Friday, February 1, 2008

Srinna's Paper

MA Class
Prof. Stan
Student: Ty Srinna

Arbitrary Arrest or Detention

I, Introduction:

-Definition of Arbitrary Arrest or Detention:
Arbitrary arrest and detention 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].
II, Methodology
The reason I 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.

III, Situation in Philippines, Indonesia and Laos

1, Philippines:
The Philippines 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.
-Limitation of Police duty on arresting suspect person
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.
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 a seriousness of the crime. For the Lengthy pretrial detention also remained a problem in Philippines society. For example, there are 67 detainees who was held in prison were released by the court In 2005, because they was held in the prison in a long time of the maximum prison terms, even they would have served if convicted.
- 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.

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 police chief reports to the president but is not a full member of the cabinet. The national police force has approximately 250,000 officers 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. During the year international NGOs noted improvement in the degree of police crime-fighting professionalism and an increased emphasis on law enforcement ethics. Overall, however, police professionalism remained low, as did their respect for human rights and effectiveness at investigating human rights abuses.
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 detention are corruption, religion discrimination, bribes, political reason which was a big problem in this country.

3, Laos:
The Lao 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, 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 count. For example, many police officers used their authority to extract bribes from citizens. So the government had divided the structure of police responsibility on their actions for control them as bellow:
-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 apprehend persons in the act of committing crimes or in urgent cases. According to the Police reported that sometimes the police used arrest as a means to intimidate persons or extract bribes.
The law prohibits arbitrary arrest and detention; however, in practice the government did not respect these provisions, and arbitrary arrest and detention persisted.

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
+ The number of Arbitrary Arrest or Detention in 2002 (Country Report 2002)
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 too 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[2].
According to the report on these activities of the police on the arbitrary arrest and detention, it’s can mean that Indonesia 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 say that the arbitrary arrest and detention cases in Indonesia are higher than Philippine, because Indonesia government is weak leadership[3] and has many populations number.
+ The number of Arbitrary Arrest or Detention in 2006(Country Report)

-The comparison between Philippines and Laos
+ The number of Arbitrary Arrest or Detention in 2002(Country Report)
+ The number of Arbitrary Arrest or Detention in 2006(Country Report)

V, Conclusion
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] 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.

[3] 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.


Kanal said...

My first comment is on Format of her paper. She should show her topic, content, and what the report will talk about.

Second, she should look more on resource because it is few resources that she has to finish her paper.

Third, she should summarize her finding in conclusion that would be good for reader to see she reach her objective or not.

Last, if professor give her more time to fix on our classmates'comment, i guess she would produce a good paper.

sophorne said...

Her paper seems not to be finished yet. Many points need to be completed more such as content, format, points of inquiries, refferences from other reports, websites or books and conclusion.

I think if there will be more time, she can end her paper better.

pisey said...

Why you didn;t mention country you selected to be subject to compare to others in your METHODOLOGY so that is is easier for readers to understand which country you compare to?

You mentioned "in 2002, 5.6% of detainees were able to post bail"

So how many of them is equal to 100%, so that readers will know the amount from your 6.5 per cent?

The comparson ti itself: From what years to what years compared to what years? For exaple year 2002 to 2004 compared to year 2005-2006. But you compared 2002 and 2006, what iare year 2003, 04 ,05 ? Thanks