Mar 18, 2021 | Advocacy, Non-legal submissions
Today, the ICJ and ARTICLE 19 called on the UN Human Rights Council and its Advisory Committee to adopt a human rights-centred approach in their work on “negative effects of terrorism”, during a general debate on human rights bodies.
The joint statement reads as follows:
“Madam President,
The ICJ and ARTICLE 19 have followed the Advisory Committee’s ongoing work on the negative effects of terrorism on human rights and understand that it still finalizing its report on the topic.
We consider that the efforts of the Committee and this Council on this topic should focus exclusively on preventing and addressing human rights violations resulting from counterterrorism measures and promoting and protecting the human rights of victims of terrorism.
The Committee’s earlier report instead dedicated much space to the macro-economic effects of terrorism which do not lead to concrete recommendations to States on the human rights dimensions.
This focus proposed by some States diverts the longstanding focus of the Human Rights Council away from core human rights concerns and from States’ duties to prevent, protect, investigate, and redress human rights abuses.
The ICJ and ARTICLE 19 point out that the existing and longstanding normative and institutional framework on counterterrorism and human rights is already sufficient to address relevant impacts of terrorism from a human rights perspective.
We call on the Committee and the Council to bear this in mind as they continue their engagement on this important topic.
Thank you.”
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
Mar 18, 2021
An op-ed by Daron Tan, Legal Consultant at the ICJ Asia & the Pacific Programme
On February 19 2021, the Malaysian Federal Court found Malaysiakini, an online news outlet, guilty for criminal contempt of court for five comments published by third parties on its website. This judgment has generated significant criticism from lawyers, civil society and media groups for restricting press freedom and freedom of expression online in Malaysia.
On June 9, 2020, Malaysiakini published an article on the reopening of Malaysian courts, in line with the recovery phase of the movement control order. In the public comments section of this article, subscribers left five comments critical of the independence of the judiciary and the Chief Justice. The comments were related to the acquittal by the High Court of former Sabah chief minister Tan Sri Musa Aman for corruption and money-laundering, after the prosecution withdrew the charges.
Key takeaways from the judgment
In Malaysia, article 126 of the Federal Constitution empowers the Federal Court, Court of Appeal and High Courts of Malaysia to “punish” incidents of contempt of court.
Malaysiakini was found guilty because it was presumed to be the publisher of the purportedly contemptuous comments left on its article. Under section 114A of the Evidence Act 1950, anyone who is depicted as “the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication” is presumed to have published the content, and thus potentially held liable.
Malaysiakini was unable to rebut this presumption. The Federal Court found that Malaysiakini should have foreseen the kind of comments that its article would have attracted. In other words, Malaysiakini had constructive knowledge because it should have known what kind of comments was likely to be posted. This is even if the editorial team had no actual knowledge of the comments until alerted by the police, following which the comments were promptly removed.
According to the court, Malaysiakini also did not take all the necessary steps to filter the offensive comments before they were published, as its system only filtered foul language but not allegedly “offensive” substance.
For this, Malaysiakini was fined RM500,000 (approximately US$122,700), despite the Attorney General recommending a RM200,000 fine (approximately US$49,090).
Incompatibility with international human rights law
The judgment reinforces how Malaysia’s contempt of court provisions are incompatible with human rights law and standards, especially the right to freedom of expression online. Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR) which contains strict guarantees protecting this right. Indeed, the ICCPR has 171 State Parties, leaving Malaysia as one of just 22 UN Member States out of its ambit. However, freedom of expression is part of customary international law, incumbent on Malaysia.
The International Commission of Jurists (ICJ) has previously highlighted this incompatibility in its 2019 report on online freedom of expression in Southeast Asia. Malaysia’s contempt of court offence is a common law doctrine and not codified statutorily, and a clear definition of criminal contempt of court has not emerged within case law. The ICJ has highlighted the need for reform to ensure clarity in definition, consistency in procedural limits and sentencing limits pertaining to criminal contempt cases, in line with the principles of legality, necessity and proportionality.
Additionally, onerous fines and other sanctions are a disproportionate and unnecessary means of protecting the reputation of the courts. The UN Special Rapporteur on freedom of expression has urged States to refrain from imposing disproportionate sanctions, such as heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression. The Manila Principles on Intermediary Liability, a set of guidelines for censorship and takedown laws, also made clear that intermediaries like Malaysiakini should be shielded from liability for third-party content.
The presumption of innocence is a fundamental rule of law principle. A corollary to this principle is that the burden of proof to establish guilt rests with the State in a criminal trial. The presumption of responsibility under section 114A of the Evidence Act reverses this burden of proof unto the defendant. This is therefore incompatible with right to fair trial as a general principle of law. The chairperson of the Constitutional Law Committee of the Malaysian Bar has pointed out section 114A is a “significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence”. This is exacerbated by how the Malaysiakini judgment sets an unreasonably high standard of proof to rebut the presumption under section 114A, as defendants will need to prove they lacked constructive, instead of actual knowledge.
The above concerns emphasise the urgent need for these laws to be repealed or substantially amended. In this regard, the Malaysian Bar has recommended that section 114A of the Evidence Act be repealed, and for the law of contempt to be codified statutorily to provide clear and unequivocal definitions and guidance as to what really constitutes contempt. This is particularly important for concepts such as “scandalising the judiciary”, which are necessarily vulnerable to abusive application.
Domestic and regional implications of the case
Domestically, the Malaysiakini judgment creates a de facto requirement for all online news portals in Malaysia to monitor and filter user-generated comments for potentially offensive content even before they are published to avoid legal liability. This imposes an onerous burden on providers that will disincentivise them to perform their roles as providing a platform for the free flow of information and ideas, as they will have to engage in constant proactive monitoring or filtering content.
The judgment also raises questions about who else is considered a publisher and liable for third-party content. Are social media platforms like Facebook and Twitter liable for all content posted by their users? What about social media users and bloggers for comments made by other people on their content? This uncertainty may result in a chilling effect on free speech online. The lack of clarity demonstrates how vague, broad and overreaching these legal provisions are, such that people cannot know in advance how to regulate their conduct to conform with the law and avoid criminal liability.
Regionally, the judgment may set a worrying example for other Southeast Asian countries, many of which have already been unduly restricting freedom of information and expression online. These countries may invoke Malaysia’s example in efforts to expand these restrictions to intermediaries for third-party content using existing laws. In Thailand, service providers may be liable for false information perpetrated by its users if the service provider “cooperates, consents or acquiesces to the perpetration of an offence” under section 15 of the Computer-Related Crimes Act BE 2560 (2007). In Singapore, innocent publication or distribution “without the person’s authority, consent or knowledge, and without any want of due care or caution on that person’s part” is a defence to contempt of court under section 18 of the Administration of Justice (Protection) Act 2016. However, if constructive, instead of actual knowledge is required, then act’s reach would be widened significantly.
The current liability regime may result in further instances of disproportionate and unnecessary restrictions on online news outlets and other Internet intermediaries. Against the backdrop of the Internet increasingly becoming the new battleground for issues on freedom of expression and information, the Malaysiakini judgment reinforces the need for legal and policy reform in Malaysia to protect media freedom and online freedom of expression, in line with international human rights law and standards. It is also an opportune moment to become a party to the ICCPR, and examine and reform the other laws in Malaysia also incompatible with human rights law that may be abused to unduly restrict freedom of expression online, including the Sedition Act 1948 and the Communications and Multimedia Act 1998.
First published in Malay Mail on 16 March
Mar 17, 2021 | News
Imposition of Martial Law in several areas of Myanmar subjects civilians to trial by military tribunals, a dangerous escalation of the military’s repression of peaceful protests, said the ICJ today.
“Use of martial law marks the return to the dark days of completely arbitrary military rule in Myanmar. It effectively removes all protections for protestors, leaving them at the mercy of unfair military tribunals.”
– Ian Seiderman, ICJ’s director of law and policy
On 14 March, the Myanmar military issued Martial Law Order 3/2021, covering a number of townships of different provinces in Myanmar. According to this order, military officials assume full authority from civilian officials, and civilians may be subjected to military tribunals for charges of 23 violations of the criminal code and other laws. The 23 crimes include many of the charges used most against peaceful protesters in the past month, including charges of ‘disrupting or hindering government employees and services’ and ‘spreading false news’ about the government, and ‘exciting disaffection towards the government.’
The Martial Law Order also assigns disproportionately severe sentences, including the death penalty and prison sentences with hard labor. Judgments of military tribunals are not subject to appeal, even if the death penalty is imposed.
“Martial law has been imposed in precisely the areas where the military have used unlawful and lethal force against peaceful protesters, and removes even the pretense of access to courts for the people whose rights have been violated systematically by the military, ” said Seiderman.
The ICJ’s detailed review of military courts has documented that they lack competence, independence and impartiality to prosecute civilians. International law provides that the jurisdiction of military tribunals must generally be restricted solely to specifically military offenses committed by military personnel.
“The military courts lack transparency, due process and judicial oversights. It leaves no possibility to appeal the sentences, including the death sentences that have been handed down by military generals, ” said Seiderman.
Since the military coup d’etat of February 1 and the declaration of a state of emergency, the military has enacted and amended legislation enabling ongoing gross human rights violations, including possible crimes against humanity. More than 200 people have been unlawfully killed, with 2,000 more injured as security forces have used excessive force to suppress peaceful protests.
Background
On 14 March, the military-appointed State Administration Council, in accordance with Article 419 of the Constitution, enacted Martial Law Order 1/2021, imposing martial law in a number of areas in Yangon. The affected areas were further expanded through two other orders issued on 15 March, Martial Law Order 2/2021 and 3/2021. These orders transfer all power to the Military Commander in those areas. All local administration bodies have been placed under martial law, effectively giving military full control of all judicial and administrative processes.
The Order 3/2021 in particular is divided into six main sections with the most concerning provisions in relation to the list of crimes to be heard by military tribunals, and the proscribed punishments.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Mar 17, 2021 | Advocacy, Non-legal submissions
Today, the ICJ joined Amnesty International and other 14 NGOs to express concern at continued attacks on the Special Procedures of the UN Human Rights Council by some States and at efforts to undermine their independence.
The joint statement reads as follows:
“Madame President,
Amnesty International delivers this statement on behalf of 15 NGOs.
We are deeply concerned by continued attacks on the Special Procedures and efforts to undermine their independence. We urge all states to affirm their commitment to human rights and the effectiveness of the international human rights system, by rejecting and condemning these efforts.
We welcome the continued efforts of the Coordination Committee to address objective non-compliance of mandate holders under the Internal Advisory Procedure, including in response to the failure of the Special Rapporteur on the right to privacy to submit his reports to the Council in time for their consideration at this session. We urge all states to support the Coordination Committee in their efforts to respond to concerns related to the working methods of the Special Procedures, as well as complaints against individual mandate holders.
At the same time, we deplore the efforts of some states to use this process as a cover to undermine the independence and effectiveness of the Special Procedures for political reasons. As on numerous previous occasions, certain states repeatedly accuse the Special Procedures of politicization but fail to substantively address the human rights concerns they raise.
We particularly regret the Russian Federation’s efforts, on 5 March, to suspend the HRC session altogether and their continued attempts, together with other states, to introduce unwarranted state oversight on the Special Procedures.
We were also alarmed to witness personal attacks on the Special Procedures, most worryingly against the Special Rapporteur on freedom of religion or belief, by the Chinese delegation, who during the interactive dialogue accused the mandate holder of ‘spread[ing] false information’ and ‘lack[ing] minimum professional ethics.” Such ad hominem attacks are unacceptable, and the Council must respond in the strongest terms to condemn such incidents. They also reveal a broader rejection of dialogue on human rights challenges – despite repeated statements urging the Council to privilege ‘dialogue and cooperation’ – and a lack of willingness on the part of the state concerned to take action to protect human rights.
It is time for states at this Council to take a strong proactive stand for its independent mechanisms, ensuring that they have the support and resources needed to fulfil their mandates and to hold states accountable when they commit human rights violations.
Thank you.”
The signatories of the statement are:
- Amnesty International
- ARTICLE 19
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- Center for Reproductive Rights
- CIVICUS: World Alliance for Citizen Participation
- DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
- Forum Menschenrechte e.V.
- Human Rights House Foundation
- Human Rights Watch
- International Commission of Jurists
- International Federation for Human Rights (FIDH)
- International Movement Against All Forms of Discrimination and Racism (IMADR)
- International Service for Human Rights (ISHR)
- Privacy International
- Women’s International League for Peace and Freedom
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
Mar 17, 2021 | News
All children regardless of their age must have access to procedural rights when they are accused of criminal acts, the Council of Europe’s European Committee of Social Rights decided in a landmark case (No. 148/2017) brought by the International Commission of Jurists (ICJ) with support from the Prague-based Forum for Human Rights.
The ICJ and Forum lodged a complaint challenging the failure of the Czech Republic to provide for legal assistance to children under the age of 15 (the age of criminal responsibility in the Czech Republic) in the pre-trial stage of proceedings and failure to provide alternatives to formal judicial proceedings for them.
The European Committee of Social Rights, which is responsible for oversight of the European Social Charter of 1961, found the Czech Republic was violating the rights of children under 15, who face proceedings in the child justice system but are below the age of criminal responsibility. The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter. Human rights protected under the European Social Charter are legally binding on States party to it.
“The Committee’s decision is ground-breaking in many ways, yet two implications are revolutionary. First, it clearly emphasises the inter-dependence between fair-trail rights and child’s well-being. In modern human rights law, there is no such a thing as a clear-cut division between civil and political rights and social rights. But most importantly, the decision undermines paternalistic attitudes towards young children who enter the juvenile justice system and makes clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, based on the restorative justice principles,” said Maroš Matiaško, senior legal consultant of Forum.
The decision of the European Committee on Social Rights should lead to fundamental changes in the Czech child justice system, Forum for Human Rights and the International Commission of Jurists said today.
“We brought this case to ensure that children below the age of criminal responsibility do not have lower standards of protection of their rights compared to the older children in the child justice system,” said Karolína Babická, ICJ Legal Adviser. “We expect the Czech Republic to swiftly implement the decision of the Committee and ensure that all children regardless their age have access to procedural rights and alternative procedures like settlements and conditional termination or withdrawal of prosecution.”
Background
The legal findings come following a collective complaint submitted to the European Committee on Social Rights by Prague-based Forum for Human Rights and the International Commission of Jurists in 2017.
The Committee’s decision is built on two legal grounds, (I) mandatory legal representation for all children in conflict with the law regardless of age already in the pre-trial stage and (II) their access to alternatives in line with restorative justice principles.
On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four grounds:
–Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.
–Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.
–Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.
–The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.
In relation to the second legal ground, the Committee emphasised that diversion (alternatives to proceedings, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases and diversion options should be available from as early as possible after contact with the system, before a trial commences, and throughout the proceedings. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system.
It may be left to the discretion of States Parties to decide on the exact nature and content of diversion measures, and to take the necessary legislative and other measures for their implementation, though there are relevant standards that should be taken into account, especially those developer by the UN Committee on the Rights of the Child.
Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.
Read the full decision here.
See more information about the case here.
Watch our talk on the case and its importance:
Contact:
Karolína Babická, Legal adviser Europe and Central Asia Programme; karolina.babicka(a)icj.org
