Feb 1, 2018
The ICJ today expressed its concern that a constitutional amendment under consideration by the House of Representatives’ Committee on Constitutional Amendments would, if adopted, severely restrict the rights to freedom expression and assembly in the country.
The proposed amendment would limit the constitutional protection of the exercise of these rights only to what State authorities deem to be “reasonable”.
In a letter to Representative Roger G. Mercado, the Chairperson of the Committee, the ICJ urged the removal of the phrase “responsible exercise” as a precondition for the exercise of the fundamental freedoms of expression and assembly.
The ICJ stressed that this limitation is incompatible with the obligations of the Philippines under international human rights law.
“Adding the phrase ‘responsible exercise’ is unacceptable since it gives those persons or government agencies tasked to execute the law unfettered discretion to restrict freedom of expression and assembly,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific.
“The restriction clearly impairs the essence of these rights and cannot meet the standard of legality,” he added.
Contact
Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, t: +662 619 8477 (ext. 206) ; e: emerlynne.gil@icj.org
Background
The 1987 Philippine Constitution provides three ways by which it can be revised or amended. First, Congress can constitute itself, upon three-fourths vote of all its Members, to act as a Constituent Assembly. Second, Congress may call a Constitutional Convention by a vote of two-thirds of all its members or submit to the electorate, by a majority vote of all its members, the question of whether to call a convention or not. Third, at least 12% of all registered voters may sign a petition to propose amendments to the Philippine Constitution.
On 7 December 2016, President Duterte issued an Executive Order constituting a Consultative Committee to conduct consultations and to review the provisions of the 1987 Constitution. Their findings shall be submitted to the Philippine Congress.
On 16 January 2018, the House of Representatives voted to constitute Congress as a Constituent Assembly to commence the amendment of the Philippine Constitution. Thus, the Committee on Constitutional Amendments was created to draft the proposed changes to the Philippine Constitution.
One of the proposals considered is to amend Section 4, Article III of the Philippine Constitution, adding the following four-word qualifier (in bold text) to the existing provision, so that it would read: “No law shall be passed abridging the responsible exercise of the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
Freedom of expression and peaceful assembly are protected respectively under Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR). They only may be restricted on narrowly specified grounds, such as where necessary to protect national security or public health. Overly broad and expansive limitations, such as protecting only expression exercised “reasonably”, goes well beyond these specified grounds.
Philippines-Congress Sub Committees-Advocacy-Open Letters-2018-ENG (Full letter in PDF)
Jan 29, 2018 | Advocacy, Non-legal submissions
Today, the ICJ and Thai Lawyers for Human Rights (TLHR) filed their joint submission to the UN Committee against Torture (Committee).
The Committee will consider it during the adoption of a list of issues prior to reporting (LOIPR) for the examination of the Second Periodic Report of Thailand under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
During its 63rd session, from 23 April to 18 May 2018, the Committee will prepare and adopt a LOIPR on Thailand.
Once adopted, the LOIPR will be transmitted to the State party. Thailand’s formal response to the LOIPR will then constitute its Second Periodic Report under article 19 of the Convention.
Thailand ratified the CAT in 2007. Following its review of Thailand’s initial report under CAT, the Committee adopted its Concluding Observations at its 52nd Session in May 2014.
The ICJ and TLHR’s joint submission to the Committee highlights a number of ongoing concerns with respect to the country’s implementation of and compliance with the provisions of the CAT.
In addition, the joint submissions formulates certain questions and recommends that the Committee should include them in its LOIPR and address them to the Government of Thailand, including on the following pressing issues:
- The fact that, since the coup d’ état of 22 May 2014, the constitutional and legal framework in force in Thailand has increased opportunities for legally-sanctioned impunity;
- The failure to criminalize through the adoption of bespoke domestic legislation the crimes of torture, cruel, inhuman or degrading treatment or punishment and enforced disappearance, consistent with the CAT and other relevant international law;
- The failure to conduct investigations of credible allegations of enforced disappearances, as well as into credible reports of the widespread use of torture and other ill-treatment in a prompt, effective, independent and impartial manner in numerous cases; and
- Threats and reprisals against persons working to bring to light cases of alleged torture, other ill-treatment and enforced disappearance.
Contact
Kingsley Abbott, Senior International Legal Adviser, ICJ Asia Pacific Programme, t: +66 94 470 1345, e: kingley.abbott@icj.org
Thailand-CAT Submission-Advocacy-non-legal submission-2017-ENG (Full submission in PDF)
THAILAND-CAT additional info-Advocacy-2018-ENG (additional information, updated in April 2018)
Jan 25, 2018 | News
Myanmar’s publication in state media of lists with the names and accompanying photographs of more than 1,400 men, women and children under the heading “Members of ARSA Terrorist Group” constitutes an assault on human rights and contravenes key principles of the rule of law.
Authorities have not explained why or how listed persons were identified, if they are currently in detention, or if they are wanted for prosecution or for questioning pursuant to criminal investigations. Some or all persons listed appear to have been “accused” outside any formal judicial process.
Given the lack of publicly available information as to the basis of ascribing membership of a prescribed terrorist organization to the persons in the photos, and the manner in which their information has been publicized, the ICJ is concerned that the stated accusations may be arbitrary.
To the extent that there may be any credible basis for ascribing criminal conduct, the authorities have an obligation to administer justice through due process and fair trials, and not name calling and public shaming.
Authorities should cease publishing such material and take effective protective measures to ensure the safety and security of the people named in these publications and their families.
Serious crimes, including alleged acts of terrorism as well as human rights violations, necessitate investigations that are prompt, independent, impartial, effective and transparent in line with international standards.
As with other crimes, the investigation and prosecution of alleged acts of terrorism should conform to applicable national laws, including Myanmar’s Code of Criminal Procedure, to the extent these do not violate applicable international standards.
If any of the listed individuals have been detained, they must be brought promptly before a judge and charged with a cognizable offense or else released.
Accused persons must be afforded legal protections, and if properly charged, they must be brought to justice through fair trials.
State authorities have a duty to respect and ensure the presumption of innocence.
Authorities must refrain from making public statements that are defamatory in nature, that violate fair trial rights by affirming or implying the guilt of persons accused of crimes, and that violate the principle of judicial independence and the separation of powers, all of which are recognized in national and international law.
Particularly given the heightened tensions prevailing in northern Rakhine State, persons included in these lists and their families are at great risk of extra-judicial reprisals, which violates their right to security of the person.
In addition, the potentially defamatory publication of these photos by the government constitutes a violation of their right to privacy.
It also seriously undermines the government’s stated commitments to facilitating the safe return of refugees, and its responsibility to safeguard the physical security and integrity of all individuals from all communities in Myanmar.
Background
From 17 to 23 January 2018, Myanmar authorities published lists with the names, photos and identifying information of more than 1,400 men, women and children who they summarily accuse in the publications of involvement in or association with terrorism-related acts in Rakhine State.
These lists contain photos accompanied by captions with information variously including the name, age, village, alleged transgression, and other identifying information.
Most individuals are identified as “the terrorist” while others are characterized as a “family member of terrorists” or having “sympathized with the terrorist groups.”
The lists have run as supplements in the daily Burmese-language Myanmar Alinn newspaper and in the daily English-language Global New Light of Myanmar newspaper, published by the Ministry of Information.
Extracts have been published by the Office of the President of the Union, and by the Ministry of Foreign Affairs, which on 16 January requested Bangladesh authorities to extradite “accused” persons to Myanmar.
The ICJ has previously expressed concern that during and following security operations in Rakhine State, authorities have systematically failed to respect the rights of detainees in accordance with national and international law and standards.
Authorities have also so far failed to hold to account members of security forces, including soldiers and police, who appear to have perpetrated crimes against both Rohingya and Rakhine inhabitants of Rakhine State.
More than 650,000 inhabitants of northern Rakhine State, the vast majority of whom are Rohingya Muslims, have been displaced as a result of security operations commanded by Myanmar’s military, the Tatmadaw, following attacks on police posts by the Arakan Rohingya Salvation Army (ARSA) on 25 August 2017.
The government’s Counter-Terrorism Central Committee has declared ARSA as a ‘terrorist organization’ and stated that its supporters would be held responsible for acts of terrorism, pursuant to the 2014 Counter-Terrorism Law.
Myanmar-Terrorist Lists-News-web story-2018-BUR (story in Burmese, PDF)
Jan 18, 2018 | News
The ICJ today expressed concern about the impacts on freedom of expression of a decision by the Securities and Exchange Commission (SEC) that would shut down Rappler, an online news source in the Philippines.
On 11 January, after a year-long investigation, the SEC of the Philippines revoked the Certificate of Incorporation of Rappler, Inc.
The ICJ is concerned that the decision to target Rappler may have been retaliatory and politically motivated.
The investigation was initiated by a letter transmitted by the Solicitor General to the SEC requesting the latter to investigate allegations of foreign ownership of Rappler, Inc.
“The cancellation of the Certificate of Incorporation of Rappler, Inc. constitutes a significant restriction on freedom of expression,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“The Courts must give rigorous scrutiny both to the specific basis the authorities offer for the decision concerning Rappler, Inc., and the scope and application of the foreign equity provision more generally, including an inquiry whether the law is being applied in a proportionate and non-discriminatory manner,” she added.
If such restrictions on freedom of expression are enforced with the actual aim of punishing or preventing critical political expression, or are enforced only against some political or other opinions and not others, this would violate the rights to freedom of expression and non-discrimination under the Philippine Constitution and international human rights law, the ICJ adds.
Further, under international human rights law any restriction on freedom of expression must be limited to what is necessary and proportionate both in relation to the legitimate aim it pursues and in relation to its impacts.
For instance, it would not be consistent with international human rights law to prohibit all foreign ownership of mass media or mass-media-owning entities, unless the government was able to demonstrate that the same legitimate aim could not reasonably be achieved by prohibiting only majority foreign ownership.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser for Southeast Asia, t: +662 619 8477 (ext. 206) ; e: emerlynne.gil@icj.org
Philippines-Rappler-News-Web stories-2018-ENG (Full text in PDF)
