His Excellency Dr. Tony Tan Keng Yam, Singapore

Dear President Tan Keng Yam,

I am William Nicholas Gomes, Human Rights Ambassador for Salem News.com. I write to urge you to use your powers as president to commute Yong Vui Kong’s death sentence. Yong, a Malaysian national, was convicted on November 14, 2008, for drug trafficking. I am concerned that if Yong’s request to you for clemency is denied, he may be executed in the near future.

While I opposes the death penalty in all circumstances, Yong’s case raises additional human rights, humanitarian, and due process concerns. While not a party to the International Covenant on Civil and Political Rights (ICCPR), Singapore should at the very least meet the requirements for the imposition of the death penalty set out in the ICCPR as interpreted by the United Nations Human Rights Committee, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, and other UN institutions.

ICCPR article 6 sets out every human being’s “inherent right to life” and limits the death penalty to “the most serious crimes.” The Human Rights Committee noted in its General Comment 6 that the term “most serious crimes” means that “the death penalty should be a quite exceptional measure” and that among other procedural guarantees the presumption of innocence must be observed.

The Human Rights Committee criticized the use of the death penalty for “crimes not resulting in death, notably political crimes, crimes against property and some drug offences,” and noted that the special rapporteur “has considered that the death penalty should be ‘eliminated for crimes such as economic crimes and drug-related offences.’”

In his January 2007 report, Philip Alston, then special rapporteur on extrajudicial, summary or arbitrary executions, said “if it is to comply with the most serious crimes restriction, the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life.” Accordingly, drug trafficking would not qualify as a “most serious” crime under this standard.

In Singapore, there is no presumption of innocence for certain classes of drug offenses. According to a January 2004 Ministry of Home Affairs reply to Amnesty International, “The presumption clause in the Misuse of Drugs Act (MDA) merely presumes that the person had the drug for the purpose of trafficking. The amount prescribed in the presumption clause for trafficking is set at a reasonably high level. If the drug possessed exceeds said amount, then he is presumed to have it for the purpose of trafficking rather than for personal consumption.” During the trial, the accused can challenge the assumption that the drugs in his possession were to be trafficked.

The mandatory nature of Singapore’s drug penalty received critical comment from special rapporteur Alston. In relation to a 2005 case related to Singapore, Alston noted that such a penalty violates international legal standards because “making such a penalty mandatory—thereby eliminating the discretion of the court—makes it impossible to take into account mitigating or extenuating circumstances and eliminates any individual determination of an appropriate sentence in a particular case.” He continued, “The adoption of such a black and white approach is entirely inappropriate where the life of the accused is at stake. Once the sentence has been carried out it is irreversible.” In response to Singapore’s earlier statement that “the death penalty is primarily a question for the sovereign jurisdiction of each country,” Alston noted the commitment of Singaporean courts to the rule of law but added that “international concern is not misplaced when it comes to non-compliance with international standards related to the functioning of a criminal justice system.”

On May 10, 2010, just four days before the Court of Appeal dismissed Yong’s appeal against his sentence on constitutional grounds, the Today newspaper reported the reply of the minister of law, K. Shanmugam, to a question posed at a community event. In his answer, the minister, who is now also Singapore’s minister for foreign affairs, made the argument that if exceptions to the use of the death penalty were based on personal circumstances it would encourage more people to take up the drug trade, thus undermining Singapore’s anti-drug efforts. Even if these assertions were true—and Singapore declines to routinely make public drug-related statistics— it would not justify imposition of a penalty that so flagrantly violates fundamental rights over less severe penalties that would still act as a deterrent. To date, there has been little national or international evidence to support the Singapore government’s assertion, and studies of the deterrence effect of the death penalty on drug crimes in other countries is equivocal at best.

The court, while noting that it had taken into consideration Yong’s personal circumstances, i.e. growing up in poverty in a broken home, lack of previous convictions, and the demonstrated possibility of rehabilitation, found that Yong had no case, merely “bare assertions” with “no factual basis.” The court further noted that “no fresh evidence had been adduced to show that the conviction was a miscarriage of justice” and dismissed the motion “as it has absolutely no merit both on the law and on the facts.”

A growing number of states support the UN General Assembly’s resolution adopted on December 18, 2007, calling for a moratorium on executions and encouraging member states towards abolition of the death penalty. The Human Rights Committee in its general comment discusses “the desirability of the abolition of the death penalty” and “repeatedly expresses its conviction that abolition contributes to the enhancement of human dignity and to the progressive development of human rights.” The UN Commission on Human Rights (now the Human Rights Council) called upon death penalty states to “restrict the number of offenses for which capital punishment may be imposed,” in a resolution adopted on April 20, 2005. In a report in March 2010 the UN Office on Drugs and Crimes called for an end to the death penalty and specifically urged member states to prohibit use of the death penalty for drug-related offenses while arguing for an overall “human rights-based approach to drug and crime control.”

In addition to commuting Yong’s sentence, Human Rights Watch urges that Singapore immediately forego mandatory death penalties and join the increasing number of governments expressing opposition to all capital punishment by declaring a moratorium on executions with a view to complete abolition.

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

I understand the Commission on Health and Population and the Commission on Social Inclusion and Persons with Disabilities have opposing positions regarding Law Project 418/2011, which proposes to derogate Law No. 29737.  I write to express our concern about Law No. 29737 and related provisions in Peruvian law that permit involuntary detention for treatment of people with psychosocial or mental disabilities and those who suffer from addiction, in circumstances that do not comply with international human rights law. I believe that such laws threaten fundamental human rights protections against arbitrary detention and ill-treatment and for the right to health and are contrary to sound public health policy. I encourage you to support law reform efforts to promote access to addiction and mental health treatment that conforms to international standards, including expansion of voluntary, evidence-based treatment instead of involuntary treatment.

Law No. 29737 amended article 11 of the General Health Law, Law No. 26842 to permit involuntary detention for people with “mental health problems,” defined to include people with psychosocial disabilities and those with drug or alcohol dependence. It also permits family members to authorize detention for those “who suffer some level of addiction and due to lack of consciousness of their illness, refuse to give informed consent.” In such cases, involuntary detention is subject to periodic review by health professionals and by a judge.

Law No. 29737 adds to existing law permitting involuntary detention for treatment of psychosocial disabilities and for drug or alcohol dependence. Peru’s Civil Code permits family members of people “deprived of discernment” (se encuentren privados de discernamiento) or who are dependent on drugs or alcohol — and in some cases the government — to seek their judicial interdiction. Legal guardians of those interdicted can “volunteer” their admission for psychiatric, drug or alcohol treatment and rehabilitation without their consultation or consent.

I believe that forcible detention may constitute arbitrary detention, in violation of international human rights standards, even if it has a lawful basis provided by Peruvian law. Art. 9(1) of the International Covenant on Civil and Political Rights (ICCPR) states that “No one shall be subjected to arbitrary arrest or detention [or] deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”[1]Under the ICCPR, detention may be “arbitrary” even if it is in accordance with the law, but is random, capricious or disproportionate, that is, not reasonable or necessary given the circumstances of the case.[2]  The State party concerned has the burden to show that such factors exist in a particular case.[3]

I am concerned that Law No. 29737 and its regulation, and related legal provisions described above, would permit involuntary detention of people with psychosocial disabilities or people who use drugs or alcohol for treatment in an overly broad set of circumstances that threatens rights to liberty and security.

Compulsory treatment for people who use drugs, that is treatment imposed on an individual without their informed consent, in order to comply with international human rights law, should only be considered in exceptional situations of medical necessity where a person is unable to give informed consent, as we further outline below.

The use of “lack of consciousness of one’s illness” in Law No. 29737 as a basis to justify detention without consent for addiction treatment is imprecise and susceptible to abuse. It also contributes to the perception that people who use drugs generally lack capacity to consent to treatment and undermines relevant legal safeguards regarding competence to make treatment decisions, and widens the scope of potential abuse.

In the case of people who use drugs, drug dependence treatment is a form of medical care, and therefore should comply with the same standards as other forms of health care. Under international law, people dependent on drugs have the right to access medically appropriate, effective drug dependence treatment, tailored to their individual needs and the nature of their dependence. International human rights standards further require that drug dependence treatment be based on free and informed consent (which includes the right to refuse or withdraw from treatment), be scientifically and medically appropriate and of good quality, culturally and ethically acceptable, and respect fundamental rights to health, privacy and bodily integrity, liberty, and due process.

The UNODC and WHO in their guidelines to states, “Principles of Drug Dependence Treatment”, state that “only in exceptional crisis situations of high risk to self or others, compulsory treatment should be mandated for specific conditions and periods of time as specified by the law.”[4]  Compulsory treatment should also comply with the requirements that it be scientifically and medically appropriate, and with independent oversight.

According to the UN Special Rapporteur on Torture, compulsory treatment of an intrusive and irreversible nature, such as neuroleptic drugs and other mind-altering drugs, without the informed consent of the individual may constitute torture or ill-treatment if it lacks a therapeutic purpose, or is aimed at correcting or alleviating a disability.[5] Article 12 of the CRPD  requires governments to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life,” including the right to decide whether to accept medical treatment.  The CRPD inscribes the presumption that persons with disabilities can act in their own best interests and that, when needed, they should be given support to do so.  It also makes clear that persons with disabilities – including intellectual and psychosocial disabilities[6]– enjoy an equal right to health care as others, explicitly recognizing that medical care must be provided on the basis of free and informed consent, and without discrimination based on disability (Art. 25). Mental disabilities do not justify the presumption that a person lacks the capacity to provide informed consent. Forced medical treatment can only be considered in exceptional cases when informed consent is not possible, and it is for the shortest possible time strictly for therapeutic purposes.

The process of judicial interdiction provided for in the Civil Code is also incompatible with the government’s obligations under the CRPD to recognize legal capacity of persons with disabilities. The Organization of American States’ Committee for the Elimination of all Forms of Discrimination against Persons with Disabilities has called on states parties to take urgent action to ensure the recognition of legal capacity of all persons, including all persons with disabilities, by taking immediate measures to replace interdiction and related practices with supported decision-making and to ensure that no new cases of interdiction are approved.[7]

The CRPD also provides further protection concerning deprivations of liberty to persons with disabilities.[8]   It not only forbids arbitrary detention but also states “that the existence of a disability shall in no case justify a deprivation of liberty.” [9]Thereshould therefore be some basis, one that does not discriminate based on disability, underlying the deprivation of liberty. For states that, like Peru, have ratified both the CRPD and ICCPR, Article 14 should be applied together with the safeguards against detention in the ICCPR, under the doctrine that the combined effect of any treaties or domestic norms should be interpreted so as to offer the greatest protection to the individual.[10]  Additionally, Article 14, particularly when read in combination with Article 19 of the CRPD (the right to live in the community), provides a strong basis for the end of forced institutionalization on the grounds of disability.[11]

As noted above, there are exceptional circumstances when a person’s drug dependency may create a crisis situation in which medical treatment is appropriate and that person’s capacity to consent to such treatment has been temporarily compromised. In such, exceptional circumstances, where qualified healthcare professionals, subject to review by an independent authority, have determined that a person poses a serious and imminent risk to him or herself or to a third party, but lacks capacity to give informed consent to treatment, a temporary period of mandatory treatment without consent may be justified.

In such cases, treatment should not be imposed unless it is a medically appropriate, individually prescribed plan, subject to regular review, that comports with international standards. Treatment should not be longer than is strictly clinically necessary to return the person to a state of autonomy in which he or she can take decisions regarding his or her own welfare. The treatment should be subject to a statutorily defined time limit, which should be as short as possible, subject to review by an independent authority for its continued necessity. When the compulsory treatment is up for review, continued treatment without consent should not be permitted unless the authority seeking to administer the treatment establishes that the exceptional circumstances for continued treatment persist. The person subject to compulsory treatment (or his or her legal representative) should have the right to challenge the necessity of treatment before a court or the independent authority.

The tragedy at “Christ is Love” drug treatment center in January, in which residents trapped behind locked doors and barred windows were killed or critically injured when a fire swept through the facility, has drawn attention to the dearth of qualified drug treatment facilities in Peru. The Attorney General is investigating conditions at Christ is Love, and local governments, together with the attorney general and the Ministry of Health, are inspecting local facilities and have already ordered their closure in some cases.

These are important efforts. But Peru has legal obligations to ensure that an individual can only be subject to detention for forced treatment in the name of addiction or “mental health” treatment in circumstances that comply with international standards. Congress should either nullify Law. No. 29737 or modify it to fully comply with the CRPD.  It should also reform the Civil Code and the General Law on Disability to fully comply with the CRPD. The government should also take immediate action to amend the Civil Code to reflect the international legal standard that all people with disabilities should have equal legal capacity as other citizens and replace judicial interdiction of people with disabilities and drug users with a system of supported decision-making so that they can make their own decisions about treatment.

I urge you to take prompt action to close forced drug rehabilitation facilities and establish voluntary, effective drug and mental health treatment options in their place. I recommend that you consult with mental health and other experts, as well as people with psychosocial disabilities themselves, on alternative forms of support and care for people with psychosocial disabilities.  I also urge you to speak publicly and strongly in support of the right to voluntary, effective treatment for all those who need it.

[1] These protections apply not only to those accused of crimes, but also “to all persons deprived of their liberty by arrest or detention” including those detained because of, “for example, mental health difficulties, vagrancy, drug addiction, immigration control, etc.” UN Human Rights Committee, General Comment 8, Article 9, U.N. Doc HRI/GEN/1/Rev.1 at 8 (1994), para. 1.

[2] Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, para. 9.8.

[3] Communication No. 305/1988, H. van Alphen v. the Netherlands (Views adopted on 23 July 1990), in UN doc. GAOR, A/45/40 (vol. II), p. 115, para. 5.8.

[4] UNODC/WHO, “Principles of Drug Dependency Treatment,” March 2008, p.9.

[5] UN Human Rights Council, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development : report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, July 28 2008, A/63/175, see  paras. 47 and 63:“The Special Rapporteur notes that forced and non-consensual administration of psychiatric drugs, and in particular of neuroleptics, for the treatment of a mental condition needs to be closely scrutinized. Depending on the circumstances of the case, the suffering inflicted and the effects upon the individual’s health may constitute a form of torture or ill-treatment.”

[6] Intellectual disability: An “intellectual disability” (such as Down Syndrome) is a disability which is characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. American Association on Intellectual and Developmental Disabilities, “FAQ on Intellectual Disability,” 2011, http://www.aamr.org/content_104.cfm (accessed February 23, 2012).

Psychosocial disability: The term “psychosocial disability” is the preferred term to describe persons with mental health problems such as depression, bipolar disorder and schizophrenia. “Psychosocial disability” relates to the interaction between psychological differences and social/cultural limits for behavior as well as the stigma that society attaches to persons with mental impairments. World Network of Users and Survivors of Psychiatry, “Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities,” http://www.chrusp.org/home/resources(accessed February 23, 2012), p. 9.

[7] OAS, General Observation of the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities on the need to interpret Article I.2(b) in fine of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities in the context of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities.  OEA/ Ser.L/XXIV.3.1, CEDDIS/doc.12 (I-E/11) Rev.1, April 28, 2011; OEA/Ser.L/ XXIV.3.1, CEDDIS/RES.1 (I-E/11) ( Adopted at the fourth plenary session, held on May 4, 2011); The OAs General Assembly, in turn, has requested the Secretary General to disseminate the Committee’s observations regarding Article 1.2(b) as widely as possible. AG/RES. 2663 (XLI-O/11),Support for the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities and its Technical Secretariat, (Adopted at the fourth plenary session, held on June 7, 2011).

[8] CRPD, art. 14.

[9] Ibid.

[10] See Article 5(2) of the ICCPR. The so-called “savings clause” of the ICCPR sets out that the standards in the treaty cannot be used to undermine a higher standard or protection provided elsewhere in law (either international or domestic), and therefore represent only the minimum standard and may be improved.

[11] CRPD, art. 14, 19.

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

H.E. Ang Vong Vathna, Minister of Justice
H.E. Sar Kheng, Minister of Interior
Phnom Penh, Kingdom of Cambodia

Re: Cambodia: Right to freedom of assembly has been severely violated

Your Excellencies,

I write to you to express our grave concerns regarding the shooting of three female garment workers in the Bavet town of Svay Rieng province on 20 February 2012.

I have received information that around 6,000 workers gathered in front of the Kaoway Sports Ltd factory in a peaceful demonstration to demand for better working conditions, including a minimum living wage of US$61/month and lunch allowance. While the demonstration was taking place, three unarmed women were shot; two suffered wounds to their arms or legs, one was seriously injured as the bullet ripped through her thoracic cage.

The perpetrator was later identified as being Bavet town’s own governor, Mr. Chhouk Bandit. Although the Minister of Interior, Mr. Sar Kheng, said publicly that Mr. Bandit was the sole suspect, the Court – under the direction of provincial chief prosecutor Hing Bun Chea – declined to issue an arrest warrant and instead settled with a summons on allegations that the report the police submitted was incomplete. He was briefly questioned by the police last week and later released. Mr. Bandit is expected to appear in court on 16 March 2012.

I deeply regret that the exercise of the fundamental right to freedom of assembly has been severely violated by the use of excessive force, which resulted in the serious injuries of three of the demonstration’s participants.

I note that there is much fear concerning the safety and security of the three victims and their families. These concerns are well grounded since the victims were approached on numerous occasions by officials from Bavet, including the police chief and commune chiefs, attempting to silence them through bribes since the shooting incident. [1] The most severely injured victim, Ms. Buot Chinda, was allegedly approached by the town governor himself. [2] I believe that the government of Cambodia must protect these young women and their families. They should be immediately placed under witness protection. Individuals who came forward in helping identify the perpetrator should also be placed under protection. I also stress that these attempts to influence witnesses in the ongoing investigation could constitute an obstruction of justice and are criminal offences punishable under Cambodia’s Criminal Code. [3] Those attempting to influence the witnesses must be held accountable under the existing laws.

Although Mr. Bandit was dismissed from his position as a Bavet town governor on 8 March 2012, there remain concerns that he will enjoy impunity as he is a member of the ruling Cambodian People’s Party (CPP). The successive chain of events fails to reflect the gravity of the crimes: there was a notable delay in the police investigation as well in making the information about his involvement public. The recent refusal to issue him with an arrest warrant despite the culpatory evidence highlights the flaws present in the Cambodian legal and judicial systems. I strongly believe that the state is obligated to combat impunity for attacks and violations against its own people, by ensuring prompt and impartial investigations into allegations and appropriate redress and reparation to victims. In this regard, an arrest warrant on the alleged perpetrator should be issued without delay to ensure the safety of the victims, and to prevent him from influencing the investigation and legal proceedings of this case.

I would like to draw your attention to the recent report of the UN Special Rapporteur on the situation of human rights in Cambodia, Mr. Surya Subedi, which highlighted concerns over the politicization of the judiciary and called for a separate entity to be solely in charge of the prosecutors – as opposed to being attached to the courts. [4] The unfolding of unfortunate events in the town of Bavet and the subsequent flawed investigation processes, have highlighted the cause for continued concerns in this regard.

As a state party to the International Covenant on Civil and Political Rights (ICCPR) , the Government of Cambodia must ensure that the three victims are provided with an “effective remedy notwithstanding that the violation has been committed by persons in an official capacity” [5] and that it be determined by a competent judicial authority. We therefore strongly urge that the Government will ensure his appearance in court, protect all witnesses from intimidation, and guarantee that the upcoming legal process be carried out in a free, fair and impartial manner that meets international standards.

I further urge the Cambodian government to take the necessary steps to protect the fundamental right to freedom of assembly in Cambodia, which has been subjected to increasing restrictions. In this particular case, the Cambodian government’s ability to ensure justice for those whose rights have been severely violated and to hold the perpetrator accountable serves as a serious test of the Cambodian government’s will to uphold human rights, consistent with its own Constitution, the human rights principles of the ASEAN Charter, and international human rights law.

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

Daniel Abugattás Majluf (President of Congress), Juan F. Jiménez Mayor (Minister of Justice and Human Rights), Dr. Carlos Alberto Tejada Noriega (Minister of Health)

Re: Peru: Laws threaten fundamental human rights of People with Drug Dependence

Dear Sirs,

I am writing to express my concern about Law No. 29737 and related provisions in Peruvian law that permit involuntary detention for treatment of people who suffer from addiction, in circumstances that do not comply with international human rights law. I believe that such laws threaten fundamental human rights protections against arbitrary detention and ill-treatment and for the right to health and are contrary to sound public health policy. I urge that, so long as Law No. 29737 remains in effect, it be regulated to conform to international standards and that you support expansion of voluntary, evidence-based treatment instead of involuntary treatment.

I understand that the Executive is currently discussing regulation of Law No. 29737, which amended article 11 of the General Health Law, Law No. 26842 to permit family members to authorize detention for people suffering from “mental health problems,” defined to include those “who suffer some level of addiction and due to lack of consciousness or responsibility of their illness, refuse to give informed consent.” In such cases, involuntary detention is subject to periodic review by health professionals and by a judge.

Law No. 29737 expands on existing law permitting involuntary detention for treatment of drug dependence. Peru’s Civil Code permits family members of people who are dependent on drugs or alcohol — and in some cases the government — to seek their judicial interdiction. Legal guardians of those interdicted can “volunteer” their admission for drug or alcohol treatment and rehabilitation without their consultation or consent. Peruvian Law No. 29765, which governs therapeutic communities, specifically authorizes legal guardians of those interdicted and of minors to seek admission for treatment; treatment can also be required by judicial order.

I consider forcible detention may constitute arbitrary detention, in violation of international human rights standards, even if it has a lawful basis provided by Peruvian law. Art. 9(1) of the International Covenant on Civil and Political Rights (ICCPR) states that “No one shall be subjected to arbitrary arrest or detention [or] deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Under the ICCPR detention may be “arbitrary” even if it is in accordance with the law, but is random or capricious or disproportionate, that is, not reasonable or necessary given the circumstances of the case. The State party concerned has the burden to show that such factors exist in a particular case.

I am concerned that Law No. 29737 and its regulation, and related legal provisions described above, would permit involuntary detention for drug treatment in circumstances that were neither reasonable nor necessary, threatening rights to liberty and security.

Drug dependence treatment is a form of medical care, and therefore must comply with the same standards as other forms of health care. Under international law, people dependent on drugs have the right to access medically appropriate, effective drug dependence treatment, tailored to their individual needs and the nature of their dependence. International human rights standards further require that drug dependence treatment be based on free and informed consent (which includes the right to refuse or withdraw from treatment), be scientifically and medically appropriate and of good quality, culturally and ethically acceptable, and respect fundamental rights to health, privacy and bodily integrity, liberty, and due process.

The presumption that people who use drugs lack capacity to consent to treatment is dangerous because it ignores relevant legal safeguards regarding competence to make treatment decisions, and widens the scope of potential abuse.

This position is also contrary to the UNODC and WHO position in its “Principles of Drug Dependence Treatment” that “only in exceptional crisis situations of high risk to self or others, compulsory treatment should be mandated for specific conditions and periods of time as specified by the law.” Compulsory treatment in such exceptional circumstances can only be legally justified where the treatment provided is scientifically and medically appropriate, and with independent oversight. Absent such conditions, there is no justification for compulsory treatment.

Compulsory detention for treatment of “mental problems” also violates Art. 12 of the Convention on the Rights of Persons with Disabilities (CRPD). This treaty requires governments to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life,” including the right to decide whether to accept medical treatment. The CRPD inscribes the presumption that persons with disabilities can act in their own best interests and that, when needed, they should be given support to do so. It also makes clear that persons with disabilities – including intellectual and psychosocial disabilities — enjoy an equal right to health care as others, explicitly recognizing that medical care must be provided on the basis of free and informed consent, and without discrimination based on disability (Art. 25). Mental disabilities do not justify forced medical treatment, or the presumption that a person lacks the capacity to provide informed consent.

There are exceptional circumstances when a person’s drug dependency may create a crisis situation in which medical treatment is appropriate and that person’s capacity to consent to such treatment has been temporarily compromised. In such clearly defined, exceptional circumstances, where qualified healthcare professionals, subject to review by an independent authority, have determined that a person poses a serious and imminent risk to him or herself or to a third party, but lacks capacity to give informed consent to treatment due to drug dependence, a temporary period of mandatory treatment without consent may be justified.

In such cases, treatment should not be imposed unless it is a medically appropriate, individually prescribed plan, subject to regular review, that comports with international standards. Treatment should not be longer than is strictly clinically necessary to return the person to a state of autonomy in which he or she can take decisions regarding his or her own welfare. The treatment should be subject to a statutorily defined time limit, which should be as short as possible, subject to review by an independent authority for its continued necessity. When the compulsory treatment is up for review, continued treatment without consent should not be permitted unless the authority seeking to administer the treatment establishes that the exceptional circumstances for continued treatment persist. The person subject to compulsory treatment (or his or her legal representative) should have the right to challenge the necessity of treatment before a court or the independent authority.

The tragedy at “Christ is Love” drug treatment center last month, in which residents trapped behind locked doors and barred windows were killed or critically injured when a fire swept through the facility, has drawn attention to the dearth of qualified drug treatment facilities in Peru. The Public Ombudsman has pledged to investigate conditions at Christ is Love, and local governments, together with the attorney general and the Ministry of Health, are inspecting local facilities and have already ordered their closure in some cases.

These are important efforts. But Peru has legal obligations to ensure that no one is subject to forced detention in the name of addiction or “mental health” treatment in violation of international standards. Congress should approve proposed laws abolishing Law No. 29737 and to reform the General Law on Disability to fully comply with the CRPD. The government should also take immediate action to end interdiction of drug users and support them in making their own decisions about treatment.

I urge you to take prompt action to close forced drug rehabilitation facilities, and establish voluntary, effective drug treatment in their place. I also urge you to speak publicly and strongly in support of the right to voluntary, effective treatment for all those who need it.

Sincerely,

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

Uganda recent arrests and detention of political opposition leaders and activists

2012 brings a lot of uncertainty in Uganda as the year is already mirrored by violent, unjustified brutal arrests of opposition leaders and Activists for Change(A4C) who have taken action to draw attention to the unbearable rising cost of living, aggravated by rampant corruption, high inflation rates and bad governance by the NRM Government and its leadership.

This year so far the country has been hit by a massive traders strike which cost the country an estimated Ushs40b ($16m), immediately followed by a vigorous re-launch of the peaceful walk to work protests led by opposition leaders and political activists where many Ugandans were unlawfully arrested, manhandled and detained without charge.

These recent events are simply part of the systematic and continuous process of legal restraints on civil liberties, clampdown on political protests and dissent which the movement government has been using to gain unfair political advantage to consolidate power following multiple sham elections.

Given that the Ugandan constitution provides for the rights to: freedom of assembly, freedom of expression, freedom to demonstrate peacefully under article (Article 29. 1d), recent events and actions by the NRM government suggest a contradiction given the brutal police arrests, tear gassing of opposition leaders/ activists, oppression of peaceful rallies by the NRM government which amounts to political persecution contradicting article 43(2a).

We therefore demand the following:

• An immediate release of detained opposition activists
• A set up of an independent commission of enquiry to investigate the root causes of public grievances that have resulted in demonstrations.
• The withdrawal of the “shoot to kill” statement made by Mr Museveni reported by(The New Vision 2012)
• An immediate stop to the illegal, unnecessary deployment of armed personnel, the interruptions of peaceful public rallies in and around Kampala and the rest of the country.
• Immediate government investigation and prosecution of the accused corrupt officials like the Prime Minister Amama Mbabazi inter alia.
• Denouncement of the suppressive Public Order Management Bill and demand its withdrawal given that it is an illegal instrument being used to suffocate the rights of Ugandans (Muwanga Kivumbi vs Attorney general).

The demands here forthwith are necessary for the entrenchment of democratic values to exercise their freedom and human rights. Failure to address these genuine concerns raised will amount to further grievances which could push Ugandans to seek alternative ways of expressing themselves.

As such, we demand that the Government observes its obligation to respect and protect the right of peaceful assembly ICCPR enshrined in (Article 21).

Signed by:

• Belinda Atim (Human Rights Activist)
• Charles Mugagga (Secretary)
• Richard Semitego (Pro-Democracy Activist)

AUTHOR: Shout Africa
URL: http://www.shout-africa.com
E-MAIL: news [at] shout-africa.com

Egyptian military trials (Carlos Latuff)

Human Rights Watch has done its arithmics. As Egypt’s military has arrested almost 12,000 civilians and brought them before military tribunals since SCAF took over in february 2011, HRW concluded that this is more than the total number of civilians who faced military trials during the 30-year rule of Hosni Mubarak.  “Nearly 12,000 prosecutions since February is astounding and shows how Egypt’s military rulers are undermining the transition to democracy,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “The military can end these trials today – all it takes is one order to end this travesty of justice.”

In a September 5 news conference Gen. Adel Morsy of the ruling Supreme Council of the Armed Forces (SCAF) said that between January 28 and August 29, military tribunals tried 11,879 civilians. The tribunals convicted 8,071, including 1,836 suspended sentences; a further 1,225 convictions are awaiting ratification by the military.

Under the Mubarak government, such trials were reserved for high-profile political cases, such as the 2008 conviction of the former deputy guide of the Muslim Brotherhood, Khairat al-Shatir, and 24 others; cases in which the defendants had been arrested in a military zone such as the Sinai; or bloggers who criticized the military.

Human Rights Watch said that the proceedings before miliary courts do not protect basic due process rights and do not satisfy the requirements of independence and impartiality of courts of law. Defendants in Egyptian military courts usually do not have access to counsel of their own choosing and judges do not respect the rights of defense. Judges in the military justice system are military officers subject to a chain of command and therefore do not enjoy the independence to ignore instructions by superiors.

Morsy also said the referral of civilians to trial before military courts for violations of the Egyptian penal code would end as soon as the state of emergency is lifted. SCAF generals previously have said that the Code of Military Justice gives them the jurisdictional grounds to bring civilians before tribunals. This law provides overly broad jurisdiction to the military justice system in articles 5-6, which allow for civilians to be brought before military tribunals for crimes under the penal code if the crime takes place in an area controlled by the military or if one of the parties involved is a military officer. Since taking over the government, the military appears to consider the whole country “controlled by the military” and therefore everyone is potentially subject to military trials.

“The military should end the state of emergency immediately, but even that will not be enough to end military trials of civilians,” Stork said. “The Egyptian authorities should amend the Code of Military Justice in line with its obligations under international law to limit military jurisdiction to military offenses.”

International human rights bodies over the last 15 years have determined that trials of civilians before military tribunals violate the due process guarantees in article 14 of the International Covenant on Civil and Political Rights (ICCPR), which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal. Egyptian human rights lawyers have filed two cases before Egypt’s administrative court, the Council of State, appealing against SCAF’s administrative decision to bring civilians before military tribunals, which the court will hear in September.

Military courts have acquitted only 795 of the nearly 12,000 cases they have tried, a conviction rate of 93 percent, Human Rights Watch said.

In July, the SCAF issued statement number 68 in which it announced that it was limiting the use of military tribunals to three categories of crimes: “thuggery,” rape, and assault against police officers, a limitation of little practical relevance since these categories cover the vast majority of cases before tribunals over the past months. The vast majority of those sentenced by military tribunals are not political cases but involve individuals arrested in connection with alleged regular criminal activities. Those sentenced included a 16-year-old child, Islam Harby Raga, currently in Tora prison serving a seven-year sentence after a military trial in February in which he was convicted on charges of assaulting a public official.

Blogger Maikel Nabil, currently on hunger strike, is serving a three-year prison sentence for “insulting the military establishment” and “spreading false information” – in fact, for peaceful expression of his views on his blog and on Facebook. Nabil’s lawyers have appealed his sentence and another military court will hear his appeal on November 1. On September 5, Morsy insisted that there were no cases regarding freedom of expression before the military courts, saying that Nabil was a case of “insulting the armed forces.”

In response to growing public calls for an end to military trials of civilians, the military has chosen instead to criticize the media for its coverage of the trials. In a news release on September 7, Morsy warned the media to stop commenting on military trials and spreading “false” information about proceedings.

AUTHOR: Martin Hijmans
URL: http://the-pessoptimist.blogspot.com/
E-MAIL: m.hijmans [at] planet.nl

Introduction

To understand the discrimination faced by indigenous women in the Chittagong Hill Tracts (CHT), it is very important to understand the geopolitical background of the CHT in the larger context of the Bangali Muslim majority of Bangladesh. Pahari women are among the most marginalized and vulnerable groups of people in Bangladeshi society. They live as quadruple minorities under present social and political institutions. In a patriarchal and male-dominated society, they are a gender minority. In a Muslim-dominated country they are a religious minority. In a nationalist, Bangali-dominated society they are an ethnic minority. Within their own patriarchal community they face marginalization, exploitation, and increasingly, violence. A strong political movement exists to resist these multiple marginalization, but it has not been able to create enough resonance within the wider political structure.

This paper looks at the various sources of discrimination and violence faced by the indigenous women living in the CHT and looks at how and why the indifference from the state and the majority civil society further detaches them from the mainstream women’s movement in Bangladesh. Society and the infusion of religion into societal norms already play a huge role in the discrimination and marginalization of the majority Bangali women. In a Muslim majority Bangali society, indigenous women have a further factor of violence against them. Discriminatory family laws, along with discriminatory national laws, add a new dimension and further marginalize women within their own communities. Militarization and the presence of Bangali settlers have been terrorizing Pahari women since the beginning of the insurgency. The insurgency is over but CHT still remains fully militarized and the politically motivated violence against women still continues.

The information for the paper was collected through secondary documents and a series of interviews with grass-roots level women activists in the CHT, activists involved with NGOs and Pahari political groups and Pahari men and women lawyers.

A primer on the CHT

The Chittagong Hill Tracts [CHT], covering 13,189 square kilometers of land, is in the south-eastern corner of Bangladesh. It shares borders with the Indian states of Tripura, Mizoram and with Chin of Myanmar to the south and south-east. To the west is the Bangladeshi district of Chittagong. The region comprises of three districts: Rangamati, Khagrachari and Bandarban. The Hill Tracts are covered with hills, forests, valleys and lush vegetation.

There are more than 50 different indigenous communities living all over Bangladesh today and the CHT is home to Pahari indigenous people from at least 11 different communities – Chakma, Marma, Tripura, Bawm, Mro, Tanchangya, Khumi, Lushai, Chak, Khyang and Pankho. In 1872, 98 percent of the population of the CHT was indigenous. By 1951 indigenous people were still the majority, with only nine percent [1951 census - 26,150] Bangali people living all over the CHT. By 1991 Bangalis became the majority representing 49 percent of the population of the CHT and the rest represented by the 11 different ethnic communities.[1]

Although in terms of land mass CHT is said to cover about 10 percent of Bangladesh, most of it is uncultivable hill and forests. As such Pahari people were, and still many are, mostly involved in jhum [swidden] cultivation. The Pahari people’s political struggle began with the building of the Kaptai Dam in 1960 which submerged 40 percent of, mostly cultivable, land in the CHT and displaced approximately 100,000 Paharis. Some took refuge in India and many remain internally displaced till today.

After Bangladesh gained independence from Pakistan in 1971, the Pahari people’s struggle took a new turn. On 15 February 1972, a delegation of indigenous people led by M.N. Larma MP [a Pahari member of parliament], called upon Prime Minister Sheikh Mujibur Rahman and demanded that indigenous people of Bangladesh be given recognition in the Constitution. Sheikh Mujib categorically rejected this demand and instead called for indigenous people to be assimilated into the majority ‘Bangali’ nationalist construct. Larma walked out of parliament and in March 1972, formed the Parbatya Chattagram [CHT] Jana Samhati Samiti [PCJSS]. The armed struggle for regional autonomy began for the Paharis when the Shanti Bahini, the insurgent wing of the PCJSS was formed.

The nationalist movement of Bangladesh also took another different turn after the assassination of the then President and founder of the Bangali independence movement Sheikh Mujibur Rahman in 1975.

From secular nationalism the country took a turn towards Islamic nationalism; and the military assumed the central role in the decision-making process of the state. The military bore an animosity towards India. The change had its impact on the politics of CHT as well.[2]

In the late 1970s President Ziaur Rahman began a migration program of Bangladeshi settlers into the CHT, providing land grants, cash and rations. This program was not made public at the time, and its existence was denied by government representatives. Around 400,000 Bangali landless people were settled in the CHT. This caused the single biggest shift in the character of the CHT in its history. Bangalis have since become the majority population of the CHT. It was seen as a counter-insurgency measure that not only caused a restructuring of the population ratio but also used poor, landless Bangalis as shields in the army’s war strategy. As the Paharis’ facial structures are quite distinct from the Bangalis’, they became easy targets for the army who carried out many rapes during the insurgency period. The lack of documentation at that time and the impunity that is still enjoyed by the army makes it an almost impossible task to prosecute the perpetrators of these crimes. The army and settler presence in the CHT has changed the lives of Paharis, particularly the women, almost irreversibly.

The PCJSS, the political platform of the Paharis signed a treaty with the government of Bangladesh on 2 December 1997 to end insurgency in the CHT. The CHT Accord recognizes the CHT as a ‘tribal inhabited area’. Under the Accord a ‘Peace Accord Implementation Committee’ is to have taken responsibilities of overseeing the strengthening of the district administration and regional authority was to have been handled by a majority Pahari-represented administration. Land disputes were to have been settled by a Land Commission and internally displaced people and refugees rehabilitated. Unfortunately, there has not been satisfactory progress in the implementation of the Accord and the army presence along with the continuing in-migration of Bangalis is alienating the Pahari indigenous people of the CHT from their land of generations.

Militarization currently takes place in the CHT through ‘Operation Uttoron’ (Upliftment), details of which are not available for public scrutiny. The military in CHT has been known to involve itself in the civil administration activities. The CHT Accord calls for gradual dismantling of all military, para-military and other security camps except for six specified cantonments but currently there are still more than 300 temporary army camps in the CHT. Out of the total of 64 districts in the CHT, it is only in the three hill districts of CHT that vehicles moving in and out of the district have to be registered at an Army check-post. Also, to have an access to these three hill districts, non-Bangladeshi citizens have to give advance notice to the local authorities before entering the district. The presence of army in the CHT is only seen in a positive light by the Bangali settlers who view them as their ‘protectors’ who allow them to remain on the illegally occupied land of the Paharis. One of the biggest challenges of human rights advocates in CHT is the lack of access to justice in cases of murder, torture, rape, unlawful arrest and detention, oppressive persecution, inhuman and degrading treatment. Almost all of these cases have never been properly investigated, or prosecuted.  Nor has any kind of punishment ever been meted out.

The Pahari women of CHT are the most marginalized sections of Bangladeshi society. In terms of numbers they are very small and account for only a fraction of the population of the country. They are both religious and ethnic minorities, which means they are discriminated by the extremely patriarchal, Muslim Bangali majority society. In the past, this discrimination was only faced by women who lived in Bangali-majority communities outside of the CHT. This piece by Muktasree Sathi Chakma, a law student from Chittagong University captures the feeling faced by Pahari women:

‘Do you have bathrooms?’ ‘Do you use salt and oil in cooking?’ ‘Hey! I have heard that you eat cockroaches alive?’ ‘Don’t you face any problem socially if you choose to live with your partner?’ were among the many questions I have faced in the past five years. The experience is the same for all indigenous boys and girls on campus. .Just go through the above questions again. Do you think any of these questions are made with any respect for them? How would you feel if you were asked, ‘Do all males in your community have four wives?[3]

[Referring to the generalization that Muslim men are allowed to have four wives]

However, the overwhelming number of Bangali settlers in the CHT has resulted in harassment and violence against Pahari women within the once secure neighborhood of their homes. With no control over land dispossession and the non-functioning of the Land Commission to blame for this, and no sign of the army’s loosening its grip over the CHT, it is indeed a worrying trend. There is no documentation of the exact number of women physically assaulted or sexually harassed or raped by the army and Bangali settlers in the CHT. Before the CHT ‘Peace’ Accord was signed there were reports of mass rapes by the army, some of which were documented in CHT Commission’s report ‘Life is not ours’ and Amnesty International’s reports ‘Unlawful Killings and Torture in the CHT’. But there have been no investigations and no subsequent legal redress. And this impunity still continues even after insurgency ended 13 years ago.

The biggest concern in rape and other violence against women in the CHT now is the lack of access to justice and absolute impunity that perpetrators enjoy.

On 8 March 2009, while the world celebrated International Women’s Day, a four-year-old child was raped by a Bangali settler in Dighinala in Khagrachhari district of CHT. The settler was arrested but till the writing of this paper a chargesheet has not been submitted and women’s rights activists from the CHT have informed that the perpetrator who has been in jail for the last 20 months is now seeking bail.[4]

In rape cases, the victim ends up going through further harassment from the side of the administration and law enforcers – there have been instances where doctors at hospitals have refused to give Pahari women physical check ups or delayed the physical check ups so that the evidence disappears; the victim’s family is asked to produce a ‘witness’ by the police; there is intimidation from the security forces, in one case at least the raped girl was further molested by the physical examiner himself, one victim who did not know any Bangla and had to ‘act out’ the crime in front of the court; there have been complaints about police delaying/refusing to take the case and many have been too afraid to file a case in fear. These and many other administration-led intimidation and harassment ultimately results in the perpetrator getting away with his crime. The bias by the administration is revealed in this rape case of a young disabled girl in Khagrachhari.

On 31 July, 2009 a physically challenged 16-year-old Chakma girl was raped by a Bangali man who worked at a micro-credit bank in Dighinala, Khagrachhari. He took away her stick and grabbed her from behind and forcibly took her to her bedroom. Without her stick she did not have any strength in her body to fight back. A case was filed against the man. However, he managed to flee from the CHT and till today there have been no reports of his whereabouts. When a group of lawyers from two NGOs went to investigate the case, the bias from the administration was obvious. There was a new Investigating Officer on the case and without even speaking to the victim he claimed that the bank official was not guilty and it was a false case by the Chakma girl and it was politically motivated by a local Pahari women activists’ group.[5]

Lawyers in CHT lament about how difficult it is to ‘prove’ rape in a court of law. An essential requirement to adjudicate a case as rape is a medical test of the victim to find semen from the rapists’ body. From the moment a rape takes place a girl is placed under immense social pressure from the stigma surrounding it. Although this stigma may be the same or more in the Bangali culture, in the hills another kind of pressure is put on the victim and her family – pressure from the administration. Women’s rights activists have reported that the attackers are usually Bangali settlers and the administration, both civil and military, support in establishing impunity. Lawyers from BLAST (Bangladesh Legal Aid and Services Trust) have reported that many girls avoid making complaints or do so too late, by which time the evidence of rape from her body will have disappeared. Many times people from the administration threaten the girl and her family even if they do complain or try to mediate the matter by offering the poor victim’s family financial benefits.

Medical tests, which provide the essential evidence for rape cases are not so straightforward to collect either. This is true for rape all over the country, but especially so in the CHT. Many women, unaware of the consequences wash themselves off before going to a police station. When going to a medical examiner, there is always some form of red tape involved in all rape cases but because of the militarized situation and the Paharis lack of bargaining power this is worse in the CHT according to lawyers who work in the CHT.

The bias in rape cases is also clear when an eye-witness account is asked to be produced in a rape case. In the hill tracts, homes in remote villages are not located very far from each other and it is impossible to hear what is happening in one home from the next. This bizarre problem was recently faced by the mother of a 10-year-old raped girl.

After the mother made the complaint the police station kept pressuring the mother of the child to produce a ‘witness’ to the crime. The mother was unable to produce anyone as a witness as no one had actually seen the crime taking place. Some locals who had seen the girl lying on the ground in a pool of blood said that they had not seen how this had happened and refused to give evidence. In the latest update to this case, the government lawyers have filed a case against the girl’s mother for filing a ‘false case’.[6] The mother is being accused of filing a false case because she could not produce an eye-witness.

Perpetrators of violence against women often manage to evade being identified, located, arrested and tried, let alone be punished. Many crimes against women take place over land disputes in the CHT. In the absence of prosecution and punishment there is less deterrence against any future offences.

On the night between 3-4 September 2009, a 50-year-old indigenous woman, Ponemala Tripura was killed in Sindukchari of Khagrachari district. Her dead body was recovered from their Jhum field by the villagers in the morning on 4 September. She was staying alone as in a small jhum cottage to protect her crop from wild animals as she usually did in turn with her husband. She inherited the land from her father but in the 1980s four Bangali men had been given settlement on that land by the government-sponsored trans-migration program of counter-insurgency. The dispute was never settled and the locals suspected that this was an act carried out by these four men to revenge her non-cooperation to hand over her land to them.[7]

In the 1950s, 98 percent of the population of the CHT was Pahari. With the building of the Kaptai hydroelectric dam, 100,000 families were displaced. Some went to India as refugees and others remain internally displaced. With the arrival of the settlers in 1970s/80s during insurgency the population ratio changed and the Paharis became minorities in their own land. These Bangalis brought with them their culture and social norms. With the backing of the military they grabbed land of the Pahari people and with the nature of customary ownership, this was easily achieved. Rape, sexual harassment, intimidation by Bangali men still continue today along with land grabbing. The extensive building of madrasahs (Muslim religious schools) and mosques, and to a lesser extent Christian missionaries, has changed the unique socio-cultural face of the CHT. Clothing of Pahari women had to become more conservative to ward off unwanted attention from fundamentalist Army and settlers. It is also quite common for Army/settlers to use derogatory names to call Pahari women which intimidates and restricts the freedom of movement of women. A pahari women’s rights activist narrates here the everyday harassment that women in remote parts of CHT have to face on an everyday basis. This report is from Jurachari, but relevant to all remote areas of CHT.

The freedom of movement that existed before is not there anymore. Earlier, a lot of women used to be involved with selling vegetables and other necessities in the bazaar, the number of women doing that kind of work has come down. In our culture we don’t wear blouses and when we go out not fully covered up the army and the settlers look at us in an odd way and make us feel uncomfortable. Not only that the army and settlers regularly harass us by deliberately pushing and touching the women’s bodies in the bazaar. The women can no longer independently roam about in these places. Also when the army travel through the roads and come across women going to pick up firewood or taking their domestic animals to be fed they harass them by calling them names or winking at them. Sometimes they even touch their breasts, but the girls are too scared to report these incidents.

The Bangladesh Army before the Accord was signed carried out numerous massacres in the CHT [please refer to the table on page 5]. Many of the massacres included mass rapes. Along with rape, proselytism of Pahari men and through marriage, many women has added a new dimension of assimilation. Based in Rangamti, a Saudi and Kuwait funded NGO has carried out many conversion of Paharis. Another NGO, the Tribal Muslim Welfare Association also works to convert Pahari people by giving them food and land incentives. A Tripura man talks about his experience of becoming Muslim.

We have become Muslims, because this is a Muslim majority country.  My parents were not Muslims.  Nor were my wife’s family. But I left my community and became a Muslim.  Many tribal women marry Bengalis and become Muslim.  But a year or two after marriage, they are often divorced.  Many of them commit suicide. Every year 12 or so such divorce cases occur.  But under Muslim law, they should be getting compensation when divorced.  I advise these women not to get married unless they agree to terms of the Muslim marriage contract.[8]

Lack of government policies and legislations

The Awami League-led government has expressed its desire to go back to the secular spirit of the Constitution; there is a renewed movement from the indigenous and progressive Bangali civil society to get recognition for people from different ethnic origins. Currently article 28(4) of the Constitution says: “Nothing in this article shall prevent the State from making special provision in favor of women or children or for the advancement of any backward section of citizens.” Section 10 [participation of women in national life] of the Constitution says: “Steps shall be taken to ensure participation of women in all spheres of national life”. Articles 27-43 allows citizens to enjoy equal opportunities with regard to public employment or education, to life, liberty, personal security, and freedom of movement, assembly and association, expression, religion, profession and occupation and property, and to the protection of home and correspondence.

Out of the 345 seats in the national parliament, 45 are reserved for women to increase representation of women in the political process. None are reserved for any special women’s group in Bangladesh. After the signing of the CHT Accord in 1997, no Pahari woman has been nominated as a Member of Parliament (MP) in the reserved seats for women. Prior to the Accord, there had been two Pahari women MPs.

Both the United Nations Universal Declaration on Human Rights and the 1995 Beijing Declaration recognize women’s equal participation in political activities. Bangladesh also ratified the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) in 1984. It still has reservations on Article 2 and 16.1(C). The withdrawal of reservation on Article 2[9] would be particularly favorable to frame special laws and policies to end discrimination against indigenous women by the state. Article 16.1(c)[10] would also help give Pahari women equal rights in their customary laws.

The Government of Bangladesh has also endorsed many more international treaties like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They all talk about ensuring equal rights to men and women to enjoy civil and political rights and prevent discrimination.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has provisions for security and protection of indigenous women, to free themselves from discrimination and to empower them to assert their rights and preserve their culture. However, the Government of Bangladesh has refused to recognize indigenous people in the Constitution and the Foreign Minister in April 2010 was quoted as saying that Bangladesh did not have any indigenous people.[11] The government asserts that the Bangali ethnic communities have been living in the country for longer than the other ethnic communities and as such are the original inhabitants (i.e. the ‘adibashis’, the Bengali equivalent of ‘indigenous’) of the country.

This year the country passed the ‘Small Ethnic Communities Cultural Institute Bill 2010’ for indigenous people as a further assertion to non-recognition of indigenous people. Although the Paharis assert themselves as ‘indigenous’ (with exception from one political group UPDF – United People’s Democratic Front which uses the term ‘ethnic minorities’), the government now uses the term ‘small ethnic minorities’ for them.

Furthermore, the Government of Bangladesh’s National Policy for the Advancement of Women, 1997 does not address the unique position of the indigenous women or those indigenous women living under military-led administration in the CHT.

Bangladesh has ratified the ILO Convention on Indigenous and Tribal Populations (Convention No. 107) in 1972 which gives protection to indigenous women but there has not been implementation of this convention. The progressive Convention No. 169 is yet to be ratified by the government. This Convention recognizes the aspirations of indigenous peoples to exercise control over their own institutions noting that in many parts of the world they are unable to enjoy their fundamental human rights given that indigenous people have their own social, cultural and economic conditions. Article 3.1 of the Convention (on Fundamental Rights) says, “Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples”. Article 20 also talks about equal remuneration, equal opportunities, and equal treatment for men and women and protection from sexual harassment. Part five of the Convention discusses social security and health of indigenous men and women.

Bangladesh has an obligation to respect international laws and standards according to Article 25 of the Constitution which states “The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter…”.

Physical violence and marginalization within Pahari communities

The CHT ‘Peace’ Accord failed to safeguard the women of CHT. Although women took part in the armed struggle during the insurgency in various ways, they were not allowed to participate in the peace talks that resulted in the CHT ‘Peace’ Accord in 1997. As such the Accord has kept no provisions for giving compensation in the form of rehabilitation or counseling to the raped and physically abused and tortured women [or men].

Although Pahari societies are much more liberal than the majority Muslim-Bangali society, their customary laws and family roles are just as patriarchal and discriminatory. Women are still expected to take all responsibilities of household work and child rearing. Domestic violence against Pahari women, according to women’s rights activists, is increasing.

In terms of customary law, the most discriminatory is that most Pahari women are not entitled to inherit land from their parents. Women from the Marma community are an exception and are entitled as women to inherit land, but only from their mothers. If parents want they can choose to leave land for their daughters. Many Pahari men resist change to this law by saying that Bangali men would then marry Pahari women to dispossess them of their land. Others say that the overall marginalization of Pahari people must be dealt with first by implementation of the CHT Accord, before the case for women can be taken up. Pahari women strongly protest these justifications by the men. The Pahari women activists who gave their analysis for this paper, have said that both these reasons are a way to further marginalize women.

The traditional structure of the Pahari community is also very male-dominated and patriarchal. Men are by default the circle chiefs (or king) of the three circles (Chakma, Mong and Bomong). Only in the absence of any men, can a woman become a circle chief or queen. The headman or mouza chief [a mouza is a group of villages] is next in line in the traditional hierarchy and karbari [a village chief] thereafter. Currently there are less than 10 women headmen an karbaris out a total of 300 headmen and more than a thousand karbaris in the CHT. Recently, a woman who had been made a ‘karbari’ because her brothers were not adult yet is set to lose her post because her brothers have come of age and are claiming this post.

The number of men and women as Headmen and Karbaris in the CHT:

Circle: Chakma
No. of Headmen: 178
Women: 6
Men: 172
No of Karbaris: 1200
Women: 3
Men: 1197

Circle: Mong
No. of Headmen: 88
Women: 6
Men: 172
No of Karbaris: 687
Women: 0
Men: 687

Circle: Bomang
No. of Headmen: 109
Women: 3
Men: 85
No of Karbaris: 893
Women: 1
Men: 892

Table Source: Women’s Resource Network

Resistance politics and the women’s movement in the CHT

The women of the CHT have been actively involved with the movement for emancipation from since the 1970s insurgency. The CHT Mohila Samity, the first political organization of the hill women, was formed on 21 January 1975 by PCJSS. Talking about what gave rise to this group, a researcher writes, “the society of the hill communities is based mainly on the feudal and patriarchal ideology and system. So the struggle of the hill women of the CHT is a double struggle – on the one hand, against the feudal, imperial and extremely communal rule, exploitation and oppression; and against the patriarchal exploitation in their own society on the other”.[12] They started training in armed conflict during the insurgency. Women, during that time played their dual role of being involved in the insurgency and taking care of their homes in absence of the male members of the family.

Apart from the Mohila Samity, there are now the Hill Women’s Federation of both the UPDF [the breakaway group from JSS that opposed the signing of the CHT Accord] and JSS. They are very actively involved in field level protests and with the arrival of the Internet and other technology acts of violence against women are quickly disseminated to a network of human rights activists. Not very many mainstream women’s rights organizations are involved directly with indigenous women’s rights. There are some like the Bangladesh Nari Pragati Sangha (BNPS), Nari Paksho, Durbar Nari Network and Nijera Kori which are worth-mentioning[13]. Ain O Salish Kendra and BLAST offer legal aid. Even with those that have received a lot of media attention, there has been little result. A case in point is the Kalpana Chakma case.

The case of the kidnapping of Kalpana Chakma, the organizing secretary of the Hill Women’s Federation (the resistance movement by Pahari women), still remains unsolved. Just before the 1996 General Elections, Kalpana was picked up, allegedly by the army, in presence of her family members. No case was ever filed against the alleged perpetrator although there are witnesses to this crime according to several news reports.[14]

In cases where the Pahari women’s rights activists have carried out demonstrations and other activities, they have only been faced with retaliation from the army and administration.

In November 2009 it was reported that an army officer attempted to rape a woman in Ghilachari in Khagrachhari district. Women’s rights activists staged a rally to protest the alleged attack and demand punishment of the army officer and also made a demand that the army camp in the area be withdrawn. About a thousand women in the area participated in the protest. Army and police personnel including policewomen tried to intimidate the participants of the rally, but the women chased them away with sticks.

The women under the banner of “Ghilachari Committee for Guiding Movement against Women Repression” also blocked the road between Khagrachhari and Rangamati. At one point during the chase and counter-chase between the army and the Pahari women the army baton-charged the women and injured about seven women protestors.[15]

Protest by women’s rights groups regarding rape and other human rights violations have been countered with further violence by members of the joint forces. Resistance against army and settlers in Sajek in the form of Sajek Nari Samaj (Sajek Women’s Society), which was formed last year, was met with fierce attempts to repress through physical assaults on the women (who are not part of any political group) by army.

Internally displaced Pahari families have been living along the Kassalong reserve since they were evicted from their original lands during the counter-insurgency period.[16] Many Bangalis have been brought in here on the excuse of building roads there. The settlement first started with a few khupri homes of Bangali settlers being strategically located near the houses of the Paharis. This has been leading to increasing tension between Paharis and Bangalis in the area and culminated in an arson attack by settlers which gutted down 70 houses of Pahari people in the area in April 2008.

By 2009 the tension between the Bangali settlers/army and Paharis started gathering momentum. A lot of false cases were filed against the Pahari men in the area.  Relatives of Paharis outside the Bagaihat area stopped coming because of the harassment they would face from the Army. The Sajek Nari Samaj (SNS) was formed on 26 December 2009 to protest against the harassment and torture by the Army and settlers. These women consisted mainly of family members of those men who were harassed in some way by the army or settlers. On 5 January 2010, the SNS submitted a memorandum to the then Baghaicahri Upazila Nirbahi Officer Humayan Kabir with a six-point demand which included stopping army repression in Sajek.

In late January in a further raid the army picked up two Pahari men and took them away to the army camp instead of giving them rice. The mothers, wives and sisters of the two men (who were also members of the SNS) along with other women of SNS went and rescued the two men from the camps.

The army retaliated by beating up the women of Sajek indiscriminately in the market place. But the ultimate retaliation towards the Sajek women’s movement took place on 19 and 20 February 2010, when around 434 Pahari and 29 Bangali homes in 12 villages in Baghaichhari upazila of Sajek Union in Rangamati district were burnt down in what turned out to be the worst violence since signing of the Accord.

The women of Sajek say that there is no security of their lives there and the army continues to intimidate the Pahari men and women of the area.

Conclusion

Vijay Nagaraj, Research Director at the International Council on Human Rights Policy, in an interview with Cassandra Balchin said[17], “…although bigotry and prejudice is often at the core of religious intolerance; religious fundamentalisms encapsulate very conscious political projects. While religion itself might be invoked in support of a whole host of claims that are being made, it is important to understand that fundamentalisms are about power, and not just about prejudice.”

The roots of discrimination of indigenous women of the CHT start with British colonialism when India and Pakistan were divided along religious lines. When East Pakistan realized their alienation along language and ethnic lines, their secessionist struggle began. Unfortunately the struggle for independence of Bangladesh was fought along the Bangali nationalist ideology with a ‘state-sponsored political project aiming at the cultural homogeneity of its entire population with the Bengalis.[18]’ The Bangladesh Army then used a similar roadmap to maintain ‘national sovereignty’ as was used by the Pakistan Army before Bangladesh’s independence. And the CHT is still suffering the gendered impacts of fundamentalist-nationalist militarization and conflict.

The political struggle, the state discrimination and army/settler harassment meant that women had to become strong for their own survival. However, survival is still an uphill battle for Pahari women in more ways than one. They are the least educated and farthest away from access to justice. The first Mro woman is said to have just enrolled into university. Militarization has also opened doors to national and international fundamentalist forces to achieve its target of nationalist, cultural and religious assimilation of the Pahari indigenous people. There has been little or no discourse within the media to resist these fundamentalist forces.

The Bangladeshi state first needs to get over its nationalist insecurities and communal outlook and accept indigenous people as inhabitants of this land and then take special measures for indigenous women if it truly believes in human rights, democracy and rule of law as manifested in the UN and other international ideologies. Unless the state recognizes and welcomes indigenous people, its people will still look at people of other ethnic origins as ‘other’. The Awami League led government needs to fulfill its 2008 election pledge to completely implement the CHT ‘Peace’ Accord, and through dismantling of all temporary army camps and land dispute settlement assure the rest of the world that it is committed to giving the highest priority to human rights.

Kabita Chakma, an ex-member of the HWF wrote this poem about women’s struggle in the CHT…

Why shall I not resist!

Can they do as they please -

Turn settlements into barren land

Dense forests to deserts

Mornings into evening

Fruition to barrenness.

Why shall I not resist

Can they do as they please -

Estrange us from the land of our birth

Enslave our women

Blind our vision

Put an end to creation.

Neglect and humiliation causes anger

the blood surges through my veins

breaking barriers at every stroke,

the fury of youth pierces the sea of consciousness.

___ I become my own whole self

Why shall I not resist!

(Chakma, 1992.7)

[Translated by Meghna Guhathakurta]

AUTHOR: Hana Shams Ahmed
URL: http://hanashams.wordpress.com
E-MAIL: hana.s.ahmed [at] gmail.com