Friends, FELLOW ADVOCATES, ladies and gentlemen:
Before anything else, I would like to thank the
organizers of this Forum for inviting me to this very important
initiative. To be here with you is a great honor and privilege. Without a
shadow of doubt, this undertaking is truly historic and significant; for
this is the first time in recent memory, that activists and advocates from
Europe and Asia have gathered together to act, discuss and analyze the
global scourge that we call impunity.
Indeed, this dialogue-of-sorts between the people of
two different continents prove that despite our divergent cultural
heritage and historical development, we all still share the same respect
and concern for personal dignity and human rights. To my mind, a gathering
such as this is the best possible way to cap the very first
year of the new millennium. For not only would this give us ample time to
reflect upon our past accomplishments and shortcomings, but would also
provide us with an opportunity to forge a common response against impunity
and injustice.
Enforced Disappearances
As a man-made ill, impunity is always preceded by a
criminal offense, which escapes the bar of justice. In Asia, one of the
starkest manifestations of this problem is the issue of involuntary
disappearance. Patterned after the pogroms used against the Jews in Nazi
Germany at the height of the Second World War, this practice was first
used by military regimes in Latin America to crush internal dissent and
silence the opposition. Since then, it has been utilized by repressive
governments throughout the world to emasculate their opponents and further
perpetuate themselves in power.
Described by the United Nations as a crime against
humanity, enforced or involuntary disappearances involves the abduction of
a person by agents of the state, wherein the victim disappears and with
the authorities denying custody over the disappeared. Since their names do
not appear in either government or military records, desaparecidos
are deprived of the legal rights and guarantees that prisoners in normal
circumstances usually enjoy.
Because such practice are commonly carried out in
behalf or with the active sponsorship of the estate, desaparecidos
ironically become the victims of the very institution tasked to protect
them. Reduced to a minimum, disappearances are but the worst form of state
action - a tacit declaration of war by a government, not on another nation
but against its own people.
In sum, state responsibility can take the following
forms:
1.by using disappearance as a specific state-policy;
2. by enacting "internal security laws" that blur human rights protection
and guarantees, or by lifting legal obstacles to ensure the same;
3. by appointing persons who are willing to carry out such tasks to
positions of authority (especially in the police and military hierarchy);
4. by encouraging security personnel to engage in such actions by
promising immunity and other forms of rewards;
5. by removing institutional checks and balances;
6. by creating a climate of fear through the manipulation of the mass
media and other forms of intimidation; and
7. by enacting laws granting immunity to perpetrators and other human
rights violators.
Since involuntary disappearances are committed by
people within the state structure itself, exacting justice fro such
criminal acts often times met with severe constraints and difficulties. In
most instances, an elaborate system of legal impediments is created in
order to ensure that the perpetrators escape justice and thereby gain
impunity. Such a method carried out either by passing laws that grant
suspected offenders immunity from persecution or by refusing to
investigate past violators after a more democratic regime has been
established.
In India for example, special laws have been enacted by
the government in areas with strong insurgency movement. These laws permit
security forces to shoot any individual without any far legal retaliation
from the victim or from his families and friends. In other countries that
have undergone transitions dictatorships to democracies, members of the
security apparatus were often given amnesty to protect them from possible
legal reprisal and to free them from criminal liabilities. In effect,
these governments have legitimized an illegal and immoral act and have
become the primary coddlers of criminals and human rights offenders.
Deconstructing the Misconceptions
Unfortunately. the problem of enforced disappearance is
often obscured by prevailing myths and misconceptions that, through years
of practice, have become the dominant mode of thinking. There are still a
large number of people for instance who still cling to the belief that
this is a purely Latin American problem, without recognizing the
international character of this phenomenon nor comprehending the sheer
extent of this human rights abuse.
According to the United Nations Working Group on
Enforced or Involuntary Disappearances (UNWGEID), there are at least 69
countries which have either practiced involuntary Disappearance in the
past or are still using it as a specific political tactic. Just last year,
the Working Group reported 300 new cases of involuntary disappearances
that occurred in 23 countries - another addition to the 46,054 cases that
are still in its active file.
Disappearances in Asia
In the Asian region, the problem is almost at par if
not even worse than Latin America. Sri Lanka alone has already reported
the highest number of disappearances ever recorded with 60,000 documented
cases. Of the said number, only 16,742 have so far been established and
verified by the UNWGEID and only 3,500 to 5,000 families have received
minimal compensation.
In Kashmir, a region hotly contested by both India and
Pakistan, there have been 2,000 reported cases of disappearances for the
period 1991 to 1993. Additional information, however, has proven to be
difficult to gather due to intense government repression and the ingrained
practice of most security personnel to cremate the bodies of their
victims.
In the Philippines, there are about 1,672 cases of
involuntary disappearance. 759 of which were recorded during the Marcos
regime, 830 during the incumbency of Mrs. Aquino, 66 cases during Ramos
administration and 17 under the president Estrada government.
In Thailand, the episode that first triggered a
national inquiry into the phenomenon of involuntary disappearances was the
brutal crackdown on the pro-democracy demonstration in May 1992. Aimed
against Prime Minister Suchinda Kraprayoon, the violence broke out in the
vicinity of the Royal Plaza Hotel and the Ratchadamneon Avenue. According
to government data, 175 persons have mysteriously disappeared in the
aftermath of the event. Unofficial source however place the number of
those missing as considerably higher at 293.
In Indonesia, the phenomenon of involuntary
disappearance occurred within the context of the government's
anti-insurgency campaign . The province of Aceh, for example, was placed
under the Military Operational Zone (DOM) from 1989 to 1998. As a result,
about 5,000 to 39,000 people disappeared under very dubious
circumstances. According to testimonies, these atrocities were perpetrated
by Kopassus, the army special forces headed by Suharto's son-in-law Gen.
Probowo Subianto. Though these were done to neutralize the separatist
Gereka Aceh Merdeka (GAM / Free Aceh Movement), most victims as it
turned out were neither members nor sympathizers of the said rebel group.
Over the past ten years, 15,000 people have disappeared, most of them
coming not only from Aceh but also from other Indonesian hotspots such as
Irian Jaya and the former province of East Timor. Shortly before Suharto's
fall from power, the military began targeting student activists, the most
controversial of which was the army's assault upon Trisakti University in
May 1998. In the said event, 4 students were killed and 14 others were
reported missing. This partly comprise the 23 total cases of student
disappearances 1996 to 1998 - a number which continues to grow with each
passing day.
Impunity and the Search for Justice
Due partly to the coverage that they have enjoyed in
the international media, the extent of their support from other kindred
groups in the human rights community and their superb organizing and lobby
work, our sisters and brothers and counterparts in Latin America have
already made significant inroads in the struggle for justice. The recent
decisions by the Chilean Supreme Court to strip former strongman Augusto
Pinochet of his senatorial immunity manifest the hold of civil
society groups upon public opinion and also their strength in pursuing
governments and decision-makers.
But here in Asia, the situation is far different. Even
as I speak, no big fish has ever put into prison and most military
officers, if ever they get caught, never suffer harsh penalties but only
receive mild slaps in the wrist. the various government agencies task to
investigate cases have proven to be either ineffective or totally
spineless.
In Sri Lanka for example, the Presidential Commission
of Inquiry on Disappearances (PCID) was formed on December 27, 1994 to
inquire into alleged cases of disappearance and recommend legal actions.
Yet, hardly has the ink upon its constituting papers dried up when it
became a subject of controversy. According to the Commission, only cases
that occurred after January 1, 1998 could be scrutinized; despite the fact
that most disappearances happened between 1979 and 1988. Moreover, there
were complaints that the PCID was powerless in giving ample protection to
families and witnesses who were often who were often times harassed by the
security forces and given death threats. It was even criticized for its
cumbersome procedures that were occasionally made worse by red tape and
bureaucratic delays.
In Indonesia, the military personnel are practically
immune from prosecution. Oppositionists, on the other hand, are usually
given harsh penalties for even the slightest offenses. In July 1998
for instance, two months after the raid on Trisakti University, the
military admitted the involvement of its men in the shooting of unarmed,
protesting students. This, after the police arrested seven Kopassus
soldiers for alleged kidnapping and torture of dissidents. This led to
Probowo's replacement by Gen. Muchdi Purwopranyoto as Kopassus head. its
chief intelligence officer, Col. Chairawan, was also removed from active
service. Yet army spokesperson Major-Gen. Syasmul Ma'arif tried to
downplay the entire affair by claiming that his fellow officers have not
perpetrated any culpable violation of the law, but have merely committed
"procedural errors" in the accomplishment of their duties. As for Suharto,
the prospect of his possible imprisonment seems vague, with a panel of
medical experts concluding that the former strongman is unable to stand
trial and could well suffer from another stroke if he is made to attend
the hearings.
In Thailand, relatives of the May 1992 massacre filed a
law suit against five members of National Peace Keeping Council (NPKC),
the ruling military junta at the time of the bloodshed. On April 5, 1995,
the five defendants pleaded their innocence of the charge, arguing that
what they did was in accordance with the law and with the prevailing
situation. The Thai Supreme Court ruled in their favor exempting them from
any penalties whatsoever.
A further blow was again experienced when the Thai
Defense Council passed a resolution on June 28, 1999 stating that it would
only just disclose eight pages of the 600-page government investigation
into the massacre. The Council defended their decision by invoking a
clause in the Act of Official Information, which allows the authorities to
conceal certain information for security reasons. Human rights activists
have appealed against the resolution but to no avail. Until today, the
Thai government has remained adamant on its position.
The Philippine case is also bleak, despite its
supposedly wide democratic space and respect for civil liberties. Fourteen
years after the fall of the dictatorship, the masterminds remain at large
and even the Marcoses who were primarily responsible for various human
rights violations have made a political comeback. Though a Commission on
Human Rights (CHR) was set-up in 1987 to look into reported cases of
possible human rights violations, the CHR has proven to be very
weak. For one, the Commission is a simple investigating body with no
prosecutory power. While it may have the mandate to examine incidents
involving human rights, it would still have to refer the said cases to the
appropriate courts. Because of this, most witnesses are wary of
identifying themselves, since they are not given the proper protection
that can only be accorded by a court-of-law.
Even the "Task Force on Disappearances" created by
then-President Ramos produces nothing. Though it was spearheaded by the
CHR and had the support of the Department of Justice (DOJ) and other human
rights NGOs, the body also included the Armed Forces of the Philippines (AFP),
the Philippine National Police and the Department of the National Defense
- the most notorious institutions with regard to human rights violations.
Moreover, so far, only a small number of families have
benefited from compensation program of government. in 1993, Congress
allocated PHP 4 Million ($153,000) for the welfare and rehabilitation of
the families of the desaparecidos, as well as the surviving victims. this
amount was subsequently increased to PHP 5 Million ($193,000). It is
estimated that each family may receive the amount of PHP 10,000 or $ 210.
Unfortunately only more than 200 families have received this amount
because of the difficulty to officially prove the disappearance and the
families' relationship to the victims.
Though civil society groups have been very active in
the campaign for justice, their work has also been hampered by several
difficulties. FIND (Families of Victims of Involuntary Disappearances) for
example, has been conducting forensic search-missions to locate and
identify the remains of dead desaparecidos. Yet, there are cases
when the witnesses refuse to cooperate, fearful of possible reprisal from
the perpetrators. there were also instances when the bodies were removed
from the burial site shortly before the arrival of an exhumation team.
The extent of impunity in the Philippines has been so
great that it has caught the attention of the UNWGEID. The Commission on
Human Rights has also admitted that from 1987 to 1990 alone, it has
already received 7,944 reports of human rights violations. Of this number,
only 1,509 reached the court and only 11 cases succeeded in having the
offenders punished.
The Roots of Impunity in Asia
According to Atty. Maria I. Diokno of the Free Legal
Assistance Group in the Philippines, in her article, Impunity in Asia,
human rights violations in Asia can be traced to certain relatively
permanent structures of society that allow both oppression and impunity to
be institutionalized. These include the adoption and implementation of the
doctrine of "national security", the use of law as an instrument of
repression, the deliberate disregard for the rule of law and the privilege
status of the military and police.
1. Use of the Doctrine of National Security - There are
governments in Asia, which wholeheartedly embrace and strictly enforce the
doctrine of national security, that seeks the preventive control of people
and of ideas in order to ensure the internal economic status quo, which
benefits those in power. In this situation, human persons are not
important, their needs are subservient to national security imperatives.
Human development is subverted by the dominance of security priorities
such as military force, economic power and control of the population.
2. Law as a tool of repression - This leads to the the
enactment of certain laws which spawn repression and impunity. The roles
of law, e.g. peacekeeping, social harmonizing, conflict resolution and
resource allocation have assumed new dimensions. Laws could be utilized as
effective and powerful instrument to promote abuse and impunity in three
levels: to legalize otherwise illegal acts, thus empowering policemen and
soldiers to act oppressively because their acts fall within the ambit of
the law; to grant policemen and soldiers immunity from prosecution, thus
exempting them from punishment and to bestow amnesty upon security
officers, thus extinguishing their liability for their acts of abuse.
3. The Deliberate Disregard for the Rule of Law -
Impunity can be sanctioned through the deliberate disregard of the rule of
law, through failure to investigate abuses, through the practice of
disproportionate criminal sentencing for human rights violators and
through the lack of independence of the judiciary. Governments' failure to
investigate human rights violations is not only a tacit endorsement
of such violations, but also a grant of protection to human rights
violators.
4. The Privileged Role of the Military and Police - The
privilege of the military is clearly reflected by the priorities
governments give to military expenditures. Governments spend at least
fifty times more for their military than they do for health and education
combined. Military expenditures receive a lion's share of each country's
Gross National Product. This skewed priority, coupled with laws freeing
the military from prosecution heighten the power and privilege enjoyed by
the military. This power is most felt on the rare occasions why they are
brought to trial since their power grants them the opportunity to
intimidate witnesses and victims and/or deliberately obstruct proceedings
against them.
Memory and the Struggle Against Impunity
But given the enormity of the problem, one is led
to ask: What do we do? In this regard, the United Nations has identified
three principles or standards by which to fight involuntary disappearance.
These involve TRUTH, INJUSTICE and REDRESS. The first refers to the
establishment of facts regarding past violations. This involves the
investigation, location and accounting of all victims of involuntary
disappearances.
Justice, on the other hand, is the responsibility of
government to bring suspected perpetrators to court. While redress is
defined as the measures taken to address a situation wherein a person (or
more) has been harmed and damages have been incurred. Redress has three
elements, namely: (1) compensation; (2) rehabilitation; and (3)
restitution.
In more concrete terms, these standards can be
manifested by:
1. publicly condemning very incident of involuntary
disappearance perpetrated by state agents;
2. emphasizing that security personnel can only resort
to force when strictly required and with only the minimum extent
necessary;
3. extending protection to possible victims such as
dissidents and human rights activists;
4. establishing mechanisms intended to locate and
identify victims of enforced disappearances;
5. criminalizing involuntary disappearance;
6. offering human rights courses as part and parcel of
police and military training;
7. undertaking sweeping judicial and other government
reforms to ensure that future litigation would yield positive results;
8. ratifying and implementing international treaties
and covenants containing safeguards and remedies against enforced
disappearances.
According to Atty. MA. Socorro Diokno in her article,
Impunity in Asia, the abolition of impunity means more than just
punishing the offender, more than his or her imprisonment, more than
requiring him to pay a fine to the State or to provide reparations to the
victims. Impunity, she said, has practically been institutionalized. Thus,
to obliterate it, government institutions must be restructured, societal
attitudes towards human rights and human rights offenders must be changed
and most of all, social and power relations within society must be
transformed.
But on a more personal note, I believe that the
greatest bulwark against impunity is memory - the constant remembrance of
past offenses and the continuing effort to right those misdeeds. If we
forget the past, then we legitimize an act that is intrinsically evil.
It must be noted that in this world, lies and liars can
only rule if we let them. But as long as we hold fast to the memory of the
fallen, the victimized and the abused, dictators and perpetrators will be
made aware that there will always be a few good men and women who would
hound, even up to the farthest reaches of the earth. By remembering the
past, by rekindling that activist spirit, or in more humble terms, by
telling what we know, men of dubious stuff can never prevail. Even a
future Pinochet or a would-be Marcos would have to pause if they see that
all their subsequent actions will not be confined to the wind but will be
written in stone. Indeed, as the Czech novelist Milan Kundera once wrote:
'The struggle of humanity against power is the struggle of memory against
forgetting."
I couldn't agree more.
