Feb 24, 2017 | News, Publications, Reports, Thematic reports
The Indian authorities must end discrimination against people based on sexual orientation and gender identity in the formal justice system, the ICJ said in a report released today.
The 60-paged report “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity documents the challenges queer persons in India face while trying to access justice, starting from the impact of laws that criminalize people for their real or imputed sexual orientation and gender identity; to police harassment, violence and abuse; and to discrimination and other hurdles within the justice system.
Based on 150 interviews across nine cities in India, including with people who identified as lesbian, gay, bisexual, and transgender, the report uses the term “queer” to refer to any individual who identifies with a non-normative sexuality or gender identity.
It includes individuals who identify as lesbian, gay, bisexual, transgender, intersex and gender-queer, and also encompasses persons who may not fit into any of these identity categories.
“Criminalization, police violence, and the prejudiced attitudes of officials in the courts’ system have a profoundly detrimental impact on the ability and willingness of queer persons to resort to legal avenues to obtain justice,” said Sam Zarifi, ICJ’s Asia Director.
“The systemic discrimination and violence faced by queer persons in India, and the challenges they face accessing justice, are clearly contrary to India’s international human rights law obligations and the Indian Constitution,” he added.
The report also draws on responses from various government departments to ICJ’s requests under the Right to Information Act, both on the enforcement of the law against queer individuals and on gauging how legal entitlements have operated.
It describes how:
- Laws like Section 377 of the IPC and some other broad and vaguely formulated laws, such as those that criminalize sex work and begging, are used by the police to persecute people based on their real or imputed sexual orientation and gender identity, and inhibit queer persons from accessing justice.
- Even where the law purportedly provides legal entitlements and protections, queer persons continue to face a range of difficulties in accessing them.
- Police violence, abuse and harassment are one of the biggest barriers to queer persons’ access to the justice system in India.
- The challenges that lawyers who argue cases involving the human rights of queer persons combine with the biases of officials in the formal justice system compounding the difficulties queer persons face in obtaining justice.
“The inspiring work of activists and human rights lawyers in India has led to positive judicial decisions showing the potential of the law to affirm human rights and ensure justice for all persons, irrespective of their sexual orientation or gender identity,” Zarifi said.
“Indian authorities should build on this momentum and take immediate steps to end the discrimination and violence queer persons face,” he added.
The ICJ report makes a number of recommendations to Indian authorities, which include:
- Ensure that police officers promptly register and investigate any complaint regarding violence or any other criminal act filed by a queer person and/or on their behalf;
- Provide legal and sensitization training relating to sexual orientation and gender identity to lawyers and judges under the State and District Legal Services Authority along with outreach programmes to facilitate queer individuals’ access to the justice system;
- Repeal section 377 of the Indian Penal Code and vaguely worded criminal laws that invite discriminatory application, or substantially revise them to ensure there is no scope for abuse in their enforcement;
- Withdraw the Transgender Persons (Protection of Rights) Bill 2016 as currently drafted, engage in meaningful and substantial public consultation with members of the transgender community; and ensure that any process introduced for the legal recognition of gender identity is consistent with international human rights law and the NALSA.
Contact
Sam Zarifi (Bangkok), ICJ Asia Pacific Regional Director, t: +66 807819002; e: sam.zarifi(a)icj.org
Ajita Banerjie, ICJ Consultant in Delhi, t: +91 9920995526 ; e: ajita.banerjie@icj.org
Additional information
The Indian authorities have an obligation to respect, protect and fulfill the rights to equality before the law, equal protection of the law and freedom from discrimination; the rights to privacy, liberty and security of the person, including the right not to be subjected to arbitrary arrest and detention; the right to life, to freedom from torture and other ill-treatment; and the right to access justice and to an effective remedy, for all persons, including queer people, without discrimination as to their real or imputed sexual orientation and gender identity.
As the Supreme Court of India has reaffirmed, the Indian Constitution also guarantees several of these rights.
For example, in the seminal case of NALSA v UOI, the Court affirmed transgender persons’ right to their self-identified gender identity, based on the rights to equality, non-discrimination, freedom of expression and dignity.
India-SOGI report-Publications-Reports-Thematic report-2017-ENG (full report in PDF)
Feb 22, 2017 | News
The Pakistan Government must not bring back military courts to try civilians for terrorism-related offences, the ICJ said today.
An earlier law giving military courts authority to try civilians lapsed after two years on 6 January 2017.
The use of military courts to try civilians is inconsistent with international standards, the ICJ recalled.
“Evidence from practice clearly shows that not only have military trials of civilians been blatantly unjust and in violation of the right to a fair trial, they have also been ineffective in reducing the very real threat of terrorism in Pakistan,” said Sam Zarifi, ICJ’s Asia Director.
According to media reports, the draft amendment, if adopted, would extend the “exceptional” use of military courts for another three years. The ICJ fears that repeated extensions risk making the practice effectively permanent.
It would also give military courts jurisdiction over any offence considered to be an act of terrorism, a broader mandate than 2015 constitutional amendment, which was applicable only to “terrorism motivated by religion or sectarianism” and where the accused were “members of proscribed organizations”.
“Bringing back military courts deflects attention from the real issue: the Government’s complete failure to enact necessary reforms to strengthen the criminal justice system in the two years military courts were in operation,” Zarifi said.
“The Government must account for its failure to deliver on the promise of delivering justice for the victims of terrorism and other abuses in Pakistan instead of once again extending the “exceptional” use of military courts for civilian trials,” he added.
The Government has scheduled a meeting with opposition parties on 23 February in an attempt to achieve consensus over a constitutional amendment to restore military courts.
Constitutional amendments require a two-thirds majority vote in both houses of parliament to be enacted.
While the ruling party has the requisite majority in the National Assembly (lower house), it appears to lack the numbers in the Senate (upper house) to pass the amendment.
The Pakistan Parliament must stand up to the executive in defense of the rights of all people in Pakistan, instead of allowing the administration to bring back—and even expand—a discredited and abusive process, the ICJ says.
Pakistan passed the 21st amendment to the Constitution in January 2015, authorizing military courts to try civilians for terrorism-related offences for a period of two years. The 21st amendment lapsed on 6 January 2017.
Military courts have convicted 274 people in the two years since they have been used to try civilian terror suspects. . One hundred and sixty-one people were sentenced to death and 113 people were given prison sentences. At least 12 people given death sentences have been executed by hanging.
The ICJ has documented serious fair trials violations in the operation of military courts including: denial of the right to counsel of choice; failure to disclose the charges against the accused; denial of a public hearing; failure to give convicts copies of a judgment with evidence and reasons for the verdict; and a very high number of convictions based on “confessions” without adequate safeguards against torture and ill treatment.
The ICJ unequivocally opposes the use of the death penalty as a violation of the right to life and freedom from cruel, inhuman or degrading punishment.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (Lahore), t: +923214968434; e: reema.omer(a)icj.org
Feb 17, 2017
The ICJ and other NGOs have written to States urging action on human rights in China, at the upcoming March 2017 session of the UN Human Rights Council.
The joint letter highlights continuing concerns about arbitrary arrests, detentions, denial of access to lawyers, incommunicado and secret detention, and unfair trials of lawyers and other human rights defenders, as well as unjustified restrictions on freedom of expression, alongside other human rights issues in the country.
The letter calls on States at the Council to, among other things:
- Insist that China uphold its obligations to prevent, punish and remedy torture and other cruel, inhumane or degrading treatment or punishment, including by ordering prompt, impartial, independent investigations into reports of torture of detained lawyers and human rights defenders.
- Urge China to amend or repeal the Overseas NGO Management Law, which contradicts international human rights standards and undermines the independence of civil society.
- Call for the repeal or revision of the Counter-Terrorism Law, and speak out against the increasing use of national security legislation and draft ‘regulations on religious affairs’ to criminalise and harass those exercising freedom of thought, conscience and religion and freedom of expression.
The letter comes as the UN High Commissioner for Human Rights expressed similar concerns, stating that, “Lawyers should never have to suffer prosecution or any other kind of sanctions or intimidation for discharging their professional duties”, emphasising that lawyers have an essential role to play in protecting human rights and the rule of law, and urging the Government of China “to release all of them immediately and without conditions.”
The joint letter can be downloaded in PDF format here: UN-HRC34-China-JointLetter-Advocacy-2017
Feb 14, 2017
An opinion piece by Emerlynne Gil, ICJ Senior International Legal Adviser in Bangkok.
In the next few days, the House of Representatives may vote in plenary on the bill proposing to bring back the death penalty in the Philippines.
Curiously, when this bill was being heard at the Sub-Committee on Judicial Reforms in Congress, the Department of Justice (DOJ) and the Philippine National Police (PNP) presented scant evidence in support of the proposed measure.
It was as if they were confident that the bill would get passed anyway, regardless of the facts.
Even more curious is that the committee report on the hearings on this bill did not reflect the arguments presented by anti-death penalty groups.
In fact, the committee report did not discuss at all what transpired during the hearings.
I doubt that members of Congress really ruminated on both sides of the debate on this issue.
I think congressmen will vote to pass this bill not because they genuinely believe death penalty will deter crime, but it will be their sycophantic gesture to please President Rodrigo Duterte, who they think will grant them political favors if they do what he wants.
There will also be others who will vote for this bill because of pressure from the party leadership.
Nobody will openly admit this. They will point to public opinion. They will claim that Filipinos are clamoring for the death penalty. Hence, their support for the bill.
Looking at social media comments and online opinion polls, one could indeed get the impression that many Filipinos want the death penalty back. However, social media comments and online polls do not use valid scientific methodology for random selection of participants. Furthermore, even when appropriate methodologies are used, results can be easily affected by how the questions are framed.
In 2012, the Bar Council of Malaysia and the Death Penalty Project, a UK-based non-governmental organization, conducted a study on the public’s views on mandatory death penalty in Malaysia.
At the outset of the survey, majority of the respondents said that they were in favor of the death penalty – whether it was discretionary or mandatory.
Ninety-one percent (91%) said they were in favor of death penalty for murder, 74 percent to 80 percent were in favor of the death penalty for drug trafficking (depending on the drug concerned), while 83 percent were in favor of death penalty for the discharge of firearms during the commission of certain crimes.
However, when asked to ‘judge’ specific cases, there was a significant difference between support of the respondents at the beginning and their support after they have been faced with ‘real’ cases.
When respondents were asked whether they would still support the death penalty after being shown cases where innocent persons were executed, the numbers of those in favor of death penalty for murder drastically fell to 33 percent, for drug trafficking to 26 percent, and for the discharge of firearms to 23 percent.
Even leaving aside the unscientific nature of comment forums and online polls, there is no evidence that the members of the public responding to questions about the death penalty have had their initial beliefs tested in the ways set out above.
We simply do not know with any certainty what the well-informed public opinion on this question would be.
Political leadership, not public opinion, matters most in preventing the death penalty from being brought back.
President Duterte openly said he wants to bring death penalty back, but he, alone, is not the Philippines’ political leadership.
It is imperative for Philippine lawmakers to act as independent leaders now and show the public how death penalty is deeply incompatible with human dignity. They have to see that the imposition of the death penalty is a violation of the right to life and the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.
The ICJ has previously said that the imposition of the death penalty is a violation of the right to life and the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.
As a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the Philippines has a legal obligation to ensure that no person within its jurisdiction will face execution.
If the Philippines adopts a law bringing back the death penalty, it will violate its commitments under international law and would stand in opposition to the international trend towards the abolition of the death penalty.
The Philippine Constitution was designed so that the country’s democracy will not be held hostage by one man.
This bill will be one of the very many tests in the next few years on how well established and how strong Philippine democracy has become.
Feb 13, 2017 | News
The workshop, held from 11-12 February in Sittwe, brought lawyers and civil society together to discuss of experiences of strategic litigation elsewhere in Myanmar and the region, and consider potential public purpose litigation cases in Rakhine State.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser in Myanmar, provided an introduction to strategic litigation as a method for promoting accountability in a time of transition in governance.
He noted the critical role of independent lawyers in protecting human rights, by representing clients from all communities in Rakhine State.
And he emphasized the importance of strategic litigation as a means to prevent violations and abuses of human rights, or to seek reparations where violations and abuses have occurred.
Kingsley Abbot and Jintana Sakulborirak, from the ICJ’s Asia Regional Office in Thailand, discussed strategic litigation cases from the region, including in northern Thailand where community members have launched an action to appeal the legality of land acquisition for a planned SEZ in Tak Province.
The cases highlighted how media engagement is a critical part of strategic litigation, to raise public attention on human rights issues and demands for accountability in the implementation of investment projects.
Daw Aye Mon Thu, advocate from Dawei Pro Bono Lawyers Network presented the experiences of Heinda Mine cases from Dawei Region, Southern Myanmar, emphasizing the importance of trust-building and cooperation with local community as stake-holder. Such a strategic litigation cases are extremely rare in Myanmar.
Discussions followed about potential cases for strategic litigation from Kyauk Phyu and Sittwe, including issues related to land acquisition for railways construction and an SEZ appear to have been carried out unlawfully in violation of human rights.
Participants discussed the principle of undertaking litigation for broader advocacy objectives rather than solely focusing on actually winning the case in the court.
They also reflected on the challenges and limitations for Myanmar lawyers to undertake strategic litigation.
Highlighting the vital role of lawyers, speakers encouraged participants to consider strategic litigation as a means to challenge unlawful acts that violate or abuse human rights, particularly accompanying business enterprises.
Rakhine State is among Myanmar’s poorest and most isolated provinces, where lawyers and CSOs have had limited exposure to concepts of human rights and international laws.
This workshop, the first of its kind to be held in Rakhine State, is part of efforts to address this gap by building legal literacy on international human rights law and lawyers to consider litigation as a strategy to protect human rights.
