Feb 6, 2018 | News
The ICJ today condemned the Maldivian Government’s assault on the Supreme Court and its judges and the suspension of human rights protections under the state of emergency.
“President Yameen and his Government have dealt a grave blow to the rule of law and independence of the judiciary in the Maldives,” said Ian Seiderman, ICJ’s Legal and Policy Director.
“The actions by the government are a wildly unjustifiable and disproportionate response to the decision of the Supreme Court”, he added.
On 5 February, the Maldivian Government declared a 15-day state of emergency under Article 253 of the Constitution, suspending a range of human rights protections.
The declaration of emergency followed a Supreme Court judgment on 1 February that ordered the release of at least nine members of opposition parties, who were in detention on a number of charges.
The Government, however, refused to implement the Supreme Court’s judgment, which resulted in the outbreak of protests in the country.
The national defense forces also reportedly entered the premises of the Supreme Court and arrested at least two senior judges, including Chief Justice Abdulla Saeed.
“Summarily suspending basic rights protections and arresting judges whose decisions the President disagrees with is itself a display of sweeping lawlessness in the country,” Seiderman said.
According to the President’s office, the state of emergency was imposed because the Supreme Court order resulted in “disruption of the functions of the executive power, disruption of the functions of the state institutions…and infringement of national security and public interest.”
According to an unofficial translation of the emergency decree received by the ICJ, the constitutionally and internationally protected rights that have been suspended in part or in full during the state of emergency include, among others, the right to liberty; the right to freedom of assembly; the right to privacy; and the right to obtain remedy from the courts.
Basic safeguards surrounding arrest, detention, search and seizures have also been suspended.
In addition, laws providing certain immunities to judges and the right of judges to be informed if any action is taken against them have also been suspended.
“The complete suspension of constitutional protections for human rights such as the right to liberty and right to free assembly goes far beyond anything that could be justified by the alleged grounds cited by the government,” Seiderman added.
The ICJ notes that international law strictly regulates attempts by governments to suspend or otherwise derogate from human rights on the grounds of emergency.
The International Covenant on Civil and Political Rights (ICCPR), to which the Maldives is a State Party, expressly permits derogations only for certain human rights, and then only ‘in time of public emergency which threatens the life of the nation’.
Measures of derogation may only be taken to the extent necessary to meet a specific threat to the life of the nation.
“Maldivian authorities have not even come close to explaining how the current situation constitutes a threat to the ‘life of the nation’, the high threshold set by international law for the derogation of rights in times of emergency,” Seiderman said.
The ICJ urges the Government to immediately lift the state of emergency, release judges of the Supreme Court, implement the ruling of the Supreme Court and ensure the independence of the judiciary.
Contact
Ian Seiderman, ICJ Legal and Policy Director, T: +41 22 979 38 37 ; e: ian.seiderman@icj.org
Reema Omer, ICJ International Legal Adviser for South Asia (London), t: +447889565691; e: reema.omer@icj.org
Additional information
Under international standards, including the UN Basic Principles on the Independence of the Judiciary, it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
This means that there shall not be any inappropriate or unwarranted interference with the judicial process and judges shall be free to decide cases without any restrictions, pressures, threats or interferences.
In August 2015, following a joint fact-finding mission to the Maldives, the ICJ and South Asians for Human Rights (SAHR) documented the breakdown of the rule of law and human rights in the Maldives in a 35-page report, Justice Adrift: Rule of Law and the Political Crisis in the Maldives.
Jan 31, 2018 | Advocacy, Non-legal submissions
The ICJ submitted a written statement on impunity and transitional justice, ahead of the March 2018 session of the UN Human Rights Council.
The written statement can be downloaded in PDF format below:
In English: UN-HRC37-WrittenStatement-NepalPeruImpunity-EN
In Spanish: UN-HRC37-WrittenStatement-NepalPeruImpunity-ESP
Jan 9, 2018 | News
The ICJ today called on the Government of Pakistan to take immediate measures against the increasing practice of enforced disappearances in the country.
A significant number of recent victims were said to be human rights defenders and political activists.
The ICJ highlighted the particular case of Raza Mahmood Khan. Raza, a human rights defender and peace activist, has been “missing” since 2 December 2017 after he organized a public event in Lahore to discuss recent political developments, including religious extremism and the role of state institutions.
Raza is known for his work on human rights, building inter-faith harmony, and promoting peace and tolerance between Pakistan and India. His family and friends have appealed to the police and the courts to trace him, but more than a month since his alleged “disappearance”, his whereabouts are still unknown.
“Many of the victims of enforced disappearances in Pakistan have been activists like Raza, which indicates the shrinking space for activism and dissent in the country,” said Frederick Rawski, ICJ’s Asia Director.
Given that circumstances in which Raza went “missing” are very similar to other cases of enforced disappearance reported recently, the ICJ called on Pakistani authorities to conduct a prompt, impartial, and thorough investigation to determine his fate and whereabouts and hold perpetrators criminally responsible.
“It is not enough for the authorities to deny knowledge of the fate or whereabouts of disappeared people. Are they properly questioning eyewitnesses to abductions? Are they looking for forensic evidence or electronic data from mobile phones? There are clear steps that authorities can and should take to investigate such crimes, and they must act immediately to establish the truth about these cases,” added Rawski.
Pakistan’s Supreme Court has, in multiple judgments, acknowledged the role of security and intelligence agencies in enforced disappearances and secret detentions, holding that the practice constitutes a violation of the “fundamental rights” recognized by the Constitution of Pakistan as well as international human rights law.
The State Commission of Inquiry on Enforced Disappearances has more than 1500 unresolved cases of enforced disappearances as of January 2018.
In 2017 alone, the Commission received 868 reports of alleged enforced disappearances – one of the highest since the Commission’s establishment in 2011. The UN Working Group on Enforced or Involuntary Disappearances also has more than 700 pending cases from Pakistan.
“Despite hundreds, if not thousands, of cases of enforced disappearance reported from across Pakistan, not a single perpetrator of the crime has been brought to justice,” added Rawski. “Not only does this impunity deny truth and justice to victims of the crime, it is also eroding the rule of law and emboldening perpetrators of human rights violations.”
The UN Working Group on Enforced or Involuntary Disappearances (WGEID) has on a number of occasions expressed concern about lack of implementation of the recommendations it made following a country visit to Pakistan in 2012, citing among other things continuing impunity arising from failure to diligently investigate allegations.
The UN Human Rights Committee also, in its review of Pakistan’s implementation of the International Covenant on Civil and Political Rights (ICCPR), noted with concern “the high incidence of enforced disappearances and extrajudicial killings allegedly perpetrated by the police and military and security forces.”
Pakistan must ensure all persons held in secret or arbitrary detention are immediately released or charged with a recognizable criminal offence and brought promptly before a competent, independent and impartial tribunal for a trial that meets international standards.
The ICJ called on Pakistan to become a party to the International Convention for the Protection of All Persons from Enforced Disappearance; recognize enforced disappearance as a distinct, autonomous offence; and hold perpetrators of enforced disappearance, including military and intelligence personnel, to account, through fair trials before civilian courts.
Contacts
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; e: reema.omer(a)icj.org
Dec 21, 2017 | News
On the 10th anniversary of the Supreme Court’s decision in Sunil Babu Pant on the protection of the rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI), the ICJ calls on the Government of Nepal to fully implement the Court’s ruling.
In 2007, the Supreme Court of Nepal delivered a judgment in Sunil Babu Pant v. the Government of Nepal and others, directing the Government of Nepal to take necessary measures to ensure that people of diverse gender identities and sexual orientations could fully enjoy their rights without discrimination. Such measures were to include the adoption of new laws or amending existing laws.
However, ten years after the judgment, LGBTI persons are denied equal protection of the law, and their rights are still not fully protected.
“The Supreme Court’s 2007 judgment gave hope to LGBTI people in Nepal and inspired judiciaries in the region and the world,” said Frederick Rawski, ICJ’s Asia Director. “Despite some positive measures, the Government has much more work to do to implement the judgment and ensure that the rights of the LGBTI community in Nepal are fully respected.”
The Supreme Court based its findings on international human rights law and standards, particularly in respect of the right to non-discrimination and equality and the right to privacy. The Court relied in particular on Nepal’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
The Court strongly rejected arguments that a person’s LGBTI status was the result of “emotional and psychological disorders”, and found that the petitioners faced violence, stigmatization, and discrimination because of their sexual orientation or gender identity. The Court further ordered that a new Constitution under consideration by the Constituent Assembly should guarantee the right to non-discrimination on the grounds of gender identity and sexual orientation.
Since then, some steps have been taken. The 2015 Constitution that was ultimately adopted contains provisions guaranteeing the right to equality for all citizens and establishing special provisions for the protection, empowerment and advancement of gender and “sexual minorities”. Pursuant to a subsequent Supreme Court ruling, transgender men and women can now change their gender markers to “O” on official documents. However, to use “M” or “F”, they still face prohibitive and unclear restrictions. A recently tabled bill would also criminalize unnecessary medical interventions and provide some, though incomplete, protections to intersex children.
Despite these developments, discrimination against LGBTI people remains rampant in the labour market, in schools and in hospitals. LGBTI people are mistreated and sometimes disowned by their families and singled out for physical attack – often beaten, sexually assaulted and subjected to severe physical abuse. Recent revisions to the Civil Code (2017), effective from mid-August 2018, do not recognize equality before the law related to family life.
“These violations continue in the absence of a state strategy or political will to tackle them,” added Rawski. “The Government of Nepal should prioritize enacting reforms to ensure the protection of the rights of LGBTI persons.”
The ICJ calls on the Government of Nepal to fully implement all aspects of the 2007 ruling and subsequent Supreme Court rulings affecting LGBTI communities. This should include, at the minimum:
- Repealing all discriminatory laws, including provisions of the recently introduced Penal and Civil Codes, against sexual orientation and gender identity in line with the principle of equality, equal protection and non-discrimination;
- Enacting legislation that allows same-sex couples full equality before and protection of the law;
- Enacting legislation that removes any prohibitive or unclear restrictions to changing of gender markers on all official documents;
- Enacting legislation that establishes prior, free, full, informed, genuine and consistent consent, and prevents unnecessary medical interventions on intersex persons; and
- Ensuring that the legal protections are given practical effect, including through implementation measures and administrative instructions binding officials at all levels of government.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Dec 8, 2017 | News
From 5 to 8 December 2017, the ICJ co-hosted two workshops – the first one for lawyers with the UN Office of the High Commissioner for Human Rights (OHCHR) and the second one for authorities in Thailand – on the investigation of potentially unlawful deaths and enforced disappearance.
The first workshop’s attendees included 17 lawyers and academics from Thailand and eight lawyers from India.
Participants in the second workshop included 26 participants from Thailand’s Ministry of Justice, Department of Special Investigation (DSI), Royal Thai Police, Office of the Attorney-General, Ministry of Defence, Ministry of Interior, Southern Border Province Administration Centre and the National Human Rights Commission of Thailand.
The first event commenced with opening remarks by OHCHR Human Rights Officer and Thailand team coordinator, Imesh Pokharel, and Frederick Rawski, the ICJ’s Regional Director for Asia and the Pacific.
Aem-on Siang-Yai, Director of the Office of Rights and Freedoms Protection from the Rights and Liberties Protection Department of Thailand’s Ministry of Justice made additional opening remarks in the second event.
In both workshops, Kingsley Abbott, Senior International Legal Adviser for Southeast Asia at the ICJ provided an introduction to the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017; ICJ Practitioners Guide No 9 – Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction (2015, in English, Spanish and Thai); and the international legal framework governing investigations into unlawful deaths, noting that Thailand has legal obligations including under its Constitution and the International Covenant on Civil and Political Rights (ICCPR), to which it is a State Party, to respect, protect and fulfil the right to life.
These obligations entail a duty to ensure investigations into potentially unlawful deaths are independent, impartial, effective, thorough and transparent.
Sean Buckley of OSACO Group, former New Zealand Police Detective and now an independent, international, investigative specialist with more than 20 years of investigations experience including more than seven years with the United Nations (including at the Special Tribunal for Lebanon and the United Nations High Commissioner for Refugees), provided in both events a technical training on a range of topics relevant to investigations using the revised Minnesota Protocol as a guide.
Kingsley Abbott was a member of the Forensics and Legal Working Groups which assisted with the revision of the Minnesota Protocol, while Sean Buckley was a member of the Advisory Panel.
The workshops focused on investigation techniques of potentially unlawful deaths, including controlling the crime scene, preserving the security of evidence and ensuring the safety of all parties involved in investigations, including witnesses, investigators and family members of victims.
The workshops also covered witness identification and interview techniques, collection of DNA evidence, drafting of investigation reports and crime file management.
Sean Buckley shared with participants different means of international assistance available for investigations of potentially unlawful deaths.
The Workshop also covered the collection and potential use of telecommunications evidence.
Sean Buckley and Imesh Pokharel presented on the interview and protection of witnesses.
Thailand and India are both state parties to the ICCPR.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser for Southeast Asia, kingsley.abbott(a)icj.org
