Feb 27, 2017 | News, Publications, Reports, Thematic reports
The Government of Myanmar should impose a moratorium on the development of Special Economic Zones (SEZs) until it can ensure SEZs can be developed inline with international human rights laws and standards, said the ICJ at a report launch held today in Yangon.
The 88-page report, entitled Special Economic Zones in Myanmar and the State Duty to Protect Human rights, assesses the laws governing Myanmar’s SEZs and finds that the legal framework is not consistent with the State’s duty to protect human rights.
For example, a case study examining the Kyauk Phyu SEZ in Rakhine State shows that the land acquisition process initiated in early 2016 lacks transparency, does not comply with national laws on land acquisition, and risks violating the rights of 20,000 residents facing displacement.
“The SEZ Law undermines the protection of human rights, and critical legal procedures are often poorly implemented, so the Kyauk Phyu project risks repeating the rights violations that have been associated with SEZs in the past,” said Sam Zarifi, the ICJ’s Asia Director.
“The NLD-led Government can make a break from the past by ensuring economic development projects benefit Myanmar’s people, rather than rushing to facilitate projects which result in human rights violations and ultimately undermine sustainable development,” he added.
Myanmar’s legal framework for SEZs is based on the 2014 SEZ Law and incorporating national laws governing land, labour and the environment.
The report shows that while national laws require Environmental Impact Assessments and the application of international standards on involuntary resettlement, the SEZ Law does not establish clear accountabilities for the implementation of these procedures.
This has contributed to human rights violations and abuses in each of Myanmar’s three SEZs, the report says.
“It has been encouraging that government officials have emphasized their commitment to protecting human rights in SEZs in line with the rule of law,” said Sean Bain, the ICJ’s Legal Consultant in Myanmar and lead author of the report.
“The legal reforms recommended in this report will be critical to meet these commitments while fulfilling the State’s duty to protect human rights in SEZs. We also suggest that investors take heightened due diligence measures to ensure they are not complicit in rights violations,” he added.
The report was based on extensive legal research as well as interviews with over 100 people, from affected communities to investors and government officials, during 2016.
Key recommendations to the Government of Myanmar
- Protect human rights in Myanmar’s SEZs by amending the SEZ Law, through meaningful public consultation in accordance with international standards.
- Order a moratorium on the development of SEZs, and on entering related investment agreements, until the SEZ Law has been amended to ensure conformity with international human rights law and standards.
- Commission a Strategic Environmental Assessment for the Kyauk Phyu SEZ, in line with Myanmar’s environmental conservation laws. This would involve consultation to inform decision-making on the Kyauk Phyu SEZ and related projects, by identifying cumulative environmental and social impacts of all the developments in Kyauk Phyu, while considering conflict dynamics and economic development in Rakhine State.
- Suspend land acquisition in Kyauk Phyu until after the completion of a resettlement plan that is in line with international standards, as required in the EIA Procedure.
Contact
Sean Bain, ICJ Legal Consultant in Myanmar, t: +95 9263533230 ; e: sean.bain(a)icj.org
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-ENG (full report, in PDF)
Myanmar-SEZ assessment SUMMARY-Publications-Reports-Thematic reports-2017-ENG (executive summary of the report, in PDF)
Myanmar-SEZ assessment full-Publications-Reports-Thematic reports-2017-BUR (Burmese version of full report, in PDF)
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-BUR (Burmese version of the executive summary, in PDF)
Feb 24, 2017 | News, Publications, Reports, Thematic reports
The Indian authorities must end discrimination against people based on sexual orientation and gender identity in the formal justice system, the ICJ said in a report released today.
The 60-paged report “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity documents the challenges queer persons in India face while trying to access justice, starting from the impact of laws that criminalize people for their real or imputed sexual orientation and gender identity; to police harassment, violence and abuse; and to discrimination and other hurdles within the justice system.
Based on 150 interviews across nine cities in India, including with people who identified as lesbian, gay, bisexual, and transgender, the report uses the term “queer” to refer to any individual who identifies with a non-normative sexuality or gender identity.
It includes individuals who identify as lesbian, gay, bisexual, transgender, intersex and gender-queer, and also encompasses persons who may not fit into any of these identity categories.
“Criminalization, police violence, and the prejudiced attitudes of officials in the courts’ system have a profoundly detrimental impact on the ability and willingness of queer persons to resort to legal avenues to obtain justice,” said Sam Zarifi, ICJ’s Asia Director.
“The systemic discrimination and violence faced by queer persons in India, and the challenges they face accessing justice, are clearly contrary to India’s international human rights law obligations and the Indian Constitution,” he added.
The report also draws on responses from various government departments to ICJ’s requests under the Right to Information Act, both on the enforcement of the law against queer individuals and on gauging how legal entitlements have operated.
It describes how:
- Laws like Section 377 of the IPC and some other broad and vaguely formulated laws, such as those that criminalize sex work and begging, are used by the police to persecute people based on their real or imputed sexual orientation and gender identity, and inhibit queer persons from accessing justice.
- Even where the law purportedly provides legal entitlements and protections, queer persons continue to face a range of difficulties in accessing them.
- Police violence, abuse and harassment are one of the biggest barriers to queer persons’ access to the justice system in India.
- The challenges that lawyers who argue cases involving the human rights of queer persons combine with the biases of officials in the formal justice system compounding the difficulties queer persons face in obtaining justice.
“The inspiring work of activists and human rights lawyers in India has led to positive judicial decisions showing the potential of the law to affirm human rights and ensure justice for all persons, irrespective of their sexual orientation or gender identity,” Zarifi said.
“Indian authorities should build on this momentum and take immediate steps to end the discrimination and violence queer persons face,” he added.
The ICJ report makes a number of recommendations to Indian authorities, which include:
- Ensure that police officers promptly register and investigate any complaint regarding violence or any other criminal act filed by a queer person and/or on their behalf;
- Provide legal and sensitization training relating to sexual orientation and gender identity to lawyers and judges under the State and District Legal Services Authority along with outreach programmes to facilitate queer individuals’ access to the justice system;
- Repeal section 377 of the Indian Penal Code and vaguely worded criminal laws that invite discriminatory application, or substantially revise them to ensure there is no scope for abuse in their enforcement;
- Withdraw the Transgender Persons (Protection of Rights) Bill 2016 as currently drafted, engage in meaningful and substantial public consultation with members of the transgender community; and ensure that any process introduced for the legal recognition of gender identity is consistent with international human rights law and the NALSA.
Contact
Sam Zarifi (Bangkok), ICJ Asia Pacific Regional Director, t: +66 807819002; e: sam.zarifi(a)icj.org
Ajita Banerjie, ICJ Consultant in Delhi, t: +91 9920995526 ; e: ajita.banerjie@icj.org
Additional information
The Indian authorities have an obligation to respect, protect and fulfill the rights to equality before the law, equal protection of the law and freedom from discrimination; the rights to privacy, liberty and security of the person, including the right not to be subjected to arbitrary arrest and detention; the right to life, to freedom from torture and other ill-treatment; and the right to access justice and to an effective remedy, for all persons, including queer people, without discrimination as to their real or imputed sexual orientation and gender identity.
As the Supreme Court of India has reaffirmed, the Indian Constitution also guarantees several of these rights.
For example, in the seminal case of NALSA v UOI, the Court affirmed transgender persons’ right to their self-identified gender identity, based on the rights to equality, non-discrimination, freedom of expression and dignity.
India-SOGI report-Publications-Reports-Thematic report-2017-ENG (full report in PDF)
Feb 22, 2017 | News
The Pakistan Government must not bring back military courts to try civilians for terrorism-related offences, the ICJ said today.
An earlier law giving military courts authority to try civilians lapsed after two years on 6 January 2017.
The use of military courts to try civilians is inconsistent with international standards, the ICJ recalled.
“Evidence from practice clearly shows that not only have military trials of civilians been blatantly unjust and in violation of the right to a fair trial, they have also been ineffective in reducing the very real threat of terrorism in Pakistan,” said Sam Zarifi, ICJ’s Asia Director.
According to media reports, the draft amendment, if adopted, would extend the “exceptional” use of military courts for another three years. The ICJ fears that repeated extensions risk making the practice effectively permanent.
It would also give military courts jurisdiction over any offence considered to be an act of terrorism, a broader mandate than 2015 constitutional amendment, which was applicable only to “terrorism motivated by religion or sectarianism” and where the accused were “members of proscribed organizations”.
“Bringing back military courts deflects attention from the real issue: the Government’s complete failure to enact necessary reforms to strengthen the criminal justice system in the two years military courts were in operation,” Zarifi said.
“The Government must account for its failure to deliver on the promise of delivering justice for the victims of terrorism and other abuses in Pakistan instead of once again extending the “exceptional” use of military courts for civilian trials,” he added.
The Government has scheduled a meeting with opposition parties on 23 February in an attempt to achieve consensus over a constitutional amendment to restore military courts.
Constitutional amendments require a two-thirds majority vote in both houses of parliament to be enacted.
While the ruling party has the requisite majority in the National Assembly (lower house), it appears to lack the numbers in the Senate (upper house) to pass the amendment.
The Pakistan Parliament must stand up to the executive in defense of the rights of all people in Pakistan, instead of allowing the administration to bring back—and even expand—a discredited and abusive process, the ICJ says.
Pakistan passed the 21st amendment to the Constitution in January 2015, authorizing military courts to try civilians for terrorism-related offences for a period of two years. The 21st amendment lapsed on 6 January 2017.
Military courts have convicted 274 people in the two years since they have been used to try civilian terror suspects. . One hundred and sixty-one people were sentenced to death and 113 people were given prison sentences. At least 12 people given death sentences have been executed by hanging.
The ICJ has documented serious fair trials violations in the operation of military courts including: denial of the right to counsel of choice; failure to disclose the charges against the accused; denial of a public hearing; failure to give convicts copies of a judgment with evidence and reasons for the verdict; and a very high number of convictions based on “confessions” without adequate safeguards against torture and ill treatment.
The ICJ unequivocally opposes the use of the death penalty as a violation of the right to life and freedom from cruel, inhuman or degrading punishment.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (Lahore), t: +923214968434; e: reema.omer(a)icj.org
Feb 13, 2017 | News
The workshop, held from 11-12 February in Sittwe, brought lawyers and civil society together to discuss of experiences of strategic litigation elsewhere in Myanmar and the region, and consider potential public purpose litigation cases in Rakhine State.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser in Myanmar, provided an introduction to strategic litigation as a method for promoting accountability in a time of transition in governance.
He noted the critical role of independent lawyers in protecting human rights, by representing clients from all communities in Rakhine State.
And he emphasized the importance of strategic litigation as a means to prevent violations and abuses of human rights, or to seek reparations where violations and abuses have occurred.
Kingsley Abbot and Jintana Sakulborirak, from the ICJ’s Asia Regional Office in Thailand, discussed strategic litigation cases from the region, including in northern Thailand where community members have launched an action to appeal the legality of land acquisition for a planned SEZ in Tak Province.
The cases highlighted how media engagement is a critical part of strategic litigation, to raise public attention on human rights issues and demands for accountability in the implementation of investment projects.
Daw Aye Mon Thu, advocate from Dawei Pro Bono Lawyers Network presented the experiences of Heinda Mine cases from Dawei Region, Southern Myanmar, emphasizing the importance of trust-building and cooperation with local community as stake-holder. Such a strategic litigation cases are extremely rare in Myanmar.
Discussions followed about potential cases for strategic litigation from Kyauk Phyu and Sittwe, including issues related to land acquisition for railways construction and an SEZ appear to have been carried out unlawfully in violation of human rights.
Participants discussed the principle of undertaking litigation for broader advocacy objectives rather than solely focusing on actually winning the case in the court.
They also reflected on the challenges and limitations for Myanmar lawyers to undertake strategic litigation.
Highlighting the vital role of lawyers, speakers encouraged participants to consider strategic litigation as a means to challenge unlawful acts that violate or abuse human rights, particularly accompanying business enterprises.
Rakhine State is among Myanmar’s poorest and most isolated provinces, where lawyers and CSOs have had limited exposure to concepts of human rights and international laws.
This workshop, the first of its kind to be held in Rakhine State, is part of efforts to address this gap by building legal literacy on international human rights law and lawyers to consider litigation as a strategy to protect human rights.
Feb 13, 2017 | Advocacy, Non-legal submissions
The ICJ and Thai Lawyers for Human Rights (TLHR) have made a submission to the UN Human Rights Committee in view of its forthcoming review of the implementation of the International Covenant on Civil and Political Rights by Thailand.
In their submission, the ICJ and TLHR have brought to the Committee’s attention their concerns in relation to the following issues:
- Constitutional and legal framework within which the Covenant is implemented;
- States of emergency;
- Right to life and prohibition of torture and cruel, inhuman or degrading treatment or punishment;
- Right to liberty and security of the person, treatment of persons deprived of their liberty, right to a fair trial and independence of judiciary; and
- Freedoms of expression and association and right to peaceful assembly.
Thailand-ICCPR Submission ICJ-TLHR-Advocacy-Non legal submissions-2017-ENG (Full text in PDF)
Thailand-ICCPR Submission ICJ-TLHR-Advocacy-Non legal submissions-2017-THA (Thai version, in PDF)
