May 25, 2017 | News
The Philippine government must ensure that human rights are protected and respected in Mindanao, in light of the yesterday’s declaration of martial law and suspension of the writ of habeas corpus, the ICJ said today.
The ICJ reminds the Philippine government that it remains responsible for upholding its international human rights legal obligations, notwithstanding the imposition of martial law.
The ICJ also calls upon the Congress and, if engaged, the Supreme Court, to exercise their oversight authority to ensure that the declaration is necessary and lawful, and that the activities conducted under martial law respect human rights.
“The suspension of the writ of habeas corpus, which is vital for protecting the right to liberty and preventing torture, ill-treatment and enforced disappearance, must be lifted immediately,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific.
Rawski added, “The provision of the Philippine Constitution providing for the possibility of suspension of the writ of habeas corpus is in contravention of international law, and denying the right to challenge the lawfulness of a detention is incompatible with recognized principles of the rule of law.”
President Rodrigo Duterte declared martial law on the evening of 23 May 2017, covering the island of Mindanao, after Maute, an armed group that had pledged allegiance to the Islamic State of Iraq and the Levant (ISIL), reportedly laid siege on Marawi City. The next day, 24 May 2017, President Duterte suspended the writ of habeas corpus.
The ICJ recalls that the right to challenge the lawfulness of one’s detention through habeas corpus or similar procedures must always be available, even under states of exception like martial law.
The ICJ calls on the Philippine government to establish a clear timetable for an end to martial law, and to ensure in the interim that human rights are fully protected.
Background
Under Article VII, Section 18 of the 1987 Philippine Constitution, the President may declare martial law or suspend the privilege of the writ of habeas corpus in case of invasion or rebellion and only “when the public safety requires it.” However, Article VII, Section 18 of the 1987 Constitution limits a declaration of martial law to 60 days, and imposes other important limitations – including that the President of the Philippines must submit a report to Congress within 48 hours, which may then revoke the suspension or declaration.
Any citizen may petition the Supreme Court to review the sufficiency of the factual basis of the proclamation of martial law, or the suspension of the writ of habeas corpus. Finally, this provision of the Constitution also provides that in the case of a suspension of the writ of habeas corpus, any arrested or detained person must be judicially charged within three days, or be released.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia, email: emerlynne.gil(a)icj.org tel: +66 840923575.
May 25, 2017 | News, Op-eds
An opinion editorial by Daniel Aguirre, ICJ Legal Adviser in Myanmar.
Burma’s 2016 Investment Law and the implementing Investment Rules issued in April 2017 create space for the government and civil society to facilitate responsible investment and exclude investors that have track records of environmental destruction and human rights abuses.
This means that affected individuals and communities must now test Burma’s commitment to the rule of law.
There are new opportunities for civil society to use law to hold them accountable. In this regard, both international law and Burma’s constitution guarantee access to justice for rights abuses.
The Investment Rules instruct the Myanmar Investment Commission (MIC) to consider whether investors have demonstrated a commitment to responsible investment. In considering the good character and reputation of the investor, the MIC may study whether the investor or any associate with an interest in the investment broke the law in Burma or any other jurisdiction.
The rules explicitly mention environmental, labor, tax, anti-bribery and corruption or human rights law.
What this means is that if an investor is determined to have committed a crime, has violated environmental protection standards or was involved with human rights abuses, the MIC should not grant it a permit.
If such a company applies for an investment permit, civil society should bring its record to the attention of the MIC and advocate for the rejection of a permit.
Successive governments in Burma have focused on increased investment to develop the country and improve its people’s standard of living.
At the same time, human rights and environment proponents from civil society have opposed many investment projects, citing the impact on the environment and human rights of local communities.
They complain that land rights are not adequately protected, that environmental impact assessments are not implemented and that they lack access to justice for corporate human rights abuses.
There are challenges to using the law to protect human rights in Burma.
Disputes related to business activity are often considered sensitive political matters in which the courts are unable or unwilling to intervene.
They are reluctant to review crucial decisions of administrative bodies or to hold rights abusers accountable.
But community activists, human rights defenders and lawyers have increased opportunities to pressure the courts to apply the law and should do so.
Lawyers have an important role in protecting human rights by representing local communities.
Courts must become a venue to challenge administrative decisions that allow for irresponsible investment that does not comply with national law, and where appropriate, obtain remedies and reparations for victims of human rights violations.
The Investment Law and its rules, which govern both local and foreign investment except within special economic zones, provide legal guarantees for investors to access information and protections against expropriation including compensation and access to due process if changes in regulation affect their business.
Investors can also access long-term rights to use land.
Civil society should help to ensure that only responsible investors benefit from these protections.
According to the law, the MIC is the gatekeeper that issues permits and endorsements for many would-be national and international investments likely to cause a large impact on the environment and local community.
In order to ensure that the protective aspects of the law are effective, courts must have some power of review, at least to ensure that administrative bodies, such as the MIC, are acting reasonably and in accordance with the law, while respecting and protecting human rights.
If the MIC grants permits for companies that do not meet the requirements outlined in the Investment Rules, their decisions must be subject to review by the judiciary.
Burma’s courts have the authority to review administrative decisions, particularly through the application of constitutional writs.
Lawyers can use the writs of mandamus and certiorari to secure the performance of public duties and quash an illegal order already passed by public bodies such as the MIC.
This would help ensure the MIC uses its mandate to prevent irresponsible investment.
Likewise, investors that fail to respect human rights or unlawfully cause damage to the environment must be held accountable; but there are few options to do so in Burma.
Criminal prosecutions against companies, actions imposing administrative sanctions, and civil suits face a variety of procedural hurdles, particularly if involving joint ventures with state run enterprises.
For example, a negligence civil suit brought by villagers against the Heinda tin mine in Dawei District was unsuccessful because the 1909 Limitations Act demands complaints to be brought within one year of damage.
Section 80 of the Civil Procedure Code requires prior notice and the names of plaintiffs to be given to the government two months before filing a suit against the government and allows small procedural defects to preclude a claim.
Lawyers are sometimes unfamiliar with these procedures and communities are reluctant to put their names to such cases fearing reprisals.
Clearly there are significant challenges to ensuring that investment in Burma does not adversely affect human rights.
To overcome these, civil society and lawyers must engage the administration—the MIC—to ensure only responsible investments is permitted and start to use the judiciary to review its actions.
Likewise, cases must continue to be taken against investors that abuse human rights and harm the environment.
Powerful investors must be constrained by the confines of the law, including human rights law.
Unless civil society and lawyers can use the legal framework to address these concerns, Burma’s judicial system is unlikely to develop; lawyers will not gain valuable experience and the public will remain distrustful.
The process is long and arduous but necessary to protect human rights and the environment from irresponsible investment.
May 25, 2017 | News, Training modules
Today, the ICJ and the Immigrant Council of Ireland are holding a training for lawyers on the rights of migrant children and on accessing international human rights mechanisms in Dublin.
The training aims to support the strategic use of national and international mechanisms to foster migrant children’s access to justice.
The training will take place over the course of two days: 25-26 May 2017.
The training will focus on accessing the international mechanisms in order to protect and promote the rights of migrant children, the child’s procedural rights including the right to be heard, the right to family life, access to housing and education and immigration detention.
A practical case analysis will be part of the training. Trainers include Róisín Pillay, Director of ICJ’s Europe Programme, Dr. Patricia Brazil, BL and Joris Sprakel, Hague University.
The training is based on draft training materials prepared by the ICJ (to be published in the second half of 2017) and the ICJ Practitioners Guide no. 6: Migration and International Human Rights Law.
It is organized as part of the FAIR project co-funded by the Rights, Equality and Citizenship Programme of the European Union and OSIFE.
As part of the project, this training follows the trainings on the rights of migrant children in Spain, Italy, Bulgaria, Malta and Greece. Training in Germany and Strategic litigation Retreat will follow later this year.
Download the agenda here: Ireland-FAIRtraining-Event-agenda-2017-ENG
May 17, 2017 | News
La CIJ condena enérgicamente la violenta represión de las manifestaciones por parte del Gobierno venezolano y sus cuerpos de seguridad, así como el juzgamiento de civiles por tribunales militares de ese país.
Entre el 4 de abril y el 16 de mayo de 2017, han fallecido de manera violenta más de 40 personas en el contexto de manifestaciones, por la acción de los cuerpos de seguridad del Estado venezolano y grupos armados de civiles afectos al Gobierno.
Asimismo, centenares de personas han sido detenidas arbitrariamente, muchas de las cuales han sido trasladadas a prisiones militares, instalaciones de organismos de seguridad o a cárceles de máxima seguridad.
Numerosos detenidos han denunciado golpizas, tratos crueles e inhumanos así como actos de tortura.
Igualmente, por lo menos 275 civiles están procesados por tribunales militares, acusados de delitos previstos en el Código Militar, como los de “rebelión” y “traición”.
En muchos casos, a los abogados defensores se les limita el acceso a las salas de audiencia, sólo están autorizados a hablar uno pocos minutos antes de las audiencias con sus defendidos y se les restringe el acceso al expediente penal.
La CIJ recuerda que todas estas prácticas vulneran derechos y libertades fundamentales y constituyen una violación flagrante por parte del Estado venezolano de sus obligaciones constitucionales e internacionales de garantizar y proteger los derechos humanos.
Desde hace varios años la CIJ ha venido siguiendo la situación en Venezuela y ha podido constatar el vertiginoso y sistemático deterioro de los derechos humanos y de las libertades fundamentales, la pérdida de independencia del Poder judicial y, en general, el ocaso del Estado de Derecho.
Al respecto ver los informes de la CIJ: Fortaleciendo el Estado de Derecho en Venezuela (2014) y Venezuela: el ocaso del Estado de Derecho (2015).
