Nov 8, 2019 | Advocacy
Myanmar’s criminal laws are outdated and fail to respect and protect human rights, especially the rights of LGBTQ people and rights enshrined in binding international human rights treaties. This is the key finding of the new report ‘In the Shadows: Systemic Injustice Based on Sexual Orientation and Identity/Expression in Myanmar’.
The Denmark-Myanmar Programme on Rule of Law and Human Rights, implemented by the ICJ in partnership with Danish Institute for Human Rights commissioned this report. The report team was made up of ICJ staff who are part of the Denmark Myanmar Programme. Legal review was also provided by advisers from the ICJ team. The report is endorsed by three leading local LGBTQ and human rights organizations and one network : LGBT Rights Network, Colors Rainbow, Kings N Queens, and Equality Myanmar.
The report highlights emblematic cases and recurring human rights violations against LGBTQ people in Myanmar. Research for the report included interviews with 70 respondents from across several states to ascertain their experiences and impressions of the criminal justice system. All testimonies are anonymous and all identities are pseudonyms.
The report highlights the outdated laws that continue to affect the lives of LGBTQ people, including Section 377 of the Penal Code which criminalizes consensual same-sex conduct. Even though not commonly enforced, the fact that this law remains in place since the colonial era legitimizes prejudice, discrimination and extortion against LGBTQ people. India’s Supreme Court decided only last year that criminalization of consensual same-sex relationships under Section 377 is a violation of the Indian Constitution and is in breach of India’s obligation under international law. That is the reason why Myanmar should follow this trend and repeal Section 377 as soon as possible or at least insofar it criminalizes same-sex relationships.
Other criminal provisions that play a large part in justifying abuse against LGBTQ people are the “Shadow Laws” or “Darkness Laws” – the colloquial name of colonial era legislation that can restrict citizens’ ability to be in public after dark without an accepted justification. These provisions – from which the report’s title is drawn – are primary examples of criminal laws that are misused against LGBTQ people and result in ongoing stigmatization, human rights violations and overall injustice. Some of their provisions are vague and overbroad and are therefore open to serious abuse. Law enforcement officials too easily invoke these provisions to harass, threaten, detain and even bring spurious charges against LGBTQ people. Research from the report documents how these criminal laws have been used to enter LGBTQ people’s homes, accuse them of ‘committing unnatural sex’, take them into police custody, and to subject them to abuse.
This report further details the discriminatory attitudes of law enforcement officers, which contribute to LGBTQ people being targeted and subjected to unjust and unfair treatment within the criminal justice system. The mistreatment takes many forms, from arbitrary accusations and ensuing detentions, physical, sexual and verbal assaults, and coerced concealment of sexual orientation and gender identity/expression. Given the biased, discriminatory and at times violent behavior towards them, LGBTQ people have come to mistrust law enforcement agencies and avoid the justice system wherever possible.
‘In the Shadows’ identifies the problematic attitudes of certain key players in Myanmar’s criminal justice system with respect to Sexual Orientation, Gender Identity/Expression issues. Core concerns include the discriminatory treatment and the barriers to justice LGBTQ people face, from their role in public life, or as a detainee, witness or suspect in court.
The report concludes with a set of recommendations that seek to make existing law and policy more protective of LGBTQ peoples’ rights. This includes the repeal of Section 377 of the Penal Code, at least insofar as it criminalizes consensual same-sex sexual conduct, the reform of the ‘Shadow Laws’, and cessation of all discriminatory arrests and detentions.
Human rights and LGBTQ rights activist and contributor to the report, U Aung Myo Min, sums up the importance of ‘In the Shadows’: “The stories in this report highlight the suffering, intimidation, and threats faced by LGBTIQ in Myanmar today. These injustices must be stopped, and we all have a moral imperative to be part of the solution.”
We are committed to working with main stakeholders in the country, such as the Parliament, the Police, GAD, actors of the legal system and the Myanmar National Human Rights Commission. We are willing and prepared to provide full support, expertise and advice to the Myanmar Parliament in pursuit of the repeal of Section 377 of the Penal Code, the provision for ‘unnatural at least insofar as it criminalizes consensual same-sex sexual conduct, to enact anti-discrimination legislation in Myanmar, to become a party to nine core international human rights treaties, to establish legal gender recognition for transgender persons, to reform vague and discriminatory laws.
This statement is endorsed by: LGBT Rights Network, Colors Rainbow, Kings N Queens and Equality Myanmar.
Report
Download In the Shadows: Systemic Injustice Based on Sexual Orientation and Identity/Expression in Myanmar in English.
Nov 4, 2019 | Advocacy, News
On 4 November, the ICJ and 16 other organizations called on Members of the European Parliament (MEPs) to postpone consent to the EU-Vietnam Free Trade Agreement (EVFTA) and the Investment Protection Agreement (IPA) until the Vietnamese government seriously tackles the deteriorating human rights situation in the country.
The letter was addressed to the President of the European Parliament, Chair of the International Trade Committee, Chair of the Foreign Affairs Committee, Chair of the Human Rights Subcommittee, Chair of the Development Committee and all Members of the European Parliament.
Noting that the Vietnamese government had, in recent years, intensified its crackdown on human rights defenders, members of civil society, religious groups and individuals who express opinions deemed critical of the government, continued to strictly curtail the rights to free expression, opinion, association and assembly, and tightly control the press, civil society and religious groups, the organizations expressed regret that negotiations for the EVFTA and the IPA had not led to more explicit and tangible human rights commitments from the Vietnamese government.
Vietnam currently benefits of unilateral trade preferences through the Generalised Scheme of Preferences (GSP), and the country’s failure to uphold its numerous human rights obligations under the scheme has yet to incur substantial pushback by the EU.
The organizations urged MEPs to ask the European Commission to set up an independent monitoring and complaint mechanism to address the human rights impacts that the EVFTA and IPA may have.
Joint Letter
Frederick Rawski, Director, ICJ Asia and the Pacific, email: Frederick.Rawski(a)icj.org
Nov 3, 2019 | News
Bangkok, Thailand – From 1 to 2 November 2019, ICJ in collaboration with the UN Office of the High Commissioner for Human Rights (OHCHR) and the Ralph Bunche Institute for International Studies, hosted a consultation on gender and the right to freedom of religion or belief with the UN Special Rapporteur on Freedom of Religion or Belief, Dr. Ahmed Shaheed.
The primary objective of the consultation was to provide a forum for human rights defenders, particularly women and human rights defenders belonging to sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) minorities to share their perspectives on laws, practices and anti-rights strategies based on religion or belief that discriminate against women and SOGI groups and individuals in Asia. The consultation was attended by at least fifty-two (52) human rights defenders from all over Asia.
Emerlynne Gil, ICJ’s Senior International Legal Adviser, in her opening address, emphasized that gender equality and the right to freedom of religion or belief should not be viewed as inimical to each other. She said, “Women and individuals belonging to sexual orientation and gender identity minorities should also be able to being to a faith or religion of their choice, or religion into which they are born and they should continue to belong to the religion or belief without being discriminated against by the faith or religious community.”
The consultation included discussions on the domestic contexts and legal frameworks in relation to freedom of religion and the rights of women and SOGIESC minorities, including in relation to the right to health. The participants considered challenges faced by women and SOGIESEC minorities when religious leaders act as justice actors were also discussed. The consultation, while highlighting the good practices in advancing the rights of women and SOGIESC minorities, also explored existing challenges and tensions in respect of achieving gender equality.
At the conclusion of the consultation, Dr. Shaheed noted the diversity of the participants in the room, who came from all over Asia. He emphasized that “in order to engage more effectively and strategically, it is imperative that we improve our literacy in relation to the human rights framework and of religion in order to better understand its intersectionality.”
Contact
Sushmitha Thayanandan, National Legal Advisor, Sri Lanka (ICJ) e: sushmitha.thayanandan(a)icj.org
Oct 30, 2019 | News
The ICJ hosted a two-day workshop on 28-29 October 2019 in Myanmar’s capital, Nay Pyi Taw. Organized jointly with the Union Attorney General’s Office (UAGO), 15 prosecutors and ten members of the Myanmar Police Force attended this event, entitled “Workshop on the Minnesota Protocol.”
Participants included persons involved in the conduct of criminal investigations, as well as senior members with oversight of their work. The workshop was opened with remarks by His Excellency U Win Myint, Deputy Attorney General of the UAGO, and Sean Bain, Legal Adviser for the ICJ in Myanmar. Both speakers underscored the importance of conducting effective investigations according to international standards.
The Minnesota Protocol provides guidance on the State’s implementation of its duty under international law to effectively, thoroughly and impartially investigate potentially unlawful killings, including when State actors may have been involved. It applies to deaths under custody, suspicious deaths, and suspected cases of enforced disappearance. The workshop takes place in a context in which Myanmar has experienced well documented and widespread incidences of such unlawful killings amounting to serious crimes under international law.
An overview of the international human rights law framework was provided by ICJ Associate Legal Adviser Jenny Domino, highlighting how the conduct of prompt, effective and impartial investigations into unlawful killings is a core component of the State’s obligation to uphold the right to life, binding on all States under international law. ICJ Legal Researcher Ja Seng Ing provided an overview of the contents of the Minnesota Protocol, including a discussion of its 2016 revision to align it with contemporary norms and practices.
Glenn Williams, an experienced international criminal investigator and Detective Inspector (Retired) of the New Zealand Police Force explained how to properly secure a crime scene and chain of custody in order to preserve the integrity of the evidence. Participants applied these skills in a group exercise based on a real-life case from the Solomon Islands. He also presented on the proper conduct of witness interviews, emphasizing the need to frame questions in a manner that would avoid the re-traumatization of victims. Glenn Williams further shared the investigative challenges of dealing with telecommunications evidence from his time at the Special Tribunal for Lebanon.
Dr. Porntip Rojanasunan, a forensic pathologist in Thailand and Member of the Expert Advisory Panel during the Minnesota Protocol revision process, shared her forensic expertise through illustrative cases that she had worked on in Southeast Asia in the past two decades. Dr Porntip stressed the importance of forensic pathology in determining the true cause of death. She also emphasized the importance of conducting an autopsy in potential cases of human rights violations.
The workshop is part of the ICJ’s ongoing promotion of international human rights law and standards globally. In Asia, this has included engagement with Myanmar authorities as well as authorities in neighboring countries.
See also:
Myanmar: ICJ discusses the Minnesota Protocol with prosecutors
ICJ Oral statement in the interactive dialogue with the fact finding mission on Myanmar
Report: Achieving Justice for Gross Human Rights Violations in Myanmar
Related material:
Minnesota Protocol (English)
Minnesota Protocol (unofficial Burmese translation)
Oct 22, 2019 | Advocacy, News
On 21 October 2019, the ICJ co-hosted an event on “Business and Human Rights and Thailand’s National Action Plan on Business and Human Rights” at Mido Hotel in Bangkok.
The discussion surrounded the evolution of business and human rights in Thailand and concerns arising with respect to the National Action Plan on Business and Human Rights (‘NAP’)’s key priority issues.
Notably, on the same day of this event, the NAP was being considered by the Cabinet for approval.
Participants included 37 individuals representing affected populations from all regions of Thailand, members of civil society organizations, and representatives from international organizations.
Sanhawan Srisod, ICJ’s Legal Adviser, spoke at a panel on ‘Land, Environment and Natural Resources’, addressing key concerns arising with respect to environmental laws in Thailand. These included the lack of adequate consultations with affected stakeholders before implementing development projects, inadequate assessment of environmental impacts prior to policy determination, inadequate protections under relevant laws on the environment, problems arising from Environmental Impact Assessment (EIA) and Environmental and Health Impact Assessment (EHIA) processes, and obstacles in accessing remedy for environment-related cases. She also facilitated another panel on judicial harassment of human rights defenders.
Saovanee Kaewjullakarn, ICJ’s Legal Consultant, facilitated a panel on Thai outbound investment and challenges with respect to access to justice for victims of human rights abuses committed by Thai corporations in the context of their business activities abroad.
The event was co-hosted with the Community Resource Centre Foundation (CRC), Spirit in Education Movement (SEM), Thai Extra-Territorial Obligations Working Group (Thai ETOs Watch), EarthRights International (ERI), Asian Forum for Human Rights and Development (FORUM-ASIA), Business and Human Rights Resource Center (BHRRC) and the British Embassy in Thailand.
Background
After the event, on 29 October 2019, the Cabinet approved and adopted the First National Action Plan on Business and Human Rights (2019-2022), making Thailand the first country in Asia to adopt the stand-alone NAP.
The NAP sets out plans to be followed by several public and private stakeholders in order to ensure the state’s and business’s duty to protect and respect human rights, and the general obligation of the State and businesses to provide for access to remedy in the case of business-related human rights violations and abuses. NAP has determined four key priority issues, including (1) Labor; (2) Land, environment and natural resources; (3) Human rights defenders; and (4) Cross border investment and multi-national enterprises.
Subject to these four key priority issues, the NAP emphasizes the duties of the relevant State agencies to, inter alia, review and amend certain laws, regulations and orders that are not in compliance with human rights laws and standards and ensure their full implementation, ensure mechanisms for redress and accountability for damage done to affected communities and individuals, overcome the barriers to meaningful participation of communities and key affected populations, and strengthen the role of businesses to “respect” human rights on a variety of key priority issues.
Its effectiveness in term of implementation is yet to be assessed because the NAP does not have the status of a law, but is merely a resolution from the executive branch. Under Thai law, a Cabinet Resolution is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).
In March 2019, the ICJ and Human Rights Lawyers’ Association (HRLA) had also submitted recommendations to the Ministry of Justice on Thailand’s draft NAP and expressed concern on the removal of a commitment that had been included in earlier versions of the NAP to “push for an Anti- Strategic Litigation against Public Participation (SLAPP) law”.
Further reading:
Thailand: ICJ hosts discussion on human rights consequences of Special Investment Zones
Thailand’s Legal Frameworks on Corporate Accountability for Outbound Investments
Thailand: ICJ and HRLA express concern about inadequate protections for human rights defenders in draft National Action Plan on Business and Human Rights
