Mar 21, 2016 | News
The Maldives must stop undermining the independence and integrity of the judiciary through arbitrary and politically motivated actions against judges, the ICJ said today.
“The ICJ visited the Maldives last month for the second time in a year, and we were dismayed to see that the Maldives government has continued to erode the rule of law and weaken the independence of the judiciary,” said Nikhil Narayan, ICJ’s Senior Legal Adviser for South Asia.
“The government must immediately stop targeting judges and other public officials with arbitrary criminal proceedings, threats, intimidation and harassment,” he added.
On 7 February, Magistrate Judge Ahmed Nihan was arrested, along with former Prosecutor General and former Criminal Court Judge Muhthaz Muhsin, in connection with an alleged ‘forged’ arrest warrant against President Yameen.
“The arrest of a judge for issuing a warrant, a function which is well within the ordinary powers and responsibilities of the judiciary, clearly violates basic principles of judicial independence,” Narayan further said. “The fact that the alleged warrant was against the President further suggests that Judge Nihan’s arrest was politically motivated.”
“Moreover, the severity of a charge of ‘terrorism’ for such an act, even if taken at face value, cannot reasonably be viewed as proportionate to the alleged offense,” he added.
On 16 March, more than a month after his arrest, Judge Nihan was charged under sections 4(a)(1)-(2) and 5(a)(2) of the Prevention of Terrorism Act, for attempting to unduly influence the state, attempting to create fear among the public, and attempting to forcefully disappear or hold a person hostage.
The Constitution of the Maldives does not provide immunity for the president from criminal accountability even while still in office.
The ICJ was also concerned to find during its visit that Maldivian authorities have continued to undermine the independence of the judiciary by using the threat of transfer or removal of judges as a tactic of political retribution, harassment and intimidation.
On 14 February, former Criminal Court Chief Judge Abdullah Mohamed was abruptly transferred from the Criminal Court to the Family Court following a sudden and late night meeting of the Judicial Service Commission (JSC), without being given an opportunity to appear on his own behalf during the meeting.
While the JSC has given no reasons for its decision, lawyers, human rights defenders and former government officials with whom the ICJ spoke suggested that the transfer had been taken in retaliation for Judge Abdullah’s failure to remand former Prosecutor General Muhsin following his arrest.
It was also suggested by those interviewed that a further motivation for the transfer was to ensure that Judge Abdullah could not indirectly influence the three-judge bench hearing the former Vice President’s criminal case in favor of the defendant. Judge Abdullah was reported to have close ties with both defendants.
In June 2015, Judge Azmiralda Zahir, one of only three female judges in the entire Maldivian judiciary and the only woman on the High Court, was arbitrarily and unexpectedly transferred by the Supreme Court from the Malé appellate bench to the southern regional bench, a transfer that amounts to a demotion, without formal notice or opportunity to challenge her transfer.
The Supreme Court has neither established clear criteria for its decision-making process in such matters nor informed Judge Zahir of the reasons for her transfer, of which she learned through media reports, despite repeated requests by her to both the Supreme Court as well as the JSC, the ICJ says.
“President Yameen’s government must quickly take genuine steps to restore the rule of law, strengthen the independence and integrity of the judiciary and restart the democratic transition process,” said Narayan.
Contact:
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Read also:
Maldives: political crisis erodes rule of law and human rights
Maldives: arrest of Judge Ahmed Nihan further erodes judicial independence
Mar 21, 2016 | News
Thailand’s National Council for Peace and Order (NCPO) must end its interference in the elections of the president and committee members of the Lawyers Council of Thailand (LCT), the ICJ and Thai Lawyers for Human Rights (TLHR), said today.
The LCT in turn must ensure the elections are conducted in a fair and impartial manner.
“International standards explicitly prohibit external interference in the elections of the executive body of a lawyers’ professional association by its members, and the association’s leadership must ensure that such elections are conducted in a fair and impartial manner” said Matt Pollard, the Head of the ICJ’s Centre for the Independence of Judges and Lawyers. “Ensuring the independence and democratic representation of the legal profession is essential to safeguarding human rights and the rule of law, especially in the current circumstances of military rule in Thailand.”
On 29 February 2016, Mr Wichien Choobtaisong, a representative of the electoral group of the current LCT President, Mr. Dej-udom Krairit, wrote to the NCPO “seeking permission” to hold meetings and campaigns for the LCT’s regularly-scheduled elections, referring to the NCPO’s ban on political gatherings of more than five persons.
On 16 March 2016, the NCPO replied, stating that the elections “contradict” the ban on political gatherings, which “must apply equally to all groups and sectors in the interest of maintaining national security during the transition period,” and taking the position that that the elections must accordingly be postponed with the current committee continuing its term until elections are held. The NCPO’s reply also notes it received a letter from the LCT on 14 December 2015, which the ICJ and TLHR have not seen.
In its letter, the NCPO referred to NCPO Announcement 7/2014, which bans the political gathering of more than five persons (Announcement 7/2014 was later replaced by Order 3/2015). The ICJ reiterates that these arbitrary and unjustified orders and announcements should be repealed, and calls on the NCPO, in any event, to immediately withdraw its letter of 16 March, replacing it with written confirmation that the LCT elections will be able to proceed as scheduled, without external interference.
The LCT must then put in place procedures to ensure the elections proceed as scheduled and in a fair and impartial manner.
“Since the military took power, we have seen a marked increase in the number of individuals requiring legal aid for sensitive and political cases,” said Yaowalak Anuphan, the Head of TLHR and member of the LCT. “In this environment, it is even more essential that the Lawyers Council of Thailand is able to exercise its functions without external interference and that everyone has effective and equal access to the legal services of lawyers.”
Contacts
In Bangkok: Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
In Geneva: Matt Pollard, ICJ Senior Legal Adviser, t: +41 22 979 38 12 ; e: matt.pollard(a)icj.org
Background
The Lawyers Council of Thailand was established in 1957. Its mandate and responsibilities are set out in the Lawyers Council Act 1985.
The objectives of the Council include maintaining the ethics of lawyers, promoting legal education and providing legal assistance.
It also registers lawyers and issues them with licenses to practice law in Thailand. Members of the Council elect the president and committee members every three years.
Article 24 of the Basic Principles on the Role of Lawyers, adopted by the UN in 1990, sets out that: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.
The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Among other things, the UN Basic Principles also affirm that ensuring all persons have effective access to legal services provided by an independent legal profession is essential for adequate protection of human rights and fundamental freedoms.
They note the vital role of professional associations of lawyers including in protecting their members from persecution and improper restrictions and infringements. The Basic Principles specify that governments should respect and reflect the provisions of the Basic Principles in their national legislation and practice.
The UN Human Rights Committee has applied the Basic Principles as a necessary component of the right to a fair trial guaranteed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party.
The UN Committee will review Thailand’s compliance with the ICCPR at an upcoming meeting.
Thailand-ICJ and TLHR statment on LCT-News-press releasess-2016-THA (full text in Thai, PDF)
Mar 17, 2016 | Advocacy, Non-legal submissions
The ICJ today joined with the International Bar Association’s Human Rights Institute to make an oral statement on judges & lawyers in Myanmar, during the consideration of its Universal Periodic Review outcome by the UN Human Rights Council.
The statement:
“The International Bar Association’s Human Rights Institute (IBAHRI) and the International Commission of Jurists welcome Myanmar’s decision to accept recommendations made at the Universal Periodic Review relating to the administration of justice and the independence of the legal profession and call on the Government of Myanmar to implement the recommendations which it has accepted ‘in principle’ to reform the Bar Council Act to allow for the Bar Council to become a truly independent and self-governing association.
In order to ‘guarantee in law and practice that lawyers and judges can perform their professional functions without improper interference and legally form and join self-governing associations’, we call for the right to join such associations to be enshrined in law, and that the right of the first Independent Lawyers’ Association of Myanmar (ILAM) to register as an association be respected;
In order to ‘define professional legal standards and disciplinary procedures in conformity with the Basic Principles on the Role of Lawyers’, we call upon the government of Myanmar to engage in a consultation process with the legal profession and other stakeholders in relation to the revision of the Bar Council Act. The government should also commit sufficient funds to allow for the funding of the system created by the new Legal Aid Law.
We are encouraged by and support efforts by the Office of the Supreme Court of the Union to draft and implement a Code of Judicial Ethics.
Finally, we urge the Government to improve legal education and continue legal professional development including with regard to international human rights law and the UN human rights mechanisms.
We are glad to provide support in the realisation of these recommendations and will look for collaboration with the Government to that end.”
Mar 17, 2016 | News
The Indonesian House of Representatives should reject proposed amendments to the country’s Anti Terrorism Law that would actually contravene international law, said the ICJ and other human rights groups today.
“The horrific recent attacks in Jakarta highlight the Indonesian government’s obligation to protect people from acts of terrorism, but experience from around the world has shown that countering terrorism must occur along with protection of human rights, not in violation of Indonesia’s legal obligations,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
The ICJ, the Commission for the Disappeared and Victims of Violence (KontraS), and the Indonesian Human Rights Monitor (IMPARSIAL) noted that the proposed amendments would authorize unnecessarily prolonged detention of suspects, putting them at risk of torture, ill-treatment, enforced disappearance, and arbitrary detention.
The amendments also include a provision on administrative detention.
“This is generally forbidden in international law, save in the most exceptional circumstances far narrower than as contemplated under the amendments,” Zarifi added.
A letter sent by the organizations to the House of Representatives lays out recommendations on how this provision may be revised so that it would not violate the rights of detainees.
“There is no reference anywhere in the amendments how detainees may challenge the lawfulness of their detention. It has to be clear in the law that these remedies are available to them,” said Haris Azhar, National Executive Coordinator of KontraS.
The three organizations also underline the amendment proposing stripping Indonesian combatants abroad of their nationality would be contrary to international law, if this would render them stateless.
“Nationality is what legally binds an individual to a particular State. It is an essential prerequisite to the enjoyment and protection of the full range of human rights,” said Poengky Indarti, board member of IMPARSIAL.
They also said that the proposed provision on incitement to terrorism would unduly limit political speech, especially those that are contrary to the views of persons wielding power and authority, such as opinions on self-determination or changes to the legal and constitutional structures.
The proposed amendments impose the death penalty on particular offences.
The ICJ, IMPARSIAL, and KontraS oppose capital punishment in all cases without exception, as it is a violation of the right to life and the right not to be subjected to cruel, inhuman, and degrading treatment.
In the letter, they remind the government of Indonesia to immediately impose a moratorium on the use of the death penalty, with a view to moving towards its total abolition.
The ICJ, IMPARSIAL, and KontraS urged the members of Indonesia’s House of Representatives to keep in mind that whatever measures Indonesia uses to counter terrorism must comply with international law and protect human rights.
Contact:
Emerlynne Gil, ICJ’s Senior International Legal Adviser (Bangkok), t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Fatia Maulidiyanti, S.IP, International Desk of KontraS (Jakarta), t: +62 21 391 9097/98 ; e: fatia(a)kontras.org
Poengky Indarti, Member of the Board of IMPARSIAL (Jakarta), t: +62 812 8362 8659 ; e: poengky1970(a)gmail.com
Indonesia-Letter to Gvt-Advocacy-Open letters-2016-ENG (full text of letter, in PDF)
Mar 16, 2016 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement to the UN Human Rights Council, on the Universal Periodic Review of Nepal.
“The ICJ is concerned that the Government of Nepal has yet to implement many of the recommendations it accepted during the first UPR cycle, including several that reflect its international legal obligations regarding the new Constitution, investigation and prosecution of serious crimes, and establishment of credible transitional justice mechanisms.
The police continue to refuse to investigate conflict-era cases even when explicitly ordered by courts to do so. The transitional justice commissions do not enjoy the support of the victims and human right organizations, a year into their two-year mandate. Victims’ rights to truth, justice and reparation are not being respected, protected and fulfilled.
More than 59 persons, including 10 police personnel, were killed during recent protests, but as yet we are not aware of any impartial and effective investigation of the killings.
Many serious crimes under international law, including torture and enforced disappearance, still are not recognised as crimes under the Nepali penal code.
The ICJ therefore calls upon the Government to reconsider its position, and to accept and implement the UPR recommendations arising from this cycle, relevant to:
- Strengthening the constitutional protection of human rights;
- Amending the Truth and Reconciliation Commission Act, 2014, in line with international standards and Supreme Court orders;
- Establishing a credible transitional justice process;
- Preventing, investigating, and responding effectively to any use of excessive force by security forces;
- Ensuring prompt, independent and impartial investigations and, prosecution in cases of unlawful killings, whether the perpetrators are security forces or protesters;
- Amending the Penal Code to explicitly incorporate serious crimes under international law; and
- Ratifying relevant treaties, and accepting requests for visits of the Working Group on Enforced Disappearances, and Special Rapporteur on the right to truth.”
A more detailed written statement may be downloaded in PDF format here: HRC31-Advocacy-WrittenStatement-Nepal-2016
