Oct 11, 2016 | News
Thailand should immediately end the use of Article 44 of the Interim Constitution which gives the Head of the military junta sweeping, unchecked powers contrary to the rule of law and human rights, said the ICJ today.
Despite widespread international condemnation of Article 44, its use has increased every year since the Interim Constitution was promulgated on 22 July 2014 following the coup d’état of 22 May 2014.
The Head of the National Council for Peace and Order (NCPO), Prayut Chan-o-cha, has issued at least 107 Orders under Article 44 (available in the public domain): at least one in 2014; 44 in 2015; and 62 in 2016 to date – with 37 Orders being issued since June 2016 alone.
“The Head of the NCPO’s increasing willingness to use extraordinary powers to make ad hoc, arbitrary changes to existing laws and regulations without judicial oversight should be alarming to everyone, including the business sector,” said Wilder Tayler, Secretary General of the ICJ.
“Article 44 places law making power in the hands of one man, while Articles 47 and 48 of the Interim Constitution block judicial review or access to remedies and reparation. This is entirely inconsistent with the three fundamental pillars of the rule of law, equality, accountability and predictability, and should be revoked immediately,” he added.
The Article 44 orders range from those restricting the civil rights of all people in Thailand to those aimed at seemingly minor and ordinary bureaucratic processes.
To date, Article 44 has been used to introduce a raft of revisions into existing Thai law without observing proper process or practice, including providing for the acquisition of land for the establishment of Special Economic Zones bypassing the usual environmental and social checks and balances provided for in domestic legislation; granting military officers sweeping powers of investigation, arrest and detention; and prohibiting the gathering of five or more persons for political purposes.
“It is long past time for Thailand to revoke Article 44 and all others laws, orders and announcements issued since the military coup that are inconsistent with the rule of law and human rights,” Tayler said.
“The justifications the military presented for such measures were never valid or credible, and certainly not so after more than two years of direct military rule.”
All Orders issued under Article 44 – and all other NCPO Orders and Announcements – will continue to remain in force under the draft Constitution that was accepted at a public referendum on 7 August 2016, and may only be repealed or amended by an Act.
Last week, Deputy Prime Minister Wissanu Krea-ngam announced that the NCPO was considering converting many of the hundreds of orders issued by the NCPO into legislation, including those issued under Article 44.
thailand-art-44-ncpo-news-press-releases-2016-eng (full text with background, in PDF)
thailand-head-of-ncpo-orders-advocacy-2016-eng (full list of all publicly available Head of NCPO Orders, in PDF)
thailand-art-44-ncpo-news-press-releases-2016-tha (full text in Thai, PDF)
Oct 7, 2016 | News
The ICJ today expressed its serious concerns over the convictions on charges of incitement and extremism of Tajikistan lawyers Buzurgmehr Yorov and Nuriddin Makhkamov, and their sentencing to 23 and 21 years in prison respectively.
“These convictions, which continue a recent pattern of persecution of lawyers in the country, will contribute to the already poor climate for the independence of the legal profession in Tajikistan,” said Róisín Pillay, Director of the ICJ’s Europe and CIS Programme.
“The ICJ calls on the Government of Tajikistan to ensure that the two lawyers are able to appeal their convictions through a fair process before an independent court,” she added. “It should ensure that criminal prosecution is not used by the executive as a means to limit lawyers in the exercise of their professional duty, and that lawyers do not suffer any reprisals due to their identification with their clients’ causes.”
On 6 October, the two lawyers were sentenced by the Dushanbe City Court on a number of charges, which included incitement to feud, calls for a violent change of the constitutional order and extremist activity.
They were also banned from working as lawyers for five years after serving their sentences.
Buzurgmehr Yorov, head of the Sipar Collegium of Lawyers, was arrested on 28 September 2015. Nuriddin Makhkamov, a lawyer of the same Collegium, was taken into police custody on 22 October 2015.
Both lawyers represented members of the Islamic Renaissance Party of Tajikistan (IRPT) at the time of their arrests.
At the trial, which was closed to the public, with only relatives allowed to attend, the lawyers denied their guilt and argued that the case was politically motivated and related to their defence of IPRT members.
Buzurgmehr Yorov was reported to have testified during the trial that he took up the case not because of a sympathy for the IRPT but because of his professional duty as a lawyer.
These convictions raise significant concerns under international human rights law and international standards on the role of lawyers.
It is a fundamental principle, necessary for the right to fair trial and recognized in international standards on the role of lawyers, that lawyers should never be identified with their clients or their clients’ causes as a result of discharging their professional functions.
The UN Basic Principles on the Role of Lawyers further require governments to ensure that lawyers “are able to preform all of their professional functions without intimidation, hindrance, harassment or improper interference” (Principle 16).
The case also gives rise to concerns regarding respect for the right to a fair trial protected by Article 14 of the International Covenant of Civil and Political Rights, to which Tajikistan is a party.
“These attacks continue a wave of arrests and charges against lawyers in Tajikistan,” said Pillay.
“They create a chilling effect on the proper exercise of professional duties by other members of the legal profession, endangering the right to a fair trial and undermining the justice system,” she added. “The ICJ therefore calls on the Government to take urgent measures to prevent further such attacks on lawyers.”
Contact:
Róisín Pillay, Director, ICJ Europe and CIS Programme, t: +32 2 734 84 46; e: roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, ICJ Europe and CIS Programme, t: +41 22 979 38 32; e: temur.shakirov(a)icj.org
Additional Information:
Buzurgmehr Yorov was arrested on 28 September 2015 and initially changed with fraud. Other charges were added later during his pre-trial detention. He was sentenced to 23 years imprisonment on charges of incitement to national, racial, local or religious feud (Article 189 of the Criminal Code (CC)), fraud (Article 247 of the CC), public calls to a violent change of the constitutional order (Article 307 of the CC), public calls to conduct extremist activity (Article 3071 of the CC), forgery, production or sale of forged documents, state awards, stamps, forms (Article 340 of the CC).
Nuriddin Makhkamov was arrested on 22 October 2015. He was initially charged with fraud. Further charges were added during his pre-trial detention. He was convicted on charges including incitement to national, racial, local or religious feud (Article 189 of the CC), fraud (Article 247 of the CC), public calls to a violent change of the constitutional order (Article 307 of the CC), public calls to conduct extremist activity (Article 3071 of the CC).
The IRPT was found to be a terrorist organization by the Supreme Court of Tajikistan in 2015 and banned. Its leaders received long prison sentences in closed trials on charges of terrorism, extremism and attempts to overthrow the constitutional order.
A number of other prominent lawyers have been arrested and convicted in Tajikistan since 2014. Some have been released, others remain in detention, including Shukhrat Kudratov, the lawyer of the former Minister of Energy Zaid Saidov, convicted on fraud and bribery charges in 2015.
tajikistan-yorov-makhkamov-news-web-story-2016-rus (full text in Russian, PDF)
Oct 3, 2016 | News
The government should drop all proceedings against human rights lawyer, Sirikan Charoensiri, including the specious accusation of sedition, which apparently relate to her organization’s representation of 14 student activists peacefully protesting in June 2015, the ICJ and other groups said today.
On 27 September 2016, Sirikan Charoensiri (photo), a lawyer and documentation specialist at Thai Lawyers for Human Rights (TLHR), received a summons from the Thai Police following accusations that she violated Article 12 of the Head of National Council for Peace and Order (NCPO) Order 3/2015, prohibiting the gathering of five or more people for political purposes, and Article 116 of the Thai Criminal Code, a ‘sedition’-type offence.
According to the summons, the accusations are made by an army officer, Lieutenant Colonel Pongsarit Pawangkanan.
Sirikan Charoensiri received the summons, dated 20 September 2016, when she returned to Thailand after attending the 33rd Session of the Human Rights Council in Geneva where she conducted advocacy on the human rights situation in Thailand on behalf of FORUM-ASIA and the ICJ.
Sirikan Charoensiri did not receive an earlier summons, dated 14 September 2016, the police claimed had been sent to her apartment, as she was not home at the time.
Sirikan Charoensiri has already been charged with two offences under the Criminal Code of Thailand: “giving false information regarding a criminal offence” and “refusing to comply with the order of an official” in relation to TLHR’s provision of legal aid to 14 student activists – the new summons appears to relate to the same case.
“The army’s accusation that Sirikan Charoensiri has violated the frequently abused sedition law with its extremely serious penalties and risk of a military trial is indefensible and must be withdrawn immediately,” said Wilder Tayler, Secretary General of the ICJ.
“The fact that the authorities have made these accusations more than one year after TLHR’s clients were charged with sedition in the same case suggest the accusations have been made in retaliation for her high-profile national and international human rights advocacy since the military coup,” he added.
The other groups who signed the statement are: Human Rights Watch, Amnesty International, Asian Forum for Human Rights and Development (FORUM-ASIA), the Observatory for the Protection of Human Rights Defenders (an FIDH–OMCT partnership), Protection International (PI), Lawyers’ Rights Watch Canada (LRWC), Fortify Rights, and the International Service for Human Rights (ISHR).
thailand-sirikan-charoensiri-conviction-news-press-releases-2016-eng (full text in PDF)
thailand-sirikan-charoensiri-conviction-news-press-releases-2016-tha (Thai version, in PDF)
Sep 16, 2016 | News
Indian authorities have detained a Kashmiri human rights activist after stopping him from traveling to the United Nations Human Rights Council in Geneva, Human Rights Watch and the ICJ said today.
Khurram Parvez was arrested in his home on 15 September 2016, a day after being prevented from leaving the country with a group of rights activists who were traveling to Geneva to raise concerns about the security force crackdown in Jammu and Kashmir.
Human Rights Watch and the ICJ call on authorities to immediately release Parvez and allow him to attend the Human Rights Council session.
“Indian authorities seem to have missed the irony of blocking a rights activist on his way to the UN Human Rights Council,” said Sam Zarifi, Asia Director at the International Commission of Jurists.
“Monitoring and engage
ment by civil society is necessary to prevent human rights violations and ensure accountability. The Government should immediately release Khurram Parvez and begin working with him and other activists to address the difficult issues facing Jammu and Kashmir,” he added.
Parvez, 39 years of age, is chair of the Asian Federation Against Involuntary Disappearances (AFAD) and program coordinator of the Jammu Kashmir Coalition of Civil Society (JKCCS).
He has documented cases of enforced disappearances and investigated unmarked graves in Kashmir.
According to his lawyer, Parvez has been detained by Kashmir police under “preventive detention” provisions of the Code of Criminal Procedure, including section 151 (arrest to prevent the commission of cognizable offense).
The Government’s actions against Parvez violate his right to freedom of movement.
Under international human rights law, any restrictions on freedom of movement for security reasons must have a clear legal basis, be limited to what is necessary and be proportionate to the threat.
This is further supported by article 5 of the UN Declaration on Human Rights Defenders, which states that “[f]or the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually or in association with others, at the national and international levels… to communicate with nongovernmental or intergovernmental organizations.”
“Instead of trying to silence human rights activists, India should be addressing the serious human rights problems in Jammu and Kashmir and holding perpetrators of abuses to account,” said Meenakshi Ganguly, South Asia Director at Human Rights Watch.
“Preventing open discussion of these issues, whether in India or in Geneva, sends a message to Kashmiris that the government has no interest in addressing their concerns,” she added.
Background
Violent protests broke out in Jammu and Kashmir state after the killing of Hizb-ul-Mujahedin militant Burhan Wani in an armed encounter on 8 July.
Since then, the authorities have placed large parts of the state under curfew restrictions to try to stop protesters who hurl stones at security forces and attack police posts.
Security forces have used unnecessary lethal force to contain the violence, which has resulted in the death of 80 protesters and 2 police officers, and thousands injured.
Some protesters, including children, lost their vision from pellets fired from riot-control guns.
While police have a duty to protect lives and property, under the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, they should use non-violent means as far as possible, only use force when unavoidable and in a proportionate manner, and use lethal force only when absolutely necessary to save lives, Human Rights Watch and International Commission of Jurists said.
The authorities have also attempted to censor news and restrict access to information.
The Government shut down local newspapers for three days, blocked mobile internet services temporarily, and ordered local cable operators to block the transmission of five news channels on television.
India has failed to address longstanding grievances in Jammu and Kashmir.
Numerous expert committees in India have recommended steps to address past human rights violations, including a repeal of the draconian Armed Forces Special Powers Act, but the Indian Government has ignored these recommendations.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok); t:+66(0) 807819002; e: sam.zarifi@icj.org
Sep 12, 2016 | News
The Thai junta’s Order today phasing out the prosecution of civilians in military courts is a welcome step but the military government must do much more to comply with its international human rights obligations, said the ICJ today.
Head of the National Council for Peace and Order (NCPO) Order 55/2016, dated 12 September 2016 and issued under Article 44 of the Interim Constitution, phases out the heavily criticized practice of prosecuting civilians before military courts for four categories of offences, including offences against internal security; violation of NCPO orders; possession and use of war weapons; and the highly punitive offence of lese majeste.
The Order only applies to offences committed from the date the Order comes into force – today – and not to past or pending cases.
Since the May 2014 coup, at least 1,811 civilians have been tried in Military Courts, based on information the Judge Advocate General’s Department (JAG) provided to Thai Lawyers For Human Rights (TLHR) in July 2016 and covering the period 22 May 2014 to 31 May 2016.
“Almost 2,000 civilians have faced an unjust process and unfair trials before military tribunals, many of whom were prosecuted simply for exercising their rights to freedom of expression and assembly,” said Sam Zarifi, Asia Director at the ICJ. “All pending cases should be transferred to civilian courts and the convictions of all civilians prosecuted in military courts since the 2014 coup should be set aside.”
Head of the NCPO Order 55/2016 also explicitly affirms that the deeply problematic Head of the NCPO Orders 3/2015 (which replaced nationwide Martial Law on 1 April 2015) and 13/2016 shall remain in force.
These Orders prohibit the gathering of more than five people for political purposes; allow for the detention of civilians in military facilities for up to seven days without charge; and provide appointed “Prevention and Suppression Officers” and their assistants, drawn from the commissioned ranks of the Armed Forces, including the paramilitary Ranger Volunteers, with wide-ranging powers to prevent and suppress 27 categories of crimes including against public peace, liberty and reputation, immigration, human trafficking, narcotics, and weapons. The ICJ considers that these orders are not in accordance with Thailand’s international human rights obligations
“Its now crucial for the military to return responsibility for law enforcement to civilian authorities, and ensure they are properly trained and competent,” Zarifi said. “We hope today’s Order is a step toward returning Thailand to the rule of law and respect for human rights.”
Background
Clause 3 of Head of the NCPO Order 55/2016 notes “As appropriate, the Prime Minister may propose to the National Council for Peace and Order to amend this Order.”
Previously, NCPO Announcements 37/2014, 38/2014 and 50/2014 extended the jurisdiction of Thailand’s military courts to four categories of offences, including offences against internal security, violation of NCPO orders, possession and use of war weapons, and lese majeste.
The prosecution of civilians in military courts is inconsistent with Article 14 of the International Covenant on Civil and Political Rights (ICCPR) – to which Thailand is a State Party – which affirms that everyone has the right to a “fair and public hearing by a competent, independent and impartial tribunal established by law.”
The Principles Governing the Administration of Justice through Military Tribunals sets out principles that apply to state use of military tribunals. Principle 5 states “Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.”
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Kingsley Abbott, ICJ Senior International Legal Adviser, t: +66 9 4470 1345, e: kingsley.abbott(a)icj.org
Download:
thailand-unofficial-translation-head-of-ncpo-order-55_2559-advocacy-2016-eng (full text of Order in English, PDF)
thailand-ncpo-order-55_2559-news-2016-tha (full text of news in Thai, PDF)
Read also:
Thailand: transfer all civilians to civilian courts
Thailand: end prosecution of civilians in military tribunals
