Jun 29, 2017 | Advocacy, News, Non-legal submissions
The ICJ, together with other 60 national and international human rights organizations urged today the Myanmar authorities, and in particular the Ministry of Transport and Communication and the Parliament, to ensure the repeal of the offence of criminal defamation.
Myanmar-JointStatement-CriminalDefamation-2017-ENG (joint statement in English)
Myanmar-JointStatement-CriminalDefamation-2017-BUR (joint statement in Burmese)
Jun 28, 2017 | News
Government moves to amend the regulatory framework of the legal profession in Kazakhstan may undermine its independence and are contrary to the principle of self-regulation of the profession, the ICJ said today.
The ICJ called on the authorities of Kazakhstan to refrain from interference in the governance of the independent legal profession and step back to allow the collegia of lawyers to continue to take responsibility for such matters.
The ICJ stressed that any proposals for reform put forward by the governing bodies of the profession should be developed in consultation with and enjoy the consent of the members of advokatura in accordance with international law and standards on the independence of lawyers.
The ICJ was responding to proposals put forward by the Justice Minister Marat Beketayev for reform of the legal profession in Kazakhstan.
In a statement to Parliament on 29 May 2017 (Report of the Minister of Justice on the issues of further development and reform of the institutes of notary and advokatura on 29 May 2017), the Minister outlined plans to:
- lower training and entrance fees to the profession “in order to simplify access to the profession”;
- broaden the powers of the Republican Collegium to regulate the disciplinary system for lawyers, in light of the Minister’s view that lawyers were avoiding disciplinary responsibility in many cases under the current system;
- require lawyers to undergo annual training followed by exams, which would be set not by the collegia themselves, but by universities or external training centres;
- require lawyers, in addition to the participation in state-funded legal aid scheme, to provide mandatory legal assistance without financial support from the Government, which the Minister described as “pro bono” service
The importance of an independent legal profession which is self-regulating is well recognized and accepted under international standards and by international authorities.
One of the means by which such independence may be guaranteed is the governance of the profession by an organization independent from the State or other national institutions.
International standards provide that it is an important function of the lawyer’s association “[t]o maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession” (Singhvi Declaration, para.99).
In this context, comments by the Justice Minister Marat Beketayev on the need to change the disciplinary system due to lawyers avoiding disciplinary responsibility “for violations committed” is of serious concern, the ICJ said.
While it is important that lawyers who act against the interests of their clients, or otherwise violate standards of lawyers’ ethics are subject to disciplinary responsibility, it is the function of the profession itself to decide on such matters. Disciplinary proceedings should never be used to undermine lawyers’ independence.
Lowering entrance fees for qualifying lawyers may be a positive measure that can enhance access to the profession for qualifying lawyers, in circumstances where such fees are inaccessibly high.
However the initiating and design of such proposals should not be in the hands of the executive, as this may limit the independence and effectiveness of the legal profession.
Financial sustainability of an independent legal profession largely depends on its members’ fees.
The advokatura should be able to regulate and finance its regular operations, including administration and training, the ICJ added.
As noted by the former UN Special Rapporteur on the Independence of Judges and Lawyers in his report of 2009: “… the legal profession is best placed to determine admission requirements and procedures and should thus be responsible for administering examinations and granting professional certificates. This would further help in preserving its independence and self-governance, as advised in the Basic Principles.”
The ICJ is also concerned at suggestions that, as part of continuing legal education, lawyers will be subject to examinations by institutions outside the profession.
While it remains unclear what role or effect such examinations would have, the proposal raises concerns regarding the legal profession’s self-regulation and would risk undermining its independence, the ICJ said.
It should be recalled that, Kazakhstan is required take measures to remove obstacles to the independence of lawyers.
Regarding the proposals on so called ‘pro bono legal assistance’, while it is welcome when any State adopts measures to make legal aid more accessible, such measures should not place an unreasonable burden on lawyers to provide mandatory legal assistance.
The scheme proposed by the Minister for Justice whereby lawyers become responsible for providing legal services without financial compensation for their work is of concern, and appears unlikely to ensure a high quality of legal advice, the ICJ added.
It should be the role of the government to provide regular and sufficient funding for such services, ensuring that legal aid is available for indigent clients in line with international standards.
Kazakhstan-Interference legal profession-News-2017-RUS (Russian version, in PDF)
Jun 26, 2017 | Advocacy
Amnesty International (AI) and the ICJ welcome the commitments made by the Royal Thai Government to prevent torture and other ill-treatment and urge authorities to ensure no further delay in implementing these undertakings.
The statement came on on the 30th anniversary of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) – marked on June 26 as the International Day in Support of Victims of Torture.
October 2017 will mark ten years since Thailand pledged to respect and protect the right of all persons to be free from torture and other ill-treatment by ratifying the Convention against Torture. AI and the ICJ however remain concerned that torture is still prevalent throughout the country.
Thailand has made significant and welcome commitments at the United Nations Committee against Torture, Universal Periodic Review of the Human Rights Council and UN Human Rights Committee to uphold its obligations under the Convention against Torture.
These include commitments to penalize torture, as defined in the Convention, under its criminal law and to create an independent body to visit all places of detention under the purview of the Ministry of Justice.
However, to date, these remain paper promises, which have not yet translated into action.
AI and the ICJ call on Thailand to move forward with these commitments, including by criminalizing torture and other acts of ill-treatment, establishing practical, legal and procedural safeguards against such practices, and ensuring that victims and others can report torture and other ill-treatment without fear.
The prohibition of torture and other ill-treatment in international law is absolute. Torture is impermissible in all circumstances, including during public emergencies or in the context of threats to public security.
AI and the ICJ regret repeated delays to the finalisation and passage of Thailand’s Draft Prevention and Suppression of Torture and Enforced Disappearance Act.
If the remaining discrepancies with the Convention against Torture are addressed, the passage of this Act would criminalise torture and enforced disappearances and establish other safeguards against these acts.
Both organizations urge the Royal Thai Government to actualise its commitment to eradicating torture by addressing remaining shortcomings in the Act and prioritising its passage into law in a form that fully complies with Thailand’s obligations under the Convention against Torture and the Convention for the Protection of All Persons from Enforced Disappearance.
Additional consultations with the public and other parties should be carried out in a transparent and inclusive manner and without delay.
Similarly, AI and the ICJ urge Thailand to move ahead with its commitment to ratify the Optional Protocol to the Convention against Torture, which obligates authorities to establish a National Preventive Mechanism – an independent expert body authorised to visit places of detention, including by carrying out unannounced visits – as well as to allow such visits by an international expert body.
Such independent scrutiny is critical to prevent torture and other ill-treatment, including through implementing their detailed recommendations based on visits.
Authorities should also act immediately on the commitment made at Thailand’s Universal Periodic Review before the United Nations Human Rights Council in 2016 to inspect places of detention in line with the revised UN Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules.
Thailand-Torture satement AI-ICJ-Advocacy-ENG-2017 (full statement in English, PDF)
Thailand-Torture satement AI-ICJ-Advocacy-THA-2017 (full statement in Thai, PDF)
Jun 23, 2017 | News, Op-eds
An opinion editorial by Belisário dos Santos Júnior, a Brazilian lawyer who is a member of ICJ’s Executive Committee.
When assessing the Brazilian political situation, it is important to always mention the date, since the situation changes almost every minute, following the rhythm of denunciations and accusations.
Over the past three years, the main preoccupation of most people living in Latin America has been the level of violence in their countries.
In Brazil, however, although political and criminal violence is high, corruption has been the primary concern of the population, before health and with violence coming in only third position of the population’s concerns (source: Latino barômetro).
The yearly global corruption perception index of Transparency International put Brazil in the 79th position, of 176 countries rated (where 1st position is given to the country with the lowest perception of corruption and 176th given to the country with the highest perception of corruption) with a grade of 40 (0 is for the most corrupted countries and 100 for the cleanest ones).
Brazil was sharing its position with countries such as China, India and Belarus. Its grade was 3 points below the world average.
The report mentioned a clear relationship between corruption and inequalities, creating a vicious circle between corruption, unequal distribution of power and unequal distribution of wealth. How can we correct this?
Brazil is currently reacting to the problem with new laws, new police investigations and legal proceedings, which are important.
But these measures alone will not be enough to change a culture of bypassing laws into a culture of integrity and respect of honesty.
The last elected government, elected in 2014, with Dilma Rousseff as President and Michel Temer as Vice-President (photo), should have lasted until 2018 but fell in 2016 with the impeachment of Dilma Rousseff led by the President of the Federal Supreme Court and decided by the National Congress after two ballots.
Rousseff was accused of having manipulated the federal budget to hide the country’s real economic situation. Michel Temer assumed office as President following Rousseff’s impeachment.
Lula da Silva, the former President (2003-2010), ended his term in the middle of a legal storm when the Federal Supreme Court issued its judgment on the Criminal Lawsuit 470 (corruption of parliamentarians to maintain the influence of the Government in the Congress) and sentenced to prison ministers, businessmen, leaders of Lula’s Workers’ Party and other party leaders.
With the progressive use of the system of delação premiada (which is where a defendant is granted a reduced sentence or other beneficial measure for providing evidence against other persons), a measure included in the new Brazilian law to combat criminal organizations, and a series of police operations (the most famous of which is the operation Lava Jato, or ‘Car Wash’ in English), even more politicians and businessmen have been arrested and/or tried for corruption or money laundering.
More than one third of the National Congress’s members have been targeted by police operations for being implicated in controversial acts, either as agents or beneficiaries.
The current President, Michel Temer, and some of his ministers are under investigation by the Federal Police and on the verge of being denounced by the Federal Prosecutor’s Office for passive corruption.
The last two delação premiada, those of the CEOs of two Brazilian transnational corporations (Odebrecht and JBS), have overturned the political order, and so did the information that more than 2000 politicians received money from slush funds to finance their election campaigns.
Two governors and various parliamentarians are already in jail, including the former President of the Chamber of Deputies, Eduardo Cunha.
Lula da Silva himself is already facing various legal proceedings for corruption.
The winning ticket of the 2014 presidential election was recently judged in a case concerning potential abuse of economic power during their campaign.
Following a very close vote (4 against 3), the Superior Electoral Court rejected claims that illegal money was used in the Rousseff-Temer campaign.
If convicted, Michel Temer would have been forced out of the presidency.
The claim of economic power abuse was rejected only on a procedural matter: the evidence gathered – recordings, pictures, content of delação premiada – was considered inadmissible.
Aécio Neves, the opposition leader who competed against the Rousseff-Temer ticket in 2014, is in no better situation: a few weeks ago, a judicial decision deprived him of his mandate in the Federal Senate.
His sister and his cousin are already in jail and he himself is at risk of being sent to prison if the Federal Supreme Court requests this from the National Congress.
The Brazilian institutions are under investigation, but they are still functioning. Even members of the judiciary and the prosecutor’s office are being investigated.
There is still a decent level of trust in the work the current economic team is doing.
The National Congress gave its approval for the Constitutional Amendment on the Expenditure Ceiling, which will impose a series of conditions to public spending over the next few years. This somehow increases the credibility of the country’s economy.
On the agenda of the Congress, but affected by the series of denunciations for corruption that have hit parliamentarians, are the social security and labour reform bills considered essential for the future of the country by all the economic experts.
But it must also be noted that in the name of the fight against corruption, the Police and Federal Prosecutor’s Office have committed some abuses, to the point that a judge of the Supreme Court said Brazil was on the way to turning into a police state.
Corruption has reached such a level of intensity in the Brazilian political world that people are left in a severe and dangerous state of disappointment and despair. Already the current President is reaching a mere 1% approval rating…
Only elections would improve such a situation. The next presidential election is scheduled in 2018. But who will be eligible to run for it? The law prevents anyone who has a police record from applying.
However, society is reacting, taking various initiatives that value integrity measures, compliance actions, measures linked to education, in addition to the holding of intense debates demanding respect for democracy and human rights and calling for political reform.
Some people want direct elections now but this is contrary to the Constitution. However, 2018 is a long way to go and in the meantime there will be many public demonstrations.
But one thing is sure: Brazil is greater than the crisis it is facing now. This country has survived worse situations, including two long periods of dictatorship. Brazil will battle against this new agony. Respect for democracy, the Constitution and rule of law will prevail at the end.
A versão portuguesa pode ser descarregada abaixo:
Brazil-Corruption crisis-News-Op-ed-2017-POR (em PDF)
Jun 23, 2017 | News
Today, the ICJ co-hosted an event in Bangkok, Thailand, named “Torture Bill, Still No Justice” to commemorate International Day in Support of Victims of Torture.
The event began with a keynote address by Professor Vitit Muntarbhorn, Special Rapporteur on violence and discrimination based on sexual orientation and gender identity and former ICJ Commissioner.
Following a screening of the film “The Railway Man”, the ICJ moderated a panel discussion which included victims of torture.
The event focused on the decision in February this year of Thailand’s National Legislative Assembly (NLA) to further delay the passage of essential legislation criminalizing torture and enforced disappearance.
Thailand is a State party to the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and has signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
The other organizers of the event were the Southeast Asia Regional Office of the Office of the High Commissioner for Human Rights, Amnesty International Thailand, the Cross-Cultural Foundation (CrCF), the Association for the Prevention of Torture (APT) and the Canadian Embassy in Bangkok.
A comic in English and Thai named “Torture is a Crime” was produced especially for the event by Shazeera Zawawi of APT.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser for Southeast Asia, t: +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
Thailand-Comic-Torture is A Crime-Advocacy-2017-ENG (English version of the comic, PDF)
Thai version here
