Mar 30, 2016 | News
The Malaysian government must immediately halt the politically motivated sedition investigation launched by the police against members of the Malaysian Bar who had called for the Attorney General’s resignation, the ICJ said today.
“The Malaysian authorities are using the archaic, colonial Sedition Act to harass and silence lawyers who are demanding that the country’s legal authorities observe international standards of propriety and independence,” said Emerlynne Gil, ICJ’s Senior Legal Adviser for Southeast Asia.
“This latest misuse of the Sedition Act constitutes a brazen political attack on the independence of the country’s lawyers,” she added.
On 29 March 2016, lawyers Charles Hector, Francis Pereira, and Shanmugam Ramasamy, received letters from police authorities summoning them to the Bukit Aman Police Headquarters on 31 March 2016 for the purpose of taking down their statements regarding a complaint filed against them under the Sedition Act (1948).
The three had proposed a motion during the Malaysian Bar’s 70th Annual General Assembly, calling for the resignation of Attorney-General Tan Sri Mohamed Apandi Ali. The motion was passed by a majority vote.
Karen Cheah Yee Lynn, Secretary of the Malaysian Bar, was also notified that her statement would likewise be taken but she was not summoned to the Bukit Aman Police Headquarters.
The Malaysian Bar demanded the resignation of Attorney-General Tan Sri Mohamed Apandi Ali after he summarily ended the investigation of alleged corruption by Prime Minister Najib Razak.
The Prime Minister appointed Attorney-General Apandi on 27 July 2015, in the midst of the corruption investigation.
Attorney General Apandi subsequently cleared Prime Minister Najib Razak of any criminal wrongdoing and instructed the Malaysian Anti-Corruption Commission to close the investigations.
“In 2012, Prime Minister Razak had promised to repeal the Sedition Act, but since then his government has increasingly relied on the law’s impermissibly vague and broad language as a useful tool of repression,” Gil said.
International standards highlight that protecting the independence of lawyers and their professional associations is essential for upholding the rule of law and the administration of justice, the ICJ says.
“This police investigation is clearly designed to challenge that independence,” Gil said.
“The Malaysian Bar has been one of the few institutions consistently defending the rule of law and human rights in Malaysia, and it is crucial to maintain the ability of its members to engage critically in upholding the standards of professional integrity and independence,” she added.
The ICJ urges the Malaysian government to repeal the archaic Sedition Act 1948 and fulfill the commitment it made in 2012 to abolish it.
Unless repealed or considerably revised so that it will be consistent with international law, the Sedition Act 1948 will continue to unduly limit and repress the freedom of expression, not only of lawyers and human rights defenders, but of all Malaysians exercising their fundamental rights, the ICJ says.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66840923575, e: emerlynne.gil@icj.org
Background
Under the UN Basic Principles on the Role of Lawyers, governments have the obligation to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference (Principle 16).
Like other citizens, lawyers are entitled to freedom of expression, belief, association, and assembly. Lawyers have the right to take part in the public discussion of matters concerning the law, the administration of justice, and the promotion and protection of human rights (Principle 23).
The UN Basic Principles on the Role of Lawyers also state that lawyers are entitled to form and join self-governing professional associations to represent their interests and protect their professional integrity (Principle 24).
Governments should ensure that these professional associations are able to function without improper interference (Principle 25).
In its 2016 resolution on human rights in the administration of justice, the UN Human Rights Council unanimously affirmed that “the independence and impartiality of the judiciary, the integrity of the judicial system and an independent legal profession are essential prerequisites for the protection of human rights, the rule of law, good governance and democracy, and for ensuring that there is no discrimination in the administration of justice, and should therefore be respected in all circumstances” (Resolution 30/7, 1 October 2015).
Malaysia’s Sedition Act 1948, originally enacted by the British colonial government and amended times over the years, criminalizes speech and publications considered to have “seditious tendencies”.
The term “seditious tendencies” is ambiguously defined to mean any kind of speech or publication that causes “hatred or contempt, or excite disaffection” against any ruler or the government or promotes “ill will and hostility between the different races or classes”.
The law also considers “seditious” any speech or publication that questions the special privileges of the Malay people, as provided in the Constitution.
Furthermore, sedition is a strict liability offence in Malaysia, which means that the intention of a person allegedly making seditious statements is irrelevant.
Mar 21, 2016 | News
Thailand’s National Council for Peace and Order (NCPO) must end its interference in the elections of the president and committee members of the Lawyers Council of Thailand (LCT), the ICJ and Thai Lawyers for Human Rights (TLHR), said today.
The LCT in turn must ensure the elections are conducted in a fair and impartial manner.
“International standards explicitly prohibit external interference in the elections of the executive body of a lawyers’ professional association by its members, and the association’s leadership must ensure that such elections are conducted in a fair and impartial manner” said Matt Pollard, the Head of the ICJ’s Centre for the Independence of Judges and Lawyers. “Ensuring the independence and democratic representation of the legal profession is essential to safeguarding human rights and the rule of law, especially in the current circumstances of military rule in Thailand.”
On 29 February 2016, Mr Wichien Choobtaisong, a representative of the electoral group of the current LCT President, Mr. Dej-udom Krairit, wrote to the NCPO “seeking permission” to hold meetings and campaigns for the LCT’s regularly-scheduled elections, referring to the NCPO’s ban on political gatherings of more than five persons.
On 16 March 2016, the NCPO replied, stating that the elections “contradict” the ban on political gatherings, which “must apply equally to all groups and sectors in the interest of maintaining national security during the transition period,” and taking the position that that the elections must accordingly be postponed with the current committee continuing its term until elections are held. The NCPO’s reply also notes it received a letter from the LCT on 14 December 2015, which the ICJ and TLHR have not seen.
In its letter, the NCPO referred to NCPO Announcement 7/2014, which bans the political gathering of more than five persons (Announcement 7/2014 was later replaced by Order 3/2015). The ICJ reiterates that these arbitrary and unjustified orders and announcements should be repealed, and calls on the NCPO, in any event, to immediately withdraw its letter of 16 March, replacing it with written confirmation that the LCT elections will be able to proceed as scheduled, without external interference.
The LCT must then put in place procedures to ensure the elections proceed as scheduled and in a fair and impartial manner.
“Since the military took power, we have seen a marked increase in the number of individuals requiring legal aid for sensitive and political cases,” said Yaowalak Anuphan, the Head of TLHR and member of the LCT. “In this environment, it is even more essential that the Lawyers Council of Thailand is able to exercise its functions without external interference and that everyone has effective and equal access to the legal services of lawyers.”
Contacts
In Bangkok: Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
In Geneva: Matt Pollard, ICJ Senior Legal Adviser, t: +41 22 979 38 12 ; e: matt.pollard(a)icj.org
Background
The Lawyers Council of Thailand was established in 1957. Its mandate and responsibilities are set out in the Lawyers Council Act 1985.
The objectives of the Council include maintaining the ethics of lawyers, promoting legal education and providing legal assistance.
It also registers lawyers and issues them with licenses to practice law in Thailand. Members of the Council elect the president and committee members every three years.
Article 24 of the Basic Principles on the Role of Lawyers, adopted by the UN in 1990, sets out that: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.
The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Among other things, the UN Basic Principles also affirm that ensuring all persons have effective access to legal services provided by an independent legal profession is essential for adequate protection of human rights and fundamental freedoms.
They note the vital role of professional associations of lawyers including in protecting their members from persecution and improper restrictions and infringements. The Basic Principles specify that governments should respect and reflect the provisions of the Basic Principles in their national legislation and practice.
The UN Human Rights Committee has applied the Basic Principles as a necessary component of the right to a fair trial guaranteed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party.
The UN Committee will review Thailand’s compliance with the ICCPR at an upcoming meeting.
Thailand-ICJ and TLHR statment on LCT-News-press releasess-2016-THA (full text in Thai, PDF)
Mar 17, 2016 | News
The Indonesian House of Representatives should reject proposed amendments to the country’s Anti Terrorism Law that would actually contravene international law, said the ICJ and other human rights groups today.
“The horrific recent attacks in Jakarta highlight the Indonesian government’s obligation to protect people from acts of terrorism, but experience from around the world has shown that countering terrorism must occur along with protection of human rights, not in violation of Indonesia’s legal obligations,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
The ICJ, the Commission for the Disappeared and Victims of Violence (KontraS), and the Indonesian Human Rights Monitor (IMPARSIAL) noted that the proposed amendments would authorize unnecessarily prolonged detention of suspects, putting them at risk of torture, ill-treatment, enforced disappearance, and arbitrary detention.
The amendments also include a provision on administrative detention.
“This is generally forbidden in international law, save in the most exceptional circumstances far narrower than as contemplated under the amendments,” Zarifi added.
A letter sent by the organizations to the House of Representatives lays out recommendations on how this provision may be revised so that it would not violate the rights of detainees.
“There is no reference anywhere in the amendments how detainees may challenge the lawfulness of their detention. It has to be clear in the law that these remedies are available to them,” said Haris Azhar, National Executive Coordinator of KontraS.
The three organizations also underline the amendment proposing stripping Indonesian combatants abroad of their nationality would be contrary to international law, if this would render them stateless.
“Nationality is what legally binds an individual to a particular State. It is an essential prerequisite to the enjoyment and protection of the full range of human rights,” said Poengky Indarti, board member of IMPARSIAL.
They also said that the proposed provision on incitement to terrorism would unduly limit political speech, especially those that are contrary to the views of persons wielding power and authority, such as opinions on self-determination or changes to the legal and constitutional structures.
The proposed amendments impose the death penalty on particular offences.
The ICJ, IMPARSIAL, and KontraS oppose capital punishment in all cases without exception, as it is a violation of the right to life and the right not to be subjected to cruel, inhuman, and degrading treatment.
In the letter, they remind the government of Indonesia to immediately impose a moratorium on the use of the death penalty, with a view to moving towards its total abolition.
The ICJ, IMPARSIAL, and KontraS urged the members of Indonesia’s House of Representatives to keep in mind that whatever measures Indonesia uses to counter terrorism must comply with international law and protect human rights.
Contact:
Emerlynne Gil, ICJ’s Senior International Legal Adviser (Bangkok), t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Fatia Maulidiyanti, S.IP, International Desk of KontraS (Jakarta), t: +62 21 391 9097/98 ; e: fatia(a)kontras.org
Poengky Indarti, Member of the Board of IMPARSIAL (Jakarta), t: +62 812 8362 8659 ; e: poengky1970(a)gmail.com
Indonesia-Letter to Gvt-Advocacy-Open letters-2016-ENG (full text of letter, in PDF)
Mar 15, 2016 | News
Today’s acquittal of the only person facing charges for the killing of lands rights activist Chai Bunthonglek, highlights the urgent need for the Thai Government to protect human rights defenders in the country, said the ICJ today.
In addition to Chai Bunthonglek, a member of the Southern Peasant Federation of Thailand (SPFT), three other SPFT activists have been killed since 2010: Montha Chukaew and Pranee Boonrat in 2012 and Somporn Pattanaphum in 2010.
No one has been prosecuted for these three killings, reportedly due to insufficient evidence obtained by the police.
“The result in this case underscores the pressing need for the Department of Special Investigations to investigate the pattern of killings of land rights activists in southern Thailand,” said Kingsley Abbott, ICJ International Legal Adviser for Southeast Asia.
Chai Bunthonglek was killed on 11 February 2015. All four SPFT activists killed since 2010 had been advocating for the land rights of poor farmers who are in a dispute with the Government and a palm oil company operated by Jiew Kang Jue Pattana Co. Ltd.
“Today’s acquittal means that no-one has been held accountable for the killing of Chai Bunthonglek, representing another failure to bring to justice those responsible for crimes against human rights defenders and, in particular, those trying to uphold social and economic rights in Thailand,” said Abbott.
“The ICJ calls on the Thai Government to ensure justice and effective remedies for human rights defenders.”
On 15 March, the Viangsra Provincial Court acquitted Santi Wanthong, who was accused of driving the motorcycle from which Chai Bunthonglek, 61-years-old, was shot six times and killed in front of his family in Klong Sai Pattana in Surat Thani Province.
Two other suspects initially arrested for the crime were not indicted.
The DSI has the power to assume jurisdiction over “special” criminal cases including complex cases that require special inquiry, crimes committed by organized criminal groups, and cases where the principal suspect is “an influential person.”
The trial court held today that prosecution witnesses could not properly identify the defendant, and that a cap and gun collected from his house could not be positively identified as belonging to the man who had been involved in attacking Chai Bunthonglek.
Chai Bunthonglek’s family intends to appeal the verdict, the ICJ has been told. They have 30 days to file an appeal.
Witnesses in the case, as well as members of SPFT, have expressed their fear of further attacks. Suraphon Songru, member of the Steering Group of the SPFT, told the ICJ: “the perpetrators – which the community believe may be linked to the local authorities in the area – are still out there, which means another killing could take place.”
The ICJ called on Thai authorities to ensure the safety of all witnesses and ensure the safety of all human rights defenders, including members of SPFT, in Surat Thani.
Background
Santi Wanthong was formally indicted on the following charges: murder of another person (section 288 of the Thai Criminal Code); jointly premeditated murder (section 289 of the Thai Criminal Code); possession of a firearm without a permit (section 371 of the Thai Criminal Code); and possession of ammunition for a firearm without a permit (sections 7, 8 and 72 of the Gun, Ammunition, Explosive Substance, Firework and Artificial Gun Weapon Act).
SPFT was formed in 2008 and campaigns for the right to agricultural land in the Khlong Sai Pattana and Permsub area, in Surat Thani Province and other areas in the region.
Thailand is a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and had its review before the Committee of the ICESCR in June 2015, where the killings of land rights defenders was particularly noted. The Committee urged Thailand to “adopt all measures necessary to protect human rights activists, including those working to defend economic, social and cultural rights, from any and all acts of intimidation, harassment and killings and to ensure that perpetrators of such acts are brought to justice.” The obligation to protect the right to life and other rights of human rights defenders working on economic, social and cultural rights, and to take effective criminal proceedings in response to such crimes, is also an obligation of Thailand under the International Covenant on Civil and Political Rights, and is recognized in numerous UN standards on protection of human rights defenders.
Contact
Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
Thailand-Chai case-News-2016-THA (full text in Thai, PDF)
Mar 10, 2016 | News
The ICJ welcomes the decision of the Magistrate Court to dismiss the charges against Lena Hendry for her involvement in 2013 screening of No Fire Zone: The Killing Fields of Sri Lanka, an award-winning human rights documentary on the civil war in Sri Lanka.
Magistrate Mohamad Rehab Mohd Aris determined that the prosecution failed to prove a prima facie case against Lena Hendry (photo).
As a consequence, she did not have to enter her defense.
“We welcome the decision of the Magistrate’s Court to clear Lena Hendry from all charges,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“We must emphasize though that subjecting Lena Hendry in the first place to criminal prosecution simply for screening this documentary violated her human rights and contravenes Malaysia’s obligations to uphold freedom of expression,” she added.
“We should remember that the provision in the Film Censorship Act 2002 used against Lena Hendry remains on the books and still operative. It can still be used to stifle the voices of other human rights defenders in Malaysia,” Gil further said.
Lena Hendry was charged under section 6(1)(b) of the Film Censorship Act 2002 for allegedly showing the film without prior authorization by the Board of Censors.
The said provision prohibits any person to circulate, exhibit, distribute, display, manufacture, produce, sell, or hire any film or film publicity material that has not been approved by the Board of Censors.
If Lena Hendry had been found guilty, she could have faced a fine of up to RM30,000 (approximately US$6,900) and/or a sentence of up to three years imprisonment.
The ICJ reiterates its call to the Government of Malaysia to safeguard freedom of expression and uphold the right of individuals to elaborate and disseminate information, including on questions of public import and the documentation of human rights abuses.
Contact:
Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, t: +66 840923575 ; e: emerlynne.gil@icj.org
Mar 9, 2016 | News
The recent decision of the Thai Supreme Court in the case of the enforced disappearance of Somchai Neelapaijit demonstrates Thailand must urgently ratify the Convention against Enforced Disappearance and enact domestic laws consistent with the Treaty, said the ICJ today.
On 29 December 2015, the Supreme Court of Thailand upheld the acquittals of five police officers charged with gang-robbery and coercion. These charges related to Somchai’s abduction and the taking of his property.
The authorities have blamed the failure to charge anyone to date with Somchai’s actual enforced disappearance or presumed death, in part, on the absence of physical remains.
The Supreme Court further held that Somchai Neelapaijit’s wife, Angkhana Neelapaijit, and his children could not participate in the proceedings as plaintiffs as, under Thai law, it had to be shown that Somchai Neelapaijit was either injured or killed such that he could not represent himself.
The Court reasoned that this was not the case as “it is not currently known whether or not Mr. Somchai is alive” and the accused had only been charged with gang-robbery and coercion.
“The Supreme Court decision does not in any way end Somchai’s case,” said Sam Zarifi, ICJ’s Asia Director.
“The Thai government is obliged to seek and provide truth and justice for Somchai and his family,” he added.
The Department of Special Investigations (DSI), often described as the FBI of Thailand, has been conducting an ongoing investigation into Somchai Neelapaijit’s fate or whereabouts since 2005.
“The glacial pace of the DSI’s investigation and unfortunate decision of the Supreme Court after all these years is heart-breaking,” said Zarifi.
Before the United Nations Human Rights Council in May 2008, the Royal Thai Government pledged “to do its utmost and leave no stone unturned in order to bring to justice the case of Mr Somchai.”
“But to do its ‘utmost’ to resolve this case, Thailand must take urgent and concrete steps to ratify the Convention against Enforced Disappearance and pass domestic laws that retrospectively recognize enforced disappearance as a distinct offence and the full rights of victims, including family members,” Zarifi added.
Promisingly, the Ministry of Justice is in the process of drafting a Prevention and Suppression of Torture and Enforced Disappearance Bill, which, in a draft seen by the ICJ, defines and criminalizes enforced disappearance and torture in Thailand.
Contacts
Sam Zarifi, ICJ Regional Director, Asia-Pacific Programme, t: +66807819002 ; e: sam.zarifi(a)icj.org
Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
Additional information
Angkhana Neelapaijit, now Commissioner of the Thai Human Rights Commission, told the ICJ: “The decision of the Supreme Court acquitting the five accused and denying my children and me the right to participate in the proceedings shows that victims of enforced disappearance have nowhere to turn to obtain justice in Thailand. It is clear that nothing will change until Thailand urgently ratifies the Convention against Enforced Disappearance and amends its laws to ensure the rights of victims are upheld.”
Thailand signed, but has not yet ratified, the Convention Against Enforced Disappearance in January 2012. Pending the ratification, Thailand must desist from any acts that would defeat the objective and purpose of the Convention, which among other things places an obligation on State Parties to make enforced disappearance a criminal offence, to thoroughly and impartially investigate cases, bring those responsible to justice and treat family members of a ‘disappeared’ person as victims in their own right.
Forthcoming event
On 11 March 2016, the ICJ, together with Amnesty International (Thailand), Human Rights Watch, and the Justice for Peace Foundation will hold “a discussion on enforced disappearance in Thailand focusing on the recent decision of the Supreme Court in Somchai Neelapaijit’s case and the draft Prevention and Suppression of Torture and Enforced Disappearance Bill” to mark the 12-year anniversary since Somchai Neelapaijit “disappeared” on 12 March 2004.
Date: 11 March 2016
Time: 10.00am -12.00pm
Location: The Sukosol Hotel, room Kamolthip 3, Sriayutthaya Road, Bangkok
The speakers will be:
- Angkhana Neelapaijit
- Kingsley Abbott, International Legal Advisor, the International Commission of Jurists
- Sunai Phasuk, Senior Researcher, Human Rights Watch
- Laurent Meillan, Acting Representative, Office of the High Commissioner for Human Rights Office for South-East Asia
- A representative from the Department of Rights and Liberty Protection, Ministry of Justice
Related readings
To mark the 10-year anniversary of Somchai Neelapaijit’s “disappearance”, the ICJ released a report Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand, in which it documented the tortuous legal history of the case.
On 11 December 2015, the ICJ published an English version of its Practitioners Guide “Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction”, originally published in Spanish in March 2015.
Thailand-Somchai disap anniversary 2016-News-Press releases-2016-THA (full text in Thai, PDF)
