Apr 28, 2020 | Advocacy, News, Open letters
The ICJ today called on the South African government to take measures to ensure access to justice and the full fulfillment of the economic, social and cultural rights of all in the country.
The South African authorities must also remove legal hurdles in accessing just compensation for rights violations occurring during nationwide lockdown, the ICJ said.
The call comes as South Africa enters its final week of a lockdown period, which initially began on 26 March 2020. Since the beginning of the lockdown period the ICJ has been working closely with a broad coalition of local civil society organizations and movements called the C19 People’s Coalition.
“The ICJ applauds South Africa on its announcement that it will commit 10% of its GDP to a social relief and economic support package addressing poverty and in inequality which has been exacerbated by COVID-19,” said Arnold Tsunga, ICJ Africa Director.
“However we note with concern the high levels of repression and human rights abuses committed by enforcement officers enforcing Lockdown Regulations and the inadequacy of social assistance measures to ensure an effective elimination of poverty in accordance with South Africa’s international and domestic human right obligations.”
- Repression and human rights abuses by enforcement officers during Lockdown
Both the Disaster Management Act and Lockdown Regulations enacted in terms of it create doubt about whether victims of violations of human rights in the enforcement of lockdown will be able to claim compensation for such violations.
The ICJ has therefore written to President Cyril Ramaphosa (photo) and Speaker of the National Assembly Thandi Modise calling on the authorities to make the necessary legal amendments required to ensure the full protection of the right to access to justice, which includes the right to effective remedies and reparation.
The ICJ calls on authorities to ensure the amendment of the National Disaster Act and Lockdown Regulations to ensure that victims of human rights abuses have full and effective access to the right to remedy and reparation including compensation.
- Inadequate Social Assistance provided
Despite the large stimulus package announced by President Ramaphosa on 21 April, the C19 People’s Coalition has correctly argued that the new COVID-19 social grant of R350 ($18.44 USD) per month for unemployed persons is less than a third of the R1227 ($64.65) that government itself estimates individuals require to be lifted out of poverty.
In addition, the increase of the Child Support Grant of R500 ($26.35) per month appears, contrary to what the President’s announcement suggested, to be allocated per caregiver not per child thus drastically reducing its potential impact.
The ICJ calls on authorities to ensure the full provision of a social safety net to all in South Africa by: 1) raising the levels of all non-contributory social assistance benefits to a level that ensures an adequate standard of living for recipients and their families; and 2) ensuring that those between the ages of 18 and 59 with little or no income have access to social assistance.
These two measures were among those specified in the Concluding Observations of the Committee on Economic, Social and Cultural Rights to South Africa.
South Africa declared a moratorium on all evictions during the lockdown period on 26 March after local organizations and the ICJ had called for such a move.
Later amendments to Lockdown Regulations made it a criminal offence for any person to evict any other person. Despite this, evictions continue in some places unabated as is illustrated by statements of Abahlali BaseMjondolo and Abahlali BaseMjondolo Women’s League late last week.
These evictions have sometimes been violent and accompanied by serious allegations of attempted murder of community members and human rights defenders.
The ICJ calls on authorities to ensure the immediate cessation of all evictions. The President of South Africa and the Parliament of South Africa must make sure that police officers, security and other companies and government officials participating in evictions are clearly, decisively and publicly held to account.
Those carrying out evictions should be prosecuted in accordance with Lockdown Regulations. The police and prosecuting authorities should also investigate and where sufficient evidence exists pursue prosecution of those found to have committed crimes of violence or similar offences against those who are subjected to or defend against such evictions.
“The continued violent attacks experienced by human rights defenders and those simply trying to retain their homes is unacceptable. The time has come for the President of South Africa and Parliament of South Africa to intervene directly to prevent any further such attacks generally, but in particular with regard to Abahlali BaseMjondolo settlements in KwaZulu-Natal,” added Arnold Tsunga, ICJ Africa Director.
Contact:
Tim Fish Hodgson, ICJ Legal Adviser, t: +2782871990 ; e: tim.hodgson(a)icj.org
Shaazia Ebrahim, ICJ Media Officer, t: +27716706719 ; e: shaazia.ebrahim(a)icj.org
Apr 28, 2020 | News
The ICJ today urged Taiwan to decriminalize adultery as soon as possible.
Echoing the UN Human Rights Committee, the UN the Committee on the Elimination of Discrimination against Women and the UN Working Group on discrimination against women in law and practice, the ICJ stated that the criminalization of people who are not married to each other for engaging in consensual sexual relations is a violation of the right to be free from discrimination; the right to equality before the law and equal protection of the law without discrimination; and the right to privacy, among other rights. The criminalization of adultery also often leads to discrimination and violence against women.
The Constitutional Court of Taiwan is currently deliberating on the constitutionality of Article 239 of the Criminal Code, which provides that, “a married person who commits adultery with another shall be sentenced to imprisonment for not more than one year; the other party to the adultery shall be subject to the same punishment.” On 31 March 2020, Taiwan’s Constitutional Court heard oral arguments on the constitutionality of Article 239 after several judges requested an interpretation of the law. The Court is expected to release its opinion on the matter at the end of May.
“In many ways, the ongoing criminalization of adultery leads to dire consequences for women’s human rights in Taiwan,” said Emerlynne Gil, Senior International Legal Adviser of the International Commission of Jurists.
“The enforcement of criminal adultery provisions often leads to discrimination and violence against women. In Taiwan, for example, women are disproportionately the target of adultery lawsuits. While male adultery enjoys greater tolerance in Taiwan, women are being targeted because of harmful gender stereotypes and rigid constructions of femininity.”
The ICJ notes that women are twenty percent more likely to be convicted than men in adultery cases in Taiwan. Furthermore, to secure a conviction on adultery charges in Taiwan, given the criminal law standard of proof, there has been a resort to photographic evidence of the two accused individuals engaging in sexual acts in some cases. As a result, an entire industry of private investigators, often engaging in illegal behaviour, has developed in response to “market” demand for “evidence” capable of making criminal adultery charges stick.
Taiwan is not a Member State of the UN, but in 2009 it introduced legislation aimed at incorporating the International Covenant on Civil and Political Rights (ICCPR) as a matter of domestic law. In 2013, an International Review Committee composed of independent human rights experts working in their personal capacities recommended that Taiwan should take steps to abolish the adultery provision in its Criminal Code as it was not in conformity with Article 17 of the ICCPR.
“Continuing to criminalize adultery goes against the image that Taiwan wants to portray of itself, that it is a beacon of democracy and human rights in Asia,” Emerlynne Gil said. The ICJ urges Taiwan to decriminalize adultery as soon as possible by removing the above mentioned provision from its Criminal Code.
Additional Information
There have been several challenges in the past to the constitutionality of Article 239 of Taiwan’s Criminal Code. In 2002, in one of such challenges, the Constitutional Court issued Interpretation 554, holding that the freedom of sexual behavior was inseparably related to the personality of individuals, and every person was free to decide whether or not and with whom to have sexual affairs. However, the Court went on to say that such freedom was legally protected only if it was not detrimental to “the social order or public interest”, as provided in Article 22 of the Constitution and, therefore, “the freedom of sexual behavior” was subject to the restriction that marriage and the institution of the family imposed on it.
Download the statement in Mandarin Chinese here.
Contact
Boram Jang, ICJ Legal Adviser – Access to Justice for Women, Asia & the Pacific Programme, e: boram.jang(a)icj.org
Apr 27, 2020 | News
Today, the ICJ and Lawyers’ Rights Watch Canada (LRWC) jointly submitted a legal brief (amicus curiae) to the Court of Appeal in criminal defamation proceeding against Thai journalist Suchanee Rungmuanporn (Cloitre).
The journalist is being charged after making a post on Twitter highlighting labour rights violations by Thammakaset Company Limited. The post detailed an order by Thailand’s Court of Appeal for Specialized Cases for Thammakaset to provide compensation to its 14 former employees from Myanmar, with the word “slavery” included in the post. This inclusion is the basis for defamation claim.
On 24 December 2019, Suchanee was sentenced to two years’ imprisonment by Lopburi Provincial Court.
The intervention reviews the nature and scope of Thailand’s international legal obligations relating to the right to freedom of expression. It makes clear that the imposition of harsh penalties such as imprisonment has a “chilling effect” on the exercise of freedom of expression, which Thailand is bound to protect pursuant to its international legal obligations. It particularly undermines the work of journalists and human rights defenders seeking to bring to light these violations and whose activities must be protected.
The brief underscores that under international law and standards, criminal sanction involving imprisonment must never be imposed for defamation.
Criminal defamation, under sections 326 of the Criminal Code, carries a maximum sentence of one year of imprisonment, a fine of up to 20,000 Baht (approx. USD 640) or both. Section 328 criminalizes defamation “by means of publication” with up to two years’ imprisonment and a fine of up to 200,000 Baht (approx. USD 6,400).
This case is one of 36 cases brought by Thammakaset against several individuals who have expressed views and conducted advocacy on or released information relating to labour rights violations alleged to have been committed by Thammakaset. These include criminal defamation complaints against human rights defenders, including Mr. Nan Win, Ms. Sutharee Wannasiri, Ms. Ngamsuk Rattanasatiean, Ms. Angkhana Neelapaijit, Ms. Puttanee Kangkun, and Ms. Thanaporn Saleephol.
Download
Legal brief (amicus curiae) to the Court of Appeal in Thai and English.
Apr 24, 2020 | News
On 24 April 2020, the ICJ, Thai Lawyers for Human Rights (TLHR) and the Cross Cultural Foundation (CrCF) made a joint supplementary submission to the UN Human Rights Committee on Thailand’s implementation of its human rights obligations under the International Covenant on Civil and Political Rights (ICCPR).
In their submission, the ICJ, TLHR and CrCF detailed their concerns in relation to Thailand’s failure to implement the Committee’s recommendations, including the ongoing human rights shortcomings of the country’s Constitutional and legal framework; the continued lack of domestic legislation criminalizing torture, other ill-treatment and enforced disappearance; and reports of torture and other ill-treatment. In addition, the three human rights organizations expressed concern over the use of the Emergency Decree on Public Administration in Emergency Situation to combat the COVID-19 outbreak, and measures imposed under the Decree that may constitute a blanket restriction on fundamental freedoms, including the rights to free expression, opinion, information, privacy and freedom of assembly and association, with no opportunity for the courts to review these extraordinary measures.
The organizations’ submission also describes human rights concerns with respect to the following:
Constitution and legal framework
- Head of the NCPO Order No. 22/2561; and
- Head of the NCPO Order No. 9/2562
Extrajudicial killings, enforced disappearances and torture
- continued lack of domestic legislation criminalizing torture, other ill-treatment and enforced disappearance;
- reports of extrajudicial killings, torture, other ill-treatment, enforced disappearances, and the progress and results of investigations;
- the application of security-related laws; and
- threats and reprisals against persons working to bring to light cases of alleged torture, ill–treatment and enforced disappearance.
Download
Thailand-UN-Human-Rights-Committee-Supplementary Submission-2020-ENG (English, PDF)
Thailand-UN-Human-Rights-Committee-Supplementary Submission-2020-THA (Thai, PDF)
Background
On 23 March 2017, during its 119th Session, the Human Rights Committee adopted its Concluding Observations on the second periodic report of Thailand under article 40 of the ICCPR.
Pursuant to its rules of procedure, the Committee requested Thailand to provide a follow up report on its implementation of the Committee’s prioritized recommendations made in paragraphs 8 (constitution and legal framework) 22 (extrajudicial killings, enforced disappearances and torture) and 34 (conditions of detention), within one year of the adoption of its Concluding Observations – i.e., by 23 March 2018.
On 18 July 2018, Thailand submitted its follow-up report to the Committee. The report was published on 9 August 2018.
On 27 March 2018, the ICJ, TLHR and CrCF made a joint follow-up submission to the UN Human Rights Committee. However, since then, there have been several developments that the three organizations wish to bring to the attention of the Committee through this supplementary submission.
The UN Human Rights Committee will review Thailand’s implementation of the prioritized recommendations during its 129th Session, in June/July 2020.
Further reading
ICJ and TLHR, Joint submission to the UN Human Rights Committee, 13 February 2017
ICJ, TLHR and CrCF, Joint follow-up submission to the UN Human Rights Committee, 27 March 2018
Apr 22, 2020 | News
In a joint letter to EU Member States, the ICJ and other human rights NGOs have urged them to recognize the grave implications for human rights and the rule of law, of the Hungarian government’s recent emergency measures.
Ahead of the Council of the EU videoconference of EU Affairs Ministers to discuss the response to COVID-19, Amnesty International, International Federation for Human Rights (FIDH), Human Rights Watch, the ICJ, Open Society European Policy Institute and Reporters Without Borders (RSF) urged the Council to take immediate steps to protect the principles enshrined in Article 2 of the Treaty on European Union (TEU), and the rights enshrined in the EU Charter of Fundamental Rights. This is particularly needed in light of the already deteriorated state of the rule of law and human rights in Hungary, which warranted the activation, in September 2018, of the procedure laid down in Article 7.1 TEU.
The organisations urged the member states of the European Union to:
- include in the agenda of the upcoming session of the EU General Affairs Council an Article 7.1 TEU hearing on the situation in Hungary, including recent developments in relation to the COVID-19 outbreak, and address to the government of Hungary, as a matter of urgency, concrete recommendations to safeguard respect for the rule of law and human rights in the country, that the Hungarian government must implement by a set deadline;
- commit to assessing the implementation of the recommendations in a timely manner in order to reach a determination under Article 7.1 TEU and, should conditions warrant it, move forward under Article 7.2 TEU.
- ensure enhanced monitoring of the Hungarian government’s use of EU funding, including funds aimed at supporting member states during the public health crisis.
The organisations urged both the Council and the Commission to cooperate with each other, and with the European Parliament and national parliaments, to ensure a coordinated, consistent and effective response to the situation.
The full letter is available here: CSO Letter to GAC -rule of law in Hungary April 2020
Apr 22, 2020 | Advocacy, News
The ICJ based on the consultations with the participants of the Regional Forum of Lawyers held in Dushanbe, Tajikistan, published recommendations on the Independence of Legal Profession and Role of Lawyers in Justice Systems of the Central Asian States.
The recommendations draw attention of State and non-State actors in the Central Asian countries to the urgency in ensuring in law and practice the independence of the lawyers’ professional associations and individual lawyers.
“Lawyers play a critical role in strengthening the rule of law and protection of human rights in the justice systems of all countries of the world, including in Central Asia,” Temur Shakirov, ICJ Senior Legal Adviser said.
“We hope that these recommendations, which are based on consultations and international law and standards on the role of lawyers, will contribute to strengthening the independence lawyers and Bar Associations in Central Asia”.
The recommendations, apart from the lawyers’ communities themselves, are addressed to national professional associations of lawyers, Parliaments, and Governments, and specifically Ministries of Justice that continue in some countries of Central Asia to exercise formal and informal influence over the national Bar Association, including by imposing control in regard to access to the profession and disciplinary proceedings.
“The ICJ calls on these institutions to adopting urgent and effective measures legal and policy measures to safeguarding lawyers’ ability to carry out their professional duties in an atmosphere free from any other improper interference, institutional or personal, in each of the countries of the Central Asian region,” Shakirov added.
Background:
On 9 November 2018, the ICJ facilitated the Regional Forum on the Independence in Justice Systems of the Central Asian States in Dushanbe, Tajikistan. This was the first regional event hosted by the Union of Lawyers of Tajikistan, a professional association of lawyers that was established in 2014. The Forum brought representatives of the National Bar Associations of the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan and the Republic of Uzbekistan. The event was also supported by Legal Policy Research Centre (LPRC), a think tank from Almaty, Kazakhstan, that works on the reform of legal profession in the region.
The participants of the Forum highlighted the continuing and renewed attempts to undermine the independence of the professional associations of lawyers in countries of Central Asia, including targeted disbarment and harassment of individual lawyers for fulfilment of professional duties towards their clients. The participants also discussed the emerging practice of the establishment of specialized bodies for the protection of the rights of lawyers within the professional associations of lawyers to counter negative trends in Central Asian countries, affecting the legal profession.
Recommendations, in PDF: Central Asia-Recommendations-Advocacy-2020-ENG
