Category: Current affairs

A Thankless Task

August 22, 2009, South China Morning Post, Hong Kong
August 27, Sri Lanka Guardian, Sri Lanka, and and as ‘Thankless tasks: Rights defenders in Sri Lanka & Pakistan’ in Selected Articles on politics, human rights & the rule of law in South Asia, Article 2, Vol. 08 – No. 03, September 2009 (PDF)

As a truth commission secretary MCM Iqbal helped gathered evidence on thousands of forced disappearances in Sri Lanka, only to see it disappear itself


As President Mahinda Rajapaksa speaks of ushering Sri Lankans into a new era of peace, a slight, bespectacled man in his sixties watches him from across an ocean with the weariness of a man who has tried and failed to call his bluff.

MCM Iqbal was secretary to two of Sri Lanka’s ‘truth commissions’, presidential commissions of inquiry into the 30,000 or more forced disappearances that took place in the late eighties and early nineties in the south, during a dirty war that many believe has yet to run its course.  He knows more than most about the skeletons that are locked away in the governmental closet; enough, he believes, for him to no longer be safe in his home country.

“I still remember when Rajapaksa was on the way to a UN session with photos of torture victims and was caught going through customs,” he recalls, during a recent visit to the Asian Human Rights Commission in Hong Kong. “You know as a minister he used to be at the front of the struggle against these incidents. Now I would consider his regime as one of the world’s worst perpetrators of enforced disappearances.”

Back in 1994 Iqbal was working as a senior government administrator when he was asked aboard. It was the first commission of its kind – the result of an election pledge by new president, Chandrika Bandaranaike Kumaratunga – and was split up to cover three zones. Iqbal’s job at the central zone inquiry force meant setting up a system that could allow a handful of officers to document thousands  of possible atrocities across four provinces. The team, made up of Iqbal, the chairman and some of their two dozen support staff, would travel around the country setting up shop for open questioning sessions. The idea was that they would compile a report for the president on the number and circumstances of the disappearances, who was responsible for them and how they should be charged, with a final analysis of how, legally, things had been allowed to get so bad. It was expected that the report would lead to legal action against the alleged killers; the public had been promised as much.

But the set up was grueling. For two years the small panel would spend two-week stretches in back-to-back interviews, and at night, away from their families they would dictate and record the cases they’d heard that day. “I had worked in public service for forty years, twenty of them in courts, so this procedure of listening to complaints was not new to me, but it was harder in the sense that some of them touched me,” Iqbal admits. “Sometimes  I felt like sobbing . But my task at the time was to lead the evidence: what happened, who came, was there enough light for you to identify them, did you try to stop them?”

Iqbal remembers many of the stories, but he gives one example; not one of the worst, he adds. According to a woman they heard from in Badulla in the nineties, local police had arrived at her house in the night and taken away two of her three sons; she remembers running, screaming after the jeep. At the police station the following morning the officers denied having arrested the boys, but the woman made such a commotion that her sons heard and started shouting. She waited all day on the verandah, hoping for access. Yet when the night shift officers arrived, they invited her back into the police station, and they gang raped her.

Iqbal says that the women said she could hear her sons shouting throughout the ordeal.  “I can still remember, she narrated what the five did to her, and after that she was almost dead from exhaustion,” he recalls. “But she went home and she complained to the elders who couldn’t help her, and then finally she came to us.”

This act cost her.  A few days after her testimony the same officers picked up her remaining son for a robbery.  Little could be done for her two older boys – by then almost certainly dead – but the commission chairman was able to contact the magistrate and help prove that the police were framing the 17-year-old for theft. “She came running to the commission with her son, crying, and laying on the floor shouting thank you,” he remembers. “All we could tell her was that she better take her son and get out of the area“.

This was one of the more rewarding outcomes. After two years in the central zone and more work with a follow-up commission, Iqbal helped write the report, and says that though some of the cases were clear cut, it was not made public (parts of it would be published in 2002, but without the names of those implicated). “We thought we had enough materials, we thought that this will at least send a signal to prevent this sort of thing happening in the future; that all victims would get compensation and at least  some perpetrators would be punished,” says Iqbal. “But the compensation paid was a pittance for most: 15,000 rupees for a young boy ranging to 150,000 for a public servant. Hardly any of the perpetrators were punished.”

Not yet disheartened, Iqbal took a job with the National Human Rights Commission and the US-based Asia Foundation, logging the same cases in a database and lecturing on human rights. Still, many of those implicated continued to hold high profile positions. The biggest blow then came when members of the National Human Rights Commission, considered relatively independent, were replaced.  The new staff were appointed by the Rajapaksa’s government, and according to Iqbal they had different priorities; the moved was also criticized in international press. “It had become a political commission,” he remembers. “I still remember the chairman, the late Justice Ramanathan, telling me to abandon [our work]. To use the exact words, he said: ‘why are you raking up all the muck?’”

At this point Iqbal resigned. But he would still receive calls from the families of the disappeared, telling him that they saw one perpetrator getting into a car, or that another was still officer in charge of the local police station. It appeared that the files had simply been put aside. “I believe the president did not implement our recommendations because she would have alienated the military and police on whom she depended – terrorism was at its height then and they protected her,” he says.

With no legal reforms made and very few held to account, disappearances continued in Sri Lanka. In 2006 17 locals working for a French NGO were notoriously massacred in a tightly controlled military zone. Scandinavian monitors pointed the finger at security forces but no one was charged. Iqbal refused the invitation to join another such inquiry.

However in 2007 when a group of international observers (the International Group of Eminent Persons) arrived to monitor the new commission’s work, the UN office in Sri Lanka suggested that they take on Iqbal as an adviser. He remembers dusting off his old files and indulging in a bit of straight talking. “I said, look at this list of perpetrators: So-and-so is now commander in chief there, So-and-so is minister of this district and the president knows and he keeps them there. Now he wants you to start making recommendations?” Three months later, when the observer’s released their support for these earlier, buried recommendations (not long before resigning), Iqbal remembers the shock and displeasure from the Attorney General and the higher ups. At that point the death threats started again.

“I’d had such calls in the past, but I didn’t take them very seriously, but these were too frequent and sounded a little more genuine, ” says Iqbal. “They came to me and my wife, and to me they would say you’ll be killed if you keep working there (with the monitors). Finally the observers’ security services monitored the calls and they said you need to leave immediately”. Late in 2007, without a word to anyone, the Iqbals locked up their house and left the country.

And now from a colder climate, with six months in a refugee camp behind him, a schedule of seminars and workshops ahead and his name carefully removed from the phone book, this reluctant keeper of grisly secrets watches the latest Sri Lankan leader with a weary, wary eye. He has no regrets about the path he took, though it essentially led to exile; but he doubts he can say the same for the president.
“When Rajapaksa came to power he had the option of doing something. He was a minister at the time of all this, he knew the contents of these reports and that nothing was being done,” he says. “He knew who was involved in all the killings, and yet he has put all those people around him, given them positions.”

Last month the president made a speech. In it, he declared that he only wants to look to the future now, that the past, essentially, is dead and buried. This, to MCM Iqbal, is eerily close to the truth.

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Civil Action

July 5, 2009, South China Morning Post, Hong Kong Reprinted in human rights periodical Article 2, Hong Kong In Sri Lanka, victims of police torture are harassed, intimidated and even killed for speaking out against their tormentors. But a new witness protection bill may make walking the legal path a little safer. Caught on a […]

July 5, 2009, South China Morning Post, Hong Kong
Reprinted in human rights periodical Article 2, Hong Kong

In Sri Lanka, victims of police torture are harassed, intimidated and even killed for speaking out against their tormentors. But a new witness protection bill may make walking the legal path a little safer.

Caught on a rare tea break, Father Nandana Manatunga bats at the ‘tsunami’ flies that whirl around his head and ponders a Sri Lankan newpaper headline: “Witness protection bill boost to human rights”. You get the feeling he’d like to be batting at something – or someone – else.

Manatunga and his small team at the  Kandy Human Rights Office are preparing for a  biannual “victims’ get-together”, a mix of Buddhists and Christians, ethnic Sinhalese and Tamil, refugees from sexual abuse and police brutality – far from the conflict-ridden north of the country. Because many of the party-goers are youngsters, presents are being wrapped in brown envelopes: Mickey Mouse mugs, bright pink photo frames swaddled in hearts, small plastic flashlights. Tomorrow, the gifts’ new owners will be distracted from the fact that they are in hiding, many taking a range of powerful people to court.

The violent three-decade conflict waged between the Tamil separatists and the government probably claimed the lives of nearly 100,000 people but, as Manatunga will tell you, it has also wrought damage in less direct ways. Decades of emergency rule have allowed the military and the police force to run rampant, corruption and intimidation becoming the order of the day for Tamils and Sinhalese alike. With the war declared over, rebuilding Sri Lankan society is going to be as much about fixing a broken rule of law as reconstructing schools and hospitals.

The witness-protection bill proposed in parliament for the first time last June is a start, suggesting the country will take seriously the protection and care of people who are waging human rights cases, such as those against overzealous police interrogators. Until now, such victims have been largely on their own, on the fringes of Sri Lankan life, scuttling to and from court appearances like frightened birds and assisted only by small NGOs. With corruption rife in the police force and the courts, they know that filing a suit against the wrong person guarantees years of intimidation and harassment and, now more frequently, death.

Anjana Fernando, a small, sad-eyed boy of 12, is one of those taking part in the centre’s festivities. Five years ago, his Sinhalese family decided to follow through with a list of complaints against their local police station, despite constant harassment. One evening,  more than 30 police officers descended on the Fernando home and Anjana was punched in the head and stomach. His father, Sugath, was knocked unconscious and his mother, Sandamali, had her nose and jaw fractured, before they were both thrown in jail. They had repeatedly asked for protection. Months later, last September, Anjana’s father was shot through the head by masked gunmen as the two sat together in the cab of the parked family lorry.

The boy doesn’t speak much anymore but his mother and older sister are full of fight, investing their anger in a legal case, while the family is being supported and hidden by a network of small NGOs.  Both children are finding life in hiding tough and they have been out of school for months. “My husband fought for justice and he was killed by cowards,” says Sandamali grimly, at a safe house.  “On behalf of him I will fight and if I die, my daughter will take it up.” Kalpani, 17, nods her assent. Then Anjana pipes up: “Then me,” he says.

But the damage is not only being seen on a personal level: the court system itself seems to be grinding to a halt. Crime levels in Sri Lanka aren’t lowering but the rate of complaints being filed with the authorities is and only about 4 per cent of those are successfully prosecuted. Sri Lankan human rights lawyer Basil Fernando (no relation), director of the Asian Human Rights Commission, links this directly to the lack of protection. “No justice system can function when complainants and witnesses don’t want to pursue their complaints,” he  says.  “Victims [of police torture] and their supporters are constantly told by police, ‘Don’t strike your head against a stone – no one can do us any harm’. It’s a catch-me-if-you-can mentality.”

“In Sri Lanka, if you see a person get run over in the street and the culprit gets away, you don’t get involved,” says Father Terence Fernando (also no relation), a dapper, tenacious Sinhalese priest from the south. “If the person in the car was a VIP you could be harassed, or your life could be in danger.”

At the Kandy party, victims and their relatives talk about the mistrust in society  and of neighbourhoods turned against them by the police. It’s not that people don’t want to help,  says Mary Allen, the wife of a torture victim, but just not in cases where they have to give evidence, go to the police station !or go through the courts. “If there is a funeral or something everyone will come together,” she says.

Even the lawyers in Sri Lanka need protection: both the men representing the Fernandos have received death threats and narrowly escaped serious injury or death:   J.C. Weliamuna was saved when one of two grenades thrown into his house didn’t explode  and  Amitha  Ariyaratne and his wife had been out of their home office for just a few minutes when it was burned down, in February, reducing every one of his case files to ash.

The witness protection bill was announced with much fanfare – and much was made of it in Sri Lanka’s report for the UN’s Universal Periodic Review last summer – but it seems to have sunk without trace since.  Many local human rights  activists have pegged it as a weak attempt to ease international pressure. One journalist for a local newspaper, in hiding himself at the time, was convinced that it wouldn’t be passed while the civil war lasted: “In the name of war the government can take anyone into custody right now and do anything to them; torture them, detain them, and this kind !of bill would just get in their way.”
With war apparently over, it will be interesting to see whether the bill is resurrected.

Basil Fernando has his doubts. “I think there’s even less likelihood of it passing now because people are demanding enquiries into the actions of the military over the past few months,” he says.  “Its professionalism is at stake and the government’s survival depends on it. It won’t want to make enquiries easier.” Whatever the bill’s fate, human rights groups have welcomed the debate that it has fostered.

Lalith Rajapakse and his grandfather were given a form of police protection after the teenager was tortured into a coma in a jailhouse in 2002 and chose to press charges. The policemen assigned to look after them just ate, slept and drank, remembers Rajapakse, now a gangly, intrepid 24-year-old. The memory, unbelievably, makes him laugh. “They would follow me to the toilet … but when I went out of the house, they would stay behind. In the end, we couldn’t afford to feed them, so we asked them to leave.”

Rajapakse has spent the  seven years of his trial !in hiding with  Manatunga’s programme but while visiting his home last year, towards the end of the case, he saw men with guns creeping around his house at night.
“I hid, jumped over a wall and ran to a relative’s house,” he remembers. “I haven’t gone back since. Recently, during a court case, the police admitted it was them coming to get me.” Rajapakse and his grandfather repeatedly turned down large, out-of-court offers of compensation from those involved – a form of bribery – and his grandfather was given a human rights award a few years ago for his courage.

In Negombo, a beach town not far from Sri Lanka’s capital,  Colombo, Brito Fernando (also no relation) considers bribery his biggest  obstacle. The organisation he runs, Right to Life, was set up a !few years ago to give legal support in human rights cases and Fernando is tired of throwing his support behind a victim only to have them back down from the case part of the way through.
“Many different forces start putting up pressure to settle, offering money, even sometimes bringing in [the support of] well-respected people in the area, like the MPs,” he  says wearily. “In cases involving police, the officers start going everywhere saying, ‘Oh, I did something wrong but I’m ready to pay because I’m going to lose my pension, my job and my whole family’. Sometimes they cry too and this builds up pressure.”

Over the years, the small team at the Kandy Human Rights Office has fine-tuned a system of legal help, trauma  counselling, security and education, but just as important, say those it helps, is the atmosphere of care. “The people here are the ones I’m closest to now,” says Chamila Bandara, 22, who lost the use !of his left arm after a particularly violent session in an interrogation room when he was 16. He had been accused, falsely, of stealing a water pump and he got to take his case before a  UN human rights committee in Geneva in 2003. “My sisters have been placed in a convent, where I can’t see them, and my mother’s in another province for safety. You can’t really make friends in hiding because you’re always frightened but here they know me well.” But being a small operation, there is a limit to how many people it can help.

Few victims of abuse in Sri Lanka recognise trauma, or know how to handle it.  Sister Mabel Rodrigo is a counsellor who works with minors such as  Rajapakse and  Bandara and has seen the damage first-hand. “Torture victims have a lot of anger towards the perpetrators. This anger is energy and that has to be  channelled in a very positive way,” she says. “If it isn’t, then the person will become bitter and want to take revenge and may even sink to killing people. They will become sociopathic.”

Sr Mabel Rodrigo

She says in the Kandy Hospital’s  psychiatric ward there exists a good system which combines  science with vocational training. If this kind of programme could be expanded and combined with protection, she says, things would start to improve. The law can help, she adds; actually winning a court case does untold good to any victim of crime. There is, though, a long hard road to travel to get that far. After a six-year battle,  Rajapakse lost his case last October and has had to appeal.  Rodrigo says she finds it frustrating to have made progress with a patient only to have them return from court every eight months with their wounds reopened. “Even after six years they are expected to remember every detail: who hit them where, what they were wearing,” Rodrigo says. “It makes my job very difficult.”

For other witnesses, the idea of being tied to a court case for half a decade is enough to make them look the other way; and so silence prevails.

The debate has been a significant turning point in this small island society but even if the bill is reborn, there are many issues that need addressing before victims will trust a state-run system with their safety and before the rebuilding can start !in earnest.
Still, as more Sri Lankans begin to understand their rights, more are choosing to speak out and brave the legal path. Thanks to those supporting them from the wings, they stand a chance of holding out until the verdict is given.

Brito Fernando and his colleagues talk powerfully of their dreams for a stronger civil movement at home; Manatunga believes  only a strong, legitimate rule of law will bring change;  Kalpani Fernando  wants to become a human rights lawyer and has clear ideas on the society she wants to help build. “First, I want to find out who did this to my father, then I want to show them that I can live in front of them,” she declares, her chin held high. “Only civil society can change the system.”

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Inside Burma

June 26, 2009, Guardian Weekly, UK
Reprinted in the Burma Digest, and Euro-Burma

Fred Taino is a Burmese-speaking human rights defender who regularly visits Burma. Following a recent trip to Burma’s biggest city, Yangon, he describes the aftermath of Cyclone Nargis, how locals are fighting repression, human rights abuses and how tourists have deserted the country.

Yangon looks different after Nargis. About 70% of the big trees collapsed so the view of the city has changed; much more is revealed. The tragedy is remarkable for the fact that many either lost their entire families in the cyclone, or they lost no one. I haven’t come across anyone who just lost an uncle or grandfather because in the places that were hit nearly everyone was swept out to sea and drowned. I asked about one monastery I have stayed in and was told that two of the monks had lost relatives, and for both it was their entire extended families. One man’s entire village was wiped off the map.

The psychological damage of this is enormous but there doesn’t seem to be any attempt to come to terms with it at all on a national scale. The cyclone caused many business- or middle-class families from the damaged areas to move into the cities. This year those who can afford it have moved to Yangon for the rainy season.

These days more mobile phones are being used and they’re just starting to introduce pre-paid cards, which will mean that access to people is a bit less restricted. But despite some differences – more overseas employment shops and more internet cafés – the living conditions remain stagnant. In the rainy season there’s pretty much no electricity from local grids (there’s no national grid) and almost every business has a generator running. Many households do without. There are huge problems with the water supply too; you only get water when the power comes on and in the dry season the pipes often dry out.

It doesn’t look like imprisoning Aung San Suu Kyi is going to generate protests inside the country; she was barely discussed, not like the way she used to be. There is great respect and concern for the monks in jail from last year’s protests, but again, it rarely comes up. From the conversations I had and those I listened in on, people are much more concerned with the basics, like the cost of food and the fact that more products are turning up with toxins in them. People were contracting serious illnesses this spring from mouldy, dried chilli.

In terms of the political situation the Burmese have an expression – hpyit thaloe nay – it basically means: “You just have to live with it.” People ask why should they spend their time and energy thinking about something when they can’t tell what’s true anymore? After fifty years this is how they survive psychologically.

Aung San Suu Kyi embodied expectations for change, but by systematically destroying her party and locking her away, the regime has managed to bring them down. It may still be there, deep inside people, but now it’s like a sadness more than anything else.

In internet cafés the computers have proxy programs to beat the censors and almost all staff members have numbers committed to memory. I went to one café and found that Yahoo was blocked but the attendant was able to help me access it pretty quickly by trying a few different proxy addresses. Those people know an incredible amount about the technology out there out of necessity. But they probably wouldn’t help me access a controversial site, such as Human Rights Watch, and I thought it dangerous to try. Most users wouldn’t think to anyway; they are like net café customers everywhere: 15 to 20 year olds playing computer games and downloading rock music from South Korea. The consequences of anything else have been made all too clear to them.

Still, the technological capabilities of the police force are limited, often in a ridiculous way. Police reports tend to be vague about exactly what they find in a supposed dissident’s possession. If a hard drive is recovered, the contents are not usually mentioned; this is because they don’t know what they’re dealing with, and because they don’t need to detail anything for a charge to be made.

It’s still a surveillance culture in the sense of insulation. People watch what one another are doing.

The economy has just stalled. The current figure on tourism is a quarter of a million people, and most of those are from neighbouring countries. Only 90,000 came from further afield on tourist visas this financial year. For a country of this size and compared to the expectations they had in the nineties, it’s very low – they were talking about half a million then, and this year projecting millions. There were five-star hotels built and never completed in Yangon. Some are concrete shells and some have been converted into private hospitals, which is pretty much the only boom area, and it’s thanks to Chinese and South Korean expat business travellers.

But there’s no other new development. All state funds were poured into this new national capital of ostentatious buildings and highways with no cars on them. The one from the Yangon airport to Naypyidaw is about to be officially opened. One driver I talked to said he’d never seen a road like it in his life.

The private news journals can’t say anything about the economic downturn directly, though you can sometimes read between the lines. Instead they give regular announcements of new committees being formed to solve every problem under the sun.

On the plane out I sat next to a consultant dealing with the mortality rates of pregnant women, who told me that not only is Burma the worst place for this in South East Asia, but it doesn’t even come close to somewhere like Cambodia. The statistics are similar she says – about three to four hundred deaths per 100,000 births in both countries – yet though she thinks this is true in Cambodia the anecdotal evidence in Burma says otherwise. In interviews in Cambodian villages she’ll hear of maybe one woman who died in childbirth in a year, in one village in Burma there were 14.

Tourists are free to travel to most places except those frontier areas under ceasefire arrangements such as parts of the Shan State, or economically sensitive areas like the ruby mines. Wherever you go outside of the main tourist areas though, be expected to be questioned by officials – usually three or four representing different government agencies. They don’t seem to trust each other.

• Fred Taino was interviewed by journalist Jo Baker.

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Can Sri Lanka’s Civil Society Be Rebuilt?

May 20, 2009, Asia Sentinel, Hong Kong

Murders and assaults allegedly perpetrated by an increasingly authoritarian government make it look unlikely.

With the rebel Tamil Tiger leader Vellupillai Prabhakaran finally dead and the military declaring total victory after 26 years of war, Sri Lanka’s traumatized citizens are hoping that their society can finally be regenerated. President Mahinda Rajapaksa, in a Tuesday speech in Parliament, promised the formerly Tiger-controlled areas would be reconstructed and that the rights of Tamils would be respected and protected.

Probably 100,000 of Sri Lanka’s 20 million people have been killed since the war began in 1983, a pace that picked up considerably in the past few weeks as the army closed in on the Tiger rebels, blasting civilian and refugee areas with artillery. Huge numbers of people were driven from their homes. Healing this nation in one of the world’s bitterest civil wars seems almost impossible, particularly because, thanks to decades of emergency rule in which the military and the police force have learned to run rampant with breathtaking impunity, the rule of law is a broken thing, for Tamils and Sinhalese alike.

The fact is that the government has used the war to brutalize citizens far from the war zone well beyond any reasonable limit. As many recent assaults and assassinations have shown, the simple act of just taking someone high profile to court here, let alone getting involved in the internecine civil conflict, tends to be a deadly gamble. Last September, for instance, businessman Sugath Nishanta Fernando was shot dead by masked men on a motorbike as he sat next to his 12-year-old son in the family lorry. His death capped a five-year attempt to take various police officers to court for abuses that started with assault and extortion, and ran through the criminal spectrum, from harassment, bribery and fabricated charges, to attempted murder.

The family had often asked for protection, including the time over 30 officers descended on the family home, beat its four members (two of them children) and dragged three into jail. Fernando’s wife Sandamali notes that they were eventually given a police guard — at her husband’s funeral.

Fernando’s wife and teenage daughter have taken fierce refuge in the legal case, and as a result they still run the risk of being killed. The family is being supported and hidden by a network of small NGOs and the children, at the time of the interview, had been out of school for months.

“We don’t have an income so we are relying on help from these organizations,” explains Kalpani Fernando, 17. “We are worried about being killed, but we are also concerned that nothing has been done to find my father’s killers. If we have proper laws to protect witnesses it would be alright. Then, if something happens to me the DIG (Deputy Inspector General) should be responsible. Then the situation could change.”

Sugath Fernando joins a number of people assassinated or ‘disappeared’ for their attempts to root out corruption. In 2004, 39-year-old Gerald Perrera, taking a groundbreaking case against police for torture and illegal arrest, was shot days before his final testimony; in January the prominent anti-establishment newspaper editor Lasantha Wickramatunge was also shot, and as he predicted in a letter released posthumously (see Asia Sentinel, xmmx) , no prosecutions have been made; Stephen Sunthararaj, who works at the Centre for Human Rights Development in Colombo, was abducted by men in Special Task Force uniforms on May 7 and has not been heard from since.

Nor does it take a full scale assault on the powers-that-be to put a civilian at risk. “In Sri Lanka if you see a person get run over in the street and the culprit gets away, you don’t get involved,” says Father Terence Fernando (no relation), a Sinhalese priest from the south. “If the person in the car was a VIP you could be harassed, or your life could be in danger.” In short, it is safer to look the other way.

For the first time, in June 2008 a witness protection bill was proposed in parliament for the first time. According to Sri Lanka’s disaster management and human rights minister Mahinda Samarasinghe, the Assistance and Protection to Victims and Witnesses of Crime Bill would finally fulfill some of its duties under the international human rights instruments it has ratified.

If used effectively, legal and human rights group believe such a program could make big changes in a country known for its corruption, its use of torture in custody and the harassment by police of those who file against them for abuse.

“No justice system can function when complainants and witnesses do not want to pursue their complaints,” says Basil Fernando, a Sri Lankan human rights lawyer and director of the Asian Human Rights Commission (AHRC) in Hong Kong. “Torture victims and their supporters are constantly told by police ‘do no strike your head against a stone. No one can do us any harm’. It’s a catch-me-if-you-can mentality.”

But despite the bill’s arrival in parliament last June with just minor changes recommended by the Supreme Court, and despite much being made of it at Sri Lanka’s report for the UN’s Universal Periodic Review last summer, there has been little more heard on the issue officially. The country was removed from the UN Human Rights Council in 2008 and many in the local human rights community have labeled the bill a weak attempt to ease international pressure. One journalist for a local newspaper, in hiding himself at the time, was convinced that it wouldn’t be passed while civil war was in play. “In the name of war the government can take anyone into custody right now and do anything to them; torture them, detain them, and this kind of bill would just get in their way.”” he says of the violent three-decade conflict waged between Tamil separatists and the government.

Now that war has been declared over it will be interesting to see if the government honors the bill. Basil Fernando is doubtful. “I think there’s even less likelihood of it passing now because people are demanding enquiries into the actions of the military over the last few months,” he says. “Its professionalism is at stake, and the government’s survival depends on it. It will not want to make enquiries easier. ”

Even should the bill be passed, human rights groups wonder if it can work on a practical level; echoing the skepticism that most victims already feel for the authorities. Father Nandana Manatunga, who runs one of the country’s only witness refuges, the Kandy Human Rights Office, believes that it would have to be an independent institution: “We can’t trust any of these forces, especially when it comes to police torture cases. It’s absurd to ask protection from the perpetrators – the police here act as one group.”

Lalith Rajapakse and his grandfather were given a form of police protection after the teenager was tortured into a coma in a jailhouse in 2002 and chose to press charges. The policemen just ate, slept and drank, he remembers, now a gangly 24-year-old. “They would follow me to the toilet… but when I would go out of the house, they would stay behind! In the end we couldn’t afford to feed them, so we asked them to leave”. Lalith spent the eight years of his trial in hiding with Father Nandana’s program, and while visiting his home last year towards the end of the case, he saw men with guns creeping around his house at night. In a recent court case officers were forced to admit that it was them. At the Kandy Human Rights Office there are many similar tales being shared.

The debate on the responsibility for protection is a significant turning point in this small island society, but there are many issues to address before victims will trust a country-run system with their safety. Still, as more Sri Lankans begin to understand their rights, more are choosing to speak out and brave the legal path. Thanks to those supporting them from the wings they stand a chance of holding out until the verdict.

In the midst of her ordeal 17-year-old Kalpani Fernando, Sugath’s daughter, has decided to become a human rights lawyer and she holds clear ideas on the society she wants to help build: “First I want to find out who did this to my father, then I want to show them that I can live in front of them,” she says. “Only civil society can change the system.”

Jo Baker is a Hong Kong based journalist and programme coordinator for the Asian Human Rights Commission.


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First step
written by Mao , May 21, 2009

With the elimination of the terrorist threat, Sri Lanka has taken the first step in the journey to a Civil society. The physical battle has been won, but even greater battle for the minds is just beginning. The Sinhalese Buddhist Chauvinism has to be curbed. Tamil must be urged to accept their place as equal citizens. Political compromise must be made, and hopefully the Rajiv blueprint for Tamil autonomy can be brush-up and implemented.

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‘It was a whole traumatised society’

May 21, 2009, Guardian Weekly, UK
May 29, 2009, South China Morning Post, Hong Kong

International criminal lawyer Carla Ferstman works for human rights organisation Redress. She talks about her experience of seeking justice for victims of the 1994 genocide in Rwanda, the rights of torture victims, and why she prefers not to talk about work at weddings.

I was a criminal defense lawyer in Vancouver for two and a half years after graduation and I was looking for a little bit of a diversion, and a friend of mine told me they were looking for prosecutors to go work in Rwanda. I went out in ‘95 with the UN High Commission for Human Rights without any international experience. I’m from Montreal and they were looking for criminal lawyers that spoke English and French, but had no associations with France, which was a Rwandan preference then for political reasons. I expected to go for three months and ended up being there for two years.

When I was there the genocide had ended a year earlier, but that size of genocide in a country that tiny – you really saw the remnants. You saw the physical destruction of houses, bullet holes, but you also saw the trauma of the average person. It’s an obvious but strange thing to experience – a whole traumatized society. There’s just a profound sadness. There, either you survived and 15 members of your family didn’t or you survived and your brother is in prison for killing 15 people. Definitely people were hostile. The UN’s role in Rwanda was so suspect, and the average Rwandan couldn’t make a distinction between the UN military forces who weren’t able to intervene during the genocide, and the civilian people who came afterwards. To a certain extent it was very rewarding, working with local lawyers and prosecutors to build something from scratch, but it was also very demoralizing and you came across cases in which you saw no hope whatsoever. I’m still working on Rwanda today, and tension between the communities there is still very high.

Part of my experience was helping with the process of reburial for mass graves.  I happened to have the only pickup truck in the area, so my pickup truck – with me driving – was used to transport these bodies for reburial.  It’s all very gruesome but you just do it. In terms of what I saw, you’re not really seeing bodies at that point, but remnants. It’s different, a little bit more removed. A lot of decompression took place after I left.

At Redress we’ve about ten lawyers in our office from all over, and we take up legal challenges for victims seeking justice, often for torture or related international crimes, like crimes against humanity. I’d say half are in the UK, refugees or British nationals tortured abroad and half are in countries across the world, where we work in coordination with local lawyers or NGOs. I probably travel a quarter or third of the time. This month I was in Canada for work, then herein Hong Kong, then I’m off to Cambodia next week for the trials, and I was supposed to go to Sudan in early December. That’s typical.

It’s hard to strike that balance. On one hand there’s a tendency, after having heard so many stories of torture, to have your notepad out saying, yeah next!  If you’re crying with the victims somehow, I’d almost say that’s less problematic than not being moved at all. We’re not psychologists but we’re more than lawyers because we can’t be part of a system that compartmentalizes these people into different boxes. It’s about your emotional capacity to put yourself in someone else’s shoes but also to be… helpful! It’s hard to explain. If you’re sharing the pain you’re not really helpful, but you need to understand the pain and not brush over details that are important to people.

I do get a deer-in-headlights look when I meet new people [outside of work]. At first, you can’t say what you do in four words, which is what’s expected, but if you go into more detail then all of a sudden people feel compelled to have a conversation about it, but may not be comfortable doing that. So you get the oh! And the long silence.

In a way our type of work has been in the media a lot so people have a preconceived idea about what I’m like, and also about the issues, depending on the newspaper that they read. Often you’re thought of as a total lefty, and very naïve, I don’t bother trying to change anyone’s mind usually. If I think a person is actually interested in my point of view then I’ll give it; if it’s more their spouting what they heard on Fox News or they just want a fight, then I won’t bother. Like this guy at a wedding once wanted to fight about Guantanamo, so I just went out and had a cigarette. I quite enjoy my friends who have nothing to do with my job.  They are receptive and interested, but their work and their lives and completely different, and I think it’s healthy.

One torture survivor, an incredibly intelligent guy, has been asking all the people that have helped him down the line how they got involved in these kinds of things and why they do it. He told me that no one really feels like they’re a missionary – like they’re doing anything extraordinary; they just feel like this is something they have to do and they do it. It’s not like I have this big cloud of sunshine pour on me.

Recently all this ‘war against terrorism’ business has come into conflict with the human rights world.  ‘Do-gooders’ are portrayed as the naive, unrealistic type that has completely lost touch with reality when it comes to fighting the problems that really matter, and in the media – or by those with agendas it’s now like there are polar opposites, a black and white debate. You need to realize that there are other valid points of view.

At Redress I like that we’re using the law. I don’t think we can change politics because it shifts according to the interests of others. One day it may be closer to us, but it can move away just as fast. I don’t see that we’ve made such an impact on advocacy to affect policy – I see more that we force things through certain pieces of litigation that then force responses, and have forced governments to be responsible for this and that. Obviously there are many other groups that have influenced public opinion, but in terms of what we as a small organization can achieve, it’s different.

Carla Ferstman is the director of Redress (www.redress.org) and was interviewed by Journalist Jo Baker.

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Raising the Bar

May 18, 2008, South China Morning Post, Hong Kong

Jo Baker meets a lawyer who backed Pakistan’s rebel judiciary, and lost more than his freedom

People have given up all kinds of things for their country, but Pakistani lawyer Muneer Malik’s forfeit was both brutal and peculiar. The more predictable sacrifices had already been made – his family were harassed, his colleagues beaten and his freedom temporarily taken away – but in solitary confinement in Pakistan’s notorious Attock Fort last November, Malik’s jailers chose to deprive him of one more thing: working kidneys. Who exactly was behind his poisoning, whether it was deliberate and whether, as some people believe, it was a murder attempt, has yet to come to light.

Earlier that year the Pakistan courts had been in disarray. Cases for ‘disappeared’ persons were piling up, corruption scandals were rife and Supreme Court judges were growing uncomfortably close to the cabinet of General Pervez Musharraf. It was unhappiness that led Malik to leave his practice in 2006, and run for president of the Supreme Court Bar Association.

“I thought that those were going to be defining years in terms of the democratic struggle in Pakistan,” he remembers, sitting in an office at the Hong Kong-based Asia Human Rights Commission this week, his hands gently folded in his lap and a slight American twang to his accent. He was in Hong Kong to pick up the commission’s third Human Rights Defender award. “Musharraf had made a set of rules that were tailor-made to advance the interests of the elite. It was time to for the Bar to reassert its independence and take up a pro-people stance on these issues. With someone like my predecessor [Malik Mohammad Qayyum] in the role – well – I wasn’t confident that would happen.”

Little did he know just how definitive the next year would prove. Not long into the lawyer’s new post, Musharraf summoned the nation’s Chief Justice, Iftekhar Mohammad Chaudhry – a proud, unpopular man with a penchant for pomp – and fired him. The two had worked closely in the past, but some of the judge’s recent rulings had ruffled the wrong feathers. Chaudhry, however, refused to go.  Malik and the other lawyers had often been at loggerheads with the Chief Justice, but at that moment, he says, the situation rose above character flaws. “There were these telling images on television,” says Malik, “The General in uniform, admonishing the Chief Justice in full court dress; the moment I saw those I knew that this was an assault on the judiciary, and whether I liked [Chaudhry] or not we had to take a very firm stance. History has had it that you can’t stand up against Generals in Pakistan – they will tighten the screws on you – but he did.”

The nation had paid little attention the last time Pakistan’s judges had been cowed by Musharraff, but with democracy sputtering out so visibly, Malik sensed a change. He was the first to get through to the Chief Justice under house arrest, by tracking down his wife’s cell phone number. “I told him to stay firm and that we would back him to the hilt,” he says. With the support of his bar colleagues, Malik shadowed Chaudhry’s court proceedings, calling press conferences at each step.

The following four months saw boycotts, protests and hunger strikes radiating out from high court houses across the country. Waves of suit-clad lawyers in somber ties would hit the baking tarmac for hours on end; non-essential court proceedings were stopped. “Hunger strikes were one weapon we could use effectively,” remembers Malik.  “We had two people in every Bar Association across Pakistan striking all day, every day. The object was to give as much as we could to the media, so that the people of Pakistan could understand what we were doing and why”. As more civilians joined the protests, Chaudhry fast became a symbol of Pakistan’s potential reform, and an empowered public began to take on the fight as its own.

Malik has vivid memories of the crackdowns; his house was peppered with gun fire one evening, his daughter narrowly escaping harm, and aggression on the streets would come from both uniformed police and military intelligence goons dressed as lawyers. Two lawyers were shot in Karachi. Malik and his peers survived a timed explosion set to greet them in Islamabad. Protests continued to ricochet across the country.

“You always hear of protestors attacking the police with bricks and stones, but this time it would be the police, with tear gas, baton charges, throwing rocks and bricks at protestors,” says Malik. “In one evening torch-lit procession, in one city in Punjab, the police came with small canisters – petrol.  They doused protestors. To this day there are lawyers scarred all over their faces. I happened to meet someone four months after, and his entire left arm reminded me of leprosy: the way his skin was, the burns and scars.”  But progress was being made. At the end of one 25-hour procession to the Lahore High Court, Malik remembers meeting judges who had waited for them all night, sleeping on mats in their chambers. One told him that the movement had finally given them the courage to step up.

At that point Malik wasn’t a total stranger to political protest. The student activism scene at home was quashed in the eighties (and stayed that way until the coalition government formed last month), but  he has fond memories of joining anti-war protests through San Francisco, where he studied. “We were all, hey, hey LBJ, how many people have you killed today?” he remembers, chuckling. Returning to Pakistan, under its various dictatorships, Malik found rebellion a little less overt. “The situation had never sharpened so much so as to result in street agitation, but in our minds, in our writings… in the seminars we’d hold and attend – it was low key opposition to authoritarian rule,” he says.

In a landmark move that summer, after five months, Chief Justice Chaudhry was reinstated by his own colleagues and Malik stepped down that October in a jubilant climate; Musharraf was under increasingly hostile fire from the public and potentially fair elections were on the cards. The feeling didn’t last. He was mid-air a few days later when the State of Emergency was called, and arrested not long after landing in Islamabad. “The order said, ‘You are likely to make speeches which will be inflammatory and create disorder’,” he recalls. “It didn’t say I had done so!” Nevertheless a jail transfer landed him in an isolation cell measuring five by eight feet, with little other than a concrete slab, and a toilet. “It reminded me of a scene in Ben Hur,” he says, grimly. “The window had iron grills that were not netted, and I had no blanket, so at night I lost sleep because of the mosquitoes and the shivering cold.  Food I received through slits in the door.”

This too is where the much disputed incident took place that saw Malik in a government hospital, fighting for his life after nearly a month in jail. Weak from a hunger strike and suffering various aches and pains, he asked for and was given pain relief, then sleeping pills. Then all he can remember are hazy, disjointed scenes of an ambulance and hospitals, as his kidneys shut down. He suffered chronic renal failure for which he still takes medication.

“Calling it a deliberate attempt on my life would be jumping the gun because I have no evidence, but they might have been trying to teach me a lesson, to break my will,” he concurs.  “My conditions were such that the medications that I received would have caused my kidneys to fail, in shock… It was text book.”

The experience fortified him. “Having come so close to kicking the bucket, the only way to go was up,” he notes wryly.  But others, he says, underwent more dramatic changes over the year. Chief Justice Chaudhry, who would once expect motorcades, 21 gun salutes and ‘would be miffed, personally, if an army lieutenant general would be driving a Mercedes and here he was in a Corolla’ has done a 180. “He’s been through the test of fire,” says Malik. “I think what he’s been through, with the way people have flocked, despite failings of his character, standing in line for hours under blazing sun waiting for him – he cannot be but a changed man. He knows now he was on the wrong side of the fence.”  And, having met the newest wave of political leaders, Malik has been pleasantly surprised with Nawaz Sharif, who just this week pulled out from his party’s hard-fought place in the coalition government to protest the delay in reinstating judges who resisted during the emergency.

Now for Malik it’s another day, another award. Picking up his Defender prize, for himself and his SCBA successor Chaudhry Aitzaz Ahsan, before a flight to Korea to accept the 2008 Gwangju Prize for Human Rights, Malik dedicated it to Pakistan’s low-paid younger lawyers, who he believes suffered the most hardship during the strike. “The backbone of this struggle has been the ones who still don’t have a vested interest in the system, who look forward to its reform – to honest independent fearless service. The expectations of the public have been changed, because of them,” he says. “I remember that bumper sticker that used to be on cars in America during the Vietnam War: ‘What if they gave a war and nobody came?’ Well if I’d given the call and they weren’t there to back me, then where would we be?”

 

 

 

 

 

 

 

 

 

 

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Hope for Sri Lanka’s child victims

January 1, 2009, Guardian Weekly, UK


Torture has become a familiar feature of criminal investigations in Sri Lanka, where children as young as seven have experienced abuse under interrogation. At a small human rights unit in Kandy city, a Catholic priest has created a vital support system for the victims of police brutality. Father Nandana Manatunga relates the – often tragic – cases he has tried to help with.

Our torture act passed 1994, but until about 2000 there was not a single case filed against anybody for torture in Sri Lanka. I opened my human rights office five years ago and since then we have cared for about 22 victims – most of them children, ranging from seven years to 20. Many of them were quite young when they came to us, and now some are young adults. Cases here take years.

The torture is mostly done by the police or the armed forces. Victims are often too scared to fight back, but now a lot of them are trying to – they want to do something and the legal procedure is their only way of taking revenge.

One boy I know was 16 when he was accused of stealing a water pump. He was kept for one week and beaten continuously. They hung him from the ceiling with his arms behind his back, which damaged his nerves. Now he can’t use one of his arms. Lalith, 17, was beaten in police custody for three days. He was unconscious for a week afterwards. They were actually looking for another Lalith who was supposed to have stolen a gold chain.

The police have their own methods of interrogation: they assault you and dunk you again and again in cold water. They also put books on your head and bash. They use torture because there isn’t a proper investigation system; their current procedure is to bring someone in for questioning and beat them until they confess.

Most of the victims of this abuse die with their stories; they don’t want to fight the police and they don’t want to go through the difficult legal proceedings. I run a refuge for these children, with the aim of empowering them and giving them the courage and moral support they need to break their silence. We give them other things they need, like security, protection, legal aid, medical care and counselling.

It was when one torture victim, Gerald Perera, was shot dead in 2004 that we realised the children needed somewhere to hide. There is no state witness protection system, which means the perpetrators are free to hunt down their victim again, especially if they are having to go to court. We started placing the children in convents, where they would be able to go to school. Children who are at particular risk come and stay with me. I often have a full table at breakfast.

Most of the children can go home if they want to, but there are some we don’t want to send back. One girl didn’t go home for three years; she went back just once and the same boy who raped her abducted her again. It took us two months to find her. Sudath, another torture victim, was shot dead. He was with me for three weeks, and now I am hiding his wife and two children. I am so full of regret that I allowed him to go home and be killed.

Right now we have four torture cases on trial and more than eight rape cases. Some have been going on since 2001. One part of the trial will be now and the next part in six months. If you could see how the victims are questioned… it’s really hard. Rita, a girl who was raped, had to appear in the magistrate’s court 21 times over two years; it was only six years later that the case made it to high court. On the very first day – she was in grade 10 at the time – the lawyer for the accused said that she was a prostitute.

The children have to repeat their stories several times, but as the years pass they forget the details. Even Lalith forgets certain things and I have to remind him – “this and this happened to you”. Their trauma counsellor might make some progress, but then be right back at the beginning again.

In October the verdict came through on Lalith’s case. The accused police officer was acquitted and released. We have looked after Lalith since 2002; I saw him when he was discharged from hospital after being tortured. Now I ask God where justice is, and why this poor boy was treated like this. I have fears about the future and what will happen in the other children’s cases.

When a case begins in high court, the accused policeman is suspended from work. Without his uniform and his gun he feels like a nobody, and then he becomes very dangerous, especially if he thinks he might go to jail anyway. The children have been chased and threatened, and in May an attempt was made on Lalith’s life.

We’ve now learned to go to every court proceeding in numbers. There are 25 or so prominent people – lawyers and doctors – who meet with us every month and arrange to escort the kids to their various court appearances in groups. Some trips take us right across the country, but these men help to keep us safe.

Do I wish life was easier? No. I get spiritual support in church, and I meditate. I get a lot of joy from working with my parish. The community children come and play from about 6pm to 8:30pm every day and I always join in because it’s a kind of recreation for me too.

My main challenge is to sustain our young fighters. Just getting these policemen and perpetrators suspended is a victory for all of us, even if we’re not sure of the final judgment. Systematic torture has been going on in Sri Lanka for a long time, but people never knew they could take action against the system. Now there’s a kind of awareness, and activism is growing. As a priest, I call it the spirituality of human rights.

• Father Nandana Manatunga was speaking to Jo Baker.

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Election pledges a matter of life or death for inmates

October 22, 2008, South China Morning Post, Hong Kong

There will be little sleep tonight for the inmates of Adiala jail’s death cells, but though the rooms in Pakistan’s notorious northern prison are concrete, cold and small –they measure about eight by five feet – discomfort is currently a side issue. This is because for the first time in years the men and women on Pakistan’s death rows have been given some hope about their futures.

On 25 August a letter reached a Pakistan news agency from the prisoners at Adiala. It warmly congratulated the new President on his appointment and it carried the reminder of a promise. “You had spoken on the floor of National Assembly that our government wants to commute death sentences,” they wrote to President Zardari, and to Prime Minister Gilani. “We are now alive since then … Please, once again look in to our matter.”

The reminder was badly needed. On June 21 Yusuf Gilani announced that, in tribute to its assassinated leader, Benazir Bhutto, the new ruling party would like to commute the country’s 7,000 or so death sentences into life imprisonment. But four months on, says the Asian Human Rights Commission (AHRC), four people have already been hung. “We are being crushed by the system like a turnip,” wrote the prisoners. “There are so many innocent people in the jails of Pakistan… [but] no stay orders have been granted to those who are being hanged in the near future.”

For Pakistan’s reformers, who had seen this as a step towards abolition, Zardari’s promise has started to look empty, but the Pakistan People’s Party (PPP) insists that it was for real. On October 15 a law minister announced that a summary had been sent by the cabinet to the President’s office, where it now awaits his signature. Pakistan annually executes the most people in the world after China, Iran and Saudi Arabia, and is one of just five countries that will still hang juveniles. The coming weeks, say insiders, could be crucial to more than just 7,000 lives.

This isn’t the first time the death penalty has been fought in Pakistan. In the seventies Prime Minister Zulfiqar Ali Bhutto turned all death sentences to life imprisonment, before being hung himself in a coup, and fifteen years later his daughter Benazir kept all but a handful of those sentenced from the gallows while she was Prime Minister. This year the federal cabinet again made steps to commute death sentences, but caved under political and religious pressure from the right wing.

The Bhuttos, like many who have supported reform in Pakistan, believed that until a country can offer a fair trial, it should not risk having a death penalty. “There is corruption and disorganization all through the police and the judiciary in Pakistan,” says the AHRC’s Baseer Naveed. “The rich and powerful can buy themselves out of trouble, and custodial torture is run of the mill. I think that many innocent people are hung.”  Supporters of the penalty point to the country’s relatively high violent crime rate and say that death is the only practical deterrent.

When the Pakistan republic was first formed in 1947 only two crimes could be met with a death sentence – murder and treason; there are now more than twenty. The list runs from drug offences and rape to the more ambiguous, like extra-marital sex and blasphemy. The only possible sentence for blaspheming is execution, and the law keeps Pakistan’s death cells  well stocked, largely with minority peoples such as Christians, Hindus and Ahmadi sect members, many of them at the losing end of a personal vendetta or property dispute.

Zardari’s camp has suggested that an announcement on the 7,000, and even on abolition, could come at any time. “I’m sure they will do it,” says Nasir Aslan Zahid, former Chief Justice of the Sindh High Court. “This time they have got a chance. It has been 12 years since Benazir Bhutto’s government and this time they have control with the presidency, so they can easily implement her decision.”

Others look to the country’s many conservative MPs, its powerful mullahs and the lack of action so far and conclude that Zardari doesn’t have the resolve. “It was an exuberance. They don’t have the political will,” says lawyer Muneer Malik, who spent time in Adiala’s death cells himself last year after he ran protests for an independent judiciary. “It was just pandering to a particular lobby, putting up a liberal face before the European Union, which there’s pressure from. Otherwise the bill would already be in parliament.” And for the condemned inmates? “Right now their chances look pretty bleak,” Malik concludes.

Earlier this year the AHRC reported on the case of Zulfiqar Ali, a man on Adiala’s death row who had been convicted of murder but was not able to afford a lawyer; he had tried to construct his own defense even though he can’t speak English. His brother, Abdul Qayum, remembers his family’s reactions when they heard of Zardari’s announcement. “I was jumping on my feet, not on the earth or in the sky,” he remembers. “Where I was, I don’t know! His daughters were also jumping around in the street. When I told Zulfiqar he couldn’t speak for minutes”.

Nevertheless on 2nd October Qayum was summoned to a guard’s house in Lahore and showed the black warrant. “I felt like I was going deep into the earth, I couldn’t talk or say anything,” he says. “Then I collected my senses and I went to tell the rest of the family.”

Thanks to last ditch campaigning Ali got a last minute stay of 15 days. Under Islamic sharia law a murderer can be pardoned by a victim’s relatives, usually after a blood money payment called diyat, and the courts will often urge family members to resolve matters on the side; it’s what human rights NGOs call the ‘privatisation of justice’ and tends to give the wealthy a certain criminal freedom.  However worse, say such groups, is that many death penalties are given because judges assume a settlement will be found. Ali’s family are poor and he has been in prison for ten years. If diyat can’t be arranged this time around, his execution will take place this week.

The world will be watching Pakistan’s new president over the coming month. Politicians make many promises around election time which, as everyone knows, may not be kept. But the promise of life to 7,000 – some criminals, some not – would be a cruel and unusual ploy. “Our eyes are towards you,” wrote the prisoners in August. “Please accomplish your objectives as soon as possible, because time is short and we are on the Verge of Death.”

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Losing Ground

October 7, 2008, South China Morning Post, Hong Kong,

150,000 Cambodians are at risk of eviction from their homes as developers exploit a corrupt system which fails to protect property rights [PDF: SCMP land grab]

Losing Ground

In June 1975 waves of black-clad guerilla fighters entered Phnom Penh and emptied it – by persuasion, coercion and violence – in just a few days. The Khmer Rouge north had beaten the south, and as a first step, more than two million bewildered people were banished from the city and sent to live in the countryside. Today, facing the prospect of its first skyscraper, a rash of Special Economic Zones and numerous foreign-backed developments, Cambodia is boasting of a new era. Yet some things haven’t changed.

“See that tree?” asks Son Chhay, a bespectacled Cambodian minister, as we stand on the steps of the new national assembly building and look south. “Behind that there’s a company, 7NG Group, that’s trying to move 600 families more than 20km away. They’re literally building around them now, cutting off their entrances and exits. They have gangsters. A few of us have already had to physically step in in their defense.”

An opposition MP and a notorious thorn in the side of the ruling Cambodian People’s Party, Son Chhay has been fighting land-grabbing since at least 2000, when he found out that a piece of property he’d owned for five years was being eyed by developers; it was just outside of Siem Reap and he had planned to turn it into an agricultural training centre. After a convenient declaration was issued by the Council of Ministers, earmarking the area for a ‘hotel development’ zone, Son Chhay, along with 150 families had been told that if he moved out quietly, he would get a decent rate for the property.

“Cambodian property laws state that if the government buys private land they should be using it for the public interest, and they must pay the market price,” Son Chhay stressed. “If it was for schools or a road it would be different, but hotels? Why do we need them to build hotels when we Cambodians can do that?”

The families were offered between US$0.3 to US$2 per square metre, and Son Chhay himself was offered fifty cents. His land back then, he says was easily worth US$50 per sq metre, and now, having passed from the government-appointed Apsara Foundation to the Sokha Hotel Resort company and morphing into the luxury Angkor Resort Hotel, it’s easily worth twenty times that. After a messy, protracted fight, a third of the families managed to walk away with a figure slightly better than the original offer.

Many in Cambodia have been far less lucky. Following a violent eviction from Sambok Chap in Phnom Penh nearly a thousand families were dropped off at a field 22km from the city, with no shelter, electricity or running water – except for frequent ankle-deep floods. Now, two years later they still live in damp squalor. Other eviction victims have simply had to move on to the streets.

Perhaps more alarming is the dwindling democratic space left for Cambodians to protest in. While the government insists that Cambodia is a credible business environment, reports are on the rise of arbitrary arrests and beatings, residents being forced from their homes, and of property burned or confiscated. In Kampot province this June, eyewitnesses described a standoff between approximately 30 villagers and 100 military police; men and women were beaten unconscious and four were charged with stealing and willful damage to property (the result, say NGO reports, of a policeman’s mobile phone being grabbed, and land allotment signposts being pulled out from the ground).

In 2005 five people were shot dead during a forced eviction, as were two last November in Preah Vihear province, including the wife of a community representative. Those responsible are rarely charged. Ties remain uncomfortably tight between the ruling party and the tycoons that support it financially; it has been noted by the Asian Legal Rights Commission (ALRC) that 99% of judges in the country’s fledgling court system belong to the CPP.

Cambodia was one item on the agenda at the Human Rights Council’s Ninth session in Geneva last month and forced eviction topped many delegates’ list of concerns. “Land-grabbing is rife,” said the ALRC’s representative Michael Anthony, in his address. “In 2007 it affected more than 5,000 families who were forcibly evicted from their homes and land without just compensation. An estimated 150,000 Cambodians are currently at risk.”

The problem, says Dr Lao Mong Hay, former head of the Khmer Institute for Democracy, is how little organization there is in land ownership. After the war and Pol Pot’s four year course in intense and very bloody agrarian communism, those who had survived were given small plots of land to live from, but no title deeds. Sponsored attempts have been made to organize the land over the years but these, as Dr Lao discovered, come at a cost. “It was supposed to be free,” he says, when he went to register his own plot three years ago, “but at every step of the way, from the land officers to the registry office, a small bribe was needed, $10 here, then another $20, another $20. Then, to legalise the process it cost $70! The average Cambodian does not have that money.”

Villagers in rural areas are particularly vulnerable; whether along the south coast where the beaches are lucratively white and property has gone from $50 to $200 per square metre in the past year, or in remote rural areas, where space is snatched for logging and rubber plantations. In some cases businessmen have simply hired workmen to clear swathes of forestry land and threaten park rangers into submission. Few rural Cambodians know that they need to officially lay claim to their land and even if they did, the process is fraught with obstacles.

In Siem Reap – Cambodia’s second poorest province – an arm of the Cambodian NGO, LICADHO, tries to safeguard the rights of local farmers and residents through workshops. “They don’t really know their rights, so not many do complain,” says Sar Vannara, one of the four men in the small office, found along a dirt road near Angkor.  It’s a big job – the province has close to a million people – and it’s not the safest of vocations. When asked if they’d been threatened over the years, the group broke into gales of laughter. “Of course!” said one, on his recovery. “We are here opposing the government.”

In 2004, shortly before his re-election, Prime Minister Hun Sen declared war on land-grabbers, identifying many in his own party. Several high profile officials, including an army major, tycoons and provincial governors, were arrested or fined, and forced to return thousands of hectares of land. But little is being done to educated Cambodians on their land rights and since Hun Sen’s re-election arrests have dwindled and land continues to be cleared. “He acts as a safety valve,” says Dr Lao. “When the pressure gets too strong he’ll step in. It’s not consistent.”

According to the Centre on Housing Rights and Evictions (COHRE) at least 70,000 people are still at risk of eviction in Phnom Penh alone, most in the government’s battle against ‘squatters’; many Cambodians have lived in the same ramshackle dwellings since the end of the war, and as Phnom Penh’s fortunes rise, they are less welcome.

Boeng Kak lake, in the north of the city, is one example. Last month bulldozers started to work among its stilted waterside houses, home to about 4,000 families, after the government leased the property to a private developer for 99 years.  The lake is to be filled in and turned into a tourism destination. Residents say they have been told little about what will become of their homes and businesses if this happens. Land laws in Cambodia state that in order for state public property to be leased it should be for a maximum of 15 years, and must keep its original function.

“If the government wishes to develop Boueng Kok Lake they should do so through a legal process,” says Dan Nicholson, Coordinator at COHRE. “The question is not just whether the level of compensation is adequate once people are forced off their land – it’s whether an eviction is justified in the first place.” Should this continue, both COHRE and Amnesty International warn that it could be the beginning of the biggest forced eviction since the Khmer Rouge lost power.

For things to change, says Dr Lao, land laws need to be respected. “Hun Sen needs to do more,” he says. “He should end the practice of using executive orders to adjudicate land disputes, and should instead utilize the due process of law. He should also cease his control of the courts of law, clean up their corruption, provide them with adequate resources and respect their judgments.”

Foreign investors, too, can make a difference, say the group at Licadho. They should ask more questions about where the land is coming from, and ask for proof that the original land owners were willing to sell.

But as Cambodia’s development continues to boom and little of the profit trickles down to Cambodians – the ones stuck in makeshift shelters on remote plots of land, or who wake each morning at home to the sound of encroaching bulldozers – Hun Sen may find it harder to ease the pressure indefinitely. “No one can rule forever,” says Son Chhay. “I have to be optimistic. Sooner or later the people will make decisions about the society they want, they will decide enough is enough. Then they will move to the streets.”

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Courage under Fire

July 7, 2008, South China Morning Post, Hong Kong

A Catholic priest is helping to give hope to young human rights victims

With a rakish side parting and a smile behind his eyes, it’s hard to imagine Father Nandana Manatunga at work, not because his job involves kids – for that he seems well suited – but because of the situations his wards come to him in. Dancing eyes seem at odds with the grim task of torture rehabilitation.

The small island nation off the coast of India often hits the news for the long-waged and bloody war between its government and the Tamil Tiger separatists, but there are domestic issues that affect the populace even more deeply. Father Nandana runs the Kandy Human Rights Office, a young, independent organisation in Kandy, Sri Lanka that takes care of child victims of police brutality and sexual abuse, and helps them and their families take their cases through the courts. His story brings to light a collapsing legal system and a police force that, like many in Asia, inspires fear more than trust.

In 2001 the then-40-year-old priest was working as director of SETIK, a 15-person development and social justice agency of the Catholic Diocese in the central highland city of Kandy, when he met Rita, a 17 year old girl who had been raped by two men in her village. The men were prominent in the community and neither the victim nor her parents expected to receive help locally; in fact they were already being snubbed in the neighbourhood and at the girl’s school. Later, although Father Nandana was transferred from SETIK, more cases came to his attention: an 18-year-old boy arrested for stealing and beaten so severely in custody that he was unconscious for a week, another boy, 17 years old, who lost the use of one of his arms after being hung from the ceiling. These in themselves weren’t unusual, but each teenager had decided that if they could, they would take their abusers to court. This was much less common, and it’s where Father Nandana became involved. “Our torture act passed in 1994 but until about 2000 there was not a single case filed against anybody for torture,” he said, in an office at Hong Kong’s Asian Human Rights Commission,  a supporting organisation. “The idea was to activate the law.”

Since torture is routinely inflicted by the police or the armed forces in Sri Lanka, says the priest, and has been for decades, anyone planning to go up against either needs support and good security; the country has no witness protection program. In 2004 Gerald Perera , one prosecuting torture victim, was shot in public before he could testify in a criminal case, and Sri Lanka’s list of ‘disappeared’ persons runs into the hundreds. In the past the only safe way to deal with abuses was to stay quiet.  “Most of the victims die [naturally] with their story. They don’t want to fight the police and they don’t want to follow this tedious legal procedure,” says Father Nandana, his hands clasped, voice quiet. “What we want to do is empower these children, give them courage and moral support to break the silence.”

It has been a steep learning curve for the priest, who had worked with youths and for missing persons before, but had done little on the legal side. “When Rita’s case was brought to our attention, we didn’t really know what to do,” he said. “When the two perpetrators were arrested we held a public protest rally near the place, 250 people came and marched against the police’s lack of action. Then we had a postcard campaign. A month after Rita’s [case] a young girl was raped by eight people and murdered, and then support came from schools.”  Finally the then- President Chandrika Kumaratunga appointed a committee to investigate – a victory in and of itself.

As Father Nandana worked with the victims, he was reassigned a number of times by the Bishop, but the cases had a hold on him, and he was given permission to continue the work alongside his liturgical jobs. He set up a human rights media centre, then the independent Kandy Human Rights Office, which with six staff and a handful of volunteers, runs separately from his parish.  Unique for its mix of refuge and legal aid, the office and now helps 22 minors of all faiths from around the country and gives weekly counsel to other victims of the system.

Rather than set up a shelter, Father Nandana decided to place his wards discreetly in boarding schools or in the local convent, though some, if he feels they are in danger, lodge with him. His small team then rallies the medical, legal and psychological support needed to see their cases through the courts. The toll, however, can be high: the country has been under a state of emergency since 2005 and cases tend to last for years.

“Now we have four cases on trial for torture and about four or five rape cases, but no verdict yet,” Father Nandana explained.  “Rita’s case in the Magistrate’s Court was 21 days spread over two years, and only this year, six years later, has it come up in High Court. On the very first day – she was in grade ten – the lawyer for the accused said, she’s a prostitute; so immediately she lost all her energy.”

“It’s hard to see how they are questioned. They have to repeat their story so many times and after six years children forget, especially the details. Even Lalit [the boy beaten into unconsciousness] forgets certain things and I have to tell him, this and this happened to you.”

For the trauma counselor at the Office it’s a Sisyphean task, for whenever she manages to make progress with one of the teenagers, a court date will arrive and the memories need to be dredged back up. Occasionally one will give in. “Our biggest challenge is to sustain them” the Father said. “There was one, a girl who said that she can’t go through with it anymore and decided to go home. But at this point you can’t stop proceedings, and she may still be called back: sometimes they don’t understand that the legal procedure is not only you.”  Others react differently:  one young girl told Father Nandana that she wants to become a police officer – but not to help change the system. He gives a weary smile. “Right. She says that when you become a police officer you get a gun. Then you can shoot anybody you want.”

The role incorporates some personal danger. Those indicted on torture charges are suspended from their jobs, and many, the Father says, feel they have little to lose. The Office’s team has been followed and harassed in towns across Sri Lanka, sometimes openly by police. Father Nandana has managed to recruit a pool of around twenty five high profile friends such as lawyers and doctors, and they take turns to escort the victims on court days, sometimes on journeys that take a day or more.

This show of support is significant. As human rights education increases in the country an awareness is growing that things can be done differently, and that police brutality shouldn’t be run of the mill. In Kandy the families of Rita and Lalit, both led by their grandfathers and both very poor, had refused side settlements and insisted on following through with the case. By doing so they have displayed a new and unusual hope in the system. Last year Torture Victims day, June 26th, saw a rally held in Colombo, Sri Lanka’s capital, and unprecedented public talks organised involving lawyers, activists and civil servants.  The day this year was marked on a larger scale, with forums, street campaigns and people’s tribunals in Sri Lanka’s larger cities.

President Mahinda Rajapaksa, under external pressure has been making reluctant progress, though his efforts have been widely criticized abroad, by the Human Rights Commissions and notables such as Desmond Tutu. (Mistrust of Rajapaksa’s commission of inquiry led him to invite a group of international observers in 2007, and they resigned earlier this year.) Sri Lanka lost its place on the UN Human Rights Council in May, an organisation it has been a part of since its foundation.

But although none of Father Nandana’s cases have yet hit a verdict, he remains characteristically optimistic, and he has little time for despondency anyway: there’s a parish to run and 750 families to counsel, lodgers to care for, victims to advise, plus he has a program in local prisons and court dates set across the country. “I am very happy to see to our survivors living a normal life and fighting for justice,” he said. “Torture has taken place here for a long time, but only now is there a kind of awareness that something can be done. I believe it’s a calling to be a Human Rights activist… the spirituality of Human Rights I could call it.”

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