Jun 16, 2020 | News
Today, the ICJ condemned the prosecution and conviction of journalists Maria Ressa and Reynaldo Santos, Jr. after the Manila Regional Trial Court found them guilty of cyber-libel for an article published on the news website Rappler. The ICJ called for the judgment to be reversed on appeal.
The ICJ also called on the Philippines to reform its laws to remove the possibility of criminal sanction for defamation and libel offenses, in line with its international legal obligations. The ICJ recalled that imprisonment for such offenses is never permissible.
“The guilty verdict is a new low for the Duterte administration, and adds to an atmosphere of intimidation that creates a chilling effect on online expression, especially for journalists seeking to hold the government to account,” said Frederick Rawski, ICJ Asia-Pacific Director.
“The conviction is not only a miscarriage of justice in this particular case; it also sets a terrible precedent for the use of criminal defamation laws to prosecute speech online in the Philippines and elsewhere in the region.”
Ressa and Santos were convicted pursuant to Section 4(c)(4) of the 2012 Cybercrime Prevention Act (CPA), and sentenced to imprisonment of up to six years and a fine of PhP 200,000 (approx. USD 4,000). Ressa is the executive editor of Rappler while Santos was the author of the article. Ressa’s conviction comes after years of legal harassment, forming part of a pattern of attacks upon the press by the Duterte government and placing the Philippines in violation of the right to freedom of expression under the International Covenant on Civil and Political Rights (ICCPR), to which the Philippines is a party.
The charges involved an article first published in May 2012 on the Rappler website, months before the CPA was enacted in September 2012. The article reported on businessman Wilfredo Keng’s alleged involvement in “human trafficking and drug smuggling.” Keng initiated the criminal proceedings against Ressa and Santos in October 2017, five years after the article was published.
However, the trial court considered the article to have been “republished” on 19 February 2014 when Rappler updated the article on its website to fix a typographical error. Further, since the CPA does not expressly mention the prescriptive period, the trial court held that Republic Act No. 3326 applies, which provides a 12-year prescriptive period for offenses punished under a ‘special law’ such as the CPA. In contrast, ordinary libel under the Revised Penal Code carries a one-year prescriptive period.
“Regardless of the merits of the case, criminal sanction involving imprisonment must never be imposed for defamation,” said Rawski.
“On top of this general consideration, the judgment even sets a dangerous precedent by expanding the prescriptive period and ‘publication’ requirement for the crime of libel, contradicting well-established protections against ex post facto laws and that any ambiguity in penal laws must be resolved in favor of the accused.”
The right to freedom of expression under Article 19 of the ICCPR extends to political discourse, commentary on public affairs and journalism. The UN Human Rights Committee, the supervisory body for the ICCPR, has called on States to abolish existing criminal defamation laws and reserve defamation for civil liability. The Committee concluded in 2012 that the Philippines’ criminalization of defamation, including under the CPA, breaches its obligations under the ICCPR. Article 15 of the ICCPR also prohibits the prosecution of persons for acts that were not considered a crime at the time of commission.
The Committee and the UN Human Rights Council have affirmed that these safeguards apply online as well as offline, as Article 19 protects expression regardless of frontiers and through any media of one’s choice. The UN Special Rapporteur on freedom of expression has consistently called for decriminalization of defamation as a criminal offence, which is inherently harsh and encourages self-censorship.
Contact
Emerlynne Gil, Senior International Legal Adviser, +662 619 8477 (ext. 206), emerlynne.gil(a)icj.org
Download
Philippines-Maria-Ressa-Press-Release-2020-ENG (PDF)
Related work
Report: Curtailing Free Expression, Opinion and Information Online in Southeast Asia
Philippines: order to major media outlet to stop airing violates freedom of expression and access to information
Jun 15, 2020 | News
Member States convening today for the resumption of the 43rd session of the UN Human Rights Council should support the establishment of an international investigative mechanism to document and preserve evidence of violations of international human rights law and international humanitarian law (IHL) committed in Libya, said the ICJ and Lawyers for Justice in Libya.
The escalation in armed conflict in recent months and ongoing impunity for an increasing number of violations and abuses being committed in Libya lend particular urgency to the establishment of a mechanism for a period of at least one year to investigate all gross human rights violations and abuses and serious violations of IHL, with a view to preserving evidence and holding perpetrators accountable.
“Horrific reports documenting the discovery of mass graves are the latest addition to a long line of well-established atrocities perpetrated across Libya,” said Kate Vigneswaran, Senior Legal Adviser at the ICJ’s Middle East and North Africa Programme. “Impunity for these crimes has proven only to prompt further violence and prolong the conflict.”
On 11 June 2020, the United National Support Mission to Libya reported the discovery of at least eight mass graves, located predominantly in Tarhuna, a town located southeast of Tripoli.
Though exhumations have only just commenced, initial reports by the Government of National Accord (GNA) indicate that they could contain hundreds of bodies, including of women and children.
Reports further indicate that the Libyan Arab Armed Forces (LAAF), and their foreign allies, have laid anti-personnel landmines and other booby-traps in buildings as they withdrew from Tripoli, leading to causalities including among civilians returning to their homes after long periods of displacement.
Reports of incidents involving “retributive crimes”, including the parading of corpses and looting of perceived opponents’ houses and public property, by GNA-affiliated armed groups have also surfaced.
“The systematic and ubiquitous nature of these violations reinforces the need for States to urgently push for mechanisms designed to address accountability and fight prevailing impunity. The establishment of an international investigative mechanism would not only pave the way towards obtaining justice for the victims and preserving evidence necessary for doing so, but also send a strong and unequivocal message that those who commit crimes will be held accountable,” said Marwa Mohamed, Head of Advocacy and Outreach at Lawyers for Justice in Libya.
An international investigative mechanism would bolster accountability efforts in the country, which have, thus far, been impeded by cycles of violence, weak and ineffective law enforcement agencies, the arbitrary exercise of policing and detention powers by armed groups and an inadequate legal framework for holding perpetrators of crimes under international law accountable.
States will vote on the resolution on Libya (UN Doc A/HRC/43/L.40) following the interactive dialogue on the High Commissioner for Human Rights’ Report on Libya on 18 June 2020.
The 43rd session of the Human Rights Council commenced in February 2020, but was suspended due to the COVID-19 pandemic.
Contact
Kate Vigneswaran, Senior Legal Adviser, ICJ Middle East and North Africa Programme, t: +31624894664 ; e: kate.vigneswaran(a)icj.org;
Background
A variety of armed groups have been engaged in recurrent waves of armed conflict since the 2011 uprising. These include the forces of the GNA, established in 2016, which is the internationally recognized State governing authority and is supported by armed groups acting either under their control or in alignment or alliance with it, and the LAAF, which is headed by Khalifa Haftar, who was endorsed by the House of Representatives after launching his military campaign in 2014, and is composed of a mixture of military units and armed groups.
The GNA generally has control over territory in the west, and the LAAF exercises a significant degree of control over territories in the east and parts of the south. In April 2019, the LAAF marched on Tripoli gaining further territorial control in parts of the west, but such gains have been reduced over recent weeks following the escalation in hostilities with the GNA and the LAAF’s consequent retreat.
Reports by UNSMIL and other international bodies and non-government organizations document the gross human rights violations and abuses and serious violations of IHL being committed by all parties to the conflicts in Libya. These include unlawful killings resulting from direct, indiscriminate and disproportionate attacks against persons not engaged in hostilities; attacks on civilian objects including medical facilities and equipment; torture and ill-treatment, including acts of sexual violence and the crime of rape; arbitrary arrests and detention; forced displacement; enforced disappearances; and extrajudicial killings. These violations and abuses have led to mass internal displacement, including of over 200,000 people since April 2019 from Tripoli and its outskirts.
Libya-Atrocities need investigation-News-2020-ARA (story in Arabic, PDF)
Jun 9, 2020 | News
As of 9 June, at least ten prominent lawyers have been arrested and criminally charged in Zimbabwe.
Among them, Advocate Thabani Mpofu (photo), Advocate Choice Damiso, Mr Tapiwa Makanza and Mr Joshua Chirambwe have been arrested and charged with the crime of defeating or obstructing the course of justice.
These lawyers are alleged to have falsified information in the papers filed in a legal matter in which they were representing a citizen, who was challenging the legality of President Mnangagwa’s decision to appoint Mr Kumbirai Hodzi as the Prosecutor General.
Mr Dumisani Dube was arrested on similar charges but his charges arise from a different case.
Mr Patrick Tererai was charged with disorderly conduct after he demanded access to his client who had been detained at a police station.
The ICJ notes that the criminal charges laid against all the six lawyers are linked to the performance of their duties as legal practitioners.
The ICJ reminds the Government of Zimbabwe of its domestic and international obligations pertaining to the right to fair trial and protection of the independence of lawyers, as underscored in the United Nations Basic Principles on the Role of Lawyers and the African Commission on Human and Peoples’ Rights Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
These elaborate standards relevant to the right to a fair trial including under article 14 of the International Covenant on Civil and Political Rights (ICCPR) and article 7 of the African Charter on Human and Peoples’ Rights.
Of particular significance is Principle 16 of the UN Basic Principles which states that “Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;…. and [lawyers] shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
In addition, Principle 20 provides that “Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.” Similar provisions are included in Part I of the African Principles and Guidelines.
A lawyer would not generally be immune from criminal proceedings where allegations of perjury or intentionally providing false information to a court were well-founded.
In relation to this recent group of cases, the Law Society of Zimbabwe has expressed the concern that the arrests appear calculated to hinder the members of the profession from undertaking their professional duties.
In this context, the ICJ calls upon the Government of Zimbabwe to ensure that the right to fair trial for these lawyers is fully respected and that the criminal charges brought against these lawyers are not abused to subvert the independence of the legal profession.
“The arrest of ten lawyers within one week on criminal allegations arising from the performance of their duties as legal practitioners is a cause of concern. The state must ensure that these cases are handled fairly and that the criminal justice system is not abused to harass and intimidate lawyers who represent clients who are perceived as political opposition to the sitting government,” said ICJ Africa Director Arnold Tsunga.
Of late, Advocate Thabani Mpofu has represented opposition leader Mr Nelson Chamisa in a series of cases. These include the presidential election petition and the cases in which Mr Chamisa’s rise to the leadership of the opposition party has been challenged.
Contact
Arnold Tsunga, Director of the ICJ Africa Regional Programme, t: +263 77 728 3248, e: arnold.tsunga(a)icj.org
Jun 5, 2020 | News
The ICJ today condemned the proclamation by the Sri Lankan president to establish a Presidential Task Force dominated by the security forces and called for the proclamation to be rescinded.
On June 2, 2020, Sri Lankan President Gotabaya Rajapaksa issued an extraordinary gazette establishing a 13-member “Presidential Task Force to build a Secure Country, Disciplined, Virtuous and Lawful Society.” The Task Force is composed entirely of military, intelligence and police officials. It is to be headed by Defence Secretary, Retired Major General Kamal Gunaratne.
“This Presidential Task Force constitutes another act of over-reach by a government seeking to take advantage of the COVID-19 pandemic to further expand its powers,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific. “Its mandate is overbroad, and it empowers its military and police membership – including alleged war criminals – at a time when strong, independent, civilian-led policy-making is what is needed.”
The Task Force is given a sweeping mandate which includes:
- “taking necessary immediate steps to curb the illegal activities of social groups which are violating the law”
- “taking measures for prevention of the drug menace…”
- “taking legal action against persons responsible for illegal and antisocial activities conducted in Sri Lanka while locating in other countries”
- “investigating and preventing any illegal and antisocial activities in and around prisons.”
The task force also has the power to “conduct investigations and to issue directions as may be necessary in connection with the functions entrusted to it.” This includes issuing instructions to government officials to comply with its directives or be reported to the President.
The ICJ raised concerns that the task force has not been established on proper legal foundations. It is apparently pursuant to the broad, but ill-defined presidential powers under Article 33 of the Constitution.
The ICJ said that the task force could effectively usurp the powers and functions normally reserved for civilian authorities, under rule of law principles and as established by the Constitution and relevant enabling legislations.
Article 42 (1) of the Constitution provides that the “Cabinet of Ministers shall be charged with the direction and control of the Government.” Law enforcement and public officials under the direction of the relevant Minister have been designated under existing laws to specifically address drug-related offences and any other illegal and/ or criminal activity that seemingly fall within the mandate of this Task Force. The independence of public officials will be compromised if they are compelled to report to a military-dominated body. The Gazette provides no detail on how this reporting process would operate, or the legal consequences of refusing to act as instructed.
“Few doubt that this task force will be used as another tool to suppress speech and target critics of the Sri Lankan government. It is disturbing that such a potentially consequential body has been formed pursuant to broad presidential powers, with no reference to judicial or parliamentary oversight,” said Rawski. “Vague and overbroad language such as ‘anti-social activities’ could effectively criminalize expression protected under international law. Such provisions are inconsistent with the rule of law and contravene the principle of legality.”
The task force’s military and police membership follows a pattern of recent military appointments to civil administrative positions by the incumbent President. The military personnel appointed include officials credibly accused of war crimes. Chairman Major General Kamal Gunaratne was the commander of the 53rd division and Major General Shavendra Silva was the commander of the 58th Division of the Sri Lankan Army. Both units were identified by multiple UN investigatory bodies as having been involved in the commission of serious crimes and human rights violations during the last stages of Sri Lanka’s decades-long armed conflict which ended in 2009.
The ICJ called upon President Gotabaya Rajapaksa to rescind the extraordinary gazette establishing the Presidential Task Force. The role of the military in public life must be strictly circumscribed and matters pertaining to civil administrcation should be executed by elected and public officials in respect of the rule of law and principles of democratic governance.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director, t: +66 2 619 84 77; e: frederick.rawski(a)icj.org
Jun 4, 2020 | News
The ICJ today urged the country’s authorities to take immediate measures to fully reconstitute the Zimbabwe Human Rights Commission (ZHRC) after its operations were effectively suspended following the expiry of the terms of office of four of its Commissioners on 7 May 2020.
One Commissioner had already resigned in 2018 meaning that the ZHRC no longer has the constitutionally required quorum for it to make certain decisions that are fundamental to the protection of human rights in Zimbabwe.
“The inability by the ZHRC to fully execute its constitutional mandate has serious implications on the ability of individuals -in particular victims of human rights violations -to access justice,” said Arnold Tsunga, Director of the ICJ Africa Programme.
“The role of ZHRC, as Zimbabwe’s national human rights institution is critical in providing an avenue for redress to victims of human rights violations and the general public,” he added.
Zimbabwe has been witnessing an escalation of human rights violations requiring investigation by a fully functioning and effective Commission.
This spate of human rights violations has had a disproportionate impact on the poor and economically vulnerable in the context of the Covid-19 lockdown measures.
There have been an increase in targeting of human rights defenders, civil society leaders and political opposition, which have included acts of enforced disappearance and torture and other ill-treatment.
The ICJ underlined that while redress for such violations required strong and independent judiciary as a guarantor of human rights, the role of fully functional ZHRC was critical to complement that of the judiciary.
The ICJ called upon the authorities in Zimbabwe, and in particular the Parliamentary Committee on Standing Rules and Orders, to act expeditiously to ensure that the vacant positions are filled without any further delay to enable the ZHRC effectively perform and discharge its constitutional mandate.
The ICJ said that failure by the responsible authorities to act expeditiously to fill the vacant positions violated the core values and principles the Constitution of Zimbabwe, in particular section 324 of the Constitution which provides that “all constitutional obligations must be performed diligently and without delay”.
In addition, the President to fill in any vacant position within three months of death or resignation of a Commissioner. The position of Commissioner Khombe became vacant on the 30 October 2018, and has not been filled to date.
Additional Information
The ZHRC is established as an independent institution under Chapter 12 of the Zimbabwe constitution with the general objective to “support and entrench human rights and democracy; to promote constitutionalism; to promote transparency and accountability in public institutions; to secure the observance of democratic values and principles by the State and all institutions and agencies of government, and government-controlled entities; and to ensure that injustices are remedied.”
On 26 May the Chairperson of the ZHRC, Dr. E.H Mugwadi, wrote a letter notifying “partners and stakeholders” of the retirement of four Commissioners, namely Dr Ellen Sithole (former Deputy Chairperson), Dr Joseph Kurebwa, Kwanele M. Jirira and Japhet Ndabeni-Ncube with effect from 7 May. The Chairperson noted that the retirement had left the Commission lacking the quorum to fulfil its constitutional obligations, particularly with respect to make policy resolutions and the adoption of monitoring and investigation reports. The Commission had also been unable to adopt Commission reports its activities.
International standards for effective and credible National Human Rights Institutions (NHRIs) are contained in the United Nations Principles relating to the Status of National Institutions (Paris Principles), which provide that NHRIs must be adequately resourced with sufficient institutional capacity to perform and discharge their responsibilities.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +263 777 283 249; e-mail: arnold.tsunga(a)icj.org
Blessing Gorejena, ICJ Senior Legal Adviser, t: +263 772 151 989, e-mail: Blessing.Gorejena(a)icj.org
Jun 4, 2020 | News
The ICJ today raised concern at the threat of criminal proceedings against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions. The ICJ called on the Disciplinary Chamber of the Supreme Court not to lift his immunity at its 9th June hearing.
Judge Tuleya faces prosecution for having allowed the presence of media in a sensitive case concerning the investigations on the 2017 budget vote in the Polish House of Representatives (Sejm) that took place without the presence of the opposition.
He has been charged with ‘failing to comply with his official duties and overstepping his powers’ for having allegedly disclosed a secret of the investigation to ‘unauthorized parties’.
The accusations stem from the initiative of the judge to allow media and the public in the courtroom while issuing his ruling. Usually rulings on investigations are issued behind closed doors in Poland but the criminal procedure code allows judges to make the hearing public “in the interest of justice”.
“Judge Tuleya should not face any criminal proceedings to begin with for his actions in delivering his ruling in public, which is in accordance with national law”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme. “His immunity must be maintained and the ‘Muzzle Act’ that allowed for these abusive prosecutions should be immediately scrapped.”
These proceedings are the first case of implementation the draconian Act amending the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws, signed into law on 4 February and widely known as the ‘Muzzle Act’, which gave competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“As highlighted by the recent ruling of the EU Court of Justice, the Disciplinary Chamber of the Supreme Court is not independent and is open to undue influence or interference by political authorities. It should therefore not rule on issues pertaining to the disciplinary or criminal responsibility of judges, including a waiver of their immunity,” Massimo Frigo added.
Background
On 19 November, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court could be considered to be independent.
The CJEU ruled that a court cannot be considered independent “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”
Based on this ruling, the Labour, Criminal and Civil Chambers of the Supreme Court declared that the Disciplinary and Extraordinary Chambers of the Supreme Court were not properly constituted and independent.
According to the UN Basic Principles on the Independence of the Judiciary, judges are entitled to a fair hearing in all disciplinary proceedings (principle 17). In order for such a hearing to be fair, the decision-maker must be independent and impartial.
International and European standards on the independence of the judiciary provide that judges should have immunity from criminal prosecution for decisions taken in connection with their judicial functions in the absence of proof of malice, and any procedure for removing immunity must itself be independent (see for instance, UN Special Rapporteur on the Independence of Judges and Lawyers, paras 65-67 and 98; Council of Europe Committee of Ministers, para 68; Consultative Council of European Judges, para 20; ICJ Practitioners Guide no 13, pp. 27-30).
On 26 February 2020, the Polish Prosecutor’s Office requested a waiver of Judge Tuleya’s immunity in order to press criminal charges which might lead to imprisonment. The waiver will be examined on the 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government.
In an open letter of 5 February 2020, 44 ICJ Commissioners and Honorary Members denounced the recent legislative changes adopted by the Polish government threatening the role and the rights of judges and denouncing the risks faced by legal practitioners when fighting for the rule of law. Two weeks later, the risks highlighted by the letter have become reality for an increasing number of Polish judges, including Judge Tuleya.
Contact:
Massimo Frigo, Senior Legal Adviser, Europe and Central Asia Programme, e: massimo.frigo(a)icj.org, t: +41 22 979 38 00
