Dec 5, 2017 | News
The ICJ, following a mission to Kazakhstan this week to assess the proposed draft law reforming the regulation of the legal profession, called for the postponement of the adoption of the law and more active participation of the legal profession in its development.
The ICJ stressed that any reform of the legal profession should strengthen the independence of lawyers to ensure that it is fully in line with international law and standards on the role of lawyers.
The independence of the legal profession is vital for lawyers to protect the human rights of their clients, including the right to a fair trial and access to justice.
The ICJ is concerned that the Draft Law changes the disciplinary system for lawyers from an independent procedure to one under significant influence of the executive.
In particular, the Draft Law provides for participation of representatives of the executive in disciplinary bodies.
The ICJ recalls that an independent disciplinary procedure is one of the pillars of an independent legal profession and should be guaranteed by law and in practice.
In line with the principle of an independent legal profession, the ICJ also believes that the provision in the Draft Law allowing for the creation of a “State Advokartura” should be removed.
One of the weaknesses of the current administration of the legal profession in Kazakhstan is that the qualification process for lawyers is not independent of the executive.
The ICJ stresses that the reform creates an opportunity to make the qualification procedure for lawyers fully independent, and administered by the Bar Association.
This would bring the current legislation in line with best international practices and with the principle of the independence of the legal profession.
The ICJ has noted that the Bar Association has not been sufficiently involved in the discussion of the reform of the profession. As a professional association of lawyers, the Bar Association should play a significant role the development of the legislation regulating its functioning and should ideally lead the discussion on the reform.
The ICJ believes that the adoption of the law should not be rushed and further discussion among all interested parties should take place before the Draft Law progresses further.
Reforms along the lines set out above would be consistent with Kazakhstan’s international obligations and commitments under, for instance, the International Covenant on Civil and Political Rights, and the UN Basic Principles on the Role of Lawyers.
Background
On 4 and 5 December, the ICJ carried out a visit to Astana where a number of high-level meetings were held. The visit was prompted by the reform of the legal profession and the related draft law which has been submitted to the Parliament.
The ICJ is grateful to its delegates from different jurisdictions who agreed to join the ICJ mission:
Mr. Otmar Kury, President of the Hamburg Bar Association, Chairman of the Commission on Federal Lawyers Act of the German Federal Bar
Jeroen Browder, President of the Ethics Commission of the Bar Association of the Netherlands and former President of the Bar Association of the Netherlands
Georg Stawa, President of the European Commission for the Effectiveness of Justice (CEPEJ)
Christina Blacklaws, Vice President of the Law Society of England and Wales
Chika Muorah, International Policy Adviser of the Law Society of England and Wales
The ICJ expresses its gratitude to all who kindly agreed to meet with it. In particular, the Mission thanks the Minister of Justice of Kazakhstan, the Supreme Court, members of the Parliament, the President of the Republican Bar Association, the “Kazbar” NGO and all others who it met with.
Kazakhstan-News-Web stories-Independence of the judiciary-2017-ENG (full report, in English)
Kazakhstan-MissionLawyers-News-pressreleases-2017-RUS (full story in Russian, PDF)
Dec 4, 2017 | News
The ICJ called today on the Polish Parliament (Sejm) to reject two draft laws that, if approved, would significantly undermine the independence of the judiciary.
The Sejm is reportedly set to approve tomorrow draft bill no. 2002 that, among other measures, will allow Parliament and the Government to appoint a majority of the members of the National Judicial Council, the institution in charge of defending the independence of the judiciary and appointing judges.
This law gives the Polish legislature and executive, which have increasingly demonstrated deep disregard for human rights and the rule of law, undue influence over the judiciary.
Additionally, draft bill no. 2003, which will also come before the Parliament for approval, will lower the age of retirement for Supreme Court judges from 70 to 65 years and allow the President of the Republic to decide which judges are to be reinstated.
“These draft laws tabled by President Duda are a direct blow to the principle of separation of powers, the bedrock of the rule of law,” said Massimo Frigo, Senior Legal Adviser with the ICJ Europe Programme. “The changes made to the draft laws rejected by the President last July have not remedied in any way their adverse implications for judicial independence”.
In July, President Andrzej Duda vetoed two draft laws approved by Parliament that would have automatically dismissed all judges of the Supreme Court and entrusted the Minister of Justice with any decision on their reappointment.
The provision on the appointment of the members of the National Judicial Council was also included in the draft laws rejected in July and has changed only with regard to the parliamentary majority needed for such appointments.
“These series of legislative attacks on the independence of the judiciary in Poland must stop. These actions are inconsistent with the international obligations of Poland to ensure the independence of judges,” said Massimo Frigo.
“If these laws are approved and enter into force, this will be a decisive blow to the rule of law in Poland. A EU Member State that directly undermines the checks and balances of its own legal system threatens the founding values of the EU of the rule of law and respect for human rights, and makes it essential that the EU intervene through its article 7 procedure.” he added.
An article 7 procedure can lead to a State losing its voting rights within the EU decision-making processes. It is triggered by the European institutions, or one third of Member States, when they consider that there is a “clear risk of a serious breach by a Member State” of EU values, among which the rule of law and human rights. It is the European Council that then decides on the exclusion, if it determines that the breach of these values is “serious and persistent”.
Contact
Massimo Frigo, ICJ Senior Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
Poland-Draft law judiciary-News-Press releases-2017-ENG (full text in PDF)
Dec 4, 2017 | News
Today, the International Commission of Jurists (ICJ) began a two-day mission on the reform of the legal profession in Kazakhstan.
The ICJ mission will discuss comparative experiences and international standards on the role and independence of lawyers.
The ICJ mission will include representatives of the Bar Associations of Germany, the Netherlands and the United Kingdom.
The experts will have an opportunity to share their views on the reform and discuss their own country practices on the role of lawyers and institutional guarantees of the independence of the legal profession.
In Astana, the ICJ mission will meet, among others, with the Minister of Justice, the Supreme Court of Kazakhstan, members of the Parliament, the Kazakhstan Collegium of Lawyers and National Public Association of Commercial Lawyers “Kazakhstan Bar Association” (“KazBar”).
Contact:
Temur Shakirov, Senior Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org
Nov 30, 2017 | News
The ICJ addressed representatives of over 400 civil society organizations from all 14 states and regions of Myanmar at the MATA Forum held in the township of Pyin Oo Lwin, close to Mandalay.
Hosted from 28 to 30 November by the Myanmar Alliance for Transparency and Accountability (MATA), the Forum featured seminars and discussions on the ‘The Role of Civil Society Organizations related to Democracy, Federalism, Human Rights and Natural Resource Governance.’
MATA facilitated presentations and discussions by a range of actors on these topics – including by Sean Bain, an International Legal Adviser from the ICJ.
The ICJ’s presentation began with a reflection about key legal concepts, noting the differences between ‘rule by law’ and ‘rule of law’ as understood in the Myanmar context.
MATA members helped facilitate discussion on the application of law in Myanmar, and on key rule of law principles of democracy, human rights, accountability, transparency and justice.
Participants in the Forum were presented with an overview of Myanmar’s laws governing land and investment, assessed in relation to the State’s international legal obligations to respect and to protect human rights.
In particular, Myanmar ratified the International Covenant on Economic, Social and Cultural Rights in October 2017 and its obligations under this treaty will enter into force on 6 January 2018.
It was noted that many national laws – including a proposed new Land Acquisition Bill – fall short on fulfilling the State’s international human rights law obligations.
There was also discussion about how applying the principle of non-discrimination in law and practice is critical for Myanmar’s NLD-led government to meet its international obligations and fulfill its stated commitment to rule of law.
Historical examples were given of legal regimes in South Africa and Australia that legalized discriminatory practices of apartheid and the dehumanization of indigenous peoples. The law must no longer be used in Myanmar as a justification for discrimination.
The ICJ’s involvement in this Forum is part of ongoing engagement with civil society groups in Myanmar.
Nov 27, 2017 | News
Today, the ICJ called on the Royal Government of Cambodia (RGC) to end the escalating repression of civil society in Cambodia and reverse the rapidly deteriorating rule of law and human rights crisis in the country.
Yesterday, it was reported that Prime Minister Hun Sen called for the shut down of one of Cambodia’s leading, independent NGOs, Cambodian Centre for Human Rights (CCHR), and directed the Ministry of Interior to investigate CCHR for its alleged engagement with “foreigners”.
The Prime Minister’s statement appeared to allude to alleged involvement of CCHR in a supposed foreign-backed “colour revolution” to overthrow the government.
“The Cambodian Center for Human Rights plays an essential, independent role in promoting and protecting human rights in Cambodia and must be able to continue its important work without fear of retaliation, reprisal or other unjustified interference,” said Kingsley Abbott, the ICJ’s Senior International Legal Adviser for Southeast Asia.
“Everyone has the right to form and participate in organizations established to work on human rights, and States have a corresponding duty to protect the ability of such organizations and their participants to carry out their work to promote and defend human rights,” he added.
This latest development comes amidst a severe clampdown by the RGC on perceived dissenting voices including civil society, activists, the independent media and political opposition including through the recent dissolution of the major opposition party, the Cambodia National Rescue Party (CNRP), in what appeared to be a highly politicized Supreme Court proceeding, and the arrest and detention of its leader, Kem Sokha.
“This new, targeted focus on the Cambodian Center for Human Rights by the Government should make it clear that the human rights and rule of law crisis gripping Cambodia is not showing any signs of abating and requires the urgent attention of the international community,” said Abbott.
“All legal, political and economic options should be on the table,” he added.
Contact
Kingsley Abbott, Senior International Legal Adviser, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott(a)icj.org
Background
CCHR was founded by Kem Sokha in 2002 before he left the organization in 2007 to pursue a career in politics.
Yesterday, CCHR released a statement “reaffirming its absolute non-partisanship and independence from all political parties” and emphasizing “strict independence” as a core value of its organization. CCHR also asserted in its statement that an “independent and impartial investigation would find no wrongdoing whatsoever on the part of the organization” and called for “meaningful dialogue” with the RGC.
Articles 19 and 22 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a State Party, guarantees the rights of all persons to freedom of expression and opinion and to freedom of association with others.
The UN Declaration on Human Rights Defenders, adopted by a consensus of States at the UN General Assembly, including Cambodia, affirms the right of everyone to form and participate in NGOs to promote and protect human rights. The Declaration further dictates that states should take all necessary measures to protect human rights defenders from retaliation and other forms of arbitrary action as a consequence of their legitimate work.
On 18 October 2017, the ICJ released a report which found that the RGC was increasingly “weaponizing” the law to restrict dissent and attack democracy. The report recorded that the “single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors,” which includes “an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in all others”.
On 23 October 2017, the 26th anniversary of the 1991 Paris Peace Conference on Cambodia, the ICJ, together with 54 other organizations, issued an open letter to the United Nations Secretary-General and the Conference’s co-chairs calling for the reconvening of the members of the Conference and other concerned stakeholders for an emergency summit to address the human rights crisis in the country.
