Asian Legal Resource
Centre -- ALRC
Monday, 5th April 2004
For more information, please contact:
In Hong Kong, Sanjeewa Liyanage: + (852) - 2435-8961
Statement on 'National security
laws in Asia' received
by Commission on Human Rights
(Geneva, 5 April 2004) -- The written statement of the Asian Legal
Resource Centre (ALRC) on 'National security laws in Asia'
(E/CN.4/2004/NGO/49) was distributed on the 31st March 2004 at the
60th Session of the United Nations Commission on Human Rights in
Geneva.
The full text of the statement follows.
This year, ALRC submitted 30 written statements to the Commission,
on topics as diverse as caste discrimination in Nepal, food scarcity
in Myanmar, custodial deaths and torture in India, extrajudicial
killings in Thailand, policing in Pakistan, the National Human
Rights Commission of Sri Lanka, and impunity in Asia.
The complete list of statements, with full texts and links to the
original versions, can be viewed on the ALRC website, at http://www.alrc.net/mainfile.php/60written/.
Asian Legal Resource Centre -- ALRC, Hong Kong
National security
laws in Asia
1. National security laws and regulations in Asia violate the basic
non-derogable rights and freedoms of citizens. In a written
statement to the fifty-ninth session of the Commission
(E/CN.4/2003/NGO/150), the Asian Legal Resource Centre pointed out
how the "global war on terrorism" has become the latest pretext for
elite groups in Asia seeking to introduce laws to prevent criticism
and stifle democratic opposition. Such laws provide an excuse for
the abuse of state power and arbitrary punishment of opponents, be
they real or merely perceived. These laws have a devastating effect
on the absolute prohibition on torture, an independent judiciary and
the rule of law, as they are used to bypass due process. The Asian
Legal Resource Centre has this year submitted many written
statements to the Commission on these and other relevant issues,
across Asia and within specific countries.
2. The governments of many countries in Asia, including Malaysia,
Korea, Nepal, India, Indonesia and Burma continue to use and
strengthen national security laws. Notably, in Korea, the Prevention
of Terrorism Act is soon to be passed, adding to the raft of already
existing national security legislation recently used to indict
Professor Song Du-Yul because of political activism. In Hong Kong,
while unprecedented public protest forced the territory government
to abandon proposed national security legislation, local human
rights organisations are already warning that the provisions are
likely to be reintroduced in parcels over a period of time. These
and other proposals to enhance national security procedures must be
rejected, for they endanger justice systems and the fundamental
rights of people throughout Asia.
3. A big problem with these laws is that they are written vaguely so
as to not distinguish between a government critic and a "terrorist".
In India, the 2002 Prevention of Terrorism Act (POTA) names a
terrorist as anyone with "intent to threaten the unity and integrity
of India or to strike terror in any part of the people". Not only
does India have no need for this law, but it is also used to
discriminate against political critics and minorities throughout the
country. For example, in the state of Jharkhand, most of those
arrested under POTA have been farmers, students and daily-wage
earners, particularly from indigenous or 'outcaste' communities. The
Asian Legal Resource Centre has this year submitted a separate
written statement on the use of law enforcement officials and
torture to oppress such populations. One state official from Ranchi,
Jharkhand, even admitted to the Times of India that "anyone caught
with a copy of the Communist Manifesto or (Mao’s) Red Book becomes a
suspicious character. We watch his actions for some time. Most
often, police have gathered clinching evidence which would help us
in the POTA courts." Many "terrorists" in this region are also over
60 years old, and there are even 10 young children in custody under
the POTA, further demonstrating the total illegitimacy of these
targeted attacks on specific vulnerable groups within the society.
4. As national security laws are "emergency" regulations, they deny
the detained basic rights under domestic and international law.
These include rights to legal counsel and a fair trial. In Myanmar,
under the State Protection Law of 1975, a political prisoner can be
held incommunicado for up to 90 days, and then can be held for up to
5 years without trial. In Malaysia, under the Internal Security Act
of 1960, a prisoner is held incommunicado for a mandatory period of
60 days, and this detention without trial can be extended for
renewable periods of 2 years. These provisions of "preventative
detention" violate international standards of fair representation,
and usually involve cruel or inhuman treatment or punishment in
violation of the Convention against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment, among other international
covenants.
5. Another serious problem with the strengthening of national
security laws is how they are exercised to control and limit press
freedom in Asia. In Malaysia, the government has proposed amending
the Penal Code to target all those who "help" terrorists, including
journalists who will not reveal their sources. Furthermore, it has
filed a case against the online newspaper Malaysiakini, for
publishing a letter to the editor on 9 January 2003 criticising
government policies favouring ethnic Malays. The recent conviction
of Irene Fernandez under the 1984 Printing and Press Act also
illustrates the risks posed to persons who publicly voice their
opinions in Malaysia. The Asian Legal Resource Centre has this year
submitted a separate written statement on freedom of ex-pression in
Asia.
6. Most national security laws in Asia violate the basic tenets of
the rule of law and undermine institutions to uphold the rule of
law, including the defense and the judiciary. The "Terrorist Bill"
of Indonesia gives "judicial power to non-judicial bodies", thus
allowing for state control over the judiciary. The Asian Legal
Resource Centre has previously observed to the Commission that
without access to a client and fair trial, a lawyer will either
succumb to plea bargaining instead of legitimately attempting to
prove the client’s innocence, or become cynical and give up hope for
the system altogether. The lack of an independent judiciary together
with the dismal role of the defense lawyer helps perpetuate corrupt
practices whereby the state controls the legal system and destroys
any chance for criminal justice.
7. As the Asian Legal Resource Centre has repeatedly stressed to the
Commission in many written submissions over a number of years, when
criminal justice is undermined, torture becomes common. The Centre
has this year submitted a statement on the hundreds of prisoners who
have died in custody in Malaysia during 2002 and 2003, a great many
of which can be attributed to torture or cruel and inhuman treatment
and punishment, including the deaths of petty criminals. If a thief
is liable to be tortured to death in a Malaysian prison, it is not
difficult to imagine what fate awaits a prisoner under the Internal
Security Act.
8. The protection of rights presupposes the existence of an
institutional framework adequate and credible enough to ensure them.
The expanding national security legislation across Asia has the
express purpose and effect of further undermining the already weak
institutional framework in the region. This situation poses a
challenge to both the international community and Asian societies.
All groups involved in the protection of human rights need to
develop ways to counteract the spread of these noxious laws. In
particular, United Nations agencies must play a far greater role and
develop the means for effective intervention to prevent such laws
from being enacted or exercised. The Commission must take many more
steps to assist human rights organisations in developing local
initiatives to recognise the dangers early, and act swiftly to
encourage the kind of widespread criticism of national security laws
needed to ensure change.
________________________________
Asian Legal Resource Centre – ALRC
Asian Human Rights Commission - AHRC
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