This newsletter informs you on recent activities and ongoing situations related to the ICJ’s work on the independence of the legal profession.
Myanmar needs an effective legal system, and so do its foreign investors
An opinion piece by Sam Zarifi, ICJ’s Asia-Pacific Regional Director and Benjamin Zawacki, ICJ Senior Legal Adviser for Southeast Asia.
The controversy surrounding Aung San Suu Kyi and a joint-venture copper mine project in Myanmar should give prospective foreign investors pause. It should also prompt the international community to help the country establish a legal regime on which both investors and the people of Myanmar can rely for protection of their rights.
A Government-backed investigation into the mine project, chaired by Suu Kyi, concluded that security forces used chemicals against villagers protesting against it. It also recommended additional impact assessments, and either increased compensation or the return of farmland allegedly taken via fraud and coercion.
But, crucially, it concluded that the project should continue. Villagers vehemently disagreed and vowed to pursue a lawsuit.
Myanmar’s Government has a duty to protect workers, consumers, landholders and indigenous people against rights violations. Despite recent steps, however, there are not enough lawyers, judges and others adequately trained to monitor economic activity and provide accountability for violations of laws governing corporate action.
Corporations have a strong interest in supporting the development of robust accountability mechanisms in Myanmar. Many now considering investing participate in a global corporate citizenship initiative known as the UN Global Compact, which asks its members to take action prior to investing, such as human rights and environmental impact assessments, and to monitor business activity once under way. Yet all the compact’s “commitments” are non-binding. And even strict adherence would not serve as a defence for companies accused of committing human rights and environmental violations.
Increasingly, transnational corporations may be held legally responsible for abuses in the country where they occurred, and also in their home country. Western companies are the most vulnerable, but the copper mine case shows Asian enterprises are not immune: the mine’s other joint-venture partner is the Chinese Wan Bao mining company, a subsidiary of weapons manufacturer Norinco. The copper mine controversy also shows that the line between “government” and “company” in Myanmar can be blurry; large joint ventures often include the military-owned Union of Myanmar Economic Holdings Company. Indeed, the army is deeply involved in many companies and has a long record of human rights and humanitarian law violations.
In one landmark case, villagers sued Unocal in a US court for complicity in security forces’ human rights violations during the construction of the Yadana gas pipeline. The case was settled in 2004 before a final decision on liability was reached. What made it significant – and still relevant – is that the US law used is not limited to US corporations. The Unocal case was allowed to progress in the US because the courts found that the judicial system in Myanmar was not independent of the military government of the time and therefore could not provide a proper venue for a lawsuit.
Today, despite ongoing legal reform, there is a long way to go to rebut this finding. The copper mine case presents an opportunity for the judiciary to demonstrate whether it can render just decisions. Investment in Myanmar, if done lawfully and with reliable legal remedies, can be a strong force for good. The international community should support Myanmar’s reformers in making this happen.
(This article first appeared in the South China Morning Post print edition on 28 March 2013 as “Effective justice in Myanmar protects foreign investors, too”.)
Southern Africa: Induction seminar for new judges
29-30 August: The ICJ, in conjunction with the Southern Africa Chief Justices’ Forum and the Africa Judges’ and Jurists’ Forum, organized an induction seminar for new judges in Johannesburg. Participants included judges from South Africa, Botswana, Mozambique, Namibia, Lesotho, Swaziland, Mauritius, Seychelles, Kenya, Tanzania, Uganda and Zambia. The seminar’s sessions covered a wide range of topics including judicial independence and accountability, deontology and professional skills.
21 August: The ICJ called on the Government of the Kyrgyz Republic to take urgent measures to prevent repeated attacks on lawyers, following reliable reports of an assault on two lawyers in a court in the south of the country, the latest in a series of such incidents. The ICJ expressed concern that the Government has consistently failed to take measures to prevent these attacks, or to promptly and effectively investigate them and bring perpetrators to justice.
12-13 August: Women judges from across Africa participated in the first ICJ Colloquium on Women and the Judiciary held in Arusha, Tanzania, in collaboration with the Tanzania Women Judges Association and the Judiciary of Tanzania. Themes included amongst others the importance and role of women within the judiciary and independence and impartiality issues affecting women judges. The Colloquium marked the beginning of an ICJ multi-year initiative on women judges, lawyers and human rights defenders as agents of change.
12 August: The ICJ called for the immediate release of Adilur Rahman Khan, a prominent Supreme Court lawyer and human rights defender and Secretary of Odhikar, a Bangladeshi human rights organization that has documented human rights violations allegedly carried out by the Bangladeshi security forces. The ICJ considers he is being charged for the lawful exercise of the right to freedom of expression and has therefore called on authorities to immediately and unconditionally drop all charges.
27 July: The ICJ strongly condemned the murder of Judge Mireya Mendoza Peña on 23 July in El Progreso, Departamento del Yoro in Honduras. Attacks against judges and legal professionals do not just constitute grave crimes in and of themselves, but also undermine the rule of law and the administration of justice in Honduras. The ICJ called on the authorities to conduct a prompt, effective and impartial investigation into the murder, and to take the necessary measures to protect legal professionals against intimidation and attacks.
9 July: The ICJ called for the immediate release of Le Quoc Quan, after the People’s Court of Hanoi announced the postponement of his trial, without setting a new date. The ICJ considers his continued detention to amount to a violation of Vietnam’s penal law and the State’s international human rights obligations.
2 July: The ICJ called on UAE authorities to take urgent measures to ensure the setting aside of the convictions of 68 individuals in the “UAE-94” case, and to immediately and unconditionally release those detained, as well as withdraw any remaining charges against each of the 94 accused. Their trial did not comport with international law and standards governing fair trials. The detainees also reported being subjected to torture and other ill-treatment. These allegations were not investigated and, instead, information obtained as a result of torture and ill-treatment was heavily relied on in court as “evidence”. Two ICJ observers, together with other international observers and media, were denied access to the first and second hearings, in contravention of international standards on the right to a public hearing. Their report can be found here.
27 June 2013: The ICJ welcomed the decision by the High Qualification-Disciplinary Commission to reinstate Larisa Gerasko, who was previously disbarred because of her involvement in seeking to register a local lawyers’ association.
7 June: The ICJ expressed grave concern at death threats received by lawyers Sapiyat Magomedova and Musa Suslanov, especially taking into account the recent murder of a lawyer in Dagestan which allegedly involved the security forces. The ICJ called on Russian authorities to promptly, independently and thoroughly investigate these threats and to bring the perpetrators to justice in fair trials.
4-5 June: The ICJ organized an international conference on impunity and independence of the judiciary in Guatemala, bringing together judges from Central America. The conference was followed by a public debate on the role of judges in confronting the phenomenon of impunity.
Asia Pacific: Judicial Dialogue on HIV, human rights and the law
2-4 June: UNAIDS, UNDP and the ICJ co-hosted a Judicial Dialogue, which brought together some thirty judges from the highest national courts from sixteen countries in Asia and the Pacific. At this first conference of its kind in the region, participants discussed specific actions that can be taken to create a more supportive legal and social environment for people living with and vulnerable to HIV.
21 May: The ICJ condemned the decision by the Constitutional Court of Guatemala, partially annulling the judgment and the trial in the case of Efrain Rios Montt. The ruling constitutes a serious setback in the search for justice for gross human rights violations committed during the internal armed conflict in Guatemala.
16 May: The ICJ in collaboration with Rechters voor Rechters (Judges for Judges) observed an appeal hearing in the Supreme Administrative Court in Sofia, in the case of the dismissal of Judge Todorova. Judge Todorova, who served on the Sofia City Court, is known for her critical commentary on the problems in the Bulgarian judiciary.
13 May: The ICJ published a recommendation on a draft law introducing amendments to the judicial disciplinary system in the Russian Federation. While acknowledging a number of positive changes, the ICJ regrets that the opportunity was not seized to introduce more comprehensive reform legislation addressing the weaknesses in the disciplinary system that allow for abuse.
3 May: The ICJ strongly condemned the serious death threats against Justice Kalthoum Kennou, judge on the Court of Cassation, President of the Tunisian Association of Magistrates, and ICJ Commissioner. Furthermore, the ICJ condemned all acts of intimidation against the judiciary and human rights defenders in Tunisia and called on the authorities to initiate the necessary investigations and inquiries to find, prosecute and punish the perpetrators.
16 April: The ICJ, with FIDH and EMHRN, called on Moroccan authorities to comprehensively reform the judiciary in order to bring it in line with international standards. Pursuant to a high-level mission in the country, the organizations formulated twenty specific recommendations in a memorandum addressed to authorities, pertaining to ending executive control over the Higher Judicial Council, reforming the statute of magistrates, ensuring the independence of prosecutors and removing the jurisdiction of military courts over civilians.
15 April: The ICJ held a roundtable seminar at the High Arbitration Court in Moscow, with judges of the Russian Federation’s highest courts, on disciplinary action against judges, following the 2012 ICJ report on the matter. The roundtable considered the Russian system in light of comparative experiences in other jurisdictions, as well as the ICJ’s findings and proposals for reform.
8 April: The ICJ condemned the decision by Vietnam’s Hai Phong court to sentence Doan Van Vuon and three of his male relatives to imprisonment sentences ranging from two to five years for attempted murder, after proceedings that blatantly disregarded the right to a fair trial.
5 April: The ICJ urged the Cambodian Bar Association to make clear that its new Code of Ethics does not restrict the freedom of lawyers to express their opinions, in light of the ambiguity of the Code’s provisions regarding media statements made by lawyers. The ICJ has since welcomed the clarification provided by the Bar Association that the provision at hand does not make it mandatory for lawyers to consult with it prior to speaking to media.
2 April: The ICJ expressed serious concern at the physical assault on Tatiana Tomina and Ulugbek Usmanov at a Supreme Court hearing in Bishkek. The ICJ called on the authorities to take effective measures to protect the physical security of lawyers and other parties in court proceedings, and to ensure accountability for those responsible for the attack.
CONTACTS AT CIJL:
Matt Pollard, ICJ Senior Legal Adviser, t +41 22 979 3812, matt.pollard(a)icj.org
Ilaria Vena, ICJ Associate Legal Adviser, t +41 22 979 3827, ilaria.vena(a)icj.org
Laurens Hueting, ICJ Associate Legal Adviser, t +41 22 979 3848, laurens.hueting(a)icj.org