Sep 29, 2023 | News
The ICJ is concerned that the newly proposed Online Safety legislation, if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.
On 18 September 2023, the Ministry of Public Security gazetted a bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.
The ICJ considers that several provisions of the bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression. Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.
“While the spread of online hate-speech and disinformation need to be tackled, this bill is deeply flawed in its design and would be open to abuse by the Sri Lankan government, which has persistenty failed to uphold freedom of expression,” said Ian Seiderman, ICJ’s Legal and Policy Director. “It risks being used to suppress important public debate regarding the conduct of the government and matters of public policy,” he added.
The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes; make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.
The Bar Association of Sri Lanka has called for the immediate withdrawal of the bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to gazetting bills which ‘have a serious impact on the community at large.’
“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information.” Seiderman added.
The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terorrism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.
Article 14 (1) (a) of the Sri Lankan Constitution gurantees the freedom of speech and expression. Article 19 of the International Covernant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.
In July 2018, the UN Human Rights Council adopted by consensus a resolution affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
Contact: Ian Seiderman, Legal & Policy Director, e: ian.seiderman@icj.org
See annexed below a summary analysis of some problematic aspects of the Online Safety Bill.
Sri Lanka: Selected flaws in the Online Safety Bill
- Wide ranging and overly broad powers of the Online Safety Commission and appointed Experts
The bill provides for the establishment of a five-member ‘Online Safety Commission’ that is to be appointed on the sole discretion of the President (clause 5). This is in contrast to other notionally independent commissions in Sri Lanka, the appointments to which require the consent of the Constitutional Council by way of nomination or ratification. This bill would give the president unfettered discretion where both appointment and removal is concerned.
The Commission would also be vested with a wide range of powers, some of which encroach into the functions of the judiciary. It essentially acts as sole arbiter of matter of fact and is entitled to issue notices or directives against any person, internet service provider (ISP) or internet intermediaries who/which is alleged to have communicated a prohibited or false statement. The bill does not specify the process through which the Commission would arrive at this decision.
Moreover, the Commission is granted authority to block websites and instruct ISPs to restrict access to specific online locations. This may result in undue government overreach and censorship and impermissible limitations on the exercise of the right to information protected by Article 14A of the Constitution and international law.
Further clause 37 allows for the Minister to appoint ‘Experts’ to assist police officers in investigations. The experts are private individuals who can accompany police officers during search procedures, but are also given the power upon authority granted by a police officer above the rank of a sub-inspector to require a person to hand over any documents or device, provide traffic data or be orally examined (clause 37 (6)). Such excessive powers in the hands of unaccountable private individuals provide avenues for abuse.
The bill does not provide provide for judicial review of the Commission’s decisions or procedures. Instead clause 49 seeks to protect the Commission, its staff, or any expert appointed under clause 37 from being brought to court for any act or omission done in good faith.
- Vague and overbroad offences
A particularly problematic aspect of the bill are provisions of vague and overbroad definitions of offences.
Article 19(3) of the ICCPR provides that the right to freedom of expression and opinion may be subject to certain restrictions, but that these restrictions must be provided by law and necessary for one of a limited numbers of legitimate purposes, namely to protect the rights and reputations of others, national security, public order or public health or morals. The measure of limitation must be proportionate, using the least restrictive means possible to achieve the purpose. The requirement that any restrictive measure be provided by law means that they must comply with the principle of legality, by which the law must be stated with precision as to allow persons to be able to conform their conduct in compliance.
Similarly, Article 15 (2) of the Sri Lankan Constitution provides for possibility of restriction of the right “as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”
The prohibitions listed in this draft legislation go beyond the restrictions allowed for under the ICCPR and the Sri Lankan Constitution, as clause 12 states that “any person who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between different classes of people, by communicating a false statement, commits an offence.”
In addition, several acts that would constitute offence are only vaguely defined, if at all. This includes communicating a false statement “with the deliberate intention of wounding the religious feelings of any other person” (clause 16) or “outraging the religious feelings of any class of persons, insults or attempts to insult the religion or the religious beliefs of that class” (clause 17). These clauses are overbroad in that they would encompass expression that is protected under human rights law. Clause 14 makes it an offence to ‘wantonly giving provocation by false statement to cause riot’. This language is open to abuse by the authorities, as evidenced by practices arising from other legislation, including the ICCPR Act and the PTA.
Repeated mention of ‘religion’ in these provisions is a cause for concern as they come in a context where there is ongoing strife relating to contested religious sites between majority and minority religious communities, thus creating risk of selected application to silence expression by persons from minority religious communities.
- Disproportionate Punishment
The draft bill prescribes unjustifiably hefty punishments of fines and a period of imprisonment ranging from one, two, three or five years for overbroad and ill-defined offences. It also states that “in the event of a second or subsequent conviction, such term of imprisonment or fine or both such imprisonment and fine may be doubled.”
Clause 25 of the bill, which refers to ‘failure to comply with the directives of the Commission’ would make it an offence to fails to comply with such directive within a period of 24 hours and makes the person liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million rupees.
Sep 28, 2023 | News
The ICJ is concerned at Thailand’s continued failure to bring justice to the loved ones of Karen activist Pholachi ‘Billy’ Rakchongcharoen, who was the victim of an apparent enforced disappearance in 2014, and apparent subsequent killing.
The ICJ calls on the responsible authorities to ensure that there is continuous effective investigation to determine definitively the fate of Billy and deliver justice to his family.
Today, Thailand’s Criminal Courts for Corruption and Misconduct Cases acquitted four Kaeng Krachan National Park officials, the last individuals seen with Billy, of murder-related charges, including premeditated murder and concealing the victim’s body. Only one of the accused, Chaiwat Limlikit-aksorn, former chief of Kaeng Krachan National Park, was convicted of charges and sentenced to three years in prison related to “malfeasance in office” for failing to hand Billy over to the responsible authorities after his arrest.
The Court, constituted of a panel of two judges, indicated that it did not believe that Billy had been released as claimed by the accused. Nevertheless, the Court concluded that there was not sufficient evidence to prove that the park officials orchestrated the killing.
“More than nine years of delays, including by inaction by the government until recently, and still no justice, is a blow to the victims. This constitutes yet another marker of Thailand’s consistent failure to hold accountable perpetrators of serious human rights crimes, potentially committed by State authorities,” said Sanhawan Srisod, ICJ Legal Adviser.
Billy was the victim of an apparent enforced disappearance, as he was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials. The officials claimed they detained Billy for illegal possession of honey, but that they released him later the same day.
On 12 September 2019, the DSI located bone fragments, along with an oil tank submerged in water, which they identified as likely belonging to Billy. The subsequent DNA test indicated a maternal relation between the fragment and Billy’s mother, suggesting a blood relationship through the maternal line. However, the Court ruled today that there was insufficient evidence to establish that they belong to Billy, as opposed to other relatives who may have passed away during the same period.
This decision was made despite testimony from State forensic experts affirming the validity of the DNA test used in this case, which needed to be considered alongside other supporting facts. This includes testimonies given by the relatives and cultural expert about the absence of known blood relatives who had passed away without knowledge, and the Karen practice of not scattering the remains of the deceased in the river. Such testimony also aligns with the opinions of international forensic experts, specifically the Independent Forensic Expert Group established by the International Rehabilitation Council for Torture Victims, who were consulted by the prosecutors’ lawyers.
Enforced disappearance was recently made a specific crime under Thai law, following the adoption of the long-delayed Act on Prevention and Suppression of Torture and Enforced Disappearance, which came into effect in February this year. Under the Act, and international law, enforced disappearance is a continuous crime, which is not completed until the fate or whereabouts of the victim becomes known. Therefore, to the extent that there is any doubt that the discovered remains belonged to Billy, the crime must be considered to be ongoing and the law is applicable to Billy, even if it was not in force when he first “disappeared.”
Nevertheless, the Prosecution did not attempt to charge the accused with enforced disappearance, and the Court consistently rejected any reference to the crime made by the prosecution during the proceedings. This includes the rejection of expert witnesses proposed by the prosecutor’s lawyers who intended to testify about international law and standards governing enforced disappearance, following the rejections made by the accused.
“It is also unfortunate that the Thai court did not take into consideration the specific nature of the crime of enforced disappearance, often accompanied by very limited circumstantial evidence, which may be the only available means of establishing the crime. Such a crime also normally includes the powerlessness of the victim in the hands of the authorities, the use of state power to destroy direct evidence in an attempt at total impunity or to create the illusion of a perfect crime, all factors that have been taken into consideration in many cases in various jurisdictions worldwide when assessing the possible involvement of the suspects in crimes of this nature,” added Srisod.
During the trial, pursuant to the Act on Establishment of the Criminal Court for Corruption Cases B.E. 2559 (2016), the Court also used the so-called inquisitorial system, which is new to both lawyers and public prosecutors accustomed to the accusatorial style of the usual Thai court system. In this regard, lawyers voiced complaints that the judge on several occasions cut short the follow-up questions that the lawyers had planned to ask, citing that these issues had already been covered during their own examinations and other written submissions.
Background
Chaiwat Limlikit-aksorn was convicted under section 157 of the Criminal Code and section 123 of the Organic Act on Counter Corruption B.E. 2542 (1999).
Thailand has signed but not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The latter two treaties prohibit conduct making up enforced disappearance, and the crime is recognized as violation of both treaties.
The National Human Rights Commission of Thailand and local Thai Civil Society Organizations continue to receive complaints of alleged human rights violations at the hands of security forces constituting serious criminal conduct, including extraterritorial killings, torture and other ill-treatment, and enforced disappearances.
Between 1980 and August 2023, the UN Working Group on Enforced or Involuntary Disappearances also recorded and transmitted 93 cases of alleged enforced disappearance to Thailand. Currently, 77 of these cases remain unresolved.
Unfortunately, the number of cases in which these allegations have been investigated, let alone perpetrators prosecuted, remains low, as are instances where there has been access to effective remedies and provision of reparations for victims. In several instances, alleged victims of torture and other ill-treatment or the families of those who died as a result of these abuses have received some monetary payments falling short of full reparation, but the perpetrators have not yet been brought to justice.
This case also follows the acquittal of five police officers charged with the robbery and coercion of the “disappeared” human rights lawyer Somchai Neelapaijit in December 2015 due to a lack of evidence.
Further reading
Thailand: Indictment of park officials for killing of “Billy” is a significant step towards justice
Thailand: discovery of “Billy’s” remains should reinvigorate efforts to identify perpetrator(s)
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
Sanhawan Srisod, Associate International Legal Adviser, ICJ, e: sanhawan.srisod@icj.org
Sep 25, 2023 | News
The ICJ considers that revisions made to the draft of proposed anti-terrorism legislation, while positive, fail to sufficiently correct the deficiencies of the earlier draft and, if adopted, would risk serious human rights violations.
The revised bill, in its clause 3 continues to define acts of terrorism in a vague and overbroad matter and undercuts the inherent authority of the judiciary, as people may be detained for two months solely on order of the secretary of the Defence Ministry.
“The overbroad definition coupled with the restriction on the authority of magistrates to review initial Detention Orders is in contravention of fundamental rule of law principles and must be further revised if Sri Lanka is to deliver on its promise to protect the human rights of all of its inhabitants,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The ICJ stresses that these provisions contravene article 13 of Sri Lanka’s Constitution, as well as article 9 of the International Covenant on Civil and Political rights, to which Sri Lanka is a party.
On 15 September 2023, the Ministry of Justice of Sri Lanka published the revised version of the Anti- Terrorism Bill (ATA), which would repeal and replace the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 (PTA). A first draft of the Bill was published in March 2023 and according to government ministers the current revision was aimed at removing certain problematic provisions from the earlier draft. The ICJ had previously expressed concerns about that draft.
“Sri Lanka should dispense with special regimes like the ATA and instead address terrorism offences through criminal procedures that comply with the rule of law,” said Ian Seiderman. “At the very least, the Ministry of Justice must revise the present draft in line with international human rights law and standards before parliament takes action on it.”
Among the vague and overbroad provisions of the draft bill are the “encouragement of terrorism” (clause 10) and “dissemination of terrorist publications” (clause 11), under which persons can be detained for sharing or causing to be published statements which are interpreted by the authorities to be in support of terrorism or terrorism activities. The burden of proof for such offences would be unacceptably reversed under the bill, as the accused would be required to prove before the high court that they had not consented to or approved the utterance or publication of such statements.
The prescribed punishment for these offences is imprisonment up to 15 years and/or a fine up to one million rupees. Property owned by the accused may also be forfeited to the State.
The bill would provide the President with excessive powers to restrict the exercise of human rights, including to impose restriction orders on individual persons, proclaim curfews, designate prohibited places, and make regulations to implement “rehabilitation programmes” for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. Rehabilitation programmes in the past have served a punitive function, as accused persons have often been effectively coerced into accepting rehabilitation particularly in cases where the prosecutor has lacked evidence of criminal conduct.
The ICJ notes the several positive changes in the revised draft, including the removal of the death penalty as a possible punishment and removal of the power of the Deputy Inspector Generals (DIGs) of Police to issue Detention Orders (DO). The new draft would also allow the Magistrate to discharge suspects, in the absence of a DO, where the Magistrate determines that there is no justification for the arrest. DOs, which may only be issued by the Secretary to the Ministry of Defence would now allow for detention of two months without charge, as opposed to three months contemplated by the earlier draft of the bill. Finally, the revised bill removes mention of the Board of Review, which would have been empowered to hear appeals against DOs in the previous draft, and provides time limits for declarations of prohibited places by the President.
The revised draft also retains the improvements made to the PTA in the first draft including the removal of a provision which accepts “confessions” made before a police officer while in detention as evidence in courts; the issuance of a document by the arresting officer notifying arrest to a family member of the arrested person; employing women police to question or conduct searches of women detainees; access to translations in a language of the accused’s choice; and production before a magistrate every 14 days when a person is detained under a Detention Order (DO).
However, among its many flaws, the draft law is silent on compensation and redress mechanisms for those affected by abuse and misuse of the law. This is a significant shortcoming, as detainees have languished in custody for years under the PTA and have had the cases against them dismissed decades later.
Background
Past experience with the PTA has shown that provisions relating to ‘encouragement of terrorism’ or ‘dissemination of terrorist publications’ are open to abuse particularly against persons from minority communities including journalists. For instance, Ahnaf Jazeem ,whose book of poetry was spuriously identified as promoting “extremism”, was subjected to human rights violations, including arbitrary detention under the PTA. In May 2022, the UN Working Group on Arbitrary Detention stated that Sri Lanka had violated international human rights law by detaining Ahnaf Jazeem.
The ICJ has repeatedly called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. United Nations human rights bodies have also called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act and to repeal the Act.
Sep 21, 2023 | Incidencia, Noticias
Entre el 18 y el 20 de septiembre de 2023, la Comisión Internacional de Juristas (CIJ), la Red de Aprendizaje sobre Acceso a la Justicia (Access to Justice Knowledge Hub) y el Programa de Acción por la Igualdad y la Inclusión Social (PAIIS) de la Universidad de los Andes celebraron conjuntamente un taller regional en Bogotá, Colombia, sobre el uso discriminatorio, desproporcionado y a menudo arbitrario de los sistemas de justicia penal contra personas y grupos marginados en América Latina. El evento reunió a unas 30 personas de organizaciones de la sociedad civil, actores judiciales, juezas, jueces y representantes de instituciones gubernamentales. Las y los participantes procedían de diversos países latinoamericanos, como Argentina, Chile, Colombia, Ecuador, México, Paraguay y Perú.
El evento giró en torno a “Los Principios del 8 de marzo para un Enfoque de Derechos Humanos en el Derecho Penal que Proscribe Conductas Asociadas con la Vida Sexual, la Reproducción, el Consumo de Drogas, la Falta de Hogar y la Pobreza” (Principios del 8 de marzo) de la CIJ y los “Principios y Directrices Internacionales sobre el Acceso a la Justicia para las Personas con Discapacidad”” del Relator Especial de la ONU sobre los Derechos de las Personas con Discapacidad. Las y los participantes coincidieron en que la alarmante tendencia mundial a la sobrecriminalización es también evidente en América Latina. Esta tendencia obstaculiza el avance de los derechos humanos, especialmente los derechos de las personas y grupos marginados, como las personas LGBTI+, las personas que viven con el VIH, las mujeres con discapacidad y las mujeres que viven en la pobreza.
En su presentación, el Comisionado de la CIJ Rodrigo Uprimny habló de “la inevitabilidad del derecho penal”, describiéndolo como “una amarga necesidad de la convivencia social”. Ciertas conductas, argumentó, como los actos que constituyen violaciones de los derechos humanos, deben ser inevitablemente criminalizadas por los Estados. En este contexto, Uprimny también señaló que en América Latina existe una tendencia al “populismo punitivo”, que a menudo se traduce en un uso desproporcionado y discriminatorio del derecho penal en diversos contextos, como la protesta social, el consumo de drogas y el aborto. En ese sentido, comentó la importancia de los Principios del 8 de marzo en América Latina:
“La realidad demuestra que en comportamientos que [los] Principios desarrollan son precisamente los comportamientos en donde usualmente es muy fuerte el impacto discriminatorio del derecho penal. (…) Con todos los criterios de discriminación, género, raza, discapacidad, pobreza, etc. (…) Los Principios lo llaman a uno a la cautela de la tendencia a la sobrecriminalización (…) El tema de la sobrecriminalización no es solo hoy un asunto de las derechas más autoritarias de América Latina. Hay también en el mundo de los derechos humanos una fuga hacia el punitivismo. (…) [El uso del derecho penal puede estar] justificado, pero a veces puede tener efectos perversos”.
Las y los participantes reflexionaron sobre los problemas comunes y las barreras que los sistemas de justicia penal imponen a los grupos e individuos marginados en América Latina, incluyendo el impacto desproporcionado del derecho penal sobre las mujeres, las personas sin hogar, las personas que viven con el VIH, las personas que consumen drogas y las personas con discapacidad.
Un elemento central del debate fue que las violaciones de derechos humanos, como resultado de procesos penales, implican el fracaso de una serie de actores –incluidos juezas y jueces, fiscales, agentes de policía y otros actores de la justicia, así como psiquiatras y servicios sociales– a la hora de comprender y aplicar las normas internacionales de derechos humanos. En este sentido, las y los participantes destacaron, entre otras cosas, la falta de conocimiento y aplicación de la Convención sobre los Derechos de las Personas con Discapacidad y de la jurisprudencia del Comité de la ONU sobre los Derechos de las Personas con Discapacidad, en relación con el acceso a la justicia de las personas con discapacidad. Como resultado, las personas con discapacidad en América Latina, y en particular aquellas con discapacidad psicosocial, se enfrentan a serios obstáculos para ejercer su derecho a la capacidad jurídica en procesos penales.
Las y los participantes se comprometieron a establecer una agenda común para la incidencia conjunta, incluyendo mediante la organización de talleres dirigidos a los actores de la justicia, como juezas y jueces, en América Latina. En particular, se necesita un conocimiento más profundo de la normas y estándares internacionales de derechos humanos en el contexto de la justicia penal, así como de los derechos de las personas con discapacidad.
Contactos
Rocío Quintero Martínez, Asesora Legal de la CIJ para el Programa de América Latina, e: rocio.quintero@icj.org
Timothy Fish Hodgson, Asesor Sénior de la CIJ en Derechos Económicos, Sociales y Culturales, e: timothy.hodgson@icj.org
Sep 13, 2023 | News
The International Commission of Jurists (ICJ) has condemned the widespread human rights violations reported by election observers, non-governmental organizations (NGOs) and human rights defenders which appears to have had an adverse impact on the fairness and...
