Mar 31, 2015 | News
Thailand must lift martial law and return the country to civilian rule, instead of invoking arbitrary powers under Article 44 of the country’s interim constitution, said the ICJ today.
Today, Prime Minister and head of the ruling National Council for Peace and Order (NCPO), General Prayut Chan-o-cha, announced that he had submitted a revocation of the Martial Law, imposed nationwide on 20 May 2014, to King Bhumibol Adulyadej.
Gen. Prayut stated that in place of Martial Law, he would invoke Article 44 of the Interim Constitution, which effectively gives him the authority to rule without any legal restrictions or accountability.
“Ending Martial Law is a necessary step, but replacing it with Article 44 does not address the serious violations of Thailand’s obligations under international human rights law. Article 44 of the Interim Constitution is drafted so broadly that it could give the head of the junta even greater powers than Martial law,” said Wilder Tayler, Secretary General of the ICJ. “Article 44 would allow the head of the NCPO to issue any orders he wishes under the pretext of strengthening public unity and national security, and also deems any such order to be legal and constitutional, removing any possibility of judicial oversight.”
Article 44 of the interim Constitution gives the NCPO power to give any order deemed necessary for “…the benefit of reform in any field and to strengthen public unity and harmony, or for the prevention, disruption or suppression of any act which undermines public peace and order or national security, the Monarchy, national economics or administration of State affairs …,” and provides that any such order “…is deemed to be legal, constitutional and conclusive…”
“Article 44 violates the fundamental pillars of the rule of law and human rights, including equality, accountability, and predictability. Article 44 could potentially allow for arbitrary rule by the head of the NCPO, so using it would not be a real improvement over the Martial Law, which at least has been in existence since 1914, and has a degree of clarity to its scope and application,” said Tayler.
“The NCPO should revoke Martial Law and also explicitly commit itself to observing Thailand’s international obligations, which means avoiding any use of Article 44,” he added.
International law strictly regulates attempts by governments to suspend or restrict protection for human rights on grounds of emergency.
Such “derogations” are permissible under Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party, only “in time of public emergency which threatens the life of the nation”.
“The situation in Thailand does not meet the extremely high threshold required for derogating from international human rights law,” said Tayler. “Thai authorities have repeatedly promised a rapid return to the rule of law and respect for human rights in the country, but replacing Martial Law with rule by Article 44 doesn’t suggest an improvement for the rule of law or respect for human rights.”
Thailand-Martial Law-Article 44-News-Press release-2015-THA (Thai version, full text in PDF)
Mar 31, 2015 | News
The present form of the recently tabled draft Prevention of Terrorism Act, also known as POTA, violates international standards and seeks to reintroduce detention without trial, said the ICJ.
The Malaysian government claims that the draft POTA, which was tabled yesterday in Parliament for its first reading, together with 7 other amendments, is aimed at curbing terrorist threats in the country.
“The draft law, as it is now, is susceptible to abuse,” said Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia. “It is very disturbing that the POTA has very similar elements that were in the problematic and now repealed 1960 Internal Security Act that was previously used to silence government opposition and curtail freedom of expression in the 1980s.”
For example, the ICJ notes with concern that the draft law allows a “board” that is not a court to order and extend detention for up to four years.
Only one of the members of the board is required to have any legal training at all.
Detention orders issued by the “board” cannot be challenged in any court, except on procedural issues.
The ICJ urges members of Parliament in Malaysia to amend the existing draft law so that it will not reintroduce draconian preventive detention measures, as in the repealed Internal Security Act.
The Parliament of Malaysia should either reject the draft law or amend its provisions to respect human rights.
CONTACT:
Emerlynne Gil, ICJ International Legal Adviser, e: emerlynne.gil(a)icj.org or m: +668 4092 3575
Mar 23, 2015 | News
The arrest and criminal investigation today of prominent human rights Malaysian lawyer Eric Paulsen, apparently in connection to messages he sent on Twitter, is another move towards Malaysia’s accelerating use of the archaic and draconian Sedition Act, said the ICJ.
Eric Paulsen (photo), co-founder of Lawyers for Liberty, was arrested in the afternoon of 22 March 2015 at the Dataran Merdeka underground in Kuala Lumpur.
Although the exact basis of the arrest is not yet clear, his lawyers believe it was because of his Tweets criticizing efforts to introduce religion-based criminal offences and punishment (hudud) by the Kelantan state government.
Eric Paulsen was detained overnight and has yet to be charged with any offence. During the remand hearing on his case at noon today, the court denied an extension of his detention, but the police kept him in detention until 6pm today for questioning.
According to media reports, the postings “were seen as an insult which could disturb public peace,” one of the bases for invoking the Sedition Act.
“Malaysian authorities have been increasingly resorting to the Sedition Act to silence any political criticism, and now they’ve taken the alarming step of expanding it to cover even statements about religion,” said Emerlynne Gil, International Legal Advisor for Southeast Asia at the ICJ. “The Malaysian government is trying to position itself as the authority on religious matters, while at the same time violating the right to free expression as well as Malaysia’s Constitution.”
On 22 March 2015, Malaysia’s Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar, commented through his own Twitter account that the police “views seriously” comments on religion made by those who are “not experts on the subject.” He further said, that the police “ha[ve] no choice but to take action” against those people who comment on religion.
The IGP’s comments were made in relation to the launching of an investigation against the Business Radio Station (BFM) and its presenter, Aisyah Tajuddin, for criticizing the implementation of hudud in Kelantan.
In 2012, Prime Minister Najib Razak promised that the Government of Malaysia would abolish the Sedition Act.
This promise, however, was reversed when Najib Razak announced in November 2014, that the Act would instead be strengthened to include provisions to protect the sanctity of Islam and on the secession of the Sabah and Sarawak states.
“The Sedition Act of 1948 is archaic and it’s high time the government followed through on its promise to get rid of this legislation,” said Emerlynne Gil.
This is Eric Paulsen’s second investigation under the Sedition Act this year, as he was arrested in January and then charged in February under section 4(1)(c) of the Act for a Twitter comment regarding the Malaysian Islamic Development Department.
The ICJ underscores that the Government’s actions contravene Principle 23 of the UN Basic Principles on the Role of Lawyers, which states that “lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.
In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights….”
Background:
The 1948 Sedition Act, originally enacted by the British colonial government and amended several 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.
For instance, a person making a statement may not have the intent to cause “hatred or contempt” towards the government, but may nonetheless be held liable for sedition if authorities believe that the person in fact incited such feelings.
The ICJ considers that the Act, by its very terms, contemplates restrictions on the exercise of freedom of expression that are grossly overbroad and inconsistent with basic rule of law and human rights principles.
Contact:
Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia, e: emerlynne.gil(a)icj.org, t +66 2 619 8477 ext. 206 or +66 840923575
Mar 20, 2015 | News
The Malaysian government should immediately release from detention Malaysian Parliamentarian Tian Chua, the ICJ said.
Tian Chua, who is also Vice President of the opposition Parti Kaedilan Rakyat (PKR), was arrested today for allegedly committing acts under section 143 of the Penal Code on unlawful assembly.
The arrest took place before noon after Tian Chua voluntarily appeared at the Dang Wangi police station in Kuala Lumpur to provide a statement in connection with the investigations regarding his participation in the peaceful KitaLawan rally on 7 March 2015.
The police detained Tian Chua before he could provide his statement.
He has so far not been charged with any offence.
However, if he is charged under section 143 of the Penal Code and convicted, he may be imposed the penalty of imprisonment for up to six months or fined, or both.
“At least 11 opposition figures associated with the KitaLawan rally have now been targeted by the authorities, who have been arresting and detaining them for 24 hours as a form of harassment and intimidation,” said Emerlynne Gil, ICJ’s International Legal Advisor for Southeast Asia. “It seems that Malaysia is rapidly returning to the dark days during the late 1980s of systematic pretrial and arbitrary detention under the Internal Security Act.”
The KitaLawan rally was convened in protest at the conviction and imprisonment of opposition leader Anwar Ibrahim, who was sentenced to five years’ imprisonment in February 2015 on charges of sodomy, following a trial conducted in violation of international human rights standards.
The ICJ underlines that in the absence of charges for a cognizable criminal offence not predicated on the exercise of a protected human right, Tian Chua and the other individuals who participated at the KitaLawan rally should not have been arrested and any form of harassment against them must be ended.
Under Malaysian law, police arresting a person without a warrant has to bring the arrested person before a judge “without unnecessary delay”.
The law also provides that no person arrested without a warrant shall be detained for more than 24 hours before being presented to a judge.
“The authorities are abusing their powers and using the law as a form of punishment even before they are convicted of, or even charged with, an actual crime in violation of Tian Chua’s right to presumption of innocence,” added Gil. “This abuse of pretrial detention as a form of harassment aggravates the repressive atmosphere created by the recent misuse of sedition laws to silence critics.”
Tian Chua is expected to be held overnight in prison. He will have his remand hearing on 21 March in the morning.
The ICJ calls for Tian Chua’s immediate release and urges the Government of Malaysia to end all forms of harassment against persons for their participation in peaceful assemblies.
Contact:
Emerlynne Gil, ICJ’s International Legal Adviser for Southeast Asia, e: emerlynne.gil(a)icj.org, tel. no.: +66 2 619 8477 ext. 206 or +66 840923575
Mar 16, 2015 | News
The ICJ today condemned the arrest and detention of Malaysian Member of Parliament and daughter of imprisoned opposition leader Anwar Ibrahim, Nurul Izzah Anwar, under section 4(1) of the colonial-era 1948 Sedition Act.
The arrest, which took place around 3.30pm at Dang Wangi police station in Kuala Lumpur, appears to be linked to a speech she gave in Parliament on 10 March 2015 that reportedly criticized the judges in her father’s sodomy II case.
It was reported that Nurul Izzah (photo) was at the police station today to provide statements for her involvement in a demonstration on 14 February, as well as her parliamentary speech.
She managed to complete part of her statement, but was arrested before she could provide a statement on the alleged seditious speech.
Nurul Izzah has yet to be formally charged and it is unclear as to whether the detention is in relation to a specific section of her speech or to the entire speech.
“The Malaysian authorities must stop the continued use of the offence of sedition to arbitrarily detain and stifle freedom of expression,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
On 10 February 2015, the Federal Court of Malaysia upheld the Court of Appeal’s decision to convict and sentence Anwar Ibrahim for sodomy under section 377B of the Penal Code.
Since then, a cartoonist has been charged under the Sedition Act, while several opposition politicians and lawmakers have been investigated for allegedly making seditious comments on the Federal Court’s decision.
The ICJ has previously denounced the use of the Sedition Act and repeatedly called for its abolition of the Act as its vague and overbroad provisions are incompatible with international human rights standards.
Nurul Izzah will reportedly remain in prison for the night and will have her remand hearing first thing in the morning on 17 March 2015.
The ICJ will continue to monitor her case.
The ICJ also calls on the Government of Malaysia to immediately release of Nurul Izzah and reiterates its call for the repeal of the Sedition Act.
Background
The 1948 Sedition Act, originally enacted by the British colonial government and amended several 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.
For instance, a person making a statement may not have the intent to cause “hatred or contempt” towards the government, but may nonetheless be held liable for sedition if authorities believe that the person in fact incited such feelings.
The ICJ considers that the Act, by its very terms, contemplates restrictions on the exercise of freedom of expression that are grossly overbroad and inconsistent with basic rule of law and human rights principles.
Contact:
Sam Zarifi, ICJ Regional Director of Asia and the Pacific, mobile: +668 07819002 or email: email: sam.zarifi(a)icj.org
Mar 12, 2015 | News
Thailand must live up to its repeated promises to bring justice to the case of Somchai Neelapaijit, who was forcibly disappeared eleven years ago today, said the ICJ.
In multiple statements since Somchai Neelapaijit was abducted on a street in central Bangkok, the Royal Thai Government has pledged to resolve the case.
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.”
In April 2014, Thailand gave assurances to the UN Committee that monitors the implementation of the Convention Against Torture in Geneva that the Department of Special Investigations (DSI) was continuing to investigate Somchai Neelapaijit’s case without any interference.
“Despite the passage of eleven years, Thai authorities have not carried out a comprehensive investigation or exhausted the possible sources of evidence,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific. “What is required is the DSI’s real and determined effort to identify the perpetrators and bring them to justice.”
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.
Promisingly, the Ministry of Justice is in the process of drafting a Torture and Enforced Disappearance Prevention and Suppression Bill, which, in its current form, defines and criminalizes enforced disappearance and torture in Thailand.
“This new law must ensure there is no statute of limitations on enforced disappearance, which is not only a serious human rights violation but also a crime under international law,” added Zarifi. “Somchai’s fate and whereabouts remain unresolved, and his family continue to demand truth and justice from the authorities.”
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.
The report highlighted several key problems, such as poor use of forensic evidence, failure to follow and develop leads, unduly restrictive interpretation of national and international law, and above all, a lack of political will to resolve a case that remains emblematic of the culture of impunity in Thailand.
Contact
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
