Sunday, February 3, 2008

Srinna's Paper

Paññãsástra University of Cambodia

MA Class
Prof. Stan
Student: Ty Srinna

Arbitrary Arrest or Detention


I, Introduction:

Arbitrary arrest and detention is a serious problem in all country around the world. It denied the right to a fair trial, and hindrance to the appeals process and it always made by the police authorities which suppressed all acts of peaceful political expression, contravening international and national law in the process, and civilian.
Arbitrary arrest and detention mean that is the arrest and detention of an individual in a case in which there is no likelihood or evidence that he or she committed a crime against legal statute, or in which there has been no proper due process of law[1].

So why arbitrary arrest and detention was happen? Who commit this act? How to resolve it?

To answer to these questions, I will select Philippines, Indonesia, and Laos to use in this topic, because all of those countries are stand in the East Asia. And they also have similar serious problem on human right in some areas in those countries. However, those problems are not the same, even they have the same name of problem, but the target of those problems is deferent. In some country, the target of arbitrary arrest and detention is focus on political issue, and some focus on not only political, but also criminal issue.

II, Methodology

On this paper, I will take Philippines as the basic country and other two countries are Indonesia and Laos by raise up the structure of the police and other authorities, the limitation of the law which cover on the police action and the cause of the arbitrary arrest and detention in each country. Then I will take the basic country to compare to itself and compare with the other two countries as we have raised up above.
In addition, I use country report on the human right practice in 2002 and 2006 in each country as the reference in this topic.

III, Situation in Philippines, Indonesia and Laos

1, Philippines:

The Philippines has 87 million of populations and it is a democratic republic with an elected president, an elected bicameral legislature, and a multiparty system. The May 2004 national elections for president and both houses of congress continued to be a source of contention, with unsuccessful attempts in 2005 and during the year to impeach the president on grounds of alleged election fraud. Civilian authorities generally maintained effective control of the security forces; however, some elements of these security forces committed human rights abuses.

-Role of the Police and Security Apparatus

The Department of National Defense directs the Army Force of the Philippines (AFP) and the Police National of the Philippines (PNP) is shares responsibility for counterterrorism and counterinsurgency operations.
The Department of Interior and Local Government directs the PNP, which is responsible for enforcement of law and order and urban counterterrorism; however, governors, mayors, and other local officials have considerable influence[2].
The New People Army (NPA) and Islamic separatist groups also share responsible for a number of arbitrary detentions and often kept contact with the informal courts set up to try military personnel, police, local politicians, and other persons for "crimes against the people" (base on the Philippines country reports 2006).

-Limitation of Police duty on arresting suspect person:

The law’s provisions against arbitrary arrest and detention but in practice the authorities routinely violated it[3]. Prisoners have the right to notify their families promptly and specify that warrants must be produced during an arrest or detention (base on the Philippines law). But there is an exceptions were allowed to the police to arrest persons without any warrants in the case of a crime is committing, for example, a suspect is caught in the act of committing a crime. The law allows investigators to issue warrants; however, at times authorities made arrests without warrants[4].
In Philippines, the authorities can make file charges within 12 to 36 hours of arrests the suspect person without any warrants, so it cause the increasing of a seriousness of the crime. For the Long period of pretrial detention also cause a problem in Philippines society[5].

- Cause of the arbitrary arrest and detention:

The political reason, corruption and bribes are cause the arbitrary arrest and detention in Philippines. All the illegal acts are done by the police and other authorities on political person and civilian base on Philippines country report 2006 [6].

2, Indonesia:

Indonesia is a multiparty republic and had 245 million populations. The president was directly elected in elections that international observers judged to be free and fair. In 2004, Voters also chose two national legislative bodies: the House of Representatives (DPR) and the newly created House of Regional Representatives (DPD). While civilian authorities generally maintained effective control of the security forces, in some instances elements of the security forces acted independently of civilian authority.

-Role of the Police and Security Apparatus

The president appoints the national police chief, subject to DPR confirmation. The reports must be made by the police chief to the president but is not a full member of the cabinet. There are 250,000 officers of the national police force deployed throughout the 33 provinces. The police maintain a centralized hierarchy, and locally deployed forces formally report to their national headquarters rather than to local governments.
The military is responsible for external defense, but also has a residual obligation to support the police in their domestic security responsibilities.
In Aceh, the Shari'a police, a provincial body, is responsible for enforcing Shari'a law. Impunity and corruption remained significant problems. There were instances in which the police failed to respond to mob or vigilante violence. Police commonly extracted bribes, ranging from minor payoffs in traffic cases to large bribes in criminal investigations. From January to October, the Division of Profession and Security (Propam) reportedly investigated 5,486 police officers, including high-level officials, across the country, resulting in 240 dismissals. Other punishments varied from demotion to criminal prosecution.

-Limitation of Police duty on arresting suspect person:

The authorities must have warrants during arrest the suspect person base on the Criminal Procedure Code of Indonesia, but there is an exception, which permit the authorities to arrest suspect person without warrant when the suspect person is committing a crime. Even the law mention about the ability of the authorities, but in practice they rarely follow the law. Mean that the authorities (police) always against the law by making arbitrary arrest and detention suspect person without warrant.

-Cause of arbitrary arrest and detention:

In Indonesia, the causes of the arbitrary arrest and detention are impunity, corruption, religion discrimination, bribes, political reason which was a big problem in the society. Because in practice, Police sometime extracted bribes, ranging from minor payoffs in traffic cases to large bribes in criminal investigations[7].

3, Laos:

The Laos is Democratic Republic that has one party state ruled by the Lao People's Revolutionary Party (LPRP). In 2005, there are 5.6 million populations. The law system is base on the constitution in1991 which had the executive, legislative, and judicial branches. The National Assembly elected the president and vice president and ratified the president's selection of a prime minister and cabinet. The LPRP generally maintained effective control of the security forces, but on occasion elements of the security forces acted outside the LPRP's authority.

-Role of the Police and Security Apparatus

In Laos, government had divided the structure of police responsibility on their actions for control them as bellow[8]:

-The Ministry of Public Security (MoPS) maintains internal security but shares the function of state control with the Ministry of Defense's security forces and with LPRP and popular fronts.
-The Ministry of Foreign Affairs, with MoPS support, is responsible for oversight of foreigners, including ensuring that foreigners do not visit sensitive areas or have sexual relations with citizens.
-The MoPS includes local police, traffic police, immigration police, security police (including border police), and other armed police units. Communication police are responsible for monitoring telephone and electronic communications.
-The armed forces are responsible for external security but also have domestic security responsibilities that include counterterrorism and counterinsurgency activities as well as control of an extensive system of village militias.

-Limitation of Police duty on arresting suspect person

Police and military forces in Laos have the powers of arresting the suspect person, but they must have warrant during arrest those person. Police agents sometime follow the law and sometime not in making arrests. In Laos also has the exception to arrest persons in the act of committing crimes or in urgent cases.

The limitation of the detention without trail and the length of detention without a pretrial hearing is a 1-year statutory limit. However in practice the government does not follow this law’s provision. There are 3 month increments however the maximum of detention is 1 year in theory. So it means that a suspect must be released if police do not have sufficient evidence to bring charges.

According to the law limits periods of pretrial detention, the law allows Police to detain the suspect persons for 20-days of an initial arrest and can be extended to 60 days. In contrast, the prosecutors can detain a suspect 30 days initially, and also can make the extension for 20-day more. In this case prosecutors may extend police detention periods, and a district court may further extend prosecutors' detention of a suspect. The 90 days period during trial or appeal is for the district and high courts that can detain a defendant. The 110 days is for the Supreme Court to detain a defendant while considering an appeal.
Moreover, the law allows detention periods to be extended up to an additional 60 days at each level in the case of a defendant faces a possible prison sentence of nine years or longer or in the case of the individual is certified to be mentally or physically disturbed. The authorities always respected these limits in practice.

-Cause of arbitrary arrest and detention:

In Laos, there had no punishment on wrong doing of the police that is why it caused a serious problem. The police had done the corruption, because of the impunity of their country. For example, many police officers used their authority to extract bribes from citizens. According to the Police reported that sometimes the police used arrest as a means to intimidate persons or extract bribes. In addition, according to 2002 country report of Laos, the authorities sometimes continued to detain prisoners after they had completed their sentences, especially in cases where prisoners were unable to pay court fines.

On the other hand, religious discrimination and political reason are also cause of the arbitrary arrest and detention too base on confirmed reports and other some source[9].

IV, Analysis on the Arbitrary Arrest and Detention Problems:

I analyze on this problem by making Comparison on Philippines against itself, Philippines and Indonesia, and Philippines and Laos in 2002 and 2006 base on Country report of each country:

-The comparison on Philippines against itself in 2002 and 2006:

In 2002, there are many illegal arrest and detention during the year. It’s has 17 cases found by the CHR investigated and 36 cases of politically motivated arrests by the Government according on the TFDP documented. The TFDP and the NGO Philippine Human Rights Information Center has also estimated on the political prisoners in the country has around 200 cases as the total number during the year. For these numbers of the cases show that in 2002 the arbitrary arrest and detection problem were made by not only the police but also Philippines government.
In Contrast, in 2006 there are 6.5 percent of detainees were able to post bail. During that time the file charges was increasing with the seriousness of the crime. And it’s also has a problem with the long period of pretrial detention, but the courts released 67 detainees who has gotten the maximum time of detection in the prison. Later on the two detainees were released under this circumstance.

According on the information of the arbitrary arrest and detention problem at these two years in Philippines, we see that in 2002 the government or the courts did not do any act to solve these problems (arbitrary arrest and detention problem). However in 2006, we see that the courts had released many detainees who were kept in the prison with the illegal arrest and detention or no strong evidence. These also show that the arbitrary arrest and detention problems were decrease in 2006 to compare with that problem in 2002.

-The comparison between Philippines and Indonesia:

+ In 2002 (Country Report):

In 2002, Indonesia country report did not mention about the case numbers or reliable statistics of the arbitrary arrest and detention problems in their country as Philippines country. But in fact, there are many citizens who were arrest and detained without warrant by the police and other authorities during the year. For these problems were happened in some areas around the country such as in Aceh and Papua, police frequently and arbitrarily detained persons without warrants, charges, or court proceedings. In addition, even thought this report did not show the data of the cases number, but it was show about activity of the police (authorities) on the arbitrary arrest and detention[10].
According to the report on these activities of the police on the arbitrary arrest and detention, it’s can mean that Indonesia also has too many arbitrary arrest and detention cases but the government tried not to show clear on these cases number. If we compare it to Philippines, it’s hard for us to find the right balance. However we can guess that the arbitrary arrest and detention cases in Indonesia are higher than Philippine, because Indonesia government is weak leadership[11] and has many populations number.

+ In 2006(Country Report):

In 2006, both Philippines and Indonesia try to solve the problem of the arbitrary arrest and detention in their own by reforming the institution of the police (authorities). For the activity of reform this institute, we see that Philippines is more active or higher reforming than Indonesia base on the data of Philippines reforming[12]. For Indonesia, we don’t see any clear data of reforming, but we can see the activity of the government in reforming their country by removing the police who committed illegal acts[13]

-The comparison between Philippines and Laos:

+ In 2002(Country Report):
In 2002, the total number of the arbitrary arrest and detention is 253 cases[14] in Philippines during the year. However, during this year the data of detainees in Laos is not clear, they just show about the perhaps number is over 100 cases[15]. If we compare on case data of both country we can see that Philippines might get more or higher serious problem of arbitrary arrest and detention than Laos.

+ In 2006 (Country Report):

In 2006, Philippines government has tried to solve the problem of the arbitrary arrest and detention by reforming the institution of the police (authorities). So the arbitrary arrest and detention problem might be decrease step by step. In contrast, according to country report of Laos, we see there were still has a serious problem on arbitrary arrest and detention[16] without any solving by the government. Because of this reason, if we compare both country Philippines and Laos here, we can say that arbitrary arrest and detention in Laos might be higher than Philippines.

V, Conclusion

All in all, the arbitrary arrest and detention in each country (Philippines, Indonesia and Laos) still cause a serious problem even some country try to solve it. Because in each country, although it has the law and the structure of the police to be responsible on their action, in implement they generally against it. After comparing these three countries, we only see that arbitrary arrest and detention problem is getting more decrease in Philippines dislike in Indonesia and Laos base on country report in 2002 and 2006 of Philippines, was showed clear about the way of the government to solve the problem and cases number of the arbitrary arrest and detention that the other two countries are not.

Reference:
Philippines country report in 2002 and 2006
Indonesia country report in 2002 and 2006
Laos country report in 2002 and 2006











1, Freedom from Arbitrary Arrest and Exile. Human Rights Law. United Nations Cyber Schoolbus (2006-11-09). Retrieved on 2007-09-30.

[2] In the report said that:
The Department of National Defense directs the Army Force of the Philippines (AFP) and the Police National of the Philippines (PNP) is shares responsibility for counterterrorism and counterinsurgency operations.
The Department of Interior and Local Government directs the PNP, which is responsible for enforcement of law and order and urban counterterrorism; however, governors, mayors, and other local officials have considerable influence.

[3] The law requires a judicial determination of probable cause before issuance of an arrest warrant and prohibits holding prisoners incommunicado or in secret places of detention; however, in a number of cases, police arrested and detained citizens arbitrarily. Through December, the TFDP documented 35 cases of illegal arrest and detention involving 114 victims
[4] I got it from the country report in 2006 of Philippines
[5] In September 2005 a regional trial court judge was killed in her house in Natividad, Pangasinan. Police identified two suspects, but a judge dismissed the case and did not issue arrest warrants against the two for lack of probable cause. In January police arrested six suspects for the December 2005 murder of a Pasay City regional trial court judge; their trial was on-going at year's end. Trials in the 2004 killings of two judges were also underway at year's end, and prosecutors filed charges in the third case. Ten cases of the killing of judges remained under investigation at year's end.

[6] Corruption was a problem in all the institutions making up the criminal justice system, including police, prosecutorial, and judicial organs.
[7]. Impunity and corruption remained significant problems. There were instances in which the police failed to respond to mob or vigilante violence. Police commonly extracted bribes, ranging from minor payoffs in traffic cases to large bribes in criminal investigations. From January to October, the Division of Profession and Security (Propam) reportedly investigated 5,486 police officers, including high-level officials, across the country, resulting in 240 dismissals. Other punishments varied from demotion to criminal prosecution.

[8]The Ministry of Public Security (MoPS) maintains internal security but shares the function of state control with the Ministry of Defense's security forces and with LPRP and popular fronts. The Ministry of Foreign Affairs, with MoPS support, is responsible for oversight of foreigners, including ensuring that foreigners do not visit sensitive areas or have sexual relations with citizens. The MoPS includes local police, traffic police, immigration police, security police (including border police), and other armed police units. Communication police are responsible for monitoring telephone and electronic communications. The armed forces are responsible for external security but also have domestic security responsibilities that include counterterrorism and counterinsurgency activities as well as control of an extensive system of village militias.

[9] -During the year, government authorities arrested and detained more than 60 Christians, at times holding them in custody for months (see Section 2.c.). According to confirmed reports, those detained without trial at year's end for their religious activities included one person in Phongsaly and one person in Houaphanh; one person detained in Savannakhet was released in December. Seven lowland Lao men who returned from China have been detained without trial since 1997. An eighth member of this group was released in 2001.
-Some sources reported that in June authorities in Vientiane Province arrested six Hmong villagers in Muang Feuang district, reportedly because of suspicion that the six had some involvement with antigovernment insurgents.
-Police reportedly sometimes used arrest as a means to intimidate persons or extract bribes. There were reports that military forces occasionally arrested or detained persons suspected of insurgent activities.




[10] Indonesia country report 2002: In Aceh security forces routinely employed arbitrary arrest and detention without trial. On July 16, in Banda Aceh, local police took seven young members of the Acehnese Women’s Democratic Organization (ORPAD) into custody following a rally in which they expressed antigovernment views. The police released six of the seven women a day later, but continued to hold Raihana Diani, who helped organize the rally, through the end of the year. The authorities charged her with insulting the President, a violation of Articles 134 and 137 of the Criminal Code. On December 23, prosecutors demanded a sentence of 8 months. At year's end, Diani still was awaiting sentencing. On July 31, in Papua, Yanuarius Usi allegedly died in police custody as a result of mistreatment (see Section 1.c.). On September 26, police in Jakarta arrested and briefly detained anticorruption activist Azas Tigor Nainggolan. Tigor, Chairman of the Jakarta Residents Forum (FAKTA), allegedly slandered Jakarta Governor Sutiyoso by claiming that he had bribed city councilors.
On September 11, in southern Aceh, the TNI detained two foreign women in an area off limits to foreigners. The soldiers denied them Consular access and, according to the two women, punched and sexually harassed them. The TNI subsequently turned the two over to police, who transferred them to Banda Aceh, where they were charged with violating the terms of their tourist visas. On December 30, a court convicted them for violating the terms of their tourist visas, sentencing one to 4 months in prison and the other to 5 months.
On April 17, police in Jakarta released imprisoned Acehnese student leader Fasial Saifuddin, pending appeal of his 1-year sentence for "spreading hatred toward the state." Saifuddin, of the NGO SIRA, had demonstrated in front of the United Nations (U.N.) building in Jakarta; he had served approximately 6 months of his sentence. In November 2001, police in Banda Aceh released from detention student leader Kautsar Mohammed, who was held on the same charge as Saifuddin.

[11] Government generally has been unable to adequately address serious human rights abuses committed in the past. Inadequate resources, weak leadership, and limited accountability contributed to continued abuses by security force personnel, although with sharply reduced frequency and gravity than under past governments. The following human rights problems occurred during the year.

[12] The 115,000 member PNP has deep-rooted institutional deficiencies and suffered from a widely held and accurate public perception that it was corrupt. The PNP's Internal Affairs Service remained largely ineffective. Members of the PNP were regularly accused of torture, of soliciting bribes, and of other illegal acts. Efforts were underway to reform the institution in part to counter a widespread impression of official impunity. From January to November, the PNP dismissed 89 policemen. Of the 2,859 administrative cases filed against PNP officers and personnel, 1,398 were resolved, 944 remained under preliminary investigation, 391 underwent summary hearings, and the remaining 126 were filed with the People's Law Enforcement Board, a body composed of local government officials and NGO representatives that receives complaints filed against members of the PNP in the regions. In 2005 the PNP initiated a Transformation Program aimed at systematic institutional reform.

[13] In August Propam ordered that Southwest Sulawesi Police Chief Brigadier General Edhy Susilo be removed from his position following a disciplinary hearing on sexual harassment charges. On September 16, the provincial chief of police in East Kalimantan, Inspector General Djosua Sitompul, was removed from his position on suspicion of involvement in illegal logging.
On September 26, the South Jakarta District Court found Brigadier General Ismoko guilty of receiving bribes and sentenced him to 20 months in prison. In the same case, Commissioner General Suyitno Landung, the former head of the Criminal Investigation Division and an instructor at the National Institute of Defense, was arrested in December 2005 on suspicion of accepting bribes. On October 10, Landung was sentenced to 18 months in prison. He is the highest-ranking police official to be jailed for corruption.
On December 4, Senior Commissioner Erick Bismo, the deputy police chief in Rembang, Central Java, was removed from his position for allegedly beating 26 subordinates.

[14]- The total cases number of 253 come from taking 17 cases (found by the CHR investigated) + 36 cases (of politically motivated arrests) +200 cases (The TFDP and the NGO Philippine Human Rights Information Center has also estimated)
[15] An unknown number of persons, perhaps over 100, were in detention for suspicion of violations of criminal laws concerning national security. Security-related laws were sometimes applied to routine criminal actions to justify long periods of incarceration without trial.

[16] There were no reports that police administratively overruled court decisions by detaining exonerated individuals. However, local police reportedly continued to detain persons who had been ordered released by higher authorities. There were no known instances of police being reprimanded or punished for such behavior. The OPG made efforts to encourage compliance with the law regarding detention of suspects but acknowledged that police widely continued to ignore the law's provisions.

1 comment:

Sok Bunthoeun said...

I hav two comments:
1-Format is not good enough,
2-Purpose of this paper is not lear yet, but aceptable.