Apr 7, 2015 | News
Bangladesh President Abdul Hamid should intervene to stay the imminent execution of Muhammad Kamaruzzaman, a senior leader of the Jamaat-e-Islami party, said the ICJ today.
Kamaruzzaman was sentenced to death by the International Crimes Tribunal (ICT) in 2013 after an unfair trial, the ICJ says.
On Monday, 6 April 2015, the Bangladesh Supreme Court rejected Kamaruzzaman’s last-ditch petition for independent review of the sentence – he was claiming discrepancies in prosecution witness testimony during the trial – paving the way for his imminent execution.
“The ICJ has long supported the right of victims to seek truth and justice for the atrocities committed in the 1971 war to gain Bangladesh’s independence, but the death penalty, especially after a trial with procedural and substantive flaws, perpetuates the cycle of violence and is a perversion of justice,” said Sam Zarifi, the ICJ’s Director for Asia and the Pacific.
The ICJ has previously raised concerns that the ICT does not comply with international standards for fair trials.
Following the Supreme Court’s rejection of his review petition, Kamaruzzaman must now decide whether to seek clemency from the President, as the last resort.
The ICJ opposes capital punishment in all cases without exception.
The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
“The death penalty is not justice and is the ultimate form of cruel and inhuman punishment,” Zarifi said. “Especially where the death penalty is concerned, the trial process has to meet the highest standards of fairness and due process, but this case falls far short of that.”
The ICJ calls on Bangladesh to impose an official moratorium on the death penalty, with a view to abolishing the death penalty outright.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Background:
In May 2013, the ICT found Kamaruzzaman guilty of mass killing during the 1971 Liberation War and sentenced him to death.
In November 2014, the Supreme Court issued a judgment on appeal upholding Kamaruzzaman’s conviction and death sentence.
In December 2014, the UN General Assembly adopted a resolution, for the fifth time since 2007, emphasizing that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view towards its abolition.
117 UN Member States, a clear majority, voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty.
Mar 31, 2015 | News
Thailand must lift martial law and return the country to civilian rule, instead of invoking arbitrary powers under Article 44 of the country’s interim constitution, said the ICJ today.
Today, Prime Minister and head of the ruling National Council for Peace and Order (NCPO), General Prayut Chan-o-cha, announced that he had submitted a revocation of the Martial Law, imposed nationwide on 20 May 2014, to King Bhumibol Adulyadej.
Gen. Prayut stated that in place of Martial Law, he would invoke Article 44 of the Interim Constitution, which effectively gives him the authority to rule without any legal restrictions or accountability.
“Ending Martial Law is a necessary step, but replacing it with Article 44 does not address the serious violations of Thailand’s obligations under international human rights law. Article 44 of the Interim Constitution is drafted so broadly that it could give the head of the junta even greater powers than Martial law,” said Wilder Tayler, Secretary General of the ICJ. “Article 44 would allow the head of the NCPO to issue any orders he wishes under the pretext of strengthening public unity and national security, and also deems any such order to be legal and constitutional, removing any possibility of judicial oversight.”
Article 44 of the interim Constitution gives the NCPO power to give any order deemed necessary for “…the benefit of reform in any field and to strengthen public unity and harmony, or for the prevention, disruption or suppression of any act which undermines public peace and order or national security, the Monarchy, national economics or administration of State affairs …,” and provides that any such order “…is deemed to be legal, constitutional and conclusive…”
“Article 44 violates the fundamental pillars of the rule of law and human rights, including equality, accountability, and predictability. Article 44 could potentially allow for arbitrary rule by the head of the NCPO, so using it would not be a real improvement over the Martial Law, which at least has been in existence since 1914, and has a degree of clarity to its scope and application,” said Tayler.
“The NCPO should revoke Martial Law and also explicitly commit itself to observing Thailand’s international obligations, which means avoiding any use of Article 44,” he added.
International law strictly regulates attempts by governments to suspend or restrict protection for human rights on grounds of emergency.
Such “derogations” are permissible under Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party, only “in time of public emergency which threatens the life of the nation”.
“The situation in Thailand does not meet the extremely high threshold required for derogating from international human rights law,” said Tayler. “Thai authorities have repeatedly promised a rapid return to the rule of law and respect for human rights in the country, but replacing Martial Law with rule by Article 44 doesn’t suggest an improvement for the rule of law or respect for human rights.”
Thailand-Martial Law-Article 44-News-Press release-2015-THA (Thai version, full text in PDF)
Mar 31, 2015 | News
The present form of the recently tabled draft Prevention of Terrorism Act, also known as POTA, violates international standards and seeks to reintroduce detention without trial, said the ICJ.
The Malaysian government claims that the draft POTA, which was tabled yesterday in Parliament for its first reading, together with 7 other amendments, is aimed at curbing terrorist threats in the country.
“The draft law, as it is now, is susceptible to abuse,” said Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia. “It is very disturbing that the POTA has very similar elements that were in the problematic and now repealed 1960 Internal Security Act that was previously used to silence government opposition and curtail freedom of expression in the 1980s.”
For example, the ICJ notes with concern that the draft law allows a “board” that is not a court to order and extend detention for up to four years.
Only one of the members of the board is required to have any legal training at all.
Detention orders issued by the “board” cannot be challenged in any court, except on procedural issues.
The ICJ urges members of Parliament in Malaysia to amend the existing draft law so that it will not reintroduce draconian preventive detention measures, as in the repealed Internal Security Act.
The Parliament of Malaysia should either reject the draft law or amend its provisions to respect human rights.
CONTACT:
Emerlynne Gil, ICJ International Legal Adviser, e: emerlynne.gil(a)icj.org or m: +668 4092 3575
Mar 26, 2015 | News
The conviction of the Maldives’ former president, Mohamed Nasheed, on terrorism charges after a grossly unfair trial marks a significant deterioration of the independence and impartiality of the country’s judiciary, said the ICJ.
On 13 March, Mr. Nasheed (photo) was sentenced to 13 years in prison for the dismissal and alleged unlawful detention of the Chief Judge of the Criminal Court, Mr. Abdullah Mohamed, in 2012, when Mr. Nasheed was president.
He was convicted of an “act…of kidnapping or abduction of person(s) or of taking hostage(s)” under Section 2(b) of the Prevention of Terrorism Act 1990.
“The Maldivian judiciary’s independence has been compromised for years by serious pressure from the government, and this grossly unfair conviction highlights the numerous problems with the politicization of the judiciary in the country,” said Sam Zarifi, the ICJ’s Regional Director for Asia and the Pacific. “It is crucial for Maldivian authorities to allow Mr. Nasheed to appeal his case effectively, with transparency and monitoring by Maldivian and international observers.”
The case’s pre-trial phase and trial were marked by gross violations of international standards of fair trial, including Article 14 of the International Covenant on Civil and Political Rights, to which the Maldives acceded in 2006.
Two of the judges on the three-judge bench testified as witnesses against Mr. Nasheed in the 2012 investigation; these statements were submitted as evidence in the present trial.
Mr. Nasheed’s defense team was not allowed to be present on his behalf during the first proceeding, nor was he given the opportunity to seek bail.
The defense team was repeatedly denied full access to prosecution evidence and witnesses or to regularly consult with Mr. Nasheed during the course of the trial.
When Mr. Nasheed’s defense team recused itself in protest of the lack of fairness, the court proceeded with the trial without legal representation present for Mr. Nasheed rather than granting him the opportunity to obtain new counsel. The defense was also denied the opportunity to call its own witnesses.
Mr. Nasheed now has the right to appeal the conviction, but his right to appeal has been infringed by the unprecedented amendment of the statutory period for appeal from 90 days to 10 days, via Supreme Court circular six weeks prior to the trial.
In addition, the court has still not released to Mr. Nasheed’s defense team the full court record required to prepare and present an effective appeal within this accelerated timeframe.
The ICJ has previously documented the politicization of the judiciary and the polarized political climate in the Maldives, calling attention to a justice system characterized by vested interests and political allegiances rooted in the country’s authoritarian past (See Maldives: Securing an Independent Judiciary in a Time of Transition (February 2011)).
“Recent events reflect a justice system that still remains deeply politicized along the same lines of entrenched political loyalties that pre-date the transition period,” Zarifi said. “The Maldivian judiciary must allow a proper appeal in this case if it is to establish itself as a separate and equal branch of the government dedicated to supporting the rule of law.”
The ICJ urged Maldivian authorities to ensure Mr. Nasheed’s defense team full access and adequate opportunity to prepare an effective appeal, and to ensure that the appeal proceeding is conducted fairly and transparently, with full access to media and domestic and international observers, in compliance with fair trial and due process standards under both Maldivian and international law.
The Maldives must also take effective measures to ensure that such violations do not reoccur in this or future cases.
Background information can be downloaded here:
Maldives-Background Brief Nasheed Trial-Advocacy-Anylysis brief-2015-ENG (full text in PDF)
Mar 23, 2015 | News
The arrest and criminal investigation today of prominent human rights Malaysian lawyer Eric Paulsen, apparently in connection to messages he sent on Twitter, is another move towards Malaysia’s accelerating use of the archaic and draconian Sedition Act, said the ICJ.
Eric Paulsen (photo), co-founder of Lawyers for Liberty, was arrested in the afternoon of 22 March 2015 at the Dataran Merdeka underground in Kuala Lumpur.
Although the exact basis of the arrest is not yet clear, his lawyers believe it was because of his Tweets criticizing efforts to introduce religion-based criminal offences and punishment (hudud) by the Kelantan state government.
Eric Paulsen was detained overnight and has yet to be charged with any offence. During the remand hearing on his case at noon today, the court denied an extension of his detention, but the police kept him in detention until 6pm today for questioning.
According to media reports, the postings “were seen as an insult which could disturb public peace,” one of the bases for invoking the Sedition Act.
“Malaysian authorities have been increasingly resorting to the Sedition Act to silence any political criticism, and now they’ve taken the alarming step of expanding it to cover even statements about religion,” said Emerlynne Gil, International Legal Advisor for Southeast Asia at the ICJ. “The Malaysian government is trying to position itself as the authority on religious matters, while at the same time violating the right to free expression as well as Malaysia’s Constitution.”
On 22 March 2015, Malaysia’s Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar, commented through his own Twitter account that the police “views seriously” comments on religion made by those who are “not experts on the subject.” He further said, that the police “ha[ve] no choice but to take action” against those people who comment on religion.
The IGP’s comments were made in relation to the launching of an investigation against the Business Radio Station (BFM) and its presenter, Aisyah Tajuddin, for criticizing the implementation of hudud in Kelantan.
In 2012, Prime Minister Najib Razak promised that the Government of Malaysia would abolish the Sedition Act.
This promise, however, was reversed when Najib Razak announced in November 2014, that the Act would instead be strengthened to include provisions to protect the sanctity of Islam and on the secession of the Sabah and Sarawak states.
“The Sedition Act of 1948 is archaic and it’s high time the government followed through on its promise to get rid of this legislation,” said Emerlynne Gil.
This is Eric Paulsen’s second investigation under the Sedition Act this year, as he was arrested in January and then charged in February under section 4(1)(c) of the Act for a Twitter comment regarding the Malaysian Islamic Development Department.
The ICJ underscores that the Government’s actions contravene Principle 23 of the UN Basic Principles on the Role of Lawyers, which states that “lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.
In particular, they shall 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….”
Background:
The 1948 Sedition Act, originally enacted by the British colonial government and amended several times over the years, criminalizes speech and publications considered to have “seditious tendencies”.
The term “seditious tendencies” is ambiguously defined to mean any kind of speech or publication that causes “hatred or contempt, or excite disaffection” against any ruler or the government or promotes “ill will and hostility between the different races or classes”.
The law also considers “seditious” any speech or publication that questions the special privileges of the Malay people, as provided in the Constitution.
Furthermore, sedition is a strict liability offence in Malaysia, which means that the intention of a person allegedly making seditious statements is irrelevant.
For instance, a person making a statement may not have the intent to cause “hatred or contempt” towards the government, but may nonetheless be held liable for sedition if authorities believe that the person in fact incited such feelings.
The ICJ considers that the Act, by its very terms, contemplates restrictions on the exercise of freedom of expression that are grossly overbroad and inconsistent with basic rule of law and human rights principles.
Contact:
Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia, e: emerlynne.gil(a)icj.org, t +66 2 619 8477 ext. 206 or +66 840923575
Mar 20, 2015 | News
The Malaysian government should immediately release from detention Malaysian Parliamentarian Tian Chua, the ICJ said.
Tian Chua, who is also Vice President of the opposition Parti Kaedilan Rakyat (PKR), was arrested today for allegedly committing acts under section 143 of the Penal Code on unlawful assembly.
The arrest took place before noon after Tian Chua voluntarily appeared at the Dang Wangi police station in Kuala Lumpur to provide a statement in connection with the investigations regarding his participation in the peaceful KitaLawan rally on 7 March 2015.
The police detained Tian Chua before he could provide his statement.
He has so far not been charged with any offence.
However, if he is charged under section 143 of the Penal Code and convicted, he may be imposed the penalty of imprisonment for up to six months or fined, or both.
“At least 11 opposition figures associated with the KitaLawan rally have now been targeted by the authorities, who have been arresting and detaining them for 24 hours as a form of harassment and intimidation,” said Emerlynne Gil, ICJ’s International Legal Advisor for Southeast Asia. “It seems that Malaysia is rapidly returning to the dark days during the late 1980s of systematic pretrial and arbitrary detention under the Internal Security Act.”
The KitaLawan rally was convened in protest at the conviction and imprisonment of opposition leader Anwar Ibrahim, who was sentenced to five years’ imprisonment in February 2015 on charges of sodomy, following a trial conducted in violation of international human rights standards.
The ICJ underlines that in the absence of charges for a cognizable criminal offence not predicated on the exercise of a protected human right, Tian Chua and the other individuals who participated at the KitaLawan rally should not have been arrested and any form of harassment against them must be ended.
Under Malaysian law, police arresting a person without a warrant has to bring the arrested person before a judge “without unnecessary delay”.
The law also provides that no person arrested without a warrant shall be detained for more than 24 hours before being presented to a judge.
“The authorities are abusing their powers and using the law as a form of punishment even before they are convicted of, or even charged with, an actual crime in violation of Tian Chua’s right to presumption of innocence,” added Gil. “This abuse of pretrial detention as a form of harassment aggravates the repressive atmosphere created by the recent misuse of sedition laws to silence critics.”
Tian Chua is expected to be held overnight in prison. He will have his remand hearing on 21 March in the morning.
The ICJ calls for Tian Chua’s immediate release and urges the Government of Malaysia to end all forms of harassment against persons for their participation in peaceful assemblies.
Contact:
Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia, e: emerlynne.gil(a)icj.org, tel. no.: +66 2 619 8477 ext. 206 or +66 840923575
