Negative laws NATIONAL LAWPOLICY

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 174 NATIONAL LAWPOLICY CONTENT FURTHER REFERENCES Martial Law in Burma On 17 and 18 July 1989, the martial Amnesty International, law administration empowered the Myanmar Burma New military to impose death sentences Martial Law Provisions on political opponents, including Allowing Summary or people not accused of violence, Arbitrary Executions and through summary judicial Recent Death Sentences procedures that fall short of Imposed Under These international standards for fair trial Provisions, AI Index: A S A and are contrary to the safeguards 161589 DISTR: SCCO enshrined in the Myanmar Judicial GR, http:burmalibrary. Law. These deficiencies include orgdocs316-15-89-ocr.p allowing the death penalty for non- df violent, not clearly criminal or else only minor offences, elimination of the right of appeal to a higher court and apparent curtailments of the right to a defense, particularly as regards the calling of defense witnesses. Armed forces special power Special authority for the military to http:www.hrw.orgenn act AFSPA 1958, in India shoot and kill on mere suspicion. ews20080817india-r The law grants the military wide epeal-armed-forces-specia powers to arrest without warrant, l-powers-act shoot to kill, and destroy property in so-called “disturbed areas.” It also protects military personnel responsible for serious crimes from prosecution, creating a pervasive culture of impunity. Oplan Bantay Laya of the A long-term, top-level and Armed Forces of the comprehensive military operational Philippines AFP plan of the AFP aimed at destroying the Communist Party of the Philippines and its New People’s Army by 2010. The Oplan specifically targets indigenous peoples’ territories because these generally mountainous and thickly forested areas are thought to be strategically important to the NPA as guerrilla strongholds. The Oplan also targets legitimate indigenous peoples’ organizations as “front organizations” of the Communist Party. Module-8 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 175 NATIONAL LAWPOLICY CONTENT FURTHER REFERENCES Prevention of Terrorism This law was enacted to repeal other http:lib.ohchr.orgHRBo Act 2002, India laws and consolidate their contents: diesUPRDocumentsSes Internal Security Act MISA, sion1INLIB_IND_UPR_S Terrorist and Disruptive Activities 1_2008_Liberation_uprsub [Prevention] Act TADA, Prevention mission.pdf of Terrorism Act POTA, the Disturbed Areas Act DAA, the Armed Forces Special Powers Act AFSPA, the Assam Preventive Detention Act, National Security Act, Essential Services Maintenance Act, and the Armed Forces [Jammu and Kashmir] Special Powers Act 1990. The succesor law of 2002 is more draconian and heinous than its predecessor in trying to quell “terrorism” and “threats to national unity.”

2. Positive laws NATIONAL LAWPOLICY

CONTENT FURTHER REFERENCES Law No 39199 on human Human rights, including the rights of www.hrw.orglegacyasia rights in Indonesia indigenous peoples to self-identity, indonesia land and territory. Establishment of human Monitoring and reporting the www.komnasham.go.id rights institutions as development of human rights in government bodies in the respective countries. countries such as the Philippines, Malaysia, Indonesia, and Thailand. Ratification of international State obligation to comply with civil human rights instruments, and political rights as well as social, such as ICCPR and ICESCR, economic and cultural rights, of their by the Philippines, respective peoples. Indonesia, and Thailand.

C. Challenges of Naional Laws and Policies

1. Positive laws are not implemented or only passively, while negative laws are more

actively implemented. National governments in most Asian countries have passed laws that contain both positive and negative elements: some favorable and some oppressive to indige- nous peoples. The general trend, however, is for oppressive laws to be more actively implement- Input the following, elaborating with case studies or inviting participants to discuss cases they know of. Suggested Method Module-8 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 176 ed while the positive laws are only barely or ineffectively implemented. Examples of oppressive laws that are being implemented in full force: martial law in Burma, AFSPA of 1958 in Northeast India, and Oplan Bantay Laya in the Philippines. 2. Government uses inconsistent and fragmented approach rather than human rights- based approach. Governments often rely on compartmentalized or sectoral approaches that result in fragmented, inconsistent, or even contradictory implementation of laws and social ser- vices as applied to indigenous peoples. This is in contrast to the holistic and human-rights-based approach, which is more effective. In addition, corrupt practices that are rampant within the government result in the misuse and depletion of funds supposedly allocated for indigenous peoples.

3. Conflicts between national and local governments. Conflicts commonly exist between

between the national and local governments, particularly in the jurisdiction or division of pow- ers and functions that are relevant to human rights police powers and courts, for example, and in the allocation and use of public resources. In most cases, national government priorities predominate, and local government concerns are relegated to the sidelines. These issues are also connected to the question of autonomy and self-government in indigenous territories.

4. Persistent militarist mindset. A persistent militarist mindset continues to exist not only

within the armed forces, but also among civilian agencies and supposedly civilian law enforce- ment services. This mindset is totally hostile to the concept of human rights and its strict ob- servance even in war or emergency conditions. It constantly erodes efforts to strictly observe human rights in actual practice, especially during military and police operations.

5. Particular defects as well as openings in the legal and judicial system. In each coun-

try or state system, we can identify particular defects as well as openings in the legal and judicial system that pose either advantages or disadvantages in the implementation of human rights laws. Examples of defects and disadvantages: legal technicalities such as prescription expiration of case due to passage of many years, non-applicability to cases prior to the adoption of human rights laws, and immunity of officials to suit, which are often invoked by governments to escape accountability for their human rights violations. This is on top of judicial corruption and intimi- dation, which results in the dismissal of human rights cases. Examples of openings and advan- tages: the possibility of indigenous systems of law being used instead of, or to complement, the modern legal and judicial system in protecting the human rights of IPs and in pursuing human rights cases.

IV. EXPERIENCES AND LESSONS LEARNED

A. Advocacy, Collecive and Asserive Ac- ions

EXAMPLES OF ADVOCACY, COLLECTIVE AND ASSERTIVE ACTIONS Philippines 1. People’s organizations and com- munities launched anti-militarization mobilizations in Cordillera to demand the Share the examples provided below or ask the participants to engage in a shar- ing of experiences, but provide questions to guide them. Synthesize and input the lessons and tips below. Suggested Method Module-8