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Human Rights and Law in Asia

Jakarta, Bukit Duri. Preparing Dinner. They live as a small community in this place. (henri ismail/Flickr)

Jakarta, Bukit Duri. Preparing Dinner. They live as a small community in this place. (henri ismail/Flickr)

New York, March 27, 2001

Shyama Venkateswar, Assistant Director, Asian Social Issues Program, Asia Society

Eisenhower Fellows
Mohammed Fajrul Falaakh, National Law Commission of the Republic of Indonesia
Kittipong Kittayarak, Assistant Permanent Secretary of the Ministry of Justice, Thailand

NYU Global Public Service Law Scholars
Edgar Bernal, Legal Rights and Natural Resources, Philippines
Maria Glenda Ramirez, Internship and Legal Aid Director, Ateneo Human Rights Center, Philippines

Shyama Venkateswar

Thank you all for coming. This afternoon we have this wonderful group of people here from completely disparate parts of the world but all sharing the same views and issues of human rights, democracy and the law and I wanted to quickly tell you what the format and forum for this afternoon is. Each speaker will give very brief remarks and then we open the forum up for questions and answers and anything that they specifically have from their region or anything specific in terms of the work that they do. We have four speakers and those of you that have the flyers, if you just go through as it appears on the list. We have Mohammed Fajrul Falaakh from Indonesia who is also an Eisenhower fellow here, based in Pennsylvania. We also have Kittipong Kittayarak from Thailand and then we have two NYU Global Public Service law scholars and they are Edgar Bernal and Maria Glenda Ramirez from the Philippines. And I also want to identify two other people who are here this afternoon. One is Risa Risa Hontiveros-Baraquel, from Tanghalang Lakbay Pinoy Productions in the Philippines, who is also an Eisenhower fellow and also Rachland Nashidik, Indonesian Legal Aid and Human Rights Association from Columbia University who is also part of the human rights center there. Without any other comments let me just start with you.

Mohammed Fajrul Falaakh

Thank you. What I am going to talk about in a very short time specifically is how human rights abuses in Indonesia have been addressed in the past two years or so. And keeping in mind that human rights issues under the rule of law is an important issue that many of the transition leaders have recognized. With that sort of understanding, I think we can locate the issue of bringing human rights issues to trial as an important part of how a new government, new regime, there is already a regime, is able to precede their transition from authoritarian rule. It is very much an example of the difficulty to precede the democratic transition. Using the case of the trial of past human rights that occurred in Indonesia. It seems to me that bringing the perpetrators of past human rights abuses in Indonesia has become both political as well as judicial issues. Now, seen from the political perspective, here in Indonesia, I think that we have political, especially political military impediments. With the nature of the new government as a compromise, government involving political parties that already existed during the Suharto period, you have now compromise new government. Without government, I think it is natural that the new government will face difficulty in say, bringing human rights abuses into trial. And it is very much so, because in my observation, the military, the Indonesian military retains its privilege to remain there in the House of Representatives with a very small number compared to in the previous regime.

Seen from the judicial angle, we have several aspects that have hindered the process of bringing human rights abuses into trial. There are lots of aspects here. For instance, there is an uncertainty and constitutional and legal uncertainty as to, for instance, whether the non-retroactive principal to try human rights can be applied or cannot be applied and there is that sort of uncertainty. With the new law passed January this year, still the answer to this remains. And what is more is that to bring cases, human rights abuses to trial, we need ammunition, we need recommendation from the House of Representatives. Judicial issues are very much intertwined with political one. Without reaching any political consensus at the House of Representatives, then you hardly would be able to bring human rights abuses into trial. Other aspects include the lack of confidence to the existing courts in Indonesia. According to the new law, there is a possibility for the government to establish human rights courts or trials within the existing ordinary criminal code. But people in Indonesia and observers from outside have no confidence or low confidence, if at all, there is confidence on the existing court system in Indonesia. So these are two examples of the aspects that have hindered the prosecution of human rights abuses. Having said that, in the past two years, the Indonesian government, the leaders in government have been able to bring four cases of past human rights abuses into convictions. Five cases have been investigated, although with great reservations on the process, and some others have been mentioned. But to a large extent, past human rights abuses have not been addressed by the new government as well as by the new political leaders. To end this brief introductory remark, I would say that yes there is an ongoing process to bring human rights abuses, past human rights abuses into trial, into justice but it is, I think, a very difficult process, that to my knowledge other countries, emerging from authoritarian rules, have also faced. Indeed the transitional justice is one of the difficult areas that democratic transition in many countries have been confronted with. And secondly, Indonesia, as a new government, as with other countries, has to rearrange their legal structure including the court system, in line with the standard, the international standard, in order to be able to bring justice of past human rights abuses but in countries with very low awareness of human rights and lack of trained human rights lawyers, you need to work with this sort of countries in a very probably slow motion. So, this is to end my remarks. Thank you.

Kittipong Kittayarak

First of all it is a great honor and privilege to be here. It is a very important organization. The topic of my address today will be a perspective of the new constitution of Thailand, which came out in 1997. It is very difficult to talk about the making of the constitution in ten minutes, but I will try. For those of you familiar with the politics of Thailand, you probably know that we are not new among the concept of the constitution because this one is the sixteenth one we have. Since 1932, the country has changed from absolute monarchy to constitutional monarchy. We have fifteen constitutions. This one, with the other fifteen, we are talking about experts in drafting the constitutions, we are better than the U.S. who has had only one consitution for a long time. I think the importance of this new constitution is that it is the first constitution that has been called the people’s charter because it is the first time that people really participated in the drafting of the constitution. But it did not just happen, for those of you who have followed closely the development of Thailand in the past thirty years, you probably realize that in 1974, we have the uprising, democratic uprising confrontation between the authoritarian regime and students. At the time, the students won and the authoritarian regime were forced to be out of the country. In 1976, three years after that, they came back, the old guard came back and they started massacring the universities. And in 1992, more recently, there is a demanding for a constitution in Thailand, and resulted in the upheaval of the country. There is a massacre of those of the pro-democratic movements in Thailand but in 1992 the experience that we saw was that people who gather demanding for the constitution in 1992 are the same generation of those who have been involved with this process in 1974 and 1976. So the group is larger and I think there are more middle class demanding for the constitution.

So after 1992, there is a movement within the country, initiated not by the government, but by the civil society to avoid the bloodshed in the future, you need to have a system that can resolve conflicts peacefully and that started the demand for the so-called political reform in Thailand which result in 1997 with the new constitution having very comprehensive permissions dealing with all sorts of issues aimed to making good governance to the country. The concept that the new rights and the mechanism for the protection of those rights, very detailed resolution concerning the right to education, to educate the people, the right of free education for up to twelve years, to educate the civil society to be able to participate more meaningfully to the process of public policy. Right to information, for the first time we have citizens are allowed access to information from the government. The right to hold public hearing, the right of the community to preserve their own tradition and values. The right of victim of crime, the right of family members to be free from violence. There are so many rights, that have been rights in the constitution. But apart from those rights we also have mechanisms, which I think is also a very strong characteristic of this constitution. Because the constitution established that many independent institutions because of the distrust of the government institution they have established the electoral commission to oversee elections all over the country and this election, this commission has been quite successful, really in organizing the past several elections that we have had in Thailand. We have the new Senate that is directly selected from the people and we have a new constitutional court, new administrative court and a new human rights commission.

So a lot of things are going on but this point I would like to sum up for this talk here is that it is not easy to have constitution that works in a culture that is different than yours, for those of you who are from the US. It is not just what is written in the constitution. In the case of Thailand, you see that there is a long process of movement demanding for these rights and liberties in the constitution and it is only the beginning. It doesn’t mean that once we have the constitution it will be over. It is just the beginning of a long step towards democratization process and the demand for the constitution is driven by the people. The movement was very well planned. There is some good research, back up behind the movement for the constitution, the type of campaign to the political party at the time except that this is the need of the people and they put it in the agenda during the election period. So we have the constitution drafting assembly, there is a very well planned wealth of research, backup. And then once they have the time, twenty to forty days, they take the issue to the people and have the people involved in every issue. So finally during the voting days in the Parliament, even though the politicians, they do not support these constitutions, but finally they have to say yes because the people want it. So to sum up, what is different than the system here, that I have observed, is that even though you have a lot of, the US constitution, is not very well worded, it is very ambiguous sometimes, so you can always say that the founding fathers said this or that. But what is written in the constitution is the ideology, it cannot be built, there is no charter to democracy.