Mar 29, 2016
As the Government and the National Reconstruction Authority (NRA) finally begin the reconstruction phase of their response to the 2015 earthquake, they must ensure that the post-earthquake recovery moves forward in full accordance with the country’s human rights obligations.
Nepali authorities must ensure that post-earthquake assistance is based on needs alone and without discrimination on any status grounds, including descent (caste), gender, ethnicity or political affiliation, say the ICJ and and the Nepal Bar Association (NBA).
A preliminary report released today presents the results of a fact-finding study conducted in 2015 by the ICJ, in collaboration with the NBA, and focuses on three disaster-affected districts of Gorkha, Dolakha and Okhaldungha with the aim of assessing the humanitarian response in the earthquake’s immediate aftermath on the basis of international human rights law and standards.
In particular, the report notes that such assistance must be directed at protecting key economic and social rights, such as the rights to food, water, adequate housing, health, education and adequate standard of living.
“The ICJ and the NBA found that the political delays in operationalizing the NRA aggravated existing problems with marginalized groups and hampered the provision of necessary aid,” said Nikhil Narayan, the ICJ’s Senior Legal Advisor for South Asia and Head of Office in Nepal.
“Nepali authorities, particularly the newly launched NRA, must re-affirm their commitment to protecting the rights of those affected by the earthquake who have been suffering for nearly one year now,” he added.
The report aims to assist policy makers, particularly the recently operational NRA, and humanitarian actors by identifying the most immediate human rights concerns and providing recommendations to ensure the protection of the human rights of affected populations.
Among its main findings, the report raises concerns that:
- The Nepal Government’s undue delay in formulating a comprehensive long term policy plan for resettlement, livelihood and other assistance for those displaced has severely infringed victims’ right to adequate housing;
- The undue delay for political reasons in the establishment of a central coordinating body such as the NRA, and the failure to provide adequate guidance to local authorities in the meantime, exacerbated the other infringements of rights by stalling the relief and reconstruction process;
- The loss of documentation and the burdensome process to reacquire necessary documentation, including EVIC cards, other personal identity records and land and property ownership records, greatly impacted victims’ access to humanitarian assistance to fulfill at least the minimum essential levels of their economic and social rights and the right to recognition before the law;
- Many of the most vulnerable victims were not provided adequate information by authorities on the assistance to which they were entitled, or the process by which they could access these entitlements;
- The lack of a participatory or transparent consultative process in the design and implementation of relief programs, and a lack of awareness of available complaints mechanisms, denied many victims access to needs-appropriate relief and to redress for their grievances;
- While further in-depth field research is necessary, anecdotal information suggested that discrimination based on political affiliation, caste and gender persisted in some degree in the humanitarian relief process.
Among its key recommendations, the report observes that:
- The Government of Nepal should ensure that the NRA is provided adequate resources to fulfill its mandate promptly, independently, impartially and with full consideration for Nepal’s national and international human rights obligations;
- Nepali authorities (both the Government and the NRA) should ensure that the resettlement and reconstruction process is carried out transparently and uniformly based on need alone, in a participatory and consultative manner, and in conformity with principles of equal protection and non-discrimination;
- Nepali authorities should take special measures where necessary to ensure that women and marginalized and disadvantaged groups have equal access to assistance, including easing the procedural obstacles to obtain assistance due to lost documentation;
- Nepali authorities should ensure that an independent and impartial mechanism is available to promptly, effectively and transparently investigate complaints of discrimination, abuse of authority or corruption in both the prior phase of relief as well as the next phase of reconstruction, and that those persons found responsible are held accountable.
The NRA formally launched its operations on 16 January 2016, and is now preparing to distribute the first installment of housing reconstruction grants for displaced persons in Dolakha in coming weeks.
“Nepali authorities had a monumental challenge to respond urgently to the devastating human and physical toll caused by the April 2015 earthquake, even as they too were suffering the same trauma as the rest of the population,” said Sunil Pokharel, the NBA’s Secretary General.
“At the same time, safeguarding the human rights of victims is especially critical in times of disaster, and the State has a duty to ensure that human rights are fully integrated in post-disaster humanitarian assistance from the outset and at all phases,” he added.
Nepal-Earthquake Disaster response-Publications-Reports-2016-ENG (full report in PDF)
Mar 24, 2016
The Indian Supreme Court should decriminalize consensual same-sex relations when it reviews its December 2013 decision in the Suresh Kumar Koushal case, said the ICJ in a briefing paper released today.
The judgement of this case is upholding the constitutionality of the criminalization of consensual same-sex relations under section 377 of the Indian Penal Code (IPC),
The briefing paper answers some key questions arising from the Supreme Court’s referral earlier this year of its Suresh Kumar Koushal decision to a five-judge bench of the Court, based on the Court’s acknowledgment that the case involved issues with “constitutional dimensions”.
“The referral has opened up a significant new chapter in this critically important litigation, which has been ongoing since 2001”, said Sam Zarifi, ICJ’s Asia-Pacific Director. “The Supreme Court has the opportunity to ensure that this archaic and discriminatory law is taken off the statute book for good”.
The ICJ’s briefing paper answers questions regarding the nature of the Supreme Court’s referral in this case through a curative petition. It also sets out the issues in the case that are currently before the Court; the history of this particular litigation; and India’s international obligations around these issues.
“It is time to move beyond the injustice of the Suresh Koushal Case,” Zarifi said. “Holding section 377 unconstitutional would have enormous transformative value for LGBT rights in the country and beyond.”
“It would set the stage for the full recognition of LGBTI rights as human rights, as required by international human rights law, by which India is bound,” he added “in particular, the principles of non-discrimination, equality before the law and equal protection of the law.”
Background
Section 377 of the IPC makes it a criminal offence for “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.
It has been interpreted to apply to consensual same-sex sexual relations. It has also been used as a tool of harassment and intimidation against sexual and gender minorities in India.
By allowing the criminalization of consensual same-sex conduct, section 377 has facilitated numerous human rights violations, including non-discrimination, equality before the law, equal protection of the law, liberty and security of person, free expression, health, and privacy.
Under international human rights law, India is bound to respect, protect and fulfill all these rights.
India-Q&A art 377-Advocacy-Analysis brief-2016-ENG (full briefing paper, in PDF)
Mar 21, 2016 | News
The Maldives must stop undermining the independence and integrity of the judiciary through arbitrary and politically motivated actions against judges, the ICJ said today.
“The ICJ visited the Maldives last month for the second time in a year, and we were dismayed to see that the Maldives government has continued to erode the rule of law and weaken the independence of the judiciary,” said Nikhil Narayan, ICJ’s Senior Legal Adviser for South Asia.
“The government must immediately stop targeting judges and other public officials with arbitrary criminal proceedings, threats, intimidation and harassment,” he added.
On 7 February, Magistrate Judge Ahmed Nihan was arrested, along with former Prosecutor General and former Criminal Court Judge Muhthaz Muhsin, in connection with an alleged ‘forged’ arrest warrant against President Yameen.
“The arrest of a judge for issuing a warrant, a function which is well within the ordinary powers and responsibilities of the judiciary, clearly violates basic principles of judicial independence,” Narayan further said. “The fact that the alleged warrant was against the President further suggests that Judge Nihan’s arrest was politically motivated.”
“Moreover, the severity of a charge of ‘terrorism’ for such an act, even if taken at face value, cannot reasonably be viewed as proportionate to the alleged offense,” he added.
On 16 March, more than a month after his arrest, Judge Nihan was charged under sections 4(a)(1)-(2) and 5(a)(2) of the Prevention of Terrorism Act, for attempting to unduly influence the state, attempting to create fear among the public, and attempting to forcefully disappear or hold a person hostage.
The Constitution of the Maldives does not provide immunity for the president from criminal accountability even while still in office.
The ICJ was also concerned to find during its visit that Maldivian authorities have continued to undermine the independence of the judiciary by using the threat of transfer or removal of judges as a tactic of political retribution, harassment and intimidation.
On 14 February, former Criminal Court Chief Judge Abdullah Mohamed was abruptly transferred from the Criminal Court to the Family Court following a sudden and late night meeting of the Judicial Service Commission (JSC), without being given an opportunity to appear on his own behalf during the meeting.
While the JSC has given no reasons for its decision, lawyers, human rights defenders and former government officials with whom the ICJ spoke suggested that the transfer had been taken in retaliation for Judge Abdullah’s failure to remand former Prosecutor General Muhsin following his arrest.
It was also suggested by those interviewed that a further motivation for the transfer was to ensure that Judge Abdullah could not indirectly influence the three-judge bench hearing the former Vice President’s criminal case in favor of the defendant. Judge Abdullah was reported to have close ties with both defendants.
In June 2015, Judge Azmiralda Zahir, one of only three female judges in the entire Maldivian judiciary and the only woman on the High Court, was arbitrarily and unexpectedly transferred by the Supreme Court from the Malé appellate bench to the southern regional bench, a transfer that amounts to a demotion, without formal notice or opportunity to challenge her transfer.
The Supreme Court has neither established clear criteria for its decision-making process in such matters nor informed Judge Zahir of the reasons for her transfer, of which she learned through media reports, despite repeated requests by her to both the Supreme Court as well as the JSC, the ICJ says.
“President Yameen’s government must quickly take genuine steps to restore the rule of law, strengthen the independence and integrity of the judiciary and restart the democratic transition process,” said Narayan.
Contact:
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Read also:
Maldives: political crisis erodes rule of law and human rights
Maldives: arrest of Judge Ahmed Nihan further erodes judicial independence
Mar 21, 2016 | News
Thailand’s National Council for Peace and Order (NCPO) must end its interference in the elections of the president and committee members of the Lawyers Council of Thailand (LCT), the ICJ and Thai Lawyers for Human Rights (TLHR), said today.
The LCT in turn must ensure the elections are conducted in a fair and impartial manner.
“International standards explicitly prohibit external interference in the elections of the executive body of a lawyers’ professional association by its members, and the association’s leadership must ensure that such elections are conducted in a fair and impartial manner” said Matt Pollard, the Head of the ICJ’s Centre for the Independence of Judges and Lawyers. “Ensuring the independence and democratic representation of the legal profession is essential to safeguarding human rights and the rule of law, especially in the current circumstances of military rule in Thailand.”
On 29 February 2016, Mr Wichien Choobtaisong, a representative of the electoral group of the current LCT President, Mr. Dej-udom Krairit, wrote to the NCPO “seeking permission” to hold meetings and campaigns for the LCT’s regularly-scheduled elections, referring to the NCPO’s ban on political gatherings of more than five persons.
On 16 March 2016, the NCPO replied, stating that the elections “contradict” the ban on political gatherings, which “must apply equally to all groups and sectors in the interest of maintaining national security during the transition period,” and taking the position that that the elections must accordingly be postponed with the current committee continuing its term until elections are held. The NCPO’s reply also notes it received a letter from the LCT on 14 December 2015, which the ICJ and TLHR have not seen.
In its letter, the NCPO referred to NCPO Announcement 7/2014, which bans the political gathering of more than five persons (Announcement 7/2014 was later replaced by Order 3/2015). The ICJ reiterates that these arbitrary and unjustified orders and announcements should be repealed, and calls on the NCPO, in any event, to immediately withdraw its letter of 16 March, replacing it with written confirmation that the LCT elections will be able to proceed as scheduled, without external interference.
The LCT must then put in place procedures to ensure the elections proceed as scheduled and in a fair and impartial manner.
“Since the military took power, we have seen a marked increase in the number of individuals requiring legal aid for sensitive and political cases,” said Yaowalak Anuphan, the Head of TLHR and member of the LCT. “In this environment, it is even more essential that the Lawyers Council of Thailand is able to exercise its functions without external interference and that everyone has effective and equal access to the legal services of lawyers.”
Contacts
In Bangkok: Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
In Geneva: Matt Pollard, ICJ Senior Legal Adviser, t: +41 22 979 38 12 ; e: matt.pollard(a)icj.org
Background
The Lawyers Council of Thailand was established in 1957. Its mandate and responsibilities are set out in the Lawyers Council Act 1985.
The objectives of the Council include maintaining the ethics of lawyers, promoting legal education and providing legal assistance.
It also registers lawyers and issues them with licenses to practice law in Thailand. Members of the Council elect the president and committee members every three years.
Article 24 of the Basic Principles on the Role of Lawyers, adopted by the UN in 1990, sets out that: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.
The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Among other things, the UN Basic Principles also affirm that ensuring all persons have effective access to legal services provided by an independent legal profession is essential for adequate protection of human rights and fundamental freedoms.
They note the vital role of professional associations of lawyers including in protecting their members from persecution and improper restrictions and infringements. The Basic Principles specify that governments should respect and reflect the provisions of the Basic Principles in their national legislation and practice.
The UN Human Rights Committee has applied the Basic Principles as a necessary component of the right to a fair trial guaranteed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party.
The UN Committee will review Thailand’s compliance with the ICCPR at an upcoming meeting.
Thailand-ICJ and TLHR statment on LCT-News-press releasess-2016-THA (full text in Thai, PDF)
Mar 17, 2016 | Advocacy, Non-legal submissions
The ICJ today joined with the International Bar Association’s Human Rights Institute to make an oral statement on judges & lawyers in Myanmar, during the consideration of its Universal Periodic Review outcome by the UN Human Rights Council.
The statement:
“The International Bar Association’s Human Rights Institute (IBAHRI) and the International Commission of Jurists welcome Myanmar’s decision to accept recommendations made at the Universal Periodic Review relating to the administration of justice and the independence of the legal profession and call on the Government of Myanmar to implement the recommendations which it has accepted ‘in principle’ to reform the Bar Council Act to allow for the Bar Council to become a truly independent and self-governing association.
In order to ‘guarantee in law and practice that lawyers and judges can perform their professional functions without improper interference and legally form and join self-governing associations’, we call for the right to join such associations to be enshrined in law, and that the right of the first Independent Lawyers’ Association of Myanmar (ILAM) to register as an association be respected;
In order to ‘define professional legal standards and disciplinary procedures in conformity with the Basic Principles on the Role of Lawyers’, we call upon the government of Myanmar to engage in a consultation process with the legal profession and other stakeholders in relation to the revision of the Bar Council Act. The government should also commit sufficient funds to allow for the funding of the system created by the new Legal Aid Law.
We are encouraged by and support efforts by the Office of the Supreme Court of the Union to draft and implement a Code of Judicial Ethics.
Finally, we urge the Government to improve legal education and continue legal professional development including with regard to international human rights law and the UN human rights mechanisms.
We are glad to provide support in the realisation of these recommendations and will look for collaboration with the Government to that end.”
