Mar 22, 2021 | Advocacy, Non-legal submissions
The ICJ joined today seven other organisation in a statement before the UN Human Rights Council expressing concern at the systematic human rights violation and the persistent impunity in the Philippines and calling for more accountability.
The joint statement delivered by FORUM ASIA reads as follows:
“Madam President,
Nearly six months since its adoption, Human Rights Council resolution 45/33 offering technical assistance to the Philippines has proven to be utterly insufficient to address the systematic human rights violations and persistent impunity documented in the High Commissioner’s report. The Philippine Government’s policies and actions since the Resolution’s adoption have been completely at odds with the commitments outlined in it.
Extrajudicial killings in the so-called ‘war on drugs’ have continued. To date, the Government has made no tangible progress towards accountability against those most responsible for such killings. In December 2020, the Office of the Prosecutor of the ICC found that there is “reasonable basis to believe that the crimes against humanity” of murder, torture, the infliction of serious physical injury and mental harm, and other inhumane acts were committed between at least 1 July 2016 and 16 March 2019.
Human rights defenders pursuing legitimate work, especially those who advocate for international accountability, including lawyers, continue to be attacked and accused of belonging to terrorist groups. Rights defenders continue to be arrested and jailed. The draconian Anti-terrorism Act, passed last year, exacerbates risks to defenders. The killing of nine human rights defenders and activists on 7 March, two days after President Duterte ordered the police and military to “finish off” and “kill” those purported to be “communist rebels”, illustrates clearly the persistent killings and attacks faced by activists and defenders. It is very clear that no amount of technical assistance or capacity building will end the killings as the President and top government officials continue to incite murder and violence as official policy.
In this context, it is imperative that the Council set up an international accountability mechanism to end the cycle of violence and impunity in the Philippines.
Thank you.”
The statement was endorsed by:
- Amnesty International
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- CIVICUS: World Alliance for Citizen Participation
- Human Rigths Watch
- International Commission of Jurists (ICJ)
- International Federation for Human Rights (FIDH)
- Philippines Alliance of Human Rights Advocates (PAHRA)
- World Organisation Against Torture (OMCT)
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
Mar 18, 2021 | News
The ICJ today condemned Sri Lanka’s new ‘de-radicalization’ regulations, which allow for the arbitrary administrative detention of people for up to two years without trial. The regulations could disproportionately target minority religious and ethnic communities.
Sri Lankan President Gotabaya Rajapaksa promulgated Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021, which was publicized by way of gazette notification on 12 March, 2021. The “regulations”, which were dictated by the executive without the engagement of Parliament, would send individuals suspected of using words or signs to cause acts of “religious, racial or communal violence, disharmony or feelings of ill will” between communities to be “rehabilitated” at “reintegration centres” for up to two years without trial.
“These regulations, which have been dictated by executive fiat, allow for effective imprisonment of people without trial and so are in blatant violation of Sri Lanka’s international legal obligations and Sri Lanka’s own constitutional guarantees under Article 13 of the Sri Lankan Constitution.”
– Ian Seiderman, ICJ’s Legal and Policy Director
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka is a party, provides for a number of procedural guarantees for any person deprived of their liberty, many of which are absent in the Regulation. Administrative detention of the kind contemplated under the Regulations, is not permitted, as affirmed repeatedly by the UN Human Rights Committee.
Even prior to the promulgation of the new regulations under Sri Lanka’s Prevention of Terrorism Act No. 48 of 1979 (PTA), Sri Lankan authorities had already been invoking the PTA and the International Covenant on Civil and Political Rights Act, No. 56 of 2007 (enacted to incorporate certain provisions of the ICCPR into domestic law) effectively to persecute people from minority communities. Yet little or no action has been taken by the authorities against those inciting hatred or violence against minorities.
“The new regulations are likely to be used as a bargaining tool where the option is given to a detainee to choose between a year or two spent in “rehabilitation” or detention and trial for an indeterminate period of time, instead of a fair trial on legitimate charges.”
– Ian Seiderman, ICJ’s Legal and Policy Director
Contact
Osama Motiwala, Communications Officer – osama.motiwala@icj.org
Background
Section 3(1) of the ICCPR Act which prohibits advocacy of hatred that constitutes incitement to discrimination, violence or hostility has hitherto been misused to target members of minority communities. In April 2020, Ramzy Razeek, a retired government employee, was arrested for a Facebook post calling for an ideological ‘jihad’ against the policy of mandatory cremation of people who had died as a result of Covid-19. He was detained under the ICCPR Act for more than five months and finally released on bail due to medical reasons in September 2020.
In May 2020, Ahnaf Jazeem, a young Muslim poet, was arrested under the PTA in connection with a collection of poems he had published in the Tamil language, which were apparently misinterpreted by Sinhalese authorities to be read as containing extreme messages. Just last week, a few days after the promulgation of the new regulations, Ahnaf’s lawyers expressed alarm that both Ahnaf and his father were being pressured to make admissions that he had engaged in teaching ‘extremism’. The ICJ had previously raised concerns about the arbitrary arrest and prolonged detention of Human Rights lawyer Hejaaz Hizbullah. After being detained under the PTA for 10 months without being given reason for his arrest, he is now being tried for speech-related offences under the PTA and ICCPR Act.
The ICJ has consistently called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. The ICJ reiterates its call for the repeal and replacement of this vague and overbroad anti-terror law and regulations brought under it, in line with Sri Lanka’s international obligations.
The new PTA regulations require those who surrender or are arrested on suspicion of using words or signs to cause acts of violence, disharmony or ill will between communities to be handed over to the nearest Police Station within 24 hours after which a report is to be submitted by the Police to the Defence Minister (the position is currently held by President Gotabaya Rajapaksa) to consider whether the suspect should be detained further. The regulations would also apply to those who had surrendered or been taken into custody under the PTA, the Prevention of Terrorism (Proscription of Extremist Organizations) Regulations No. 1 of 2019 and the Emergency (Miscellaneous Provisions and Powers) Regulation, No. 1 of 2019.
The Attorney General is given the power to decide if a suspect should be tried for a specific offence or be send to a rehabilitation centre as an alternative. If the decision is to rehabilitate, the suspect would be produced before a Magistrate with the written consent of the Attorney General. The Magistrate may thereafter order that the suspect be referred to a rehabilitation centre for a period not exceeding one year. Such period can be extended by a period of six months at a time up to one more year by the Minister upon the recommendation of the Commissioner-General for Rehabilitation. The regulations further state that the Commissioner–General should provide the detainee with psycho-social assistance and vocational and other training during the rehabilitation period to ensure reintegration into society. The regulations also provide that such detainee may with the permission of the officer in charge of the Centre be entitled to meet their parents, relations or guardian once every two weeks.
Mar 18, 2021
An op-ed by Daron Tan, Legal Consultant at the ICJ Asia & the Pacific Programme
On February 19 2021, the Malaysian Federal Court found Malaysiakini, an online news outlet, guilty for criminal contempt of court for five comments published by third parties on its website. This judgment has generated significant criticism from lawyers, civil society and media groups for restricting press freedom and freedom of expression online in Malaysia.
On June 9, 2020, Malaysiakini published an article on the reopening of Malaysian courts, in line with the recovery phase of the movement control order. In the public comments section of this article, subscribers left five comments critical of the independence of the judiciary and the Chief Justice. The comments were related to the acquittal by the High Court of former Sabah chief minister Tan Sri Musa Aman for corruption and money-laundering, after the prosecution withdrew the charges.
Key takeaways from the judgment
In Malaysia, article 126 of the Federal Constitution empowers the Federal Court, Court of Appeal and High Courts of Malaysia to “punish” incidents of contempt of court.
Malaysiakini was found guilty because it was presumed to be the publisher of the purportedly contemptuous comments left on its article. Under section 114A of the Evidence Act 1950, anyone who is depicted as “the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication” is presumed to have published the content, and thus potentially held liable.
Malaysiakini was unable to rebut this presumption. The Federal Court found that Malaysiakini should have foreseen the kind of comments that its article would have attracted. In other words, Malaysiakini had constructive knowledge because it should have known what kind of comments was likely to be posted. This is even if the editorial team had no actual knowledge of the comments until alerted by the police, following which the comments were promptly removed.
According to the court, Malaysiakini also did not take all the necessary steps to filter the offensive comments before they were published, as its system only filtered foul language but not allegedly “offensive” substance.
For this, Malaysiakini was fined RM500,000 (approximately US$122,700), despite the Attorney General recommending a RM200,000 fine (approximately US$49,090).
Incompatibility with international human rights law
The judgment reinforces how Malaysia’s contempt of court provisions are incompatible with human rights law and standards, especially the right to freedom of expression online. Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR) which contains strict guarantees protecting this right. Indeed, the ICCPR has 171 State Parties, leaving Malaysia as one of just 22 UN Member States out of its ambit. However, freedom of expression is part of customary international law, incumbent on Malaysia.
The International Commission of Jurists (ICJ) has previously highlighted this incompatibility in its 2019 report on online freedom of expression in Southeast Asia. Malaysia’s contempt of court offence is a common law doctrine and not codified statutorily, and a clear definition of criminal contempt of court has not emerged within case law. The ICJ has highlighted the need for reform to ensure clarity in definition, consistency in procedural limits and sentencing limits pertaining to criminal contempt cases, in line with the principles of legality, necessity and proportionality.
Additionally, onerous fines and other sanctions are a disproportionate and unnecessary means of protecting the reputation of the courts. The UN Special Rapporteur on freedom of expression has urged States to refrain from imposing disproportionate sanctions, such as heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression. The Manila Principles on Intermediary Liability, a set of guidelines for censorship and takedown laws, also made clear that intermediaries like Malaysiakini should be shielded from liability for third-party content.
The presumption of innocence is a fundamental rule of law principle. A corollary to this principle is that the burden of proof to establish guilt rests with the State in a criminal trial. The presumption of responsibility under section 114A of the Evidence Act reverses this burden of proof unto the defendant. This is therefore incompatible with right to fair trial as a general principle of law. The chairperson of the Constitutional Law Committee of the Malaysian Bar has pointed out section 114A is a “significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence”. This is exacerbated by how the Malaysiakini judgment sets an unreasonably high standard of proof to rebut the presumption under section 114A, as defendants will need to prove they lacked constructive, instead of actual knowledge.
The above concerns emphasise the urgent need for these laws to be repealed or substantially amended. In this regard, the Malaysian Bar has recommended that section 114A of the Evidence Act be repealed, and for the law of contempt to be codified statutorily to provide clear and unequivocal definitions and guidance as to what really constitutes contempt. This is particularly important for concepts such as “scandalising the judiciary”, which are necessarily vulnerable to abusive application.
Domestic and regional implications of the case
Domestically, the Malaysiakini judgment creates a de facto requirement for all online news portals in Malaysia to monitor and filter user-generated comments for potentially offensive content even before they are published to avoid legal liability. This imposes an onerous burden on providers that will disincentivise them to perform their roles as providing a platform for the free flow of information and ideas, as they will have to engage in constant proactive monitoring or filtering content.
The judgment also raises questions about who else is considered a publisher and liable for third-party content. Are social media platforms like Facebook and Twitter liable for all content posted by their users? What about social media users and bloggers for comments made by other people on their content? This uncertainty may result in a chilling effect on free speech online. The lack of clarity demonstrates how vague, broad and overreaching these legal provisions are, such that people cannot know in advance how to regulate their conduct to conform with the law and avoid criminal liability.
Regionally, the judgment may set a worrying example for other Southeast Asian countries, many of which have already been unduly restricting freedom of information and expression online. These countries may invoke Malaysia’s example in efforts to expand these restrictions to intermediaries for third-party content using existing laws. In Thailand, service providers may be liable for false information perpetrated by its users if the service provider “cooperates, consents or acquiesces to the perpetration of an offence” under section 15 of the Computer-Related Crimes Act BE 2560 (2007). In Singapore, innocent publication or distribution “without the person’s authority, consent or knowledge, and without any want of due care or caution on that person’s part” is a defence to contempt of court under section 18 of the Administration of Justice (Protection) Act 2016. However, if constructive, instead of actual knowledge is required, then act’s reach would be widened significantly.
The current liability regime may result in further instances of disproportionate and unnecessary restrictions on online news outlets and other Internet intermediaries. Against the backdrop of the Internet increasingly becoming the new battleground for issues on freedom of expression and information, the Malaysiakini judgment reinforces the need for legal and policy reform in Malaysia to protect media freedom and online freedom of expression, in line with international human rights law and standards. It is also an opportune moment to become a party to the ICCPR, and examine and reform the other laws in Malaysia also incompatible with human rights law that may be abused to unduly restrict freedom of expression online, including the Sedition Act 1948 and the Communications and Multimedia Act 1998.
First published in Malay Mail on 16 March
Mar 17, 2021 | News
Imposition of Martial Law in several areas of Myanmar subjects civilians to trial by military tribunals, a dangerous escalation of the military’s repression of peaceful protests, said the ICJ today.
“Use of martial law marks the return to the dark days of completely arbitrary military rule in Myanmar. It effectively removes all protections for protestors, leaving them at the mercy of unfair military tribunals.”
– Ian Seiderman, ICJ’s director of law and policy
On 14 March, the Myanmar military issued Martial Law Order 3/2021, covering a number of townships of different provinces in Myanmar. According to this order, military officials assume full authority from civilian officials, and civilians may be subjected to military tribunals for charges of 23 violations of the criminal code and other laws. The 23 crimes include many of the charges used most against peaceful protesters in the past month, including charges of ‘disrupting or hindering government employees and services’ and ‘spreading false news’ about the government, and ‘exciting disaffection towards the government.’
The Martial Law Order also assigns disproportionately severe sentences, including the death penalty and prison sentences with hard labor. Judgments of military tribunals are not subject to appeal, even if the death penalty is imposed.
“Martial law has been imposed in precisely the areas where the military have used unlawful and lethal force against peaceful protesters, and removes even the pretense of access to courts for the people whose rights have been violated systematically by the military, ” said Seiderman.
The ICJ’s detailed review of military courts has documented that they lack competence, independence and impartiality to prosecute civilians. International law provides that the jurisdiction of military tribunals must generally be restricted solely to specifically military offenses committed by military personnel.
“The military courts lack transparency, due process and judicial oversights. It leaves no possibility to appeal the sentences, including the death sentences that have been handed down by military generals, ” said Seiderman.
Since the military coup d’etat of February 1 and the declaration of a state of emergency, the military has enacted and amended legislation enabling ongoing gross human rights violations, including possible crimes against humanity. More than 200 people have been unlawfully killed, with 2,000 more injured as security forces have used excessive force to suppress peaceful protests.
Background
On 14 March, the military-appointed State Administration Council, in accordance with Article 419 of the Constitution, enacted Martial Law Order 1/2021, imposing martial law in a number of areas in Yangon. The affected areas were further expanded through two other orders issued on 15 March, Martial Law Order 2/2021 and 3/2021. These orders transfer all power to the Military Commander in those areas. All local administration bodies have been placed under martial law, effectively giving military full control of all judicial and administrative processes.
The Order 3/2021 in particular is divided into six main sections with the most concerning provisions in relation to the list of crimes to be heard by military tribunals, and the proscribed punishments.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Mar 16, 2021 | Advocacy
This side event will take place on Tuesday 16 March 2021, from 14:00-15:00 (CET) at the 46th session of the UN Human Rights Council. For registration: https://bit.ly/3llCCMF
Minority Rights Group International and South Asia Collective, along with ICJ, OMCT, Article 19 and FORUM-ASIA, are hosting a side event at 46th session of the Human Rights Council, on hate speech and incitement in South Asia. The aim is to instigate discussion on the causes and consequences of hate speech in South Asia, in the hope of encouraging UN and its agencies to engage better on preventive and early warning actions in the region.
Speakers
- Fernand de Varennes – UN Special Rapporteur on Minority Issues
- Alice Wairimu Nderitu – UN Special Advisor on the Prevention of Genocide
- Haroon Baloch, Pakistan – Digital Rights Researcher, Bytes for All Pakistan
- Farah Mihlar, Srilanka – Lecturer, University of Exeter; Srilanka Minority Rights campaigner
- Shakuntala Banaji, India – Professor of Media, Culture and Social Change at London School of Economics
Moderator
- Joshua Castellino – Executive Director, Minority Rights Group International
