May 25, 2017 | News
The Philippine government must ensure that human rights are protected and respected in Mindanao, in light of the yesterday’s declaration of martial law and suspension of the writ of habeas corpus, the ICJ said today.
The ICJ reminds the Philippine government that it remains responsible for upholding its international human rights legal obligations, notwithstanding the imposition of martial law.
The ICJ also calls upon the Congress and, if engaged, the Supreme Court, to exercise their oversight authority to ensure that the declaration is necessary and lawful, and that the activities conducted under martial law respect human rights.
“The suspension of the writ of habeas corpus, which is vital for protecting the right to liberty and preventing torture, ill-treatment and enforced disappearance, must be lifted immediately,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific.
Rawski added, “The provision of the Philippine Constitution providing for the possibility of suspension of the writ of habeas corpus is in contravention of international law, and denying the right to challenge the lawfulness of a detention is incompatible with recognized principles of the rule of law.”
President Rodrigo Duterte declared martial law on the evening of 23 May 2017, covering the island of Mindanao, after Maute, an armed group that had pledged allegiance to the Islamic State of Iraq and the Levant (ISIL), reportedly laid siege on Marawi City. The next day, 24 May 2017, President Duterte suspended the writ of habeas corpus.
The ICJ recalls that the right to challenge the lawfulness of one’s detention through habeas corpus or similar procedures must always be available, even under states of exception like martial law.
The ICJ calls on the Philippine government to establish a clear timetable for an end to martial law, and to ensure in the interim that human rights are fully protected.
Background
Under Article VII, Section 18 of the 1987 Philippine Constitution, the President may declare martial law or suspend the privilege of the writ of habeas corpus in case of invasion or rebellion and only “when the public safety requires it.” However, Article VII, Section 18 of the 1987 Constitution limits a declaration of martial law to 60 days, and imposes other important limitations – including that the President of the Philippines must submit a report to Congress within 48 hours, which may then revoke the suspension or declaration.
Any citizen may petition the Supreme Court to review the sufficiency of the factual basis of the proclamation of martial law, or the suspension of the writ of habeas corpus. Finally, this provision of the Constitution also provides that in the case of a suspension of the writ of habeas corpus, any arrested or detained person must be judicially charged within three days, or be released.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia, email: emerlynne.gil(a)icj.org tel: +66 840923575.
May 25, 2017 | News, Op-eds
An opinion editorial by Daniel Aguirre, ICJ Legal Adviser in Myanmar.
Burma’s 2016 Investment Law and the implementing Investment Rules issued in April 2017 create space for the government and civil society to facilitate responsible investment and exclude investors that have track records of environmental destruction and human rights abuses.
This means that affected individuals and communities must now test Burma’s commitment to the rule of law.
There are new opportunities for civil society to use law to hold them accountable. In this regard, both international law and Burma’s constitution guarantee access to justice for rights abuses.
The Investment Rules instruct the Myanmar Investment Commission (MIC) to consider whether investors have demonstrated a commitment to responsible investment. In considering the good character and reputation of the investor, the MIC may study whether the investor or any associate with an interest in the investment broke the law in Burma or any other jurisdiction.
The rules explicitly mention environmental, labor, tax, anti-bribery and corruption or human rights law.
What this means is that if an investor is determined to have committed a crime, has violated environmental protection standards or was involved with human rights abuses, the MIC should not grant it a permit.
If such a company applies for an investment permit, civil society should bring its record to the attention of the MIC and advocate for the rejection of a permit.
Successive governments in Burma have focused on increased investment to develop the country and improve its people’s standard of living.
At the same time, human rights and environment proponents from civil society have opposed many investment projects, citing the impact on the environment and human rights of local communities.
They complain that land rights are not adequately protected, that environmental impact assessments are not implemented and that they lack access to justice for corporate human rights abuses.
There are challenges to using the law to protect human rights in Burma.
Disputes related to business activity are often considered sensitive political matters in which the courts are unable or unwilling to intervene.
They are reluctant to review crucial decisions of administrative bodies or to hold rights abusers accountable.
But community activists, human rights defenders and lawyers have increased opportunities to pressure the courts to apply the law and should do so.
Lawyers have an important role in protecting human rights by representing local communities.
Courts must become a venue to challenge administrative decisions that allow for irresponsible investment that does not comply with national law, and where appropriate, obtain remedies and reparations for victims of human rights violations.
The Investment Law and its rules, which govern both local and foreign investment except within special economic zones, provide legal guarantees for investors to access information and protections against expropriation including compensation and access to due process if changes in regulation affect their business.
Investors can also access long-term rights to use land.
Civil society should help to ensure that only responsible investors benefit from these protections.
According to the law, the MIC is the gatekeeper that issues permits and endorsements for many would-be national and international investments likely to cause a large impact on the environment and local community.
In order to ensure that the protective aspects of the law are effective, courts must have some power of review, at least to ensure that administrative bodies, such as the MIC, are acting reasonably and in accordance with the law, while respecting and protecting human rights.
If the MIC grants permits for companies that do not meet the requirements outlined in the Investment Rules, their decisions must be subject to review by the judiciary.
Burma’s courts have the authority to review administrative decisions, particularly through the application of constitutional writs.
Lawyers can use the writs of mandamus and certiorari to secure the performance of public duties and quash an illegal order already passed by public bodies such as the MIC.
This would help ensure the MIC uses its mandate to prevent irresponsible investment.
Likewise, investors that fail to respect human rights or unlawfully cause damage to the environment must be held accountable; but there are few options to do so in Burma.
Criminal prosecutions against companies, actions imposing administrative sanctions, and civil suits face a variety of procedural hurdles, particularly if involving joint ventures with state run enterprises.
For example, a negligence civil suit brought by villagers against the Heinda tin mine in Dawei District was unsuccessful because the 1909 Limitations Act demands complaints to be brought within one year of damage.
Section 80 of the Civil Procedure Code requires prior notice and the names of plaintiffs to be given to the government two months before filing a suit against the government and allows small procedural defects to preclude a claim.
Lawyers are sometimes unfamiliar with these procedures and communities are reluctant to put their names to such cases fearing reprisals.
Clearly there are significant challenges to ensuring that investment in Burma does not adversely affect human rights.
To overcome these, civil society and lawyers must engage the administration—the MIC—to ensure only responsible investments is permitted and start to use the judiciary to review its actions.
Likewise, cases must continue to be taken against investors that abuse human rights and harm the environment.
Powerful investors must be constrained by the confines of the law, including human rights law.
Unless civil society and lawyers can use the legal framework to address these concerns, Burma’s judicial system is unlikely to develop; lawyers will not gain valuable experience and the public will remain distrustful.
The process is long and arduous but necessary to protect human rights and the environment from irresponsible investment.
May 4, 2017 | News
Thailand should immediately end the practice of arbitrarily detaining persons in unofficial places of detention said the ICJ today.
The statement came after it was revealed that human rights lawyer, Prawet Prapanukul, who had been arbitrarily detained for five days at a detention facility inside a military base in Bangkok, finally appeared and was charged at the Bangkok Criminal Court on 3 May 2017.
During the morning of 29 April 2017, military officers invoked Head of National Council for Peace and Order (NCPO) Order 3/2015 to arrest Prawet Prapanukul and search his residence in Bangkok, seizing a number of items located at the property including computers, phones and hard-drives.
The whereabouts of Prawet Prapanukul were unknown until the afternoon of 3 May 2017, when Prawet Prapanukul contacted several lawyers including Thai Lawyers for Human Rights (TLHR) and said he had been held at the Nakhon Chaisri temporary remand facility inside the 11th Army Circle military base in Bangkok.
“Prawet Prapanukul’s five-day incommunicado detention without being brought before the courts or access to legal counsel amounts to an arbitrary detention in violation of his rights under international law and consequently he should be provided with appropriate reparation,” said Kingsley Abbott, the ICJ’s Senior International Legal Adviser for Southeast Asia.
“To ensure the protection of all persons while in detention, Thailand has a duty to detain people in officially recognized places of detention, to have their names and places of detention made available to interested persons and to bring them before a court without delay within 48-hours,” he added.
According to TLHR, on 3 May 2017, Prawet Prapanukul was charged with ten counts of the highly restrictive crime of lese majeste (article 112 of the Criminal Code), three counts of a sedition-like offence (article 116 of the Criminal Code), and violation of article 14(3) of the Computer Crime Act.
The ICJ has previously raised concerns about abusive recourse to these laws.
Pursuant to article 91(3) of the Thai Criminal Code, it is possible that, if convicted of these charges, Prawet Prapanukul could receive a maximum sentence of 50-years imprisonment.
“Freedom of expression, as protected under international law, must never be criminalized. In any event, imprisonment is never a proportionate penalty for the exercise of free expression, let alone the unthinkable possibility of 50-years, which would set a new recorded record for a sentence for lese majeste,” Abbott said.
On 25 April 2017, after reviewing Thailand’s compliance with its obligations under the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party, the Human Rights Committee, the international expert body charged with supervising the implementation of the ICCPR, issued its Concluding Observations in which it noted that in Thailand “individuals were reportedly often detained without charge and held incommunicado at undisclosed places of detention for periods of up to seven days, with no judicial oversight or safeguards against ill-treatment and without access to a lawyer.” The Human Rights Committee observed that Thailand should immediately release all victims of arbitrary detention and provide them with full reparation.
“The fact that Thailand arbitrarily detained Prawet Prapanukul at a military facility just five days after the Human Rights Committee issued its Concluding Observations criticizing Thailand’s practice of detaining people incommunicado in undisclosed placed of detention demonstrates a worrying contempt for its international human rights obligations as pointed out by the Committee,” Abbott added.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser for Southeast Asia, t: +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
Thailand-Prapanukul-detention-News-2017-ENG (full text with background, in PDF)
Thailand-Prapanukul-detention-News-2017-THA (Thai version, in PDF)
