May 31, 2013 | Agendas, Events
Some 30 judges from the highest national courts from 16 countries in Asia and the Pacific will meet in Bangkok, Thailand on 2-4 June to discuss the role of the judiciary in the AIDS response.
The meeting is convened by the Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Development Programme (UNDP) and the ICJ as part of efforts to address concerns that legal environments, including laws and policies, law enforcement practices and access to justice across the Asia and the Pacific do not consistently protect people most at risk of HIV infection and those living with HIV from violations of their human rights including health, privacy, non-discrimination and freedom from violence.
The judges’ discussions will be supported by experts and resource people from communities living with HIV, representatives of sex workers and men who have sex with men, people who use drugs and transgender people and United Nations entities.
The ICJ has always believed that an independent judiciary is essential in delivering justice to vulnerable populations, including those living/infected with HIV.
As Mr. Sam Zarifi, Regional Director for Asia and the Pacific, said: “The judiciary has a crucial role to play in establishing a legal environment that assists the struggle against the spread of HIV. In Asia and the Pacific, those most at risk of contracting HIV are often among those with the least access to justice. An independent judiciary can help protect at-risk populations from discriminatory laws, negative stereotypes, and misguided policies.”
May 13, 2013 | News
On 13 May, the Hong Kong Court of Final Appeal granted W, a transgender woman, the right to marry her male partner. The ICJ, which made submissions in the case, applauds this decision.
W is a resident of Hong Kong who has undergone gender reassignment surgery, paid for by the Hong Kong Government, and who holds a national identity card and passport recording her sex as female.
In 2008 she applied to the Registrar of Marriages seeking confirmation that she could marry her male partner.
The Registrar denied her request on the grounds that “the biological sexual construction of an individual is fixed at birth and cannot be changed.”
Because “only an individual’s sex at birth counts,” the Registrar would not celebrate the marriage.
The trial court and court of appeal upheld the Registrar’s interpretation of the Marriage Ordinance and Matrimonial Causes Ordinance and ruled that it did not conflict with Hong Kong’s Basic Law or its obligations under the International Covenant on Civil and Political Rights.
These courts relied on the 1970 British case of Corbett v. Corbett, which held that sex was fixed immutably at birth.
W won her case at the Court of Final Appeal, which ruled in a 5-4 decision that the Marriage Ordinance and Matrimonial Causes Ordinance ignored the “psychological and social elements of a person’s sexual identity” and thus were inconsistent with the constitutional right to marry.
Furthermore, the ordinances were unconstitutional because they denied W the right to marry at all and thus impaired the very essence of the right.
While the Court granted the parties leave to make further submissions as to the exact nature of the declaratory relief, it held that “a transsexual in W’s situation” should in principle be granted a declaration that she is in law a woman within the meaning of the marriage ordinances and “therefore eligible to marry a man.”
Importantly, the Court also stated: “We would not seek to lay down a rule that only those who have had full gender reassignment surgery involving both excising and reconstructive genital surgery, qualify. We leave open the question whether transsexual persons who have undergone less extensive treatment might also qualify.”
“This is a historic decision,” said Alli Jernow, Senior Legal Advisor at the International Commission of Jurists. “Not only has W won her own case at the Court of Final Appeal, her courage and commitment have changed the lives of transgender people in Hong Kong.”
The parties have an additional 21 days to file written submissions. The Court’s proposed order gives the Hong Kong legislature time to respond but indicates that even in the absence of intervening legislation, the marriage ordinances would be given a remedial interpretation to include W.
Photo by K.Y. Cheng: Michael Vidler, solicitor of the appellant, holds the judgment in his hand outside Court of Final Appeal.
May 5, 2013 | News, Op-eds
An opinion piece by Benjamin Zawacki, Senior Legal Adviser for Southeast Asia at the International Commission of Jurists.
Thailand’s government recently passed up an opportunity for a new approach to the deep South, by declining to replace the Emergency Decree, which violates international standards on human rights, with the somewhat less heavy-handed Internal Security Act (ISA).
Equally concerning is why the government has not looked beyond the South in reconsidering the use of its other extraordinary security legislation: no fewer than 31 of Thailand’s 77 provinces are at least partially under Martial Law.
International law is clear that the extraordinary powers under security laws like the Emergency Decree and Martial Law may only be invoked under a strict set of circumstances, none of which is even arguably applicable in Thailand outside of the southern insurgency (four of the 31 provinces).
Martial Law may be invoked in Thailand “when a situation arises that makes it necessary to maintain law and order and to defend against the danger of attack”, or “when there is an outbreak of war or unrest”. All of Thailand’s provinces that are situated on one of the country’s four international borders are under Martial Law in whole or in part (including the 27 not in the deep South). Among them is Phitsanulok, whose shared border with Laos is roughly only 50km.
This province featured in Thailand’s last war, a three-month affair with Laos that ended in 1988.
Otherwise, Thailand’s border challenges are well-known: trafficking in persons, drugs, and weapons; landmines; refugees and migrants; smuggling of logs, oil, and other contraband; demarcation disputes. While doubtless all of these call for robust law enforcement, only the dispute with Cambodia over the Preah Vihear temple even arguably involves defending against the danger of armed attack.
Several minor but deadly skirmishes with Cambodian forces, as well as considerable mutual saber-rattling, have occurred in several districts of Si Sa Ket province since 2009. It is not credible to claim that Thailand needs to impose Martial Law because of external threats.
A more likely explanation is that Martial Law’s expansive application in Thailand is due to what is common to most security legislation around the region, namely vague language that lends itself to broad interpretation and granting wide powers to the military.
The Martial Law term “law and order”, in addition to more typically applying to civilian law enforcement agencies than to the military, could apply to any situation in which a law is implicated – which is nearly all situations. “Order” and “unrest” are particularly ill-defined.
Moreover, “maintain” suggests law and order need only be threatened to invoke Martial Law, rather than be lost and in need of being restored.
What constitutes an “attack” and the likelihood of such required for Thailand to be in “danger” are also essentially judgment calls. And when is an attack (or a series of attacks) tantamount to an “outbreak of war”?
A second and related reason that Martial Law is so pervasive in Thailand is the large number of military personnel empowered to invoke the law, coupled with, inversely, the difficulty in revoking it later.
While order by royal decree is required for invoking Martial Law on the first set of grounds, even local military commanders can invoke Martial Law in the area under their control on the second set (“when there is an outbreak of war or unrest”), affording them enormous discretion and authority.
In contrast, any and all revocations of the law require order by royal decree, a level of involvement as centralized and bureaucratic as a district military commander’s invocation is local and simple.
Martial Law’s use in Thailand historically supports the analysis that imprecise grounds combined with bureaucratic inertia account for the wide geographical application of the law.
Twice in the past 22 years, orders by royal decree referencing “law and order” have imposed Martial Law on the whole of Thailand, both times via coups d’état in 1991 and 2006.
On only three occasions after the 1991 coup (twice later the same year and once in 1998) was Martial Law lifted in some but not all of Thailand’s provinces. On the eve of the 2006 coup, it was still in effect in all or part of 18 provinces.
Similarly, following the blanket invocation of Martial Law on the whole country in 2006, on only two occasions since (in January 2007 and 2008, respectively) has an order by royal decree revoked the law in 46 of Thailand’s 77 provinces. Why not everywhere?
International law requires that extraordinary security legislation be invoked only in response to an exceptional situation.
Powers granted to security forces and any derogation from human rights must be strictly necessary and proportionate to the situation, and must have a time limitation attached to them.
None of these elements is met in the case of Thailand’s application of Martial Law to its international borders.
Indeed, Martial Law in Thailand allows security forces to arrest people without a warrant, and to detain them for seven days prior to charging them.
Critically, it does not require that detainees be promptly brought before a judge, in flagrant violation of Thailand’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
This leaves detainees particularly vulnerable to torture or other ill-treatment at the hands of the security forces, which Thailand has also agreed to prevent and punish as a party to the ICCPR and the Convention against Torture.
In cases under Martial Law of alleged misconduct by security forces, victims are unable to institute a criminal prosecution (though they may initiate a civil action) or to choose their own lawyer; only a military prosecutor is entitled to institute a criminal charge. No appeal can be lodged against judgments or orders of military courts during this period.
The Thai government should reconsider its decision to keep the Emergency Decree in place throughout most of the deep South.
At the same time, it should take the long overdue step of lifting an equally heavy-handed Martial Law everywhere else.
Apr 14, 2013 | News
The Dalai Lama honoured ICJ Secretary General Wilder Tayler with the Light of Truth Award in recognition of ICJ’s consistent support of the Tibetan cause over six decades. 
The Award was presented to Wilder Tayler at a ceremony in Fribourg, Switzerland, on Saturday 13 April 2013.
The International Campaign for Tibet (ICT) presented the Light of Truth Award to individuals and institutions who have made significant contributions to the public understanding of Tibet and the struggle for human rights and democratic freedoms for the Tibetan people.
The ICJ was awarded for its reports documenting the experience, trials and tribulations of Tibetan people at the hands of Chinese forces, and drawing attention to the rights of Tibetans.
“You cannot imagine the outpouring of emails I have received even from very old members of the ICJ and the pride and joy in receiving the recognition of the work of ICJ by the Tibetan community, by His Holiness, by the solidarity organizations. Really it has been so moving,” said ICJ Secretary General Wilder Tayler (photo). “This prize will be dedicated to the late Nick Howen, my immediate predecessor and very dear friend who passed away quite tragically three years ago. Nick was a devoted activist of the Tibet cause; he not only put a lot of hours, he actually put his life at risk when there was need of it in order to pursue the cause, to bring information out of Tibet.”
The award itself is an antique Tibetan butter lamp, symbolizing the light that each recipient has shed on the Tibet issue.In addition to the ICJ, the Light of Truth Award 2013 was given to four other honorees, including ICJ Honorary Member Theo van Boven.
Professor van Boven is a Dutch jurist and professor emeritus in international law, a former UN Rapporteur on Torture and served as ICJ Vice-President in the 1990s. He was awarded for putting the spotlight on Tibet within and beyond the United Nations system.
Other awardees include Professor Dr. Christian Schwarz-Schilling, former German Minister and Parliamentarian, who has been working in a low-key manner for many years on the issue of the Tibetan-Chinese relationship; Ms. Sigrid Joss-Arnd, the longest-standing member of the Swiss Red Cross officials who was involved in helping Tibetans in the diaspora from the early 1960s; and Mr. Robert Ford, CBE, for his tireless advocacy on Tibet for more than half a century. Mr Ford is the only Westerner who was given official ranking in the Tibetan government before 1950 and he was imprisoned by the Chinese authorities for nearly five years.
“All of you have been long-standing friends and supporters of Tibet, for which we are immeasurably grateful. As you know, the spirit of the Tibetan people is undiminished and the power of truth remains strong,” the Dalai Lama said at the ceremony.
The Light of Truth Award is the most prestigious award in the Tibet movement and has been presented by His Holiness the Dalai Lama, on behalf of the ICT, for many years.
Previous recipients include Archbishop Desmond Tutu, the late Václav Havel, Chinese scholar and writer Wang Lixiong, and film director Martin Scorsese.
Photo/Manuel Bauer
Apr 8, 2013 | News
On 5 April, Vietnam’s Hai Phong court sentenced Doan Van Vuon and three of his male relatives to imprisonment sentences ranging from two to five years, for attempted murder. The ICJ condemns this decision.
Mr. Doan’s wife and sister-in-law received suspended sentences in the form of 18 and 15 months respectively for resisting persons in the performance of their official duties.
Vuon, along with his brothers Doan Van Quy and Doan Van Sinh, as well as Sinh’s son Doan Van Ve, were initially arrested on 5 January 2012 for injuring four policemen and two soldiers with homemade weapons when more than 100 security forces tried to forcibly evict them from their fish farm in a district approximately 90 kilometres from Hanoi.
The four men had remained in detention for more than a year waiting for the commencement of last week’s trial.
Under Article 9(3) of the International Covenant on Civil and Political Rights, which Vietnam is a signatory to, states that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge…and be entitled to trial within a reasonable time or to release”.
“Pre-trial detention should only be used in criminal proceedings as a last resort, and for the shortest possible time period, when required to meet the needs of justice,” said Emerlynne Gil, ICJ’s International Legal Advisor for Southeast Asia in Bangkok. “The prolonged period of detention in this case is detrimental as it could possibly have violated the defendants’ presumption of innocence and due process.”
During the trial, it was concerning to note that all the judges involved in the case were members of the ruling Vietnamese Communist Party and were carrying out their judicial duties under the central government’s directions.
Article 14 of the ICCPR further guarantees that a person is “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
“Vietnam’s blatant disregard of the right to fair trial violates not only their international law obligations, but also the proper administration of justice in a criminal proceeding,” said Emerlynne Gil.
The ICJ also observed that the court’s judgment failed to incorporate the fact that the defendants had acted in such a manner only as an attempt to defend and protect their land, which was legitimately given to them by the Vietnamese government in 1993.
The right to receive a reasoned judgment is an inherent principle in safeguarding fair trial rights and it is the general rule that court rulings must include the essential findings, evidence and legal reasoning.
“The failure to adhere to the minimum international fair trial standards reveals Vietnam’s serious lack of commitment towards upholding the rule of law and protecting human rights in the country; a violation most certainly not in line with the profile of a country wishing to obtain a seat at the UN Human Rights Council 2014-2016 tenure,” Gil added.
In the event of an appeal, the ICJ calls that the Vietnamese Court of Appeal be consistent with the international basic judicial guarantees and the principles of independence, impartiality and competency.
Apr 5, 2013 | News
The ICJ urged the Cambodian Bar Association to make it clear that its new Code of Ethics, launched today, does not restrict the freedom of lawyers to express their opinions.
Article 17 of the new Code of Ethics states (in an informal translation by the ICJ) that “All interventions made publicly or through public media by lawyers in their capacity as lawyers may be permitted only within the framework of strict compliance with the duties of the legal profession. Such interventions require diligence.”
This language replaces Article 15 of the 1995 Code, which demanded all lawyers in Cambodia to “inform” or “consult” the Bar President before making media statements.
“The language of the new Article 17 is an improvement over the old Code, but it is ambiguous and raises fears that lawyers will not be able to exercise their right to express their opinions freely,” said Emerlynne Gil, ICJ’s International Legal Advisor on Southeast Asia. “The Cambodian Bar Association must clarify that under Article 17, lawyers, like all others, can address important legal and policy issues publicly and openly.”
The ICJ asserted that the Bar Association must clearly and publicly state that Article 17 shall not be construed to mean that lawyers must seek permission prior to engaging in public activities in their professional capacity.
The ICJ also expressed concern over the previous statements made by the Bar Association implying that lawyers could be sanctioned for expressing certain views of the country’s laws or legal reforms. During a press conference on 15 March 2013, the Bar Association said that the purpose of Article 17 was to prevent lawyers from misinterpreting the law and thus “making society chaotic”.
“The best means of increasing public awareness of the laws and strengthening the rule of law is to encourage greater public discussion,” said Emerlynne Gil. “Disagreements about the meaning of laws are part of the nature of the legal process and should be encouraged publicly.”
The ICJ recognizes the grave difficulties of facing the legal system in Cambodia, where fewer than 1000 active lawyers must provide services for a population of more than 14 million people. “We share the Cambodian Bar Association’s concerns about the need to uphold the professional competence and integrity of its members,” said Emerlynne Gil. “However, this concern should be addressed through efforts to improve legal education expertise rather than limiting the right of lawyers to freedom of expression.”
For questions and clarifications, please contact Ms. Emerlynne Gil, International Legal Adviser for Southeast Asia, tel. no. +662 619 8477, fax no. +662 6198479 or emerlynne.gil@icj.org
