Dec 19, 2013 | Advocacy, News
The ICJ is profoundly concerned at the judgment of 11 December 2013 of the Supreme Court of India, which effectively recriminalizes consensual same-sex sexual conduct between adults in private.
The decision by India’s highest court in Suresh Kumar Koushal and another v NAZ Foundation and others overturned the 2009 decision of the Delhi High Court.
That earlier judgment had held section 377 of the Indian Penal Code to be unconstitutional to the extent that it violated the rights to equality before the law, non-discrimination, life and personal liberty guaranteed by the Indian Constitution.
Section 377 criminalized certain consensual sexual acts in private between adults that are particularly associated with same-sex conduct.
The 2009 High Court’s ruling had the effect of decriminalizing such conduct between adults in private in India.
Its decision was based on an in-depth analysis of India’s obligations under international human rights law and standards, as well as international comparative law.
The High Court had examined the scope of the rights to equality, non-discrimination and personal liberty under the Indian Constitution and determined Section 377 to be unconstitutional.
Section 377, which was enacted in 1860, is a historical relic from colonial times bequeathed to India under the British empire; it made it an offence to voluntarily have “carnal intercourse against the order of nature” with any man, woman or animal.
Those convicted are liable to imprisonment for up to 10 years or for life and a fine.
The Supreme Court decision of 11 December reversed the High Court’s courageous and much celebrated decision.
Purporting to uphold the separation of powers, the judgment of the Supreme Court overturned the High Court by ruling that it acted in excess of its judicial review jurisdiction by failing to exercise restraint and to accord the necessary deference to the Indian legislature in its review of the constitutionality of section 377.
The Court effectively holds that the provision is not inconsistent with human rights and India’s obligations under international human right law, and that it is up to the Indian Parliament to amend or repealed it.
The ICJ is deeply troubled by the reasoning of the Supreme Court judgment.
It would appear to constitute an abdication of the essential role of the judiciary in safeguarding human rights.
In this case, the Court failed to uphold and protect the rights to equality and non-discrimination; equality before the law and equal protection of the law; dignity; privacy; freedom of expression and association; family life; and the highest attainable standard of health.
The judgment is inconsistent with India’s obligations under international human rights law.
The judgment also disconcertingly dismisses without apparent reason the wealth of evidence before the court documenting how the criminalization of same-sex sexual conduct leads directly to human rights violations.
Dec 19, 2013 | News
The ICJ deplores the death sentences handed down by the People’s Court of Hanoi on December 17 to two former shipping executives and urges the government of Viet Nam to desist from carrying out the planned executions.
Viet Nam National Shipping Lines (Vinalines) former chairman Duong Chi Dung and former general director Mai Van Phuc were found guilty of embezzling nearly USD $1 million from the state-owned company and sentenced to death.
“The announced death sentences fly in the face of encouraging human rights developments in Viet Nam, such as the State’s signing the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment in November,” said Sam Zarifi, ICJ’s regional director for Asia and the Pacific. “This is a major setback at a time when it appeared Viet Nam was making progress towards ending capital punishment.”
The ICJ considers the death penalty to constitute a violation of the right to life and the right to be free from cruel, inhuman or degrading punishment.
Following the Human Rights Council’s Universal Periodic Review in 2009, Viet Nam agreed to revise its legislation on the death penalty in line with the country’s international obligations.
Since then it has reduced the number of crimes punishable by death, and changed its method of administering the sentence from firing squad to injection by lethal substance.
It is estimated that more than 600 people remain on death row in the country. Most were convicted on drug-related offences.
“At present, approximately two thirds of the world’s countries have already either abolished capital punishment or have moratoriums on executions,” said Zarifi. “It is regrettable that Viet Nam has chosen to exclude itself from this global trend.”
The ICJ calls on the Government of Viet Nam to immediately put in place a moratorium on its practice, with a view to abolishing the death penalty, as demanded by the United Nations General Assembly in repeated resolutions on the question.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Dec 14, 2013 | News
The ICJ today urged the Lao PDR government to reverse its inaction in determining the fate of community activist Sombath Somphone, who was allegedly subjected to enforced disappearance a year ago.
In a legal memorandum on the one-year anniversary of Sombath’s enforced disappearance, the ICJ called on the Lao authorities to fulfill their country’s obligations under international law and carry out a thorough and impartial investigation into his whereabouts.
It also said the government must cooperate with regional and international human rights mechanisms, particularly the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the UN Working Group on Enforced and Involuntary Disappearances.
“It is deplorable that one year after Sombath Somphone was abducted after being stopped by traffic police, the public prosecutor has yet to institute formal
or criminal proceedings into his disappearance’’, said Sam Zarifi, ICJ Asia-Pacific regional director.
“The government of the Lao People’s Democratic Republic must immediately take effective measure to ensure animpartial and thorough investigation and bring justice to those responsible for crimes against Sombath Somphone,” he added.
Sixty-two-year old Sombath Somphone, Lao PDR’s most prominent community development advocate and a Ramon Magsaysay Award winner, was last seen on December 15, 2013, on a road in the capital Vientiane.
Closed circuit Television (CCTV) footage showed him being stopped at a police checkpoint, exiting his vehicle, getting into another vehicle with unidentified men and being driven away. He has not been seen since.
The Lao PDR government has denied any involvement in Sombath Somphone’s abduction. But reports released by police reveal a wholly inadequate investigation that lacks any credible explanation as to his fate or whereabouts.
In January this year, the ICJ called on the AICHR to play a proactive role in the case and to use the opportunity to address issues of enforced and involuntary disappearances in the region. To date, the AICHR has yet to take any meaningful action.
If the AICHR is to have any meaning, it must fulfill its mandate under Article 4, paragraph 1.11 of its Terms of Reference and develop a common position and strategy for tackling the widespread impunity of all acts of enforced disappearances in ASEAN, the legal memorandum said.
“An effective investigation, conducted in accordance with international standards, is essential in order that family members of Sombath Somphone and the public as a whole may discover the truth about his fate and whereabouts, and bring justice and reparation,’’ said Zarifi.
Background
Sombath Somphone is the founder and former director of the Participatory Development Training Center (PADETC), a non-governmental organization that supports holistic education and youth development as well as promoting eco-friendly technologies and micro-enterprises.
In October 2012, Sombath assisted the Lao government and non-governmental organizations convene an Asia-Europe People’s Forum (AEPF). The event was widely attended, drawing 948 participants from Lao PDR as well as other Asian countries.
It was the first time groups publicly criticized human rights abuses in Lao PDR, a Communist-run Southeast Asian country bordering Thailand, Cambodia, Vietnam, Myanmar and China.
The legal memorandum also covers the right of a family member to the right to information in such cases of enforced disappearances pursuant to both international standards as well as domestic laws in Lao PDR.
Recommendations
The key recommendations in the legal memorandum include:
(a) The public prosecutor, to launch a credible, prompt, thorough, impartial and effective investigation into the fate and whereabouts of Sombath Somphone. In the event that the public prosecutor fails to do so, an independent and credible authority should be established to undertake prompt, thorough and impartial investigation, consistent with international standards, into the alleged enforced disappearance as well as allegations of arbitrary detention, torture or ill-treatment;
(b) In furtherance of this investigation, the investigating authority should immediately seek and accept assistance from foreign experts on analysis of forensic evidence; and
(c) The investigating authority should provide relevant material and conclusions from any investigation to Sombath Somphone’s wife, to the extent compatible with the prosecution of the case.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Lao-Legal Memorandum-annex on the case of Sombath Somphone-advocay-2013 (download in pdf)
Dec 11, 2013 | News
The ICJ has now published a translation of its Practitioner’s Guide, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors in both traditional and simplified Chinese.
This is the first comprehensive analysis of the existing standards and compilation of universal and regional instruments published in Chinese.
The Guide outlines the roles to be played by a strong legal profession, an independent judiciary and an impartial and objective prosecuting authority.
References to international decisions, reports, texts of treaties and other international standards allow the Guide to be used as a reference book by legal practitioners and policy makers.
To access and download it please click here.
Dec 10, 2013 | News
The ICJ urgently calls on Bangladesh President Abdul Hamid to intervene to stop the execution of Abdul Quader Mollah.
The Supreme Court handed down its judgment against Abdul Quader Mollah on 5 December 2013.
The 790-page judgment was sent to the International Crimes Tribunal on 8 December 2013 and a death warrant was issued against Abdul Quader Mollah (photo) on the same day.
It was immediately sent to the Dhaka Central Jail and he may be executed at any time unless President Abdul Hamid or the Supreme Court intervenes.
Last week, the United Nations High Commissioner for Human Rights Navi Pillay issued a statement, expressing her deep concern over the rising levels of political violence in Bangladesh, calling on both sides to ‘’halt their destructive brinkmanship.’’
‘‘In an increasingly volatile situation, executing Abdul Quader Mollah risks pushing the Government towards a state of emergency, placing democracy and rule of law in peril,’’ said Ben Schonveld, ICJ South Asia Director. ‘‘The timing of the Supreme Court’s decision and the Tribunal’s subsequent death warrant raise serious questions about the political motivations behind the ICT process as well as the independence and impartiality of the judiciary.’’
The ICJ is concerned that the International Crimes Tribunal has not adhered to international standards.
As a State party to the International Covenant on Civil and Political Rights, Bangladesh is obligated to guarantee the right to a fair trial to all suspects, which includes special protections for those facing the death penalty.
The ICJ considers the death penalty to constitute a violation of the right to life and the right to be free from cruel, inhuman or degrading punishment.
It calls on the government of Bangladesh to impose a moratorium on the carrying out death sentences with a view to abolition, in compliance with repeated United Nations General Assembly resolutions on the question.
“The use of the capital punishment is particularly egregious in the Abdul Quader Mollah case, given that Parliament retroactively changed the law to enable the Supreme Court to impose a sentence of death on appeal,’’ added Schonveld. ‘‘Retroactively changing laws to influence the outcome in a case not only goes against the prohibition on retroactivity, it undermines the independence of the judiciary and the judicial function.’’
The ICJ urges President Abdul Hamid to intervene to stop the execution of Abdul Quader Mollah.
CONTACT:
Ben Schonveld, ICJ South Asia Director (Kathmandu), t:+97714432651 ; email: ben.schonveld(a)icj.org
Sheila Varadan, ICJ International Legal Advisor, South Asia Programme (Bangkok), t: +66857200723; email: sheila.varadan(a)icj.org
BACKGROUND:
Political violence has continued to escalate in Bangladesh
Abdul Quader Mollah was indicted on six counts of crimes against humanity before the International Crimes Tribunal (ICT). On 5 February 2013, the ICT rendered its verdict, finding him guilty on five counts and acquitting him on the sixth count. The ICT sentenced him to life imprisonment on two counts for his involvement in the Alubdi mass murder and the murder and rape of a family. He was sentenced to 15 years imprisonment on the remaining three counts.
At the time of the verdict, section 21(2) of the International Crimes (Tribunal) Act 1973 did not permit the Prosecution to appeal a sentence to obtain a heavier sentence.
The ICT verdict in the Mollah case sparked widespread protests, drawing tens of thousands of protesters to Shabagh Square, demanding that Mollah be sentenced to death.
Responding to public outcry, on 14 February 2013, the Parliament of Bangladesh drafted an amendment to change Section 21(2) of the International (Crimes) Tribunal Act 1973 to allow Prosecution to appeal a sentence in a conviction to seek a heavier sentence. The amendment was passed on 17 February and deemed to apply retroactively from 14 July 2009.
Acting on the basis of the Amendment to Section 21(2), the prosecution appealed the life sentences given to Mollah, seeking the death penalty. The prosecution also appealed the acquittal handed down. The defence in turn appealed the convictions on the five counts.
On 17 September 2013, the Appellate Division of the Supreme Court issued an oral decision with no reasons overturning the acquittal and entering a conviction; overturning one of the life sentences and imposing a sentence of death; dismissing the appeal made by the defence.
On 5 December 2013, the Appellate Division of the Supreme Court issued its 790-page judgment giving its reasons for overturning the life sentence and handing down the death penalty. The 790-page judgment was forwarded to the ICT-2 on 8 December 2013. The ICT-2 then issued a warrant of death against Abdul Quader Mollah and sent it to the Central Dhaka jail to be executed.
Dec 9, 2013 | E-bulletin on counter-terrorism & human rights, News
Read the 78th issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels. The E-Bulletin on Counter-Terrorism and Human...
