Feb 21, 2014 | News
The Kuala Lumpur High Court’s decision today to convict prominent Malaysian lawyer Karpal Singh on charges of sedition is inconsistent with international law and standards regarding free expression of opinion by lawyers, the ICJ said.
“This conviction sends a message that lawyers in Malaysia are not free to express their opinions about legal issues,” said Emerlynne Gil, ICJ’s International Legal Adviser on Southeast Asia.
Karpal Singh’s conviction was based on the fact that during a press conference held at his law firm in early 2009 he had spoken allegedly “seditious words” when questioned about whether Sultan Azlan Shah had the legal authority to remove the province’s Chief Minister, Datuk Seri Mohammad Nizar Jamaluddin, from office.
“This case is another sign of the lack of respect of the Malaysian government for the principle of free expression,” said Gil. “Karpal Singh was expressing an opinion in his capacity as a lawyer over a matter of law. He has every right to do that, as a lawyer, and of course as someone exercising his right to free expression of his views. He also has acted in fulfilment of a core function of the legal profession, which is to contribute to the public discourse on matters of law.”
The UN Basic Principles on the Role of Lawyers specifically provide that lawyers, like ordinary citizens, are entitled to freedom of opinion and expression. They have the right “to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights” without fear of suffering professional restrictions or repercussions due to their lawful action.
The High Court has fixed 7 March 2014 to hear Karpal’s mitigating circumstances, and for sentencing.
Under section 4(1) of the 1948 Sedition Act, Karpal Singh now faces a fine of up to RM 5,000 (approximately US$1,5010) and/or imprisonment of up to three years.
The conviction may force Karpal Singh to give up his seat as a member of the Malaysian parliament. Under the Federal Constitution, an elected representative is disqualified from office if fined more than RM 2,000 or jailed for a term exceeding one year.
Karpal Singh has provided legal defense in several high profile cases, including that of opposition leader Anwar Ibrahim, whose trial on charges of ‘sodomy’ has drawn heavy criticism in Malaysia and internationally.
Contact:
Emerlynne Gil, ICJ International Legal Adviser for Southeast Asia, t +66 2 619 8477; email: emerlynne.gil(a)icj.org
Craig Knowles, ICJ Media Consultant, t +66 81 9077653; email:craig.knowles(a)icj.org
Feb 21, 2014 | Advocacy, News, Non-legal submissions
The ICJ and other human rights organizations issued a public statement calling on Spanish lawmakers not to pass draft legislation that, if approved, would seriously limit Spanish courts’ ability to investigate and prosecute serious crimes under international law.
The draft legislation, tabled in Parliament by the Popular Party (PP), provides that, for cases involving allegations of genocide, crimes against humanity and war crimes not occurring on Spanish territory to be investigated and prosecuted in Spain, the suspect must either be a Spanish national or a foreigner habitually resident in Spain or a foreigner who is in Spain, whose extradition has been denied by Spanish authorities.
For case of torture and enforced disappearance, the proposed legislation requires that the suspect be a Spanish national or, alternatively, that the victim be a Spanish national at the time when the crime was committed and that the suspect be present in Spain when jurisdiction is assumed.
Where these conditions are not met, the proposal would allow Spanish courts to hear cases for those crimes for which prosecution is required by international treaties where the suspect is a foreigner on Spanish soil, so long as Spain has received and denied an extradition request.
The ICJ and other organizations stressed in their statement that if enacted, this legislation would close the doors of Spanish courts to certain victims of gross human rights violations who are unlikely otherwise to be able to obtain justice, particularly within their own jurisdictions.
Spain-Universaljurisdiction-NGOsJointStatement-2014-eng (download the joint statement in English)
Spain-Universaljurisdiction-NGOsJointStatement-2014-SPA (download the joint statement in Spanish)
Feb 17, 2014 | News
The ICJ today expressed concern at a ruling of the Italian Constitutional Court which denies full accountability of Italian officials in the case of the 2003 unlawful rendition, enforced disappearance and torture of Osama Mustafa Hassan Nasr, also known as Abu Omar.
In a ruling making no mention of the international human rights law obligations of Italy, the Court agreed with the contention of the Italian Government that it may protect from disclosure and use in court what it considers to be “secrets of state” even if to do so would prevent the revelation of the truth about serious crimes and human rights violations and the holding of those responsible to account.
The Court ruled that, under the Italian Constitution and the law on secrets of state, it is the sole prerogative of the President of the Council of Ministers, exercising “a wide discretionary power”, to establish the width of application of the secret of state doctrine.
The Court affirmed that such decisions cannot be questioned by ordinary courts.
A number of Italian and United States intelligence agents, including the former Director of the Italian Military Secret Service, Nicolò Pollari, had been found guilty of criminal offences in connection with the rendition.
The Constitutional Court’s ruling is likely to effectively annul the convictions of the top Italian secret agents involved in the rendition.
“This ruling constitutes a serious blow to the fight against impunity for some of the most serious crimes under international law”, said Massimo Frigo, Legal Adviser for the Europe Programme. “It disregards fundamental pillars of international human rights law, including the right to truth and the duty to investigate, prosecute and ensure accountability for gross violations of human rights”.
“The doctrine of “secret of state” must never be used as a means to cover up responsibility for crimes under international law or gross violations of human rights,” Frigo added. “The United States, which is primarily responsible, deplorably has abdicated its responsibility to meaningfully investigate and hold officials to account for gross human rights violations in its rendition and secret detention programme. Italy, by contrast, had been the only country in which the courts had imposed convictions for the US-led renditions. After this judgment, there is a real risk that the Italian complicity in this crime will never be fully ascertained and accounted for.”
The ICJ is concerned at reports that time limits for the conclusion of criminal proceedings in this case could expire in two months, despite the fact that, under international standards, limitation periods should not be imposed in respect of serious of crimes such as torture and enforced disappearance.
The expiry may foreclose any further investigation or criminal trial on Italian involvement in this rendition, which should occur irrespective the obstacles caused by the secret of state doctrine.
The ICJ is particularly concerned that successive Italian governments since 2007 have either proposed or refused to withdraw government applications before the Constitutional Court affirming that the executive prerogative on secret of state takes precedence over the fight against impunity.
The ICJ considers that the law and practice regarding the “secret of state” must be reformed to be into compliance with Italy’s duty to investigate crimes under international law and gross human rights violations.
While States may protected a limited amount of information when strictly necessary for legitimate national security purposes, they may not do so with respect to information concerning gross violations of human rights.
Background
Hassan Mustafa Osama Nasr, also known as Abu Omar, was been kidnapped in 2003 in the streets of Milan by CIA operatives and subject to rendition to Egypt where he had been subject to enforced disappearance, arbitrary detention and torture.
The case of Abu Omar was one of at least 136 known cases in the rendition and secret detention carried out since 2001 by the United States, with the participation of some 54 other States, which typically involved multiple human rights violations, including torture and ill-treatment, enforced disappearance, and arbitrary detention.
The Constitutional Court judgment effectively reversed the ruling of the Court of Cassation that ordered the reopening of the trial against the former Director of the Italian Military Secret Service, Nicolò Pollari, his deputy, Marci Mancini, and other Italian military secret services operatives for their alleged complicity in the operation.
The Court of Cassation had held that the doctrine of “secret of state”, which barred their conviction, would not apply to them, because the Italian secret services have no authority to conduct such illegal operations and they had therefore effectively acted in private capacity.
Following that judgment, the Court of Appeal convicted, among others, for complicity in the kidnapping Nicolò Pollari to ten years of imprisonment and Marco Mancini to nine years.
The Court of Cassation upheld in absentia the convictions and sentences of 23 US agents involved for the offence of kidnapping.
On 5 April 2013, the President of the Italian Republic, Giorgio Napolitano, granted a pardon for US Colonel Joseph L. Romano III, who had been convicted by Italian courts of the offence of complicity with the US in kidnapping for his role in the rendition of the Milan cleric Abu Omar in 2003.
Contact:
Massimo Frigo, Legal Adviser, ICJ Europe Programme, massimo.frigo(a)icj.org
Feb 11, 2014 | News
The seminar was on “The Role of Judicial Independence and Integrity in Improving the Effectiveness of the Rule of Law”, with the participation of the ICJ.
The event, hosted by the Office of the Supreme Court of the Union (OSCU) in collaboration with the United Nations Development Programme (UNDP) and the ICJ, took place in Nay Pyi Taw on February 10th and 11th 2014.
It was attended by more than 40 judges and senior court administrators from all states and regions in Myanmar.
Discussions at the seminar focused on the ways in which Myanmar’s judicial system can continue to develop its functional independence and deliver justice for all.
In opening the seminar, the Honourable Chief Justice of the Union, U Htun Htun Oo, remarked that judicial independence and integrity are essential to building a reliable judicial system in which the people of Myanmar can trust, and which can uphold the rule of law.
During the seminar, Justice Kalyan Shrestha of Nepal, and ICJ Vice President Justice Michèle Rivet of Canada shared their experiences of the challenges of preserving judicial independence as a key pillar of a democratic society.
In her opening remarks, Ms. Renata Lok-Dessallien, UN Resident Coordinator, also noted that in addition to the importance of a fair legal framework, a trained judiciary and well-functioning court system, “the other half of the equation is from the bottom up: it is people’s perceptions of the professionalism, integrity and fairness of the system.”
Sam Zarifi, ICJ’s regional director for Asia and the Pacific added that “access to an independent and impartial tribunal is a human right”.
Both UNDP and ICJ expressed their willingness to continue working with Myanmar’s judiciary on the issues of judicial independence, and justice for all for the long-term.
Photo: ICJ Vice President Justice Michèle Rivet, Justice Kalyan Shrestha and Chief Justice U Htun Htun Oo
Feb 11, 2014 | News
The ICJ condemned the Cambodian Court of Appeal’s decision to deny bail to 21 workers and activists who were arrested in connection with protests by garment factory workers.
They have been held in detention since their arrests on 2 and 3 January 2014.
The court upheld an earlier decision of the Phnom Penh Municipal Court.
Garment factory workers were protesting to seek a higher minimum wage.
“International law is clear that pre-trial detention may only be ordered in exceptional circumstances and avoided if suitable alternatives are possible,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific. “The ongoing detention of these protesters, and the failure of the government to provide accountability for the death of five unarmed protesters on 3 January, demonstrates the government’s efforts to stop protesters exercising their rights to assemble freely and express their opinions.”
“Not only is this a very disappointing outcome for the 21 detainees and their families, but it also sets a worrying precedent in what is still a developing area of the law in Cambodia,” he added.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party, guarantees the right to liberty.
It states, “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.” Such guarantees include bail.
Articles 19 and 21 of the ICCPR guarantee the rights to freedom of opinion and assembly.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
