Dec 14, 2013 | News
The ICJ today urged the Lao PDR government to reverse its inaction in determining the fate of community activist Sombath Somphone, who was allegedly subjected to enforced disappearance a year ago.
In a legal memorandum on the one-year anniversary of Sombath’s enforced disappearance, the ICJ called on the Lao authorities to fulfill their country’s obligations under international law and carry out a thorough and impartial investigation into his whereabouts.
It also said the government must cooperate with regional and international human rights mechanisms, particularly the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the UN Working Group on Enforced and Involuntary Disappearances.
“It is deplorable that one year after Sombath Somphone was abducted after being stopped by traffic police, the public prosecutor has yet to institute formal
or criminal proceedings into his disappearance’’, said Sam Zarifi, ICJ Asia-Pacific regional director.
“The government of the Lao People’s Democratic Republic must immediately take effective measure to ensure animpartial and thorough investigation and bring justice to those responsible for crimes against Sombath Somphone,” he added.
Sixty-two-year old Sombath Somphone, Lao PDR’s most prominent community development advocate and a Ramon Magsaysay Award winner, was last seen on December 15, 2013, on a road in the capital Vientiane.
Closed circuit Television (CCTV) footage showed him being stopped at a police checkpoint, exiting his vehicle, getting into another vehicle with unidentified men and being driven away. He has not been seen since.
The Lao PDR government has denied any involvement in Sombath Somphone’s abduction. But reports released by police reveal a wholly inadequate investigation that lacks any credible explanation as to his fate or whereabouts.
In January this year, the ICJ called on the AICHR to play a proactive role in the case and to use the opportunity to address issues of enforced and involuntary disappearances in the region. To date, the AICHR has yet to take any meaningful action.
If the AICHR is to have any meaning, it must fulfill its mandate under Article 4, paragraph 1.11 of its Terms of Reference and develop a common position and strategy for tackling the widespread impunity of all acts of enforced disappearances in ASEAN, the legal memorandum said.
“An effective investigation, conducted in accordance with international standards, is essential in order that family members of Sombath Somphone and the public as a whole may discover the truth about his fate and whereabouts, and bring justice and reparation,’’ said Zarifi.
Background
Sombath Somphone is the founder and former director of the Participatory Development Training Center (PADETC), a non-governmental organization that supports holistic education and youth development as well as promoting eco-friendly technologies and micro-enterprises.
In October 2012, Sombath assisted the Lao government and non-governmental organizations convene an Asia-Europe People’s Forum (AEPF). The event was widely attended, drawing 948 participants from Lao PDR as well as other Asian countries.
It was the first time groups publicly criticized human rights abuses in Lao PDR, a Communist-run Southeast Asian country bordering Thailand, Cambodia, Vietnam, Myanmar and China.
The legal memorandum also covers the right of a family member to the right to information in such cases of enforced disappearances pursuant to both international standards as well as domestic laws in Lao PDR.
Recommendations
The key recommendations in the legal memorandum include:
(a) The public prosecutor, to launch a credible, prompt, thorough, impartial and effective investigation into the fate and whereabouts of Sombath Somphone. In the event that the public prosecutor fails to do so, an independent and credible authority should be established to undertake prompt, thorough and impartial investigation, consistent with international standards, into the alleged enforced disappearance as well as allegations of arbitrary detention, torture or ill-treatment;
(b) In furtherance of this investigation, the investigating authority should immediately seek and accept assistance from foreign experts on analysis of forensic evidence; and
(c) The investigating authority should provide relevant material and conclusions from any investigation to Sombath Somphone’s wife, to the extent compatible with the prosecution of the case.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Lao-Legal Memorandum-annex on the case of Sombath Somphone-advocay-2013 (download in pdf)
Dec 3, 2013 | News, Publications, Reports, Thematic reports
Lawyers continue to encounter impediments to the exercise of their professional functions and freedom of association, as well as pervasive corruption, although they have been able to act with greater independence, says the ICJ in a new report launched today.
Right to Counsel: The Independence of Lawyers in Myanmar – based on interviews with 60 lawyers in practice in the country – says authorities have significantly decreased their obstruction of, and interference in, legal processes since the country began political reforms in 2011.
“The progress made in terms of freedom of expression and respect for the legal process is very visible,” said Sam Zarifi, ICJ Asia-Pacific director. “But despite the improvements, lawyers still face heavy restrictions and attacks on their independence, which can result in uncertainty and fear, particularly when it comes to politically sensitive issues.”
Systemic corruption continues to affect every aspect of a lawyer’s career and, as a result, is never absent from lawyers’ calculations vis-à-vis legal fees, jurisdictions and overall strategy.
“Corruption is so embedded in the legal system that it is taken for granted,” Zarifi said. “When the public also generally assumes that corruption undermines the legal system, this severely weakens the notion of rule of law.”
“Lawyers in Myanmar, as elsewhere, play an indispensable role in the fair and effective administration of justice,” Zarifi added. “This is essential for the protection of human rights in the country and the establishment of an enabling environment for international cooperation towards investment and development.”
But lawyers in Myanmar lack an independent Bar Council, the report says, noting that the Myanmar Bar Council remains a government-controlled body that fails to adequately protect the interests of lawyers in the country and promote their role in the fair and effective administration of justice.
The ICJ report shows that other multiple long-standing and systemic problems affect the independence of lawyers, including the poor state of legal education and improper interferences on the process of licensing of lawyers.
In its report, which presents a snapshot of the independence of lawyers in private practice in Myanmar in light of international standards and in the context of the country’s rapid and on-going transition, the ICJ makes a series of recommendations:
- The Union Attorney-General and Union Parliament should significantly reform the Bar Council to ensure its independence;
- The Union Attorney-General and Union Parliament should create a specialized, independent mechanism mandated with the prompt and effective criminal investigation of allegations of corruption;
- The Ministry of Education should, in consultation with the legal profession, commit to improving legal education in Myanmar by bolstering standards of admission to law school, law school curricula, and instruction and assessment of students.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002 e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: knocraig(a)gmail.com
Myanmar-Right to Counsel-publications-report-2013-ENG (download full text in pdf)
MYANMAR-Right to Counsel-Publications-report-2015-BUR (Burmese version in pdf)
Nov 26, 2013 | News
The ICJ is calling on the Malaysian Government to immediately drop the criminal charge against human rights defender Lena Hendry for screening the film ‘No Fire Zone: the Killing Fields of Sri Lanka.’
The case has been fixed for case management and the defence lawyers filed an application to set aside, permanently stay or quash the charges against Lena Hendry.
“Subjecting Lena Hendry to criminal prosecution simply for screening a documentary violates her rights and contravenes Malaysia’s obligations to uphold freedom of expression,” said Sam Zarifi, ICJ’s Asia-Pacific Regional Director.
On 3 July 2013, Pusat Komas, a Malaysian human rights advocacy organization where Lena Hendry works, and Kuala Lumpur and Selangor Chinese Assembly Hall Civil Right Committee (KLSCAH CRC) screened the film “No Fire Zone”, a documentary on the war crimes and human rights abuses allegedly committed at the end of the Sri Lankan civil war in 2009.
Immediately following the screening, 30 officers from the Malaysian Ministry of Home Affairs and the police entered the hall and recorded the identity of all persons who attended the event.
The authorities then arrested Lena Hendry and two colleagues, Anna Har and Arul Prakash, and interrogated them for three hours at Dang Wangi police station.
On 19 September 2013, Lena Hendry was charged under section 6(1)(b) of the Film Censorship Act 2002 for showing a film that had not been approved by the Board of Censors.
If found guilty, she could be fined up to RM30,000 (approximately USD 9,322) and sentenced to up to three years imprisonment.
“The Malaysian government told the UN Human Rights Council during its universal periodic review that it maintains a ‘strong commitment to the rule of law, to upholding respect for human rights, and…widening the democratic space”, said Sam Zarifi. “That commitment is inconsistent with prosecuting human rights defenders for disseminating documentary human rights information.”
Under international law and standards, Malaysia must respect the right to freedom of expression of all persons, including the right to seek and impart information of all kinds.
In the case of human rights defenders, the UN Declaration on Human Rights Defenders imposes a special duty on States not only to respect this right, but also to protect those who exercise this right through their exposure of human rights violations.
The ICJ calls on the Malaysian Government to safeguard freedom of expression and uphold the right of individuals to expose and disseminate information on human rights questions, including the documentation of human rights abuses.
Nov 15, 2013 | News
The ICJ and Amnesty International urge the Association of Southeast Asian Nations (ASEAN) to increase efforts to protect the rights of women and children.
ASEAN must act in light of the newly adopted Declaration on the Elimination of Violence against Women and Elimination of Violence against Children, which was recently adopted at the 23rd ASEAN Summit in Bandar Seri Begawan, Brunei Darussalam, the rights groups said.
The Declaration states the commitment of all 10 ASEAN member states to further “prevent and protect [women and children] from and respond to all forms of violence, abuse and exploitation of women and children particularly for those who are in vulnerable situations”.
AI and ICJ welcome this commitment, which allows for no exceptions or discrimination, while expressing concern that no explicit mention was made of lesbian, bisexual, transgender and intersex women and children in the non-exhaustive list of those requiring particular protection from discrimination and violence that follows this general statement.
The Declaration details a wide array of measures that Member States should take, within “a holistic, multi-disciplinary approach”, in order to eliminate violence against women and children.
These include changes to legislation, policies and practices; training and education; investigation, prosecution, punishment and where appropriate rehabilitation of perpetrators; creating an enabling environment for the participation of women and children; and the development of strategies for the elimination of harmful practices.
AI and ICJ pointed out that the Declaration suffers from some serious deficiencies in substance, as well as in the process of its adoption.
In terms of process, most ASEAN Member states failed to meaningfully consult with national civil society in the elaboration of the Declaration.
Only Philippines, Indonesia, Thailand and Vietnam held consultations, which in some of these states were limited.
This problem was compounded once the ACWC had finalised its draft, as the discussions and approval processes thereafter were completely shrouded in secrecy.
This final draft was never circulated to women’s and children’s groups in the region, despite written requests from several civil society groups calling for its release.
This unacceptable lack of transparency violates international guidelines on consultation with civil society, the ICJ and AI stressed.
AI and ICJ also deplore the fact that the Declaration reaffirms the General Principles of the discredited ASEAN Human Rights Declaration (AHRD), some of which are wholly incompatible with international law and allow for impermissible restrictions on human rights.
The two organizations reiterate their call to revise the AHRD, particularly by repealing or substantially amending General Principles 6-8, so as to bring it into line with international human rights law and standards.
AI and the ICJ further underline that international law allows no justification for violence against women and children and requires States to comply with their obligations to prohibit, prevent, investigate, punish and ensure reparations for victims of such violence in all circumstances.
Nothing in the Declaration may be construed to circumvent ASEAN Member States’ obligation to eliminate “prejudices and customary and all other practices” as well as “harmful and discriminatory traditional practices” that amount to, result in or perpetuate violence against women and children.
In addition, a significant omission of the Declaration is the lack of a reference to economic barriers to protection, assistance and justice faced by women and children in situations of violence.
ASEAN Member States should ensure that financial means do not impede access to justice, particularly of those living in poverty.
The rights groups also highlighted that ACWC rejected the proposal from women and children groups to have two separate declarations.
Although both women and children share similar vulnerabilities necessitating for additional protection, there remains certain rights, approaches and differing needs that are specific to each groups that could only be adequately addressed by having two separate declarations.
AI and the ICJ stated that ASEAN’s determination to end violence against women and children will ultimately be measured only by effective implementation of the Declaration in a manner which complies with their international obligations.
The Declaration tasks the ACWC to promote the implementation of the Declaration and review its progress.
AI and the ICJ call on the ACWC to actively implement this mandate, and for ASEAN Member States to cooperate with the ACWC in fulfilling this role.
Oct 4, 2013 | News
The ICJ is calling on the Indonesian authorities to ensure that the proceedings against Justice Akil Mochtar fully comply with international law and standards on fair trial and the independence and impartiality of the judiciary.
Justice Mochtar, Chief Justice of Indonesia’s Constitutional Court (photo), is accused of taking a bribe to issue a favourable verdict in an election dispute.
Justice Mochtar was arrested on 2 October 2013 and remains in custody. According to a spokesperson for the Corruption Eradication Commission, he is alleged to have received a bribe, through several intermediaries, from Hambit Binti, a district chief whose re-election was contested.
The Constitutional Court has sole jurisdiction over disputes contesting the conduct or results of elections.
The ICJ calls for a prompt, thorough and impartial investigation of these serious allegations.
The impartiality of the judiciary is an essential condition for respect for the rule of law, and is undermined when judicial decisions are made on the basis of financial inducements rather than solely according to evidence and the law.
Integrity is vital to the proper discharge of judicial office, and any judge must ensure that his or her conduct is above reproach, maintaining and enhancing the confidence of the public in the impartiality of both the individual judge and the judiciary as a whole.
According to the Beijing Statement of Principles on Independence of the Judiciary in the LAWASIA Region, signed by 32 judicial heads of Asia Pacific States, including the Chief Justice of Indonesia, “Judges shall uphold the integrity and independence of the judiciary by avoiding impropriety and the appearance of impropriety in all their activities.”
At the same time, the ICJ stresses that any eventual criminal or disciplinary proceedings, should those be warranted, must respect the independence of the judiciary and Justice Mochtar’s right to a fair trial.
Judges charged with a criminal offence, like all other persons, have the right to a fair trial by a competent, independent and impartial tribunal established by law.
The right to a fair trial in criminal cases as recognized in Indonesia and under international law and standards, including Article 14(3) of the International Covenant on Civil and Political Rights, comprises a series of procedural and substantive safeguards that must be respected during the pre-trial and trial phases.
Contact
Sam Zarifi, ICJ Asia-Pacific Regional Director, Bangkok, tel. no. +66 8078 19002 or sam.zarifi(a)icj.org
Laurens Hueting, ICJ Associate Legal Adviser (International Law and Protection Programme), Geneva, tel. no. +41 22 979 3848 or laurens.hueting(a)icj.org
Oct 2, 2013 | News
The ICJ said the conviction today of Le Quoc Quan, a lawyer and human rights defender in Vietnam, violated international standards governing the right to a fair trial.
Judge Le Thi Hop of the People’s Court of Hanoi convicted and sentenced Le Quoc Quan to 30 months imprisonment with time served since late December 2012 to be taken into account.
His company was ordered to pay the unpaid tax amount of 645 million VND (approximately USD 30,000) and fine of 1.3 billion VND (approximately USD 60,000) for the offence of tax evasion under section 161 of the Vietnamese Penal Code.
One of Le Quoc Quan’s accountants, Phuong, was sentenced to eight months imprisonment.
Edmund Bon, a prominent Malaysian attorney and the ICJ’s appointed trial observer, was denied entry into court.
Police barricaded the courthouse to keep out hundreds of demonstrators protesting the perceived harassment of Le Quoc Quan.
“The court did not dispel the widespread belief that this case is political in nature and intended to silence a government critic,” Edmund Bon said. “The verdict was delivered after a 30-minute deliberation and the judge took about an hour to read the written grounds of judgment.”
The hearing was originally scheduled for 9 July 2013, but was postponed at the very last minute due to the judge’s illness.
On 17 September 2013, the court issued a notification informing that the trial had been rescheduled to 2 October 2013 and that the trial would be a public one.
Nevertheless, on the day of trial, only a handful of foreign diplomats who had obtained an invitation and pass from the Ministry of Foreign Affairs were allowed to enter a room to observe the proceedings through a television screen.
Le Quoc Quan’s wife was the only family member who was permitted to observe the trial.
No independent journalists were allowed to enter the courtroom except for a reporter with the police and government media personnel.
The trial before a judge and two jurors started at 8.00am and ended at 2.30pm with a 15-minute recess in between. Six witnesses gave evidence. Counsel for the prosecution and defence took approximately one hour to make legal submissions.
“Le Quoc Quan’s trial and verdict raise serious questions regarding Vietnam’s commitment to ensure fair criminal trials that are to be open to public scrutiny, as it required to do as a party to the International Covenant on Civil and Political Rights,” said Edmund Bon.
The ICJ also notes that the court had breached Le Quoc Quan’s right to a speedy trial.
Section 194 of the Vietnamese Criminal Procedure Code specifically provides that, upon a postponement, courts that hear first-instance trials have to set a new hearing date within 30 days.
Here, the court took almost two months to do so.
“The court’s failure to reschedule the case within a timely manner is a clear violation of Le Quoc Quan’s rights to be tried within a reasonable time and without undue delay, as stipulated under articles 9 and 14 of the ICCPR respectively,” Bon added.
Since his arrest on 27 December last year, Le Quoc Quan has already spent a total of more than nine months in prison, awaiting trial.
“Le Quoc Quan should have instead been granted bail when his wife had filed an application for his release as there was no reason to believe that he would have had absconded the country,” said Edmund Bon.
The lawyers of Le Quoc Quan are expected to appeal the court’s decision within 15 days.
Contact
Sam Zarifi, ICJ Asia-Pacific Regional Director, Bangkok, tel. no. +66 8078 19002 or sam.zarifi(a)icj.org
