Feb 17, 2021 | News, Non-legal submissions
In a joint letter to the President of the Lawyers Council of Thailand, the ICJ and Lawyers for Lawyers raised concerns on the disbarment proceeding against Mr. Anon Nampha, a lawyer and human rights defender. The organisations believe that the proceedings unduly interfere in his work as a lawyer and serves to impair the exercise of his human rights, including the right to freedom of expression.
Dear President of the Lawyers Council of Thailand,
Re: Disbarment Proceedings Against Mr. Anon Nampha
Lawyers for Lawyers is an independent and non-political foundation that seeks to promote the proper functioning of the rule of law by pursuing freedom and independence of the legal profession.
International Commission of Jurists (ICJ), a global non-governmental organization composed of 60 eminent judges and lawyers, works to advance understanding and respect for rule of law as well as the legal protection of human rights throughout the world.
We write to your office concerning the disbarment proceeding against Mr. Anon Nampha, a lawyer and human rights defender, that is taking place before the Investigative Committee that was established by the Committee on Professional Ethics of the Lawyers Council of Thailand during the Meeting No. 1/2564 on 13 January 2021. We are concerned that the proceeding unduly interferes in his work as lawyer, including in representation of clients, and serves to impair the exercise of his human rights, including the right to freedom of expression.
According to our information, we understand that the proceeding against lawyer Anon Nampha is related to a complaint motion filed to the Lawyers Council of Thailand on 7 August 2020 by Mr. Aphiwat Khanthong, Assistant Minister in the Office of the Prime Minister, claiming to be acting in his capacity as a private attorney at Or Amporn Na Takua Tung and Friends Law Office. Mr. Aphiwat Khanthong alleged that lawyer Anon Nampha’s behaviour violated the Lawyers Council of Thailand’s disciplinary rules as, he claims, it would “incite, intend to cause unrest, distort information and insult on the monarchy”. The alleged speech in question apparently called for reform of the monarchy, during a Harry Potter-themed protest at the Democracy Monument on Ratchadamnoen Avenue on 3 August 2020.
Under international law and standards, lawyers, like other individuals, enjoy the right to freedom of expression, belief, association and assembly. A lawyer should be able to draw the public’s attention to issues relating to public affairs in their official capacity as well as in their private capacity. Suspensions or revocations of lawyer licenses as a result of exercise of their legitimate rights and freedoms do not only impact on the exercise of the rights of the lawyers, but also on the rights of their clients to be represented by the lawyer of their choosing.
Download the full letter in English and Thai.
Feb 12, 2021 | Advocacy, Non-legal submissions
The ICJ today addressed an emergency Special Session of the UN Human Rights Council on Myanmar, outlining violations to human rights and the rule of law occurring in the country since the coup d’état of 1 February.
The Special Session is expected to adopt a resolution to address “The human rights implications of the crisis in Myanmar.”
The ICJ statement read as follows:
“Madame President,
The International Commission of Jurists condemns the Myanmar military’s unlawful seizure of authority and the unconstitutional declaration of a state of emergency on 1 February.
These actions defy core rule of law principles and provide an illegitimate basis for the suspension and erosion of human rights.
Nearly 200 people, including human rights defenders, have been arbitrarily detained, some in unknown locations. Security forces have used excessive force against peaceful protesters, causing serious injuries.
Regulations imposed pursuant to the state of emergency grant military forces nearly complete impunity. Furthermore, these regulations suspend crucial judicial remedies for violations of rights, such as the writ of habeas corpus.
Judges, including from the Supreme Court, have been illegally removed and replaced, undermining the independence of an already embattled judiciary.
The military takeover further endangers the already grave situation of the Rohingya community.
The ICJ calls on the Human Rights Council to urge the military to immediately return authority to the civilian government and allow immediate access to the Special Rapporteur on Myanmar and other special procedures, the OHCHR, and the Independent Investigative Mechanism for Myanmar, whose mandate includes investigating all serious human rights violations.
Member States should take necessary measures to ensure truth, justice and accountability for crimes under international law, including by supporting all relevant accountability mechanisms.
Thank you.”
Feb 12, 2021 | Advocacy, News
The Myanmar military should immediately abandon the draft Cyber Security Law and end Internet restrictions it has imposed since taking power in a coup on 1 February, said ARTICLE 19, Open Net Association, and the ICJ today.
“It is telling that controlling cyberspace is one of the top priorities of the Myanmar military, which seized power through an illegitimate coup d’etat only last week,” said Sam Zarifi, ICJ’s Secretary General. “The military is used to having total power in Myanmar, but this time they have to face a population that has access to information and can communicate internally and externally.”
Under international law, the rights to freedom of expression and information may only be restricted if prescribed by law, in pursuit of a legitimate aim, and necessary and proportionate to that aim. This right applies equally online. In 2018, the UN Human Rights Council condemned ‘all undue restrictions on freedom of opinion and expression online that violate international law’.
“Having illegally seized control of government, the military is trying to ram through a hugely problematic law that would imperil the Myanmar public’s ability to share and access information online,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “The draft law is further evidence of the military’s intent to control online discourse and permanently undermine Internet freedom in the country.”
Human rights bodies and experts have repeatedly condemned Internet shutdowns, which are inherently unnecessary and disproportionate irrespective of their purported objectives. Four UN special procedures with mandates from the Human Rights Council stated in their 2011 Joint Declaration on Freedom of Expression and the Internet that, ‘Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds’. The UN Human Rights Council has repeatedly called on Myanmar to lift Internet restrictions in the country.
Anonymity is furthermore crucial to protecting the right to freedom of expression and other human rights, including the right to privacy. UN Human Rights Council Resolution 38/7 recognizes that ‘privacy online is important for the realization of the right to freedom of expression and to hold opinions without interference, and the right to freedom of peaceful assembly and association’. The UN Special Rapporteur on freedom of expression in a 2015 report stated that restrictions on encryption must confirm to the three-part test on restrictions to the freedom of expression noted above.
“The ban on online anonymity in the cybersecurity law is not just bad for Myanmar but sets a dangerous precedent for the whole of Asia”, said Kyung Sin Park, Executive Director of Open Net Association, whose founders spearheaded a successful constitutional challenge against a similar law in South Korea in 2012. “The content takedown provisions and criminalization of online speech in the draft law are extremely broad and utterly lacking due process even in comparison to other Asian countries. The proposal smacks of a legislative attempt to extend the powers the military had taken in an unlawful, anti-democratic coup.”
ISPs, online service providers (as defined by the draft law to mean content providers) and other stakeholders have only been given until 15 February for input. This is a clear indication that the military has no intention of engaging in meaningful consultation.
On 10 February, a group of 158 Myanmar civil society organizations released a statement rejecting the draft Cyber Security Law, while reiterating their view that the Myanmar military could not legitimately exercise legislative authority.
“All online service providers inside and outside the country should be alarmed at this intrusion of military authority into cyberspace and refuse to implement these hugely problematic restrictions,” said ICJ’s Sam Zarifi.
SPECIFIC PROBLEMATIC PROVISIONS OF THE DRAFT CYBERSECURITY LAW (based on an unofficial translation of the draft law):
Many provisions in the draft law are vague and overbroad, in contravention of the principle of legality. If enacted, the draft law would greatly extend the powers of military authorities to restrict and punish online expression.
The law provides overarching control to the military’s ‘State Administration Council’, a newly-formed body appointed by the Commander-in-Chief. The direct military control of Internet service provision and its role in the policing of content online is in and of itself cause for alarm. Further, the military should in no circumstances be charged with protecting personal data.
Section 29 of the draft law is overly broad as it demands the prevention, removal, destruction and cessation of a broad and vaguely defined range of expression, including online comments deemed ‘misinformation’ or ‘disinformation’, any expression that causes hate and risks disrupting unity, stability, and peace, and ‘written and verbal statements against any existing law’.
Under section 64, any person convicted of creating ‘misinformation’ and ‘disinformation’ with the intent of causing public panic, loss of trust or social division in cyberspace is punishable by three years’ imprisonment, a fine, or both.
International human rights bodies have repeatedly urged governments against laws that create ‘false news’ offences, warning about their potential abuse by governments to suppress criticism and other forms of speech protected by international human rights law.
Section 30 threatens the right to online anonymity by requiring online service providers to retain usernames, IP addresses, national IDs, and other personal data for up to three years, and to provide this information to authorities upon request. For this purpose, Section 28 requires an online service provider to ensure that any device that stores the user’s information must be kept in a place designated by the relevant Ministry.
The draft law also has overly broad catch-all provisions in Sections 61 and 73 respectively whereby online service providers that fail to comply with any provisions of the draft law face a maximum penalty of three years’ imprisonment and a fine and individuals failing to comply with any rules, regulations, notifications, orders, directives, and procedures issued under the draft law are subject to one year’s imprisonment and a fine. These sanctions which are punitive in purpose and effective are non-compliant with the requirement of proportionality under international human rights law and standards on freedom of expression.
The draft law also provides for enhanced power to control the Internet without the benefit of judicial review by independent civilian courts. In the ‘public interest’, a ministry approved by the State Administration Council may temporarily prohibit any online service or take control of devices related to online service provision, as well as permanently ban any online service provider. This is a less stringent standard than that provided under the problematic and much-criticized section 77 of the Telecommunications Act, which allows for shut downs or control of telecommunications in an ‘emergency situation’.
Download
Statement in Burmese.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Feb 11, 2021 | News
The ICJ today condemned the unlawful repression of peaceful protests and urged the Indian authorities to respect the right to freedom of assembly of Indian farmers who have been demonstrating in Delhi since November 26, 2020 against newly promulgated agricultural laws.
Since early February 2021, police have used metal barricades, cement walls and iron nails to block the roads leading to Tikri, Singhu, Ghazipur, the three main borders where the farmers have assembled. They have done so to prevent any vehicles from these areas entering Delhi. The barricades have also served to deny male and female farmers and their families, including children, consistent access to water and sanitation facilities. The protests at these sites over the past two months are reported to have been peaceful.
Thousands of farmers from all over India, and most heavily from Punjab, Haryana and Uttar Pradesh, have demanded the repeal of a new set of agricultural laws, fearing that these will serve to eliminate government protections for crop prices and thereby impact their livelihoods.
Two journalists were detained and assaulted for reporting from the ground, while nine senior journalists have been threatened with criminal charges including sedition charges by the Indian Government. More than 125 persons, including farmers and also bystanders have reportedly been arrested largely in response to a violent clash that occurred on 26 January 2021. At least 21 farmers are reported to be currently missing.
“Rather than protecting the right to peaceful protest as required by law, the Indian authorities have cracked down on farmers in an arbitrary and aggressive manner, using unlawful force and preventing free movement as well as access to essential facilities”, said Ian Seiderman, ICJ’s Legal and Policy Director.
The Indian Supreme Court on 17 December 2020, upheld the right to protest of farmers calling it “part of a fundamental right” which can be exercised “subject to public order”. The Court has further said that “[t]here can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”
“The suppression of the right to peaceful assembly has become a pattern in India, as we saw in December 2019 and January 2020 with the mass arrests of students and human rights defenders who were protesting against the Citizenship Amendment Act,” said Seiderman.
The ICJ called on the responsible authorities to remove barricades around protest sites, enable access to water and sanitation facilities and to desist from further arbitrary arrests.
Background
The three contentious farm laws being the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and Essential Commodities (Amendment) Act, 2020 were brought in through executive ordinance without legislative consultation and adequate scrutiny and received presidential assent on 27 September 2020.
Farmer unions from Punjab, Haryana and Uttar Pradesh began to set up protest sites on the borders of Delhi on 26 November 2020. There have been a series of unsuccessful negotiations between the Ministry of Agriculture and Farmers Welfare and the farmer representatives. In response to the protests, the Indian Supreme Court on 12 January ordered the suspension of the “implementation of the three farm laws until further orders”. The Court set up a four-person expert committee to negotiate between farmers and the Government. However the committee’s efforts have become stalled.
On 26 January, India’s Republic Day, some tens of thousands of farmers drove into Delhi in tractors, with some protestors deviating from the sanctioned routes permitted by the Delhi Police. There were clashes with the police where one protestor was killed in the violence, and nearly 400 policemen were injured. Some protestors also entered the Red Fort, an historical monument, and hoisted the Sikh religious flag on a flagpole.
On 29 January, police and at least some private forces tried to forcibly disperse the protests on Ghazipur, Singhu and Tikri borders through stone pelting and baton charging. Farmer protestors allege that the some of those working with the police were associated with Rashtriya Swayamsevak Sangathan (RSS), the ideological outfit associated with the ruling party Bhartiya Janata Party.
On 6 February there was a three-hour blockade on state and national highways placed by farmers throughout large parts of India in protest against the agricultural laws, the government’s measures against the protestors and the reduction of budgetary allocation for farmers.
Freedom of assembly is protected under the International Covenant on Civil and Political Rights, to which India is a party.
Contact
Maitreyi Gupta, ICJ India Legal Adviser, t: +91 77 560 28369 e: maitreyi.gupta(a)icj.org
Feb 8, 2021 | News
The Myanmar military’s coup d’etat of 1 February is unconstitutional and fails to comply with basic rule of law principles, said the ICJ today.
“The Myanmar military’s actions violate even the flawed Constitution that the military itself imposed in 2008,” said Sam Zarifi, ICJ’s Secretary General. “The irregularities alleged by the military in the recent elections do not justify declaring a state of emergency and shattering the already weak rule of law in the country.”
The coup d’etat does not comply with the Constitution of the Republic of the Union of Myanmar 2008, which suffers from multiple shortcomings in basic respect for the rule of law and international human rights standards.
Article 417 of the Constitution requires the President to declare a state of emergency when there is a risk to the sovereignty of the country.
Article 418 requires the President to hand over all power to the Commander-in-Chief of the Army. Contrary to this provision, the state of emergency was declared by the Vice-President, after the military detained President Win Myint.
“The accountability of the military to the civilian authorities is a core rule of law principle”, said Sam Zarifi “Myanmar’s military leaders have turned this principle on its head by usurping total authority again.”
The ICJ is concerned that Myanmar’s Constitution provides for the possibility of suspending protections for a number of human rights, such as freedom of expression and association and the right to habeas corpus. Under international human rights law, derogations from certain rights are permissible only when strictly necessary to meet a specific threat to the life of the nation, conditions not met under the current emergency.
The right to habeas corpus is among those rights that may never be suspended. The writ of habeas corpus allows any person detained by any State agent, including during emergencies, to challenge the lawfulness of the detention.
“The right to test the lawfulness of any detention needs to be restored and the judiciary must be able to independently examine the legality of any arrests and detentions and order to release of those it finds are detained illegally” said Sam Zarifi.
Of particular concern to the ICJ is the near-total impunity provided to the military after the declaration of the State of Emergency, and the proliferation of arbitrary detention without recourse to legal review.
Article 432 of the Constitution effectively shields the military and security forces from any review of ’legitimate measures’ pursuant to the declaration of a state of emergency, which the ICJ notes also flies in the face of the rule of law.
“After the shock of the coup d’etat, we are now seeing brave lawyers and civil society activists trying to use peaceful means at their disposal to demand their rights,” Zarifi said. “This movement is not focused around an icon or even one party, but on the notion that the people of Myanmar should be able to government themselves and decide their future.”
Contact
Sam Zarifi, ICJ’s Secretary General, sam.zarifi(a)icj.org
