Malaysia: stop and investigate attacks on Bersih leaders immediately

Malaysia: stop and investigate attacks on Bersih leaders immediately

The Malaysian government must act to stop and redress the ongoing harassment, and death threats against the organizers of the Bersih 5.0 protest rally, scheduled for 19 November 2016, said the ICJ today.

The ICJ is calling on the authorities to conduct a thorough, impartial investigation into unlawful acts of intimidation against the organizers with a view to identifying and bringing to account those responsible.

The Bersih (or Gabungan Pilihanraya Bersih dan Adil) is a coalition formed in 2006 by Malaysian non-governmental organizations to call for free, clean and fair elections.

“The Malaysian government has the obligation to respect the right to freedom of expression and freedom of assembly,” said Sam Zarifi, ICJ’s Asia Director. “These rights are not only guaranteed under the Malaysian Constitution, but also under international human rights law.”

The ICJ recently received reports that Bersih leaders Maria Chin Abdullah, Mandeep Singh, and former Chairperson Ambiga Sreenevasan received death threats from unknown individuals.

Family members of Maria Chin Abdullah also received similar threats.

On 29 October 2016, police arrested Maria Chin Abdullah for distributing flyers promoting the forthcoming public assembly.

She was investigated on suspicion of having violated Section 11 of the Printing Presses and Publications Act 1984, which requires every publication printed or published within Malaysia to bear the name and address of the printer and publisher. Maria Chin Abdullah was subsequently released.

On 1 October 2016, men wearing the customary red shirts of ‘anti-Bersih’ groups and riding motorbikes tailed the convoy in Perak, kicked the cars and punched the vehicles’ side mirrors, while on 8 October 2016, unknown persons smashed the windows and slashed the tires of cars participating in a Bersih convoy in Sabah state.

Last week, police authorities launched investigations under Section 124C of the Penal Code against Bersih and other Malaysian NGOs that are alleged to have received foreign funding. Section 124C penalizes persons who are found to “attempt to commit activity detrimental to parliamentary democracy.”

“Section 124C is impermissibly vague and ambiguous, and allows authorities to engage in arbitrary prosecution, conviction, and punishment of people who are exercising their right to freedom of speech and assembly,” Zarifi said. “These claims against Bersih seem to be the latest effort by the Malaysian government, which is facing allegations of massive corruption, to repress political opposition.”

Contact

Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66 840923575 ; e: emerlynne.gil(a)icj.org

Background

Over the years, Bersih has been organizing peaceful assemblies attended by thousands of Malaysians in Kuala Lumpur and other parts of the country.

Last year, monitors from the ICJ observed Bersih 4.0 and reported that it had been a peaceful assembly, in exercise of the right to freedom of assembly and that the organizers took careful measures to keep it orderly and free from violence. The ICJ will again be sending observers to this year’s Bersih rally in Kuala Lumpur.

Under Article 10(1)(b) of the Malaysian Constitution, “all citizens have the right to assemble peaceably and without arms.” Furthermore, the right to peaceful assembly is also guaranteed under several international human rights instruments, including the Universal Declaration of Human Rights.

In his 2012 report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association emphasized that States “have a positive obligation to actively protect peaceful assemblies”. This State obligation includes “protection of participants of peaceful assemblies from individuals or groups of individuals, including agents provocateurs and counter-demonstrators who aim at disrupting or dispersing such assemblies.”

With regard to the use of Section 124C of the Penal Code to commence investigations against Bersih and other non-governmental organizations, the ICJ has emphasized that the ambiguity and vagueness of this provision makes it inconsistent with the principle of legality, a basic tenet of law. The principle of legality in the criminal law context requires that any offense must be established in law and defined precisely and unambiguously so as to enable individuals to know what acts will make them criminally liable.

Thailand: ICJ workshop on use of telecommunication evidence in criminal cases

Thailand: ICJ workshop on use of telecommunication evidence in criminal cases

On 15-16 October 2016, the ICJ held a Workshop for justice sector actors in Thailand’s deep South on “the Use of Telecommunication Evidence in Criminal Cases” for police, special investigators, prosecutors and lawyers.

The attendees included 30 public prosecutors, police and Department of Special Investigation (DSI) officials, 15 defense lawyers, and observers from the Thailand Institute of Justice (TIJ) and the Asia Foundation.

This is the sixth ICJ workshop related to strengthening the administration of justice in the deep South since 2011.

The objective of the workshop, held in Hat Yai, was to discuss how telecommunication information may be used as part of an effective criminal investigation, and the ways in which prosecutors, lawyers and judges should consider approaching the use of this kind of information as evidence at trial.

The Workshop observed a moment of silence for the passage of the late King Rama IX.

Kingsley Abbott, ICJ Senior International Legal Adviser, opened by saying that the use of telecommunication evidence is one tool that can be used in an effective investigation of serious criminal and security related cases followed by fair trials.

However, it is important to ensure that the acquisition and use of this information as evidence fully respects the right to privacy guaranteed by the International Covenant on Civil and Political rights (ICCPR) to which Thailand is a State Party.

The ICJ firmly believes that respect for human rights and the rule of law must be the bedrock in countering terrorism and violent crime.

Speakers at the Workshop included Judge Wasupatchra Jongpermwattanapol, Chief Judge of the Office of the Chief Justice Region 9; Mr Sophon Tipbamrung, Executive Director of the Special Office of Criminal Litigation 3, Region 9; Lt. Col. Thatphichai Chanwaranon, Deputy Superintendent of the Investigation Bureau, Southern Border Provinces Police Operation Center and national expert on the use of telecommunication evidence; and Mr Nigel Povoas, a British Barrister with experience leading high profile international serious and organized crime cases and an expert in the use of telecommunication evidence.

Background

Previous ICJ workshops in the deep South have included:

  • The Protection of Victims in Criminal Cases (2015)
  • The Principle of Inadmissibility of Evidence Obtained by Unlawful Means and Hearsay Evidence: International Standards Compared to Thai Law (2014)
  • Rule of Law and Strengthening the Administration of Justice in the Context of Habeas Corpus in the Southern Border Provinces (2012)
  • Rule of Law and Strengthening the Administration of Justice in the Context of Bail in the Southern Border Provinces (2012)
  • Rule of Law and Strengthening the Administration of Justice in the Context of the Application of Emergency Laws in the Southern Border Provinces (2011)
Thailand: ICJ alarmed at increasing use of arbitrary powers under Article 44

Thailand: ICJ alarmed at increasing use of arbitrary powers under Article 44

Thailand should immediately end the use of Article 44 of the Interim Constitution which gives the Head of the military junta sweeping, unchecked powers contrary to the rule of law and human rights, said the ICJ today.

Despite widespread international condemnation of Article 44, its use has increased every year since the Interim Constitution was promulgated on 22 July 2014 following the coup d’état of 22 May 2014.

The Head of the National Council for Peace and Order (NCPO), Prayut Chan-o-cha, has issued at least 107 Orders under Article 44 (available in the public domain): at least one in 2014; 44 in 2015; and 62 in 2016 to date – with 37 Orders being issued since June 2016 alone.

“The Head of the NCPO’s increasing willingness to use extraordinary powers to make ad hoc, arbitrary changes to existing laws and regulations without judicial oversight should be alarming to everyone, including the business sector,” said Wilder Tayler, Secretary General of the ICJ.

“Article 44 places law making power in the hands of one man, while Articles 47 and 48 of the Interim Constitution block judicial review or access to remedies and reparation. This is entirely inconsistent with the three fundamental pillars of the rule of law, equality, accountability and predictability, and should be revoked immediately,” he added.

The Article 44 orders range from those restricting the civil rights of all people in Thailand to those aimed at seemingly minor and ordinary bureaucratic processes.

To date, Article 44 has been used to introduce a raft of revisions into existing Thai law without observing proper process or practice, including providing for the acquisition of land for the establishment of Special Economic Zones bypassing the usual environmental and social checks and balances provided for in domestic legislation; granting military officers sweeping powers of investigation, arrest and detention; and prohibiting the gathering of five or more persons for political purposes.

“It is long past time for Thailand to revoke Article 44 and all others laws, orders and announcements issued since the military coup that are inconsistent with the rule of law and human rights,” Tayler said.

“The justifications the military presented for such measures were never valid or credible, and certainly not so after more than two years of direct military rule.”

All Orders issued under Article 44 – and all other NCPO Orders and Announcements – will continue to remain in force under the draft Constitution that was accepted at a public referendum on 7 August 2016, and may only be repealed or amended by an Act.

Last week, Deputy Prime Minister Wissanu Krea-ngam announced that the NCPO was considering converting many of the hundreds of orders issued by the NCPO into legislation, including those issued under Article 44.

thailand-art-44-ncpo-news-press-releases-2016-eng (full text with background, in PDF)

thailand-head-of-ncpo-orders-advocacy-2016-eng (full list of all publicly available Head of NCPO Orders, in PDF)

thailand-art-44-ncpo-news-press-releases-2016-tha (full text in Thai, PDF)

 

Thailand: immediately drop sedition case and all proceedings against human rights lawyer Sirikan Charoensiri

Thailand: immediately drop sedition case and all proceedings against human rights lawyer Sirikan Charoensiri

The government should drop all proceedings against human rights lawyer, Sirikan Charoensiri, including the specious accusation of sedition, which apparently relate to her organization’s representation of 14 student activists peacefully protesting in June 2015, the ICJ and other groups said today.

On 27 September 2016, Sirikan Charoensiri (photo), a lawyer and documentation specialist at Thai Lawyers for Human Rights (TLHR), received a summons from the Thai Police following accusations that she violated Article 12 of the Head of National Council for Peace and Order (NCPO) Order 3/2015, prohibiting the gathering of five or more people for political purposes, and Article 116 of the Thai Criminal Code, a ‘sedition’-type offence.

According to the summons, the accusations are made by an army officer, Lieutenant Colonel Pongsarit Pawangkanan.

Sirikan Charoensiri received the summons, dated 20 September 2016, when she returned to Thailand after attending the 33rd Session of the Human Rights Council in Geneva where she conducted advocacy on the human rights situation in Thailand on behalf of FORUM-ASIA and the ICJ.

Sirikan Charoensiri did not receive an earlier summons, dated 14 September 2016, the police claimed had been sent to her apartment, as she was not home at the time.

Sirikan Charoensiri has already been charged with two offences under the Criminal Code of Thailand: “giving false information regarding a criminal offence” and “refusing to comply with the order of an official” in relation to TLHR’s provision of legal aid to 14 student activists – the new summons appears to relate to the same case.

The army’s accusation that Sirikan Charoensiri has violated the frequently abused sedition law with its extremely serious penalties and risk of a military trial is indefensible and must be withdrawn immediately,” said Wilder Tayler, Secretary General of the ICJ.

“The fact that the authorities have made these accusations more than one year after TLHR’s clients were charged with sedition in the same case suggest the accusations have been made in retaliation for her high-profile national and international human rights advocacy since the military coup,” he added.

The other groups who signed the statement are: Human Rights Watch, Amnesty International, Asian Forum for Human Rights and Development (FORUM-ASIA), the Observatory for the Protection of Human Rights Defenders (an FIDH–OMCT partnership), Protection International (PI), Lawyers’ Rights Watch Canada (LRWC), Fortify Rights, and the International Service for Human Rights (ISHR).

thailand-sirikan-charoensiri-conviction-news-press-releases-2016-eng (full text in PDF)

thailand-sirikan-charoensiri-conviction-news-press-releases-2016-tha (Thai version, in PDF)

 

 

Malaysia: Tian Chua conviction another abuse under repressive Sedition Act

Malaysia: Tian Chua conviction another abuse under repressive Sedition Act

The conviction of Member of Parliament Tian Chua under the 1948 Sedition Act increases already severe restrictions on freedom of expression in Malaysia, said the ICJ today.

The Malaysian government should drop all charges filed under this law and remove or amend this colonial era law to ensure compliance with international human rights law and standards, the ICJ added.

The Sessions Court in Kuala Lumpur convicted Tian Chua (photo) today under Section 4(1)(b) of the 1948 Sedition Act for allegedly uttering “seditious words.”

The allegedly “seditious words” spoken by Tian Chua were calling on Malaysians to “stand up and fight against racism and corruption.”

Tian Chua spoke these words at a public forum on 13 May 2013 at the Kuala Lumpur and Selangor Assembly Hall.

“Prime Minister Najib Razak promised in 2012 to abolish the 1948 Sedition Act, but until now, this promise has not been fulfilled,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.

“It now appears that the Malaysian government is holding on to this law to silence political opponents and human rights defenders who express critical views about what is happening in the country today,” she added.

Tian Chua received a penalty of three months’ imprisonment plus a fine of RM1,800 (approximately US$435).

Although he will still be entitled to keep his seat as Batu’s representative to the Malaysian Parliament, his conviction sends a clear and dangerous message that politically critical comments or dissenting opinions from anyone, including a Member of Parliament, will not be tolerated by the government, the ICJ says.

Several other people were also charged for sedition for their speeches at the same public forum where Tian Chua spoke: activists Adam Adli, Hishamuddin Md. Rais, Haris Fathillah Mohamed Ibrahim, and Safwan Anang.

All of them have already been convicted in the past few months under the same provision of the Sedition Act.

“By its very terms, the 1948 Sedition Act contemplates restrictions on the exercise of freedom of expression that are grossly overbroad and inconsistent with the basic rule of law and human rights principles,” said Gil.

The lawyers of Tian Chua, Latheefa Koya and N. Surendran, have confirmed that they will be seeking a stay order on the basis that they will be appealing the sentence and conviction.

The ICJ has repeatedly expressed its concerns regarding the restrictive effect the 1948 Sedition Act has on freedom of expression in the country.

The law criminalizes speech and publications considered to have “seditious tendencies”, a term that is very ambiguously and vaguely defined.

Last year, the ICJ expressed alarm over amendments made by the Malaysian Parliament strengthening the law and broadening its scope, making the “promotion” of hatred between religions an offence.

Contact:
Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia, t: +66840923575 ; e: emerlynne.gil(a)icj.org

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