May 5, 2013 | News, Op-eds
An opinion piece by Benjamin Zawacki, Senior Legal Adviser for Southeast Asia at the International Commission of Jurists.
Thailand’s government recently passed up an opportunity for a new approach to the deep South, by declining to replace the Emergency Decree, which violates international standards on human rights, with the somewhat less heavy-handed Internal Security Act (ISA).
Equally concerning is why the government has not looked beyond the South in reconsidering the use of its other extraordinary security legislation: no fewer than 31 of Thailand’s 77 provinces are at least partially under Martial Law.
International law is clear that the extraordinary powers under security laws like the Emergency Decree and Martial Law may only be invoked under a strict set of circumstances, none of which is even arguably applicable in Thailand outside of the southern insurgency (four of the 31 provinces).
Martial Law may be invoked in Thailand “when a situation arises that makes it necessary to maintain law and order and to defend against the danger of attack”, or “when there is an outbreak of war or unrest”. All of Thailand’s provinces that are situated on one of the country’s four international borders are under Martial Law in whole or in part (including the 27 not in the deep South). Among them is Phitsanulok, whose shared border with Laos is roughly only 50km.
This province featured in Thailand’s last war, a three-month affair with Laos that ended in 1988.
Otherwise, Thailand’s border challenges are well-known: trafficking in persons, drugs, and weapons; landmines; refugees and migrants; smuggling of logs, oil, and other contraband; demarcation disputes. While doubtless all of these call for robust law enforcement, only the dispute with Cambodia over the Preah Vihear temple even arguably involves defending against the danger of armed attack.
Several minor but deadly skirmishes with Cambodian forces, as well as considerable mutual saber-rattling, have occurred in several districts of Si Sa Ket province since 2009. It is not credible to claim that Thailand needs to impose Martial Law because of external threats.
A more likely explanation is that Martial Law’s expansive application in Thailand is due to what is common to most security legislation around the region, namely vague language that lends itself to broad interpretation and granting wide powers to the military.
The Martial Law term “law and order”, in addition to more typically applying to civilian law enforcement agencies than to the military, could apply to any situation in which a law is implicated – which is nearly all situations. “Order” and “unrest” are particularly ill-defined.
Moreover, “maintain” suggests law and order need only be threatened to invoke Martial Law, rather than be lost and in need of being restored.
What constitutes an “attack” and the likelihood of such required for Thailand to be in “danger” are also essentially judgment calls. And when is an attack (or a series of attacks) tantamount to an “outbreak of war”?
A second and related reason that Martial Law is so pervasive in Thailand is the large number of military personnel empowered to invoke the law, coupled with, inversely, the difficulty in revoking it later.
While order by royal decree is required for invoking Martial Law on the first set of grounds, even local military commanders can invoke Martial Law in the area under their control on the second set (“when there is an outbreak of war or unrest”), affording them enormous discretion and authority.
In contrast, any and all revocations of the law require order by royal decree, a level of involvement as centralized and bureaucratic as a district military commander’s invocation is local and simple.
Martial Law’s use in Thailand historically supports the analysis that imprecise grounds combined with bureaucratic inertia account for the wide geographical application of the law.
Twice in the past 22 years, orders by royal decree referencing “law and order” have imposed Martial Law on the whole of Thailand, both times via coups d’état in 1991 and 2006.
On only three occasions after the 1991 coup (twice later the same year and once in 1998) was Martial Law lifted in some but not all of Thailand’s provinces. On the eve of the 2006 coup, it was still in effect in all or part of 18 provinces.
Similarly, following the blanket invocation of Martial Law on the whole country in 2006, on only two occasions since (in January 2007 and 2008, respectively) has an order by royal decree revoked the law in 46 of Thailand’s 77 provinces. Why not everywhere?
International law requires that extraordinary security legislation be invoked only in response to an exceptional situation.
Powers granted to security forces and any derogation from human rights must be strictly necessary and proportionate to the situation, and must have a time limitation attached to them.
None of these elements is met in the case of Thailand’s application of Martial Law to its international borders.
Indeed, Martial Law in Thailand allows security forces to arrest people without a warrant, and to detain them for seven days prior to charging them.
Critically, it does not require that detainees be promptly brought before a judge, in flagrant violation of Thailand’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
This leaves detainees particularly vulnerable to torture or other ill-treatment at the hands of the security forces, which Thailand has also agreed to prevent and punish as a party to the ICCPR and the Convention against Torture.
In cases under Martial Law of alleged misconduct by security forces, victims are unable to institute a criminal prosecution (though they may initiate a civil action) or to choose their own lawyer; only a military prosecutor is entitled to institute a criminal charge. No appeal can be lodged against judgments or orders of military courts during this period.
The Thai government should reconsider its decision to keep the Emergency Decree in place throughout most of the deep South.
At the same time, it should take the long overdue step of lifting an equally heavy-handed Martial Law everywhere else.
Apr 8, 2013 | News
On 5 April, Vietnam’s Hai Phong court sentenced Doan Van Vuon and three of his male relatives to imprisonment sentences ranging from two to five years, for attempted murder. The ICJ condemns this decision.
Mr. Doan’s wife and sister-in-law received suspended sentences in the form of 18 and 15 months respectively for resisting persons in the performance of their official duties.
Vuon, along with his brothers Doan Van Quy and Doan Van Sinh, as well as Sinh’s son Doan Van Ve, were initially arrested on 5 January 2012 for injuring four policemen and two soldiers with homemade weapons when more than 100 security forces tried to forcibly evict them from their fish farm in a district approximately 90 kilometres from Hanoi.
The four men had remained in detention for more than a year waiting for the commencement of last week’s trial.
Under Article 9(3) of the International Covenant on Civil and Political Rights, which Vietnam is a signatory to, states that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge…and be entitled to trial within a reasonable time or to release”.
“Pre-trial detention should only be used in criminal proceedings as a last resort, and for the shortest possible time period, when required to meet the needs of justice,” said Emerlynne Gil, ICJ’s International Legal Advisor for Southeast Asia in Bangkok. “The prolonged period of detention in this case is detrimental as it could possibly have violated the defendants’ presumption of innocence and due process.”
During the trial, it was concerning to note that all the judges involved in the case were members of the ruling Vietnamese Communist Party and were carrying out their judicial duties under the central government’s directions.
Article 14 of the ICCPR further guarantees that a person is “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
“Vietnam’s blatant disregard of the right to fair trial violates not only their international law obligations, but also the proper administration of justice in a criminal proceeding,” said Emerlynne Gil.
The ICJ also observed that the court’s judgment failed to incorporate the fact that the defendants had acted in such a manner only as an attempt to defend and protect their land, which was legitimately given to them by the Vietnamese government in 1993.
The right to receive a reasoned judgment is an inherent principle in safeguarding fair trial rights and it is the general rule that court rulings must include the essential findings, evidence and legal reasoning.
“The failure to adhere to the minimum international fair trial standards reveals Vietnam’s serious lack of commitment towards upholding the rule of law and protecting human rights in the country; a violation most certainly not in line with the profile of a country wishing to obtain a seat at the UN Human Rights Council 2014-2016 tenure,” Gil added.
In the event of an appeal, the ICJ calls that the Vietnamese Court of Appeal be consistent with the international basic judicial guarantees and the principles of independence, impartiality and competency.
Apr 5, 2013 | News
The ICJ urged the Cambodian Bar Association to make it clear that its new Code of Ethics, launched today, does not restrict the freedom of lawyers to express their opinions.
Article 17 of the new Code of Ethics states (in an informal translation by the ICJ) that “All interventions made publicly or through public media by lawyers in their capacity as lawyers may be permitted only within the framework of strict compliance with the duties of the legal profession. Such interventions require diligence.”
This language replaces Article 15 of the 1995 Code, which demanded all lawyers in Cambodia to “inform” or “consult” the Bar President before making media statements.
“The language of the new Article 17 is an improvement over the old Code, but it is ambiguous and raises fears that lawyers will not be able to exercise their right to express their opinions freely,” said Emerlynne Gil, ICJ’s International Legal Advisor on Southeast Asia. “The Cambodian Bar Association must clarify that under Article 17, lawyers, like all others, can address important legal and policy issues publicly and openly.”
The ICJ asserted that the Bar Association must clearly and publicly state that Article 17 shall not be construed to mean that lawyers must seek permission prior to engaging in public activities in their professional capacity.
The ICJ also expressed concern over the previous statements made by the Bar Association implying that lawyers could be sanctioned for expressing certain views of the country’s laws or legal reforms. During a press conference on 15 March 2013, the Bar Association said that the purpose of Article 17 was to prevent lawyers from misinterpreting the law and thus “making society chaotic”.
“The best means of increasing public awareness of the laws and strengthening the rule of law is to encourage greater public discussion,” said Emerlynne Gil. “Disagreements about the meaning of laws are part of the nature of the legal process and should be encouraged publicly.”
The ICJ recognizes the grave difficulties of facing the legal system in Cambodia, where fewer than 1000 active lawyers must provide services for a population of more than 14 million people. “We share the Cambodian Bar Association’s concerns about the need to uphold the professional competence and integrity of its members,” said Emerlynne Gil. “However, this concern should be addressed through efforts to improve legal education expertise rather than limiting the right of lawyers to freedom of expression.”
For questions and clarifications, please contact Ms. Emerlynne Gil, International Legal Adviser for Southeast Asia, tel. no. +662 619 8477, fax no. +662 6198479 or emerlynne.gil@icj.org
Mar 22, 2013 | News
Indonesia’s resumption of the death penalty after a four-year moratorium is a major setback for the country’s human rights record, the ICJ said today.
Indonesia executed Adami Wilson Bin Adam on 15 March 2013. After the execution, Indonesia’s Attorney General Basrief Arief announced that the government was set to execute nine more convicts this year.
“The Indonesian government should immediately reverse its decision to proceed with more executions in defiance of global trends toward the abolition of the death penalty,” said Emerlynne Gil, ICJ’s International Legal Advisor for Southeast Asia in Bangkok. “At least 150 countries have now either abolished the death penalty or instituted an official or unofficial moratorium. There is a growing understanding around the world that the death penalty is an unacceptable assault on rights and dignity.”
Adami Wilson Bin Adam was convicted in 2004 for smuggling one kilogram of heroin into the country. In Indonesia, the law prescribes the penalty of death for trafficking narcotics.
During its Universal Periodic Review (UPR) in 2012 at the UN Human Rights Council, Indonesia rejected recommendations to abolish the death penalty or establish a moratorium on executions.
In its reply, the Government of Indonesia said that death penalty is imposed “selectively only for serious crimes.” However, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, in his report, emphasized that “the death penalty should be eliminated for crimes such as economic crimes and drug-related offences.”
Indonesia last carried out executions four years ago. In 2008 it executed three men convicted of the 2002 Bali bombings.
“This execution undermines Indonesia’s repeated efforts to position itself as a regional human rights leader,” Gil added. “Its resumption of executions is indeed a very grave setback not only for Indonesia, but also for the region and ASEAN, the Association of South East Asia Nations.”
The ICJ says that use of the death penalty violates the right to life and the right not to be subjected to cruel, inhuman, or degrading treatment or punishment.
Last November 2012, the UN General Assembly issued a resolution calling on all Member States to establish a moratorium on executions with a view to abolishing the death penalty.
The resolution was adopted by an overwhelming number of votes from Member States. Indonesia abstained from the vote.
The ICJ calls Indonesia to immediately ratify the 2nd Optional Protocol to the International Covenant on Civil and Political Rights, which obligates State Parties to take all necessary measures to abolish the death penalty.
In the immediate term, the country should implement a moratorium on the practice, the ICJ adds.
Feb 15, 2013 | News
The ICJ, in collaboration with the Office of the Attorney General of the Union of Myanmar, held a two-day academic seminar in Naypyitaw entitled “The Prerogative Writs under the 2008 Constitution of Myanmar”.
At the event, which took place on 14 – 15 February 2013, opening remarks were given by His Excellency Dr. Tun Shin, Attorney General of the Union of Myanmar and Mr. Saman-Zarifi, Regional Director for Asia and the Pacific of International Commission of Jurists, to a total of approximately 40 public prosecutors and judges.
The aim of the seminar was to discuss and contribute to the application of the recently re-introduced prerogative writs, namely, habeas corpus, mandamus, prohibition, quo warranto and certiorari, under Myanmar’s 2008 Constitution which came into force in early 2011.
The seminar allowed ICJ to not only gain a deeper insight into the current writ practices in Myanmar but also permitted the Office of the Attorney General to draw best practices from other countries, such as Australia, Philippines and Malaysia.
The topics addressed during the seminar were the importance of prerogative writs in ensuring justice and upholding the rule of law; specific international standards on the independence of prosecutors and their role in the justice system; how writ cases are handled, challenges faced by the prosecutors and the burden of proof; and the powers of the judiciary to promulgate its own rules to ensure fundamental rights, as in the case of the Supreme Court in Philippines.
Panelists included Justice John Dowd AO QC, former Chairman of the International Commission of Jurists; Justice Adolfo Azcuna, Chancellor of the Philippine Judicial Academy and former Justice of the Supreme Court of the Philippines; and Mr. Andrew Khoo of the Malaysian Bar Council.
Jan 21, 2013 | News
The ICJ calls on the ASEAN Intergovernmental Commission on Human Rights (AICHR) to take an active role in determining the fate and whereabouts of Sombath Somphone, a community leader in Laos.
The ICJ also calls on the AICHR to fulfill its mandate under Article 4, paragraph 1.11 of its Terms of Reference, and develop a common position and strategy for tackling the serious problem of enforced and involuntary disappearances in the ASEAN region.
This position must aim towards hastening the resolution of cases of enforced and involuntary disappearances in the region, as well as effectively preventing these violations in the future.
Sombath Somphone is the founder and former director of the Participatory Development Training Center (PDTC) and 2005 recipient of the prestigious Ramon Magsaysay Award for Community Leadership.
He also led Laos’ civil society groups in participating at the Asia-Europe People’s Forum (AEPF) held in October 2012.
He was last seen being stopped by local police at the Thadeau police station on 15 December 2012, at around 5:00pm.
His family has no information on his fate or whereabouts to this day.
“It should be an urgent concern for the AICHR to give sustained priority to this case and it should vigorously encourage the government of Laos to make every effort to locate him,” said Sam Zarifi, Regional Director of the ICJ for Asia and the Pacific.
“The AICHR should seize this case as a chance to address the issue of enforced and involuntary disappearances in the ASEAN,” Zarifi added. “It should use its mandate to formulate a common position on this issue, to push governments to resolve cases of enforced and involuntary disappearances in the region.”
Following his “disappearance”, the AEPF requested ASEAN parliamentarians to conduct a mission to Laos to investigate the case.
To that end, three parliamentarians from the Philippines, Indonesia, and Malaysia traveled to Laos from 13 to 15 January 2013 and spoke to high-level representatives of government about the “disappearance” of Sombath Somphone.
One of the parliamentarians, Mr. Charles Santiago, observed that the government of Laos had evinced no political will to resolve this case.
He noted the half-hearted efforts of police in investigating this case, as illustrated by the fact that they had only called in twice Ng Shui Meng, Sombath Somphone’s wife, since her husband had been missing.
On both occasions, she was asked questions irrelevant to the case, such as how long they had been married, whether or not they had children, and where they reside.
The parliamentarians made it clear that finding Sombath Somphone, a well-known civil society leader, is crucial.
As pointed out in a public statement by Mr. Walden Bello, the parliamentarian from the Philippines, “the immediate surfacing of Mr. Sombath is in the interest of all parties, of Mr. Sombath and his family, of the Lao PDR, and of the ASEAN.”
The ICJ recalls that all States, including Laos, have an obligation to conduct a prompt, thorough and independent investigation wherever there are reasonable suspicions of enforced or involuntary disappearance.
The ICJ also emphasizes that resolving the case of Sombath Somphone is important not only for Laos, but also for the ASEAN as a region.
His citation for the Ramon Magsaysay Award for Community Leadership indicates he is recognized for “his hopeful efforts to promote sustainable development in Laos by training and motivating its young people to become a generation of leaders.”
His work not only benefits the people of Laos, but also contributes to the aspiration of ASEAN as expressed in its Charter, which is that of ensuring “sustainable development for the benefit of present and future generations and to place the well-being, livelihood and welfare of the peoples at the center of the ASEAN community building process.”
Sombath Somphone is the kind of leader integral to the realization of this vision of the ASEAN.
Contact:
Emerlynne Gil, International Legal Advisor, International Commission of Jurists, Bangkok; m: +66 840923575, email: emerlynne.gil@icj.org
