Feb 14, 2018 | Advocacy, Non-legal submissions
The ICJ has set out key principles and sources on judicial councils and other national mechanisms for selecting, appointing, promoting, transferring, suspending or removing judges, in a submission to the UN Special Rapporteur on the independence of judges and lawyers.The submission was made in response to a call by the Special Rapporteur for input to a report he will present at the June 2018 session of the Human Rights Council.
The ICJ submission highlights that judicial councils are a proven means of safeguarding judicial independence and ensuring judicial accountability. It recommends that, even in countries where judicial independence and accountability have traditionally been secured by other means, consideration should be given to the establishment of a judicial council.
The submission stresses that judicial councils must be fully independent of the executive and legislative branches of government, and notes several key safeguards to help secure such independence.
The ICJ recommends that such judicial councils should in principle be responsible for all decisions relating to the selection, appointment, promotion, transfer, discipline, suspension and removal of judges.
The submission also highlights the need for diversity of membership of such councils to ensure its representativeness of the society the judiciary is to serve, that it reflects a cross-section of the judiciary as a whole, and that it has the experience and expertise needed to be effective.
The full submission can be downloaded in PDF format here: Global-UN-SRIJL-JudicialCouncils-2018
Most of the sources cited in the submission are available here.
Related and more detailed guidance is available in the ICJ’s 2016 Practitioners’ Guide no. 13 on Judicial Accountability, as well as the 2007 Practitioners’ Guide no. 1 on Independence and Accountability of Judges, Lawyers and Prosecutors.
More information about the Special Rapporteur is available here.
For more information about the ICJ and judicial councils and similar mechanisms, contact Matt Pollard (matt.pollard(at)icj.org)
Feb 13, 2018 | Advocacy
The ICJ, together with other NGOs, has expressed serious concerns about the current wording of the draft Copenhagen Declaration on the future of the European Convention on Human Rights (ECHR) system, which has been proposed by the Danish government.
In a joint response to the first draft of the Copenhagen Declaration, the group of NGOs welcomed the willingness of the Danish government to engage with civil society in developing the Declaration, which is to be finalised at an intergovernmental conference in Copenhagen in April 2018.
However the NGOs expressed concerns that some of the language of the Declaration appears to diminish the role of the European Court of Human Rights, and risks fragmenting the European human rights protection system as well as undermining the independence of the Court. The NGOs emphasised that:
- The Declaration should affirm the need to respect and preserve the independence of the European Court of Human Rights, and should omit any language or proposals that put the independence of the Court at risk;
- Effective human rights protection at the national level must be subject to the supervision of the European Court of Human Rights;
- Greater emphasis should be given to the role of civil society in implementing the ECHR at the national level, and this should be taken into account in developing proposals for more effective implementation;
- The universality of human rights protection should be respected, and the text should be worded to highlight the importance of all human rights in all situations across all of the Council of Europe states;
- The Declaration must not call into question the Court’s authority to review human rights cases concerning asylum and immigration, or those arising from international conflicts;
- Governments should not be given further opportunities to influence the Court, nor should the Declaration provide a pretext for states to exert political pressure on the Court;
- Council of Europe States should not only implement the European Convention on Human Rights, but also act promptly to execute judgments of the European Court;
- National processes for the selection and election of European Court judges should be further strengthened.
Europe-JointNGO-Response-Copenhagen-Declaration-Advocacy-2018-ENG (Full document in PDF)
Feb 7, 2018 | News
The judgment yesterday by three Supreme judges of a rump Supreme Court that overturned order of the full Supreme Court to release nine members of opposition political parties lacks legitimacy, the ICJ said today.
On 1 February, the Supreme Court had ordered the release of nine members of the opposition parties, who had been convicted for or charged with a wide range of offences, and held the cases required “retrial and judgments pursuant to the law”.
The petitioners had alleged the criminal proceedings against them were based on “political motivations” and were in violation of the Constitution of the Maldives and its international human rights obligations.
Instead of implementing the judgment, the Government responded by declaring a state of emergency and suspending a range of human rights protections.
On the night of 5 February, the national defense forces and the police forcefully entered the Supreme Court.
The Chief Justice held members of the forces in contempt of court, after which they dragged the Chief Justice out of the Court premises.
The Chief Justice and Justice Ali Hameed were later arrested on charges of corruption and “obstructing administration of law or other government function”.
On 6 February 2018, the remaining three judges of the Supreme Court overturned parts of the 1 February judgment, including the directions to release members of the opposition parties, “in light of the concerns raised by the President.”
“The judgment by three judges on Tuesday, reversing an order by the full court, lacks legitimacy. By unlawfully arresting two members of the Court, including the Chief Justice, the Government has effectively stripped the Supreme Court of all its independence and impartiality,” said Ian Seiderman, ICJ’s Legal and Policy Director.
“The arrest of judges Abdulla Saeed and Justice Ali Hameed for carrying out their proper and legitimate judicial functions would have sent a clear message to the remaining judges that any exercise of independence that was contrary to wishes of the governments would not be tolerated,” Seiderman added.
The ICJ also highlighted that conduct of the remaining judges of the Supreme Court suggests a risk that they themselves could become complicit in ongoing human rights violations.
The ICJ also expressed concern at the health of Justice Ali Hameed, who was taken to the hospital on Tuesday night and is feared to be in critical condition.
His family has reportedly been denied access to him.
The ICJ has also learned that Justice Ali Hameed’s family members have been detained and are being denied access to lawyers.
There are also credible reports that suggest Justice Ali Hameed is being detained in very small cells with poor ventilation that get very hot because of direct sun exposure for prolonged periods – which could be a possible cause of his health condition.
“The detention of judges and their family members and their possible ill-treatment smacks of retribution, which is prohibited under Maldivian and international law,” said Seiderman.
The ICJ urged the Government to immediately lift the state of emergency, release judges of the Supreme Court and all other political prisoners, implement the 1 February ruling of the Supreme Court and ensure the independence of the judiciary.
Contact:
Ian Seiderman, ICJ Legal and Policy Director, e: ian.seiderman(at)icj.org
Reema Omer, ICJ International Legal Adviser for South Asia (London), t: +447889565691; e: reema.omer(at)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.
Furthermore, international standards provide that all complaints against judges in their judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure; they shall have the right to a fair hearing; and they shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
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 22, 2018 | News
The ICJ today called on the Egyptian Parliament to adopt a Draft Law on the appointment of women to the judiciary and to eliminate longstanding discrimination against their appointment as judges.
The Draft Law was introduced by member of the Parliament (MP) Nadia Henry this month and is supported by another 60 MPs.
The Speaker of Parliament has referred it to the legislative committee for review.
“Ensuring women’s full and equal participation in Egypt’s judiciary is necessary for a fair legal system reflective of the community it serves,” said Said Benarbia, ICJ MENA Director.
“It’s also necessary to end decades of discriminatory practices that have meant only a handful of women judges have ever been appointed despite explicit guarantees of equality in the Constitution,” he added.
Article 11 of the Constitution requires the State to ensure the “achievement of equality between women and men in all civil, political, economic, social and cultural rights,” including the right of “holding public and senior management offices in the state and their appointment in judicial bodies and authorities without discrimination”.
Women were first appointed to judicial office in 2007. Between 2007 and 2017 there were less than 67 female judges across Egypt, for a population of more than 100 million.
This significant under-representation of women is entrenched in a widespread discriminatory view, including within the judiciary itself, that working as a judge in court was an inappropriate profession for women.
“The Draft Law is significant first step towards challenging these discriminatory views and harmful practices. The Authorities must not only adopt it, they must also adopt other urgent, practical and structural measures to fully guarantee the rights of women to have equal access to judicial office and ensure their equal representation in the judiciary,” Benarbia added.
Background
The first article of the draft law places an obligation on all judicial bodies to appoint women to judicial offices and ensure that the conditions of their appointment are consistent with those that are applicable to men.
In its second article, the draft law nullifies any law that infringes on the obligation set forth in Article 1. Article 3 of the draft law invalidates any procedures in relation to the appointment of judges if such procedures do not comply with the Article 1 of the draft law.
Article 10 of the UN Basic Principles on the Independence of the Judiciary provide that, “In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status…”.
The Convention for the Elimination of Discrimination against Women and the International Covenant on Civil and Political Rights, key human rights treaties to which Egypt has been party since the early 1980s, also explicitly prohibit discrimination against women, including in relation to access to public office such as judicial appointments.
Contact
Saïd Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41.22.979.3817, e: said.benarbia(a)icj.org
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