Pakistan: as military courts lapse, Government must prioritize reform of the criminal justice system

Pakistan: as military courts lapse, Government must prioritize reform of the criminal justice system

As military courts in Pakistan once again cease to have jurisdiction over civilians for terrorism-related offences, the Government must bring reforms to strengthen the country’s criminal justice system, the ICJ said today.

Perpetrators of terrorist attacks and other serious crime must be brought to justice fair trials before competent, independent and impartial courts as required under international law, the ICJ added.

“The lapse of the jurisdiction of military courts over civilians is a step in the right direction, but unsurprisingly – even four years after military courts were empowered to try civilians – there is no sign of the promised reforms to strengthen the ordinary criminal justice system to effectively and fairly handle terrorism-related cases,” said Frederick Rawski, ICJ’s Asia Director.

The 23rd Amendment and corresponding amendments to the Army Act, 1952, lapsed on 30 March 2019, as their respective two-year sunset clauses expired. So far, the Government has failed to get support from opposition parties for a constitutional amendment to once again extend the jurisdiction of military courts to conduct trials of civilians.

“The Government must not re-enact legislation to continue secret military trials of civilians, nor resort to more short-term, short-sighted security measures that are contrary to Pakistan’s obligations to protect human rights,” Rawski said.

“Instead, the Government should urgently invest in enhancing the capacity and security of judges, investigators and prosecutors to make the regular criminal justice system more effective in conducting fair, credible terrorism trials, and bringing perpetrators to account without imposing the death penalty.”

According to military sources and ICJ’s monitoring of military trials in Pakistan since January 2015, military courts have convicted 617 people for terrorism-related offences, out of which 346 people have been sentenced to death and 271 people have been given prison sentences. At least 56 people have been hanged. Only four people have been acquitted.

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.

Contact

Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), e: frederick.rawski(a)icj.org

Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; e: reema.omer(a)icj.org

Additional information

Military courts were first empowered to try civilians for certain terrorism-related offences in January 2015 through the 21st Amendment to the Constitution and amendments to the Pakistan Army Act, 1952, which were in operation for a period of two years.

The expansion of the jurisdiction of military tribunals was a key part of the Government’s 20-point National Action Plan, adopted following the attack on the Army Public School in Peshawar in December 2014. NAP envisioned military courts to be a short-term “solution” to try “terrorists”, to be operational only for a two-year period during which the government would bring about necessary “reforms in criminal courts system to strengthen the anti-terrorism institutions”.

Despite promises that military courts were only temporary, after the expiration of the 21st Amendment, on 31 March 2017, Parliament enacted the 23rd Amendment and amendments to the Army Act to renew military courts’ jurisdiction over civilians. The amendments were given retrospective effect from 7 January 2017, and were due to lapse two years after their date of “commencement”. The expanded jurisdiction of military courts lapsed on 30 March 2019 (even though earlier reports suggested the amendments would expire on 6 January 2019) — two years after the date of “operation” of the 23rd Amendment).

The ICJ opposes the death penalty in all circumstances as a form cruel, inhuman and degrading punishment and an arbitrary denial of the right to life.  The ICJ recalls that the UN General Assembly has by overwhelming majorities repeatedly called on all states the retain the death penalty to place a moratorium on the practice with a view to abolition. Pakistan previously had such a moratorium from 2008 to 2014.

ICJ Commissioner Mikiko Otani addresses Philippine lawyers on gender equality in the legal profession

ICJ Commissioner Mikiko Otani addresses Philippine lawyers on gender equality in the legal profession

On 31 March, Mikiko Otani, ICJ’s Commissioner and a member of the UN Committee on the Rights of the Child, spoke to Filipino lawyers at the bi-annual National Lawyers’ Conference of the Integrated Bar of the Philippines (IBP), which took place at the Iloilo Convention Center, Iloilo City.

Mikiko Otani, who had been Chair of the Committee on International Human Rights of the Japan Federation of Bar Associations (JFBA) remains active in the JFBA, talked about the importance of advancing gender equality in the legal profession and the important initiatives of the JFBA on eliminating gender discrimination.

She noted that “female lawyers experience many forms of discrimination in the workplaces, practices, court rooms and bar associations.”

In countries all over the world, many formal barriers women used to face in entering the legal profession, including admission to law schools, the bar, have been eliminated.

However, women continue to face barriers, some of which are specific to the legal profession, but others common to women who work more generally.

Mikiko Otani noted that when she started practice as a lawyer in 1990, women applicants for jobs at law firms would often be asked during the interview whether they planned on getting married or having children.

Law firms preferred to hire male lawyers as they were thought to be unencumbered with looking after household matters, such as housekeeping and child care.

She recalled, “My colleagues questioned my decision to get married and have children almost immediately after becoming a lawyer while also continuing my practice as this was an unusual for women lawyers in Japan to do at that time. They felt that my decision to start a family at that point would be a hindrance to my career.”

She also talked about the bias observed in case assignment, where only male lawyers would be assigned to cases that required extensive traveling, while female lawyers would be often assigned to family cases, which are considered to be easy, unpopular or low-profile cases.

There was also frequent bias against female lawyers in promotion or offering partnership in law firms, contributing to a major gender gap in income between male and female lawyers.

In 2008, the JFBA formulated a Basic Plan which included the study of inequalities between male and female lawyers in Japan, finding ways to ensure a work-life balance for women, creating complaint handling bodies, and hosting trainings and educational activities in order to promote gender equality.

Mikiko Otani’s remarks resonated among many female lawyers in the Philippines, who shared in the discussion that followed that they face the same challenges.

“As lawyers, it is our responsibility to assist everyone, including women, in accessing justice,” said Marienne Ibadlit, a member of the Board of Governors of the IBP.

“We cannot be faithful to this responsibility if within our profession, we perpetuate gendered relationships and social inequalities that discriminate against women. A bar association that is committed to gender equality is a prerequisite to a justice system that does not discriminate against women and ensures the full enjoyment of women of their human rights.”

Contact:

Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, t: +662 619 8477 (ext. 206) ; e: emerlynne.gil(a)icj.org

 

 

 

Thailand: ICJ Workshop promotes standards applying to investigations of unlawful deaths and enforced disappearances

Thailand: ICJ Workshop promotes standards applying to investigations of unlawful deaths and enforced disappearances

From 29 to 31 March 2019, the ICJ co-hosted a workshop in Ayutthaya province for authorities from Thailand on Human Rights, Investigation Techniques and Forensic Examination of Evidence. The event focused on how such investigations should be conducted in accordance with international human rights law and standards.

The workshop was co-hosted with Thailand’s Ministry of Justice and the United Nations Office of the High Commissioner for Human Rights (OHCHR).

The participants included 35 criminal investigators, public prosecutors, representatives of the Ministry of Justice’s Department of Special Investigation (DSI), the Central Institute of Forensic Science (CIFS), the Ministry of Defense, the National Anti-Corruption Commission and the Office of the Narcotics Control Board.

Kingsley Abbott, Senior Legal Adviser for Global Redress and Accountability at the ICJ and a member of the Working Group in revising the Minnesota Protocol, presented a summary of the international human rights legal framework applicable to the investigation of unlawful deaths and enforced disappearance.

He also introduced an outline of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017.

The Protocol formed the core of the materials used at the workshop. He also addressed the use of telecommunication evidence as evidence at trial.

Other speakers included:

  • Amornrat Lekwichai, Senior Professional Level Forensic Scientist from the CIFS, who addressed the use of telecommunication and digital evidence in criminal cases towards establishing the identity of suspects;
  • Pornthip Rojanasunan, Adviser with the CIFS and a member of the Advisory Panel in revising the Minnesota Protocol, who spoke on forensic pathology and the need for independent autopsies in an independent and impartial investigative process;
  • Badar Farrukh, Human Rights Officer from OHCHR, who addressed witness interviews and witness protection;
  • Angkhana Neelapaijit, National Human Rights Commissioner and spouse of lawyer Somchai Neelapaijit, a victim of enforced disappearance; and
  • Somchai Homlaor, a leading Thai human rights lawyer and member of several independent fact-finding commissions, who raised concerns about challenges for accountability for human rights abuses in Thailand’s criminal justice.

This workshop is part of the ICJ’s ongoing efforts to ensure the domestic implementation of international law and standards on the investigation of potentially unlawful deaths and enforced disappearances.

The ICJ has held several Workshops on the same topic including:

Regional Workshops

National Workshops

Contact

Kingsley Abbott, Senior Legal Adviser for Global Redress and Accountability, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott@icj.org

Transitional Justice Mechanisms in Sri Lanka (UN statement)

Transitional Justice Mechanisms in Sri Lanka (UN statement)

The ICJ today called at the UN for prompt establishment of a judicial accountability mechanism with international involvement, for Sri Lanka.The statement, delivered during an interactive dialogue on the OHCHR report on Sri Lanka at the Human Rights Council in Geneva, read as follows:

“The ICJ welcomes the comprehensive report of the OHCHR on promoting reconciliation, accountability and human rights in Sri Lanka (A/HRC/40/23). We share OHCHR’s observation that there is a lack of progress and absence of a comprehensive strategy for implementation of all commitments made under Resolution 30/1.

ICJ is particularly concerned about the lack of progress in the area of criminal accountability (as noted in Paragraph 27 of the report). We believe that there is an urgent need to establish a judicial mechanism with the involvement of foreign judges. We echo the sentiments of the OHCHR regarding the inability of the Sri Lankan courts, on their own, to address the impunity of security forces for crimes under international law.

Failure of the criminal justice system to effectively address emblematic cases (as reflected in Paragraph 38 of the report) clearly indicates the level of capacity and willingness on the part of the State even today to prosecute and punish perpetrators of serious crimes when they are linked to the security forces or other positions of power.

ICJ also notes that women are grossly under-represented in the judiciary in Sri Lanka, which prevents women human rights defenders and female victims from having confidence in the ordinary criminal justice system, impeding their full engagement and participation in pursuing accountability for crimes committed against them during the conflict and other transitional justice processes.

A judicial mechanism with the involvement of foreign judges is particularly urgent for women in conflict-affected areas who still live in a highly militarized environment and are compelled to live among their perpetrators – those who have been accused of war crimes including rape and other forms of sexual violence.

We therefore reject calls for a purely domestic mechanism. Indeed, the ICJ considers that the continuing failure of the Government to ensure justice means that referral to the International Criminal Court or the creation of another international mechanism to facilitate criminal accountability would be fully warranted. The draft resolution before this session of the Council, reaffirming all elements of resolution 30/1, thus already represents a deep compromise and anything less than the existing text would be wholly unacceptable.

 

Malaysia: stop the harassment and intimidation of Women’s March organizers

Malaysia: stop the harassment and intimidation of Women’s March organizers

The ICJ called on the Government of Malaysia to take immediate steps to protect the right of all persons in the country to freedom of expression and assembly, after seven organizers of the International Women’ Day (IWD) March were summoned for questioning by police authorities on 14 March 2019.

“It is very concerning that the Malaysian authorities continue to rely on repressive legislation to control and undermine freedom of expression and freedom of assembly in the country,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.

The Women’s March took place in Kuala Lumpur, on 9 March 2019. The demands of the participating groups included an ‘end of all violence based on gender and sexual orientation’, the ban of all child marriages, and the setting of RM1,800 as a minimum wage.

A statement by the Dang Wangi District Police Deputy Chief identified the organizers as individuals who had spoken at an ‘LGBT’ rally.

There were reportedly taken in for questioning on 18 March for potential violations of Section 4(1) of the Sedition Act and Section 9(5) of the Peaceful Assembly Act. They remain at risk of being charged for these offences.

The ICJ considers the Sedition Act 1948 and the Peaceful Assembly Act 2012 to be incompatible with international standards. The ICJ has previously called on the Government of Malaysia to abolish both laws, which have historically been used to silence voices of those challenging governmental policy.

The laws place restrictions on the exercise of freedom of expression that are overbroad, unnecessary and disproportionate, and inconsistent with rule of law and human rights principles. The Pakatan Harapan Government committed itself to abolishing the Sedition Act 1948 and the Peaceful Assembly Act 2012, but has not done so to date.

“The vague definition of ‘seditious tendencies’ in the Sedition Act has been used as a tool for silencing government critics and human rights defenders by previous administrations. It is disappointing that the Malaysian authorities have ended the moratorium on the use of the Sedition Act 1948, and continue to use it, instead of moving towards its abolition,” said Gil.

According to international standards, any limits on the right to peaceful assembly should not require prior authorization by the authorities. Notification requirements must not be unduly bureaucratic and be used only for the purpose of allowing the authorities to facilitate the exercise of the right to peaceful assembly, and to protect public safety.

In a 14 March statement, the organizers claimed to have been in regular communication with the police and to have been in compliance with the relevant notice provisions of the Peaceful Assembly Act.

The ICJ calls on the Malaysian authorities to end any investigations targeting the organizers of the Women’s March pursuant to the Peaceful Assembly and Sedition Act. It also calls on the Government to abolish the Peaceful Assembly Act and the Sedition Act.

Contact

Emerlynne Gil, ICJ Senior International Legal Adviser, t: +66 840923575, e: emerlynne.gil(a)icj.org

Malaysia-Womens March-News-web stories-2019-ENG (full story with additional information, in PDF)

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