Nepal: Judges and Prosecutors consider how to fulfill their roles in ensuring access to justice for conflict-era human rights violations.

Nepal: Judges and Prosecutors consider how to fulfill their roles in ensuring access to justice for conflict-era human rights violations.

Judges and Prosecutors in Nepal have taken up the challenge to step up their efforts to ensure that victims and survivors of human rights violations are able effectively to access justice.  

At a Judicial Dialogue convened by the International Commission of Jurists (ICJ) and Advocacy Forum Nepal (AFN) in collaboration with Judges Society Nepal (JSN) on 15 – 16 September 2023, judges and prosecutors from district and high courts in Gandaki Province in Nepal attended and assessed the challenges faced by victims and survivors in the context of the stalled transitional justice process which followed from the end of Nepal’s internal armed conflict in 2006.

The Government of Nepal has made repeated commitments to ensure access to justice and the Supreme Court of Nepal has affirmed that the authorities have firm legal obligations to act in the transitional justice process. Participants considered that there had been serious undue delay in the Nepalese TJ process over years, which have included ineffective commissions, non-implementation of court rulings and a failure to take into account the voices of victims of human rights violations.  There was therefore a pressing need for judges and public prosecutors to play a more proactive role in order to address conflict-era gross violations delivering justice for the victims of the violations.

ICJ Commissioner and former Chief Justice of the Supreme Court of Nepal Kalyan Shrestha, emphasized that it was indispensable to adhere to international and domestic human rights law, including the jurisprudence of the Supreme Court. He expressed concern that adjudication of conflict-related cases had been significantly delayed, resulting in a prolonged wait for justice for the victims of human rights violations. Justice Shrestha also underscored the need for Nepal’s judiciary and public prosecutors to effectively fulfill their responsibilities and ensure justice for victims of human rights violations, in accordance with a well-developed body of jurisprudence on justice in the transitional context.

Justice Ishwor Khatiwada of the Supreme Court of Nepal reviewed the status of human rights guaranteed under the Constitution of Nepal. More than a thousand cases related to conflict-era human rights violations have been pending at different courts, and there was no law that restricts courts/judges from deciding the cases of human rights violations from conflict.  The Government of Nepal had been refusing victims of conflict access to regular justice system arguing that they will be provided justice by transitional justice mechanisms. However, these promised TJ mechanisms had not been established even more than a decade and a half after signing the Comprehensive Peace Agreement (CPA), making commitments to create these mechanisms.

Justice Ananda Mohan Bhattarai, Justice of the Supreme Court of Nepal highlighted that jurisprudence established by the Supreme Court mandated a robust role of the judiciary in assessing the implementation of its jurisprudence.

Mandira Sharma, ICJ Senior Legal Advisor, provided insights into the global context of transitional justice and discussed the challenges, lessons learned, and good practices.

High Court Judge Tek Prasad Dhungana, General Secretary of Judges Society Nepal presented the objectives of the dialogue, which was chaired by Mr. Baburam Regmi, Acting President of Judges Society Nepal and former High Court Judge and facilitated by Kathmandu District Court judge Raju Kumar Khatiwada.

Contact:

Dr Mandira Sharma, ICJ Senior International Legal Adviser, t: +9779851048475, e: [email protected]

Kashiram Dhungana, ICJ Legal Adviser, Nepal, t: +9779851226964, e: [email protected]

Sri Lanka: Proposed Online Safety Bill would be an assault on freedom of expression, opinion, and information

Sri Lanka: Proposed Online Safety Bill would be an assault on freedom of expression, opinion, and information

The ICJ is concerned that the newly proposed Online Safety legislation, if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.

On 18 September 2023, the Ministry of Public Security gazetted a bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.

The ICJ considers that several provisions of the bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression.  Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.

“While the spread of online hate-speech and disinformation need to be tackled, this bill is deeply flawed in its design and would be open to abuse by the Sri Lankan government, which has persistenty failed to uphold freedom of expression,” said Ian Seiderman, ICJ’s Legal and Policy Director. “It risks being used to suppress important public debate regarding  the conduct of the government and matters of public policy,” he added.

The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes;  make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.

The Bar Association of Sri Lanka has called for the immediate withdrawal of the bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to gazetting bills which ‘have a serious impact on the community at large.’

“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information.” Seiderman added.

The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terorrism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.

Article 14 (1) (a) of the Sri Lankan Constitution gurantees the freedom of speech and expression. Article 19 of the International Covernant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.

In July 2018, the UN Human Rights Council adopted by consensus a resolution  affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”

Contact: Ian Seiderman, Legal & Policy Director, e: [email protected]

See annexed below a summary analysis of some problematic aspects of the Online Safety Bill.  

Sri Lanka: Selected flaws in the Online Safety Bill

  • Wide ranging and overly broad powers of the Online Safety Commission and appointed Experts

The bill provides for the establishment of a five-member ‘Online Safety Commission’ that is to be appointed on the sole discretion of the President (clause 5). This is in contrast to other notionally independent commissions in Sri Lanka, the appointments to which require the consent of the Constitutional Council by way of nomination or ratification. This bill would give the president unfettered discretion where both appointment and removal is concerned.

The Commission would also be vested with a wide range of powers, some of which encroach into the functions of the judiciary. It essentially acts as sole arbiter of matter of fact and is entitled to issue notices or directives against any person, internet service provider (ISP) or internet intermediaries who/which is alleged to have communicated a prohibited or false statement. The bill does not specify the process through which the Commission would arrive at this decision.

Moreover, the Commission is granted authority to block websites and instruct ISPs to restrict access to specific online locations. This may result in undue government overreach and censorship and impermissible limitations on the exercise of the right to information protected by Article 14A of the Constitution and international law.

Further clause 37 allows for the Minister to appoint ‘Experts’ to assist police officers in investigations. The experts are private individuals who can accompany police officers during search procedures, but are also given the power upon authority granted by a police officer above the rank of a sub-inspector to require a person to hand over any documents or device, provide traffic data or be orally examined (clause 37 (6)). Such excessive powers in the hands of unaccountable private individuals provide avenues for abuse.

The bill does not provide provide for judicial review of the Commission’s decisions or procedures. Instead clause 49 seeks to protect the Commission, its staff, or any expert appointed under clause 37 from being brought to court for any act or omission done in good faith.

  • Vague and overbroad offences

A particularly problematic aspect of the bill are provisions of vague and overbroad definitions of offences.

Article 19(3) of the ICCPR provides that the right to freedom of expression and opinion may be subject to certain restrictions, but that these restrictions must be provided by law and necessary for one of a limited numbers of legitimate purposes, namely to protect the rights and reputations of others, national security, public order or public health or morals.  The measure of limitation must be proportionate, using the least restrictive means possible to achieve the purpose. The requirement that any restrictive measure be provided by law means that they must comply with the principle of legality, by which the law must be stated with precision as to allow persons to be able to conform their conduct in compliance.

Similarly, Article 15 (2) of the Sri Lankan Constitution provides for possibility of  restriction of the right “as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”

The prohibitions listed in this draft legislation go beyond the restrictions allowed for under the  ICCPR and the Sri Lankan Constitution, as clause 12 states that “any person who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between  different classes of people, by communicating a false statement, commits an offence.”

In addition, several acts that would constitute offence are only vaguely defined, if at all. This includes communicating a false statement “with the deliberate intention of wounding the religious feelings of any other person” (clause 16) or “outraging the religious feelings of any class of persons, insults or attempts to insult the religion or the religious beliefs of that class” (clause 17). These clauses are overbroad in that they would encompass expression that is protected under human rights law. Clause 14 makes it an offence to ‘wantonly giving provocation by false statement to cause riot’. This language is open to abuse by the authorities, as evidenced by practices arising from other legislation, including    the ICCPR Act  and the PTA.

Repeated mention of ‘religion’ in these provisions is a cause for concern as they come in a context where there is ongoing strife relating to contested religious sites between majority and minority religious communities, thus creating risk of selected application to silence expression by persons from minority religious communities.

  • Disproportionate Punishment

The draft bill prescribes unjustifiably hefty punishments of fines and a period of imprisonment ranging from one, two, three or five years for overbroad and ill-defined offences. It also states that “in the event of a second or subsequent conviction, such term of imprisonment or fine or both such imprisonment and fine may be doubled.”

Clause 25 of the bill, which refers to ‘failure to comply with the directives of the Commission’ would make it an offence to fails to comply with such directive within a period of 24 hours and makes the person liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million rupees.

Sri Lanka: Revised version of anti-terror bill threatens human rights

Sri Lanka: Revised version of anti-terror bill threatens human rights

The ICJ considers that revisions made to the draft of proposed anti-terrorism legislation, while positive, fail to sufficiently correct the deficiencies of the earlier draft and, if adopted, would risk serious human rights violations.

The revised bill, in its clause 3 continues to define acts of terrorism in a vague and overbroad matter and undercuts the inherent authority of the judiciary, as people may be detained for two months solely on order of the secretary of the Defence Ministry.

“The overbroad definition coupled with the restriction on the authority of magistrates to review initial Detention Orders is in contravention of fundamental rule of law principles and must be further revised if Sri Lanka is to deliver on its promise to protect the human rights of all of its inhabitants,” said Ian Seiderman, ICJ’s Legal and Policy Director.

The ICJ stresses that these provisions contravene article 13 of Sri Lanka’s Constitution, as well as article 9 of the International Covenant on Civil and Political rights, to which Sri Lanka is a party.

On 15 September 2023, the Ministry of Justice of Sri Lanka published the revised version of the Anti- Terrorism Bill (ATA), which would repeal and replace the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 (PTA). A first draft of the Bill was published in March 2023 and according to government ministers the current revision was aimed at removing certain problematic provisions from the earlier draft. The ICJ had previously expressed concerns about that draft. 

“Sri Lanka should dispense with special regimes like the ATA and instead address terrorism offences through criminal procedures that comply with the rule of law,” said Ian Seiderman. “At  the very least, the Ministry of Justice must revise the present draft in line with international human rights law and standards before parliament takes action on it.”

Among the vague and overbroad provisions of the draft bill are the “encouragement of terrorism” (clause 10) and “dissemination of terrorist publications” (clause 11), under which persons can be detained for sharing or causing to be published statements which are interpreted by the authorities to be in support of terrorism or terrorism activities. The burden of proof for such offences would be unacceptably reversed under the bill, as the accused would be required to prove before the high court that they had not consented to or approved the utterance or publication of such  statements.

The prescribed punishment for these offences is imprisonment up to 15 years and/or a fine up to one million rupees. Property owned by the accused may also be forfeited to the State.

The bill would provide the President with excessive powers to restrict the exercise of human rights, including to impose restriction orders on individual persons, proclaim curfews, designate prohibited places, and make regulations to implement “rehabilitation programmes” for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. Rehabilitation programmes in the past have served a punitive function, as accused persons have often been effectively coerced into accepting rehabilitation particularly in cases where the prosecutor has lacked evidence of criminal conduct.

The ICJ notes the several positive changes in the revised draft, including the removal of the death penalty as a possible punishment and removal of the power of the Deputy Inspector Generals (DIGs) of Police to issue Detention Orders (DO). The new draft would also allow the Magistrate to discharge suspects, in the absence of a DO, where the Magistrate determines that there is no justification for the arrest. DOs, which may only be issued by the Secretary to the Ministry of Defence would now allow for detention of two months without charge, as opposed to three months contemplated by the earlier draft of the bill.  Finally, the revised bill removes mention of the Board of Review, which would have been empowered to hear appeals against DOs in the previous draft, and provides time limits for declarations of prohibited places by the President.

The revised draft also retains the improvements made to the PTA in the first draft including the removal of a provision which accepts “confessions” made before a police officer while in detention as evidence in courts; the issuance of a document by the arresting officer notifying arrest to a family member of the arrested person; employing women police to question or conduct searches of women detainees; access to translations in a language of the accused’s choice; and production before a magistrate every 14 days when a person is detained under a Detention Order (DO).

However, among its many flaws, the draft law is silent on compensation and redress mechanisms for those affected by abuse and misuse of the law. This is a significant shortcoming, as detainees have languished in custody for years under the PTA and have had the cases against them dismissed decades later.

Background

Past experience with the PTA has shown that provisions relating to ‘encouragement of terrorism’ or ‘dissemination of terrorist publications’ are open to abuse particularly against persons from minority communities including journalists. For instance, Ahnaf Jazeem ,whose book of poetry was spuriously identified as promoting “extremism”, was subjected to human rights violations, including arbitrary detention under the PTA. In May 2022, the UN Working Group on Arbitrary Detention stated that Sri Lanka had violated international human rights law by detaining Ahnaf Jazeem.

The ICJ has repeatedly called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. United Nations human rights bodies have also called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act and to repeal the Act.

Nepal: Proposed Bill allowing Government to withdraw criminal cases threatens justice and accountability

Nepal: Proposed Bill allowing Government to withdraw criminal cases threatens justice and accountability

Geneva – The International Commission of Jurists (ICJ) is concerned that legislation introduced by the Government on 16 July could serve to further impunity for serious crimes by giving the Government authority to withdraw criminal cases.  The ICJ calls on the government to withdraw or modify the proposed bill to bring it into conformity with its international legal obligations.

The Bill to Amendment Some Nepal Acts, 2023 (2080 BS), particularly its

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