The Second Jakarta Human Rights Dialogue (JHRD) on Prevention of Torture in the ASEAN Region
2-3 November 2013
SUMMARY OF PROCEEDINGS
1. The Second Jakarta Human Rights Dialogue (JHRD) on Prevention of Torture in the ASEAN Region was held on 2-3 November 2013 in Grand Hyatt, Jakarta, Indonesia. The Dialogue was initiated by the Indonesian Representative to the AICHR, Mr. Rafendi Djamin, as a back to back meeting with the annual Civil Society Organizations (CSOs) Consultation with the ASEAN Secretary General and the ASEAN Committee of the Permanent Representatives (CPR) on 1 November 2013. The JHRD was jointly organized by the AICHR Indonesia, Ministry of Foreign Affairs of the Republic of Indonesia, Human Rights Working Group (HRWG), and the Centre for Strategic and International Studies (CSIS); with the support of the German Embassy in Jakarta, the Swiss Embassy in Jakarta, the United Nations High Commissioner Office Regional Office in Bangkok, and the Association on the Prevention of Torture (APT).
2. The Dialogue was attended by the AICHR Representatives from Indonesia, Lao PDR, and Thailand; and the Alternate of the AICHR Representative from Brunei Darussalam and Assistant to the AICHR Representative from Malaysia. Representatives from National Human Rights Institutions in the ASEAN Region, Human Rights experts from the Inter-American and the European systems, relevant Government Agencies/Institutions, Representatives from Embassies in Jakarta, some Representatives from Permanent Mission of the ASEAN Member States to the ASEAN, Representatives from the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC); International, Regional and National CSOs; and Think Thank organizations also participated in the Dialogue. The Opening Session of the Dialogue was also attended by Representatives from Embassies in Jakarta among others by the Deputy Head of Mission of German Embassy in Jakarta, The Finland Ambassador for Indonesia, the Ambassador of Norway to Indonesia, and the Deputy Head of Mission of Embassy of Denmark in Jakarta. The ASEAN Deputy Secretary-General for Community & Corporate Affairs of the ASEAN Secretariat also participated in the Opening Session.
3. The Welcome Remarks were delivered by Mr. Rafendi Djamin, the Indonesian Representative to the AICHR that stressed that torture amounts to gross violation of human rights, where all states are prohibited against using it but in silence torture is still proliferating in prisons, police headquarters, and other places. He added that torture is specifically condemned because it consciously inflicts pain on another human. Thus torture is absolutely prohibited, even when the pain inflicted is not severe. The act is considered war crime at all times (both in peace or at war).
4. The First Opening Remarks were delivered by Dr. Thorsten Hutter, Deputy Head of Mission of the German Embassy in Jakarta that stressed that Human rights must be universal, it must not matter where a human is born; each one of them shall enjoy the same protection under the human rights. No country is perfect, violation of human rights occurs every day; thus the protection of human rights is a daily work. He added that the task of civil society is to limit and control the use of power by the state; and the state must be happy about it. This is particularly true regarding torture. Furthermore, torture is not always very clear cut; an argument can always be made to condone torture done to save other human lives. But under human rights, the answer is unanimously no. He affirmed that the fact makes this dialogue important, to share best practices regarding prevention of torture.
5. The Second Opening Remarks were delivered by Mr. Rahmat Pramono, Secretary of the Directorate General of ASEAN Cooperation, Ministry of Foreign Affaris of Indonesia who confirmed that human rights have become a priority issue in ASEAN, reflected in the ASEAN Charter; also in the establishment of ASEAN HR bodies. He affirmed that on the issue of torture, the ASEAN declaration is very clear. Nationally, Indonesia is also committed to maintain compliance to the international standards against torture; that freedom from torture is non-dirigible rights. He expressed his conviction that the AICHR shall play an important role in preventing torture, along with other Human Rights Bodies. The ASEAN Community is just around the corner, thus we are committed to implement a people oriented ASEAN. He assured the forum that the government of Indonesia is pleased to continue support to ASEAN Human Rights mechanism, and wished good luck for the meeting to produce a substantial contribution in enhancing Human Rights mechanism in ASEAN, especially regarding prevention of torture
6. The keynote speeches were delivered by Dr. June Pagaduan Lopez, the Philippines United Nations Subcommittee on Prevention of Torture. She explained that torture has existed since the beginning of mankind; and that the absolute prohibition of torture is questioned in the face of the need to extract information from suspects or adversary despite proven as an unreliable information gathering technique and breeds hatred. Torture often does not prevent terrorism, instead creates terrorists. She expounded the international definition of torture contains three cumulative elements: inflicting pain; condoned or conducted by state officials; done for a specific purpose (obtaining info, punishment, intimidating for any reason). Furthermore, she explained that OPCAT maybe the instrument needed to prevent torture, despite its low rate of adoption in the Asia Pacific Region. Dr. Lopez envisions a future for ASEAN, should there be increased number of state parties and National Preventive Mechanisms (NPM) for the Committee Against Torture (CAT) and the Optional Protocol to the Convention against Torture (OPCAT): joint action on prevention of torture, and leading Asia-Pacific for an Asia-Pacific HR Declaration and legal mechanism.
7. The Seminar was divided into four sessions covering two following topics: (a) Sharing Best Practices and Update Current Status on Prevention of Torture in ASEAN Countries; (b) Regional Cooperation in Preventing Torture: Lesson Learnt, Impacts, Gaps, Ways Forward & the Role of Stakeholders.
8. In Session One, the first session of “Sharing Best Practices and Update Current Status on Prevention of Torture in ASEAN Countries”, Representative from Cambodian National Prevention Mechanisms (NPM), Mr. Nouth Savna; Prof Harkristuti Harkrisnowo, Director General for Human Rights, Ministry of Law and Human Rights of Indonesia; and Representative from Lao PDR, H.E. Mr. Phoukhong Sisoulath delivered their presentations. Mr. Nouth Savna admitted that Cambodia is not at this time fully compliant to OPCAT but at around only 70-75%, especially regarding the independent monitoring. Some of the detention centers are still not open for public inspection. The NPM members are working hard to improve this by, for example, issuing Arrest Rights Cards to increase awareness against torture. Prof Harkristuti Harkrisnowo explained that Indonesia has ratified the majority of Human Rights instruments, but the government is having challenges to implement those instruments. The sheer number of detention centers (with each police post having their own detention center) and the often inaccessible location of many of those centers pose a great challenge to the implementation. She explained that Indonesia is not considering the establishment of a special body to address prevention of torture as the country already has many HR mechanisms and the existing commissions can be utilized for that end. H.E. Mr. Phoukhong Sisoulath described the many actions the Lao government has undertaken to ensure the prevention of torture; such as awareness raising seminars and workshops for the public, the police and prison officers. The national effort for HR, including CAT, is coordinated by the National Steering Committee on Human Rights, established in 2012. The country is preparing a national initial report for the International Covenant on Civil and Political Rights (ICCPR), and the 2nd UPR cycle will include the information on prevention of torture.
9. The Questions and Answers part of the first session discussed the problems of how Sharia Law treats torture, challenges to the notion that prevention of torture should not be limited to detention centers, how to engage the people (especially the military and the police) who still cling to the notion that torture makes interrogation process easier, and the best practices regarding overcoming opposition to CAT and OPCAT ratification. To those questions, the speakers highlighted some aspects in their line of works, such as: existence of loopholes within national law that allow perpetrators to avoid persecutions, lack of funding, the need to engage law enforcement agency and to raise awareness among government officials using layman terms that are easily practicable in day to day work.
10. In the Second Session of, “Sharing Best Practices and Update Current Status on Prevention of Torture in ASEAN Countries,“ Dr Renante A Basas, from the Commission on Human Rights of the Philippines; Ms Nareeluc Paichaiyapoom from the Rights and Liberties Protection Department of Thailandl; Ms Shazeera Ahmad Zawawi, of the Association for the Prevention of Torture (APT), spoke, with H.E. Dr. Seree Nonthasoot, AICHR Representative of Thailand moderating the session. Dr. Basas expounded on the process the Philippines underwent in the institutional building part of human rights instrument in the country, stressing that monitoring of detention center is still the most effective way to prevent torture and it calls for appropriate skill to make the effort effective. He further elaborated that it is planned that non-traditional place of deprivation of liberty to be included in torture prevention effort. The Philippines NPM itself would be further discussed early in 2014, and a La Breza Declaration of Security Sector Reform is also impending. Ms Paichaiyapoom added the Thailand experience in institutional building. To implement CAT, Thailand developed CAT curriculum to encourage related agencies to implement CAT, and included the curriculum in their respective internal education. The highlight is on the interplay of legal and institutional mechanism; and although the instrument is not all in place, it does not stop the effort to work on agency level. Ms Zawawi, on the other hand, stressed that to implement prevention interplay between legal frameworks is needed, as is implementation and control mechanism. The government would have to criminalize the act of torture but also to provide compensation to victims. Countries also need to develop the capacity of public official to prevent torture from happening. H.E. Nonthasoot added that a part of the AICHR mandate is to promote ratification of international HR instruments, and we can aspire that ASEAN can be a torture free community. National Human Rights Institutions (NHRIs) are often used as NPMs, and where NHRI is non-existent NPM can be used as a platform to build NHRIs. H.E. Nonthasoot also gave Prof. Amara Pongsapich of the Thailand’s NHRC an opportunity to highlight how the individual cases of torture were solved by engaging the superiors of the perpetrators and how the application of Martial Law in Thailand has made torture prevention difficult.
11. The Questions and Answers part of the second session discussed the problems of how the torturers are usually harsher on the political prisoners, not necessarily in physical manners but especially in mental intimidation; the work with victims and their families to provide remedy; torture by non-state actors; and the lack of ways in which the public, especially the victims, can participate in preventing torture; also a question of treatment on people fleeing from torture. To the questions, the speakers answered that it’s always difficult to address torture by non-state actors, CAT alone is not enough to prevent all forms of torture; and that the NHRIs must have a program to provide redress to the victims. The Philippines, in particular, has a financial program to assist the victims during the process of investigation. Regarding the status of torture in different circumstances: in conflict area torture is banned by Geneva Convention. It is a war crime. But outside of the conflict area, torture is a particular subset of violence, perpetrated by state actors. Other acts of violence are just crime, not torture. The case of Ahmadis is a case where the state fails to protect people against violence but not a case of torture.
12. In the summary of the first day proceeding, H.E. Rafendi Djamin underlined that this dialogue is not of AICHR, but of the Indonesia AICHR. Within the AICHR, the AICHR has mandates to conduct thematic studies; and this is the background of conducting this dialogue on prevention of torture. He hoped that this can contribute to the realization of the torture-free ASEAN community.
13. In the First Session of “Regional Cooperation in Preventing Torture: Lesson Learnt, Impacts, Gaps, Ways Forward & the Role of Stakeholders” on the second day, Ms Karin Mansel (Human Rights Specialist of the Executive Secretariat from Inter American Commission on Human Rights (IACHR ) and Ms Mari Amos from the Representative from UN Sub Committee on Torture (SPT) Regional Team on Europe spoke; with Dr June Pagaduan Lopez moderating the session. Ms Mansel highlighted the evolution of the Inter-American Human Right Commission, the steps taken with any cases regarding accusations of human rights violations, especially torture, from the request to the states, the prison visitations, press releases, observations or country reports. Most importantly, IAHRC encourages states to adopt CAT and OPCAT, and fostering the tripartite collaboration between the Civil Society, NGOs and the States. The individual petitions are the standard setting and reparations as means of preventing torture. One of the most important means of reparation is the guarantee of non-repetition: taking measures to avoid the occurrence of torture by state agents in the future. Ms Mansel also elaborated that one of the most important standard prevention of torture setting is not to send cases of torture to military court, sending them instead to civilian court. Ms Amos, on the other hand, stressed that joint-activities, sharing experience and expertise are necessary to build alliances between NPMs and to reach out to places where NPMs are yet to exist. She elaborates further that NPMs must build the agenda based from ground up, on experience and expertise sharing between them, and that evaluation between NPMs is necessary to keep moving forward.
14. The Questions and Answers part of the first session discussed the problems of detainees of Malaysian nationality currently held at Guantanamo, the cases where perpetrators of torture avoided persecution based on technicalities, the rate of compliance by the states to the recommendations made by IACHR, protection system for the victims, the lesson learnt in the interplay between the commission and the states, and the possibility of overlap between the The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CPT and The UN Subcommittee on Prevention of Torture (SPT). To the questions, the speakers answered that there is indeed an overlap between CPT and SPT, but SPT is focused on prevention, doing a lot of capacity building especially when the state is lagging behind the NPMs; that indeed fighting for a case demands a great deal of technicalities that can make or break the case. Based on the experience of the IAHRC, usually states comply with the recommendation regarding financial remedy; a more difficult ones are usually recommendations regarding justice, retrial or reopening a case. Mostly, the states are part-compliant. Compliments and praises for states on compliant are important to open up more doors. Whenever there were pressures from the states to eliminate precautionary measures, the IAHRC responded by changing the measure to increase transparency of the measure and to make rules more specific. This helps reducing states’ fear against the measures.
15. In the second session of “Regional Cooperation in Preventing Torture: Lesson Learnt, Impacts, Gaps, Ways Forward & the Role of Stakeholders” on the second day, Ms Rochatul Aswidah, Commissioner of the The National Commission on Human Rights (KOMNAS HAM) of Indonesia, Ms. Paramita Mulia (Association for the Prevention of Torture, APT), Ms. Maria Natividad Hernandez (the Executive Director of the Medical Action Group of the Phillipines), and Ms. Indri D Saptaningrum, Director of the Institute for Policy Research and Advocacy or ELSAM) spoke; with Prof. Amara Pongsapich, Chairperson of National Human Rights Commission of Thailand as moderator. Ms Aswidah elaborates that KOMNAS HAM has insofar unable to conduct unannounced visit to detention centers. To cope with this, KOMNAS HAM is targeting detention center and police officer for MOUs and trainings. One of the important issues discussed in Bali is how to make KOMNAS HAM as an important player to prevent torture, and how to push for the signing of OPCAT (it has been five years under deliberation). To date, KOMNAS HAM is unable to evaluate the compliance of the state on CAT because it is denied access to data on the ground, also the lack of access to monitor the government’s actions. Ms Mulia stressed that the cooperation with local actors is achieved by training, advocacy, and advice. APT encourages the adoption of CAT and OPCAT, providing analysis and advocacy of creation of complaint and redress system. The INGO has a bird view of what happens at the national level, and thus in position to see above and beyond the definitions, theory and local realities. International Non-Governmental Organizations can also help write reports and publication to shore up local work. On the other hand, Ms Hernandez expounded on how the Medical Action Group conducts trainings to enhance the capacity to prosecute acts of torture using medical evidence, including psychological evidence. The law enforcement officers are trained in fundamentals of human rights, definition of torture, recognizing torture acts, skills to investigate and pursue acts of torture as a punishable crime. Ms Saptaningrum shared about how ELSAM is working against the culture of impunity among the law enforcement officers; supporting this effort by publishing case digest enumerating violations across the country, and other publications related to campaigns and training kits to educate the public regarding CAT and OPCAT. The trainings’ effectiveness has come under question because the practice of torture on the ground is still rampant. And thus they have jointly organized and supported Indonesian NHRI to initiate coordination to build a makeshift NPM despite not being signatory to OPCAT. It is currently debated which HR body would house this makeshift NPM with KOMNAS HAM and Ombudsman ready to take the mantle.
16. The Questions and Answes part of the second session discussed that what is now experienced by KOMNAS HAM is also the experience of Philippines’ National Human Rights Institution (NHRIs) initially. The Philippines NHRI fought not to be denied entry, and issued circulars to relevant institutions about the mandate regarding unannounced visits. There are also sharing of opinions that one of the incentive for torture is that it is not recognized as a crime and that confession under torture is still acceptable by that criminal court; also that the NPMs should be independent of the NHRIs; and that a torture-free ASEAN should be the ultimate ideal. To which, the speakers answered that one of the most difficult parties to reach is the police officers at the grass-root level; the airing of acts of torture on television doesn’t elicit strong reaction from the public, and that could mean that the public are tolerating torture; that the police officers are the current main perpetrators of torture and that the victims of tortures are mostly the poor. One contributing factor to act of torture is the structure of recruitment for the police officers; where the frontier police officers are usually the most junior, with the least educational level, and thus not adequately equipped to understand what amounts to torture, and that torture is prohibited. The lack of report from victims of torture is also the result from the lack of remedy and additional risk of repeated victimization on torture. The anti-torture laws are in fact can only be approved by having a high percentage of the society aware of the cases of torture and being against torture. This fact will put the pressure to the parliament to pass the law. There is also an experience from the Philippines that having a government officials/high ranking police officers as trainers lowers the potential rejection from the police officers coming from the ground.
The dialogue discussed and agreed on the following recommendations:
17. To establish an informal network for prevention of torture in ASEAN. The informal network will be a strategic network comprise of multi stakeholders (ASEAN Member Stats, AICHR, NHRIs, CSOs). The informal network could organize these following activities: designing plan of action on prevention of torture in the ASEAN with its timeline, organizing a regular meeting on sharing best practices and lesson learned, exploring thematic issues as well as identifying the needs of capacity building in ASEAN member states. This informal network could be discussed in a follow-up meeting next year which will be supported by International Commission of Jurist, Indonesian Representative to AICHR and other Representatives of AICHR who want to involve, with the participation of victims organization, parliamentarian, etc. As part of the establishment programs, the AICHR also needs to approach the High level ASEAN officials to build commitment on the prevention of torture.
18. ASEAN Human Rights Mechanisms (AICHR, ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers or ACMW, ACWC), NHRIs, CSOs could maximize the use of loose instruments, such as joint press release and thematic studies, to prevent torture in the ASEAN region. To ensure the effectiveness of such mechanism, relationship between ASEAN Human Rights Mechanisms, NHRIs, and CSOs. For AICHR as ASEAN human rights body, it needs to work and finalize the guideline of engagement with other ASEAN Sectoral Bodies, NHRIs, and CSOs.
19. To establish cooperation between National Prevention Mechanisms (NPMs) or other institutions dealt with the issue, in the ASEAN region. To promote best practices in the ASEAN regions on prevention of torture, joint activities, workshops, and particularly establishment of contact person of NPMs are important. Furthermore, such cooperation could also promote the ratification of CAT and OPCAT to all ASEAN Member States.
20. To promote the establishment of MOU between NHRIs or NGOs and government institutions such as Police Department, Department of Justice, Attorney General Office, and other relevant institutions. The MOU will serve as basic instrument of cooperation in part to educate and improve the skill of the government officials in preventing torture on their field of works. Such cooperation could also aim to widen the operation and mandates of NHRIs, such as onsite visit of police detention center and assisting improvement of detention center.
21. Maximizing the visit of Subcommittee on Prevention of Torture to Cambodia in December 2013 and the visit of Special Rapporteur on Torture, Juan Mendez, to Thailand in August 2014 through arrangement of informal meeting with ASEAN Human Right Mechanisms and key stakeholders in ASEAN.
22. Request AICHR to take a thematic study on prevention of torture. Furthermore, in connection to the Mandate 4.5 of the AICHR, to encourage ASEAN Member States to ratify CAT and OPCAT. As part of collaboration process to prevent torture, encourage AICHR to develop intra regional cooperation with ACMC and ACMW; develop inter-regional cooperation with American, African, and European System; and cooperation with international human rights mechanisms on torture namely United Nations Convention against Torture (UNCAT), SPT, and UN Special Rapporteur on Torture (UNSRT).
23. Realizing the cultural diversity of ASEAN Member States, develop multi-disciplinary studies as an effort to prevent torture, involving religious leaders, academics, medical professionals, etc. To develop a reliable and comprehensive regional database that will include research findings and prevalence data on cases of torture.
24. Sharing various existing publication on awareness raising and capacity building in prevention of torture such as various publication, guideline, methodology from the Association for the Prevention of Torture (APT). To do this, translating the document into different language in ASEAN is necessary. Right to rehabilitation as a theme for further study where as safeguards are also part of the study. Encourage member states to put prevention of torture as part of recruitment and career development of their law enforcement officer and staff of any form of detentions including welfare centers and drug rehabilitation center.
25. Reemphasize the obligation of states to respect the rights to non-refoulement of asylum seekers and refugees to another state where he/she would be in danger of being subjected to torture. Encourage the states to find alternatives to detention for asylum seekers, refuges, stateless persons, and migrants.
26. Encourage initiatives that create space for victims of torture and their relatives to participate in discussion related to the prevention of torture.
27. The Indonesian Representative to AICHR expressed his appreciation to the Indonesian Ministry of Foreign Affairs, the German Embassy in Jakarta, the Swiss Embassy in Jakarta, the UN High Commissioner Office Regional Office in Bangkok, and Association on the Prevention of Torture (APT) for supporting this dialogue. He also express his gratitude to the members of the organizing committee the Human Rights Working Group (HRWG) and CSIS for their hard work.