Sep 26, 2016 | News
Today, the ICJ, in cooperation with the Institute of Law and Public Policy (ILPP) held a round table discussion “Independence, effectiveness and quality of justice: comparative perspectives” in Moscow.
Judges from Norway, the Netherlands, Italy and Russian and German legal scholars took part in the event.
ICJ Commissioner Justice Tamara Morschakova moderated the seminar.
Assessing the independence of judges, quality of judgements and enforcement of judgements were discussed among other topics.
The agenda of the event an be downloaded here.
Sep 23, 2016 | Advocacy, Non-legal submissions
The ICJ, speaking at the UN Human Rights Council, highlighted concerns with criminalization of political gatherings, arbitrary detention, use of military for law enforcement, and trials of civilians before military courts, in Thailand.
The statement was made during discussion of the outcome of the Second Universal Periodic Review (UPR) of Thailand.
While congratulating Thailand on completion of the UPR, the ICJ oral statement continued as follows:
However, the ICJ is disappointed that several key recommendations concerning restrictions of civil and political rights in the country did not enjoy the support of Thailand.
The interim Constitution, put in place by the military government after the May 2014 coup, remains in force. Article 44 gives the government sweeping, unchecked powers inconsistent with the fundamental pillars of the rule of law and human rights.
The military government has issued numerous orders and announcements under the interim Constitution, including some that criminalize political gatherings, allow arbitrary detention for up to seven days without charge, and provide military officers broad powers of law enforcement.
At least 1,811 civilians have faced proceedings in military courts contrary to international law and standards, many merely for exercising their rights to free expression and peaceful assembly.
Thailand did not accept any of the recommendations to remove these restrictions on the rule of law and human rights.
While the ICJ welcomes the Order of 12 September 2016 ending the practice of prosecuting civilians in military courts for crimes committed after that date, approximately 500 civilian cases remain in military courts.
The ICJ is also concerned that in July the government charged three human rights defenders with criminal defamation for raising allegations of torture in the deep South.
The ICJ urges Thailand to accept and implement recommendations relevant to:
- revoking the interim Constitution and all NCPO orders and announcements that are contrary to the rule of law and respect for human rights;
- transferring all pending civilian cases to civilian courts and set aside the convictions of all civilians prosecuted in military courts since the 2014 coup; and
- ending all harassment of human rights defenders in Thailand.
The statement may be downloaded in English and in Thai in PDF here:
thailand-hrc33-upr-advocacy-non-legal submission-2016-eng
thailand-hrc33-upr-advocacy-non-legal-submission-2016-tha
Sep 20, 2016 | News
The ICJ expresses its disappointment with today’s verdict criminalizing the work of human rights defender, Andy Hall, and calls upon Thailand to decriminalize defamation and amend the Computer Crime Act in line with international standards protecting freedom of expression.
This morning, Thailand’s Southern Bangkok Criminal Court found Andy Hall guilty of defaming a Thai fruit processing company under Article 328 of the Thai Criminal Code and violation of Article 14(1) of the Computer Crime Act, and sentenced him to a fine of THB 200,000 (USD$ 5,700) reduced to THB 150,000 (USD $4,300); and four years imprisonment, reduced to three years and suspended for two years.
Andy Hall has said he will appeal the verdict.
“Human rights defenders such as Andy Hall have the right to exercise freedom of expression in advocating for the protection and realization of human rights – a right that Thailand has a duty to protect,” said Kingsley Abbott, Senior International Legal Adviser at the ICJ.
“Unfortunately, there are numerous examples of criminal defamation and the Computer Crime Act being used against human rights defenders in Thailand, a practice that must end, including through a substantial reform of these laws,” he added.
The ICJ and Lawyers Rights Watch Canada submitted a joint amicus curiae brief in the proceedings, arguing that the imposition of harsh penalties such as imprisonment or large fines on a human rights defender risk having a ‘chilling effect’ on the exercise of freedom of expression, which Thailand is bound to protect pursuant to its international legal obligations.
The ICJ anticipates the arguments contained in the joint amicus will be considered on appeal.
“It is also disappointing that the Court did not appear to take into account the recent decision of the Phuket Provincial Court in the Phuketwan case, which found that the Computer Crime Act was not intended to be used in cases of alleged defamation,” said Abbott.
On 1 September 2015, the Phuket Provincial Court acquitted two journalists of criminal defamation and violations of the Computer Crime Act after the Royal Thai Navy complained the journalists defamed it when, on 17 July 2013, the journalists reproduced a paragraph from a Pulitzer prize-winning Reuters article that alleged “Thai naval forces” were complicit in human trafficking.
The criminal defamation proceedings brought against Andy Hall are among several that have been brought against human rights defenders in Thailand in recent years.
Others examples include the charges laid against activists Pornpen Khongkachonkiet, Somchai Homloar and Anchana Heemina in July 2016 for raising allegations of torture in the deep South; and those brought against activists protesting various development projects in Thailand which are allegedly having an adverse impact on communities.
Background
Today’s case is one of four criminal and civil proceedings (two criminal and two civil) a Thai fruit processing company, Natural Fruit Company Ltd., has brought against Andy Hall in relation to the report of a Finnish NGO, Finnwatch, published in January 2013, called Cheap Has a High Price.
Andy Hall’s research was included in the report which alleged that labour rights violations were taking place at Natural Fruit Company Ltd., whose employees included migrant workers from Myanmar.
In September 2015, a Thai Appeal Court upheld the dismissal of the other criminal defamation proceeding Natural Fruit Company Ltd. brought against Andy Hall. That proceeding is currently before the Supreme Court. Two civil proceedings are also before the Thai courts but have been suspended pending resolution of the two criminal proceedings.
The use of criminal defamation laws, carrying penalties of imprisonment, against human rights defenders reporting on alleged human violations, constitutes a violation of Thailand’s obligations under the International Covenant on Civil and Political Rights (ICCPR), to which it is a state party.
thailand-verdict-andy-hall-case-news-press-release-2016-eng (full text in PDF)
thailand-verdict-andy-hall-case-news-press-release-2016-tha (full text in Thai, PDF)
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Kingsley Abbott, ICJ Senior International Legal Adviser, t: +66 9 4470 1345, e: kingsley.abbott(a)icj.org
Sep 20, 2016 | News
The ICJ expresses its deep concern at recent developments in Botswana in respect of impeachment proceedings initiated against four judges and their suspension from office pending a disciplinary hearing.
The four judges, constituting one-third of the 12 Member High Court of Botswana, Justices Key Dingake, Modiri Letsididi, Ranier Busang and Mercy Garekwe, were suspended under section 97 of the Botswana Constitution on allegations of misconduct and bringing the name of the judiciary into disrepute.
The ICJ calls on all involved judicial and executive authorities to scrupulously respect the principles governing the independence of the judiciary in their conduct in addressing this serious situation, including in their actions throughout the course of any impeachment and disciplinary proceedings.
On 28 August 2015, the President of Botswana, Ian Khama, suspended the four judges after they, along with the other eight members of the Court, signed a petition directed to the Chief Justice.
The petition had objected, among other things, to alleged poor conditions of service, as well as disparaging comments the Chief Justice was said have made about another judge’s ethnicity and defamatory statements related to corruption.
The petition also advocated for the Chief Justice’s impeachment and was copied to all judges of the High Court.
The Chief Justice and the President took issue with the contents and tone of the petition, alleging it to be disrespectful of the Chief Justice and causing disrepute of the judiciary in the eyes of members of the public.
On the 4th of September 2015, the Law Society of Botswana (LSB) issued a statement in which it condemned the actions taken by the Chief Justice and President against the four judges.
The LSB considered that the case ought to have been resolved administratively rather than through what it said was “selective” impeachment of only four out of the 12 judges, particularly as no prima facie evidence existed that a crime had been committed.
The LSB alleged that “the selective approach in suspending and subjecting to a Tribunal only four (4) of the twelve (12) Judges who had signed the Petition, supported the widely held view that the action was a witch-hunt intended to remove certain Judges and ensure a more Executive Minded Bench.”
On the 23rd of September 2015, the LSB issued another statement following reports that three of the 12 judges had withdrawn their signatures to the petition after the judges had been “offered an ‘amnesty’ against any possible action being taken against them if they retract their association and / or apologise”.
The LSB went on to criticize an amnesty “made only to a select few of the Judges and not all” the 12 judges who signed the petition.
On 24 September 2015, the LSB issued a further statement calling on the Chief Justice to resign or face impeachment after the JSC offered amnesty to three other judges, who had signed or associated themselves with the petition.
The amnesty extended to any possible action being taken against them if they retracted their association and / or apologized. The offer of amnesty was not made to all 12 judges that had signed the petition, and in particular, it was not made to the four suspended judges.
On 28 September 2015, the Impeachment tribunal was to have commenced hearing of the matter, but the four concerned judges instituted litigation against appointment of the Tribunal and their suspension, which litigation is still pending.
Since then, the courts have been irregularly issuing instructions, contrary to proper procedure, through the Registrar of the High Court in the pending litigation, and given that the Registrar is party to the litigation, this creates an inherent conflict of interest.
These developments surrounding this case have raised serious concerns over the independence of the judiciary generally but more specifically the prospects for an independent, impartial and fair hearing for the suspended judges.
Read mor
botswana-impeachment-judges-news-web-stories-2016-eng (full text in PDF)
Sep 18, 2016 | News
The ICJ held a workshop on Environmental Impact Assessment in Kyauk Phyu on 17-18 September 2016. Thirteen women and 30 men attended from Kyauk Phyu town, its surrounding villages and the regional capital Sittwe.
Kyauk Phyu is the proposed site for a megaproject to include a Special Economic Zone and deep seaport in Myanmar’s westernmost Rakhine State.
A Chinese company plans to develop the projects and the newly elected Myanmar Government is considering its future.
The EIA workshop included lawyers and civil society representatives as well as village administrators from each of the nine village administrative tracts in the proposed SEZ area.
An EIA is designed to avoid, minimize, eliminate and reduce harmful impacts of development projects.
It can require revising plans, making alternative arrangements and even cancelling project components.
Myanmar law now requires EIAs, including in SEZs, under the 2014 SEZ Law and 2015 EIA Procedure. Health, livelihood and social impact assessments are critical to this process.
Projects may only commence after the Environment Ministry approves an EIA.
Sean Bain, ICJ Legal Consultant for Myanmar, shared updates from research on SEZ legal frameworks and project plans.
The ICJ’s Legal Researcher, U Hayman Oo, facilitated discussions and linked these laws with local developments.
Participants were encouraged to document their land and livelihoods so they may have an evidence base to refer to in future.
Matthew Baird, an environmental lawyer supporting both the Environment Ministry and civil society groups, outlined each step involved in an EIA.
He emphasized the importance of public participation throughout the process – particularly in the early screening and scoping stages.
Early community engagement is critical to influence the focus and scope of the investigation, which would inform the draft EIA Report developed by an EIA consultancy firm.
Daw Khin Su Su Naing, from Coffey, explained the role of the consultancy firms hired by companies to conduct EIAs.
She described how social impacts are assessed, providing examples from elsewhere in Myanmar. Public participation was again emphasised as crucial.
U Mya Hlaing, from the Thilawa Social Development Group, shared community experiences from the development of Myanmar’s only active SEZ – located in Thilawa, across the river from Yangon. Villagers resettled by the project remain concerned about the standard of relocation sites and loss of livelihood opportunities.
Community organizing in Thilawa has been an important factor in improving public participation in EIA and resettlement processes.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser, discussed international business and human rights frameworks, and the monitoring role of civil society.
From Earth Rights International, U Zaw Zaw explained how an Operational Grievance Mechanism can be a useful tool for creating a communication channel between affected people and companies.
An OGM cannot solve all problems, but can help to discuss issues and remedies as they arise.
Many participants have experienced impacts from irresponsible and at times illegal business activities.
Kyauk Phyu hosts oil and gas facilities that serve a pipeline, finished in 2013, linking the Bay of Bengal with western China. No public EIA was conducted, and locals say the pipeline project led to land loss, deteriorating livelihoods and environmental pollution.
Many are still owed compensation and some were imprisoned for protesting to demand remedies.
Workshop participants expressed concerns that these problems will be repeated.
U Mya Hlaing encouraged locals in Kyauk Phyu to review the legal procedures and understand government obligations: “I am just a poorly educated farmer, but I have carefully read the laws and it has helped our community to demand our rights.”
He encouraged participants to raise concerns with Myanmar’s new governance bodies for SEZ management.
This was the ICJ’s third event in Kyauk Phyu over two years, with further initiatives planned.
