Nov 14, 2016
Prime Minister Najib Razak should withdraw proposed amendments to Malaysia’s Legal Profession Act 1976 because they will undermine the independence of the Malaysian Bar and its governing body, the Bar Council, said ICJ today in a letter together with other human rights organizations.
The amendments, which will be introduced when Parliament opens in October, seek to allow the Minister in charge of legal affairs to appoint two members of the Bar Council.
Furthermore, they aim to restrict the eligibility for leadership positions to those elected by the Bar Council by the various State Bars, thereby severely limiting those who can stand for office.
Should these amendments take effect, the current president and vice-president and the leaders of the State Bar committees will be precluded from any leadership role in the Bar Council.
“These amendments appear to be another attempt to muzzle an independent institution that has consistently been vocal in its defense of the rule of law and human rights in the country,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“The Malaysian Bar and its governing body, the Bar Council, are more important than ever to help protect the rights of people and the rule of law, especially during this critical time in Malaysia when these are imperiled,” he added.
The UN Basic Principles on the Role of Lawyers (UN Basic Principles) guarantees the right to freedom of association of lawyers.
It specifically provides that “lawyers shall be entitled to form and join self-governing professional associations to represent their interests.” Furthermore, the UN Basic Principles provide that the governing bodies of professional associations of lawyers “shall be elected by its members and shall exercise its functions without external interference.”
“These amendments follow other efforts by the government to undermine the Malaysian Bar’s independence and prevent its members from engaging critically in upholding the standards of professional integrity and independence,” Zarifi said. “This move seems part of the Malaysian government’s efforts to stifle civil society and silence critical voices.”
The ICJ urges the government of Malaysia to respect the independence of the Malaysian Bar and its governing body, the Bar Council, and not pass these proposed amendments to the Legal Profession Act 1976.
The letter to Prime Minister Najib Razak was signed by ICJ, Human Rights Watch, Amnesty International, International Federation for Human Rights, Civil Rights Defenders, the Asia Democracy Network, Fortify Rights, Lawyers’ Rights Watch Canada, and the ASEAN Parliamentarians for Human Rights.
Background
Early this year, Malaysian authorities commenced sedition investigations against members of the Malaysian Bar after a motion was passed by a majority vote during the institution’s 70th Annual General Assembly calling for the resignation of Attorney General Tan Sri Mohamed Apandi Ali.
The Malaysian Bar demanded the resignation of the Attorney General after he summarily ended the investigation of alleged corruption by the Prime Minister. A month after, a proposal was made by parliamentarian Datuk Datu Nasrun Datu Mansur to make the Attorney General automatically the chairman of the Bar Council.
The ICJ has denounced these efforts, pointing out that these are inconsistent with the essential guarantees for the functioning of an independent legal profession under the UN Basic Principles on the Role of Lawyers.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia, t: +66840923575 ; e: emerlynne.gil(a)icj.org
malaysia-ngo-letter-on-lpa-amend-advocacy-open-letters-2016-eng (full text of letter, in PDF)
Nov 8, 2016 | News
The Malaysian government must act to stop and redress the ongoing harassment, and death threats against the organizers of the Bersih 5.0 protest rally, scheduled for 19 November 2016, said the ICJ today.
The ICJ is calling on the authorities to conduct a thorough, impartial investigation into unlawful acts of intimidation against the organizers with a view to identifying and bringing to account those responsible.
The Bersih (or Gabungan Pilihanraya Bersih dan Adil) is a coalition formed in 2006 by Malaysian non-governmental organizations to call for free, clean and fair elections.
“The Malaysian government has the obligation to respect the right to freedom of expression and freedom of assembly,” said Sam Zarifi, ICJ’s Asia Director. “These rights are not only guaranteed under the Malaysian Constitution, but also under international human rights law.”
The ICJ recently received reports that Bersih leaders Maria Chin Abdullah, Mandeep Singh, and former Chairperson Ambiga Sreenevasan received death threats from unknown individuals.
Family members of Maria Chin Abdullah also received similar threats.
On 29 October 2016, police arrested Maria Chin Abdullah for distributing flyers promoting the forthcoming public assembly.
She was investigated on suspicion of having violated Section 11 of the Printing Presses and Publications Act 1984, which requires every publication printed or published within Malaysia to bear the name and address of the printer and publisher. Maria Chin Abdullah was subsequently released.
On 1 October 2016, men wearing the customary red shirts of ‘anti-Bersih’ groups and riding motorbikes tailed the convoy in Perak, kicked the cars and punched the vehicles’ side mirrors, while on 8 October 2016, unknown persons smashed the windows and slashed the tires of cars participating in a Bersih convoy in Sabah state.
Last week, police authorities launched investigations under Section 124C of the Penal Code against Bersih and other Malaysian NGOs that are alleged to have received foreign funding. Section 124C penalizes persons who are found to “attempt to commit activity detrimental to parliamentary democracy.”
“Section 124C is impermissibly vague and ambiguous, and allows authorities to engage in arbitrary prosecution, conviction, and punishment of people who are exercising their right to freedom of speech and assembly,” Zarifi said. “These claims against Bersih seem to be the latest effort by the Malaysian government, which is facing allegations of massive corruption, to repress political opposition.”
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Background
Over the years, Bersih has been organizing peaceful assemblies attended by thousands of Malaysians in Kuala Lumpur and other parts of the country.
Last year, monitors from the ICJ observed Bersih 4.0 and reported that it had been a peaceful assembly, in exercise of the right to freedom of assembly and that the organizers took careful measures to keep it orderly and free from violence. The ICJ will again be sending observers to this year’s Bersih rally in Kuala Lumpur.
Under Article 10(1)(b) of the Malaysian Constitution, “all citizens have the right to assemble peaceably and without arms.” Furthermore, the right to peaceful assembly is also guaranteed under several international human rights instruments, including the Universal Declaration of Human Rights.
In his 2012 report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association emphasized that States “have a positive obligation to actively protect peaceful assemblies”. This State obligation includes “protection of participants of peaceful assemblies from individuals or groups of individuals, including agents provocateurs and counter-demonstrators who aim at disrupting or dispersing such assemblies.”
With regard to the use of Section 124C of the Penal Code to commence investigations against Bersih and other non-governmental organizations, the ICJ has emphasized that the ambiguity and vagueness of this provision makes it inconsistent with the principle of legality, a basic tenet of law. The principle of legality in the criminal law context requires that any offense must be established in law and defined precisely and unambiguously so as to enable individuals to know what acts will make them criminally liable.
Nov 4, 2016 | News
The Myanmar government’s recently announced plan to enlist civilians as a ‘regional police force’ in Myanmar’s troubled northern Rakhine State is likely to aggravate an already dire human rights situation, warned the ICJ today.
“In a country where the regular police and military are notorious for grave human rights violations, it’s difficult to extend the benefit of the doubt to poorly trained civilians,” said Sam Zarifi, ICJ’s Asia Director.
“Establishing an armed, untrained, unaccountable force drawn from only one community in the midst of serious ethnic tensions and violence is a recipe for disaster,” he added.
Over the last month the region has experienced increased tension and violence including attacks on border police and allegations of human rights violations by security forces, including attacks on Rohingya villages and sexual assaults.
Humanitarian assistance and independent monitors, including the media, remain severely restricted in the area.
The Rakhine State police are recruiting civilians for the force along ethnic and religious lines, officially excluding Rakhine state’s Muslims, most of whom belong to the area’s persecuted Rohingya community.
Recruits will reportedly be armed and paid by the border police after undergoing abbreviated training.
The ICJ considers that a civilian regional police force necessarily lacks the adequate training and oversight to perform policing functions in accordance with human rights and professional standards on policing.
Moreover, there does not appear to be an appropriate accountability mechanism in place to deal with instances of misconduct and human rights abuses, the ICJ says.
Such a ‘regional police force’ will be dangerously under qualified and prone to committing human rights violations, especially as they will answer to the military rather than civilian government, the Geneva-based organization adds.
According to the ICJ, if a new security authority is contemplated, it must be a professional police force, whose members are recruited and trained in accordance with principles of non-discrimination and respect for human rights.
Police must also be accountable to the law and subject to administrative and judicial oversight.
The ICJ calls on the governments to establish and enforce effective reporting and review procedures for all incidents involving the use of force.
The government and police must ensure the following accountability measures are in place:
- Police are not deployed without comprehensive training on duties including restrictions on use of force and human rights obligations;
- An effective process to review the use of force, conducted by independent administrative or prosecutorial authorities is available;
- Access to an independent judicial process for persons affected by the use of force (including dependents) or their legal representatives, which is capable of providing for effective remedy and reparation for any abuses;
- Superior officers must be held responsible if they know, or should have known, that law enforcement officials under their command are using force without taking all measures in their power to prevent, suppress or report such use.
Accountability and oversight is essential to protect human rights and prevent escalation of conflict: a new force should not be raised without these guarantees, the ICJ says.
Contact
Sam Zarifi, ICJ’s Regional Director for Asia & Pacific, t: +66807819002
Background
Under international law, any body authorized by the State to perform security functions and use force, including lethal force, must respect human rights in performing their functions.
The United Nations Basic Principles on the Use of Force and Firearms set standards on the qualifications and the training of Law Enforcement Officials.
These Principles also provide standards on the use of force consistent with protecting the right to life.
Under the Principles, all law enforcement officials must receive continuous and thorough professional training, subject to periodic review. They must be screened and selected to ensure they have appropriate moral, psychological and physical qualities for the effective exercise of their functions.
Training must include appropriate guidance on the use of force with special requirements to carry firearms.
It must focus on issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, with a view to limiting the use of force and firearms.
Nov 3, 2016
An opinion piece by Vani Sathisan, ICJ International Legal Adviser in Myanmar.
Sagaing Region ministers have been meeting opponents of the Letpadaung copper mine to discuss a list of grievances, including lingering questions about the death of a protester.
“Here is a real bullet, beside a shotgun shell with rubber pellets inside, that were used on the day Daw Khin Win was killed. I kept them as evidence. Why were real bullets used to disperse a crowd that was peacefully protesting?”
A relative of Khin Win put the question to representatives of the International Commission of Jurists during a recent visit to Monywa to monitor the human rights impact of the nearby Letpadaung copper mine.
The bullet displayed by the villager was used in the fatal shooting on December 22, 2014, of Khin Win, a landowner, during a protest against the expansion of the mine.
Two other villagers were hurt in the same protest over the seizure of land in 35 nearby villages.
There remains a lack of transparency about whether there has been any credible investigation of villagers’ claims that workers from Wanbao joined forces with police that day to violently disperse the protestors.
Wanbao – a subsidiary of China’s state-owned weapons maker Norinco, which runs the mine in a joint venture with the Union of Myanmar Economic Holdings Limited – restarted production in May.
In April, Wanbao released a slick corporate social accountability video called “A New Dawn” to show it had a “social licence” to operate.
However, the ICJ’s discussions with affected communities, including meetings at the Sagaing regional hluttaw and the General Administration Department of the Ministry of Home Affairs, found different sentiments in villages near the project.
Grievances in the communities included land grabs, loss of livelihoods and environmental damage.
Lawyers in the region have noted a problem of “compensation culture”, in which villagers sometimes exhaust the “compensation” they have accepted for the loss of farmland and then allegedly submit unjustified or frivolous claims for compensation from companies.
Whether or not this is common practice, it is clear that Wanbao has failed to engage in genuine community consultation about compensation that is equitable and transparent.
Last year, Amnesty International reported that Wanbao “directly engaged in forced evictions… by constructing infrastructure on their land despite being aware that the people had not agreed to move or been paid adequate compensation.”
The ICJ representatives saw destroyed arable land and crops as well as polluted waterways near the mine site, which is close to the Chindwin River.
The Letpadaung operation has been dogged with opposition since its inception in 2011 under Myanmar’s former military government.
In November 2012, police allegedly used white phosphorous smoke grenades to disperse hundreds of peaceful protesters camped at the mine site.
Dozens of people, including many monks, suffered extensive chemical burns.
The use of white phosphorous, a highly corrosive chemical, against civilians even in armed conflicts is prohibited under the 1980 Geneva Conventions.
The government responded to outrage over the incident by appointing Daw Aung San Suu Kyi, who was opposition leader at the time, to chair an investigation commission while work was suspended at the mine.
In its report published on March 12, 2013, the commission acknowledged that Wanbao had not conducted an environmental and social impact assessment, but said that cancelling the project would affect job creation and ties with China, one of Myanmar’s biggest trade partners and its top foreign investor.
Wanbao publicly stated that it welcomed the commission’s report.
In an effort to address community outrage, Wanbao has taken some steps to implement the terms of its revised agreement with the former Myanmar government.
The Myanmar Centre for Responsible Business stated that Wanbao’s ESIA disclosed in January 2014 and completed by Australian consulting firm Knight Piesold, was undertaken with “benchmarking against international standards, including those of the International Finance Corporation”.
However, public consultation on Wanbao’s ESIA report has been limited.
When the ICJ wrote to Wanbao seeking more information on how it could better protect the human rights of those affected by its project, it responded that “Myanmar Wanbao adheres to international good practice and international standard in environmental conservation and CSR activities and are making every effort to reduce the environmental impact of the project and minimize the footprint of our activity throughout the different phases of the project.”
The response made no reference to human rights.
The Myanmar Police Act 1945 empowers police officers to regulate public assemblies and processions, but nowhere in the legislation is there a justification for unlawful disproportionate use of force.
International law and standards govern the use of force. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, while acknowledging that in certain limited circumstances police can and will need to use force to maintain law and order, states that this must be done in proportionately and in compliance with international human rights law and must never be seen as a licence to kill or granting immunity to police officials.
The judiciary has shown itself unable or unwilling of providing for access to justice.
The legal system has instead been used to suppress freedom of expression and arbitrarily try and imprison those who peacefully protest against human rights abuses by businesses.
The ICJ had monitored the trials of activists who peacefully demonstrated outside the Chinese Embassy in Yangon in 2014, calling Myanmar authorities to carry out an urgent and impartial investigation into the death of Khin Win.
In early September, Sagaing Region ministers met communities opposed to the mine project in a first effort by government to address their longstanding grievances.
The Union government must increase protection for human rights and the environment by ensuring that corporations such as Wanbao embed human rights in their business practices and are held accountable for failing to do so.
Until then, there continues to be impunity for those responsible for Khin Win’s death.
Oct 25, 2016 | Advocacy
The ICJ, Amnesty International, FIDH, Fortify Rights and Lawyers’ Rights Watch Canada urge Thailand’s National Legislative Assembly (NLA) to reject currently proposed amendments to the 2007 Computer-Related Crime Act (CCA).
The full text of their statement can be dowloaded here:
thailand-cca-amendments-advocacy-2016-eng (in PDF)
thailand-cca-amendments-advocacy-2016-tha (Thai, in PDF)
