Aug 24, 2017 | News
Today, the Indian Supreme Court delivered a landmark judgment declaring the right to privacy an intrinsic part of the right to life and liberty under Article 21 of India’s Constitution.
The ICJ welcomed a momentous and courageous judgment, where the Supreme Court took an expansive view of the right to privacy, and held that, at its core, privacy includes “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation…”
As such, this judgment is an important step towards scrapping laws criminalizing same-sex activity in the country, the ICJ said.
“The judgment is a testament to the inspiring work of human rights activists and lawyers in India, who have shown the potential of the law to affirm human rights and equality,” said Frederick Rawski, ICJ’s Asia Director.
“The ruling could have far-reaching implications for a number of cases -including with respect to the criminalization of consensual same-sex relations – where laws, policy and practices have been challenged on the basis that they violate the right to privacy,” he added.
The judgment clarified that the right to privacy is not spatially bound and exists beyond four walls as it “attaches to the person” and is not “lost or surrendered merely because the individual is in a public place.”
Significantly, in explaining the ambit of the right to privacy, the Supreme Court held that sexual orientation is “an essential component of identity” and “equal protection demands protection of the identity of every individual without discrimination.”
The Court also highlighted that laws criminalizing same-sex activity have a “chilling effect on the exercise of the right”, posing “a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”
Section 377 of the Indian Penal Code criminalizes voluntary “carnal intercourse against the order of nature with any man, woman or animal” and prescribes a range of penalties including life imprisonment.
In Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court in 2009 read down the application of section 377, holding, among other things, that insofar as it criminalizes consensual sexual acts, it violates Articles 21 (right to life and liberty), 14 (equal protection of the law) and 15 of the Constitution (freedom from discrimination) of the Indian Constitution.
However, in Suresh Kumar Koushal in December 2013, the Supreme Court reversed the 2009 Delhi High Court ruling, effectively recriminalizing homosexuality.
The petitioners challenged the ruling in Koushal, and in February 2016, the Indian Supreme Court referred a “curative petition” to a five-judge bench of the Supreme Court for consideration.
In today’s judgment, the Supreme Court questioned the rationale in Koushal, and expressed disagreement with the manner in which Koushal dealt with the “privacy–dignity based claims of LGBT persons.”
It also found the reasoning in Koushal flawed and unsustainable for being discriminatory towards LGBT persons by calling them “a miniscule fraction of the country’s population” and making that the basis for denying their right to privacy.
However, the Court held that since a challenge to section 377 is pending before a larger bench, its constitutional validity would be decided in the appropriate proceedings.
“The Supreme Court’s judgment is indeed historic, but the real test of its impact will be whether the right to privacy it affirms is given effect in its true spirit in individual cases, so as to ensure that laws, policies and practices meet India’s obligations under the Constitution as well as international standards,” added Rawski.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Ajita Banerjie, ICJ Consultant in Delhi, t: +918447784157; e: ajita.banerjie(a)icj.org
India-Privacy & section 377-News-web stories-2017-ENG (full story in PDF)
Aug 24, 2017 | News
On the one-year anniversary of the enactment of a law establishing the Office on Missing Persons (OMP), the ICJ called on the Sri Lankan Government to swiftly operationalize the Office.
The ICJ also urged the Government to set up other transitional justice mechanisms it committed to in the context of a key 2015 UN Human Rights Council resolution, without further delay.
On 23 August 2016, the OMP Act received the Speaker’s assent and became law. Even after one year, however, the Office has not been operationalized.
Organizations have reportedly made the claim that the President has unconstitutionally allocated the subject of the OMP to himself.
The Government’s failure to follow Constitutional provisions when setting up an important office such as the OMP, which has a permanent mandate to search and trace the whereabouts of “missing persons”, leaves the office exposed to future uncertainty- a move that affected communities can ill afford after a long and unjustifiable delay in setting up the OMP, the ICJ notes.
“The delay has already resulted in affected communities losing hope and faith in the Government’s transitional justice agenda, as is evident by continuous protests in the North,” said Frederick Rawski, ICJ’s Asia and Pacific Director.
The ICJ noted that in September 2015, the Government of Sri Lanka made a promise to the people of Sri Lanka and the international community, to initiate a process of reconciliation which “involves addressing the broad areas of truth seeking, justice, reparations and non-recurrence and for non-recurrence to become truly meaningful, the necessity of reaching a political settlement that addresses the grievances of the Tamil people”.
In the context of UN Human Rights Council resolution 30/1, adopted 1 October 2015, the Government of Sri Lanka made a commitment to establish four main transitional justice mechanisms, a Commission for Truth, Justice, Reconciliation and Non-recurrence, an Office on Missing Persons, an Office for Reparations and a Judicial Mechanism with a Special Counsel, amongst numerous other reforms.
Almost two years since these promises were made, only one mechanism, the OMP, has been established by law.
In March 2017, the need for implementation of these commitments related to reconciliation, accountability and human rights were reaffirmed, and a comprehensive report, followed by a discussion on the implementation of Council resolution 30/1, is due at the Human Rights Council’s 40th session in March 2019.
The Consultation Task Force on Reconciliation Mechanisms (CTF), a panel of 11 independent eminent persons appointed by Prime Minister Ranil Wickremesinghe, publicly released its final report on 3 January 2017.
The report already outlines structures and recommendations for the promised mechanisms based on country-wide consultations.
The ICJ called on the government of Sri Lanka to implement Task Force recommendations to deliver justice for victims of human rights abuse.
“The Government of Sri Lanka should make public its plans and drafts for the proposed mechanisms based on consultations, as well as a timeline for when it hopes to establish them, in order to stop further erosion of faith by the affected communities,” Rawski added.
In February, President Sirisena affirmed that he will prioritize Constitutional Reform over Transitional Justice-related reforms adding that there is a need to foster support for Transitional Justice amongst all communities.
The linkages between the two reform processes are many and one process cannot be seen independent of the other.
There is, however, very little progress on either front or a broad-based campaign to garner support for transitional justice, the ICJ said.
Two years into its tenure, the Government of Sri Lanka must take stock of its commitments and forge ahead with its reform agenda before the increasingly negative perception of the Government compromises the change it pledged and incumbency fatigue sets in, the ICJ added.
“The Government must act, and act now, to stop the disconnect between the hopes of affected communities and the lack of substantive progress of the transitional justice agenda from growing further, and deliver on its commitments before the opportunity for progressive reform is lost for good,” Rawski added.
Contact:
Frederick Rawski, ICJ’s Asia Pacific Regional Director (Bangkok), e: frederick.rawski(a)icj.org
Thyagi Ruwanpathirana, ICJ’s National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org
Jul 31, 2017 | News
On 29-31 July 2017, the ICJ, in collaboration with Chiang Mai University’s Faculty of Law, held a workshop on “Introduction to Business and Human Rights & Basic Principles on Documenting Human Rights Violations” for 25 academics, NGO representatives and lawyers in Chiang Mai.
The objective of the workshop, held at the Chiang Mai University campus, was to provide an overview of the field of business and human rights, including the UN Guiding Principles on Business and Human Rights and its “Protect, Respect and Remedy” framework, which Thailand affirmed its commitment to on 31 May 2017, and the need for a binding treaty on business and human rights.
Day 1 focused on the UN framework as it applies to business and human rights, investment law, and strategic litigation.
Day 2 focused on criminal and civil litigation, women’s rights and business, children’s rights and business, and land rights.
Day 3 focused on the basic principles that apply to documenting and reporting on human rights violations.
The speakers at the workshop were:
- Daniel Aguirre, ICJ International Legal Adviser, Myanmar
- Irene Pietropaoli, Expert consultant on business and human rights
- Sanhawan Srisod, ICJ Associate National Legal Adviser, Thailand
Jul 30, 2017 | News
Indian authorities must ensure full compliance with the Supreme Court’s historic judgment directing independent investigations into alleged extrajudicial killings by the police and security forces in Manipur from 1979 to 2012, the ICJ said today.
The ICJ is calling for independent, impartial and thorough investigations into all cases, in line with international standards.
It is further calling on Indian authorities to ensure all accused are brought to justice in fair trials in ordinary civilian courts, and that the families of victims are accorded access to an effective remedy and reparation for any human rights violations.
“Through this judgment, the Indian Supreme Court has given fresh hopes to the victims of human rights violations in India who seek justice,” said Frederick Rawski, ICJ’s Asia Pacific Programme Director.
“This bold and principled decision should finally end the cynical attempts by Indian security forces and law enforcement agencies to shield themselves from criminal accountability,” he added.
On 14 July 2017, the Supreme Court ordered the Director of the Central Bureau of Investigations (CBI) to constitute a Special Investigation Team (SIT) within two weeks to go through the records of at least 85 cases of alleged extrajudicial killings that took place in Manipur between 1979 and 2012, lodge First Information Reports (FIRs), and complete investigations where required.
The Court also directed that the investigations must be completed by 31 December 2017.
The Court noted that the Manipur Police had not registered any FIR at the instance of the family members of the deceased.
It also held that the Manipur Police could not be expected to carry out impartial investigations as some of its own personnel were said to be involved in the “fake encounters”.
India has a legal obligation under Articles 2(3) and 6 of the International Covenant on Civil and Political Rights (ICCPR), to which it is party, to investigate allegations of violations of the right to life promptly, thoroughly and effectively through independent and impartial bodies and to ensure that those responsible are brought to justice.
On 27 July 2017, the CBI constituted a five-member Special Investigating Team in accordance with the Supreme Court’s directions.
“The CBI’s compliance with the Supreme Court’s directions through the prompt constitution of an investigation team is a welcome step,” added Rawski. “It must now ensure that investigations are thorough, independent, impartial and in line with international standards, including the ICCPR.”
The ICJ urged the State of Manipur and the Union of India to extend full cooperation and assistance to the Special Investigating Team to complete the investigations without any hurdles or delays.
Other allegations of human rights violations in the petition must also be investigated in line with international standards, the ICJ said.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director (Bangkok), e: frederick.rawski(a)icj.org
Background
Extrajudicial Execution Victim Families Association, Manipur (EEVFAM) and Human Rights Alert filed a petition in the Supreme Court of India in 2012, alleging that from 1979 to 2012 over 1,528 cases of fake “encounter killings” had taken place in Manipur.
They further alleged that the State government had not conducted proper investigations into the allegations of excessive use of force by the security forces and the police and requested the Court to constitute a special investigation team, comprising police officers from outside the state of Manipur, to conduct a probe into the alleged unlawful killings.
In July 2016, the Supreme Court emphasized the need for accountability for human rights violations by security forces, including under the Armed Forces Special Powers Act (AFSPA), and directed the petitioners to present detailed documentation in support of their allegations.
In April 2017, the Supreme Court dismissed the Central Government’s curative petition requesting the Court to reconsider its July 2016 judgment on the ground that it hampered the security force’s ability to respond to insurgent and terrorist situations.
The killings mentioned in the petition all took place in areas considered “disturbed” under AFSPA. Once an area is declared “disturbed”, armed forces are given a range of “special powers”, which include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, use lethal force.
AFSPA has facilitated gross human rights violations by the armed forces in the areas in which it is operational.
Human rights organizations, including the ICJ, and several UN human rights bodies have recommended that the AFSPA be repealed or significantly amended.
Jul 27, 2017 | News
Pakistani authorities must implement the United Nations Human Rights Committee recommendations to ensure compliance with Pakistan’s human rights obligations under the International Covenant on Civil and Political Rights (ICCPR), the ICJ said today.
The Human Rights Committee, the treaty-monitoring body that oversees countries’ implementation of and compliance with the ICCPR, reviewed for the first time Pakistan’s human rights record under the Covenant on 11 and 12 July.
It issued its “Concluding Observations”, along with its recommendations, today, on 27 July.
“While it is encouraging to see Pakistan’s increased engagement with United Nations human rights mechanisms in recent years, it is deeply worrying that since ratifying the ICCPR, Pakistan’s human rights situation has worsened in a number of aspects, including with the restoration of the death penalty and the introduction of military trials for civilians,” said Livio Zilli, ICJ’s Senior Legal Adviser and UN Representative.
“It is of the utmost importance for Pakistan to reverse this trend, and make sincere efforts to implement the recommendations made by the Committee,” added Zilli.
The Committee’s recommendations include:
- Ensure the National Commission for Human Rights is able to carry out its mandate independently and effectively;
- Reinstate the moratorium on the death penalty;
- Abolish mandatory death penalty and ensure the death penalty is provided only for the “most serious crimes” involving intentional killing;
- Criminalize enforced disappearance and put an end to the practice of enforced disappearance and secret detention;
- Ensure that all allegations of enforced disappearance and extrajudicial killings are promptly and thoroughly investigated; all perpetrators are prosecuted and punished with penalties commensurate with the gravity of crimes;
- Review legislation relating to the military courts with a view to abrogating their jurisdiction over civilians as well as their authority to impose the death penalty;
- Reform the proceedings of military courts and bring them into full conformity with Articles 14 and 15 of the Covenant to ensure a fair trial;
- Ensure that all elements of the crime of torture are prohibited in accordance with article 7 of the Covenant;
- Repeal all blasphemy laws or amend them in compliance with the strict requirements of the Covenant; and
- Review policies and legislation on registration of international NGOs, including the vague grounds on which registrations can be cancelled.
This is the first time Pakistan’s human rights record is being reviewed by the Human Rights Committee since Pakistan ratified the Covenant in 2010.
Contact:
Livio Zilli, ICJ Senior Legal Advisor and UN Representative (Geneva), e: livio.zilli(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (Lahore), t: +923214968434; e: reema.omer(a)icj.org
Background:
Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in June 2010.
Following ratification/accession, every state party to the ICCPR is required to submit an initial “state report” containing information on the implementation of each provision of the treaty.
Pakistan submitted its initial state report to the Human Rights Committee in October 2015.
In light of the information provided in the State report, as well as information received from civil society, the Human Rights Committee then prepared a List of Issues containing particular issues of concern to the Committee, and asking whatever questions it sees fit in light of those concerns.
The answers provided by the State party to these questions, as well as other information submitted by civil society and others formed the basis of the “review” of the State’s compliance with the treaty, which was carried out on 11 and 12 July by the Human Rights Committee.
During the review, the Committee met with Pakistan’s delegation, headed by Federal Minister for Human Rights, Senator Kamran Michael, who presented answers to the List of Issues and responded to the Committee’s questions.
The Committee’s Concluding Observations issued today are highly authoritative, and highlight the Committee’s concerns and make recommendations to the State on improving the implementation of the ICCPR.
The ICJ made submissions to the Human Rights Committee in relation to the formulation of List of Issues in 2016 and the Review in 2017.
In its submissions, the ICJ raised concern about the inadequate legal framework on torture and other ill-treatment; the continuing practice and impunity for enforced disappearances; the incompatibility of military trials of civilians with the right to a fair trial; the incompatibility of Pakistan’s blasphemy laws with the rights to freedom of religion and belief, expression and fair trial; and the vaguely defined INGO policy.
The Human Rights Committee picked up ICJ’s concerns as its principle matters of concern and recommendations in its Concluding Observations.
Jul 13, 2017 | News
The ICJ today mourns the passing of Chinese human rights defender and Nobel Peace Prize winner, Liu Xiaobo. Liu Xiaobo was awarded the Nobel Peace Prize in 2010 and was described as the “foremost symbol of the struggle for human rights in China.”
He passed away today at the First Hospital of China Medical University, while still in the custody of Chinese authorities.
He has been imprisoned since 2009, after being found guilty for “subverting state power”, for calling for a new constitution in China. His wife, poet Liu Xia, remains under house arrest in Beijing.
In May 2017 authorities announced that he had been diagnosed with late-stage liver cancer.
Chinese authorities refused calls that he be allowed to travel to receive medical treatment abroad.
The ICJ honors Liu Xiaobo for his peaceful and unrelenting pursuit for human rights in China, and calls on the government to end the house arrest, and guarantee the freedom of movement, of Liu Xia.
Sam Zarifi, ICJ’s Secretary General said: “Liu Xiaobo will continue to serve as an inspiration not only for those fighting for human rights in China, but also for all human rights defenders working to promote and protect human rights all over the world.”
The ICJ believes that the death of Liu Xiaobo should serve as a wake up call to the Government of China that they cannot simply and brutally silence dissenting voices.
Liu Xiaobo’s death only serves to amplify his call for human rights and upholding the rule of law in China.
The ICJ has consistently called upon the Chinese government to end the harrassment and unlawful detention of lawyers and human rights defenders.
