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UPR: The experience of indigenous peoples of Asia

Asian Indigenous and Tribal Peoples Network (AITPN) has been in the forefront of making Asian indigenous peoples' submissions for inclusion into the 10 page summary of the OHCHR under the Universal Periodic Review of the Human Rights Council. The first session of the UPR was held in April 2008. AITPN has made a joint -submission on India in partnership with International Work Group on Indigenous Affairs and independent submissions on Indonesia and the Philippines. AITPN highlighted several issues concerning the indigenous peoples. The examination under the UPR has been far from satisfactory as the proceedings indicate.

1. India: No democracy for those living on the margins, November 2007

“India: No democracy for those living on the margins” was prepared by AITPN and endorsed by International Work Group for Indigenous Affairs (IWGIA) of Denmark. It was submitted as a stakeholders’ submission under the Universal Periodic Review of the Human Rights Council which examined India’s commitment on human rights in April 2008.

The report - “India: No democracy for those living on the margins”- highlighted the situation of indigenous peoples, assessed India’s human rights obligations and commitments; situation of indigenous peoples on the ground especially land alienation; development and victimization of the tribals; failure to implement Forest Rights Act, 2006; armed conflicts and human rights violations; discrimination against indigenous IDPs; status of particularly vulnerable tribal groups; status of the socalled denotified criminal tribes; nonimplementation of the reservations in employment; Tribal Sub Plan and misuse of funds; failure of the National Commission for Scheduled Tribes and non-implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, among others.

OHCHR's Summary of the Stakeholders

The Office of the United Nations High Commissioner for Human Rights (OHCHR) prepared a 10 page summary (A/HRC/WG.6/1/IND/3) based on the 37 submissions made by the stakeholders. The following issues highlighted by AITPN and IGWIA were incorporated in the stakeholders’ summary of the OHCHR:

The Asian Indigenous & Tribal Peoples Network (AITPN) and the International Working Group on Indigenous Affairs (IWGIA) highlighted that India has not ratified the ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. AITPN and IWGIA added that many of the Particularly Vulnerable Tribal Groups are on the verge of extinction. According to the Ministry of Home Affairs, quoted by AITPN and IWGIA, 21 out of 28 States are afflicted by armed conflict and the majority of these States are afflicted by Naxalite (Maoist) conflicts. AITPN and IWGIA noted that all the areas afflicted by internal armed conflicts, except Jammu and Kashmir are predominantly inhabited by indigenous and tribal peoples, who constitute over 40% of conflict-induced IDPs in India and suffer serious human rights violations from both the security forces and the armed opposition groups.”

The report of the government of India

The report of the government of India (A/HRC/WG.6/1/IND/1) under the UPR of the Human Rights Council among others highlighted that the Constitution of India has several special provisions relevant to its varied tribal population such as the Fifth Schedule and Sixth Schedule; adoption of the Tribal Sub Plan (TSP); adoption of a separate Ministry of Tribal Affairs in 1999; establishment of the National Level Tribal Development Finance Corporation; creation of National Commissions such as the National Commission for the Scheduled Tribes, the National Commission for Denotified, Nomadic & Semi-nomadic Tribes, and State Commission for Scheduled Tribes; Affirmative Action Programme such as reservation of appointments or posts; and enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

Interactive dialogue with the State under review

The summary of OHCHR on the 37 stakeholders’ submissions helped the member States to raise a number of issues made in the statements during the interactive dialogue with the State under review. Some of the statements made by member States are given below.

The United Kingdom and Germany asked for additional information on the steps and position of the Government to implement treaty body recommendations on the Armed Forces (Special Powers) Act of 1958 (AFSPA). Canada also asked for information on the measures/studies undertaken to repeal or reform the AFSPA.

Malaysia and Luxembourg asked for additional information on the implementation of the recommendations of national commissions including Scheduled Tribes Commission. France asked for information on what means were available to and what analysis might be drawn from the work of the National Human Rights Commission of India and the National Commissions dealing with Women, Minorities, Scheduled Castes and Scheduled Tribes. South Africa asked for further information on the functioning and results pertaining to the national commissions created to deal with minorities and vulnerable groups.

The Republic of Korea asked for further elaboration on plans to promote and protect indigenous and tribal peoples’ rights in newly industrialized zones. Azerbaijan asked India to elaborate on the difficulties experienced by Scheduled Castes and Tribes in terms of their human rights and what national plans exist on Internally Displaced Persons and what access is given to international humanitarian organizations to internal displacement affected regions. Italy asked for additional information on human rights education relating to traditional practices and customs and scheduled castes and tribes.

The government of India accepted some of the recommendations. These included (a) Continue energizing existing mechanisms to enhance the addressing of human rights challenges (Ghana); (b) Share best practices in the promotion and protection of human rights taking into account the multi-religious, multi-cultural and multi-ethnic nature of Indian society (Mauritius); among others.

Responses by the Indian Delegation

In paragraph 47 of the report of the Working Group on the UPR, the Indian delegation with regard to questions on the Armed Forces (Special Powers) Act, 1958 stated that “even though India is a country which has had to confront with terrorism for well over two decades, its laws, including the special laws enacted in this context, have always had clear elements of administrative as well as judicial reviews. It is well settled in Indian jurisprudence that all legislation must conform to the basic structure of the Constitution and is subject to judicial review. The constitutionality of the Armed Forces (Special Powers) Act 1958 has been upheld by a Constitution Bench of the Supreme Court. Moreover, it is important to note that the Armed Forces of India are governed by provisions of their Acts, which also ensure that any violations are expeditiously dealt with. In so far as ensuring human rights even while being engaged in counter terrorism operations, special training and operating procedures are in place to guide the forces on the ground.”

Further in Paragraph 73, “India noted that Canada, as well as others, referred to the impunity for human rights violations under the Armed Forces Act which was incorrect. India stated that no forces, armed or police, function with impunity. Armed forces were under strict orders not to transgress human rights and the strictest action is taken, and incidents are swiftly adjudicated, including through courts-martial.”

In Paragraph 78, with regard to a question by the Republic of Korea on the displacement of tribal people from forest lands, India noted that “based on a Supreme Court decision, no land can be diverted from forest use, without prior approval and there can be no displacement unless there is a comprehensive proposal to resettle the tribes as part of the project. This had been the position in regard to implementation of mining projects in Orissa as well.”

2. Indonesia: Transmigration, human rights violations and impunity, November 2007

“Indonesia: Transmigration, human rights violations and impunity” was submitted to the Human Rights Council for examination of Indonesia’s commitment on human rights, particularly, with regard to indigenous peoples. Under the Universal Periodic Review mechanism of the UN Human Rights Council, Indonesia was examined in May 2008.

The report of AITPN highlighted the situation of indigenous peoples, assessed Indonesia’s human rights obligations and commitments; situation of indigenous peoples on the ground especially impunity as a key factor encouraging continued human rights violations; transmigration as the root cause of the conflicts, the West Papua imbroglio; negative impact of the proposed Kalimantan Border Oil Palm Mega-project; persecution of religious minorities; persecution of human rights defenders; nonrecognition of ulayat, customary, rights of the indigenous peoples; failure to amend the Criminal Code and failure to strengthen the National Human Rights Commission.

OHCHR's Summary of the Stakeholders

The Office of the United Nations High Commissioner for Human Rights (OHCHR) prepared a 10 page summary (A/HRC/WG.6/1/IDN/3) based on the 17 submissions made by the stakeholders. The followings were incorporated in the reports of the OHCHR:

The Asian Indigenous and Tribal People Network (AITPN) highlighted that impunity to the security forces continues to encourage widespread human rights violations. The judiciary failed to establish accountability with regard to the gross human rights violations in East Timor and the murder of prominent human rights defender Munir Said Thalib on 7 September 2004. AITPN added that religious freedom remains a critical issue not only because of the increased fundamentalism but also because of the preferential treatment given to the six officially recognized religions - Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. “Other non-recognised religions” face discrimination and restrictions. AITPN noted that Articles 18 and 28 of the Constitution of Indonesia of 1945 recognize “traditional communities” and their cultural identities and traditional rights, and the same were affirmed by Act No. 39 of 1999 on Human Rights. Yet a number of Acts failed to recognize the ulayat, customary rights, of indigenous peoples recognized under Article 3 and Article 5 of the Basic Agrarian law No. 5 of 1960. AITPN explained that serious conflicts following the fall of Soeharto regime in 1998 in Aceh, Papua, the Malukus, Central Sulawesi, and Central and West Kalimantan, among others displaced 1.3 million persons across the archipelago. These conflicts were often described as “civil unrest”, “separatist” and “inter-communal violence”. In reality, these conflicts took place between the transmigrasis - an estimated 3.6 million Javanese, Madurese and Balinese – who were planted on the lands of indigenous peoples across the islands.

The report of the government of Indonesia

The report of the government of Indonesia contained, among others, adoption of the National Action Plan on Human Rights to be renewed every five years which includes concrete measures to be undertaken by the Government for the promotion and protection of human rights, in accordance with cultural, religious and traditional values, and without discrimination as to race, religion, ethnicity and faction; Reviewing laws and regulations which are not in line with the spirit of the amended Constitution and human rights standards; creation of the national institutions such as National Human Rights Commission (KOMNAS HAM); violence against children; women’s rights; religious freedom and failure by followers of certain beliefs to register their marriages.

Interactive dialogue with the State under review

During the interactive dialogue delegation of the member States raised a number of issues with the State under review. Some of these included - (a) Belgium based on the stakeholders’ summary report stated the need to better guarantee the independence of Komnas-HAM, and to provide information on initiatives taken to implement the recommendations of treaty bodies and measures taken to strengthen the independence of the national institution. It also asked if legislative measures envisaged to allow Komnas-HAM to have immediate and unlimited access to police and detenton centres; (b) Saudi Arabia and the Islamic Republic of Iran asked for more information on the role that the Indonesian national human rights institutions such as Komnas-HAM play for the promotion and protection of human rights; (c) Pakistan asked about lessons learnt and good practices with regard to managing the transition to democracy in a multi-religious, multi-ethnic and multi-racial society; (d) Germany asked for information on provisions to end impunity and to guarantee effective prosecution of human rights violations. Germany further expressed concern on the human rights situation in Papua and asked about the measures Indonesia intends to take to address the situation in Papua. Germany also asked about the measures that can be taken by the authorities to protect human rights defenders who are threatened for their activities; (e) Canada, among others, asked information on how Indonesia will ensure that labelling of individuals as separatists especially in regions where recent or ongoing political tensions are manifest, such as Papua, is not used to suppress legitimate democratic activity by civil society, including peaceful public protests and criticism; (f) The United Kingdom asked information about the threats against Ahmadiyyah families following a fatwa banning the Ahmadiyyah and recommended further measures by Indonesia to address this issue; (g) The Netherlands asked how Indonesia will prevent discrimination against ethnic and other minorities; (h) The Republic of Korea asked if the Government has any concrete plan to strengthen measures to better protect the human rights of indigenous people, in particular in the process of exploitation of natural resources; (i) Brazil asked what concrete steps have been taken to promote independence of the judiciary and the administration of justice and about the main results achieved in the prosecution of those responsible for gross human rights violations in Timor Leste by the Indonesian Human Rights Courts; (j) France asked information on measures taken to investigate reported cases of intimidation and ill-treatment against human rights defenders and to bring those responsible to justice, among others.

Responses by the Indonesian Delegation

In Paragraph 33 of the Working Group on the UPR, the Indonesian delegation with regard to questions on the independence of the national institution, noted that it is an important partner for the Government, which benefits from its expertise on many issues. Its full independence is granted by the law No. 39/1999. It noted that other institutions in Indonesia have the same structure as the national institution, which does not diminish their independence. Thus, it reiterates its respect for the independence of the national institution.

In Paragraph 49, on the situation in Papua, Indonesia considers this question as one of support to Indonesia’ efforts to improve the welfare of Papuans and the people of Indonesia. A member of the delegation, who is a representative of the local government of Papua and a Papuan himself, noted that the development process in Papua is centred around the Papuans themselves. Economic and health assistance were provided and efforts are made to combat poverty and promote employment, and achievements are made with the participation of the people. He noted that in addressing the human rights violence in Papua, many capacitybuilding and other programmes have been implemented throughout the region, including training for the communities to understand their rights.

Indonesia has accepted most of the recommendations made by the member States. Some of these included the need to provide additional human rights training for military and law enforcement officials, including the police and local judges; to address human rights abuses as urgent issue of priority of the Government; to support and protect those engaged in defending human rights including at the provincial and local level as well as in regions with special autonomy; to continue its effort to combat impunity, among others.

3. The Philippines: All promises, No implementation, November 2007

“The Philippines: All promises, No implementation” was submitted to the Human Rights Council for examination of the Philippines’ record with regard to indigenous peoples under the Universal Periodic Review mechanism. The Office of the High Commissioner for Human Rights set the deadline of 20 November 2007 for submission by the stakeholders.

AITPN’s submission highlighted the situation of indigenous peoples, assessed Philippines’ human rights obligations and commitments; situation of indigenous peoples on the ground especially with regard to impunity for killing human rights defenders, journalists and judges; indigenous peoples as disproportionate victims of human rights violations; violations of the rights of women; violations of the rights of the child; violations of the rights of the prisoners; denial of political autonomy; analysis of the draconian Human Security Act of 2007; non implementation of the Indigenous Peoples Rights Act, 1997; and the failure of the National Commission of Human Rights of the Philippines.

OHCHR's Summary of the Stakeholders

The Office of the United Nations High Commissioner for Human Rights (OHCHR) prepared a 10 page summary (A/HRC/WG.6/1/ PHL/3) based on the 31 submissions made by the stakeholders. The followings were incorporated in the reports of the OHCHR:

The Asian Indigenous and Tribal People Network (AITPN) highlighted that most of the capacity building programmes are focused on the Commission on Human Rights of Philippines (CHRP), and it recommended that such programmes also be developed for the National Commission on Indigenous Peoples (NCIP), including for titling indigenous peoples’ lands. AITPN also noted that the Philippines has failed to extend a standing invitation to the Special Procedures. AITPN considered the policy of some schools dismissing unmarried female students (but not their male partner) if they got pregnant as being highly discriminatory against girls. AITPN added that extrajudicial killings and enforced disappearances remain endemic in the Philippines. AITPN quoted figures from the Alliance for the Advancement of People’s Rights (KARAPATAN) which claimed that from January 2001 to June 2007, a total of 885 people had been killed extra-judicially and 183 persons had disappeared. According to AITPN, most of the victims were affiliated with causeoriented groups, and included human rights activists, lawyers, journalists, church workers, leftist activists and leaders from indigenous communities. AITPN reported that between February 2001 and January 2007, 123 indigenous rights defenders were killed. AITPN noted that in the Autonomous Region of Muslim Mindanao 7% of the victims of extrajudicial killings from 2001 to 2007 were children. According to AITPN, more than 1,000 children in conflict with the law were languishing in sub human conditions in jails together with adult criminals. AITPN also noted that prison conditions remain deplorable due to overcrowding, sub-standard facilities and lack of basic facilities. Overcrowding resulted in spread of diseases such as tuberculosis and sanitation problems. AITPN noted that the provisions of the Code of Muslim Personal Laws permit the marriage of girls under 18 as well as polygamy. AITPN highlighted that while the Constitution recognizes the right of Muslims and indigenous peoples of Cordillera to self-determination in the form of autonomy, there has not been genuine autonomy for the Cordillera peoples, which according to the Unrepresented Nations and Peoples Organization (UNPO), constitute about 2 per cent of the population of the Philippines. AITPN added that the same applies with regard to the Moros in Mindanao.

Report of the government of the Philippines

The report of the government of the Philippines highlighted the rights of the indigenous peoples which are protected under the landmark Indigenous Peoples Rights Act (IPRA), which provides opportunities to exercise self-governance and to participate in determining economic development. Ancestral domains and ancestral lands are preserved and protected, and titled to indigenous cultural communities in accordance with their historical claims, with assistance to ensure that these lands are productive; Legal mechanism for the protection of indigenous peoples in the criminal justice system as well as the recognition of the diverse indigenous peoples’ justice systems and conflict resolution institutions which are based on traditional practices and serve as alternative dispute mechanisms under the IPRA; understaffed, underfinanced and under-equipped government offices which make it difficult in the investigative, judicial and human rights services; the need to better target and strategically design the social welfare programmes and projects to address the need of the poor and vulnerable groups including the IPs; the challenges faced by the IPs and overcoming them by key interventions, notably, the integration of Indigenous Knowledge, Systems and Practices (IKSPs) into the local and national development framework; utilization of existing IKSPs and Indigenous People leadership structures in government interventions; enhancement of cultural sensitivity and responsive interventions based from IP perspectives and worldview; and, heightened information, education and advocacy on the collective and individual rights of Indigenous Peoples; among others.

Interactive dialogue with the State under review

During the interactive dialogue delegations of the member States raised a number of issues with the State under review. Some of these included - (a) Turkey asked for additional details on the effectiveness of communitybased (Village Justice System) or traditional dispute resolution system; (b) France observed that cases of forced disappearances and extrajudicial killings, which mostly affect journalists and human rights defenders, are numerous and that the number of resolved cases remains low. It also asked what measures are taken to prevent recruitment and to assist the rehabilitation of children in armed movements. France also asked if the Government planned to increase the resources of the Commission on Human Rights; (c) Japan asked for further information on how the Government evaluates the effects of the measures taken so far, especially in view of facilitating investigations in extrajudicial killings; (d) The Republic of Korea asked for additional information on the promotion and protection of indigenous peoples in newly industrialized regions and remote regions; (e) The Russian Federation asked information on measures taken to protect the rights of indigenous peoples in the Philippines and the cooperation with NGOs representing indigenous peoples; (f) Canada expressed concern about the security forces and recommended that the Philippines ensure that members of the security forces are trained on human rights and on their responsibility to protect human rights and human rights defenders; (g) Slovenia recommended that the Philippines enable the visit by the Special Rapporteur on the promotion and protection of human rights as soon as possible; (h) Australia asked about the role of the national human rights institution in the promotion and protection of human rights; (h) Switzerland recommended that the Philippines intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible and the need to strengthen the witness protection programme. It also recommended that the Philippines address the root causes of this issue in the context of the appropriate reform of the judiciary and the security forces; (i) The United Kingdom stated that reporting obligations to treaty bodies are often delayed and implementation of treaty obligations remains a problem; among others.

Responses of the Philippines Delegation

In Paragraph 39 of the report of the Working Group on the UPR, on the issue of indigenous peoples, the Philippines informed that the Indigenous Peoples Rights Act (IPRA) adopted in 1997 has created the National Commission on Indigenous Peoples, which administers programmes for indigenous peoples and indigenous cultural communities. Traditional legal system is culture sensitive, accessible, preserves the dynamics of indigenous knowledge systems and practices, promotes selfgovernance, expedites resolution of cases, encourages community participation, based on tradition and precedent, and respect for the elders, and provides premium on restitution not retribution.

A number of recommendations were made by country delegations to the Government of the Philippines. Some of these included -

1. To continue to develop a genderresponsive approach to issues of violence against women and continue to build supportive environment for women and children within the judicial system; this environment should take into account the special needs for rehabilitation and post-conflict care of women and children in vulnerable situations and conflict areas (New Zealand);
2. To ensure that members of security forces are trained on human rights and on their responsibility to protect human rights and human rights defenders (Canada);
3. To completely eliminate torture and extrajudicial killings (Holy See);
4. To intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible (Switzerland);
5. To step up efforts to meet the basic needs of the poor and other vulnerable groups (Nigeria); among others.

The government of Philippines accepted most of the recommendations made by country delegations cited in paragraph 58 of the report of the Working Group of the UPR. Some of these included:

• To continue to develop a genderresponsive approach to issues of violence against women and continue to build supportive environment for women and children within the judicial system; this environment should take into account the special needs for rehabilitation and post-conflict care of women and children in vulnerable situations and conflict areas (New Zealand);
• To ensure that members of security forces are trained on human rights and on their responsibility to protect human rights and human rights defenders (Canada);
• To completely eliminate torture and extrajudicial killings (Holy See);
• To intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible (Switzerland);
• To step up efforts to meet the basic needs of the poor and other vulnerable groups (Nigeria);
• To sign and ratify the International Convention on the Protection of All Persons from Enforced Disappearances (Slovenia, Mexico); among others.

The Philippines, taking into consideration the recommendations made, announced the following voluntary commitments:

1. To continue to develop a gender-responsive approach to issues on women and children, including in the judicial system and on violence against women and children (b) To continue to develop domestic legislation for further protection of the rights of the child
2. To continue to develop domestic legislation for further protection of the rights of the child
3. To maintain the momentum on addressing killings of activists and media professionals
4. To continue and find additional measures to answer the basic needs of the poor and other vulnerable sectors

The Government of Philippines rejected the recommendation of Slovenia (To enable the visit by the Special Rapporteur on the promotion and protection of human rights while countering terrorism as soon as possible), the recommendation of the Netherlands (To provide a follow-up report on efforts and measures to address extrajudicial killings and enforced disappearances, taking into account the recommendations of the Special Rapporteur on extrajudicial, summary or arbitrary executions), and recommendations of Switzerland (To strengthen the witness protection programme and address the root causes of this issue in the context of the reform of the judiciary and the armed forces) and of Brazil (To consider extending a standing invitation to special procedures).