Mar 26, 2020 | News
The ICJ, Amnesty International, ARTICLE 19, ASEAN Parliamentarians for Human Rights, CIVICUS and Human Rights Watch today called on Singapore authorities to drop investigations of human rights lawyer M Ravi and two other individuals under Singapore’s contempt of court law and cease their harassment of human rights defenders.
On 13 March, police raided the office of human rights lawyer M Ravi, editor of an independent news website, Terry Xu, seizing his phone, passport and firm’s laptop.
He is apparently under investigation for contempt of court under the Administration of Justice Act (AJPA).
The investigation followed the publication of articles on independent media website ‘The Online Citizen’ (TOC) relating to his client, Mohan Rajangam, a Singaporean who challenged the legality of his extradition from Malaysia in 2015.
The same day, police raided the home of Terry Xu, TOC’s editor, and confiscated his electronic equipment. He is also being investigated for contempt of court under the AJPA, after he published articles on Rajangam’s case. Two other individuals are also being subject to investigation, including Rajangam himself and a writer for the TOC.
Even as the police have stated that the publication online on TOC of parts of Rajangam’s affidavit breached contempt of court regulations, it is unclear what exact content poses a risk of prejudice to the court proceedings.
“The contempt of court doctrine under common law was, for years, used by authorities to curtail speech surrounding politically sensitive topics and cases,” noted Frederick Rawski, ICJ’s Director for Asia and the Pacific.
“After the coming into force of the AJPA, the contempt regime is even more vulnerable for misuse – these current raids and investigations only evidence that how the law can be abused to violate the rights of individuals.”
Investigations of the four individuals for contempt of court continue. The ICJ has been informed that as of 15 March, M Ravi had put the police on notice that the contents of his mobile phone and laptop are subject to legal professional privilege and should remain confidential until a formal ruling is made by a court of law on the matter.
Terry Xu and M Ravi have been targeted and harassed constantly by authorities for information they have released in their professional capacities as an independent journalist and human rights lawyer respectively – notably through abuse of legal mechanisms. Terry Xu is currently fighting pending cases in court relating to alleged defamation of political officials and Singapore’s problematic Protection from Online Falsehoods and Manipulation Act (POFMA). M Ravi has similarly faced action by the Attorney-General’s Chambers for his advocacy against the death penalty.
“In the lead-up to elections, it is even more crucial that the Singapore government ensure that freedom of expression, opinion and information are protected and that independent media is allowed to operate to ensure communication of a diversity of opinions and ideas and inform public opinion,” said Rawski.
“For these reasons we urge the authorities to cease harassment of the four individuals and call on them to drop investigations against them”.
Read the joint statement here.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, frederick.rawski(a)icj.org
Background
In its 2019 regional report, ‘Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia’, the ICJ found that in Singapore contempt of court proceedings have been used to curtail freedom of expression and information under the guise of “maintaining orderly proceedings” and “protecting public confidence in the judiciary”, particularly in cases of online criticism touching on politically sensitive matters.
In October 2017, the Administration of Justice (Protection) Act 2016 came into force, despite well founded concerns that its vague provisions could result in abusive interpretation and implementation, given existing trends of use of contempt of court under common law to limit freedom of expression.
The AJPA lowered the threshold for contempt in what is referred to as “scandalizing the Court”, expanding judicial powers to punish such contempt with increased and onerous penalties. Section 3(1) criminalizes the “scandalizing of court” through (i) “impugning the integrity, propriety or impartiality” of judges by “intentionally publishing any matter or doing any act that… poses a risk that public confidence in the administration of justice would be undermined” (section 3(1)(a)); and (ii) “intentional” publishing of any material which interferes with pending court proceedings, or sub judice contempt (section 3(1)(b)). Section 3(1)(a) reduced the threshold for “scandalizing” contempt to a mere “risk” of undermining public confidence in the judiciary, where the common law test established in the landmark case of Attorney-General v Shadrake Alan was to establish a “real risk” of such undermining of confidence. This exacerbated a standard that was already deeply problematic.
Section 12(1) of the AJPA increased the maximum penalty for “scandalizing” contempt to three years’ imprisonment or a fine of S$100,000 (approx. USD 72,051) or both, when under common law, a six-week imprisonment sentence and S$20,000 (approx. USD 14,410) fine had been deemed appropriate.
Mar 24, 2020 | News
As the Thai government moves to exercise its power under the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) (“Emergency Decree”) to combat the COVID-19 outbreak, the ICJ reiterates its recommendations made since 2005 regarding lawful and proportionate exercise of this power in a manner consistent with Thailand’s obligations under international law.
The ICJ urges the Thai Government to take these recommendations into consideration when imposing any measures to address the COVID-19 outbreak:
- A state of emergency used to justify any permissible derogation from obligations under international human rights law must meet the standard that an emergency “threatens the life of the nation”, as set out in the International Covenant on Civil and Political Rights. Parliament should play an active role in providing oversight.
- Any limitations on or derogation from the exercise of internationally guaranteed rights should be limited in duration, strictly necessary, and proportionate to the specific threat posed.
- Derogating measures may only limit the scope of other rights to the extent strictly necessary to meet a threat to the life of the nation, but they may not suspend the applicability of any right in its entirety.
- This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the right to life, the freedom from torture or ill-treatment, the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency.
- It should be clearly stated which officials have responsibility for implementing the provisions of the emergency law and what their powers and responsibilities are.
- All officials responsible for implementing the law should be explicitly stated to be under the authority of the ordinary law of Thailand, with no immunity for any criminal acts carried out in the exercise of their responsibilities.
- The decisions and actions of officials exercising powers under the emergency law should be subject to review by the courts.
Download the statement in Thai here.
Mar 20, 2020 | News
Today, the ICJ submitted recommendations on strengthening Thailand’s Anti-Strategic Litigation against Public Participation (SLAPP) law to the Ministry of Justice.
The Ministry of Justice is tasked to conduct a “study on the guidelines for development of laws, regulations or measures to prevent SLAPP,” in accordance with Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022) (NAP).
Articles 161/1 and 165/2, which are intended to implement the NAP, entered into force on 20 February 2019 and 21 March 2019. They were introduced to end SLAPP lawsuits or similar forms of harassment through the legal process against any individuals, including human rights defenders. NAP also refers to the power of a public prosecutor under Article 21 of the Public Prosecution Organ and Public Prosecutors Act as another measure to prevent SLAPP lawsuits.
The use of SLAPPs and similar procedures frequently undermine human rights, including freedoms of expression, association and assembly and the right to political participation. These are protected under Thailand’s Constitution and international human rights obligations.
In the letter, the ICJ expressed its concern that these laws were inadequate to prevent harassment through the legal process and SLAPP. The ICJ therefore called for the adoption of a comprehensive stand-alone law, or the amendment of the Civil Procedure Code and the Criminal Procedure Code, to protect human rights defenders and others from harassment through the legal process.
Background
In an effort to give effect to the UN Guiding Principles on Business and Human Rights (UNGPs), on 29 October 2019, Thailand’s Cabinet approved and adopted the First National Action Plan on Business and Human Rights, making Thailand the first country in Asia to adopt the stand-alone NAP.
The NAP sets out plans to be followed by public and private stakeholders to ensure that businesses – from small and medium-sized enterprises to multinational corporations – respect human rights, and that the government fulfils its duty to ensure remedy and reparation in cases of business-related human rights violations.
The Thai government has identified in the NAP its four key priority issues: (1) labour; (2) land, environment and natural resources; (3) human rights defenders; and (4) cross border investment and multi-national enterprises.
NAP has set out several action points aimed at protecting human rights defenders, including:
- to study the guidelines for development of laws, regulations or measures to prevent SLAPP;
- to push for the review, amendment and repeal of relevant laws, mechanisms and protocols to facilitate protection of human rights defenders, for example with respect to witness protection laws;
- to determine or review policies, protocols, procedures and mechanisms to protect human rights defenders, including women human rights defenders, and ensure their safe conditions of work, and to provide trainings for law enforcement agencies to ensure in practice these protection measures;
- to provide trainings for law enforcement officers to widen their knowledge and understanding in enforcing laws on the protection of human rights, for example with respect to the organization of assemblies, and free expression pertaining to human rights, and preventing dishonest lawsuits that attack human rights defenders;
- to provide trainings and enhance capacity of lawyers;
- to urge businesses to ensure that human rights defenders will not be sued merely calling for rights of individuals to be protected;
- to promote the use of reconciliation mechanisms at all levels of the justice system; and
- to increase access to justice of human rights defenders.
However, NAP’s effectiveness is yet to be assessed because it does not have the status of a law, and is merely a resolution by the executive branch of the Thai government. The NAP was adopted in the form of a Cabinet Resolution, which is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999).
Download the letter to the Ministry of Justice in English and Thai.
Further reading
Thailand: ICJ and HRLA express concern about inadequate protections for human rights defenders in draft National Action Plan on Business and Human Rights
Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022)
Mar 12, 2020 | News
On 11 March 2020, the ICJ co-hosted a panel discussion and an exhibition entitled “Committed to Memory: The Disappeared and Those They Left Behind.”
The event was held to mark the 16th anniversary of the enforced disappearance of a prominent lawyer and human rights defender Somchai Neelapaijit and other individuals who were subject to apparent enforced disappearance and whose fates remain unknown.
The event was held at Bangkok Art and Cultural Centre (BACC). More than 100 participants attended the event.
Opening remarks were delivered by Jenni Lundmark, Programme Officer, Delegation of the European Union to Thailand, and Associate Professor Dr. Gothom Arya, Adviser of the Institute of Human Rights and Peace Studies at Mahidol University.
Jenni Lundmark highlighted the European Union’s commitment to address torture and enforced disappearance and urged the Thai Parliament to pass pending anti-torture and enforced disappearance legislation without undue delay. Associate Professor Dr. Gothom called on the public to preserve the memory of the Thai persons who were victims enforced disappeared as well as many others whose disappearance were not recorded. He also encouraged the establishment of a network of victims of enforced disappearances to strengthen their advocates’ ability.
The event also featured photos and personal belongings of victims or potential victims of enforced disappearance, including: Somchai Neelapaijit, Thanong Po-Arn, Porlajee “Billy” Rakchongcharoen, Kamol Laosophaphan, Jahwa Jalo, Surachai Danwattananusorn, Siam Theerawut and Den Khamlae. For some of these cases, there has been a failure of authorities to conduct a prompt, effective, impartial and independent investigation into their cases. During the event, family members of the victims described stories from photos and personal belongings of the “disappeared” that were exhibited.
The panel discussion focused on progress of the investigations into enforced disappearances and evaluated the progress in developing legislation in Thailand to address this critical issue. The speakers included Angkhana Neelapaijit, wife of Somchai Neelapaijit; Thipwimon Sirinupong, lawyer who is representing Porlajee “Billy” Rakchongcharoen’s family; and Sanhawan Srisod, ICJ’s legal adviser.
During the discussion, speakers expressed concern at the recurrent delays in the amendment and enactment of the law against torture and enforced disappearance which will be critical for ensuring accountability and justice for victims of enforced disappearance. They also regretted that the latest Draft Act, after several rounds of revisions and public hearings, still had not addressed many of the principal shortcomings which the ICJ and other stakeholders and experts have indicated need necessarily be amended in order to bring the law into line with Thailand’s international human rights obligations.
The key concerns include the incomplete definitions of the crimes of enforced disappearance, the absence of provisions concerning the continuous nature of the crime of enforced disappearance and statute of limitations for torture and enforced disappearance crimes, and the inadequacy of provisions concerning safeguards against enforced disappearances.
Background
Somchai was stopped at a Bangkok roadside on 12 March 2004 and pulled from his car by a group of men. He has not been seen since.
At the time, Somchai was defending clients from Thailand’s restive southern provinces who were accused of attacking a military base as part of the ongoing insurgency in the region. Somchai had alleged police tortured the Muslim suspects.
Since 19 July 2005, DSI has spent more than 14 years and eight months investigating the enforced disappearance of Somchai Neelapaijit. However, there is little information in the public domain regarding its progress.
From 1980 to May 2019, the UN Working Group on Enforced or Involuntary Disappearances has recorded and transmitted 90 cases of alleged enforced disappearance to Thailand. Currently, 79 cases remain outstanding.
Further reading
Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand
Thailand: continuing delay in the enactment of the draft law on torture and enforced disappearance undermines access to justice and accountability
Mar 9, 2020 | News
The ICJ today expressed regret at the death of Judge Khanakorn Pianchana, who committed suicide on 7 March 2020. Judge Khanakorn was widely known after an attempted suicide in October 2019 following the delivery of a verdict which he claimed was interfered by a senior judge.
Judge Khanakorn previously served as Vice Presiding Judge of the Yala Provincial Court in Thailand’s restive southern region. He passed away on 7 March 2020 at his home in Chiang Mai province.
Background
Before the suicide, Judge Khanakorn posted a two-page letter on his Facebook page, in which he claimed that he had been subject to disciplinary proceeding and had criminal charge brought against him after he had publicized his concerns about interference by a superior judge into certain rulings. These involved five individuals detained and interrogated under special security laws in southern Thailand.
In October 2019, Judge Khanakorn claimed in a public letter that he had been ordered by a senior judge to rewrite a ruling in which he exonerated the five individuals charged with murder, for lack of evidence. Following his delivery of the verdict, he shot himself in the chest in a courtroom at Yala Provincial Court.
After his first suicide attempt, according to the Office of the Judiciary’s Press Release dated 18 November 2019, the Judicial Commission initiated an investigation against him for violations of provisions on discipline of judicial officials. He was subsequently transferred to the Court of Appeal Region 5 in Chiang Mai, at which time he was further investigated for committing criminal offences under the Firearms, Ammunition, Explosives, Fireworks and Imitation Firearms Act.
On 7 March 2020, according to the interview gave by Secretary-General of Office of the Judiciary, an initial investigation of the Judicial Commission found that there had been no improper interference, and the disciplinary actions and the criminal charges that are brought against Judge Khanakorn were based on his actions for carrying a gun into court and using the gun to attempt suicide.
Contact
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Download
To download the statement in Thai, click here.
Mar 4, 2020 | News
Today the ICJ called on the Malaysian authorities to cease investigations of human rights defenders engaging in peaceful protest.
The ICJ further said that the investigations pose a threat to the exercise of the right to expression and peaceful assembly, which is protected under international law and the Malaysian Federal Constitution.
“These investigations have the effect of harassing and intimidating human rights defenders and pro-democracy activists and look worryingly like a new crackdown on dissent,” said Frederick Rawski, ICJ Asia Pacific Director.
Malaysian law enforcement authorities have opened investigations against Dato’ Ambiga Sreenevasan, an ICJ Commissioner, and nineteen (19) other individuals including human rights defenders Fadiah Nadwa Fikri, Dobby Chew, Amir Abd. Hadi and Nalini Elumalai. They are being investigated for violations of the deeply problematic Sedition Act 1948 and the Peaceful Assembly Act 2012, in connection with wholly peaceful gatherings held over the past few days that were called attention to the recent, sudden political changes in Malaysia.
The ICJ raised concerns that the laws pursuant to which the investigations are being conducted are inconsistent with international and constitutional human rights law and standards. The Peaceful Assembly Act 2012 imposes onerous requirements to organize a peaceful assembly. Meanwhile, the Sedition Act 1948 contains wide, overbroad definitions of what amounts to a ‘seditious tendency’, placing critical voices at risk.
“International law protects the right to hold peaceful assemblies, with limited exceptions not applicable here,” said Emerlynne Gil, ICJ Senior International Legal Adviser. “The ICJ has repeatedly called on Malaysia to abolish these laws, which impose unjustifiably burdensome restrictions and disproportionate penalties on the exercise of freedom of expression and assembly.”
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association and other international legal authorities has also said that while some regulation can be appropriate concerning places of protest, “no authorization should be required to assemble peacefully.”
Previous governments have promised to abolish the Sedition Act, including the Pakatan Harapan coalition which pledged to scrap both the Sedition Act and reform the Peaceful Assembly Act as part of their election manifesto in 2018. To date, no such reforms has been undertaken.
The ICJ reiterated its call on the government to abolish the Sedition Act and abolish or reform the Peaceful Assembly Act 2012. The ICJ also called on the Malaysian government to end the use of these laws to harass and investigate persons solely for participation in peaceful protest.
Contact
Emerlynne Gil, Senior International Legal Adviser, International Commission of Jurists, t: +66 2 619 8477 local 203; e: emerlynne.gil(a)icj.org
Background
Malaysian human rights defenders and civil society groups have been organizing peaceful assemblies to express concern over the current political developments. On 2 March 2020, Malaysian police opened investigations into several individuals for alleged violation of the Sedition Act.
Section 4(1) of the Act reads “[a]ny person who… does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have seditious tendency… shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgits or to imprisonment for a term not exceeding three years or to both.”
The Peaceful Assembly Act 2012 sets down onerous requirements that must be met in order to carry out a peaceful assembly, including: restrictions on the right to organize or participate in an assembly (Section 4) which includes non-citizens; requirements for a ten day notice of an assembly to the Officer in Charge of the Police District, failure to do so will be punished by a fine not exceeding ten thousand ringgit (Section 9(5)); and broad restrictions and conditions that may be imposed by the Officer in Charge of the Police District at their discretion (Section 15).
