Apr 15, 2016 | News
The Nepal government should immediately stop all intimidation and harassment of the National Human Rights Commission (NHRC) and its staff and respect its independence in line with international standards, the ICJ and other rights groups said today.
The attempts to intimidate the NHRC are a direct contradiction of the United Nation’s Principles relating to the Status of National Institutions (the Paris Principles) as well as Nepal’s constitution, the ICJ Amnesty International and Human Rights Watch said.
According to the commissioners and confirmed by independent media accounts, on April 3, 2016, Prime Minister K.P. Sharma Oli summoned the National Human Rights Commission chair, Anup Raj Sharma, and other commissioners to question them about the NHRC’s statement delivered by Commissioner Mohna Ansari during the Universal Periodic Review (UPR) of the human rights situation in Nepal before the UN Human Rights Council in Geneva in March.
In its statement, the commission highlighted various ongoing human rights concerns, including discriminatory citizenship provisions in the new constitution, the continued failure to properly investigate alleged unlawful killings and excessive use of force during protests in the Terai region in 2015, violations of the economic, social, and cultural rights of earthquake victims (photo), and the need for credible transitional justice for conflict victims.
“As the principal independent constitutional body mandated to promote and protect human rights in the country, the NHRC plays a vital role in ensuring governmental accountability, and was well within its authority under both the Nepali Constitution and international standards when it delivered its submission to the UN Human Rights Council during the UPR,” said Nikhil Narayan, ICJ’s South Asia Senior Legal Adviser.
“The PM’s blatant attempt to intimidate the NHRC members for that submission is a flagrant violation of the government’s basic obligation to ensure the NHRC’s ability to carry out its work independently and without undue interference,” he added.
While it is entirely appropriate for the prime minister, like other stakeholders, to consult with the NHRC, such exchanges should be conducted with due respect for the legitimate exercise of the institution’s constitutional mandate, independently and free of undue interference or intimidation, the rights organizations said.
NHRC members present at the meeting uniformly expressed the sentiment that Oli, through his aggressive questioning and reprimanding of the commissioners over the contents of certain sections of its submission, was trying to intimidate the commission and in particular Commissioner Ansari, at whom the questioning appeared exclusively directed.
“The line and manner of questioning, including insinuations of bias and a lack of neutrality, particularly those aimed at Commissioner Ansari, the public face of the NHRC in Geneva, revealed an intent not of clarification, but intimidation that seeks to limit the role and effectiveness of the NHRC,” said Champa Patel, director of the South Asia Regional Office at Amnesty International.
Based on media accounts, discussions between the commissioners and the prime minister reflected an apparent attempt by the prime minister to discredit the commission’s statement by portraying it as the personal views of Commissioner Ansari alone or those of a nongovernmental organization.
Sharma promptly rebutted this characterization in a public statement on April 10, clarifying that “the statement delivered by NHRC Spokesperson Ansari at the UPR session was that of the commission and not her own,” and that “[i]mpunity has affected the overall promotion and protection of human rights.”
Amnesty International, Human Rights Watch, and the ICJ have consistently and repeatedly highlighted rights concerns similar to those the commission expressed in its UPR submission. The prime minister and government of Nepal should implement without delay the commission’s recommendations concerning discriminatory constitutional provisions, impunity for perpetrators of Terai violence on all sides, ensuring justice in the process of transition, and protecting the rights of earthquake victims.
The prime minister and the government of Nepal must publicly state that they will respect and guarantee the independence and integrity of the National Human Rights Commission, as the principal constitutionally mandated human rights body in the country, in accordance with international standards.
“The prime minister overstepped his authority, and his attempts to intimidate and intervene in the work of the NHRC contravene the Paris Principles, which clearly provide for the establishment of autonomous and independent institutions,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The prime minister seems unwilling to recognize that the NHRC acts independently and is not an arm of the executive, subject to governmental dictates.”
Contact:
Nikhil Narayan, ICJ’s South Asia Senior Legal Adviser, t: +97-7-981-318-7821 ; e: nikhil.narayan(a)icj.org
Sam Zarifi, ICJ’s Asia Director, t: +66-807-819-002 ; e: sam.zarifi(a)icj.org
Additional information:
The Paris Principles set out internationally agreed upon standards designed to guide the work of national human rights institutions in a credible, independent and, effective manner. Crucially, the Paris Principles define the role, composition, status, and functions of these bodies, which include engaging with the UN and regional institutions and states’ obligation to ensure their real independence through a broad mandate, adequate funding, and an inclusive and transparent appointment process.
Furthermore, the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders) reaffirms the right of human rights defenders and institutions to advocate for human rights at the national and international level, including by engaging with the UN and other intergovernmental organizations.
Mar 31, 2016 | News
A Delhi Court acquitted human rights defender Irom Sharmila of an “attempt to commit suicide” charge. The government of Manipur must in turn immediately drop the charges against her, said the ICJ today.
Irom Sharmila, was charged under section 309 the Indian Penal Code.
She has been on a continuous hunger strike for over 15 years, demanding repeal of the Armed Forces Special Powers Act (AFSPA).
“This order is a welcome recognition that Irom Sharmila’s hunger strike is a form of peaceful dissent and protest protected by the right to freedom of expression,” said Sam Zarifi, ICJ’s Asia Director.
This week, Iron Sharmila was acquitted of the charges against her in Delhi. The case against her in Manipur is, however, still on-going.
The decision of the Delhi court is not binding on the courts in Manipur, but the charges are analogous, and similar reasoning should prevail, the ICJ says.
“The government of Manipur should drop the other charges under section 309 against her, and release her immediately and unconditionally,” said Zarifi.
On at least two occasions previously, courts in Manipur have directed that Irom Sharmila be released, saying that charges under section 309 were not applicable.
“The use of section 309 against Sharmila highlights the outdated and absurd nature of this law,” Zarifi said.
“The government should expedite the repeal of 309 and, instead of criminalizing Irom Sharmila’s protest, focus on the reason behind it and repeal the AFSPA,” he added.
The AFSPA gives armed forces a range of “special powers” in “disturbed areas”, which include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, “fire upon or otherwise use force, even to the causing of death”.
Furthermore, under the AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court.
These provisions are inconsistent with a range of human rights, including the right to life and right to remedy.
They have also facilitated torture, rape and enforced disappearances in areas where operational, the ICJ notes.
“This law is inconsistent with India’s human rights obligations, and has led to human rights violations, wide-spread impunity, and immense grief and suffering in the areas where it operates”, Zarifi said.
“It is high time that it was taken off the books”.
Background
Irom Sharmila began a hunger strike in November 2000, calling for the repeal of the AFSPA, following the unlawful killing of 10 civilians by security forces purportedly acting under it in Malom.
She was arrested by the Manipur government in 2000 under section 309 of the Indian Penal Code, which prohibits an “attempt to commit suicide”.
Irom Sharmila has been in custody almost continuously since her initial arrest, and has continued her hunger strike.
She is fed through a nasal tube at the Jawaharlal Nehru hospital in Imphal where she is usually held.
The Delhi government also charged her on similar grounds with respect to an incident from 2006, when she held a protest in their jurisdiction.
In 2014, a Manipur court quashed charges under section 309 against Irom Sharmila, saying “The agitation of Irom Chanu Sharmila is a political demand through lawful means of repealing a valid statute. … she may continue with the fast till her demand is met politically by the Government”.
However, since she continued her hunger strike, she was immediately re-arrested on the same grounds.
In its 210th report, the Indian Law Commission has recommended that section 309 be repealed. In 2011, the Supreme Court said: “the time has come when [section 309] should be deleted by Parliament as it has become anachronistic.”
In 2014, the government announced that it was in the process of repealing 309.
The AFSPA applies to “disturbed areas” in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
An almost identical law is also applicable in Jammu and Kashmir.
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”.
