Dec 20, 2018 | News
The ICJ today called on Hungarian President Áder János not to sign the Law on the Administrative Courts but to send it back to the Parliament for further review and discussion. In particular, the law should be re-considered in light of international standards as well as the forthcoming reasoned opinion of the Venice Commission, the ICJ said.
On 12 December, the Hungarian Parliament adopted, in a highly contested process, the Law on the Administrative Courts (T/3353). The vote took place despite the fact that an opinion of the Council of Europe Venice Commission on the new law is still awaited.
The administrative courts will have significant competencies in matters of public interest concerning the action of the executive and other public institutions. They will have jurisdiction over “administrative disputes” as well as other issues transferred to their jurisdiction by law (Article 1(3)).
The ICJ is concerned at the significant powers conferred on the executive over the proposed Administrative Courts, in particular the Minister of Justice’s powers in the appointment of administrative judges (Article 72(2)) as well as the powers of the Minister of Justice and of the Parliament in regard to the annual budget of these courts. Under the new law, judges of the administrative courts would be appointed by the Minister of Justice on the advice of a newly-established National Administrative Judicial Council, with the Minister having a discretion to reject the first-ranked nominee of the Council. In a context where the independence of the Hungarian judiciary is already being eroded, this role of the executive raises significant concerns regarding the independence of the new courts.
The new law comes at a time when measures put in place by the Hungarian government since 2011 have led to a severe deterioration of the rule of law and human rights, by weakening Constitutional rights protection, limiting judicial independence, suppressing independent media, civil society and academic institutions, and imposing arbitrary laws that violate the human rights of marginalized sections of society.
The ICJ recalls that judicial independence and the separation of powers are the bedrock of the rule of law. International law, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights, and other international standards such as the United Nations Basic Principles on the Independence of the Judiciary, reflect the fundamental role of an independent judiciary in protecting human rights and the rule of law.
Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
Additional Reading Material
- ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
- ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Dec 19, 2018 | News
According to information published in the Official Gazette, the government of Guatemala has ordered that eleven more officials and two family relatives from the CICIG leave the country within 72 hours from the time of issuing the notification. However, no official communication using the usual diplomatic channels has yet been sent to the CICIG.
In September 2018, the head of the CICIG, Commissioner Ivan Velasquez, was banned from re-entering the country and the government stated it would not renew the CICIG mandate after September 2019.
Ramon Cadena, the ICJ Director for Central America, stated: “The ICJ considers this new measure is designed to hinder criminal investigations against high-level government officials accused of corruption.”
The CICIG acts as a special prosecutor in serious corruption and other criminal cases and carries out investigations to identify responsible parties. The persons who have been asked to leave the country are the lawyers, police and prosecutors who are investigating important corruption cases, such as the ‘The Line’ case, in which the former President and Vice-President have been charged and other cases including those within the National Police.
Ramon Cadena continued: “It cannot escape anyone’s attention that one of the CICIG investigators who has been asked to leave the country was the person who is responsible for the corruption case involving the General Property Registry, that allegedly implicates both the son and brother of President Jimmy Morales”.
This new measure by the government seriously affects the rule of law and constitutes a flagrant violation of article 10 (4) of the agreement establishing the CICIG signed between Guatemala and the UN, which states:
“The Government agrees to provide to CICIG and its personnel the security necessary for the effective completion of CICIG’s activities throughout Guatemala, and to protect the personnel of CICIG, whether national or international, from abuse, threats, reprisals or acts of intimidations, in virtue of their status as personnel of, or their work for CICIG.”
Cadena added: “It is deeply regrettable that it is precisely the CICIG staff acting in high-impact cases who are being targeted by these measures because of their work to combat corruption and impunity. It is clear that the government is seeking to divert the CICIG from its path.”
Furthermore, according to the UN Basic Principles on the Role of Lawyers, No 16: “Governments shall ensure that lawyers: a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference… “ Cadena continued, “The ICJ is deeply concerned that several CICIG personnel affected by these measures are lawyers and members of the Guatemalan Bar Association. Their work is being hindered and the Guatemalan Bar Association should take action to defend its members.”
“Guatemala should comply with international human rights law and ensure that acts of corruption that impact human rights are fairly and impartially investigated and prosecuted. The presence of the CICIG contributes to ensuring that Guatemala complies with its international obligations” he added.
Cadena concluded by stating: “With these arbitrary measures, the Constitutional order of Guatemala and its democratic institutions are undermined. The Guatemalan State should ensure effective measures are taken against corruption, consistent with its international human rights and other obligations. The CICIG is one of the most successful examples of work to end corruption and impunity. The Guatemalan authorities should support the CICIG instead of hindering its work and obstructing justice.”
Dec 18, 2018 | Multimedia items, News, Video clips
Lawyers from a diverse range of countries, including Egypt, Lebanon, Nepal, the Philippines, Tunisia and Uzbekistan have identified the many barriers that women typically face in accessing justice in their countries.
Common trends and practices identified included socio-economic marginalization, gender stereotypes and patriarchal attitudes.
The observations came during two training workshops held in Geneva in June and September to coincide with sessions of the UN Human Right Council and UN Committee on the Elimination of Discrimination against Women. The workshops were part of a project on enhancing women’s access to justice through UN human rights mechanisms, supported by the Permanent Mission of the Federal Republic of Germany to the UN in Geneva.
A lawyer from Uzbekistan noted that domestic violence flourishes in states where common attitudes hold that this is an internal matter to be resolved within families.
A particular concern raised in respect of Lebanon was discrimination linked to transference of nationality, where Lebanese women married to a foreigner cannot pass their nationality to their children but Lebanese men married to a foreigner can.
Meera Maharjan, lawyer from Nepal, noted the cultural, educational and economic barriers that impede women from being able to take on decision-making roles and the impact this has on the exercise of their rights.
Malaysian lawyer Yvonne Lim explained that the women who are often in need of access to justice tend to be from the lower rungs of the socio-economic strata and lack the resources, support and basic awareness about their human rights and the remedies that may be available to them.
During the September training session the ICJ organized a side event to the 39th session of the Human Rights Council on ‘applying a women-centred approach to access to justice’ to further explore these issues.
Secretary-General Saman Zia-Zarifi moderated the event and panelists included:
• ICJ Commissioner Justice Sanji Monageng, former Vice-President of the International Criminal Court
• Lisa Gormley, Research Officer for the Centre for Women, Peace and Security at the London School of Economics
• Meera Maharjan, Nepalese lawyer and legal officer for Resilience for Sustainable Women Empowerment (RISE)
You can watch a recording of the event, and interviews with two of the workshop participants below.
https://www.facebook.com/ridhglobal/videos/565112000574216/UzpfSTQ3MTQ2NzA4NjIyMTM3MzoyMjEyNTUzNjc1NDQ2MDMw/
Dec 16, 2018 | Agendas, Events
Today begins in Ankara (Turkey) a two-day international workshop for lawyers and CSO practitioners representing and working with migrants, refugees and asylum-seekers.
This event is organized by ICJ, in cooperation with its partners Refugee Rights Turkey, the European Council on Refugees and Exiles (ECRE), Mülteci-Der (MD) and ICJ-EI, as part of the EU co-financed project Fostering Access to Rights for Migrants, Refugees and Asylum-Seekers in Turkey.
Lawyers and civil society practitioners – representing numerous bar associations and relevant organisations from the Istanbul area and other nearby key migration and asylum locations – are taking part in the workshop that takes place on 16-17 December.
The international conference on “Legal avenues and the role of lawyers in protecting migrant and refugee rights” includes a section on strategic litigation on asylum and migration law and European experiences.
In the second part of the conference, a final workshop is held on 17 December to discuss efforts to support expertise and effectiveness of Turkish lawyers on asylum and immigration law. This workshop will bring together key stakeholders and interlocutors to strategize about the remaining gaps and needs and the next steps in this field.
During this workshop, the organisers will present their project and its results.
The project “Fostering Access to Rights for Migrants, Refugees and Asylum-Seekers in Turkey” is funded by the European Instrument for Democracy and Human Rights (EIDHR) of the European Union.
Turkey-Workshop-Agenda-MigrationAsylumIHRL-Ankara2-2018-eng (download the agenda in English)
Turkey-Workshop-Agenda-MigrationAsylumIHRL-Ankara2-2018-tur (download the agenda in Turkish)
Dec 15, 2018 | Events, News
The ICJ convened the 9th annual “Geneva Forum” of Judges and Lawyers in Bangkok, Thailand, 13-14 December 2018, on the topic of indigenous and other traditional or customary justice systems in Asia.
Indigenous and other traditional or customary justice systems play a significant role in many societies around the world, in terms of access to justice for rural communities, indigenous peoples, minorities, and other marginalized populations. At the same time, such systems raise a series of questions in terms of their relationship to international fair trial and rule of law standards, and impacts on human rights including particularly those of women and children.
9th annual Geneva Forum of Judges & Lawyers, 13-14 December 2018, Bangkok, Thailand
Following discussions on these topics at the 2017 ICJ Geneva Forum (an annual global meeting of senior judges, lawyers, prosecutors and other legal and United Nations experts, convened by the ICJ with the support of the Canton and Republic of Geneva (Switzerland) and other partners), the ICJ decided that in order to better engage with customary justice systems, the Geneva Forum would be “on the road” in 2018 and 2019, convening for a regional consultation in the Asia-Pacific in 2018, and in Africa in 2019.
Additional consultations will take place in the Americas. The Forum will return to Geneva for an enlarged session in 2020 to adopt final conclusions and global guidance.
The ninth annual Geneva Forum in Bangkok brought together judges, lawyers, and others engaged with traditional justice systems in the Asia-Pacific region, and practitioners from ordinary justice systems in the region, together with UN Special Rapporteur on the rights of indigenous peoples Ms. Victoria Tauli Corpuz, as well as ICJ and UN representatives from Geneva, to discuss and develop practical recommendations, in a private small-group setting.
Participants came from a number of countries across the region, including: Cambodia, Indonesia, Malaysia, Myanmar, Pakistan, Philippines, Thailand and Timor Leste.
The potential and the risks for equal and effective access to justice and human rights
Many participants re-affirmed that traditional and customary justice systems can make an important contribution to improving access to justice for indigenous, and other rural or otherwise marginalized populations, as a result of such factors as geographic proximity, lower cost, lesser cultural or linguistic barriers, and greater trust by local communities, relative to the official justice system.
Indeed, for these and other reasons, for some marginalized and disadvantaged rural populations, traditional and customary courts may in practical terms be the only form of access they have to any kind of justice.
Furthermore, article 34 of the UN Declaration on the Rights of Indigenous Peoples affirms the right of indigenous peoples “have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards”.
Furthermore, official recognition of traditional or customary courts in a country can more generally be a positive reflection of the cultural and other human rights of other ethnic, religious or linguistic minorities.
At the same time, the Forum discussions confirmed that, as with formal justice systems, certain characteristics and processes of some traditional and customary justice systems can conflict with international standards on fair trial and the administration of justice, and human rights, particularly of women and children.
Participants in the 2018 Forum discussed a variety of ways in which the relevant communities, their leaders, and decision-makers in indigenous or other traditional systems, together with government authorities, international actors, development agencies, and civil society, can cooperate and coordinate with a view to seeing both formal and traditional systems operate more consistently with international standards on human rights and the rule of law.
There was a range of views on which forms of engagement or intervention were most appropriate or effective. It was also emphasized that work should continue to build the accessibility and capacity of official justice systems to ensure that individuals seeking justice have a real choice.
The above conclusions were subject to the acknowledgement that traditional and customary justice systems take many different forms across the region, and that they exist in many different contexts.
A full report of the Forum discussions will be published by the ICJ in the first part of 2019.
Development of Guidance by the International Commission of Jurists
The ICJ’s global experience and expertise, together with research and global consultations with judges, lawyers and other relevant experts, including the 2017 Geneva Forum, the 2018 session in Bangkok, and subsequent regional consultations in Africa and the Americas, will provide a foundation for the publication by ICJ in 2020 of legal, policy and practical guidance on the role of traditional and customary justice systems in relation to access to justice, human rights and the rule of law.
The ICJ guidance will focus on the mechanisms and procedures of traditional and customary justice systems, as opposed to tackling all aspects of the substantive law.
The guidance will seek to assist all actors involved in implementation and assessment of relevant targets of Sustainable Development Goal 16 on access to justice for all and effective, accountable and inclusive institutions, as well as Goal 5 on gender equality, including: decision-makers and other participants in traditional and customary justice systems; judges, lawyers and prosecutors operating in official justice systems; other government officials; development agencies; United Nations and other inter-governmental organizations; and civil society.
The guidance will be published and disseminated through activities with ICJ’s regional programmes, and its national sections and affiliates, through a series of regional launch events and workshops, as well as at the global level at the United Nations and in other settings.
The guidance will provide the basis for ICJ strategic advocacy at the national level in the years following the conclusion of this initial phase of this work.
Background Materials
Available for download in PDF format:
A Compilation of selected international sources on traditional and customary courts, is available here.
The Final report of the 2018 Geneva Forum, on traditional and customary justice systems, is available here: Universal-Trad-Custom-Justice-GF-2018-Publications-Thematic-reports-2019-ENG
The Final report of the previous, 2017 Geneva Forum, on traditional and customary justice systems, is available here: Universal-Trad Custom Justice Gva Forum-Publications-Thematic reports-2018-ENG
For more information, please contact matt.pollard(a)icj.org.
