Apr 3, 2020 | Comunicados de prensa, Noticias
Miles de personas pertenecientes a los Pueblos Indígenas de Guatemala (Mayas, Garífunas y Xincas), corren el riesgo de ser víctimas de la pandemia COVID-19, si el Gobierno no les provee, de manera inmediata, la información necesaria y les asegura el acceso a un adecuado servicio de salud, sin discriminación, afirmó hoy la CIJ.
“Los Pueblos Indígenas de Guatemala, enfrentan el riesgo de sufrir los efectos destructivos de la pandemia COVID-19, debido a la discriminación histórica y sistemática en su contra; lamentablemente, en la actual crisis, los Pueblos Indígenas no tienen acceso a información clara y sencilla, para saber cómo protegerse de la pandemia y cómo ser protegidos durante la emergencia, por el Sistema de Salud”, afirmó Ramón Cadena, Director de la CIJ para Centroamérica.
“Las comunidades indígenas que más podrían sufrir los efectos de la pandemia, son aquellas que sufren el abandono absoluto del Estado de Guatemala y viven en extrema pobreza en la frontera con México en el norte y occidente del pais”, añadió.
La CIJ requirió a las autoridades del Gobierno de Guatemala, que garanticen que fluya información clara sobre medidas concretas de salud pública, en los idiosmas Mayas (Ixil, Quiché, Mam, Q´eqchí, Kakchiquel, Canjobal, Chuj y otros), así como en los idiomas Garífuna y Xinca.
Durante la pandemia, el Estado de Guatemala no ha tomado en cuenta las dificultades (financieras, geográficas, tecnológicas y barreras lingüisticas) que enfrentan los Pueblos Indígenas, en lo que respecta al acceso a la información. Por el otro lado, la CIJ ha observado que la información sobre las medidas gubernamentales para enfrentar la pandemia, ha sido comunicada en forma muy limitada.
Los Pueblos Indígenas han sido excluidos del Sistema Oficial de Salud, por la discriminación de que son objeto y por la falta de recursos gubernamentales que se invierten en el Sistema de Salud, luego de los procesos de privatización de los servicios sociales, que se han venido implementando a partir de la firma de los Acuerdos de Paz.
“La debilidad del Sistema de Salud Pública, la prevalencia del racismo existente desde siglos atrás y la marcada desigualdad que sufren los Pueblos Indígenas, agravan aún más el impacto potencial que el Corona virus y la pandemia podrán tener en los Pueblos Indígenas”, afirmo Cadena.
La CIJ insta al Estado de Guatemala a tomar las medidas legislativas, administrativas y judiciales necesarias para preservar los derechos humanos de los Pueblos Indígenas durante la presente emergencia y específicamente, para preservar el derecho a la salud, a la alimentación y a la vivienda; asímismo, para garantizar una vida digna a los Pueblos Indígenas, libres de cualquier amenaza a sus derechos civiles y políticos.
“Todas las medidas que el Gobierno implemente para mitigar los efectos de la pandemia, deben ser estrictamente necesarias, legítimas, proporcionadas y temporales”, afirmó Cadena.
“Hay algunas garantías como el derecho a la Reparación y el Derecho de Acceso a la Justicia, que no pueden limitarse ni suspenderse en ninguna circunstancia, ya que son vitales para que las y los ciudadanos, incluidos los Pueblos Indígenas, puedan defender sus derechos. Tomando en cuenta que la presente pandemia afecta el Sistema Legal en diferentes formas, el Gobierno de Guatemala tendrá que tomar medidas específicas para evitar la discriminación en contra de los Pueblos Indígenas y para garantizar el Derecho de Acceso a la Justicia, durante la pandemia”, finalizó Cadena.
Apr 3, 2020 | News
Millions of indigenous people in Guatemala (Mayas, Garífunas and Xincas) are at increased risk of falling victim to COVID-19 unless the government immediately provides them with necessary information and ensures they have access to adequate health care without discrimination, the ICJ said today.
“Guatemala’s indigenous people face an increased risk of suffering during this global pandemic because of the historic and systemic discrimination against them, which means that they don’t have access to proper information needed to protect themselves, nor to health care should they fall ill because of COVID-19,” said Ramón Cadena, ICJ’s Central America Director.
“The most suffering indigenous communities could be those very poor indigenous communities living at the border with México.”
The ICJ called on Guatemalan authorities to ensure that information about public health measures regarding COVID-19 be offered in the languages most used by indigenous communities (mayan languages such as ixil, quiché, mam, q´eqchí, kaqchikel; and garífuna and xinca languages).
During the pandemic the State of Guatemala has not taken into account the difficulties, such as financial, geographical, technological or linguistic barriers, that indigenous people face in accessing information.
On the other side, the ICJ has noticed that the information about the governmental measures to face the pandemic, has been disseminated in a very limited way.
Indigenous communities have been excluded from the official health system because of the discrimination against them and the lack of resources invested in the health system of Guatemala due to processes of privatization of social services, which have been implemented in Guatemala after the signature of the Peace Accords.
“The general weakness of the Guatemalan public health system, historic racism against the indigenous community and the tremendous general social inequality in the country all aggravate the potential impact of the pandemic on the indigenous community,” Cadena said.
The ICJ urges the State of Guatemala to take the necessary legislative, administrative, and judicial measures to protect Indigenous Peoples and preserve their human rights during the current emergency, specifically their right to health, food, and housing.
The ICJ also called on the Guatemalan government to avoid measures that threaten the life and dignity of people, including those from the indigenous community who are generally most subject to violations of their civil and political rights.
“Any measures taken in response to the pandemic must be limited to those that are strictly necessary, legitimate, and proportionate to the risk facing the community, and limited in time and subject to review,” Cadena said.
“There are certain guarantees, such as the right to an effective judicial remedy, that cannot be suspended or repealed and that are vital so that citizens, including indigenous people, can safeguard their rights, and even as the pandemic inevitably affects the legal system the government must do all it can to avoid discrimination against the indigenous community, which already suffers from racism and lack of access to justice.”
Mar 27, 2020 | News
The ICJ today called on the responsible authorities to adopt urgent measures to ensure the equal protection of the right to health and life of the country’s inhabitants in the wake of the growing COVID-19 pandemic.
The call came amidst indications that official response has been inadequate and poorly conceived.
Although Zimbabwe has only three officially confirmed COVID-19 cases and one casualty so far, the true figures are likely to be higher.
Media reports indicate that the health care facilities designated to deal with COVID-19 cases are severely under equipped. Doctors and nurses have announced that they are withdrawing their services because government is failing to provide them with protective clothing such as masks and gloves.
“The ICJ is deeply concerned by the poor state of preparedness of the Zimbabwean Government to handle COVID-19 cases,” said Arnold Tsunga, ICJ African Programme Director.
“The COVID-19 pandemic has brought to the fore cracks in health systems and presented governments everywhere with unprecedented challenges. The government’s response should however remain steeped in obligations espoused in the Constitution and international legal instruments to which Zimbabwe is a party,” he added.
The ICJ called on the Government of Zimbabwe to take urgent measures, include those aimed at ensuring that its healthcare system can provide for adequate screening, testing and care for COVID-19 patients.
The ICJ said that the Government must also investigate reports of the mishandling of patients, increase transparency and regular communication with the public and dedicate more resources to dealing with the COVID-19 pandemic.
Background
Zimbabwe announced its first confirmed case of COVID-19 on 21 March. The first casualty was recorded on 23 March. On 25 March 2020, the Ministry of Health and Child Welfare reported that a total of 100 people had been tested for COVID-19. Of these, 96 were negative, three tested positive and one test was found to be inconclusive.
Zimbabwe is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which imposes a duty to protect the right of everyone to enjoyment of the highest attainable standard of physical and mental health. Zimbabwe is also party to the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights, both of which guarantee the right to life.
Pursuant to Section 76 (1) of the Constitution of Zimbabwe, the government must provide access to basic health care services to all citizens and residents. Further, section 76 (3) of the Constitution enjoins government to ensure that no person is denied emergency medical treatment in any health care facility. In addition, government has an obligation, under section 51 of the Constitution, to protect human dignity.
The Committee on Economic, Social and Cultural Rights has set out the minimum standards which must be fulfilled at all times for States that are party to the IECSCR;
- Quality: Heath care facilities should be equipped with necessary equipment and medicine including safe and adequate water, sanitation and skilled medical professionals.
- Availability: Health care facilities with adequately trained and fairly-paid medical personnel and essential medicines should be made available to all.
- Accessibility: Health care facilities should be accessible to all without discriminating. Accessibility also includes physical accessibility, economic accessibility and access to information.
- Acceptability: Health care services should be provided in a manner that complies with medical ethics.
Measures undertaken by the Government of Zimbabwe, in response to the COVID-19 pandemic must adhere to these minimum standards. However, the ICJ has noted the following allegations and reports from credible media sources;
- Gross under-testing of people despite showing most of the COVID-19 symptoms;
- Absence of protective gear for health care workers;
- Lack of training of health care workers on the proper handling of COVID-19 related patients;
- Mishandling/ill treatment of patients at COVID-19 health care centres;
- Absence of equipment such as ventilators and respirators;
- Absence of running water at designated COVID-19 health care centres;
- Insufficient staffing at the designated COVID-19 care and isolation centres, as a result of some doctors and nurses having gone on strike;
- Government is establishing fully equipped COVID-19 health care facilities but exclusively for the political elites and their associates.
Contact:
Arnold Tsunga, Director of the ICJ Africa Regional Programme, t: +263 77 728 3248, e: arnold.tsunga(a)icj.org
Mar 20, 2020 | News
Today, the ICJ submitted recommendations on strengthening Thailand’s Anti-Strategic Litigation against Public Participation (SLAPP) law to the Ministry of Justice.
The Ministry of Justice is tasked to conduct a “study on the guidelines for development of laws, regulations or measures to prevent SLAPP,” in accordance with Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022) (NAP).
Articles 161/1 and 165/2, which are intended to implement the NAP, entered into force on 20 February 2019 and 21 March 2019. They were introduced to end SLAPP lawsuits or similar forms of harassment through the legal process against any individuals, including human rights defenders. NAP also refers to the power of a public prosecutor under Article 21 of the Public Prosecution Organ and Public Prosecutors Act as another measure to prevent SLAPP lawsuits.
The use of SLAPPs and similar procedures frequently undermine human rights, including freedoms of expression, association and assembly and the right to political participation. These are protected under Thailand’s Constitution and international human rights obligations.
In the letter, the ICJ expressed its concern that these laws were inadequate to prevent harassment through the legal process and SLAPP. The ICJ therefore called for the adoption of a comprehensive stand-alone law, or the amendment of the Civil Procedure Code and the Criminal Procedure Code, to protect human rights defenders and others from harassment through the legal process.
Background
In an effort to give effect to the UN Guiding Principles on Business and Human Rights (UNGPs), on 29 October 2019, Thailand’s Cabinet approved and adopted the First National Action Plan on Business and Human Rights, making Thailand the first country in Asia to adopt the stand-alone NAP.
The NAP sets out plans to be followed by public and private stakeholders to ensure that businesses – from small and medium-sized enterprises to multinational corporations – respect human rights, and that the government fulfils its duty to ensure remedy and reparation in cases of business-related human rights violations.
The Thai government has identified in the NAP its four key priority issues: (1) labour; (2) land, environment and natural resources; (3) human rights defenders; and (4) cross border investment and multi-national enterprises.
NAP has set out several action points aimed at protecting human rights defenders, including:
- to study the guidelines for development of laws, regulations or measures to prevent SLAPP;
- to push for the review, amendment and repeal of relevant laws, mechanisms and protocols to facilitate protection of human rights defenders, for example with respect to witness protection laws;
- to determine or review policies, protocols, procedures and mechanisms to protect human rights defenders, including women human rights defenders, and ensure their safe conditions of work, and to provide trainings for law enforcement agencies to ensure in practice these protection measures;
- to provide trainings for law enforcement officers to widen their knowledge and understanding in enforcing laws on the protection of human rights, for example with respect to the organization of assemblies, and free expression pertaining to human rights, and preventing dishonest lawsuits that attack human rights defenders;
- to provide trainings and enhance capacity of lawyers;
- to urge businesses to ensure that human rights defenders will not be sued merely calling for rights of individuals to be protected;
- to promote the use of reconciliation mechanisms at all levels of the justice system; and
- to increase access to justice of human rights defenders.
However, NAP’s effectiveness is yet to be assessed because it does not have the status of a law, and is merely a resolution by the executive branch of the Thai government. The NAP was adopted in the form of a Cabinet Resolution, which is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999).
Download the letter to the Ministry of Justice in English and Thai.
Further reading
Thailand: ICJ and HRLA express concern about inadequate protections for human rights defenders in draft National Action Plan on Business and Human Rights
Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022)
Mar 12, 2020
An opinion piece by Ruth Panjaitan, ICJ National Legal Adviser in Indonesia.
Late last year, the Indonesian parliament was about to vote on a new Penal Code to replace the existing Kitab Undang-Undang Hukum Pidana (KUHP), the culmination of decades of efforts to revise the country’s penal laws. The draft of the new Penal Code, however, was met with massive protests and vigorous public opposition that it prompted President Joko Widodo to appeal to lawmakers to postpone its passage.
The proposed Penal Code is now back in the hands of lawmakers who are promising more consultations with the public, including on its most contested and problematic provisions. The Parliament and the Ministry of Law and Human Rights jointly agreed to include the Penal Code as one of 50 priority draft laws in the national program legislative (prolegnas). It is thus expected that the Penal Code will be finalized this year.
There are a number of provisions in the draft law that, if implemented, would not comply with Indonesia’s international law obligations and would carry adverse human rights consequences for numerous people in the country. These provisions relate to such areas as the right to privacy, freedom of speech, and freedom of association.
In many ways, the law would pose particularly dire consequences for women’s human rights in Indonesia. Article 433 on adultery is one such provision that the ICJ and many human rights organizations and advocates have called on lawmakers to remove this from the draft.
The existing Penal Code already problematically criminalizes adultery, defining it as sexual intercourse between a married man or woman when the sexual partner is not his/her spouse. But under the proposed draft law, the definition of adultery has been expanded to include sexual acts between an unmarried woman and an unmarried man. Furthermore, the penalty has been increased so that a person found guilty thereof may be imprisoned for up to two years. The prosecution of Article 433 may only be commenced upon the complaint of the spouse, parents, or children of the alleged offenders.
The criminalization of adultery is not compliant with international law and standards, including the right to privacy and non-discrimination and equal protection of law. In this connection, various international human rights instruments, including the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) and the UN Working Group on Discrimination against women in law and practice, have consistently called for the repeal of laws criminalizing adultery. This is because the enforcement of adultery laws leads to discrimination and violence against women, as well as an infringement on the right to privacy.
Harmful gender stereotypes and rigid constructions of femininity lay at the core of this disparity. Women are expected to be sexually modest. A woman’s modesty is inextricably linked to her partner’s masculinity and her family’s honor. Hence, if a woman shows or is perceived to be sexually immodest, then her male partner would be viewed as weak and vulnerable. The woman would also be accused of bringing dishonor to her family. These harmful gender stereotypes are still very much present in Indonesia. In fact, in 2012, the CEDAW Committee expressed concern in its Concluding Observations on Indonesia’s periodic reports that there is the “persistence of adverse cultural norms, practices, traditions, patriarchal attitudes regarding roles, responsibilities and identities of women and men in the family and in society.”
There has been continuous trend throughout the world of countries reforming and abolishing often archaic laws criminalizing adultery. In 2018, India made the move of abolishing its colonial-era adultery law. The Philippines is now currently revising its Penal Code and one of the key considerations in the discussions is the abolition of the provisions on adultery. Indonesia now has the opportunity to step up and assert itself as a progressive leader in Asia in eliminating discrimination against women by removing the provision criminalizing adultery in its draft Penal Code.
To download in Bahasa Indonesia , click here.
This article was first published in Tempo, available at: https://kolom.tempo.co/read/1318052/dekriminalisasi-pasal-perzinaan
