Sep 19, 2013 | News
The ongoing involvement of the lead prosecutor in the hearing on the appeal against the acquittal of opposition leader, Anwar Ibrahim, raises concerns about prosecutorial impartiality, the ICJ said today.
The ICJ is particularly concerned at the failure of the lead prosecutor, Datuk Seri Muhammad Shafee Abdullah, who was said to have some prior knowledge of the facts of the case, to remove himself from involvement in the proceedings and so maintain an appearance of prosecutorial integrity and impartiality.
“This case is a significant test of the integrity of the judicial system in Malaysia, which for so long has been the subject of concern to human rights proponents, bodies and organizations,” said Justice Elizabeth Evatt, a Commissioner of the ICJ who was observing the proceedings.
The hearing on the appeal was postponed to allow the preliminary objection raised on the first day, 17 September, by the lawyers of Anwar Ibrahim against Judge Tengku Maimun Tuan Mat’s selection as a member of the three-person panel to hear the appeal.
The defense lawyers argued that there was a perception of bias due to Judge Tengku Maimun Tuan Mat’s former ruling in a libel suit involving Anwar Ibrahim and the then Prime Minister Mahathir Mohamad in 2007.
Judge Tengku Maimum Tuan Mat thereafter recused herself from the proceedings.
The Court of Appeal therefore reconvened on the second day, 18 September, with a new judge, Dato’ Rohana Binti Yusuf, to hear the motion objecting to the appointment of Datuk Seri Muhammad Shafee Abdullah as lead prosecutor in the case.
The motion was based partly on the fact that that Datuk Seri Muhammad Shafee Abdullah was present at Deputy Prime Minister Najib’s home at the same time as the complainant two days before the incidents leading to the filing of charges against Anwar Ibrahim.
At the very beginning of the case, Datuk Seri Muhammad Shafee Abdullah filed an affidavit concerning this fact, although he was not called as a witness in the proceedings.
The Court later denied the motion objecting to his appointment as lead prosecutor in this appeal, saying that there was no conflict of interest or apparent unfairness.
Justice Evatt, however, expressed concern that Datuk Seri Muhammad Shafee Abdullah had taken on the role of lead prosecutor in the appeal.
“We expect higher standards of prosecutorial conduct,” she said. “Considering the political overtones in this case, Datuk Seri Muhammad Shafee Abdullah should be especially sensitive to any appearance that might lead to a perception of bias and partiality that might arise from his earlier knowledge of facts of the case.”
The UN Guidelines on the Role of Prosecutors provide that in the performance of their duties, prosecutors shall carry out their duties with impartiality.
The ICJ also acknowledged Judge Tengku Maimun Tuan Mat’s recusal as a sign that the Court of Appeal recognized the need to appear impartial. Under the UN Basic Principles on the Independence of the Judiciary, “judges shall always conduct themselves in a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”
The Bangalore Principles of Judicial Conduct, state that to ensure such impartiality “a judge shall disqualify himself or herself from participating in any proceedings in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.”
The Court did not indicate new dates on when the hearing on the appeal would take place. The ICJ will continue to monitor this case.
The ICJ has previously condemned Malaysia’s continuing use of colonial-era criminal charges of ‘sodomy’ to cover even consensual sexual relations between adults.
The ICJ believes that Article 377B of the Malaysian Penal Code is inconsistent with respect for the right to privacy under international standards.
Justice Evatt, the first female judge to be appointed to an Australian Federal Court, a former member of the United Nations Human Rights Committee, and a commissioner of the ICJ, traveled to Malaysia to observe the appeal hearing from 17 to 18 September 2013, at the Court of Appeal in Putrajaya.
Contact:
Emerlynne Gil, International Legal Adviser, t +662 6198477 ext. 206 ; email: emerlynne.gil(a)icj.org
Sep 18, 2013
The ICJ today called on the UN Human Rights Council to urge Venezuela to withdraw charges brought against Judge Maria Lourdes Afiuni (photo) for the legitimate exercise of her professional functions.
In a General Debate under Item 5 (human rights bodies and mechanisms), the ICJ made reference to Judge Afiuni’s case as one profiled in the report of the UN Secretary-General on cooperation with the United Nations, its representatives and mechanisms in the field. Judge Afiuni was arrested in December 2009 for ordering the release on bail of Mr Eligio Cedeno, reportedly in part on the basis that his detention had been declared arbitrary by the UN Working Group on Arbitrary Detention.
The General Debate took place during the 24th regular session of the Human Rights Council (9 to 27 September 2013).
Venezuela-HRC24-Item5-OralStatement-Afiuni-LegalSubmission-2013 (download full statement, in English)
A-HRC-24-29 (download Secretary-General’s report, in English)
Sep 13, 2013 | News
The ICJ welcomes the decision of the Osh Regional Court to overturn an intermediate ruling to initiate disciplinary proceedings against two lawyers representing the interests of a victim of sexual assault.
The ICJ sent a mission to observe today’s hearing. The mission raised no issues of concern regarding the conduct of the proceedings observed.
On 3 July 2013, the Osh City Court issued an intermediate ruling to initiate disciplinary proceedings against two lawyers, Valerian Vakhitov, Khusanbai Saliyev, for taking procedural steps provided for under Kyrgyzstan law, including filing motions to the upper judicial instances or filing motions to recuse the judge during and not before the trial.
Today, the Osh Regional Court upheld lawyers’ appeal and overturned the decision to initiate disciplinary proceedings against the lawyers.
The case concerns charges against a teacher in a religious institution for sexual acts with one of his students, a nine-year-old boy.
The representatives of the defendant alleged that he is not criminally responsible by reason of insanity – a proposition contested by the lawyers of the victim. The main trial is ongoing.
The trial was observed by an ICJ trial observation mission: Oleg Levytskyy (Ukraine) and Almaza Osmanova (Kyrgyz Republic).
The observers met with the court, the prosecutor, representatives of the victims and the defendant.
“We welcome the decision to overturn the ruling to initiate disciplinary proceedings against these lawyers,” said Róisín Pillay, Director of the ICJ Europe Regional Programme. “In accordance with international standards, it is the lawyers’ duty to assist their clients in every appropriate way and take legal action to protect their interests. Therefore punishing lawyers for their diligent work would run contrary to the obligation of the state to guarantee that lawyers can carry out their functions without intimidation, hindrance, harassment or improper interference.”
Contacts
Róisín Pillay, Director, ICJ Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org
Kyrgyzstan-Osh_Lawyers_Trial Observation-news-web story-2013-rus (full text in pdf)
Sep 12, 2013 | News, Uncategorized
Justice Elizabeth Evatt AC (photo), will be observing the hearing of the appeal of Anwar Ibrahim’s case from 17 to 18 September 2013 at the Court of Appeal in Putrajaya.
Justice Evatt is the first female judge to be appointed to an Australian Federal Court, a former member of the United Nations Human Rights Committee, and a commissioner of the ICJ.
Anwar Ibrahim is a Malaysian politician and is currently the leader of the opposition party, Parti Keadilan Rakyat, and the opposition alliance known as Pakatan Rakyat.
The appeal hearing that Justice Elizabeth Evatt will be observing emerged from the 2008 charges filed against Anwar Ibrahim immediately after the general elections held that year.
He was charged for allegedly committing sodomy, which is a crime under Section 377B of the Penal Code and carries the penalty of up to 20 years of imprisonment and whipping.
The High Court acquitted Anwar Ibrahim on 9 January 2012.
This is the second time that Anwar Ibrahim is facing sodomy charges after his dismissal from the Malaysian Cabinet in 1998.
In 2004, The ICJ also sent a representative to observe the sodomy trial of Anwar Ibrahim, where the Federal Court overturned the High Court decision to convict him.
The ICJ called the Federal Court’s ruling “a step in the right direction in upholding the rule of law”.
Justice Evatt’s mandate as ICJ’s high-level observer to the appeal hearing includes monitoring the fairness of the proceedings against Anwar Ibrahim in the light of relevant international standards.
These standards include, among others the UN Basic Principles on the Independence of Judges, which set out standards on the independence and impartiality of judges, and the UN Guidelines on the Role of Prosecutors, which set out standards on the independence of prosecutors.
Justice Evatt will also be evaluating whether the prosecution under Section 377B of the Malaysian Penal Code is being used in this case to suppress political dissent, contrary to the right to freedom of expression.
“The right to observe trials stems from the general right to promote and secure the protection and realization of human rights. Trial observation is a key tool in monitoring the respect for human rights and the rule of law. It is an effective method to examine the level of independence and impartiality of a country’s criminal justice system,” said Emerlynne Gil, ICJ’s International Legal Adviser on Southeast Asia. “Trial monitoring also serves to promote better compliance with both domestic law and international standards that aim to ensure protection of human rights, including the rights to fair trial and due process.”
Contact:
Emerlynne Gil, International Legal Adviser for the ICJ Asia & Pacific Programme, t +662 6198477 ext. 206; email: emerlynne.gil(a)icj.org
Sep 10, 2013
Many lawyers in Central Asia face serious obstacles in carrying out their functions, including harassment, intimidation and physical attacks and are in need of much greater protection for their work and independence, an ICJ new report says.
Published today, The Independence of the Legal Profession in Central Asia assesses the challenges to the independence of lawyers in Central Asia, and the barriers lawyers in the region face in providing effective legal assistance to their clients.
The report analyses the laws and practices concerning the legal profession in each of the five Central Asian states, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan.
It finds that the weakness of the legal profession is deeply entrenched in the law and legal culture of Central Asian states, and that lawyers’ associations are in certain countries wholly controlled by the executive, and in others are vulnerable to undue government influence or interference.
In some countries in the region, recent reforms of the legal profession have been retrogressive, and have further undermined lawyers’ independence from government, the report shows.
“Across Central Asia, dedicated and independent lawyers who work to protect the rights of their clients, are facing harassment, intimidation and physical attack, as well as impediments to accessing clients in detention, and unequal treatment in courts that impose convictions in nearly 100 percent of cases considered,” said Róisín Pillay, Director of the Europe Programme of the ICJ. “With stronger, independent institutions to govern the legal profession, and greater protection for their work and their independence, lawyers in Central Asia could contribute significantly to strengthening the rule of law in their countries and implementing human rights protections guaranteed under national and international law.”
“There needs to be significant reform both of the law, and of practice, to ensure compliance with international standards on the role of lawyers, ” she added.
The report also examines systems for entry to the legal profession and licensing of lawyers, which in most countries of Central Asia are controlled by the Ministry of Justice, rather than by independent associations of lawyers.
There are similar problems with the disciplinary system for lawyers, which, contrary to international law and standards, is typically subject to significant government control or influence, it says.
“The disciplinary systems of Central Asian countries have failed to address the long-standing problem of lawyers, particularly some state-funded defence lawyers, who act not in the interests of their clients, but effectively under the dictates of the prosecution or other powerful interests,” said Temur Shakirov, Legal Adviser of the Europe Programme. “On the other hand, it is a matter of concern that lawyers who diligently carry out their roles in representing their client’s interests and protecting their rights in accordance with recognized professional standards, have been threatened with or subjected to disciplinary measures.”
The report makes recommendations designed to ensure that lawyers operate independently and effectively to represent the interests of their clients and protect their human rights.
These recommendations are based on international law and standards including the UN Basic Principles on the Role of Lawyers, which affirm the obligation of governments to protect lawyers against intimidation, hindrance, harassment or improper interference in the performance of their professional functions, and protect the right of lawyers to form and maintain independent, self-governing professional associations to represent their interests, promote their training and protect their professional integrity.
CONTACTS:
Róisín Pillay, Director, ICJ Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org
Central Asia-Legal Profession Report.press release-2013-Rus (full text in pdf)
Central Asia-Independence of the Legal Profession-Publication-2013-Eng (full text in pdf)
Central Asia-Independence of the Legal Profession-Publication-2013-Rus (full text in pdf)
Picture: Almaty Collegium of Lawyers, Legal Consultation
