the UDHR)
and freedom from punishments under retrospective laws. These provisions are
further elaborated in the ICCPR. These rights are known as due process
rights and dealt with from Article 9 to Article 16 of the ICCPR. 

There are serious violations of the rights relating to a fair trial in
almost all countries in the region. The greatest obstacle to the achievement
of the provisions relating to fair trial is the "national security laws"
prevailing in most countries. The ASEAN region is known for its draconian
"national security laws." In fact, the notions of national security
expressed in the special security laws form an important part of the
conception of "Asian values" which was promulgated by several ASEAN leaders
in recent decades. This particular notion regards that sacrifice of civil
liberties for the purpose of pursuing economic development is legitimate.
The subordination of the population to the arbitrary will of the rulers is
considered to be emanating from the traditional concepts of authority and
the traditional relationship between rulers and the ruled. From such
philosophical premises there flows the laws relating to indefinite period of
arrests, once approved by the head of the State or an authority nominated by
the head of the State. In Singapore, Malaysia, Indonesia, Burma, Cambodia
and Vietnam, there are still extreme provisions of law to suspend the normal
safeguards relating to freedom from arrest and detention. 

Regarding the offences under national security laws, the need to follow the
criminal investigation processes can also be suspended. In fact, the power
over persons being brought under national security laws is usually
transferred from the criminal investigation police to various branches of
special police. The duty to bring people before the judiciary is also
usually suspended regarding persons being arrested under national security
laws. The usual rule of not admitting statements made under police custody
as evidence does not apply under national security laws. Self-incriminating
statements obtained by use of force are also not excluded under these
provisions.

Apart from national security laws, even the normal laws do not provide for
fair trial in many countries due to either weak laws or absence of laws in
this regard. The current debate in Thailand on this issue is interesting.
There are many acts that are considered generally as crimes in most
countries but not in Thailand due to the absence of legal definition of such
crimes. In Cambodia, only 42 offences are defined as crimes. Before the
promulgation of the Transitional Provision of Criminal Procedure in 1992
there were only eight crimes being recognised in Cambodia. In most countries
there are no legal provisions relating to corruption, illegal logging,
environmental crimes and the like. The absence of definition of crimes
implies impossibility of conducting trials relating to such activities.

Fair trial also implies the presence of a criminal investigation authority,
which conducts investigations into crimes according to norms and standards
generally accepted for such investigations. A fundamental aspect of criminal
investigation is the rules relating to the post-mortem inquiries. While in a
country like Cambodia, Vietnam and Laos there are no provisions for
post-mortem inquires, in Burma the rules established during the colonial
times have now been forgotten due to the general breakdown of the judicial
process. This is also the case in Indonesia. Some countries suspend the laws
relating to post-mortem inquiries during the operation of national security
laws. The complete absence of forensic facilities in some other countries
and inadequacy of such facilities also adversely affect the criminal
investigation processes, which are the foundation of a fair trial.

A well-trained police force, which enjoys the confidence of people, is an
essential part of the criminal investigation process. The public perception
of corruption is generally attributed to police in most countries of the
region. Exceptions to some degree may be the Singaporean and Malaysian
police who are better paid than those in other countries. Some countries
such as Cambodia, Burma and Indonesia cease to have competent police due to
the loss of traditions as a result of civil war, militarisation and grossly
inadequate payments to the police.

The independence of the judiciary is another essential requirement for
guaranteeing the right to a fair trial. Basic principles on the independence
of the judiciary endorsed by the U.N. General Assembly in December 1948 lays
down the norms and standards for the realisation of judicial independence.
Although Article 2 of the UDHR lays down that the judiciary should act
without any restrictions, improper influences, inducements, pressures,
threats or interference, direct or indirect, from any quarter for any
reason, most countries in the region cannot claim to have such a situation.
While more blatant form of control is exercised in some countries, in few
others pressure is exercised in more political cases. 

All these factors contribute to the poor observance of the right to fair
trial in the countries of the region.


Right to Take Part in the Government of One's Country

This right is guaranteed by Article 21 of the UDHR. This right includes the
right to take part in the government of a person's country, directly or
through freely chosen representatives; equal access to the public service;
the will of the people to be the basis of authority of the government, which
shall be expressed in periodic and genuine elections that shall be by
universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures. This right is further elaborated in
Article 25 of the ICCPR. 

This right is very much related to other rights guaranteed under the freedom
of opinion and expression, the right of peaceful assembly and association,
and the rights relating to the freedom of the press. 

In almost all ASEAN countries there are serious problems relating to the
respect for these rights. In Indonesia, this right was virtually absent
since the military take-over in 1965. The basic rule was presidential rule
under the military dictatorship. In Burma, this right has ceased to exist
since the military take-over in 1962 by General Ne Win. Although an election
was held in 1989, the power was not handed over to the political party that
received an overwhelming mandate from the Burmese people and the military
has continued its rule up to now. In Cambodia, the first election was held
in May 1993 but the power was not transferred to the winning party. As a
result a coalition-form of government was formed. An election was again held
in July 1998. However, this has not yet led to the formation of a
government. The elections in Singapore have been held generally with severe
restrictions on political parties other than the ruling party. The principle
of electing governments has not yet been recognised in Vietnam and Laos.
Perhaps the only countries that have made some progress in this direction
are Thailand, which has recognised a new constitution, and the Philippines
after the overthrow of the Marcos regime.

The free functioning of political parties is essential to the exercise of
the right to take part in the government of one's country. However, except
for the Philippines and Thailand, free functioning of political parties
still remains a difficult concept to be accepted in practice. The use of
national security laws is very much directed towards obstructing political
activities of opposition parties. The free functioning of opposition parties
is considered as an obstacle to economic progress and development in the
prevailing conception of development in the ASEAN countries. One-party rule
has generally been promoted as conducive to development and social stability.

The restriction on participation in government directly or through
representatives is also linked to the freedom of the press, freedom of
expression in general and freedom of assembly. In many countries in the
region there are restriction on the freedom of the press. These restrictions
are very much a part of the "national security laws" in countries such as
Singapore, Malaysia and Indonesia. In Cambodia, the restriction to the
freedom of the press comes directly from the law relating to the press.
Besides the direct application of law, there is also the intimidation caused
by unidentifiable groups. There have been several killings of journalists in
Cambodia, and no journalist has any legal access in Burma. The freedom to
conduct political debates relating to matters affecting the life and liberty
of persons is restricted in many of the countries through various means.
Some countries use defamation laws to restrict discussion of political
issues. 

What is very much related to the right to freedom of expression is the right
to information. The right to information is perhaps the most neglected right
in the ASEAN region. In none of the countries are there any established
mechanisms to enable the citizens to obtain information from the government.
In many instances, investigations into the complaints relating to corruption
of State officers are not possible due to the lack of legal obligation on
the part of the government to reveal information to the public. While the
constitutions of the Philippines and the new constitution of Thailand
recognise the right to information, constitutions of most other countries in
the region do not recognise this right.


Right Against Torture and Degrading Treatment

According to Article 7 of the ICCPR, "no one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical and scientific
experimentation."

This right is generally neglected in some countries such as Indonesia, Burma
and Cambodia, while in some other countries special categories of persons
such as persons arrested under national security laws do not enjoy this
right. Due to restriction on judicial access and human rights monitoring, it
is difficult to assess the extent of violation of this right during the
periods of prevalence of such national security laws.

In Thailand, there is still the practice of the use of heavy scales on
prisoners. This practice is usually justified on the ground of preventing
escapes of prisoners while they are transported to courts or other places.
However, the practice amounts to inhuman and degrading treatment. In
countries such as Thailand, Indonesia, Burma, and Cambodia, the prison
conditions are extremely primitive and the imposition of such conditions on
convicted prisoners amounts to inhuman and degrading treatment.
Particularly, illegal migrants are exposed to harsh conditions in prisons in
Malaysia and Thailand.


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