Sep 14, 2020 | News
The Sri Lankan parliament should reject the Sri Lankan Government’s efforts to amend the country’s constitution to provide unfettered powers to the President while encroaching on the powers of the legislature and infringing upon the independence of the judiciary, said the ICJ today.
“The proposed 20th Amendment, which bestows an already powerful executive president with additional powers with no effective checks on him, essentially placing him above the law,” said Sam Zarifi, ICJ’s Secretary General. “These amendments would tilt the balance of State power heavily on the side of the executive and in particular on a single person.”
The proposed 20th Amendment to the Constitution bill rolls back most of the reforms brought about by the 19th Amendment to the Constitution, the passage of which the UN Human Rights Council welcomed as “promoting democratic governance and oversight of key institutions”.
The 19th amendment, adopted in 2015, had imposed certain limits to the Executive President’s authority and powers, including in respect of terms of the office of President, the capacity to dissolve Parliament and to fast-track legislation. It also removed the blanket immunity the President enjoyed from legal proceedings. Critically, it had established a Constitutional Council which restrained the President’s discretion in appointing key governmental actors including in the judiciary, the Attorney General and the Inspector General of Police.
The ICJ notes that the 20th amendment appears to reproduce much of the regressive features of the old 18th amendment, which the 19th amendment had been brought about to correct.
“Sri Lanka’s Executive branch has a poor record of respecting human rights and the rule of law, and the 19th Amendment was an effort to impose the checks and balances necessary for the rule of law,” said Sam Zarifi. “The constitutional changes being proposed would take the country back to the dark days of Executive impunity.”
“We are particularly concerned that these changes would undermine the independence of the judiciary, as the President would have unfettered discretion to appoint the superior judiciary, including the Chief Justice, the President and Judges of the Court of the Appeal, and to control the Judicial Service Commission,” said Sam Zarifi.
The JSC is the body entrusted with the power to appoint, promote, transfer exercise disciplinary control and dismiss judicial officers of the subordinate courts. The changes would also grant the President the power to nominate members of the Judicial Service Commission (JSC) other than its Chairman which is ex officio, the Chief Justice.
The UN Basic Principles on the Independence of the Judiciary states that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
Under international standards and recommendations of the UN Special Rapporteur on the Independence of the Judiciary, appointments to the judiciary should not be vested solely with the executive.
A judicial appointment process which gives the President full discretion would inevitably result in the significant erosion of the independence and impartiality of the Sri Lankan judiciary.
Moreover, several checks placed on the President’s powers by the 19th Amendment have also been removed while giving him greater legal immunity. The President would also be granted sole power to appoint the cabinet, assign to himself any cabinet portfolio and been given unfettered discretion in relation to the appointment and dismissal of the Prime Minister. The President would also retain the power to dissolve the Parliament within one year.
Contact
For questions and clarifications: Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org
Sep 14, 2020 | Advocacy, News
On 13 September 2020 the ICJ hosted a workshop on the impacts on economic, social and cultural rights associated with the development of Special Economic Zones (SEZs) in Thailand. Lawyers, members of civil society organizations and academics from across Thailand attended the Workshop.
The event began with an introduction to ICJ’s report – the Human Rights Consequences of the Eastern Economic Corridor and Special Economic Zones in Thailand – and outlined the deficiencies in the legal and regulatory framework governing economic development in Special Economic Zones and the Eastern Economic Corridor.
During the group discussions, participants were introduced to the international laws and standards that are applicable in the context of Thailand and can be applied to allegations of human rights violations and negative environmental impacts. They were urged to use these standards for their advocacy work.
These included economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Thailand is a State party and other internationally recognized principles, including:
- Right to an adequate standard of living and housing under article 11 of the ICESCR, General Comments 4 and 7 of the Committee on Economic Social and Cultural Rights and the Basic Principles and Guidelines on Development-Based Evictions and Displacement – which stress the need to provide adequate legal protection from forced eviction, due process, alternative accommodation, and access to an effective remedy of those that are affected by eviction orders;
- Human rights obligations that are exercised in relation to the environment, such as obligation to facilitate public participation in decision making related to the environment, and duties to protect human rights defenders and to conduct the prior assessment of the possible environmental impacts of proposed projects and policies; and
- Rights to and at work under article 6 to 8 of the ICESCR, General Comment No. 19 and 23 of the Committee on the Economic, Social and Cultural Rights, and several ILO Conventions, particularly regarding rights abuses suffered by migrant, seasonal and subcontracted workers, as well as restrictions on freedom to join and form trade unions.
At the conclusion of the Workshop, participants exchanged views on strategies and collaboration for action to mitigate potential impacts of the Special Economic Zones and the Eastern Economic Corridor and to advance the protection of economic, social and cultural rights.
Further reading
Thailand: laws governing development of Eastern Economic Corridor and Special Economic Zones fail to adequately protect human rights – ICJ report
Thailand: ICJ hosts discussion on human rights consequences of Special Investment Zones
ICJ and Chiang Mai University discuss Special Economic Zones in Myanmar and Thailand
Sep 11, 2020 | News
Today, the ICJ condemned an ongoing and heightened crackdown on civil society activists and human rights defenders in Cambodia, and called on the Royal Government of Cambodia (“RGC”) to cease arbitrary arrest and other harassment of individuals for merely exercising their human rights and fundamental freedoms.
From end-July to early this week, at least eleven activists have been arrested and detained on spurious charges in an invigorated attempt by authorities to silence critical dissent in the country.
“The Cambodian authorities in recent days have ratcheted up their abuse of domestic laws to target human rights defenders and perceived critics of the government. We fear that without a robust international response, the situation will only deteriorate further,” said Kingsley Abbott, ICJ Senior Legal Adviser.
“They are now targeting youth in particular, in an apparent bid to curtail their use of social media to amplify dissatisfaction with the ruling regime. Instead of attacking them, the government needs to stop and listen to their people,” he added.
Several arrests have been linked with the detention of prominent union leader, Rong Chhun. On 31 July, Rong Chhun, President of the Cambodian Confederation of Unions, was arrested at his home in suspected retaliation for comments he had made alleging loss of community land in relation to demarcation of the Cambodian-Vietnamese border. He was thereafter charged with “incitement to commit a felony or disturb social security,” under articles 494 and 495 of the Criminal Code. He is currently in detention in Phnom Penh’s Correctional Centre 1.
On 13 August, Hun Vannak and Chhouen Daravy, founding members of the Khmer Thavrak youth activist group, were arrested in relation to a rally they had held outside Phnom Penh Municipal Court in support of Rong Chhun. Daravy was reportedly slapped, then grabbed and hit before being pushed into a vehicle during her arrest. Security officials also reportedly beat and kicked at people in the rally to disperse the crowd, injuring about ten individuals.
On 6 September, Buddhist monk Venerable Koet Saray and Mean Prommony, Vice-president of the Khmer Student Intelligent League Association, were arrested in apparent connection with a rally they had been organizing to call for Rong Chhun’s release. On 7 September, Khmer Thavrak activists Tha Lavy and Eng Malai were arrested. Tha Lavy was arrested on arriving at a protest at Freedom Park. Eng Malai was arrested the day she had left the UN Office of the High Commissioner for Human Rights’ Cambodia office, where she had raised her security concerns.
Simultaneous arrests of environmental rights activists and a rapper evidence a wider crackdown beyond the case of Rong Chhun. On 4 September, three members of environmental rights group Mother Nature Cambodia, Thun Ratha, Long Kunthea and Phuong Keorasmey were arrested. They were thereafter charged with incitement under articles 494 and 495 of the Criminal Code. On the same day, rapper Kea Sokun was arrested in Siem Reap province and similarly charged with incitement, in apparent connection with a popular song he had released on YouTube, concerning land at the Cambodian-Vietnamese border.
On 7 September, the Ministry of Interior issued a statement denouncing Khmer Thavrak and Mother Nature Cambodia as unauthorized organizations, calling on the responsible authorities to prosecute them.
The ICJ is concerned that the groups are being targeted for allegedly operating without being registered in accordance with the Law on Associations and Non-Governmental Organizations. The requirements under this law are non-compliant with international law and standards that protect human rights and fundamental freedoms, as the ICJ has previously pointed out. The law impermissibly restricts the ability of civil society members to exercise their rights to freedom of association and expression.
The ICJ recalls the responsibility of Cambodia, as expressly stated in the UN Human Rights Defenders Declaration, to “take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.” These rights include, among others, freedoms of expression, opinion, peaceful assembly, association and political participation.
“Far from protecting these rights, the government has been systematically violating them,” said Abbott.
“The recent arrests signal yet another sign of further regression that needs to be called out by the international community, including by partners, missions, UN agencies and financial institutions.”
On 7 September, the UN Special Rapporteur on Cambodia expressed concerns about the recent arrests and also highlighted that she “has been closely following reports that seven different CSOs have been searched or informed of pending visits by the authorities since last week.” Similarly, over the past few days, the UN Special Rapporteur on Human Rights Defenders has expressed concern about the crackdown, stating “peaceful protest is not a crime”.
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Global Redress & Accountability Initiative e: kingsley.abbott(a)icj.org
See also
ICJ and 31 organizations jointly urge Governments to call for respect of human rights in Cambodia, 22 July 2020
Cambodia: State of Emergency bill violates the rule of law’, 8 April 2020
Misuse of law will do long-term damage to Cambodia, 26 July 2018
‘Cambodia: deteriorating situation for human rights and rule of law (UN statement), 27 June 2018
‘Cambodia: the ICJ condemns Senate’s approval of draft Law on Associations and NGOs, 24 July 2015
Sep 8, 2020 | Feature articles, News
Judges from six Latin American countries revealed that there were serious obstacles, but also possibilities for justice, facing regional judiciaries as they try to protect the human rights of those who have been adversely affected by the activity of business entities.
The judges gathered as part of the Regional Judicial Dialogue on Business and Human Rights organized by the ICJ of Jurists on September 7.
The Dialogue, moderated by ICJ Commissioner Professor Monica Pinto, brought together 17 judges from Central and South America to consider the role of judges in guaranteeing the right of access to justice and remedy and reparation. The judges also considered the need to guarantee the independence of the judiciary and the security of individual judges, lawyers, and human rights defenders in the context of business activities in the region.
The session featured presentations from a member of the UN Working Group on Business and Human Rights and the Office of the UN High Commissioner for Human Rights. The Dialogue took place in the context of the 5th Regional Forum on Business and Human Rights for Latin America and the Caribbean.
Discussing access to justice and remedy and reparation, the judges shared experiences and jurisprudence in cases related to serious crimes, including against humanity committed during the Argentine military regime, as well as cases of serious corruption and embezzlement in Guatemala.
In Argentina, in a case concerning the 1976 kidnapping and torture of 24 workers employed by the local Ford Motor company at their factory in Buenos Aires during the 1976-83 military dictatorship, a Federal Trial Tribunal sentenced three persons, a former military officer and two former Ford executives to prison of between 10 and 12 years, for their complicit involvement in the crimes.
Former Ford executives were accused of providing detailed information and logistical support to security agents that led to the abduction and torture of the victims, and also allowed a detention centre to be set up inside the premises of that factory.
The three judges of the Tribunal in this case attended the meeting to share the lessons learned and the significance of the criminal proceedings in the context of efforts to bring justice and reparations for the crimes of the past.
The process and the final sentence is a landmark in the fight against impunity in Argentina and an important message to all so that these crimes are not committed again. The case clarified the ways in which private individuals (the former company executives) participated in the commission of the crimes by State agents (military and security agents), elaborating upon modalities of attribution of the acts to the accessory perpetrators.
It is also an innovation in the ways it gathered and assessed the probatory value of the available evidence of crimes committed more than 30 years ago so that the crimes could still be attributed to the perpetrators.
The reparation ordered by the Tribunal in this case was “symbolic and historical”, consisting on an acknowledgment of the facts by the State and the private actors. The victims may demand now other forms of reparation from the State, but not from individuals.
The company as such was not part of the criminal proceedings nor was it sanctioned in the final sentence, since Argentinian law does not accept the criminal responsibility of legal entities such as corporations.
A participant judge from Guatemala shared a case concerning economic crimes of corruption, fraud, illicit association and assets laundering in a provincial town in Guatemala. Here, the experience and outcomes were somewhat different.
The case involved the town major and several of his relatives as well as some 20 companies out of which nearly 20 individuals and seven companies received penalties in the final sentence.
The case is of special significance in Guatemala as one of the few, large scale, corruption cases that has reached its final stage with convictions. In the investigation and collection of evidence considered during the trial, participated several public offices and the then International Commission Against Impunity in Guatemala (CICIG), which is no longer in operation.
Thanks to recent laws on corruption and money laundering, it is possible to impose sanctions on the company, as a legal entity. In the instant case, those sanctions consisted of monetary fines but not suspension or dissolution of the legal entity to allow other administrative proceedings against the same companies to continue.
In accordance with national laws and international standards, the judges ordered full reparation, including for damages, measures of satisfaction such as public statements of apologies and publications to be made by the convicted.
Citing a graphic statement contained in the final sentence, the judge Pablo Xitumul who presided the Tribunal said “corruption and impunity are even more lethal than a cancer or a pandemic, and should be combated without delay or excuses!”
Read the full story here: Americas-Judges and BHR-News-Feature article-2020-ENG
Sep 8, 2020 | Advocacy, News
The ICJ, in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC), today launched a whistleblowing application (tip off) mechanism in Harare.
It is common that people reporting corruption, tipping off and submitting key evidence prefer to stay anonymous, as they may have an often, well-founded, fear of reprisal by the parties involved. In such instances it is imperative for the ZACC to adopt a protective solution that guarantees user anonymity. This tip off mechanism will enable ZACC to receive information and evidence securely while the user of the mechanism remains anonymous. In turn ZACC will be able to use the information received to investigate and prosecute cases of corruption. Additionally, the application will also have a case management dashboard which will aid evaluation of ZACC’s efficiency in handling corruption cases.
Corruption undermines the rule of law by impeding access to justice through diversions of public resources for private gain. As such, the ICJ, through the support by the EU, is working towards increased transparency and integrity in the justice delivery system in order to increase access to justice for all. The whistleblowing application is not undertaken in isolation, as it builds on other initiatives to combat corruption under this programme, which include the Anti-Corruption Campaign, establishment of an anti-corruption court, capacity building, and various research initiatives.
“Corruption remains a key challenge confronting Zimbabwe. If unabated, corruption undermines democracy and the rule of law leading to violations of human rights. Its destructive effect on development disproportionately affects the poor. The participation of the public, in augmenting government efforts in combating corruption is therefore critical. It is our hope that through this awareness programme, ordinary members of the public will be able to recognize corrupt behaviour and feel empowered to take a stand against it. Further, we hope that the mechanism will sustain the momentum against corruption and increase the demand for improved accountability and transparency in various sectors in Zimbabwe thereby contributing to reduction of corruption,” said Blessing Gorejena, ICJ’s Zimbabwe Project Team leader.
Once officially launched, the whistle-blowing mechanism will be available to the public. It will be promoted and encouraged by publicizing stories of successful prosecutions and other actions as a result of information provided by whistle-blowers, as well as reporting on the effective protection of such persons from any form of reprisal or other harm.
The project is facilitated through the support of the European Union.
Contact:
Blessing Gorejena, Senior Legal Adviser and Team Leader of ICJ Zimbabwe Project, t:0772151989, e: blessing.gorejena(a)icj.org
Sep 8, 2020 | Advocacy, News
On 29 August and 5 September, the ICJ collaborated with the Integrated Bar of the Philippines (IBP) to hold a webinar series for legal aid providers in the Philippines on eliminating gender discriminatory attitudes and behaviors towards women.
Members of IBP’s legal aid committees from the Eastern and Western Mindanao Regions participated in these webinars, focused on gender stereotypes and discriminatory practices that exist in the legal profession and in the work of legal aid providers who directly engage with women when they seek justice.
Dato Ambiga Sreenevasan, ICJ’s Commissioner from Malaysia, addressed the promotion and protection of women’s human rights in the context of the legal profession: “While conditions for women have improved, there is still work to be done to achieve equality between men and women in the legal profession. At the entry level, things appear to be going well, but we must look also at women’s opportunities throughout their legal career and question why it is the case that some areas are still male-dominated.”
Mikiko Otani, ICJ’s Commissioner from Japan and a member of the UN Committee on the Rights of the Child, spoke about how gender stereotypes and gender discrimination hinder women from accessing justice. “The Bar should be at the forefront of advocating for improvement in legal structures that would help eliminate gender discrimination,” she said.
The Philippines had previously featured as one of the top ten performers in addressing gender disparities, as measured by the World Economic Forum’s Global Gender Gap Index. However, it has recently fallen to rank 16th out of 153 countries. Emerlynne Gil, ICJ Senior International Legal Adviser, acknowledged various measures adopted by the Philippines to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), such as the adoption of the Anti-Violence Against Women and Children Act and the Magna Carta for Women. She noted, however, that the Philippines still must do a great deal more.
“The existing culture of impunity and lack of effective remedies for women to access the justice system are just some of the difficult challenges the country faces that prevent it from achieving this goal,” Emerlynne Gil said.
The webinar series also featured a discussion on specific challenges faced by women when accessing justice during the COVID 19 pandemic and in the context of the “drug war” in the Philippines. The lawyers discussed their role and also that of the Bar as an institution to immediately identify and eliminate these gender stereotypes to ensure their clients’ right to access to justice.
Judge Amy Alabado Avellano, a Regional Trial Court judge in the Philippines led this discussion. Attorney Burt Estrada, IBP Executive Vice President, and Attorney Marienne Ibadlit, former IBP Governor for Western Visayas, also held a dialogue with the lawyers on how the IBP as a professional association for lawyers in the Philippines could contribute towards enhancing access to justice for women in the country.
Contact
For questions and clarifications, please contact Ms. Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206); e: emerlynne.gil(a)icj.org.
