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Human Rights and Law in Asia

Human Rights and Law in Asia

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

New York, March 27, 2001

Introduction
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.

Question and Answer Session

Shyama Venkateswar

Thank you very much, thank you all for your comments. I want to open up the floor, if you would all identify yourselves as you ask your questions.

Question

I have a question for Mr. Falaakh. You mentioned about the situation faced by Indonesia, for example about the human rights violations committed by the military personnel. It seems that Mr. Falaakh is suggesting that there should be cooperation between the government and the House of Representatives which is not working right now, since the government is always in danger of being toppled down. If cooperation should take place, I'm afraid this could also jeopardize efforts towards resolving human rights and legal problems too because legal problems could be treated as a political issue and not a legal issue.

Mohammad Fajrul Falaakh

Yes, I think that is exactly what is going on there in Indonesia, this is my personal opinion. With the new law on human rights ballot from January of this year, authorizing the House of Representatives to issue a recommendation, not really issue a recommendation, to issue a decree on the establishment of ad hoc human rights court. Of my opinion, it is already political. What is interesting is how that particular provision was achieved, say in the last year and to my knowledge that sort of movement in Indonesia towards a political handling of human rights, or legal cases, is very much a part of the political process that has been undergoing in Indonesia. I can, for instance, recall that in 1998, for instance, the interim Habibie Government issued emergency governmental regulations instructing the establishment of human rights courts or human rights tribunal under the pressure of the international community. And what is interesting is that those regulations contained the non-retroactive provision. And that sort of provision reappeared in the law no. 39 of 1999 that was then criticized and then repealed and then replaced by law no. 26 of this year (2001). But without mentioning whether the non-retroactive principle is valid however, looking into the constitutional amendment, that is the two conflicting clauses there, in the constitutional amendment, containing/regulating human rights. So it has become political. And with the new law passed in January, giving the House of Representatives the right to establish human rights court, the issue of human rights courts abuses, or the trial of human rights abuses, has become a political one. So in my opinion, well I can understand and fully support the statement that was made last week by the Human Rights Watch, urging President Wahid to establish human rights courts, but it is interesting to see that actually it is the House of Representatives who should establish the human rights courts, while, on the other hand, the President has also the right to establish human rights tribunal within the existing courts. So President has made that move already.

Question

The parliament, the CBR committee said that it formally approved ad hoc tribunals for East Timor and Tangjung Priok and they already acted.

Mohammad Fajrul Falaakh

But in my opinion, the House of Representatives should have established the courts rather than just recommending the establishment of the courts. So it’s different. So if I would make a recommendation or statement on behalf of whomever I would just urge the two institutions. On the one hand, the House of Representatives of Indonesia is in the right position to establish human rights courts, ad hoc human rights courts, on the other hand, if that sort of human rights courts could not be established, the executive, the president, has the right to establish human rights tribunal within the existing criminal justice system. But then, if the executive could do that, then that would really help, because the perpetrators, those who were involved in past human rights abuse, largely are military personal, meaning that they include the police. Before August 2000, the police, the Indonesian National police was part of the Indonesian armed forces. So, as was usual in Indonesia, these military officials would be tried under the military, criminal justice system. So even if the President has the right to establish the human rights tribunal within the existing ordinary courts that doesn’t help because it should be established within the existing military, criminal justice system as well to be able to try military officers.

Question

I have a question probably will most directly link to the Thai and Indonesian presentations going through thinking how the structure of government. One question in the Thai case, in drafting the new constitution, what role did organized lawyers play? Was there a role played by progressive bar associations and I note that there is a new bar association in Indonesia that might be impacting developments there. Second question, specifically on the Thai experience, was there any effort to include in the new Thai constitutions means to address past human rights abuses such as the massacre you mentioned of the students. So those are the two questions.

Kittipong Kittayarak

The first one, listening to my colleagues from the Philippines talking about the lawyering process in the Philippines, I think about my country that lawyers are taught to be conservative. I think its everywhere like that but in Thailand, a lawyer will be very much criticized that because they have been trained to study the law but not the philosophy of the rule of law. They have not been taught that that law should be a vehicle, a means towards a goal. They have just been taught to apply the law as it is. So if the laws are unjust, as it is in most of the cases in our part of the world that the law are the products of the authoritarian regime. The lawyers that have been taught in the system where they have never been taught to think of the rule of law, then they would be part of the process of maintaining the status quo. So that is the case in Thailand. And in drafting the constitution, not only did lawyers not participate in the process, they are themselves barriers to change. So myself, I am also involved with the legal reform initiative in Thailand. To try to make a legal reform in a country you need a champion or in our culture, aristocratic figures. And I could not, looking in to the lawyers system, the whole system, I could not find a champion of that so I had to go to the former Prime Minister who is very well respected. Even though among the lawyers, especially the judiciary, they are much against the concept, but with the public support they have to go along. With the constitution, there are so many provisions regarding judicial reform. It was very controversial at the time. The judiciary was very dissatisfied with the reform, with the more accountability, more transparency. So your first question is that it is not as much as it should be. I hope in the future it will be better.

The second one I think really is the weak point in the process in Thailand. I don’t know if it has something to do with the culture or not. But there’s a strong group of relatives of those who died or disappeared in the massacre going on in 1992 and 1976. They tried to demand for compensation but they never have, I mean the government doesn’t respond very much to their demands. Which I believe that are partly, I don’t know whether the majority of the country is thinking that they should dwell in the past or not. I fully agree that these kinds of issues, we should be able to bring those with some abuse to justice. That is what we should do. I don’t know if the majority of people don’t want to think about the past, just maybe part of the culture. I don’t know, maybe it's not good. In the constitution there is a human rights commission established but it doesn’t mention that even though we have the new constitution the process of implementing is very difficult because of the transitional period. The institutions that are existing now, many of them are against the concept. For instance, if a human rights commission and many other organizations like the constitutional court, the process is that the nominations have to be sent by the Senate committee and then the Senate has to endorse it. But the Senate, the old Senate, came by appointment by the old regime, so they tried to water down the effort, the change. And because the Thai people, they kind of lack the patience to understand much about the democratization process, they think by having the constitution, they won. Once they saw our test going on, our appeals going on when there is the building of the dam or the pipelines, that effect the livelihood of the people, and that process of the local people, probably the majority of the people in that this is never before that we have it. In the old days things go smoothly. We don’t have to deal with this kind of thing. So I think, in this process you have to try to educate the people. Education is, I think, the most important. See with education how to give them information, how to make them understand the longer time frame will be good for the country. This is very good because we are talking about decentralization, we are talking about village people who, by themselves, people say that is the spread of corruption because in the village they don’t have any mechanism to control the influential people to come to power. So in your question you pick up the weakness of this system.

Rajesh Swaminathan

My name is Rajesh Swaminathan and I am from Davis, Polk & Wardwell. I would like to ask all of the panelists what do you think is the applicability in each of the countries, something like the South African, Truth and Reconciliation commission for past crimes. And it strikes me that the virtue of that great innovation is that it allows for some of the things those speakers from the Philippines mentioned confronting the abuser, documenting a history of trauma without necessarily complicating the process by which society evolves certain universally accepted universal standards for instance, the unacceptability of arbitrary detentions, executions without trail, that sort of thing. And it strikes me that particularly where state institutions are weak, that’s a very useful sort of innovation to consider.

Mohammad Fajrul Falaakh

Yes. The Truth and Reconciliation commission model after the South Africans has been contemplated in Indonesia and a bill had been drafted by the Minister of Justice with the help of certain NGOs active in human rights causes but I don’t know that today. And especially important, I don’t how would they construct legal arrangement as to the relation of this truth and reconciliation commission with the existing human rights court or the tribunal within the existing ordinary criminal justice system. And another issue of mine is whether it is appropriate to really copy the South African model and especially if you have, like Indonesia, human rights abuses very much involving the military; Peru, other Latin American countries models may be better.

Question

There is actually a team from South Africa who worked on the reconciliation commission who have been to Indonesia and who have actually strongly recommended against the Amnesty provision because there were actually many reconciliation commissions before the South African but they didn’t have the Amnesty, which is key because it invites in a perpetrator. It gives them incentive to come forward and tell their stories. But if you don’t have serious prosecution you don’t have that incentive very effectively and so their perceptions of the Indonesians, their court system is still weak and you may in fact undermine these new attempts at establishing justice, because they are not strong, by giving Amnesty. And you could also undermine, it might not work, because the incentives are not strong yet. So there is an interesting controversy. It is still up in the air as you said.

Maria Glenda Ramirez

In fact in the Philippines they also established a truth commission but it was under presidential decree issued by President Aquino and it was called the Presidential Committee on Human Rights. Its task was to investigate the human rights abuses during the time of Marcos. However, it failed for two reasons. First, there was a law decreed by Marcos that all abuses committed by military against civilians will be tried exclusively by the military tribunal, and it was not repealed until 1991. And also during that time I think Aquino had difficulty prosecuting military officials because as we already know, the military previously supported the Marcos government, eventually supported outside revolution. So there was a feeling of gratitude towards the military and they were treated by the masses as heroes and eventually the military leaders like Enrile and Ramos were appointed by Aquino to key government positions.

Question

Do you think it would be at this point fair to say that the Philippines needs another political revolution to get the right kinds of institutions?

Maria Glenda Ramirez

I think the system is already in place but the problem is the people administering the system because some of the key leaders during the Marcos regime who later on denounced him, were later on reappointed by the Aquino administration by our former President Ramos, he headed the Philippine constabulary and it was identified as one of the most, one of the institutions that committed the most abuses during the Marcos time. Since he denounced Marcos, there was no accountability or purging of the institutions.

Edgar Bernal

We discussed actually about that, in the context of the Filipinos. And we do not know, if it is the culture of our country , of poverty, and we, until now, we haven't formed any opinion as to what is wrong with our country. Despite two revolutions and despite the fact that we have signed almost all human rights instruments. We are very close yet we are still floundering as a country and without a system at least, the culture, at least changing the culture, it only goes back to education.

Question

One other reason that it has been so difficult for human rights violators to be arrested, prosecuted is that starting with the Aquino administration the key people in former Marcos military launched the putsch in 1976 and later transformed themselves into the heroes of the revolution. They led a series of increasingly dangerous coup attempts against the Aquino administration. One of issues they are vindicated for their anger against the administration was that there were attempts on the part of the administration precisely because some among them were outspoken. It is just so ironic that after those coup attempts, governments, not only with the Maoist National Democratic Front and the Muslim armed self-determination movement but also with these others, they had been sworn to defend the constitution, their arms they just became another armed political movement. And that has come from their self-importance and it remains a challenge for us. In relation to education, we need to go back all the way to the way to the socialization of the military because that in itself is so steeped in violence.

One small part that I would like to add, we have so much unfinished business. Even we are suppressed. So after the revolution there is political change or partial political change. We did not go on to continue the process of social and economic change that we practiced for a variety of reasons. Many of which are our own fault. And so, as Hannah pointed out, we had to bring the situation to such a crisis point that we had to do the people power too, last January, just to oust the president instead of having normal political processes paving the way for transition. So now we are confronting having to learn again from the past thing that we have done right and the past mistakes, which we have repeated at least once over. And to say what do we do now? And this leads to the question I wanted to raise. Now, for example, looking back on what we have not done with regards to the Marcos legacy, there are processes like this memory booth and the justice project, in thinking about that and thinking about the people power through last January, now cases have been filed for plunder, for ill-gotten wealth against Estrada. Now we are in the middle of a campaign, which will happen in May, where our Estrada forces are going to try to use it to vindicate themselves and make a comeback at the polls. Do you have a sense that we have learned and that we will do better this time, making them accountable in the courts, and not just in the courts but in society at large. Because I also believe as what you were pointing out about the process in South Africa, maybe it is not necessarily absolute justice or legalistic justice one hundred percent, that we need to go after, though I don't even know if that is possible, but to strike other ways that our society can find of meeting that justice of healing and reconciliation and living together again. Sorry it was long but are you more hopeful or optimistic?

Maria Glenda Ramirez

Just in addition to your comment. The military leaders that lead the coup d’etat against the Aquino administration was later on granted de jure Amnesty by Ramos. My only problem is that with various issues facing the present administration, like there are rumors of a new coup d’etat and challenges to the legitimacy of the government and there also calls to establish a truth commission for corruption during the Estrada administration. But they may be forgetting one segment of the population, which is the human rights victims during the Marcos regime. And what I am proposing is an establishment of a new truth commission to address the injuries they suffered, although the first truth commission and the human rights case filed in the US has several advantages. It identified the military and the paramilitary in the institution. It identified the top leaders. But however, there is still need to determine about how to deal with the persons who actually committed the offenses and the role of the middle-ranking military officers like Ramos and like Enrile to determine their accountability. At this point I do not know if there is a possibility of their prosecution because, like in Indonesia, there is the problem of the retroactivity of criminal laws. Because this happened from 1971-1986 and it is possible that most of the crimes already proscribed. But at least with the truth commission, their priorities should be to give compensation because I don’t think the two billion judgement is realistic and I don’t think it will be enforced. So the main purpose of the truth commission would be to establish reparation, mechanism for the government to provide for compensation to the victims and to Marcos and not Marcos themselves.

Question

My name is Matthew Draper. I am a student a Columbia Law School. I wanted to follow up on what a couple people have said about how to make the transition. And I wanted to ask the following, Thailand’s constitution and the process that it was negotiated, adopted by, was widely praised. It was seen as very open and it was thought to have included a lot of citizens and it also educated a lot of them about the constitution. And, I think some people thought that that would mean that even down to the village level people would understand what democracy means and what rule of law means and that you would create this new culture through the constitution writing, rewriting process and the debate over whether or not to adopt it. But you were saying just now that you thought a lot more education was needed. Do you think there was a positive effect from the process that the country went through in discussing and rewriting the constitution and if so, is that something that you would recommend for some other countries that are facing similar conflicts?

Kittipong Kittayarak

I don’t know whether I sound pessimistic. But actually I am not pessimistic. I am very optimistic about what has been going on. But the reason I raise the issues that it is just the beginning is that having the constitution is not the end of it or having the revolution is not the end of it. It is just the starting of the democratization process. It will take really take a long time. And in the case of Thailand, people never before having the chance to participate in public policy making, this is this the first time that they have. So, I think it is really important to start with education. We should not just tell them what rights they have but civic duty, civic responsibility, civic education, civic virtues. It is very important and it has never before been taught in the country even though you have the rights in a democratic society, you have to listen to the others and you have to finally give in to the majority. And that lesson I think they have to learn, a very important one because now there is more conflict. If you are looking at the short term, there is more conflict, some people say upheaval, confusion going on. So, I think for those of us who really believe in this process, we have to keep on doing things that need to be done, keep on proving to them that this is the best way that we should go about doing it. Against this background is those who don’t believe in the system, those who have the power of the old guard, waiting there, trying to make it look bad or worse then it could. I am sure that it happened in other societies, not just Thailand but in other forms. I think that the education and the role of the media is very important. Media is a very important tool to educate people. In Thailand, we have problems with other society also, that the constitution that passed the Parliament and the coup in 1991 and finally in 1992, the people won, partly because of the strong media , the courage of the media to report the truth. But the old guard, they learned how to use the media. So now it is even more complicated that those big business, they know how to use the media. They know that advertisement is very important to the media. So the issue that we have to confront next is how to make this airwave or this media available to all. So there are so many issues that we have to do. Even though here in the US some things are taken for granted because it already has been there. Even though you had some problems about the election, finally there is no protesting on the street, finally the system went on even though there are many loopholes in the process. But I think the ideology was there. People believed in the system. I think what we learned from the Eisenhower fellowship, was that even though I mentioned at first that the constitution is brief but very well written and a lot of ideology, values behind that. And that is very important for new democracies. Even though we have the best constitution, I think Thailand has one of the best, and it is very long constitution 336 articles. It is a very long one. The Indians have four hundred something but even that is good. But I think you have to keep it to spirit. I don’t know whether I addressed your question directly but I get the feeling that we have.

Shyama Venkateswar

Can I just follow up on that? Do you think that it is a dangerous position thinking that we need to institutionalize a culture of human rights before real human rights redresses can be addressed because then you are saying that if you don’t have a culture of human rights then nothing is going to happen. What about new democracies or countries going through transitions, if their institutions are sort of weak and their constitutions don’t make the right provisions and they also don’t have the culture of human rights, then they are really a mess. I am sort of afraid that position might be saying that these countries are doomed.

Kittipong Kittayarak

In Thailand, the driving force for change is not through the government, as I mentioned. It is through the people. I think the issues of human rights abuses in the past that even though people, because of the culture, do not stand up and say that we have to crush each other, we have to prosecute or bring them to justice right away, probably is part of the culture, but it doesn’t mean that people ignore or doesn’t really bother, it was banned. It has happened here before as I mentioned and I think that we cannot plan better than this. There will be some confusion going on. It is not very easy to try to steer the cause of democracies. But you have to believe in the values, you have to work very hard. You have to stick together for those who believe in this; NGOs networking is very important. So the driving force, even right now is for the election, and networking of the NGOs. I think sixty percent of my work, even though I am government officer, rely on NGOs. And most of my work, that I have been successful is not because of position as a government officer, but as a NGO, as they can change things better through its connection. This government, I think that they realize that they cannot go on without the support from the civil society. So they are trying to make themselves at least, to make themselves look good, that they are trying to follow up on the issue of human rights, but it is up to the people to get together and keep pressuring them and try to prove to them that this the way.

Question

I have a question for Mr. Kittipong. One of our on-going human rights issues, in many countries there are obstacles to persection of officials, and I was wondering if this ever demoralizes people. Could you comment on this?

Kittipong Kittayarak

In the new constitution, two new institutions were built. The first one is the National Commission on Counter Corruption that is an independent commission that the members are nominated by the Senate and the selection committees are endorsed by the Senate. Another institution is the court. For politicians it is a very strange one. It kind of lets you know the feeling of the people that detest corruption. They, the drafter of the constitution, go to the polls and one of the things that they get from the people is that we need a justice not to be short and we need disposition to receive punishment. So they establish a new court within the Supreme Court. So it is one trial. There is no judicial review. I don’t know whether it is against the rule of law or not but the people want that. So I think through this National Commission they have, the National Commission has two alternatives. The first one is to use the impeachment process, sending the case to Parliament for impeachment. Another one, if they find criminal activities, they have to send this to the prosecutor to prosecute to this special commission. So far no cases have been prosecuted yet but we have been very successful in the last year. The most powerful minister in the government, the Minister of Interior, he was disqualified by the NCCC commission on grounds that he didn’t declare the assets properly. It never happened before in the past. And most recently, his current Prime Minister, before he got elected, just three weeks, this commission said that his declaration had hidden some property. He didn’t declare fully. And now the case is still pending in the constitutional courts. So I think this is very important development on corruption. What is the other part of your question?

Question

Trafficking.

Kittipong Kittayarak

The trafficking, we have new laws on this. A very strong law came out three years ago that has elements of international cooperation and conspiracy concept in it. We are also quite active on conventions of international organized crime. We have a protocol on human trafficking and I think there are many cases of cooperation between us and many countries of Europe and the US. Recently, just two weeks ago, one of the deputy speakers of the Senate had to resign and was prosecuted because he was sexually involved with a minor. For the first time that even the crime of those involved is there. So I think that it is a good development on this that we have to keep working on it.

Angelica Jongco

Hello, my name is Angelica Jongco and I am with the Filipino/American Coalition for Environmental Solutions or FACES. One thing that I didn't really hear mentioned is the factor of economics in all of this and how much at times the economic factors can be pitted against the moral obligations to go after the human rights abuses in cases of environmental justice. I expect that Mr. Bernal might come up against this often when he, often times, has opponents who are corporations that are bringing economic investments in and often times the allies of those corporations are the government who are granting permits or are even sometimes legally taking away the titles of the land. And I was wondering what you were seeing in the future, in terms of when human rights or champions of the people, might not be economically expedient or in the case of the military abuses of the Philippine government, not politically expedient.

Edgar Bernal

I think that is a very good question and after observation, one particular issue is that we have to confront, when there are existing communities that are faced with development projects. Introduced by global corporations that come, how are we going to respond to advantages of these corporations. And, in so far as, at the level that we have reached, we have come to the point that we are saying that, what we want is the desire, the will of community. We are not particularly opposed to a particular project. All we want is the interest of the community is properly expressed and if they do want an investment and if they do want a reparation, if they do want redress then so be it. But just the processes be observed. And if the processes in place are not conducive to that that we have to change the law or we have to change the structure, then so be it. That is the kind of approach that we have right now.

Shyama Venkateswar

We have time for one final question.

Neena Kumar

I am Neena Kumar, a member of the Asia Society, an avid supporter of the Society. And one factor is the factor of education, teaching people what their rights are. Otherwise, you have another actor, like you have so many actors and actresses. But your system works and from a forum of illustrious members, we are all giving birth to your own cultural, legal rights or framework that would suit us as a people. The question I have, living here, is I am constantly approached by foundations that have a presence in the countries and a lot of them address legal rights but they work as NGOs. And my question is how much of a grassroots effect do you feel occurs from their work. How much of an impact does this foundation have?

Edgar Bernal

Since our organization is a direct beneficiary of the Ford Foundation, it's hard to say. I think it is a matter of coincidence. It is a matter of tailoring projects or your interests to the interests of the foundation. It is true that we could not just submit publications or proposals to any foundation. We have to look for a foundation that is of interest that is more similar to ours. And in that sense, we could say that the absence or presence of particular foundations that would grant or support our particular interest, might effect whether we are going to have this sort of initiative or not. But I think and I believe that the identification of particular interests that we are going to do, are properly grounded upon ourselves as advocates and the communities that we are serving and the foundations are just like a universe from which we are going to select. Which foundations are going to support our initiative rather then the other way around. Although we are going to go through the details, which is basically reporting and telling the foundation how we are going to gauge or assess our success, our impact to the communities. That I think, the foundation might have a say. But it is not, I think, that this is it.

Mohammad Fajrul Falaakh

The role of the foreign supports be it NGOs, or whatever. But certainly the amount of the issues, the number of relations, these areas should be covered, but foreign support has its limitations. Overall, I would rather say that the way foreign support could also help also facilitate the local responses. For instance if local NGOs, working on awareness of human rights work in the cities or Metropolitan area. What would you expect with that sort of activities?

Shyama Venkateswar

I want to thank all the speakers for their very, very interesting comments. Also, this is the first of series on Law and Human Rights and what we are proposing at the Asia Society is that we continue this series in varies forms. We are also in conversation with a particular law firm, which we will not mention here, to try to sponsor some of these talks as well because maybe half the year if we have some of these forums at the Asia Society and then we go midtown or downtown to go do some there as well. I hope you are all on our list so we can keep you posted on such upcoming events and again thank you all for coming this afternoon.

March 27, 2001
by admin