ASIA: Council Urged to Do More to Prevent Arbitrary Detention, the Gateway to Other Grave Abuses
The Asian Legal Resource Centre (ALRC) and its sister organisation, the Asian Human Rights Commission (AHRC), have
documented numerous arbitrary detentions throughout the Asian region in the year preceding the 13th session of the Human
Rights Council. Cases, notably from Bangladesh, Cambodia, India, Indonesia, Nepal, Pakistan, the Philippines, Sri Lanka
and Thailand, show a consistent and widespread pattern of abuse of authority by law enforcement agencies concerning
illegal and arbitrary detention. Arbitrary detention is not an exceptional measure in many Asian settings, but is
endemic, engenders a climate of fear and is a gateway violation that enables a chain of abuses, including torture and
forced disappearance, which continue to blight the region.
The prevalence of arbitrary detention in the Asian region is a reflection of failing justice systems. It is an immediate
and visible symptom of a suppressive policing system and ineffective justice machineries. Arbitrary detention is
directly proportionate to the degree of the absence of democratic space in a particular State. It is augmented by
justifications provided by counter-terrorism, but finds its root in weak institutions and the lack of remedies available
to victims.
For this reason, dealing with arbitrary detention in the Asian context requires adequate understanding of its root
causes, notably corruption associated with law enforcement and impunity.
The unwillingness of States in the region to deal with problems concerning law enforcement agencies have only
contributed to the further deterioration of the rule of law in the region and the need for effective and meaningful
attention to this problem by the international system, notably the Human Rights Council.
Arbitrary detention is widely utilised by the economic and political elites in most Asian nations, through state agents
and institutions, to maintain social control and to retain their dominance within societal power structures. Numerous
cases have been communicated by the ALRC to the UN Working Group on Arbitrary Detention requesting intervention. Below
are some examples that highlight issues such as corruption, the lack of remedies, negative trends in legislation and
counter-terrorism, and the use of arbitrary detention to target migrants, silence political opposition, stifle media
freedom and undermine the work of human rights defenders:
In Pakistan, on 26 April 2009, the officers from the Airport Police Station in Rawalpindi (Punjab province), arrested
Nadia (19 years old), Shazia Riaz (16) and Nazia (12) from their residence. At the police station, Station House Officer
Choudhry Safdar and Assistant Sub-Inspector Basheer, abused and assaulted the three girls. After four days of illegal
detention, the police produced the girls before civil judge, Mr. Azmat Ullah, in Rawalpindi. The police accused the
girls of helping their brother, Fazal Abbas, to abduct Ms. Kulsoom Baloch, the daughter of a wealthy businessman. In
fact, Kulsoom had married Abbas against the wishes of her family. Kulsoom's family was using their influence with the
local police to exact revenge on Abbas' family.
Corrupt law enforcement officers enter into pacts with the wealthy and influential and abuse their powers to illegally
and arbitrarily detain innocent persons in this way in many Asian countries. Law enforcement agencies also often resort
to arbitrary detention as part of criminal investigations, due to the absence of a functioning institutional and legal
framework for proper criminal investigation and the lack of proper procedures to check arbitrary uses of power. The
victims of arbitrary detention are often poor and therefore unable to afford legal protection to seek redress and combat
impunity concerning excesses of authority by the State.
Mrs. Muliyana (24) from Natar, Indonesia, was arrested by the Jakarta Metropolitan police on 24 July 2009, detained her
for six days and tortured her in order to force her husband, Mr. Azwan Effendi, to surrender to the police. He was
suspected of involvement in a bank robbery. Despite Effendi having surrendered himself, the police continued to torture
Muliyana, including using electric shocks on her stomach in front of her husband to get him to confess to the robbery
and to locate the stolen money. The police released Muliyana without registering a case and charged her husband with
robbery.
There is a serious lack of legal remedies available to victims of arbitrary detention in Asia. For example, there is no
specific law that prevents a police officer from committing arbitrary detention in Nepal and Cambodia. In jurisdictions
where there are legislative provisions, such as India, these are rendered void in practice through the inability of the
justice delivery system to provide timely remedies and punish perpetrators. This weakness is exploited by governments to
use arbitrary detention as a tool to silence political opposition.
There is a trend concerning legislative changes in India, Sri Lanka, Thailand, Indonesia and South Korea that favours
extended periods of statutory detention, for which national security is used as an excuse. For instance, a person
charged under the Internal Security Act BE 2551 (2008) in Thailand can be detained for a period of 30 days and the
arresting authority is given wide-ranging discretionary powers that can infringe the fundamental rights of the detainee.
While in most States the 24 hour norm is still the standard under the ordinary criminal procedure, newly drafted
statutes provide exceptions to this norm for periods ranging from 30 to 90 days of detention. National security and the
concept of preventive detention are being used to justify an increasing number of arbitrary, lengthy detentions.
Arbitrary detention has also become an effective instrument to impart fear among human rights defenders. The state
police in the Indian state of Manipur arrested human rights defender and environmental activist, Mr. Jiten Yumnan, on
September 14, 2009, along with seven other local political activists to end a state-wide protest against the state
government demanding investigation and prompt action against the police officers who had killed two persons in an
incident of extrajudicial execution. The detainees were charged under the provisions of a draconian law, the National
Security Act, 1980. The police tortured Jiten in custody. After four months, the police released Jiten and withdrew the
charges. Even though the victims want to pursue a case against the government and the police officers, they are afraid
to do so since the courts in India will take at least a decade to decide the case, an inordinately long period during
which the victims have no means to find protection from further persecution. The ALRC is submitting a separate written
statement concerning this case in particular to the 13th session of the Human Rights Council.
In a similar case reported from South Korea, the police arrested two human rights defenders, Mr. Park Lae-gun and Mr.
Lee Jong-hoi, on January 11, 2010. Arrest warrants had been issued against Park and Lee for reportedly being
instrumental in organising protests concerning forced evictions in Youngsan-Gu, Seoul. Several participants were
reportedly killed by the authorities during a crackdown on the protests. The cases registered against Park and Lee and
their arbitrary arrests represent serious violations of their rights and of South Korea’s obligations under the
International Covenant on Civil and Political Rights (ICCPR).
Arbitrary detention is also used to infringe media freedoms. On April 2, 2009, the AHRC reported the cases in Myanmar of
Ms. Ma Eint Khaing Oo working for Ecovision Journal and Mr. Kyaw Kyaw Thant, a freelancer with Weekly Eleven, who were
arrested by the authorities for arranging for victims of cyclone Nargis to meet with officers of the International
Committee of the Red Cross (ICRC) and United Nations Development Programme (UNDP) in Rangoon. The authorities accused
the journalists of inciting the citizens to stir up trouble and of creating animosity towards the government. Both were
sentenced to two years imprisonment with hard labour, but were released in September owing to external interventions.
During the past two years, the government of Sri Lanka has used arbitrary detention as a tool to silence political
opposition in the country. Recent events, particularly in connection with the presidential election, reveal shocking use
of arbitrary detention as a tool of repression and revenge. The government has openly resorted to arbitrary detention of
not only journalists and human rights defenders, but also of its own officials, including military officers, who
publicly condemned the government. During the civil war, human rights defenders who condemned breaches of international
humanitarian law were either detained without charges for long durations or were charged with offences under the
draconian Emergency (Miscellaneous Provisions and Powers) Regulation No 1, as amended vide gazette notification 1132/14.
Arbitrary detention is also used against migrants. For instance, it is widely used for mass arrests of Burmese refugees
staying in Thailand. The government of Thailand uses arbitrary detention as an instrument to 'clean' the country of
unwanted migrants, violating their rights and its obligations under the ICCPR in the process.
Governments in Asia are making use of the fight against terrorism to justify oppression within their States,
contributing to the increase of arbitrary detention of persons in undisclosed destinations. The Working Group on
Arbitrary Detention has repeatedly requested the states not to resort to arbitrary detention as a tool for combating
terrorism. In 2009, the existence of secret detention centres in India was exposed by the media, but the government
continues to deny their existence. This is not a surprise, as the government has continuously failed to cooperate with
most United Nations human rights mechanisms concerning human rights situations in India; a fact that has been reported
by the Working Group on Arbitrary Detention in its report to the Council.
While arbitrary detention is itself a violation of human rights, it is also a gateway to a range of further abuses and
should therefore be addressed as an important component in the prevention of grave human rights abuses. Arbitrary
detention provides the mechanism through which State authorities can exert control over individuals, allowing for graver
abuses to be perpetrated, often in secret locations and with impunity.
The ALRC has noted that except for few jurisdictions like India and the Philippines, the writ of habeas corpus or its
legal principles either do not exist in practice or are poorly developed in Asia. For instance, in Thailand, although
the writ is possible it is obstructed through a heavy burden of proof being placed on the petitioner. In most cases,
State agencies simply deny having missing persons in custody and such writs are dismissed. In other jurisdictions, such
as in Sri Lanka, the courts themselves entertain a negative attitude towards the application of the writ. The ALRC has
studied 800 such cases dismissed by the Sri Lankan courts during the past two years that lead to this conclusion.
In light of the importance of the practice of arbitrary detention in limiting a range of human rights and enabling
further grave abuses, the ALRC urges the Council to:
1. Provide more institutional as well as infrastructural support for the Working Group on Arbitrary Detention,
considering its unique status as the only non-treaty-based mechanism whose mandate expressly provides for consideration
of individual complaints;
2. Ensure that all States ensure full cooperation with the Working Group on Arbitrary Detention, including concerning
individual complaints and appeals as well as by issuing standing invitations for country visits;
3. Assist the Working Group on Arbitrary Detention in identifying and addressing patterns in different regions,
including Asia, of arbitrary arrests and their root causes, including weaknesses in justice institutions, as well as
linkages with other rights violations, notably torture and disappearances;
4. Urge States to prevent violations of their mandatory obligations under the ICCPR under the pretext of national
security and counter-terrorism.
ENDS