Mar 9, 2017 | News
Amnesty International and the ICJ regret the decision of Thailand’s National Legislative Assembly (NLA) to further delay the passage of essential legislation criminalizing torture and enforced disappearances.
Our organizations call on the Thai government to cease its stalling measures and instead prioritize the amendment of the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (Draft Act) in order to bring it into line with international law. The government should then ensure its passage into law without undue delay.
On 28 February, the Office of the High Commissioner for Human Rights announced that it had been informed that the NLA would not enact the Draft Act. The following day, an NLA official speaking to BBC Thai confirmed that the draft would be “returned [to the Thai Cabinet] for more consultations… with Interior officials, police authorities, the national security sector, military authorities and prosecutors.”
The Draft Act is the result of years of effort by government authorities, including by Ministry of Justice officials who consulted with our organizations and took account of many of our recommendations in elaborating it. The draft was approved by Thailand’s Cabinet in May 2016.
The recent decision by the NLA has indefinitely delayed the enactment of this important piece of legislation, which would represent a significant step towards preventing torture and enforced disappearances in Thailand.
The slow-tracking of this law in the face of all the commitments Thailand has made over the years right up to last year is extremely disappointing, especially for the victims of torture and enforced disappearances who have struggled to obtain justice in the absence of a clear legal framework.
The most recent version of the Draft Act addresses many existing gaps in Thailand’s current legal framework and could support Thailand’s compliance with its obligations under international human rights law. However, further amendments are needed to address significant shortcomings in the Draft Act.
In particular, the Draft Act omits key elements from the definitions of torture and enforced disappearances, does not criminalize acts of cruel, inhuman or degrading treatment, and fails to define enforced disappearance as a continuing crime. Additionally, the Draft Act does not extend criminal liability beyond the direct commission of the act and fails to unequivocally bar the use as evidence in court proceedings of statements obtained by torture.
Thailand should make it a top priority to address these and other concerns and to enact the law as soon as possible. The urgent need to amend and enact the Draft Act is underscored by recent reports alleging the use of torture and other ill-treatment by state security forces and the continued failure to hold accountable perpetrators of torture, other ill-treatment and enforced disappearances.
Our organizations remain committed to providing any necessary assistance to the Thai government in amending the Draft Act or otherwise acting to prevent torture and enforced disappearances in Thailand.
Background
Thailand is a state party to the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and has signed, but not ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
The expert UN bodies overseeing the implementation of these treaties have consistently called upon states parties to criminalise torture and enforced disappearance as specific crimes.
On 13 and 14 March 2017, the UN Human Rights Committee will review Thailand’s compliance with the ICCPR.
In Thailand’s 15 November 2016 reply to the Committee’s List of Issues,[1] it noted that it was in the process of passing the Draft Law which would “provide clear definition and set up specific offence on torture to be in line with the terms set forth under CAT” and “serve as an implementing legislation for ICPPED.”
It also noted that the Draft Act “aims to strengthen the prevention, suppression, and prosecution mechanism and to ensure remedy for victims as well as address the problem of misuse, and abuses of power by government authorities with regard to torture and enforced disappearances.”
It concluded by noting that “[o]n 24 May 2016, the Cabinet approved the draft Act in principle. The draft has been reviewed by the Council of State and is currently waiting to be submitted to the legislative branch for consideration.”
[1] Human Rights Committee, “Replies of Thailand to the List of Issues,” U.N. Doc. CCPR/C/THA/Q/2/Add.1, para 51.
Thailand-Joint Statement-Torture Legislation-News-2017-ENG (Press release in PDF)
Contact
Kingsley Abbott, Senior International Legal Adviser for Southeast Asia, Tel: +66 94 470 1345, E-mail: Kingsley.abbott(a)icj.org
Mar 3, 2017 | News
15 HRDs from Mozambique, including lawyers and journalist working in different provinces and towns of Mozambique including Nampula, Manica, Tete, Sofala and Beira held a strategy meeting for the protection of human rights defenders (HRDs) in Maputo from 2-3 March 2017.
The meeting was facilitated by the ICJ in collaboration with the Southern Africa Human Rights Defenders Network (SAHRDN) supported by the Open Society Foundations (OSF) and Open Society Institute of Southern Africa (OSISA).
Participants reflected on the state of human rights in Mozambique with a focus on prevailing political and economic conditions requiring urgent multi-pronged interventions to support HRDs.
The participants developed practical steps for legal protection of HRDs, enhancing a HRDs network, the nature of services and safety mechanisms required to protect HRDs including in violent conflict. In addition, ideas on how to address business and human rights violations were explored.
The use of strategic litigation at the domestic and international level to protect human rights was looked at and specific situations mapped as requiring some attention.
Linkages to regional and international human rights mechanisms for protection purposes and challenging impunity were discussed and some initial measures to take at the African Commission on Human and Peoples Rights were identified.
Contact
Arnold Tsunga, ICJ Regional Director for Africa, t: +27 716405926, e: arnold.tsunga(a)icj.org
Feb 28, 2017
The ICJ today called on the Lebanese authorities to introduce comprehensive legal and policy reforms to ensure that the judiciary is fully independent, impartial and accountable.
Measures must be taken to ensure that the judiciary is not subject to any form of undue influence by political actors and confessional communities, and that it is able to fulfill its responsibility to uphold the rule of law and human rights, added the Geneva-based organization.
The statement came as the ICJ published three legal briefings analyzing aspects of the legal framework regulating the ordinary justice system, in particular Decree-Law No. 150/83 on the organization of the judiciary. The briefings formulate recommendations for amending the provisions relating to the High Judicial Council, the management of the career of judges, and judicial accountability.
“Decree-Law No. 150/83 does not guarantee judicial independence at the institutional and financial levels, nor does it adequately safeguard the independence of individual judges,” said Said Benarbia, ICJ Director of the Middle East and North Africa Programme.
“If anything, it allows for improper political influence over virtually every aspect of judges’ careers, including their selection and appointment, their transfer through arbitrary procedures, and their discipline, suspension and removal through unfair and opaque proceedings”, he added.
The assessment by the ICJ concludes that instead of acting as a check against improper political influence in judicial matters, the High Judicial Council itself is vulnerable to such influence. This is evident in the fact that the Minister of Justice is empowered to appoint eight of the Council’s ten members and sets the budget of the High Judicial Council and of the judiciary as a whole.
In its briefings, the ICJ called for:
- the majority of members of the High Judicial Council to be judges who are elected by their peers;
- the establishment of detailed and objective criteria for all elected and appointed candidates, including for the appointment of the President and the Public Prosecutor of the Court of Cassation; and
- the High Judicial Council to be given full control over its financial resources.
The ICJ also called for legal reforms to be introduced to reinforce the independence of individual judges. These are necessary to ensure that their selection, appointment, transfers and evaluations are based on transparent procedures and objective criteria, and that any disciplinary action against them is only pursuant to well-defined standards and respectful of all due process guarantees.
Under the current framework, the system for evaluating and promoting judges is opaque and open to cronyism and, in particular, to the undue influence of the executive and political actors. In addition, the Minister of Justice holds an outsize role in the process of selecting and appointing judges, and in initiating disciplinary proceedings against them, referring matters to the disciplinary council, and suspending judges pending a disciplinary decision.
“Ensuring that, once reformed and independent, the High Judicial Council is exclusively competent to manage all aspects of the careers of judges is a sine qua non condition not only to establish and uphold judicial independence, but also to restore the public faith and confidence in the integrity of the Lebanese justice system,” concluded Benarbia.
Contact
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41 22 979 38 17: said.benarbia(a)icj.org.
Lebanon-judicial independence-News-Press release-2017-ARA (full story in Arabic, PDF)
Lebanon-Memo re HJC-Advocacy-Analysis Brief-2017-ENG (legal briefing on High Judicial Council, English, in PDF)
Lebanon-Memo re judges-Advocacy-Analysis Brief-2017-ENG (legal briefing on careers of judges, English, in PDF)
Lebanon-Memo re accountability-Advocacy-Analysis Brief-2017-ENG (legal briefing on judicial accountability, English, in PDF)
Lebanon-Memo re HJC-Advocacy-Analysis Brief-2017-ARA (legal briefing on High Judicial Council, Arabic, in PDF)
Lebanon-Memo re judges-Advocacy-Analysis Brief-2017-ARA (legal briefing on careers of judges, Arabic, in PDF)
Lebanon-Memo re accountability-Advocacy-Analysis Brief-2017-ARA (legal briefing on judicial accountability, Arabic, in PDF)
Feb 27, 2017 | News, Publications, Reports, Thematic reports
The Government of Myanmar should impose a moratorium on the development of Special Economic Zones (SEZs) until it can ensure SEZs can be developed inline with international human rights laws and standards, said the ICJ at a report launch held today in Yangon.
The 88-page report, entitled Special Economic Zones in Myanmar and the State Duty to Protect Human rights, assesses the laws governing Myanmar’s SEZs and finds that the legal framework is not consistent with the State’s duty to protect human rights.
For example, a case study examining the Kyauk Phyu SEZ in Rakhine State shows that the land acquisition process initiated in early 2016 lacks transparency, does not comply with national laws on land acquisition, and risks violating the rights of 20,000 residents facing displacement.
“The SEZ Law undermines the protection of human rights, and critical legal procedures are often poorly implemented, so the Kyauk Phyu project risks repeating the rights violations that have been associated with SEZs in the past,” said Sam Zarifi, the ICJ’s Asia Director.
“The NLD-led Government can make a break from the past by ensuring economic development projects benefit Myanmar’s people, rather than rushing to facilitate projects which result in human rights violations and ultimately undermine sustainable development,” he added.
Myanmar’s legal framework for SEZs is based on the 2014 SEZ Law and incorporating national laws governing land, labour and the environment.
The report shows that while national laws require Environmental Impact Assessments and the application of international standards on involuntary resettlement, the SEZ Law does not establish clear accountabilities for the implementation of these procedures.
This has contributed to human rights violations and abuses in each of Myanmar’s three SEZs, the report says.
“It has been encouraging that government officials have emphasized their commitment to protecting human rights in SEZs in line with the rule of law,” said Sean Bain, the ICJ’s Legal Consultant in Myanmar and lead author of the report.
“The legal reforms recommended in this report will be critical to meet these commitments while fulfilling the State’s duty to protect human rights in SEZs. We also suggest that investors take heightened due diligence measures to ensure they are not complicit in rights violations,” he added.
The report was based on extensive legal research as well as interviews with over 100 people, from affected communities to investors and government officials, during 2016.
Key recommendations to the Government of Myanmar
- Protect human rights in Myanmar’s SEZs by amending the SEZ Law, through meaningful public consultation in accordance with international standards.
- Order a moratorium on the development of SEZs, and on entering related investment agreements, until the SEZ Law has been amended to ensure conformity with international human rights law and standards.
- Commission a Strategic Environmental Assessment for the Kyauk Phyu SEZ, in line with Myanmar’s environmental conservation laws. This would involve consultation to inform decision-making on the Kyauk Phyu SEZ and related projects, by identifying cumulative environmental and social impacts of all the developments in Kyauk Phyu, while considering conflict dynamics and economic development in Rakhine State.
- Suspend land acquisition in Kyauk Phyu until after the completion of a resettlement plan that is in line with international standards, as required in the EIA Procedure.
Contact
Sean Bain, ICJ Legal Consultant in Myanmar, t: +95 9263533230 ; e: sean.bain(a)icj.org
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-ENG (full report, in PDF)
Myanmar-SEZ assessment SUMMARY-Publications-Reports-Thematic reports-2017-ENG (executive summary of the report, in PDF)
Myanmar-SEZ assessment full-Publications-Reports-Thematic reports-2017-BUR (Burmese version of full report, in PDF)
Myanmar-SEZ assessment-Publications-Reports-Thematic reports-2017-BUR (Burmese version of the executive summary, in PDF)
Feb 13, 2017 | News
The workshop, held from 11-12 February in Sittwe, brought lawyers and civil society together to discuss of experiences of strategic litigation elsewhere in Myanmar and the region, and consider potential public purpose litigation cases in Rakhine State.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser in Myanmar, provided an introduction to strategic litigation as a method for promoting accountability in a time of transition in governance.
He noted the critical role of independent lawyers in protecting human rights, by representing clients from all communities in Rakhine State.
And he emphasized the importance of strategic litigation as a means to prevent violations and abuses of human rights, or to seek reparations where violations and abuses have occurred.
Kingsley Abbot and Jintana Sakulborirak, from the ICJ’s Asia Regional Office in Thailand, discussed strategic litigation cases from the region, including in northern Thailand where community members have launched an action to appeal the legality of land acquisition for a planned SEZ in Tak Province.
The cases highlighted how media engagement is a critical part of strategic litigation, to raise public attention on human rights issues and demands for accountability in the implementation of investment projects.
Daw Aye Mon Thu, advocate from Dawei Pro Bono Lawyers Network presented the experiences of Heinda Mine cases from Dawei Region, Southern Myanmar, emphasizing the importance of trust-building and cooperation with local community as stake-holder. Such a strategic litigation cases are extremely rare in Myanmar.
Discussions followed about potential cases for strategic litigation from Kyauk Phyu and Sittwe, including issues related to land acquisition for railways construction and an SEZ appear to have been carried out unlawfully in violation of human rights.
Participants discussed the principle of undertaking litigation for broader advocacy objectives rather than solely focusing on actually winning the case in the court.
They also reflected on the challenges and limitations for Myanmar lawyers to undertake strategic litigation.
Highlighting the vital role of lawyers, speakers encouraged participants to consider strategic litigation as a means to challenge unlawful acts that violate or abuse human rights, particularly accompanying business enterprises.
Rakhine State is among Myanmar’s poorest and most isolated provinces, where lawyers and CSOs have had limited exposure to concepts of human rights and international laws.
This workshop, the first of its kind to be held in Rakhine State, is part of efforts to address this gap by building legal literacy on international human rights law and lawyers to consider litigation as a strategy to protect human rights.
