Mar 21, 2016 | News
The Maldives must stop undermining the independence and integrity of the judiciary through arbitrary and politically motivated actions against judges, the ICJ said today.
“The ICJ visited the Maldives last month for the second time in a year, and we were dismayed to see that the Maldives government has continued to erode the rule of law and weaken the independence of the judiciary,” said Nikhil Narayan, ICJ’s Senior Legal Adviser for South Asia.
“The government must immediately stop targeting judges and other public officials with arbitrary criminal proceedings, threats, intimidation and harassment,” he added.
On 7 February, Magistrate Judge Ahmed Nihan was arrested, along with former Prosecutor General and former Criminal Court Judge Muhthaz Muhsin, in connection with an alleged ‘forged’ arrest warrant against President Yameen.
“The arrest of a judge for issuing a warrant, a function which is well within the ordinary powers and responsibilities of the judiciary, clearly violates basic principles of judicial independence,” Narayan further said. “The fact that the alleged warrant was against the President further suggests that Judge Nihan’s arrest was politically motivated.”
“Moreover, the severity of a charge of ‘terrorism’ for such an act, even if taken at face value, cannot reasonably be viewed as proportionate to the alleged offense,” he added.
On 16 March, more than a month after his arrest, Judge Nihan was charged under sections 4(a)(1)-(2) and 5(a)(2) of the Prevention of Terrorism Act, for attempting to unduly influence the state, attempting to create fear among the public, and attempting to forcefully disappear or hold a person hostage.
The Constitution of the Maldives does not provide immunity for the president from criminal accountability even while still in office.
The ICJ was also concerned to find during its visit that Maldivian authorities have continued to undermine the independence of the judiciary by using the threat of transfer or removal of judges as a tactic of political retribution, harassment and intimidation.
On 14 February, former Criminal Court Chief Judge Abdullah Mohamed was abruptly transferred from the Criminal Court to the Family Court following a sudden and late night meeting of the Judicial Service Commission (JSC), without being given an opportunity to appear on his own behalf during the meeting.
While the JSC has given no reasons for its decision, lawyers, human rights defenders and former government officials with whom the ICJ spoke suggested that the transfer had been taken in retaliation for Judge Abdullah’s failure to remand former Prosecutor General Muhsin following his arrest.
It was also suggested by those interviewed that a further motivation for the transfer was to ensure that Judge Abdullah could not indirectly influence the three-judge bench hearing the former Vice President’s criminal case in favor of the defendant. Judge Abdullah was reported to have close ties with both defendants.
In June 2015, Judge Azmiralda Zahir, one of only three female judges in the entire Maldivian judiciary and the only woman on the High Court, was arbitrarily and unexpectedly transferred by the Supreme Court from the Malé appellate bench to the southern regional bench, a transfer that amounts to a demotion, without formal notice or opportunity to challenge her transfer.
The Supreme Court has neither established clear criteria for its decision-making process in such matters nor informed Judge Zahir of the reasons for her transfer, of which she learned through media reports, despite repeated requests by her to both the Supreme Court as well as the JSC, the ICJ says.
“President Yameen’s government must quickly take genuine steps to restore the rule of law, strengthen the independence and integrity of the judiciary and restart the democratic transition process,” said Narayan.
Contact:
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Read also:
Maldives: political crisis erodes rule of law and human rights
Maldives: arrest of Judge Ahmed Nihan further erodes judicial independence
Feb 9, 2016 | News
The ICJ today condemned the arrest of Judge Ahmed Nihan and called it a further attack on the independence and integrity of the country’s judiciary.
“President Abdulla Yameen’s Government has dealt another blow to the independence of the judiciary and the rule of law,” said Sam Zarifi, ICJ’s Asia Director.
“The arrest of Judge Ahmed Nihan is another step down in the country’s downward spiral away from democracy and stability, and is squarely at odds with the Maldives’ international obligations,” he added.
Maldivian officials confirmed in a statement that Ahmed Nihan, a magistrate’s court judge, and Muhthaz Muhsin, former Prosecutor General, were arrested on Sunday night on charges of forging a warrant for the arrest of President Abdulla Yameen.
Muhthaz Muhsin was released soon after, but Judge Ahmed Nihan was placed in judicial custody for one week.
“Judge Ahmed Nihan’s arbitrary and seemingly politically motivated arrest is yet another example of executive highhandedness and the corrosion of separation of powers in the Maldives,” said Zarifi.
“Undue interference with the Human Rights Commission, the arbitrary dismissal of the Auditor General, and the unlawful removal of two Supreme Court justices are just a few examples,” he added.
According to the Maldivian media, the arrest warrant, allegedly issued by Judge Ahmed Nihan, related to an on-going investigation against President Abdulla Yameen for embezzlement of state funds.
President Yameen’s spokesperson said in an interview the warrant was “fraudulent” because it “did not originate from any official authority.”
The Maldivian police (photo) claim the arrest warrant was issued using “falsified information”.
The ICJ calls on the authorities to immediately release Judge Ahmed Nihan and allow him to continue his judicial duties.
The ICJ also reiterates its previous calls on the Maldivian Government to implement recommendations on human rights and the rule of law, including the independence of the judiciary, received as part of the UN Universal Periodic Review process.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Additional information:
In a fact-finding report released in August last year, the ICJ noted with concern the serious erosion of the independence, impartiality and integrity of the judiciary, which resulted in the deterioration in the rule of law in the Maldives and the stalling of the country’s transition toward a more representative government.
Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Maldives acceded to in 2006, safeguards the independence and impartiality of the judiciary.
International standards on judicial independence, including the UN Basic Principles on the Independence of the Judiciary, provide that judges shall be free from any “inappropriate or unwarranted interference with the judicial process”.
The fact that executive or legislative actors may disagree with a judge’s decision or interpretation of the law cannot be a valid ground for removal or punishment of the judge.
The UN Basic Principles on the Independence of the Judiciary further stipulate that judges shall be subject to suspension or removal only through proceedings that guarantee the right to a fair hearing (Principle 17); and then only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18); that all disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct (Principle 19), and decisions in disciplinary, suspension or removal proceedings should be subject to an independent review (Principle 20). The Basic Principles elaborate on legal obligations under article 14 of the International Covenant and Civil Rights (ICCPR).
The Commonwealth Latimer House Principles on the Three Branches of Government 2003 contain similar provisions.
Article 154 of the Maldivian Constitution states that a judge may be removed from office only if the Judicial Service Commission finds that the person is grossly incompetent or guilty of gross misconduct.
Feb 3, 2016 | News
Yesterday’s decision of the Indian Supreme Court to refer to a larger bench of the same Court the petition challenging Section 377 of the Indian Penal Code (IPC), offers the opportunity to undo the appalling 2013 judgment of a two-judge bench of the SC in the Suresh Koushal case, says the ICJ.
“This order of the Supreme Court is a crucial opportunity to undo the injustice of the Suresh Koushal decision,” said Sam Zarifi, ICJ’s Asia Director. “It is an important test of the Supreme Court’s commitment to equality and ending discrimination against people on the basis of sexual orientation or gender identity.”
After the December 2013 Suresh Koushal decision – when the Supreme Court upheld the constitutionality of section 377 and reversed the Delhi High Court’s courageous and much celebrated decision – the petitioners filed a review petition, which was dismissed.
The petitioners then filed “curative petitions” in 2014, stating that the Supreme Court’s judgment of December 2013 violated principles of natural justice for several reasons. A “curative petition” allows the Supreme Court to re-assess its previous decisions on limited grounds, even after appeals and reviews have concluded.
Yesterday the Supreme Court referred the curative petition, and the major constitutional questions it raised, to a five-judge bench of the same Court, thus acknowledging doubts about the correctness of its 2013 ruling. A five-judge bench will now be set up to hear this challenge.
“The referral highlights the Supreme Court’s recognition of the need for a judicial response to the ongoing discrimination against people on the basis of sexual orientation and gender identity,” Zarifi said.
“After 16 years within the court process, this issue clearly could not be resolved with the highly problematic Suresh Koushal decision, which ignored the reality of consensual same sex behavior in India and the fact that Section 377 criminalizes people for who they are and leads directly to serious human rights violations.”
By criminalizing consensual same-sex adult sexual conduct, Section 377 is inconsistent with India’s obligations under international human rights law, including in respect of the rights to sexual autonomy, equality, non-discrimination, privacy, dignity, free expression, and life.
Many of these rights are guaranteed in India’s Constitution.
India is also a party to several international instruments, which require that these rights be respected, protected and fulfilled.
The Yogyakarta Principles – which apply international human rights law to issues of sexual orientation and gender identity – clarify that the rights to equality, non-discrimination and privacy require states to “repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.”
The Supreme Court referred to these principles in the 2014 National Legal Services Authority v Union of India (NALSA) case where it also acknowledged that Section 377 was “used as an instrument of harassment and physical abuse against Hijras and transgender persons”.
“Yesterday’s decision offers hope that the Supreme Court intends to reaffirm the principle that people in India cannot be subjected to discrimination, harassment and violence, simply on the basis of their sexual orientation or gender identity,” Zarifi said.
Background
Section 377 makes it an offence to “voluntarily ha[ve] carnal intercourse against the order of nature with any man, woman or animal” and has been used to persecute people for their real or purported engagement in consensual same-sex sexual conduct. The penalty can extend to life imprisonment.
Several reports document how Section 377 has been a tool for discrimination, blackmail, extortion, and violence by state and non-state actors against the LGBTI community.
It has adversely affected HIV/AIDS prevention efforts, and has also reinforced harmful social stereotypes and taboos against sexual minorities.
The petitioners in the original challenge against section 377 have waged this legal battle for over a decade. The constitutional challenge against Section 377 was filed in 2001.
In 2009, in Naz Foundation v. Government of NCT of Delhi and Others, the Delhi High Court held that Section 377 denied “a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality”.
It went on to find that this criminalization of identity denied “a gay person a right to full personhood which is implicit” in the notion of life under Article 21 of the Indian Constitution, and also violated the constitutional right to equality and non-discrimination. The High Court held that Section 377 was unconstitutional insofar as it criminalized consensual same-sex sexual conduct.
However, its judgment was appealed to the Supreme Court.
On appeal, in 2013 the Supreme Court reversed the decision of the Delhi High Court, holding the section to be constitutional.
The Supreme Court also affirmed that legislature would “be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”.
Dec 3, 2015 | News
The Indian government should support a comprehensive law guaranteeing equal rights and non-discrimination to transgender persons, consistent with India’s international human rights obligations, the ICJ said today.
This law must be developed and passed after adequate consultation with the transgender community in India, the Geneva-based organization added.
“The transgender community in India has faced stigma, discrimination and violence for years,” said Sam Zarifi, ICJ’s Asia-Pacific Director. “It is time for the Indian Parliament to pass comprehensive anti-discrimination legislation as an essential first step towards guaranteeing the transgender community’s internationally recognized, and constitutionally protected, human rights.”
Earlier this year, the Rajya Sabha (Upper House of the Indian Parliament) passed the Rights of Transgender Persons Bill, 2014, a private member’s Bill, that is, a bill introduced by a Member of Parliament rather than the Government.
The Bill guaranteed a wide range of rights to transgender individuals, including the right to be free from discrimination, the right to life and personal liberty, the right to protection from abuse, violence and exploitation, as well as equality in educational opportunities, employment, social security, and health care.
The Lok Sabha (Lower house of the Indian Parliament) will discuss a revised version of this Bill in the current session. The Government’s Ministry of Social Justice and Empowerment is reportedly developing its own draft.
“Any transgender rights legislation must fully comply with India’s international human rights obligations,” Zarifi added. “An essential element of this is that the Indian government must ensure that the transgender community participates in, and is meaningfully consulted on, the new law’s provisions.”
India has ratified several international instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination against Women. They prohibit discrimination and guarantee full equality for everyone, including transgender people.
Successive pronouncements by international bodies, including the UN, have affirmed that these rights apply to transgender persons.
The Yogyakarta Principles – which reflect the specific application of international human rights law in the context of sexual orientation and gender identity – recognize transgender people’s human rights, including the right to equality before the law, equal protection of the law and the principle of non-discrimination, as well as the right to self-defined sexual orientation and gender identity, the right to expression, to privacy, to health, to housing, to education, and the right to participate in policies affecting one’s welfare.
India’s transgender rights Bill should respect, protect and fulfill this range of rights. It should also ensure that the definition of who constitutes a transgender person, as well as the process of determining this, is consistent with international standards, the ICJ said.
In 2014, in the case of National Legal Services Authority v Union of India (NALSA), the Indian Supreme Court recognized transgender persons’ right to self-identification and to the legal recognition of their gender identity. However, a year after the Supreme Court’s judgment, its directions are yet to be effectively implemented, making the passage of a comprehensive bill on transgender persons’ human rights all the more crucial. At the same time, the legislative process culminating in the adoption of the legislation needs to be adequately consultative.
“A comprehensive transgender rights bill is long overdue in India,” Zarifi said. “It is crucial that the Indian government take advantage of the current political momentum to reaffirm the rights of transgender persons, and pass a strong and progressive law.”
Contact:
Sanhita Ambast, ICJ International Legal Adviser (Delhi), t: +91 9810962193; e: Sanhita.ambast(a)icj.org
Background
A report by India’s Ministry of Social Justice and Empowerment – Report of the Expert Committee on the Issues relating to Transgender Persons –has acknowledged the range and impact of discrimination faced by the transgender community in India.
It makes note of the stigma, discrimination and violence they face from their families, communities, and state institutions, including the police. It also highlights the difficulties faced by them in accessing services like housing and education.
In the NALSA case, the Supreme Court found that discrimination faced by the transgender community in India violated the rights to equality, non-discrimination, free speech and expression, and life in the Indian constitution. The Court gave specific directions to address this discrimination.
It also noted that the absence of “suitable legislation protecting the rights of the members of the transgender community” has resulted in their facing discrimination in various areas. A clarification petition, filed by the government, regarding this case is currently pending at the Supreme Court.
Following the Supreme Court’s 2013 NALSA judgment, several states have put in place progressive policies to address the discrimination faced by transgender groups.
However, the implementation of this judgment is far from adequate, and a lot more needs to be done.
A 2011 Report of the United Nations High Commissioner for Human Rights has recommended that states “Enact comprehensive anti-discrimination legislation that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination”.
It also asked states to “Facilitate legal recognition of the preferred gender of transgender persons”.
In its 2015 report, the United Nations High Commissioner for Human Rights recommended that anti-discrimination legislation should “include[s] sexual orientation and gender identity among prohibited grounds, and also protect[s] intersex persons from discrimination” and that “LGBT and intersex persons and organizations [should be] consulted with regard to legislation and policies that have an impact on their rights”.
Dec 2, 2015 | News
The ICJ today denounced the execution of four individuals convicted for their involvement in terrorism in secret trials by military courts.
Four civilians, namely Maulvi Abdus Salam, Hazrat Ali, Mujeebur Rehman and Sabeel alias Yahya, were hanged in Kohat early morning today after being sentenced to death by military courts earlier this year.
In a press statement issued on 13 August, the media wing of the armed forces announced they were convicted for their involvement in “terrorist activities”, including harboring, funding and transporting “suicide bombers” who attacked the Army Public School in December last year.
According to the statement, they are all “active members” of the “Toheedwal Jihad Group”.
The ICJ considers that the executions are unlawful, in breach of Pakistani law and its international legal obligations.
“The failure of the government and military authorities to make public information about the time and place of their trials, the charges and evidence against them, as well as the judgments of military courts have confirmed fears of human rights groups and the legal community that military trials in Pakistan are secret, opaque and constitute a violation of the right to a fair trial,” said Sam Zarifi, ICJ’s Asia Director.
The ICJ emphasizes that under international standards, civilians may not be tried before military tribunal.
As highlighted by the ICJ in a briefing paper released in April, proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts: judges are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and detailed about the alleged offences are kept secret.
“The ICJ supports the pursuit of justice for all victims of terrorism in Pakistan, including the horrific attack on the Army Public School last year”, added Zarifi. “However, justice will not be done by subverting the foundational pillars of justice: the right to a fair trial and independence of the judiciary.”
The UN Human Rights Committee, the supervisory authority for the ICCPR, has emphasized that in trials leading to the imposition of the death penalty, “scrupulous respect of the guarantees of fair trial is particularly important” and “imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”
Pakistan has hanged more than 300 people since it lifted a six-year moratorium on the death penalty in December 2014. Initially lifted only for terrorism-related offences, the Government resumed executions in all cases in March 2015. Less than ten per cent of the total executions relate to terrorism-related offences.
“These executions only fulfill a desire for retribution and add to the disturbing trend of hanging people in the name of fighting terrorism in Pakistan and the region,” said Zarifi. “The death penalty has not been shown to have any deterrent effect on crime or terrorism anywhere in the world.”
The ICJ opposes capital punishment in all cases without exception. The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
In December 2014, the UN General Assembly adopted a resolution, for the fifth time since 2007, emphasizing that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view towards its abolition.
Some 117 UN Member States, a wide majority, voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty.
In line with the present international trend, the ICJ reiterates its call on Pakistan to impose an official moratorium on executions, with a view to abolishing the death penalty.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; email: reema.omer(a)icj.org
Additional Information
On 6 January 2015, less than a month after a terrorist attack on an army public school in Peshawar that killed nearly 150 people, most of them children, Parliament voted to amend the Constitution of Pakistan, 1973, and the Army Act, 1952, to allow military courts to try civilians for offences related to terrorism.
Since January 2015, 56 cases have been referred to military courts, out of which 31 have been decided. Military courts have found the accused persons guilty in all cases. 27 convicts have been given the death penalty and four have been sentenced to life imprisonment.
Around 20 cases are still pending before the various military courts.
Nov 24, 2015 | News
The government and all political parties, along with the country’s neighbors and international supporters, must act immediately to end the increasingly violent political crisis in the southern Terai region said the ICJ today.
The associated border blockade that has imposed severe shortages of necessary commodities throughout the country must also be ended, the ICJ added.
Over the weekend, three individuals were killed and at least another 28 individuals, including 15 police officers, were injured during clashes following an apparent impasse in talks among political parties trying to end the crisis over the newly adopted Constitution.
“Nepali authorities should promptly investigate and bring to justice the perpetrators – be they security forces or protesters – of any unlawful killings and other acts of violence committed during the ongoing protests in the Terai, and ensure that security forces refrain from the use of excessive force against civilians,” said Sam Zarifi, ICJ’s Asia-Pacific Director.
“At the same time, the Nepal government must address the severe shortage of commodities and the impact it has had on economic and social rights by prioritizing the most urgent needs while working to resolve the constitutional crisis,” he added.
The border blockade initiated nearly three months ago has had a deeply detrimental impact on the economic and social rights of the population countrywide, including the rights to food, water and sanitation, health and adequate housing, by causing severe shortages of essential commodities such as fuel, cooking gas and medical supplies throughout the country.
Madhesi groups have been demonstrating against Nepal’s new Constitution in the Terai since August 2015, protesting discriminatory aspects of the new Constitution that they argue would entrench marginalization, and have been staging a de facto blockade at the main border posts along the Nepal-India border since the Constitution was adopted on 20 September 2015.
India has been accused of imposing or collaborating in the blockade, an allegation which the Indian government has denied.
The ICJ has previously highlighted the lack of proper consultation in the drafting and adoption of the Constitution as well as the substantive human rights defects in its text, particularly the discriminatory provisions on the rights of women and some ethnic groups.
More than 45 persons, including 8 police personnel, have been killed during violent confrontations that have erupted between protesters and security forces since the demonstrations began, with allegations of excessive use of force by Nepali security forces as well as violent attacks by protesters against police personnel.
One Indian national was apparently killed by Nepali security forces at the Birgunj border last month.
“The Nepal government has a responsibility to protect the rights and security of its people and to re-establish the rule of law in the Terai,” said Zarifi. “However, Nepal must at all times respect the people’s right to peaceful protest and free assembly, and ensure that security forces exercise maximum restraint when responding to the demonstrations.”
The ICJ emphasizes that India and Nepal have an obligation to protect the human rights, including the economic and social rights, of persons impacted by their acts or the actions of those under their jurisdiction, and accordingly have an obligation to remove obstacles to the enjoyment of those rights.
“Nepal has an obligation to ensure that all available resources at their disposal have been mobilized to alleviate the human rights and humanitarian impact of the border blockade on the most vulnerable sections of the population,” Zarifi added. “The Nepal government must provide a clear plan to assess and address the impact of the blockade by prioritizing available supplies to the most urgently needed areas throughout the country, not just in Kathmandu.”
“The impact of the blockade is all the more acute because the country is still reeling from the 25th April earthquake and its ongoing aftershocks,” Zarifi said. “The international community, particularly neighboring India, should do all it can to ensure that urgent humanitarian assistance gets to the Nepali people.”
Contact
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Photo credit: HRW
