Jul 26, 2018 | News, Op-eds
An opinion piece by Kingsley Abbott, ICJ Senior Legal Adviser in Bangkok, Thailand.
Over recent decades, international observers have tended to view the human rights and political situation in Cambodia as a series of predictable cycles that does not warrant too much alarm.
The conventional wisdom has been that Prime Minister Hun Sen and his government routinely tightens their grip on the political opposition and civil society in advance of elections before relaxing it again after victory has been secured.
But that analysis is no longer valid.
The reason is simple: During the course of ensuring it will win the national election scheduled for this Sunday (29 July), Hun Sen’s ruling Cambodian People’s Party (CPP) has, since the last election, systematically altered the country’s constitutional and legal framework – and these changes will remain in place after the election has passed.
Through the passage of a slew of new laws and legal amendments inconsistent with Cambodia’s obligations under international law, and the frequent implementation of the law to violate human rights, the legal system has been weaponized to overwhelm and defeat the real and perceived opponents of the CPP, including the political opposition, the media, civil society, human rights defenders and ordinary citizens.
This misuse of the law is a significant development in the history of modern Cambodia and represents a determined move away from the vision enshrined in the historic 1991 Paris Peace Agreements that ended years of conflict and sought to establish a peaceful and democratic Cambodia founded on respect for human rights and the rule of law.
And it risks cementing the human rights and rule of law crisis that now exists within Cambodia for years to come.
To facilitate the closure of civil society space, and contrary to international law and standards, in 2015 the Law on Associations and Non-Governmental Organizations (LANGO) was passed, which requires the mandatory registration of all NGOs and Associations, provides the government with arbitrary powers to deny or revoke registration, and places a vaguely worded duty on NGOs and associations to “maintain their neutrality towards political parties”.
The biggest blow to the political opposition has been the amendment last year of the Law on Political Parties (1997), amended twice within four months, which empowers the Supreme Court to dissolve parties, and four election laws, which permits the redistribution of a dissolved party’s seats in the country’s senate, national assembly, and commune and district councils.
Last November, the Supreme Court, presided over by a high-ranking member of the CPP, used the amended Law on Political Parties to dissolve the main opposition party, the Cambodia National Rescue Party (CNRP), which had received just under 44% of the vote – or about 3 million votes – in communal elections held in June 2017.
After the CNRP’s dissolution, the amended election laws were then used to redistribute CNRP seats at every level of government, from the commune to the senate, to the CPP and minor parties.
To silence the media, the country’s media and taxation laws have been invoked – local radio stations have been ordered to stop broadcasting Radio Free Asia and Voice of America “in order to uphold the law on media” and the independent Cambodia Daily was forced to close after being presented with a disputed US $6.3 million tax bill which the Daily claimed was “politically motivated” and not accompanied by a proper audit or good faith negotiations.
To curb the exercise of freedom of expression, the Constitution has received vaguely worded amendments placing an obligation on Cambodian citizens to “primarily uphold the national interest” while prohibiting them from “conducting any activities which either directly or indirectly affect the interests of the Kingdom of Cambodia and of Khmer Citizens”.
Meanwhile individual journalists, members of the political opposition including the CNRP’s leader, Kem Sokha, human rights defenders and an Australian documentary filmmaker have been charged with any number of a kaleidoscope of crimes ranging from intentional violence and criminal defamation to treason and espionage.
And Cambodia lacks an independent and impartial judiciary.
In 2014, three “judicial reform laws” were passed which institutionalized the prosecution and judiciary’s lack of independence from the executive.
At the same time, the government perversely uses the doctrine of the “rule of law” to justify its actions.
Just hours after the Supreme Court dissolved the CNRP, Hun Sen announced that the decision was made “in accordance with the rule of law.”
When members of the diplomatic community and senior UN officials meet government officials to express concern at the increasing misuse of the law they receive an absurdist legal lecture on the “importance of the rule of law”.
What is happening in Cambodia is the opposite of that.
The International Commission of Jurists, UN authorities and others have been defining the rule of law since the Universal Declaration of Human Rights was pronounced in 1948.
All agree that that the rule of law entails passing and implementing laws consistent with a country’s international human rights obligations.
It is time for the international community to recognize that a frank and fresh analysis of the situation in Cambodia is urgently required which acknowledges the way the country’s underlying legal and constitutional framework has been deliberately altered, and the way in which this will impact the country adversely long past this month’s election.
This acknowledgment must be accompanied by a coherent and, where possible, joint, plan of action that clearly sets out, with a timeline, what is required to bring Cambodia back on track with the agreed terms of the Paris Peace Agreements – including necessary legal and justice sector reforms – and the political and economic consequences for not doing so.
As long as Hun Sen’s Government deploys increasingly sophisticated justifications for its repressive actions, a more refined, multilayered and vigorous response from the international community is required – grounded on a proper application of the rule of law and Cambodia’s international human rights obligations.
Jul 26, 2018 | News
From 24 to 26 July 2018, the ICJ co-hosted a workshop for authorities from Thailand, Cambodia, and Myanmar.
The theme of the workshop was on conducting investigations of potentially unlawful deaths and enforced disappearance in accordance with international human rights law and standards.
The workshop was co-hosted with Thailand’s Ministry of Justice, the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the New Zealand Embassy in Bangkok.
The participants included 25 criminal investigators, public prosecutors and representatives of the Cambodian Ministry of Justice and the Thai Ministry of Justice.
The event commenced with opening remarks by James Andersen, Deputy Head of Mission, Embassy of New Zealand in Bangkok; Aim-orn Siangyai, Deputy Director General of Thailand’s Rights and Liberties Protection Department, Ministry of Justice; Frederick Rawski, Asia Pacific Regional Director, ICJ; and Shivani Verma, Human Rights Officer, OHCHR Regional Office for South-East Asia.
Kingsley Abbott, Senior Legal Adviser at the ICJ, gave a summary of the international human rights legal framework that applies to the investigation of unlawful deaths and enforced disappearance.
He then provided an outline of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017 and which formed the core of the materials used at the workshop.
Other speakers included Glenn Williams, Detective Inspector, Field Crime Manager, New Zealand Police National Headquarters, who addressed the investigation process including crime scene management; Sean Buckley, International Investigator, who addressed witness interviews; Shivani Verma of the Office of the High Commissioner for Human Rights who addressed Witness Protection; and Dr. Pornthip Rojanasunan, Adviser of Thailand’s Central Institute of Forensic Science (CIFS), who addressed the issue of forensic pathology.
This workshop followed three workshops the ICJ co-hosted between 5 to 8 December 2017 and 30 May to 1 June 2018 in Thailand on the investigation of potentially unlawful deaths and enforced disappearance for lawyers from Thailand and India, academics and State authorities from Thailand, Cambodia, Myanmar and Nepal.
Contact
Kingsley Abbott, Senior International Legal Adviser, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott(a)icj.org
Jul 24, 2018 | Advocacy, Open letters
The ICJ has submitted recommendations to Thailand’s Criminal Justice Reform Committee concerning the Draft Amending Criminal Procedure Code Act and the Draft Act On Judicial Process Timeframe, which were scheduled for public consultation today.
The ICJ welcomed the Criminal Justice Reform Committee’s efforts to enhance the effectiveness and fairness of the criminal justice system in Thailand, through proposed amendments to Thailand’s Criminal Procedure Code B.E. 2551 (2008) and the Judicial Process Timeframe Act.
The ICJ noted, however, that modifications would be necessary to some of these amendments to ensure they optimally served the ends of justice and were in conformity with international standards.
In particular, the ICJ commended the Committee’s inclusion within the Draft Amending Criminal Procedure Code Act of the following provisions and made recommendations as to how these provisions could be further strengthened:
- Section 13/1. Video and audio recordings of arrests and/or searches
- Section 13/2. Prohibitions against violation of the presumption of innocence
- Sections 121/2, 123 and 124/2. Lodging of criminal complaint with the public prosecutor, at any location and through email or other online medium
- Section 136. Video and audio recordings of inquiry or interrogation
- Section 161/1. Right of the court to dismiss a case where it is filed in bad faith or with misrepresentation of facts in order to harass or take advantage of a defendant
- Section 165/1. Allowing the defendant to submit a defence plea and produce supporting evidence in court
- Section 179/1. Trial in absentia
Contact
Kingsley Abbott, ICJ Senior Legal Adviser, e: kingsley.abbott(a)icj.org
Full letter in English (PDF): Thailand-CPC-Amendments-Advocacy-Open-letters-2018-ENG
Full letter in Thai (PDF): Thailand-CPC-Amendments-Advocacy-Open-letters-2018-THA.pdf
Jul 19, 2018 | News
His Majesty King Mswati III of the Kingdom of Eswatini (formerly known as the Kingdom of Swaziland) yesterday gave his royal assent to the Sexual Offences and Domestic Violence Act, a milestone in the fight against sexual and gender-based violence (SGBV) in the country.
In its May 2018 report on key challenges to achieving justice for human rights violations in Swaziland, the ICJ identified the widespread occurrence of SGBV, with discriminatory practices based on customary laws and traditional beliefs undermining equality between men and women and the access by victims of such violence to effective remedies and reparation, as well as the holding to account of perpetrators of such violence.
Eswatini’sNational Strategy to End Violence in Swaziland 2017-2022, produced by the Office of the Deputy Prime Minister in collaboration with the UN Population Fund, itself pointed to an alarming rate of increasing violence in all its forms, noting that its most common form was gender-based violence, disproportionately affecting women and girls.
The new law follows a protracted legislative process, first initiated in 2009; then resumed in 2015. It has also been accompanied by increasing attention and concern by international human rights mechanisms, including the UN Human Rights Committee and the Committee on Elimination of Discrimination against Women.
Building on ICJ initiatives to bring together international, regional and local SGBV experts in 2015, and on sustainable development goals on access to justice and gender equality in 2017, the ICJ with local partners convened a workshop on combatting SGBV in Swaziland in February 2018. In consultations during and around this most recent workshop, interlocutors signaled fears that the Senate of Swaziland was equivocating on passage of the 2015 Bill. Responding to local partners’ requests, the ICJ made a submission to the Senate in March 2018, bringing to its attention to the global and regional obligations of the Kingdom to enact the legislation, as well as the Government’s own commitments to do so. The Senate soon after voted to adopt the legislation.
The new law for the first time criminalizes marital rape and other domestic violence offences; makes provision for Specialised Domestic Violence Courts; creates mechanisms and avenues for reporting of offences; and requires medical examination and treatment of victims. These are issues that had not been previously provided for.
Enactment of the law is significant, incorporating into domestic law a very large part of Eswatini’s international human rights obligations, including those arising from the Africa region, to criminalize and sanction the perpetrators of SGBV. It also discharges commitments made by His Majesty’s Government during the 2016 Universal Periodic Review.
Just as important will be the effective implementation of the new law to combat SGBV by bringing perpetrators to account and providing victims with access to justice.
With a view to enhancing the prospects of an effective and comprehensive approach to that end, the ICJ’s Commissioner, and Principal Judge of the High Court, Justice Qinsile Mabuza, will next week be coordinating a meeting of governmental justice sector stakeholders involved in combatting SGBV in the country. This first coordinated meeting of governmental actors will focus on issues of investigation, prosecution and sanctioning of sexual and gender-based violence crimes, including the role of social and medical services.
The ICJ is also commissioning a report on the access of victims of SGBV to effective remedies and reparation. Focused on case studies, the report will include attention to lack of justice through acquittals that have been prompted by inadequate laws or procedures and/or through lack of prompt or sufficient forensic or medical evidence. This report will feed into discussions at a second meeting of governmental justice sector stakeholders, intended for 2019.
Jul 13, 2018 | News
The Sri Lankan Government should reconsider and reverse its decision to bring back the death penalty for drug related offences, the ICJ said today.
On 10 July, the Sri Lankan Cabinet unanimously approved an action plan to implement the death penalty for “drug smugglers”.
According to the spokesperson of the Cabinet, 19 people convicted for “large scale drug offences” who “are still involved in drug trafficking…from within prisons” would initially be those initially designated for execution.
Sri Lanka has had a moratorium on the death penalty for over four decades.
The last execution carried out in the country was in 1976.
“The resumption of executions of convicted drug offenders would constitute a violation of the right to life under international law,” said Ian Seiderman, ICJ’s Legal and Policy Director.
”And, based on experience around the globe, it will not in any way serve the purported objective of tackling the problems of drug-related crime in Sri Lanka,” he added.
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which Sri Lanka acceded to in 1980, guarantees the right to life and requires that states that have not yet abolished the death penalty must restrict capital punishment to only the “most serious crimes”.
The UN Human Rights Committee, the supervisory body for the ICCPR, considers that the death penalty may never be used for drug offences.
The extraordinarily retrograde measure of resuming executions following a 42-year moratorium would also constitute a violation of article 6, which contemplates at least progressive movement towards abolition.
The UN General Assembly has repeatedly adopted resolutions emphasizing that that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view to its abolition.
In 2016, an overwhelming majority of 117 UN Member States – including Sri Lanka – voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty.
“At least 150 countries have now either abolished the death penalty in law or practice,” added Seiderman.
The ICJ considers the death penalty to be a violation to the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
The ICJ urges Sri Lanka to reinstate its moratorium on executions and take steps towards taking all necessary measures to abolish the death penalty.
Contact:
Ian Seiderman, ICJ’s Legal and Policy Director, email: ian.seiderman(a)icj.org
Reema Omer, ICJ’s International Legal Advisor, South Asia, email: reema.omer(a)icj.org
