Regional Symposium on the Criminalization of Free Speech, Expression and Opinion in Asia in Jakarta, Indonesia

By Siena Anstis

On July 15 and 16, I attended the Regional Symposium on the Criminalization of Free Speech, Expression and Opinion in Asia in Jakarta, Indonesia. The symposium marked the end of Frank La Rue’s, the UN Rapporteur on freedom of opinion and expression, visit to the Southeast Asian region.

The symposium covered a number of different themes, from repressive legislation (one of the key concerns in Cambodia) to threats faced by human rights activists and the State sanctioned killing of journalists.

Decriminalize Free Speech

La Rue opened the symposium with a clear message: free speech needs to be decriminalized. Authoritarian regimes used to employ force to intimidate the population. However, this came at a huge political cost and these regimes are now “intimidating with the law.” La Rue underlined that the international community, including the United Nations, has not opposed this tactic forcefully enough.

The Special Rapporteur emphasized that he believes exceptional limitations on freedom of expression are necessary, but these should only be used in a democratic society (notably one where the judiciary is capable of interpreting the law according to international standards). For example, the use of incitement to crackdown on pamphleting in Cambodia is “absurd.” Where censorship is necessary – for example, with hate speech and child pornography – an independent body, and not the State, should apply these exceptions. “When government gets to control content, it goes to the benefit of political power. These censorship laws become an excuse for governments to limit freedom of expression,” said La Rue.

Repressive legislation and impunity

One of the key themes emerging from all panels, with delegates representing Southeast Asia and South Asia, was the use of legislation to undermine the work of human rights activists, as well as the total impunity of those who commit human rights violations.

In Thailand, the lèse majesté law is a key concern. Pravit Rojanaphruk, a journalist from Thailand, explained how the line between defamation and criticism of the monarchy is blurred. There is also no transparency as to the number of people detained under the law. A recent estimate stood at 300 people charged with an estimate 11 detained. Naturally, the threat of criminal sanctions under the law has a ‘chilling’ effect on freedom of expression.

In Cambodia, three enacted laws (and two laws in draft form) give the government significant control over civil society. A discussion between Kek Pung, the President of LICADHO, and delegates demonstrated the total absurdity of the situation. Pung asked for suggestions on how to address this issue in Cambodia. The panelists offered some feedback, all deemed inapplicable in the Cambodian context: the friendly parliamentarians are the opposition, but their leader, Sam Rainsy, is in exile. Commissioners at the ASEAN Intergovernmental Commission on Human Rights’ (AICHR) are appointed and dismissed by national governments. Donors are mum, some in collusion with the government while others do not want to rock the boat.

In Malaysia, a mix of secular and religious laws are used to crack down on minority religious groups, as well as political movements and more liberal Muslim groups. “Silencing opinion and expression in Malaysia happens not only for crimes against religion, but all forms of dissent against government policies and political powers. It is not peculiar for the government to crackdown on defaming Islam, because they do so on all forms of difference in opinion, period,” explained Masjaliza Hamzah, Executive Director of the Center for Independent Journalism in Malaysia.

Ending human rights violations

In his closing speech, La Rue listed concrete suggestions on how CSOs and NGOs could end government impunity and promote human rights. He drew primarily on experiences in Guatemala, his home country.

For example, he suggested the establishment of independent national investigative bodies such as the International Commission Against Impunity in Guatemala. While this Commission does not have the power to prosecute, it does the investigatory work in human rights crimes. He also suggested persuading each country to adopt a national human rights commission.

La Rue also discussed the Inter-American Commission on Human Rights. Although it was at first riddled with its own set of challenges, he praised it for providing justice and in some cases saving lives. He compared this to the ASEAN Intergovernmental Commission on Human Rights (AICHR), which was founded in 2009, and has been described as toothless. La Rue suggested that having the mechanism in place is a first step; regional civil society bodies should now push the AICHR by referring cases and lobbying for greater impartiality in its commissioners.

As a Special Rapporteur, he highlighted the role these individuals play in highlighting human rights abuses. For example, issuing a press release during a Rapporteur’s visit can serve to draw media attention to certain issues. He noted that the Special Rapporteurs can go beyond their immediate mandate, allowing them to leverage a relatively ‘non-political’ mandate. For example, the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation can deal with everything from water containment to land evictions and the role of big corporations in environmental pollution.

Encouraging a grassroots movement

While interesting, these suggestions seemed to illustrate how intractable the situation is in Cambodia. NGOs like LICADHO are drawing on all the resources suggested by the Special Rapporteur. Yet, this is not enough.

However, it does seem that one last avenue, not specifically mentioned by La Rue, has not been sufficiently leveraged. In retrospect, it seems self-evident: the population needs to start lobbying on a mass scale for change and civil society groups need to promote and support this. However, abuse by the police and unfair criminal sentencing by the judiciary has a damning effect on these efforts. Moreover, people have not forgotten the country’s harsh history.

Yet, there is proof that such lobbying is possible and (somewhat) effective: in 2008, a nation-wide thumb printing petition campaign collected over one million signatures in favor of passing the long-awaited Anti-Corruption law. While the law was not adopted until 2011, it does suggest that there is a population willing to be mobilized and capable of organizing itself.

Convention on the Rights of Persons with Disabilities (CRPD)

By Keiran Gibbs

In 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD), which has since gained worldwide support faster than any human rights convention in history [1]. The CRDP was first proposed by Gilberto Rincón Gallardo, a former Mexican politician appointed as the head of the Anti-Discrimination Council. Mexico was also the first country to ratify it, yet, the CRDP has had little effect on Mexican law and practice. Such a lack of political will on Mexico’s part has resulted in severe continuous violations of the rights of at least thousands of people detained in psychiatric and social security institutions throughout the country.

In November, 2010, Disability Rights International (DRI) and the Mexican Commission for the  Promotion and Defense of Human Rights (CMDPDH in Spanish), released a report[2], that revealed a tragic reality that vividly depicts  Mexico’s breach of acceptable norms. While the living conditions in many of Mexico’s psychiatric and social welfare institutions are appalling[3], the legal structure that denies  autonomy to those diagnosed as having a disability is arguably just as troubling. This legal structure which allows for voluntary or involuntary internment is virtually identical in all of Mexico’s thirty-two states, and it often keeps the thousands of people living in  these institutions unable to ever leave, regardless of whether not they have a disability at all[4].

Generally all that is required for ‘voluntary’ internment into an institution for the disabled is the signature of a family member and a medical professional (i.e., a psychiatrist validating the diagnoses of ‘disabled’). Often the institution itself retains tutorship[5]; the person with a disability then deemed  incapable of ever making decisions for her or himself. Needless to say, involuntary incarceration creates an even lower standard for the exercise of autonomy; the requirement for a family member’s signature is eliminated. An aggravating factor is that such decisions to institutionalize people with disabilities are virtually never reviewed by a third party[6].

One particularly stark example of the detrimental effect this can have is illustrated in said report, where a child who had no disability whatsoever, spent her entire formative years in an institution, in which she might expect to be adhered to an object for prolonged periods of time[7]. Yet, as an abandoned child her legal guardian, the institution and the very same actor causing the harm, had complete authority over her and her whereabouts.  It is in fact a ludicrous circumstance and it would be practically impossibly not to sympathize with the feelings of  helplessness that such official barriers to the exercise of autonomy must cause this child and others like her. Whether or not one has a disability should not eliminate one’s capability in having reasonable autonomy over the decisions in one’s life.

While it isn’t unreasonable for States to ask for some patience as they attempt to reach the ideal situation that the Convention demands, any stalling on Mexico’s part in revising the laws that act as an impediment to making the Convention a reality, specifically the laws dealing with tutorship and capacity,  is not only unreasonable in this instance, it is indeed criminal.


[1] [1] U.N. Enable, Convention on the Rights of Persons with Disabilities, http://www.un.org/disabilities/default.asp?id=150

[2] Abandoned and Disappeared: Mexico’s Segregation and Abuse of Children and Adults with Disabilities [ November, 2010]. Available at: http://www.disabilityrightsintl.org/media-gallery/our-reports-publications/. Also see some of the video documentation which contributed to the report at: Neglect at a Mexico mental institution, ABC News, Nightline, http://abcnews.go.com/Nightline/

[3] Ibid. See for example Section I: Conditions in Institutions, which documents many institutions that leave the patients in urine and feces, leave them in restraints for prolongued periods of time, distribute pills from the same cup to all patients, as well as other incidents of physical and verbal abuse.

[4]
Ibid. See especially Chapter I: Segregation from society of people with disabilties (A) & (B).

[5] Ibid. Chap I : As many as 80% of many of the institutions visited were considered ‘abandonados’, making the institution itself the legal guardian.

[6] Ibid.

[7] Ibid.

Truth, Justice and Reconciliation Commission in Kenya

Sasha HartBy Sasha Hart

I spent my first four weeks in Kenya interning at the Truth, Justice, and Reconciliation Commission (TJRC) in Nairobi. The TJRC was established in 2008, with a mandate to investigate and establish an accurate record of “gross human rights violations” that have occurred in the country between 2 December 1963 (when the country gained independence) and 28 February 2008 (which marked the end of the nationwide violence sparked by the disputed December 2007 elections). The TJRC is also mandated to make recommendations as to the prosecution of perpetrators and appropriate reparations for victims.

My experience at the TJRC was interesting and rewarding. As an intern with the research team, I spent most of my time working on a research assignment on sexual and gender-based violence (SGBV) that would contribute to the final report as well as serving as background briefs for the Commissioners. I also had the opportunity to attend a number of hearings in Nairobi in which the Commissioners heard from several high profile former government ministers and army officials suspected of having been implicated in the infamous 1984 “Wagalla Massacre” (a massacre of ethnic Somalis in the Wajir District of the country’s North Eastern province). In addition, I also spent a few days in the field (in Kisumu) with the TJRC’s investigation team, where I helped to collect and summarize statements from individuals who had suffered various human rights abuses during the recent post election violence period.

As for my main research assignment, I was assigned the task of researching and writing background briefs on SGBV as it occurred in the post-election violence period, as well as in other historical contexts within the country. I was asked to focus my research by region, which was challenging because of the lack of geographically disaggregated research pertaining to SGBV. Also, because rape is perhaps the most underreported crime in the country (due to social stigma and the culture of impunity associated with this crime), accurate indicators of the true prevalence of this type of violence are difficult to come by.

From the literature and documentary material I was able to find, it is evident that SGBV has constituted a significant part of Kenyan women’s experiences during various periods of conflict within the country. For example, incidents of women being raped by security forces during the 2008 military operation in the Mandera region of North Eastern province, and by gang members seeking to punish members of opposing ethnic groups for their political affiliations in the most recent post-election violence are well documented.

While incidents of SGBV have been relatively well documented in times of conflict, and these incidents will/are indeed being investigated by the TJRC, I am left wondering to what extent a process like the TJRC can (or should even seek to) encompass the “typical”, everyday acts of rape which too many Kenyan women have and will endure. According to the 2008-2009 Kenyan Demographic and Health Survey, 1 in 5 Kenyan women have experienced sexual violence. Most of this violence has happened in the context of everyday life. These victims and their perpetrators are many and varied. As a result, the most common experiences of sexual violence cannot necessarily be associated with a particular ethnic/election-related conflict, or a military operation, or any other specific period of time in which women in an identifiable community were targeted by an identifiable group of men.

Pursuant to the Truth, Justice and Reconciliation Act, the TJRC’s mandate is limited to looking into “gross human rights violations”. This is defined under the Act as violations of fundamental rights (including “rape or any other form of sexual violence”). Thus far, the TJRC has focused on sexual violence having occurred in an identifiable, neatly framed context–mainly within the context of conflict (i.e.: the Wagalla Massacre and the 2007 post election violence). Thus far, it has identified the most pressing “gross violations of human rights” as those having involved torture and extra-judicial killings, and in setting up hearings on these atrocities, have also heard from women in regards to the SGBV they suffered in these particular contexts. Typical everyday incidents of sexual violence (perpetuated by discriminatory views of women and systemic failures by state agents to adequately respond to these acts of violence) are effectively left out of the “gross human rights violations” identified and investigated. Given the limited time frame and resources the TJRC has to complete a massive mandate perhaps it makes sense that this would be the case. Also, only an estimated 2% of victim statements submitted to the TJRC constituted direct complaints of sexual violence (which is consistent with the culture of silence surrounding rape).

The TJRC is mandated to make recommendations with regard to systemic and institutional measures that should be taken to prevent the violation of human rights. I wonder if by not addressing these most common everyday forms of SGBV, it is missing out on a valuable opportunity to address SGBV in a more meaningful way by recommending systemic remedies aimed at addressing this type of violence in the contexts it most commonly takes place.

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