Aug 15, 2017
An opinion editorial by Venezuelan lawyer Carlos Ayala, member of the ICJ’s Executive Committee.
For the past 18 years, Venezuela has been accumulating all the ingredients –in its society, the State, the economy and democracy– to create a perfect storm.
Promises were made that the old problems would be resolved, differently and effectively, from outside the political system.
Much of society felt that the breakdown of the bipartisan model of government by consensus, born from the 1958 Punto Fijo Pact, was responsible for the evils of corrupt politicians and political parties.
The drop on oil prices in the 1990s led to a series of necessary adjustments in the economy and, as always, it was the poorest who disproportionately paid the price.
In 1998, new hope appeared with the win by a charismatic leader, styled after the traditional military strongmen (“caudillo”) of the 19th Century: Army Lieutenant Colonel Hugo Chávez, leader of the attempted coup of 4 February 1992, who had been pardoned some years earlier by President Rafael Caldera.
His promise was clear: a return to our historical roots, following the ideals of his heroes, to re-found a new Republic; The Fifth Republic of the Bolivarian Revolution.
Many intellectuals and academic experts on the subject of Bolívar considered this a true contradiction that insulted the memory of the Liberator by manipulating his political ideals.
The Constitution represented a serious obstacle to the implementation of this task.
One month earlier, in November 1998, senators and congressional deputies had been elected, and the new President’s party had not won the majority.
In addition, the separation and independence of the branches of power put limits on the revolution, which needed to find an alternative for its implementation.
To that end, as soon the new President Chávez took office in February 1999, he decreed that a referendum would be held to ask the people if they approved the convocation of a National Constituent Assembly.
The intention was to repeal the 1961 Constitution, which was the longest-standing in Venezuela’s history, arguing that it, along with the traditional parties, were responsible for the country’s ills. In other words, this repeal of the Constitution would be effected through a process other than the one provided within it (general reform), by resorting to the “original” constituent power.
In this way, the cumbersome constitutional supremacy and rigidity was sidestepped, implementing a parallel procedure, not contemplated in the Constitution nor agreed between the political forces, but instead imposed by the vote of the majority as the holders of constituent power.
Although the Supreme Court of Justice had ruled in 1999 that the Constituent Assembly could not be considered as “original” or with absolute powers to adopt measures that would affect the current Constitution until a new constitution was approved, as soon as the said Constituent Assembly was elected and installed, it immediately declared itself “original”, sovereign, and supra-constitutional.
In this way, the only provisions that would remain in force from the 1961 Constitution were those that the Constituent Assembly would not repeal, and the Constituent Assembly empowered itself to enact legislation and decrees that changed or affected the organs of constituted power.
In this way, the Constituent Assembly, after ratifying the President of the Republic in his position, intervened in the legislative branch (Congress) and the judicial branch, as well as the powers of the states (governors and legislative assemblies) and municipalities (mayors and city councils).
The court preferred to commit suicide rather than be murdered
As of that moment, the Supreme Court stood down from upholding not only its own precedents, but those of the Constitution itself, and it endorsed the position that the Constituent Assembly was supra-constitutional.
At that time, the then-President of the Supreme Court said that the court preferred to commit suicide rather than be murdered, and resigned from her position.
From then on, the way ahead was clear: for the executive to achieve its ends, it would be necessary to control the judiciary, ensuring that judges were not at the service of the law, but of the revolution.
The intervention in the judiciary was carried out through the constituent decree of “Judicial Emergency” that remained in effect for several years.
This allowed a committee appointed by the Constituent Assembly to remove tenured judges on grounds that were as vague as they were absurd, such as the fact that their judgments had been overturned repeatedly by higher courts, or having had three or more disciplinary complaints made against them.
Afterwards, the Constituent Assembly created a Committee for Restructuring the Judicial Branch, which operated for almost six years, and which continued to remove judges arbitrarily, without effective judicial protection.
At the same time, in December 1999, the Constituent Assembly appointed temporary members of the new Supreme Tribunal of Justice (STJ) and other heads of the branches of national public power, without following the procedures and requirements established in the nascent Constitution.
By then, the deed had been done: the State was under the control of a constituent coup by the political party of the President of the Republic, and now it was guaranteed that it would loyally serve the true cause of the revolution.
Law would be at the service of the revolution, and no longer an obstacle to it.
The revolution was the objective, and the law was an instrument at the service of the people, and therefore of their revolution. The law would be an expression of the revolutionary will of the people, and the operators of the law should understand and apply it thus.
The leaders of the revolution, as the officials of a new State (the Bolivarian Republic), serving the people, embodied the revolution.
In other words, the will of the highest leader became the will of the people. To pull this off, the role of judges would be essential in applying and guaranteeing that the law was unconditionally at the service of the revolution.
The new STJ began to convene public examination competitions to fill the vacancies for judges in the judiciary, but these procedures were soon suspended because, although qualified judges were approved, they were not loyal to the revolution.
To solve this “dilemma”, the STJ created and appointed a powerful Judicial Committee made up of Supreme Court judges, which still exists and which is in charge of freely appointing and removing judges without the constitutional need to hold open competitions.
There is a catch, one very important detail: these direct appointments of judges are done on a “provisional” basis, which is why, according to them and the new case law, at any time their appointments may be “left without effect”, meaning that these judges may be freely removed without cause, procedure, nor right to appeal.
In this way, a “new” revolutionary judicial branch was created, made up of judges at the loyal service of the revolution, most of them having little training, others being corrupt, and always under the scrutiny of those in power.
If they do not serve the revolution faithfully, their services are immediately terminated. In this way, provisional judges became the regime’s preferred tool for persecuting social and political dissidence with the assurance that, if judges do not follow the political guidelines, their services would be terminated immediately.
In the process, these judges became the guarantors of impunity for more than 90% of common crimes and 99% of crimes involving human rights violations.
Even the few remaining titular judges (judges with some level of security of tenure) were not spared under the new regime.
The case of Judge Maria Lourdes Afiuni is perhaps the most emblematic of the consequences of making a ruling that is not in the political interest of the government.
In ruling to release a person who had been held in pre-trial detention for more than two years –a situation that the UN Working Group on Arbitrary Detention had declared arbitrary, and demanded his immediate release– Judge Afiuni agreed to grant him conditional release during the trial, forbid him from leaving the country, and keep his passport.
Less than an hour after deciding this alternative judicial measure, State security police arrested Judge Afiuni.
The following day, on a national radio and television network, President Chávez demanded that she be jailed, tried and sentenced to the maximum of 30 years in prison.
Judge Afiuni was imprisoned for more than two years, where she was raped in prison, and had to be taken out for emergency surgery.
More than six years later, the State continues to persecute her, stalling on her case, with no grounds to convict her.
The STJ’s Constitutional Chamber has also been politically manipulated as a channel to expeditiously remove municipal mayors, disqualify them from holding public office, and prosecute and sentence them to prison, all in one single hearing.
In response to the public protests that have been taking place since 2014, the STJ has issued precautionary measures requiring mayors to prevent these protests from taking place.
When opposition mayors have respected citizens’ right to protest, the Constitutional Chamber has summoned them to hearings to demonstrate that they have complied with the injunction against protests.
Within hours, the mayors have been sentenced to 12 to 15 months in prison, barred from politics, and stripped of office.
Another decisive turn of the screw of autocracy
To date, these unconstitutional and unconventional procedures have been used against 12 opposition mayors, even though the United Nations Human Rights Committee has declared (in the case of Mayor Scarano vs Venezuela) that this violates several international human rights obligations under the International Covenant on Civil and Political Rights.
It is no coincidence that to sidestep its international law obligations, in 2012 Venezuela became the only country in Latin American to denounce the American Convention on Human Rights.
It also withdrew from the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID).
The win by the opposition (Mesa de la Unidad Democrática –MUD) in the legislative elections of 6 December 2015 gave rise to another decisive turn of the screw of autocracy, to bring it up to the point of a dictatorship. Again, the STJ was key in this political maneuver.
With the opposition having won two thirds of the seats in the National Assembly, the STJ carried out a coup against the people’s sovereignty and the national legislative body’s constitutional powers.
Using, abusing and manipulating the different procedural mechanisms of the STJ’s Electoral and Constitutional Chambers, the executive branch and members of the government’s party suspended three elected opposition legislators and annulled and rendered without effect all the laws that had been passed, as well as all calls for questioning and accountability by public officials, the approval of the national budget, the National Assembly’s internal regulations, the administration of its own staff, and even the annual message by the President of the Republic before the National Assembly.
The STJ’s Constitutional Chamber overturned and high jacked all of the National Assembly’s constitutional powers to legislate, investigate, exercise oversight and take internal administration action.
During 2016, in the midst of the crisis over food, medicine, inflation and security, the opposition decided to activate the people’s right, provided in article 72 of the Constitution, to collect signatures in order to call a referendum to recall the mandate of the President of the Republic, Nicolás Maduro.
In response, the electoral authority imposed a series of obstacles and restrictions on the collection of the necessary signatures.
Once the signatures were collected, several criminal court judges simultaneously issued precautionary measures suspending the referendum in their states, and the National Electoral Council immediately seized the opportunity to suspend the recall referendum at the national level.
In December 2016, according to the Constitution, state elections had to be held for governors and state deputies, but the National Electoral Council did not convene these elections.
Nor have municipal elections been convened in 2017 which, also according to the Constitution, should be held this year to elect mayors and city councillors.
With democracy and the Constitution suspended in Venezuela, the opposition and the international community began to demand that the government immediately hold elections, release political prisoners, respect the powers of the National Assembly, and open a humanitarian aid channel to provide food and medicine.
The government and the opposition engaged in some dialogue by the end of 2016 but, as evidenced by the letter from Vatican Secretary of State, Monsignor Pietro Parolin, the government never fulfilled these commitments.
In other words, the government again made a mockery of the attempts at dialogue and, in bad faith, stalled to gain time to crack down on public protests.
At the end of March 2017, Judgments 155 and 156 by the STJ’s Constitutional Chamber rescinded parliamentary immunity and determined that, from now on, the National Assembly could not exercise any of its constitutional powers; which would now be exercised by whomsoever is appointed by the Constitutional Chamber.
Both Venezuelan society and the international community pointedly declared that these “judicial” decisions constituted a coup, as a clear alteration of the constitutional regime that seriously impairs the democratic order.
The role of the Attorney General of the Republic was decisive in raising this objection, despite the fact that, until that time, she had been a key figure of the Chavist regime.
The March 2017 rulings ignited further public protests in Venezuela.
The people felt that their right to their elected National Assembly had been seized from them, and that the country’s problems were worsening.
Again, as in 1999, the Constitution was seen by the executive as an impediment.
In response to public outcry for general elections and respect for democracy and the Constitution, the government instead opted for a non-democratic and unconstitutional solution: a presidential decree convening a National Constituent Assembly (NCA), with voting jurisdictions to be made up of different “sectors” and territorial districts defined by the government, but without any correlation to the population base.
A Constituent Assembly that would not respect universal, direct, secret, free, and equal suffrage, in which the will of the majority of the people would be suppressed. The 1999 Constitution expressly stipulates (in article 347) that only the people can convene a NCA, as the holders of original constituent power.
Hence, according to Venezuelan constitutional law and practices, which even President Chávez obeyed in 1999, the president of the republic may only propose the “initiative” (under article 348) to call for the people to decide in a referendum: (i) whether they want to convene a NCA to write a new Constitution; and (ii) to approve the proposed voting system and jurisdictions.
The STJ’s Constitutional Chamber immediately issued judgments upholding the President’s unconstitutional convening of a NCA, and the National Electoral Council unlawfully put it into motion, calling the election that took place on 30 July 2017.
The opposition declined to participate in the election, refusing to legitimize an initiative that was blatantly contrary to the Constitution and democracy.
On that day, government supporters elected the members of the NCA. Immense electoral fraud was reported, not only by the opposition, civil society, and the international community, but even by the company that has handled the electoral software for the National Electoral Council since 2003 (Smartmatic).
Once the NCA was installed, its first act consisted of receiving a communication from the STJ (which should have been sent to the National Assembly), notifying it that the Attorney General of the Republic (Luisa Ortega Díaz) had been suspended.
Without any sort of trial, the NCA immediately proceeded to strip her of office, and in her place appointed Tarek W. Saab, former Ombudsman, former National Assembly deputy, and former state governor from the government’s party.
A supra-constitutional “Leviathan”
It is clear that the NCA is not interested in promptly drawing up a “new” Constitution, submitting it for approval by referendum, and then ceasing to function.
The NCA has already stated that the 1999 Constitution will remain in force, except for the parts that the NCA declares void! Ergo, the Constitution is finished.
In its place is a supra-constitutional “Leviathan” that can do anything and that has no boundaries of oversight, time, or subject matter.
Obviously, the NCA has also forgotten that it should be bounded among other limits by human rights and its progressiveness.
All this is taking place, as in every dictatorship, in the face of rejection by the immense majority of the country’s citizens, and under daily public protests over the worsening social, economic, food, and health problems; but also under the most brutal government repression that the country has ever seen, with more than 100 dead, thousands injured, thousands arrested, and more than 500 civilians on trial before military courts.
The democratic world has awakened to this reality. Repudiation and calls for action are being made almost daily by the Secretary General of the OAS, the UN High Commissioner for Human Rights, the European Parliament, and the Inter-American Commission on Human Rights, among others.
The American continent (with the exception of some Caribbean Islands) and Europe are expressing their democratic solidarity.
The government’s reaction has been insults and isolation, becoming the only country in history to have denounced the Organization of American States (OAS) Charter.
How the Venezuelan crisis will end is not yet known.
Hopefully it will end well, and soon, to give rise to the rebirth of democracy and prosperity for all.
But neither Venezuelans nor the world should forget the lessons learned, among them that “any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution” (article 16, French Declaration of the Rights of Man and of the Citizen); that a social (populist) State without the rule of law, ends with neither; and that the nature of this 21st Century revolution has been to politically sequester the powers of the State, particularly the judiciary, putting it at the unconditional loyal service of the revolution and turning it into the Constitution’s executioner.
These are the lessons of a crisis that was written on the wall.
Aug 7, 2017
An Opinion Editorial by Karolína Babická, Legal Adviser, ICJ Europe Programme.
At this very moment, some children in Spain are being held in adult immigration detention centres, pending return to their home countries.
Other migrant children are living on the streets in Madrid and other Spanish cities, suffering from serious illnesses, or are prevented from applying for asylum.
This is happening because they are not Spanish nationals and the authorities have not recognized them as children, but consider them to be adults.
During our capacity and coalition building activities with lawyers and civil society organizations to better defend migrant children’s rights in various European countries, our Spanish partner, Fundación Raíces, raised attention to the dire situation of migrant children in Spain.
In seven cases concerning migrant children in vulnerable circumstances, Fundación Raíces and other Spanish lawyers requested the United Nations Committee on the Rights of the Child to issue interim measures, i.e. orders to the Spanish authorities, with a view to avoiding irreversible harm to these children.
In States that, like Spain, are parties to the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, the Committee on the Rights of the Child is empowered to examine individual communications by or on behalf of a child or group of children claiming that there has been a violation of their rights under the Convention.
Pending its determination on the merits, the Committee may request the State party to take interim measures as may be necessary to avoid possible irreversible damage to the victim or victims of the alleged violations.
In one of the seven cases mentioned above, A.D. is a 17-year-old child from Mali that arrived in Spain in March 2017. He was transferred to the immigration detention centre for adults in Madrid as he was considered adult by the public prosecutor, while ignoring the official and original documents A.D. has from his country of origin.
The UN Committee reacted swiftly to the lawyers’ demands and during the past 7 months requested the Spanish government in those seven cases to take interim measures.
Under international law, respect for interim measures is essential for the protection of human rights.
Existing international law and jurisprudence affirm that any State party’s non-compliance with a request for interim measures constitutes a breach of its legal obligations under international law.
The binding nature of interim measures has been reaffirmed by the Human Rights Committee in its General Comment 33 on the individual complaints procedure.
However, the Spanish government has ignored these requests and failed to comply with any of the requested interim measures.
The Spanish government is thus in violation of international obligation it has voluntarily undertaken; more significantly, the lives and well being of dozens of highly vulnerable children are at risk.
The UN Convention on the Rights of the Child obliges States to consider the best interests of the child as a primary consideration above any other.
However, the Spanish authorities claim that the individuals in these cases are not children but adults.
Yet, in the event of any remaining uncertainty, international law affirms that States must accord the individual the benefit of the doubt and treat him or her as a child, until effectively proven otherwise.
Moreover, the Spanish Supreme Court has already expressed concern about the age-assessment procedure used by the Spanish authorities, in more than 10 judgments, as did the Spanish Ombudsman and the United Nations High Commissioner for Human Rights.
Recently, six civil society organizations in Spain (Amnesty International, Fundación Raíces, the General Council of Spanish Lawyers, the Jesuit Mission for Migrants, Noves Vies and Save the Children) have called on the Spanish Government to immediately implement the Committee’s request for interim measures in each case.
The ICJ is training lawyers in seven EU countries, including Spain, and supporting them in bringing their cases to international human rights mechanisms, such as the UN Committee on the Rights of the Child, when no effective remedy is available domestically.
The Spanish government is failing these children and is failing to respect its international law obligations.
Respecting one’s international obligations and ensuring that no harm is caused to children in violation of their rights should be high priorities for any States that are parties to the UN Convention on the Rights of the Child.
The Spanish Government should live up to its obligations, and implement immediately the Committee on the Rights of the Child’s request for interim measures in these cases.
Photo credit: Plan International
May 23, 2017
An opinion editiorial by Carlos Lopez, ICJ Senior Legal Adviser.
This would seem a rhetorical question and the answer self-evident.
Businesses, in particular big businesses, or their lawyers normally follow up closely key developments of policy and law at the international level that would have an impact in the way they operate.
So, why would they want to stay away from negotiations on global binding rules on respect for human rights? Surprisingly, some businesses (or their representatives) seem to think it wise to effectively boycott the process.
At a recent public panel at the Notre Dame University Gateway in London on possible and viable content of the prospective treaty now under discussion in the United Nations in Geneva, the argument was made that maybe businesses should not come to the table. That was astonishing.
The UN processes are by nature intergovernmental – only States vote and decide.
But non governmental organizations are formal stakeholders in these processes.
All NGOs accredited by the UN Economic and Social are entitled to engage at various levels with the UN Human Rights Councils and its bodies, including the Open Ended Working Group negotiating the Business and human rights treaty.
There are also means for non-ECOSOC accredited civil society groups and individuals to participate.
These non-governmental actors are allowed to speak in the meetings, raising issues, posing questions, making substantive proposals and formulating recommendations.
Although treaties are negotiated and adopted among States, it is a long established practice to have civil society at large and other key actors as participants in the process of formation and implementation of international law.
Businesses as profit seeking organizations do not have the same nature and objectives as non-governmental human rights organizations. But their participation and “buy in” is important.
There is no real obstacle to such participation.
Global and even domestic business associations can participate in UN debates, and they can do so with a delegation as sizeable as they wish it to be.
If necessary, some NGOs that work close with the business sector typically help businesses to have a place in the room.
So, there is no issue about not having access or a place in the discussions.
Then, why are now businesses worried and what is their demand?
Current business stance suggests that they want a special status and place in the negotiations.
The suspicion is that they would prefer the backroom and the direct lobbying to authorities in countries’ capitals to exert decisive pressure in States positions and vote during the negotiations.
Many business enterprises do not seem interested in taking part in open, transparent and democratic processes where their positions are exposed and subject to public scrutiny.
If such is the true attitude of the business community or even of a sector of them, it would be unfortunate and counterproductive.
Backroom lobbying and blackmailing to weak or corrupt States can only spur accusations of creeping “corporate capture” of governmental authority and accentuate the current public opinion distrust of big corporations and their tactics and feed into the current backlash against economic globalization.
The ICJ and other organizations have been trying for months to convince a group of business leaders to come to Geneva for meetings with States and civil society groups ahead of the official intergovernmental meeting of October 2017.
The meetings would be a unique opportunity to hear their views as to the contents of the future treaty. Very few have responded positively.
The reluctance by business sector actors to attend consultations with civil society and states is counterproductive.
They are missing the opportunity to exercise the “corporate citizenship” that they claim so often.
More importantly, they will lose the moral ground to complaint that they have not been consulted in the elaboration and negotiation of treaty texts.
If they willingly choose not to participate in the meetings and consultations, it will be difficult for them to complain later that they have not been consulted.
Apr 7, 2017
An opinion editorial by Sean Bain, ICJ Legal consultant in Myanmar.
About 20,000 residents of Kyaukphyu Township in Rakhine State are at risk of losing their land and livelihoods because of land acquisition for developing a Special Economic Zone (SEZ).
The land acquisition, initiated by the previous Union Solidarity and Development Party government, involves more than 1,800 acres (about 728 hectares) covering nine village tracts.
Research by the ICJ shows this land acquisition does not comply with Myanmar’s land laws.
Nor does the process comply with international standards on involuntary resettlement, which are recognized in national law.
The land acquisition for the Kyaukphyu SEZ therefore risks repeating the human rights violations associated with the development of the Dawei and Thilawa SEZs.
In its new report Special Economic Zones in Myanmar and the State Duty to Protect Human Rights the ICJ shows how the Kyaukphyu project illustrates broader problems with the design and implementation of laws governing the development of SEZs in Myanmar.
Based on expert legal analysis and interviews with over 100 stakeholders, including those in the government and private sector, the research found that the 2014 SEZ Law does not conform to Myanmar’s international law obligations to protect human rights.
The ICJ has called for a suspension of land acquisition at Kyaukphyu and for a halt to further work in SEZs until the 2014 Law has been amended to protect human rights and enable investment in line with the government’s commitments to sustainable development.
Established by the SEZ Law, the legal framework for Myanmar’s SEZs incorporates national laws including those governing land and the environment.
Legal procedures for land acquisition, environmental impact assessments and involuntary resettlement all fully apply in the zones.
For example, a developer may obtain an SEZ permit only after approval from the Ministry of Natural Resources and Environmental Conservation, in accordance with environmental conservation laws.
Land acquisition must be carried out in compliance with legal procedures, including those prescribed in the 1894 Land Acquisition Act.
The 2015 Environmental Impact Assessment Procedure also requires that development projects conform to international standards on involuntary resettlement.
This means land acquisition should occur only after the completion of resettlement planning for residents facing displacement.
The SEZ Law establishes a special governance structure for the administration of SEZs.
Independent of the Myanmar Investment Commission and the 2016 Myanmar Investment Law, these special government bodies are tasked to supervise and coordinate investment and development in the zones.
Other government actors also play critical roles: the Ministry of Home Affairs carries out land acquisition while Ministry of Natural Resources and Environmental Conservation oversees the EIA procedure.
Although SEZ bodies, particularly the site-specific management committees, exercise significant authority to direct development, the SEZ Law does not establish clear responsibilities for the coordination of land acquisition and EIAs.
Nor does the SEZ Law establish responsibilities for the protection of human rights or provide for accountability for adverse human rights impacts.
In practice, in Myanmar’s SEZs, critical legal procedures tend to be ignored or, if applied, not coordinated or properly followed.
At Kyaukphyu, the ICJ found that authorities have not complied with key provisions of the Land Acquisition Act.
The ICJ is unaware of any resettlement planning conducted in line with international standards. An EIA has not yet started.
Yet plans for land acquisition appear to be well advanced for the initial Phase 1 development area, covering 250 acres (101ha).
Land acquisition in this instance would be unlawful under national laws and constitute forced eviction, a violation of human rights and illegal under international law.
The rights of local residents can be legally protected in SEZs by aligning the SEZ Law with the State’s international human rights law obligations.
Amendments are required to establish specific duties and accountabilities for the SEZ bodies to protect human rights, and to clarify differentiated responsibilities for coordinating and carrying out involuntary resettlement.
Clear lines of accountability will be critical to guide and direct government bodies and departments, as well as companies, to follow the law.
Legal reform is a necessary and practical way for the National League for Democracy-led Government to uphold its commitments to human rights, sustainable development and the rule of law in SEZs.
The recently promulgated Myanmar Investment Law, governing investment outside the zones, provides a highly relevant and realistic example for reform of the SEZ Law.
While imperfect, the drafting process included public consultations with civil society and business groups.
Consultations resulted in a much-improved law that better protects Myanmar’s people and provides greater certainty for investors.
The government can break from the past by ensuring that economic development projects benefit Myanmar’s people, rather than rushing to facilitate projects that result in human rights violations and ultimately undermine sustainable development.
Further development of SEZs, and related investment agreements, should wait until legislative arrangements are in place to facilitate the full protection of human rights in the zones.
