Apr 28, 2020 | Advocacy, News, Open letters
The ICJ today called on the South African government to take measures to ensure access to justice and the full fulfillment of the economic, social and cultural rights of all in the country.
The South African authorities must also remove legal hurdles in accessing just compensation for rights violations occurring during nationwide lockdown, the ICJ said.
The call comes as South Africa enters its final week of a lockdown period, which initially began on 26 March 2020. Since the beginning of the lockdown period the ICJ has been working closely with a broad coalition of local civil society organizations and movements called the C19 People’s Coalition.
“The ICJ applauds South Africa on its announcement that it will commit 10% of its GDP to a social relief and economic support package addressing poverty and in inequality which has been exacerbated by COVID-19,” said Arnold Tsunga, ICJ Africa Director.
“However we note with concern the high levels of repression and human rights abuses committed by enforcement officers enforcing Lockdown Regulations and the inadequacy of social assistance measures to ensure an effective elimination of poverty in accordance with South Africa’s international and domestic human right obligations.”
- Repression and human rights abuses by enforcement officers during Lockdown
Both the Disaster Management Act and Lockdown Regulations enacted in terms of it create doubt about whether victims of violations of human rights in the enforcement of lockdown will be able to claim compensation for such violations.
The ICJ has therefore written to President Cyril Ramaphosa (photo) and Speaker of the National Assembly Thandi Modise calling on the authorities to make the necessary legal amendments required to ensure the full protection of the right to access to justice, which includes the right to effective remedies and reparation.
The ICJ calls on authorities to ensure the amendment of the National Disaster Act and Lockdown Regulations to ensure that victims of human rights abuses have full and effective access to the right to remedy and reparation including compensation.
- Inadequate Social Assistance provided
Despite the large stimulus package announced by President Ramaphosa on 21 April, the C19 People’s Coalition has correctly argued that the new COVID-19 social grant of R350 ($18.44 USD) per month for unemployed persons is less than a third of the R1227 ($64.65) that government itself estimates individuals require to be lifted out of poverty.
In addition, the increase of the Child Support Grant of R500 ($26.35) per month appears, contrary to what the President’s announcement suggested, to be allocated per caregiver not per child thus drastically reducing its potential impact.
The ICJ calls on authorities to ensure the full provision of a social safety net to all in South Africa by: 1) raising the levels of all non-contributory social assistance benefits to a level that ensures an adequate standard of living for recipients and their families; and 2) ensuring that those between the ages of 18 and 59 with little or no income have access to social assistance.
These two measures were among those specified in the Concluding Observations of the Committee on Economic, Social and Cultural Rights to South Africa.
South Africa declared a moratorium on all evictions during the lockdown period on 26 March after local organizations and the ICJ had called for such a move.
Later amendments to Lockdown Regulations made it a criminal offence for any person to evict any other person. Despite this, evictions continue in some places unabated as is illustrated by statements of Abahlali BaseMjondolo and Abahlali BaseMjondolo Women’s League late last week.
These evictions have sometimes been violent and accompanied by serious allegations of attempted murder of community members and human rights defenders.
The ICJ calls on authorities to ensure the immediate cessation of all evictions. The President of South Africa and the Parliament of South Africa must make sure that police officers, security and other companies and government officials participating in evictions are clearly, decisively and publicly held to account.
Those carrying out evictions should be prosecuted in accordance with Lockdown Regulations. The police and prosecuting authorities should also investigate and where sufficient evidence exists pursue prosecution of those found to have committed crimes of violence or similar offences against those who are subjected to or defend against such evictions.
“The continued violent attacks experienced by human rights defenders and those simply trying to retain their homes is unacceptable. The time has come for the President of South Africa and Parliament of South Africa to intervene directly to prevent any further such attacks generally, but in particular with regard to Abahlali BaseMjondolo settlements in KwaZulu-Natal,” added Arnold Tsunga, ICJ Africa Director.
Contact:
Tim Fish Hodgson, ICJ Legal Adviser, t: +2782871990 ; e: tim.hodgson(a)icj.org
Shaazia Ebrahim, ICJ Media Officer, t: +27716706719 ; e: shaazia.ebrahim(a)icj.org
Apr 28, 2020 | News
The ICJ today urged Taiwan to decriminalize adultery as soon as possible.
Echoing the UN Human Rights Committee, the UN the Committee on the Elimination of Discrimination against Women and the UN Working Group on discrimination against women in law and practice, the ICJ stated that the criminalization of people who are not married to each other for engaging in consensual sexual relations is a violation of the right to be free from discrimination; the right to equality before the law and equal protection of the law without discrimination; and the right to privacy, among other rights. The criminalization of adultery also often leads to discrimination and violence against women.
The Constitutional Court of Taiwan is currently deliberating on the constitutionality of Article 239 of the Criminal Code, which provides that, “a married person who commits adultery with another shall be sentenced to imprisonment for not more than one year; the other party to the adultery shall be subject to the same punishment.” On 31 March 2020, Taiwan’s Constitutional Court heard oral arguments on the constitutionality of Article 239 after several judges requested an interpretation of the law. The Court is expected to release its opinion on the matter at the end of May.
“In many ways, the ongoing criminalization of adultery leads to dire consequences for women’s human rights in Taiwan,” said Emerlynne Gil, Senior International Legal Adviser of the International Commission of Jurists.
“The enforcement of criminal adultery provisions often leads to discrimination and violence against women. In Taiwan, for example, women are disproportionately the target of adultery lawsuits. While male adultery enjoys greater tolerance in Taiwan, women are being targeted because of harmful gender stereotypes and rigid constructions of femininity.”
The ICJ notes that women are twenty percent more likely to be convicted than men in adultery cases in Taiwan. Furthermore, to secure a conviction on adultery charges in Taiwan, given the criminal law standard of proof, there has been a resort to photographic evidence of the two accused individuals engaging in sexual acts in some cases. As a result, an entire industry of private investigators, often engaging in illegal behaviour, has developed in response to “market” demand for “evidence” capable of making criminal adultery charges stick.
Taiwan is not a Member State of the UN, but in 2009 it introduced legislation aimed at incorporating the International Covenant on Civil and Political Rights (ICCPR) as a matter of domestic law. In 2013, an International Review Committee composed of independent human rights experts working in their personal capacities recommended that Taiwan should take steps to abolish the adultery provision in its Criminal Code as it was not in conformity with Article 17 of the ICCPR.
“Continuing to criminalize adultery goes against the image that Taiwan wants to portray of itself, that it is a beacon of democracy and human rights in Asia,” Emerlynne Gil said. The ICJ urges Taiwan to decriminalize adultery as soon as possible by removing the above mentioned provision from its Criminal Code.
Additional Information
There have been several challenges in the past to the constitutionality of Article 239 of Taiwan’s Criminal Code. In 2002, in one of such challenges, the Constitutional Court issued Interpretation 554, holding that the freedom of sexual behavior was inseparably related to the personality of individuals, and every person was free to decide whether or not and with whom to have sexual affairs. However, the Court went on to say that such freedom was legally protected only if it was not detrimental to “the social order or public interest”, as provided in Article 22 of the Constitution and, therefore, “the freedom of sexual behavior” was subject to the restriction that marriage and the institution of the family imposed on it.
Download the statement in Mandarin Chinese here.
Contact
Boram Jang, ICJ Legal Adviser – Access to Justice for Women, Asia & the Pacific Programme, e: boram.jang(a)icj.org
Apr 27, 2020
The Indian government has fallen short of its obligations to guarantee the right to food during the COVID-19 pandemic, the ICJ said in a briefing paper released today.
India went into voluntary quarantine on March 22 2020 and then a nationwide lockdown from March 24 2020. The Indian authorities have indicated that the lockdown will continue until at least May 3 2020. Informal sector workers, and others, who ordinarily survive on meager and unreliable daily wages, have lost access to regular income since March 22 2020 and have, at best, limited access to government support.
The Global Hunger Index 2019 ranks India as suffering from a “level of hunger that is serious”. As a result of COVID-19, an estimated 400 million informal sector workers in India “are at risk of falling deeper into poverty during the crisis” according to the International Labour Organization. COVID-19 has resulted in loss of livelihood for millions of people in India. Its impact has been particularly acute for informal sector workers, many of whom are internal migrant workers. Existing vulnerabilities to food insecurity in India are compounded by long-standing social and structural discrimination based on caste, religion and gender. Several million persons, including informal sector workers living in deprived urban and rural areas lack access to adequate food, as well as information about the availability of community kitchens.
The ICJ has previously called on the Indian government to ensure the protection of the rights of internal migrant workers, many of whom are stranded in intolerable conditions.
The briefing paper published by the ICJ sets out in question and answer format some of the human rights concerns that have arisen from the lockdown in the context of right to food for people living in poverty. It answers the following questions:
- What are the principal concerns regarding the right to food faced by people living in poverty in India since the COVID-19 lockdown started?
- What are India’s legal obligations to guarantee the right to food?
- What right to food issues does India’s COVID-19 response raise?
- What does the International Commission of Jurists recommend?
Infographic
Download the Right to Food Infographic here.
Contact
Maitreyi Gupta, ICJ India Legal Adviser, t: +91 77 560 28369 e: maitreyi.gupta(a)icj.org
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Download
India-Right-to-Food-COVID19-Briefing-Paper-2020-ENG (PDF)
Apr 27, 2020
An opinion piece by Emerlynne Gil, ICJ Senior Legal Adviser, Global Access to Justice and ASEAN
The Philippine government is one of the many around the world struggling to respond to the severe public health crisis brought about by the spread of the COVID-19 virus. To date, the Philippines is one of the countries with the highest COVID-19 related deaths in Southeast Asia.
Like a number of others around the world, the Philippine government responded to this pandemic by declaring a state of public health emergency and imposed limitations to rights such as the freedom of movement and freedom of expression. When the state of public health emergency was declared by President Duterte, there were fears that this might cause the further erosion of the rule of law and democracy in the country.
A state of emergency per se is not inconsistent with international human rights law. The human rights paradigm, which has sometimes been perceived by its critics as being too idealistic and lacking the practicality of being widely applicable in the real world, is actually quite pragmatic and envisions situations like the one we are facing now.
Situations necessitating the limitation of certain rights are anticipated under international human rights law. The International Covenant on Civil and Political Rights (ICCPR), to which the Philippines is a party, provides for the possibility of limiting certain rights in the interests of public health, and, in the most extreme cases, derogating from certain rights during declared states of emergency, to the extent strictly necessary to meet a threat to the life of the nation.
As part of the emergency measures, the Philippine government imposed a nationwide lockdown, which severely limits the freedom of movement of everyone in the country. The right to freedom of expression is also limited since the law that was passed declaring the emergency imposes a punishment of imprisonment of two (2) months or a fine of not more than 1 million pesos (approximately US$19,600) on persons found to have been “spreading false information regarding the COVID-19 crisis on social media and other platforms”.
The rights to freedom of movement and freedom of opinion and expression are two of the rights that may be limited under international law, but there are still parameters that must be followed when applying limitations. They must be established by law, are necessary, proportionate and non-discriminatory. This means that only the least restrictive measure must be applied. The limitations on these rights must be interpreted strictly in favor of the right always, and should not be construed so as to defeat the essence of the right involved. Furthermore and very important in the Philippines context, the limitations should not be abused or applied in an arbitrary manner.
Ever since the lockdown started in the Philippines, there have been reports of how this severe limitation of movement by the population is being abused by government authorities, especially to harass activists and those allegedly connected to armed rebel groups. For instance, Felipe Levy Gelle Jr., reported several visits in his home from the military, after the lockdown started. Felipe Levy Gelle Jr., a member of a human rights group in Negros, is among those who called for the investigation into the death of Benjamin Ramos, a lawyer who assisted the families of the nine farmers murdered in Sagay City on 20 October 2019.
Local government officials, who have been tasked to implement the rules on community quarantine, are also abusing their powers during the emergency. There are credible reports according to which local officials have subjected people to ill-treatment on those who violate lockdown rules. For instance, a barangay captain in the province of Pampanga was reported to have forced LGBT individuals to do lewd acts in public and in some parts of Manila, those who violate lockdown rules are kept in dog cages.
These forms of “punishment” are definitely degrading as they are extremely humiliating and are aimed to debase a person beyond that which is usual. The prohibition against torture or cruel, inhuman or degrading treatment or punishment is absolute and is not subject to limitation or derogation, even in times of emergency.
On the right to freedom of opinion and expression, there have been reports of several activists and journalists who have been either threatened or harassed by the authorities for criticizing publicly the government’s response to the COVID-19 crisis. For instance, barangay officials threatened to press libel charges against a student journalist, Joshua Molo, for the views he expressed online regarding the government’s response to the COVID-19 crisis. By going after those who express critical views of the government and its response to the crisis, authorities are casting a chilling effect on freedom of expression, stimulating self-censorship and possibly impeding information that may be crucial in effectively addressing this crisis. Indeed, the right to freedom of expression may be limited during times of emergency, but the limitations on this right should not be interpreted so as to defeat the right itself.
If the Philippine authorities are genuinely concerned about the rampant disinformation on the COVID-19 crisis, the best way to address this is counter-speech and social dialogue. It is within the spirit of democracy and rule of law to foster a culture of public dialogue where everyone can freely and without fear of reprisal, talk about and debate issues emerging from this crisis.
President Duterte’s language and rhetoric during his regular press conferences do not help the situation where the entire country is struggling under this state of emergency. The manner by which he is addressing this public health crisis is no different from how he continues to pursue his murderous “war on drugs”. In one of his speeches, instead of discouraging the use of force and calling for peaceful de-escalation of tensions during protests through dialogue and negotiation, he told police to unlawfully shoot protesters who “cause trouble” during this emergency. Instead of calming the nation and giving clear direction on how the government must work in a lawful and rights compliant manner during this crisis, his speeches cause further anxiety and confusion among the people.
Moreover, instead of letting public health professionals take the lead in addressing this crisis, President Duterte appointed military officers to implement the National Action Plan on curbing the spread of COVID-19. This shows that the Duterte administration still intends to rely on brute force and opaque decision-making processes to manage this crisis, instead of leaning on sound public health policies and transparent governance.
The Philippines is facing a long and difficult path in getting to the other side of this public health emergency. What is clear right now is that more human rights violations will not help the country. The survival of the nation will depend on protecting the rights of the people and holding on fiercely to the principles of democracy and the rule of law.
To download the Op-Ed, click here.
This article was first published on the Inquirer, available at: https://opinion.inquirer.net/129202/human-rights-in-a-public-health-emergency
Apr 27, 2020 | News
Today, the ICJ and Lawyers’ Rights Watch Canada (LRWC) jointly submitted a legal brief (amicus curiae) to the Court of Appeal in criminal defamation proceeding against Thai journalist Suchanee Rungmuanporn (Cloitre).
The journalist is being charged after making a post on Twitter highlighting labour rights violations by Thammakaset Company Limited. The post detailed an order by Thailand’s Court of Appeal for Specialized Cases for Thammakaset to provide compensation to its 14 former employees from Myanmar, with the word “slavery” included in the post. This inclusion is the basis for defamation claim.
On 24 December 2019, Suchanee was sentenced to two years’ imprisonment by Lopburi Provincial Court.
The intervention reviews the nature and scope of Thailand’s international legal obligations relating to the right to freedom of expression. It makes clear that the imposition of harsh penalties such as imprisonment has a “chilling effect” on the exercise of freedom of expression, which Thailand is bound to protect pursuant to its international legal obligations. It particularly undermines the work of journalists and human rights defenders seeking to bring to light these violations and whose activities must be protected.
The brief underscores that under international law and standards, criminal sanction involving imprisonment must never be imposed for defamation.
Criminal defamation, under sections 326 of the Criminal Code, carries a maximum sentence of one year of imprisonment, a fine of up to 20,000 Baht (approx. USD 640) or both. Section 328 criminalizes defamation “by means of publication” with up to two years’ imprisonment and a fine of up to 200,000 Baht (approx. USD 6,400).
This case is one of 36 cases brought by Thammakaset against several individuals who have expressed views and conducted advocacy on or released information relating to labour rights violations alleged to have been committed by Thammakaset. These include criminal defamation complaints against human rights defenders, including Mr. Nan Win, Ms. Sutharee Wannasiri, Ms. Ngamsuk Rattanasatiean, Ms. Angkhana Neelapaijit, Ms. Puttanee Kangkun, and Ms. Thanaporn Saleephol.
Download
Legal brief (amicus curiae) to the Court of Appeal in Thai and English.
