Oct 8, 2018
An opinion piece by Reema Omer, Legal Adviser, ICJ South Asia Programme
A special bench of the Supreme Court of Pakistan, headed by the Chief Justice, is scheduled to hear Asia bibi’s appeal against her conviction and death sentence under section 295-C of the Pakistan Penal Code (PPC) today.
Even if the Supreme Court now goes on to acquit Asia bibi, she has already spent eight years in prison, mostly on death row; Salman Taseer and Shahbaz Bhatti have lost their lives advocating for her release; and her family has been subjected to continuous threats and harassment, solely because of their relationship with someone accused of blasphemy.
This is the truth of how the blasphemy law operates in Pakistan – the accused has to suffer prolonged periods of pretrial detention, which in many cases is followed by years on death row before their appeals are decided.
Additionally, lawyers and judges in blasphemy cases live in a climate of fear and face very real threats of violence.
This results in a denial of the accused’s right to an effective defence and to a fair trial before an independent, impartial judiciary – which is now recognized as a fundamental right in Pakistan’s Constitution.
Asia bibi’s trial is particularly illustrative of these flaws.
The allegations against her are that she made three “defamatory and sarcastic” statements about the Prophet Muhammad (Peace Be Upon Him) on June 14, 2009, during an argument with three Muslim women while the four of them were picking fruit in a field.
The prosecution also claims Asia bibi “admitted” making these statements at a “public gathering” on June 29, 2009, and asked for forgiveness.
In her defence, Asia bibi stated she had a “quarrel” with Mafia and Asma in 2009, following their refusal to drink water brought for them by Asia bibi because she was Christian.
She claimed “some hot words were exchanged” during the argument, after which Mafia and Asma, alongside Qari Muhammad Salaam and his wife (who taught Asma and Mafia the Quran), fabricated the blasphemy case against her.
Asia bibi also stated that she had “great respect and honour for the Holy Prophet Muhammad (Peace Be Upon Him) and the Holy Quran” and never made the alleged blasphemous remarks.
A trial court convicted Asia bibi for blasphemy in November 2010 and sentenced her to death. The Lahore High Court upheld her conviction and confirmed her death sentence in October 2014. The Supreme Court admitted her appeal in July 2015.
The first hearing of the appeal before the Supreme Court was scheduled to take place on October 13, 2016, but one of the judges recused himself from the bench on the day of the hearing, citing “conflict of interest”.
The trial court’s, as well as Lahore High Court’s judgments, contain a number of flaws.
For example, in its judgment on Asia bibi’s appeal, the LHC conceded that “the defence has not defended its case with the required seriousness…” Yet, despite acknowledging possible violations of the right of a fair trial, particularly the right to an adequate defence, the Court went on to uphold Asia bibi’s conviction and death sentence.
Further, the trial court used Asia bibi’s statement against her as an admission of guilt, finding that the “hot words” exchanged between her and “the Muslim ladies” were “switched into a religious matter”, and concluding that the “hot words” must have been “nothing other than the blasphemy”.
Curiously, however, the trial court rejected the possibility that the altercation over water could be a motive for the prosecution eyewitnesses to falsely implicate Asia bibi for blasphemy, which was Asia bibi’s defence.
The Lahore High Court too did not probe further into Asia bibi’s statement and held that there was no possible “ill will” between the eyewitnesses and the accused for them to fabricate the blasphemy allegations.
Both courts also disregarded discrepancies in the accounts of the witnesses regarding the “public gathering” where Asia bibi allegedly “admitted” her guilt.
These discrepancies included significant differences in the number of people allegedly present at the “public gathering” (ranging from 100 to 2,000 in the different testimonies); how Asia bibi was brought to the “public hearing”, and how long the “hearing” lasted.
The courts also failed to apply “tazkia-tul-shahood” (inquiry undertaken by the court to establish the credibility of witnesses), without which defendants cannot be convicted or punished in hadh (capital punishment) cases for certain offences under Pakistani law.
During the entire course of the proceedings, neither court considered which of the three statements attributed to Asia bibi were “blasphemous” and why, or what was the “reasonable person” standard in the interpretation of section 295-C to meet the threshold of blasphemy.
Additionally, both courts did not consider whether Asia bibi possessed the requisite criminal intent to commit the crime of blasphemy, despite the Federal Shariat Court’s ruling that blasphemy is an “intentional or reckless wrong”.
The prosecution’s failure to prove all elements of the offence, including the requisite intent to defame the Prophet Muhammad (Peace Be Upon Him), calls into question the convictions by the trial court and the Lahore High Court.
In another case, the Supreme Court held that individuals accused of blasphemy “suffer beyond proportion or repair” in the absence of adequate safeguards against misapplication or misuse of such blasphemy laws.
This includes the long periods of time the accused spend in detention, in some cases with the threat of execution hanging over their heads, and the impact this has on their lives, their families, their professions, and their mental and physical well-being.
Confirming the Supreme Court’s findings, a 2015 study by the ICJ on the implementation of blasphemy laws in Pakistan found that more than 80 per cent of convictions by trial courts are overturned on appeal, very often because appellate courts find evidence and complaints fabricated based on “personal or political vendettas.”
A number of proposals to check against the misuse of blasphemy laws have been pending before Parliament, but given the sensitivities around the issue, they have not come to fruition.
Blasphemy laws have remained a hugely sensitive issue in Pakistan.
Today, all eyes are on the Supreme Court to see if it will decide Asia bibi’s appeal expeditiously, fairly and impartially and whether it will try to clean up some of the manifest injustices of the blasphemy law and how it’s being applied today.
Oct 5, 2018 | News
2018 marks the 60th anniversary of the ICJ’s move to Geneva thanks to the great Swiss jurist Jean-Flavien Lalive, who was ICJ’s Secretary General in 1958.
This makes the ICJ one of the earliest international organizations to establish its headquarters in Geneva.
At the 1959 ICJ Congress in New Delhi, Dr. Lalive helped breathe new life into the rule of law and human rights.
The Delhi Declaration is, to date, a fundamental instrument interpreting the rule of law as a living concept, and underscoring the primary role of lawyers in its safeguard and in the advancement of human rights.
The ICJ plays a unique and preeminent role as a non-governmental organization seeking to defend human rights and the rule of law worldwide.
The ICJ will mark this event with two major initiatives:
- A visibility campaign from 26th September to 9th October: the TV screens on the Geneva public transport network and five vehicles will carry the slogan “Global Advocates for Justice and Human Rights – 60 years in Geneva”
- The launch of the “60th Anniversary Appeal” to all lawyers in the Republic and canton of Geneva to support the ICJ and, in turn, their less privileged colleagues, victims of persecution on five continents.
“Geneva can be proud of its image as the world human rights capital. It is a beacon for justice advocates around the world. We must continue to make it shine,” said Sam Zarifi, Secretary General of the ICJ.
“Through its 60-year history, the ICJ has contributed significantly to Geneva’s human rights record: the campaigns that led to the creation of the post of UN High Commissioner for Human Rights in 1993 and the UN Human Rights Council in 2006, as well as the adoption of the United Nations Convention against Torture in 1984 are some emblematic examples,” said Olivier Coutau, Head of La Genève Internationale.
“In the face of repeated attacks on human rights, the world needs, more than ever the ICJ’s competent, rigorous and effective defense of the rule of law,” Sam Zarifi added.
The Republic and canton of Geneva support the ICJ 60th Anniversary Appeal.
Additional information
The international reputation of the ICJ rests on these pillars:
- 60 Commissioners – eminent judges and lawyers – from all regions of the world and all legal systems – with unparalleled knowledge of the law and human rights;
- Cooperating with governments committed to improving their human rights performance;
- Effective balance of diplomacy, constructive criticism, capacity building, and if necessary, ‘naming and shaming’;
- Unmatched direct access to national judiciaries, implementing international standards and improved legislation impacting millions;
- Guiding, training and protecting judges and lawyers worldwide to uphold and implement international standards;
- Working for access to justice for victims, survivors and human rights defenders, in particular from marginalized communities;
- Following a strict result based management in project delivery.
In recognition of this effective approach, the ICJ has been awarded, during its long history, some of the most prestigious international awards: the Council of Europe Human Rights Prize, the United Nations Award for Human Rights, Erasmus Prize, Carnegie Foundation Wateler Peace Prize.
In 2018, the ICJ provided local trainings on five continents to assist 4,300 judges, lawyers and prosecutors strengthen their ability to protect and promote fundamental rights.
The ICJ has consultative status with the United Nations Economic and Social Council, UNESCO, the Council of Europe and the African Union.
Contact :
Michaël W. Sombart, Director Philanthropy & Strategic Partnerships, t: +41 22 979 38 31 ; m: +41 77 965 98 45 ; e: michael.sombart(a)icj.org
Oct 5, 2018 | News
The proposal to implement caning on those found guilty of corruption would directly violate the absolute prohibition of torture and other cruel, inhuman or degrading punishment under international law, said the ICJ today.
The Malaysian Anti-Corruption Commission (MACC) called on the Government of Malaysia last week to consider caning as a punishment for those convicted of corruption to underline the efforts of eliminating corruption in the country.
Malaysia currently implements caning in a wide range of offences, including the Immigration Act 1959/63, the Penal Code (rape, criminal breach of trust), and the Dangerous Drugs Act 1952.
At present, under the Malaysian Anti-Corruption Commission (MACC) Act 2009, the punishment for those found guilty of bribery is payment of a fine and imprisonment for up to twenty (20) years.
“Malaysia must immediately and completely abolish caning as a form of punishment. The proposals to implement caning for those found guilty of corruption, bribery, or any other offence is a significant setback for the country.
If this proposal is implemented, it will violate Malaysia’s obligations to prevent, prohibit and prosecute all forms of torture and other cruel, inhuman or degrading treatment or punishment, as.” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
After Malaysia’s historic election results on 9 May 2018 and the corruption charges levied against its former Prime Minister, Najib Razak, it would be superficial for Malaysia to view the implementation of severe punishments for the crime of corruption as the panacea to the deeply-rooted culture of corruption among those that have held public office and state authorities.
The ICJ also emphasizes that all forms of torture and other cruel, inhuman or degrading treatment are absolutely prohibited by customary international law, as well as international treaties binding on Malaysia, including the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities (CRPD).
The UN Special Rapporteur on Torture has stated that “any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.” It cannot be considered a “lawful sanction” under international law.
The ICJ urges the Government of Malaysia to abandon any proposal to implement caning as a form of punishment for any crime. The ICJ also calls on the Government of Malaysia to immediately abolish the practice of caning as it constitutes a form of cruel, inhuman or degrading punishment prohibited under international human rights law and standards.
Contact:
Emerlynne Gil, Senior International Legal Advisor, International Commission of Jurists,
mobile: +66 840923575, email: emerlynne.gil@icj.org
Background:
At a press conference on 1 October 2018, Malaysia’s Anti-Corruption Commission’s Chief Commissioner Datuk Seri Mohamad Shukri Abdul had proposed that the Malaysian government consider implementing caning for bribery offenders.
Section 288 of the Criminal Procedure Code states the mode of executing the sentence of ‘whipping’, in Section 288(3) it defines the ‘Rattan used for whipping shall not be more than half of an inch in diameter’ (the word caning is not mentioned), while Section 289 of the Criminal Procedure Code states that the sentence of whipping is forbidden in the case of ‘females’, males sentenced to death and males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under Section 376, 377, 377CA or 377E of the Penal Code.
Oct 4, 2018
An opinion piece by Sean Bain, ICJ International Legal Advisor in Myanmar
Last week a partial but significant foundation was laid to provide accountability for gross human rights violations in Myanmar, and hopefully to deter repetition.
After receiving a 444-page UN report extensively detailing human rights violations in Myanmar and making recommendations to address them, the UN Human Rights Council in Geneva passed a resolution that includes the establishment of an evidence-gathering mechanism to enable future trials.
The “independent mechanism” is mandated to “collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011 and to prepare files to facilitate and expedite fair and independent criminal proceedings.”
Similar to an existing mechanism for Syria, it will be responsible for preparing case files to standards required for any future criminal prosecution in a national or international court of law.
The full, final report of the Independent International Fact-Finding Mission (FFM) on Myanmar was presented to the Council on 18 September.
It finds members of security forces responsible for crimes under international law, including crimes against humanity in Rakhine, Kachin and Shan states – and potentially for the crime of genocide against Rohingyas. Findings also noted that restrictions on fundamental freedoms stifle honest constructive public discussion of this.
The application of these findings to the situation in Myanmar is familiar territory. The experience of Rohingyas is particularly egregious but not an isolated case; for more than six decades serious crimes have persisted against communities throughout the country, overwhelmingly perpetrated by members of the military, who enjoy impunity.
In recognition of this, the mandate of the independent mechanism is not limited to any particular area or group within Myanmar. Although, when it becomes fully staffed, it will necessarily refine its focus taking into account the gravity and scale of offences as well as its financial and human resources.
While case files are to be prepared, the UN resolution did not establish a court.
The International Criminal Court (ICC) has the potential to address some aspects of the crimes in question, however, it is not presently in a position to address the situation as a whole.
Certain foreign courts exercising universal or other grounds of jurisdiction are, likewise, only likely to address a limited portion of the overall offenses.
Within Myanmar, no court has the required independence, impartiality, competence and jurisdiction to ensure fair criminal proceedings against perpetrators for the full range of crimes under national and international law.
Myanmar’s national prosecutors and judges have demonstrated they lack the independence, impartiality and competence to hold members of security forces accountable for human rights violations, or to consider redress for victims and their families.
Government reforms offer hopes of establishing genuine Rule of Law, with respect for human rights, but this is undermined by persistent injustices – encapsulated recently in the wrongful prosecution and punishment of two Reuters journalists.
In a recent campaign local activists have worn shirts emblazoned “failed law.” This reflects frustration with a system that prosecutes human rights advocates without justification, but does not punish perpetrators of the most serious criminal violations of human rights, particularly when soldiers are involved.
Impunity continues to embolden these perpetrators of crimes, undermining democracy and peace, and feeding ongoing cycles of violence.
Since the partial power transfer from military to quasi-civilian administration in 2011, several government-commissioned inquiries have investigated human rights violations – including in Sagaing, Mon and Rakhine states.
None have addressed the military’s pervasive influence in the administration of justice, nor provided accountability or redress. The government’s most recent commission of inquiry on Rakhine State is evidently no different, and may even promote impunity by deferring robust accountability measures.
While any evidence held by the new independent mechanism could be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so – this seems a long way off.
In this context, calls have increased, including from the FFM, for the UN Security Council (UNSC) to refer the situation in Myanmar to the ICC or for the creation of an ad hoc tribunal.
Since Myanmar has not ratified the Rome Statute (the treaty that created the ICC), it has not agreed to submit itself to the jurisdiction of the ICC with respect of the crimes listed in the Statute (the Court may only exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party).
However, as a UN Member State, Myanmar would be obliged to cooperate with any referral to the ICC made by the UNSC.
Furthermore, on the basis that the ICC’s general jurisdiction applies to crimes occurring within a State Party to the Rome Statute such as Bangladesh, ICC prosecutors are conducting a preliminary examination into alleged crimes where an element – or part of a crime – was committed within the territory of Bangladesh, including the crime against humanity of deportation which, by definition, has a cross-border element.
Calls for an international prosecution seem loudest from outside Myanmar, by States, human rights organizations and from diaspora groups.
Yet demand for ICC referral from inside Myanmar is also growing, although this is significantly muted, due to fear of reprisals from government and nationalist groups against civil society, journalists and other public figures.
Whatever the eventual pathway for justice in Myanmar – national, international or a combination of both – effective criminal prosecutions are likely to constitute an important element to provide some accountability, enable redress and deter the repetition of human rights violations in future.
Any of these models will require evidence, and in the case of violations against Rohingyas and in northern Myanmar, having a mechanism to store evidence and prepare case files will serve as a critical aspect of this.
Memories fade while physical evidence either deteriorates or is destroyed, which means there is now an urgency to the gathering of evidence by appropriately trained experts.
Historically and recently much documentation has been collected, both inside and outside the country, often under dangerous and risky conditions.
Human rights documentation has played a critical role in exposing the truth, drawing attention to injustice, and pressuring State and non-State actors to address the situation.
But past experience has taught that documentation of atrocity crimes should, wherever possible, be conducted in accordance with best practice by highly experienced and well-resourced multi-disciplinary teams. The ethical principle at the heart of documentation is “Do No Harm.”
For example, any efforts should be coordinated and careful threat and risk assessments should be conducted before any interviews of survivors so they do not cause avoidable harm.
Multiple interviews of the same person can cause re-traumatization and even potentially impair future prosecutions.
The independent mechanism can contribute to these goals. The Office of the High Commissioner for Human Rights has 20 days to develop its terms of reference, after which it could take up to 12 months to establish (the FFM’s mandate has been extended to bridge any gap in documentation).
A key consideration will be complementing existing or potential national and international justice systems, be that the ICC, foreign courts with jurisdiction, or later in Myanmar, or a mix of these options.
Indeed, criminal accountability is only one tool for justice, and it cannot wholly reverse the damage done. But it can help victims, and critically it can help Myanmar get out of the entrenched cycle of human rights violations.
Eventually criminal trials will be required, which will open a range of other challenges. But right now, an important foundation for effective accountability has been established with the creation of this independent mechanism. Anyone wishing for justice and peace in Myanmar would be right to support it.
Myanmar-UN Mechanisms-News-Op Eds-2018-BUR (PDF of article in Burmese)
Oct 3, 2018 | News
Today, the ICJ expressed concern at ongoing criminal proceedings against Mikhail Benyash, a lawyer practicing in Russia, who is charged with use of force against the police and impeding justice.
The lawyer has been detained until 23 November. The ICJ called on the responsible authorities to drop any criminal charge relating to his conduct of professional duties in the courtroom, and to ensure that the lawyer’s rights are protected and that allegations of his ill-treatment are fully investigated.
Benyash alleges that following his apprehension by the police on 9 September, the police beat him up in the car. According to the police report he inflicted the injuries on himself, contrary to demands of the police that he stop doing so.
He was charged with disobedience to the police, which according to the police report was due to “the fact that the police asked Benyash not to injure himself, but he continued self-beating”. Benyash was convicted and sentenced to 14 days of imprisonment and 40 hours of correctional works.
On 23 September, the day of his release, Benyash was arrested again. He was charged with two further offences: violence against a representative of authority (Criminal Code Article 318(1)) based on an allegation, seemingly not raised at the time of his earlier charge and conviction in relation to the same incident, that in the course of his arrest on 9 September he allegedly bit a police officer and hit another.
On 23 September he was also charged with obstruction of justice (Criminal Code Article 294(1)), reportedly on the basis of an allegation that in a court hearing on 6 May 2018, Benyash had “repeatedly interrupted, gave instructions and objections to the decisions of the judge” and after he had been removed from the courtroom “continued unlawful behaviour”.
According to the lawyer, he was taken out of the courtroom by force due to his motions to allow certain members of the public to be present at the open hearing.
The ICJ is concerned that the criminal obstruction charge against Mikhail Benyash appears to relate at least in part to statements he made in court in the course of carrying out his professional duties of representation of his clients.
The fact that this charge was only laid following his recent arrest, some five months after the alleged incident occurred, also raises questions as to the motivation for bringing the charge forward now.
“Benyash is currently charged on account of his alleged attack on a police officer and obstruction of justice. While the first charge requires an impartial and independent inquiry, the second charge should be of concern to the entire lawyers’ community”, said Karinna Moskalenko, ICJ honorary member. “We fear that this may lead to lawyers in Russia being charged with obstruction of justice simply for actively expressing their position and objections in accordance with the procedure prescribed by law”, she added.
Furthermore, the ICJ emphasises that under international human rights law, states have obligations to investigate allegations of treatment that may amount to torture or inhuman or degrading in violation of Article 3 of the European Convention on Human Rights, as well as other international law norms binding on the Russian Federation.
The investigative authorities have duty to investigate allegations of ill-treatment of the lawyer by police following his arrest on 9 September promptly, effectively and impartially and any persons responsible should be brought to justice.
Read the ICJ’s full statement here: Russia-Statement on Benyash-News-Web Story-2018-ENG
