Jul 17, 2015
In a briefing paper released today, and an accompanying letter to Nepal’s Constituent Assembly, the ICJ raises a number of concerns about Nepal’s Draft Constitution.
The Constituent Assembly’s endorsement of a Draft Constitution on 7 July 2015, and the subsequent opening of a 15-day public consultation on this draft, represents a unique and crucial moment in Nepal’s constitutional history, the ICJ said.
But to fulfill the promises of the Comprehensive Peace Accord that ended the decade-long armed conflict and the guarantees of the Interim Constitution it will replace, changes to the drafting process must ensure adequate opportunity for meaningful and inclusive public participation, and amendments to the Draft Constitution are required to protect human rights in accordance with Nepal’s international obligations.
“This 15-day timeframe must be expanded, and provisions of the draft Constitution must be amended, to ensure that the Nepali people have the opportunity to frame a Constitution which guarantees the rule of law, human dignity and enhanced human rights protection,” said Wilder Tayler, Secretary General of the International Commission of Jurists.
In a letter to the Chairperson of the Constituent Assembly on 17 July 2015, accompanied by a detailed briefing paper, the ICJ has made recommendations for changes to both the constitution-making process and text of the Draft Constitution in light of Nepal’s obligations under international human rights law.
The ICJ has underscored that, while the renewed momentum within the Nepali government in the aftermath of the earthquake to finalize and adopt the long-awaited Constitution is welcome, the speed and manner in which the consultation on the first Draft Constitution is being conducted is undermining people’s right to participate.
“Such ‘fast-tracking’ risks delegitimizing the constitution-making process by undermining people’s right to participate in it”, Secretary-General Tayler said. “The government must urgently revise the timetable to ensure that all individuals, including minorities, historically marginalized groups and people in remote areas whose accessibility is further compromised by the rainy season, have the necessary time and resources to meaningfully review and comment on the draft”.
The ICJ has also noted several provisions of the Draft Constitution that must be amended to fully comply with international human rights standards and to protect the rule of law.
The ICJ’s analysis of the provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations, found that:
- The citizenship provisions are vague and discriminatory, and risk making people stateless;
- Non-citizens are excluded from key rights entitlement and protections;
- Several rights, including women’s rights and key economic, social and cultural rights, are not adequately protected;
- Restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly are broad and vague and do not conform with international human rights standards;
- Provisions on remedy for human rights violations are lacking;
- Protections of the independence of the judiciary are weak and inadequate;
- Provisions on emergencies and consequent restriction of rights are overbroad.
“Amendments to the Draft Constitution to address these concerns, among others are needed if Nepal is to adopt a strong and progressive Constitution which safeguards the rule of law, human rights and the independence of the judiciary, consistent with the country’s obligations under international human rights law,” Tayler said.
Download the ICJ’s letter to the Constituent Assembly here:
NEPAL-DRAFT CONST-ADVOCACY-OPEN LETTER-2015-ENG
Download the ICJ’s full briefing here:
NEPAL-CONSTITUTION-ADVOCACY-ANALYSIS BRIEFS-2015-ENG
Contact:
Nikhil Narayan, Nepal Head of Office and ICJ Senior Legal Adviser, m: +977-(0)9813187821, e-mail: nikhil.narayan(a)icj.org
Jul 16, 2015
An opinion piece by Vani Sathisan, ICJ International Legal Adviser in Myanmar and James Tager, a Harvard Satter Fellow with the ICJ.
Over the past three months, the ICJ has written to investors, developers, an international audit company and an environmental research institute to ask for the public disclosure of information relating to two of Myanmar’s largest economic development projects: The Dawei and Kyauk Phyu Special Economic Zones (SEZs).
The ICJ asked for information regarding environmental impact assessments, environmental management plans, and financial audit reports.
The ICJ received no substantive responses.
The Dawei (photo) and Kyauk Phyu SEZs, two of Myanmar’s three proposed SEZs, are key elements of the country’s economic development plans.
Transparency about the proposed projects is vital to ensure the protection of those whose rights will be affected by these massive investment projects. The Myanmar government, and interested investors, must remove the secrecy around these projects and provide the basic information requested regarding these projects.
In a country where businesses normally proceed without input from local communities, such secrecy has fostered serious human rights abuses, including land misappropriations, loss of livelihoods, serious environmental damage, and violent curtailments of freedom of expression and association.
The two SEZ projects will include a power plant, industrial zones, a natural gas terminal, a water reservoir, and substantial infrastructure, which can have massive effects on the environment and the health of nearby communities. The experience in Rakhine State, where the proposed Kyauk Phyu SEZ will be located, is instructive: development of gas fields and other resource extraction projects have been fraught with allegations of forced labour and the forced eviction of hundreds of farmers from their lands.
The companies operating in SEZs are not the only ones rejecting transparency.
When the Business and Human Rights Resource Centre recently wrote to over a hundred foreign companies operating in Myanmar, seeking details on their activities and human rights commitments, only a quarter responded with relevant information, another quarter provided general statements, and approximately half failed to respond altogether.
Lack of transparency around projects with potentially harmful environmental and social impacts can leave communities vulnerable to abuse. They can also affect investors, exposing them to project delays, litigation, and reputational damage.
Myanmar is increasingly seeing examples where lack of transparency at the early stages of a project hurt companies—and more important, the communities among which they work.
The Letpadaung copper mining project, a joint venture between Chinese-owned Myanmar Wanbao and the military-owned Myanmar Economic Holdings Limited, has displaced hundreds of families amidst an opaque land acquisition process and a lack of genuine consultations with the affected communities.
Protests about the mine were quelled with police firing white phosphorous to break up a protest in 2012 and the shooting death of a protestor in 2014.
Wanbao finally published its environmental and social impact assessment (ESIA) report just last week, but only after Letpadaung had attracted unwanted attention as an example of human rights abuses and corporate malfeasance.
Even where laws for corporate transparency exist, for instance the human rights reporting requirements imposed by the United States government, some US companies avoid disclosing their investments and activities in Myanmar, at times by incorporating in other jurisdiction such as Singapore.
Notwithstanding such evasive tactics, the responsibility ultimately rests with the Myanmar government to hold investors to account by enforcing regulations, including demands for corporate transparency and the country’s environmental regulations – such as they are.
Myanmar’s Environmental Conservation Law currently mandates an Environmental Impact Assessment (EIA) for all investment projects, but the law still lacks clear and enforceable environmental controls. The EIA Procedures, which would set out the specific requirements for EIAs under the Law, remain in draft form.
The most recent draft that the ICJ has seen includes the requirement that project proponents share the EIAs with civil society and local communities. It is vital that these disclosure provisions remain in the final EIA Procedures.
Corporate officers and government officials will continue to refuse to disclose EIA results if they do not believe that working with affected communities is an obligation.
But Myanmar’s government has the obligation, under international law, to uphold the rights of its people to informed participation in environmental decision-making.
These obligations must start with government officers committing to sharing information with communities affected by proposed projects, and must continue with enforcement of regulations ensuring that corporate actors do the same.
When it comes to questions about the environmental effects of projects that will affect Myanmar’s communities, silence cannot be the answer.
Jul 14, 2015 | News
The Royal Government of Cambodia must immediately end the legal harassment of human rights defender, Ny Chakrya, Head of the Human Rights and Legal Aid Section of the Cambodian Human Rights and Development Association (ADHOC), the ICJ said today.
On 13 July 2015, a Deputy Prosecutor at the Phnom Penh Municipal Court questioned Ny Chakrya for two hours in relation to statements he had made at two press conferences in May 2015.
The summons and questioning were, according to information provided to the ICJ, pursuant to a complaint by an Investigating Judge and another prosecutor.
The proceedings appear to be based on the fact that at the press conferences Ny Chakrya alleged that two clients of ADHOC had been arbitrarily arrested and detained in Siem Reap province and were facing an unfair trial.
“The legal harassment of Ny Chakrya for merely raising allegations of human rights violations is itself a clear violation of human rights,” said Kingsley Abbott, ICJ’s International Legal Adviser.
“Human rights defenders play a vital role in promoting and protecting human rights and the State has a duty to create the conditions for them to be able to carry out their work effectively and without fear of retaliation,” he added.
The International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a State Party, guarantees the right to freedom of expression; the prohibition of arbitrary arrest or detention and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law; and the right to seek effective remedies for alleged violations of human rights.
The UN Declaration on Human Rights Defenders, adopted by a consensus of States including Cambodia, affirms the right of everyone to peacefully oppose human rights violations.
It reaffirms the prohibition of retaliation, threats and other harassment against anyone who takes peaceful action against human rights violations, both within and beyond the exercise of their professional duties.
It also protects the right of persons to file formal complaints about alleged violations of rights.
The UN Guidelines on the Role of Prosecutors provide that prosecutors have the duty to uphold human rights and that states must ensure they have the power and discretion to fulfill this and other duties. Prosecutors should not proceed with a case they know to be unfounded.
“The complaint against Ny Chakrya was clearly without foundation and he should never have been summoned for questioning in the first place,” Abbott said. “To continue to proceed with this case would be a violation of Ny Chakrya’s rights as a human rights defender.”
The ICJ reiterates its call for the end of the legal harassment of Ny Chakrya and that his case should be closed definitively by whatever means or to whatever extent is available to the Deputy Prosecutor and other state officials.
Background:
According to information provided to the ICJ, on 22 June 2015 the Phnom Penh Municipal Court issued a summons for Ny Chakrya to appear before it for questioning pursuant to a complaint filed by the Investigating Judge and the Deputy Prosecutor of the Siem Reap Provincial Court alleging public defamation (Art. 305 of the Cambodian Criminal Code), acts of slanderous denunciation (Art. 311 of the Cambodian Criminal Code), and the publication of comments to put pressure on the jurisdiction (Art. 522 of the Cambodian Criminal Code).
On 13 July 2015 at the Phnom Penh Municipal Court, the Deputy Prosecutor questioned Ny Chakrya about statements he made at two press conferences organized by ADHOC.
At a press conference on 12 May 2015 in Siem Reap, Ny Chakrya and a lawyer from ADHOC alleged that two clients of ADHOC had been arbitrary arrested and detained in the context of a high profile land dispute in Siem Reap province.
Ny Chakrya alleged that their arrest and detention was a violation of Cambodian law and international human rights law.
At a press conference on 20 May 2015 in Phnom Penh, Ny Chakrya sought to raise public awareness about a complaint that he had filed the same day to the President of the Disciplinary Council of the Supreme Council of Magistracy.
In the complaint, Ny Chakrya alleged that the Deputy Prosecutor and Investigating Judge of the Siem Reap Provincial Court lacked independence and that the two villagers would not receive a fair trial as a result.
On 17 June 2015, the Siem Reap Provincial Court found ADHOC’s clients guilty of inciting a group of villagers to trespass on, use and destroy the property of Community Takhmao Development Agricultural & Industrial, an agricultural development company.
They were sentenced respectively to six months’ and eight months’ imprisonment.
The criminal proceedings arose in the context of a dispute between Community Takhmao Development Agricultural & Industrial and villagers in Chup Romdeng Village in Siem Reap province regarding the alleged illegal clearing of land in Siem Reap province.
Contact:
Kingsley Abbott, ICJ International Legal Adviser, t: +668 4092 3575 ; e: kingsley.abbott(a)icj.org
Jul 13, 2015 | News
The ICJ today condemned the approval by the Cambodian Peoples’ Party (CPP) of a law which aims to pose obstacles to and restrictions on the activities of non-governmental organizations (NGOs) in order to be officially registered in the country.
In June and July 2015, the ICJ and other international human rights groups sent joint letters to the Government of Cambodia, including to Prime Minister Hun Sen and the President of the National Assembly, urging for the withdrawal of the draft law.
“It is extremely disappointing that the Government has chosen to ignore widespread national and international criticism of the draft LANGO and calls for it to be withdrawn,” said Kingsley Abbott, International Legal Adviser for the ICJ.
“There is no doubt that the draft law’s restrictions on freedom of association and expression, in contravention of international law and standards, will severely impair civil society’s ability to carry out its vital work,” he added.
Today, the Cambodian National Assembly unanimously approved the draft Law on Associations and Non-Governmental Organizations (draft LANGO) promoted by the Cambodian Peoples Party (CPP) after 55 members of the opposition party, Cambodia National Rescue Party, decided to boycott the vote.
All 68 members of the CPP, including Prime Minister Hun Sen, attended the plenary session of the National Assembly and voted in favor of the draft law.
The draft LANGO will still have to be adopted by the Senate, and thereafter, receive the assent of the Cambodian King before it becomes law.
The ICJ calls on the Senate to reject the draft LANGO.
“The fact that the legislation was passed without genuine consultation with civil society tends to suggest that the Government’s intention is to weaken the impact of NGOs, including human rights defenders,” Abbott said.
The draft law’s most problematic provisions include:
- excessive documentation required for the registration of both domestic and international associations and NGOs;
- arbitrary powers of the Ministry of Interior and Ministry of Foreign Affairs to deny or revoke registration on the grounds of “public security, stability and order, or generate a threat to national security, national unity or the culture, traditions and customs of Cambodian national society”;
- the requirement that associations “adhere to a stance of neutrality vis à vis political parties”, and provisions that allow for the suspension and dissolution of groups that violate this requirement;
- the requirement that NGOs report to several ministries and to submit an annual report summing up work activities and finances; and
- the inclusion of sweeping provisions for the suspension and dissolution of domestic and international associations and NGOs.
Background
The draft LANGO, if ultimately adopted and implemented, would bring Cambodia into non-compliance with international law and standards.
As a party to the International Covenant on Civil and Political Rights (ICCPR), Cambodia must guarantee the rights to freedom of expression and association and ensure that no restrictions are put in place except under the strict conditions set out in articles 19(3) and 22(2) of the ICCPR. These conditions clearly have not been met under the terms of the draft LANGO.
In addition, Article 2 of the UN Declaration on Human Rights Defenders provides that each “State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.
Article 8 states that everyone “has the right, individually and in association with others, to have effective access…to participation in the government of his or her country and in the conduct of public affairs…[including] the right, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.”
Contact:
Kingsley Abbott, ICJ’s International Legal Adviser, t: +668 4092 3575 ; e: kingsley.abbott(a)icj.org
Jul 9, 2015 | News
In a letter sent today, the ICJ and seven other human rights organizations urge the Thai Government to drop criminal charges against two journalists from the online news outlet Phuketwan who are about to go on trial for writing about the trafficking of the Rohingya.
The letter was sent to the General Prayuth Chan-ocha, Prime Minister of Thailand.
The trial, which is set to start on 14 July, revolves around criminal charges brought by the Royal Thai Navy against Alan Morison and Chutima Sidasathian for reproducing one paragraph from a Pulitzer Prize-winning article written by Reuters news agency implicating the Navy in the smuggling of the Rohingya off the coast of Thailand.
“Thailand must drop these charges immediately and unconditionally,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“Criminal prosecution of speech is a violation of international law, and the Thai Navy’s relentless pursuit of this case seems even more misguided as it comes at a time when journalists have played a vital role in uncovering mass graves on the Thailand-Malaysia border and thousands of migrants and refugees, including Rohingya, left stranded on boats in the Andaman Sea,” he added.
On 16 December 2013, the Royal Thai Navy lodged complaints of criminal defamation and offences against Thailand’s Computer Crimes Act (CCA) against the journalists.
On 17 April 2014, the journalists were charged with criminal defamation under articles 326 and 328 of the Thai Criminal Code, which carry a maximum penalty of two years imprisonment and a fine of up to 200,000 Baht (USD $6,000); and violation of article 14(1) of the CCA, which carries a maximum penalty of five years imprisonment and a fine of up to 100,000 Baht (USD $3,000).
“The absurdity of these prosecutions was emphasized when the Office of Thailand’s Prime Minister recently asked one of the two journalists, Chutima Sidasathian, who is working towards a Ph.D. on the Rohingya, to suggest a solution to the ‘boat people’ crisis,” Zarifi further said.
“It is not too late to follow that request with an unconditional withdrawal of all charges as an official recognition of the important work by Alan Morison and Chutima Sidasathian in raising these issues and as a concrete gesture of Thailand’s purported commitment to addressing them,” he added.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Background:
Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party, guarantees the right to freedom of expression, which includes the right to impart information. The UN Human Rights Committee, which monitors State compliance with the ICCPR, has expressed its concern at the misuse of defamation laws to criminalize freedom of expression and has said that such laws should never be used when expression is made without malice and in the public interest.
The ICJ, an increasing number of governments, the Human Rights Committee and other international authorities, believe that criminal defamation laws should be abolished. Such laws are inherently incompatible with the ICCPR and other international laws and standards on freedom of expression. Criminal penalties are always a disproportionate means to protect against reputational harm and pose an impermissibly severe impediment to the exercise of free expression.
Thailand was criticized in May 2014 when the United Nations Committee Against Torture expressed its concern “at the numerous and consistent allegations of serious acts of reprisals and threats against human rights defenders, journalists, community leaders and their relatives, including verbal and physical attacks, enforced disappearances and extrajudicial killings, as well as by the lack of information provided on any investigations into such allegations.”
The Committee recommended that Thailand “should take all the necessary measures to: (a) put an immediate halt to harassment and attacks against human rights defenders, journalists and community leaders; and (b) systematically investigate all reported instances of intimidation, harassment and attacks with a view to prosecuting and punishing perpetrators, and guarantee effective remedies to victims and their families.”
Thailand-Letter to PM Prayuth re Phuket Wan-Advocacy-open letters-2015-ENG (full text of the letter, in PDF)
Thailand-Phuketwan cases-News-Press release-2015-THA (full text of press release in PDF, Thai)
Thailand-Letter to PM Prayuth re Phuket Wan-Advocacy-open letters-2015-THA (full text of the letter, in PDF, Thai)
