Jul 17, 2015
In a briefing paper released today, and an accompanying letter to Nepal’s Constituent Assembly, the ICJ raises a number of concerns about Nepal’s Draft Constitution.
The Constituent Assembly’s endorsement of a Draft Constitution on 7 July 2015, and the subsequent opening of a 15-day public consultation on this draft, represents a unique and crucial moment in Nepal’s constitutional history, the ICJ said.
But to fulfill the promises of the Comprehensive Peace Accord that ended the decade-long armed conflict and the guarantees of the Interim Constitution it will replace, changes to the drafting process must ensure adequate opportunity for meaningful and inclusive public participation, and amendments to the Draft Constitution are required to protect human rights in accordance with Nepal’s international obligations.
“This 15-day timeframe must be expanded, and provisions of the draft Constitution must be amended, to ensure that the Nepali people have the opportunity to frame a Constitution which guarantees the rule of law, human dignity and enhanced human rights protection,” said Wilder Tayler, Secretary General of the International Commission of Jurists.
In a letter to the Chairperson of the Constituent Assembly on 17 July 2015, accompanied by a detailed briefing paper, the ICJ has made recommendations for changes to both the constitution-making process and text of the Draft Constitution in light of Nepal’s obligations under international human rights law.
The ICJ has underscored that, while the renewed momentum within the Nepali government in the aftermath of the earthquake to finalize and adopt the long-awaited Constitution is welcome, the speed and manner in which the consultation on the first Draft Constitution is being conducted is undermining people’s right to participate.
“Such ‘fast-tracking’ risks delegitimizing the constitution-making process by undermining people’s right to participate in it”, Secretary-General Tayler said. “The government must urgently revise the timetable to ensure that all individuals, including minorities, historically marginalized groups and people in remote areas whose accessibility is further compromised by the rainy season, have the necessary time and resources to meaningfully review and comment on the draft”.
The ICJ has also noted several provisions of the Draft Constitution that must be amended to fully comply with international human rights standards and to protect the rule of law.
The ICJ’s analysis of the provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations, found that:
- The citizenship provisions are vague and discriminatory, and risk making people stateless;
- Non-citizens are excluded from key rights entitlement and protections;
- Several rights, including women’s rights and key economic, social and cultural rights, are not adequately protected;
- Restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly are broad and vague and do not conform with international human rights standards;
- Provisions on remedy for human rights violations are lacking;
- Protections of the independence of the judiciary are weak and inadequate;
- Provisions on emergencies and consequent restriction of rights are overbroad.
“Amendments to the Draft Constitution to address these concerns, among others are needed if Nepal is to adopt a strong and progressive Constitution which safeguards the rule of law, human rights and the independence of the judiciary, consistent with the country’s obligations under international human rights law,” Tayler said.
Download the ICJ’s letter to the Constituent Assembly here:
NEPAL-DRAFT CONST-ADVOCACY-OPEN LETTER-2015-ENG
Download the ICJ’s full briefing here:
NEPAL-CONSTITUTION-ADVOCACY-ANALYSIS BRIEFS-2015-ENG
Contact:
Nikhil Narayan, Nepal Head of Office and ICJ Senior Legal Adviser, m: +977-(0)9813187821, e-mail: nikhil.narayan(a)icj.org
Apr 15, 2015
In a briefing paper released today, the ICJ provides answers to key questions regarding the legal framework and political context of Pakistan’s move to allow military courts to try civilians for offenses allegedly related to terrorism.
The ICJ is publishing this paper as the Supreme Court of Pakistan (photo) is about to resume hearings (tomorrow), in a constitutional challenge to the newly enacted legal framework granting jurisdiction to military courts to try civilians for terrorism related offences.
The briefing paper analyses the new provisions and military court proceedings in the light of international standards guaranteeing the right to fair trial before independent and impartial courts.
“Pakistan’s new system of ‘military justice’ falls well short of domestic and international fair trial standards, flouts previous Supreme Court rulings, and goes against a regional and global trend of limiting rather than expanding military courts’ jurisdiction,” said Sam Zarifi, ICJ’s Asia director.
Earlier this month, the Chief Justice of Pakistan, Nasir-ul-Mulk, constituted a full-bench of the Supreme Court comprising of all 17 justices to hear over a dozen petitions that argue that the extension of military court’s jurisdiction over civilians is a violation of the right to a fair trial and the independence of the judiciary, and a breach of the principle of separation of powers.
“The failure of the government and military authorities to make public information about the time and place of the trials, the charges against accused persons as well as the procedures used by military courts have confirmed fears of human rights groups and the legal community that the military trials in Pakistan are secret, opaque and violate Pakistan’s domestic and international fair trial obligations,” Zarifi added.
“The Supreme Court has in the past contributed positively to protecting human rights, notably in cases of enforced disappearance and the rights of religious minorities,” he said.
“All eyes are now on the Court to remedy the militarization of justice in progress in Pakistan under the guise of combatting terrorism.”
Background
On 6 January, Pakistan’s Parliament passed the 21st amendment to the Constitution and amendment to the Army Act, 1952, to allow military tribunals to try civilians accused of belonging to “a terrorist group or organization using the name of religion or a sect” carrying out acts of violence and terrorism.
On 2 April, military courts delivered their first set of verdicts under the new legal provisions. Seven accused persons were convicted for undisclosed offences: six were sentenced to death and one was sentenced to life imprisonment.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; email: reema.omer(a)icj.org
Pakistan -Q and A Military Courts-Advocacy-Analysis Brief-2015-ENG (full text in PDF)
Feb 11, 2015
The ICJ presented its opinion in regard to the case of Oleg Evloev v. Kazakhstan. The underlying matters in the proceeding had been the subject of a decision by the UN Committee against Torture (CAT).
The ICJ outlined the States’ obligations under the UN Convention Against Torture, the Procedure under Article 22 of the Convention, as well as the National Courts’ role vis-a-vis the decisions of the CAT.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Russia-Evloev expert opinion-Advocacy-analysis brief-2015-eng (full text in PDF)
Russia-Evloev expert opinion-Advocacy-analysis brief-2015-rus (full text in PDF)
Oct 30, 2014
An ICJ report, published today following a mission to Italy, examines the effectiveness of the Italian legal system in delivering access to justice for undocumented migrants who challenge orders for their expulsion or administrative detention.
Sep 5, 2014
The ICJ, together with JUSTICE and NJCM, today published two commentaries on the proposed directives on provisional legal aid and legal aid in European Arrest Warrant Proceedings and procedural rights for children suspected or accused in criminal proceedings.
