May 17, 2021 | News
LGBTI people in Indonesia, particularly trans women, face significant discrimination in access to Covid-19 vaccines as the country rolls out its vaccination programme in the face of a surge in the pandemic, the ICJ said today.
Indonesia is planning to start vaccinating the general population in July and an electronic identity card (e-KTP) is required to be vaccinated. However, most trans women do not have, or cannot obtain, an e-KTP and are thus unable to access the COVID-19 vaccines.
“As we mark the International Day against Homophobia, Transphobia and Biphobia on 17 May, Indonesian authorities must ensure that LGBTI communities, trans women in particular, are not excluded from access to vaccines,” said Ruth Panjaitan, ICJ Legal Adviser for Indonesia.
To get an ID card, trans women need to present a Family Card, a document issued to the head of the family. However, many, trans women or waria have been kicked out of or fled their family homes without formal documents as a result of domestic violence. Between 50-60% of transwomen senior citizens reportedly do not have e-KTP, which makes it difficult for them to access government’s healthcare service, including COVID-19 vaccination.
“Most waria in Indonesia don’t even have an ID card let alone an e-KTP. The current system compounds the discrimination against trans women with the heightened risk of illness due to Covid-19. Indonesian authorities must urgently reform the e-KTP system to facilitate the legal status of people based on their own self-identified gender identity,” Ruth Panjaitan said.
Trans women who want to process their e-KTP in accordance with their gender identity have to first obtain an affirmation of their gender from a court, as the e-KTP does not recognize transgender. There is currently no definite and clear regulation for the legal gender change under Indonesia’s law or Supreme Court regulations, so the determination will depend on individual judges in each court’s jurisdiction. LGBTI activists have noted that in practice many judges apply arbitrary religious-based criteria to reject the petition to change gender. In most cases, the court that takes on the application still requires a doctor’s medical certificate that the petitioner has conducted gender reassignment surgery or other hormonal treatment as well other onerous document requirements, such as a psychiatric evaluation and witness information.
“These intrusive, arbitrary, prolonged and burdensome procedures make it even more difficult for trans women in Indonesia to get legal recognition of their gender identity, and lack of recognition of gender identity before the law blocks their access to health care,” Ruth Panjaitan said.
The Indonesian authorities have recently started their effort to reach out to transgender people in order for them to be registered in accordance with Law No.24 year 2013 and Law No.23 year 2006 regarding Civil Administration, which mentions that all Indonesian citizens have to be registered and that they have to have both ID and Family Card, so that they can get a good public service. However, the current system still falls short under international law to protect transgender people.
“Excluding and marginalizing trans women in the middle of a pandemic aggravates the longstanding discrimination they have faced from the Indonesian government, and it is also counterproductive to an effort to vaccinate as many people as possible to stop the spread of the disease,” Ruth Panjaitan said.
Additional information
Transgender people in Indonesia have a right to nondiscriminatory access to vaccines and overall rights to health, which is protected under Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) to which Indonesia is party. The UN Committee on Economic, Social and Cultural Rights has affirmed that all healthcare goods, facilities, and services must be available, accessible, acceptable and of adequate quality, especially to the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination of any of the prohibited grounds.
Under international human rights law and standards, a person’s declaration of their preferred gender identity for the purpose of obtaining gender recognition should not require validation by a medical expert, judge or any other third party. Requiring someone seeking legal recognition of their self-identified gender to undergo treatment is a breach of their right to protection against attacks on their dignity and physical and mental integrity, guaranteed under the ICESCR and the International Covenant on Civil and Political Rights, to which Indonesia is a party.
As affirmed by the Yogyakarta Principles, which address the human rights of LGBTI persons, gender identity is a private matter, concerning someone’s deeply felt individual conviction, which should not be subject to arbitrary third-party scrutiny. Legal gender recognition processes protecting the rights of transgender people must be conducted without medical requirements and it must be quick, transparent, and accessible, and effectively uphold the rights of transgender people, including their right to self-determination.
As of 10 May 2021, Indonesia has reported more than 5,000 new infections on average each day and 1,718,575 cumulative confirmed COVID-19 cases. The figure brought the country to the fourth position of countries with highest cases in Asia. The inoculation programme kicked off in mid-January for those deemed to be high priority, such as health workers, the police and military, and other public workers. The proportion of Indonesia’s total population that has received at least one dose of a vaccine as at 4 May 2021 was 4.64 per cent.
Contact
Ruth Panjaitan, Legal Adviser for Indonesia, e: ruthstephani.panjaitan(a)icj.org
Download
Press Release in Bahasa Indonesia.
May 15, 2021
An opinion piece by Mandira Sharma, ICJ Senior Legal Adviser, and Karuna Parajuli, ICJ National Legal Adviser, based in Nepal.
In mid-February this year, there were less than 100 new Covid-19 infection cases per day in Nepal. We now average around 9,000 cases per day. While the major political parties continue to flex their muscles for power, Covid-19 patients throughout the country scramble for hospital beds, healthcare workers and oxygen cylinders. Although the virus does not discriminate on the basis of class, the elite and the powerful have superior access to quality healthcare than the poor and the marginalised.
According to the Ministry of Health (MOH), there are only 1,171 intensive care unit beds and 483 ventilators in government hospitals throughout the country. These are not enough to prevent serious illnesses and deaths, considering the ever-increasing number of patients requiring hospitalisation. Covid-19 designated public hospitals are already overwhelmed by patients, and private hospitals seem to be taking undue advantage of the crisis. The price lists for hospitalisation publicised by some private hospitals recently indicate the degree of profiteering they indulge in even as they remain out of bounds for a significant number of patients.
The pandemic has impacted a host of human rights, the right to health being the most prominent one. Under both national and international laws, Nepal is obligated to respect, protect and fulfil the right to health through measures that are non-discriminatory including based on social and economic status. This legal obligation requires the government to take effective measures to ensure the prevention, treatment and control of Covid-19. This also includes the duty to regulate the conduct of the private healthcare sector, including hospitals, pharmaceutical companies and laboratories.
Considering the nature of this pandemic, extraordinary measures need to be put in place to gather resources held by both public and private healthcare actors. These obligations must be pursued not only through individual laws, policies and practices of the state but also through collective international cooperation.
The government must take immediate policy measures through coordinated interventions, also involving the private sector to ensure people’s right to health. It must also reassess the existing legal and policy framework, reinvigorate a coordinating body, and develop an integrated plan. Public health professionals and management experts with the necessary power and resources should be included in decision-making to respond to the pandemic. Although the government had formed a Covid-19 Crisis Management Center (CCMC) last year, the Cabinet later started to take most of the decisions on its own, forcing the CCMC to exist only on paper.
The Health Ministry and local authorities must work in tandem to make health services accessible to everyone by increasing hospital beds, oxygen supply, medicines and other necessary equipment. Government authorities, including the Health Ministry, should, following the Supreme Court’s orders, ensure free and widespread access to Covid-19 testing to prevent further infections.
Efforts to fix the public health system should include a longer-term plan and progressive allocation of resources to increase the number of healthcare facilities with the necessary infrastructure and improve the quality of services. A need for an integrated legal framework was already highlighted during the first wave of the pandemic. The Supreme Court in August 2020 ordered the government to adopt specific integrated legislation providing a framework for different government organs to function effectively to prevent and respond to the pandemic.
However, in defiance of the order, the government has instead opted to coordinate its Covid-19 response through the ineffectual and antiquated Infectious Disease Act of 1964, which takes no account of contemporary human rights laws or Nepal’s recently devolved federal structure. The Act, therefore, does not provide guidance as to how different levels of the government (federal, provincial, and local) are obligated to ensure the right to health and in particular the prevention, treatment and control of pandemics as required under the international law. It also fails to provide a framework to hold health service providers, both public and private, accountable for infringing on people’s right to health.
Although the Public Health Service Act (2018) has many gaps, it was enacted to ensure access to health services by making them ‘regular, effective, qualitative and easily available’. Section 4 of the Act requires every health institution, whether public or private, to provide emergency health services and to make necessary arrangements for the treatment of patients with infectious diseases. In interpreting Section 3(4) C of this Act, the Supreme Court has indicated that health services for infectious diseases such as Covid-19 fall under the category of basic health services and should therefore be provided for free. The use of a rights-based approach should be the point of departure, guiding all efforts the government takes in addressing the pandemic.
No one should die while failing to get access to health services, which in some situations may amount to a violation of the right to life triggering criminal responsibility on the part of the state officials involved. International law also requires international cooperation, with countries helping each other in implementing the obligations related to the right to health. Nepal should ask for increased international cooperation and action at the international level, like the TRIPS patent waiver and other resources.
In the longer run, the pandemic should be heeded as a wake-up call to revamp the public healthcare system in Nepal. Moreover, reforms are needed to shield healthcare facilities from political interference. As the increasing nexus between political actors and private companies hampers a quality healthcare system and proper checks and balances, an effective mechanism needs to be put in place not only to investigate any allegation of corruption in public health institutions but also to look at issues related to conflict of interest.
Finally, an integrated law must be adopted to regulate and facilitate the work of public and private health sectors both, and provide a framework for appropriate monitoring mechanisms to ensure a free and accessible primary healthcare system without economic, social or any other form of discrimination.
First published in The Kathmandu Post here.
May 14, 2021 | Advocacy, News, Publications
The ICJ launched a new briefing paper Nepal: Transitional Justice Mechanisms with Gender Perspective in a webinar held on 12 May 2021.
The discussion included the need to give practical effect to Nepal’s obligation under international law to ensure the right to an effective remedy to the victims, including women victims of sexual and gender-based violence during the country’s internal armed conflict (1996 – 2006). Participants focused in particular on the need to ensure that gender issues are incorporated in the transitional justice mechanism.
The Honourable Kalyan Shrestha, former Chief Justice of the Supreme Court of Nepal and ICJ Commissioner, stressed the importance of the role of the Supreme Court of Nepal in establishing landmark jurisprudence on transitional justice.
Justice Shrestha explained how despite the fact that the country had established a progressive Constitution and amended legislation to provide for equality, non-discrimination and access to justice, women victims and survivors of a decade long armed conflict continued to face real barriers to justice. These including short periods of statute of limitations preventing the filing rape and sexual violations cases and lack of support mechanisms for women, which compounded existing economic pressure and social obstacles.
Bandana Rana, Member of the UN Committee on the Elimination of Discrimination against Women (CEDAW), addressed the situation of sexual and gender – based violence against women in Nepal during the armed conflict. She said that Nepal was bound by clear international legal obligations, including under the CEDAW and other treaties. Yet the Nepali government has not taken effective measures to ensure access to justice and the right to an effective remedy to the victims of SGBV during the conflict.
Laxmi Pokharel, ICJ Legal Adviser, summarized the ICJ’s briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective”. The Paper’s major recommendations, to the Government of Nepal, are:
- Amend the Truth and Reconciliation Act (TRC) in line with the Supreme Court’s order and Nepal’s international obligations;
- Ensure participatory, consultative processes while amending the TRC Act;
- Ensure the participation of women at all levels of recruitment, including in the formation of the recommendation committee, in the appointment of Commissioners of both the TRC and the Commission on Investigation of Disappeared Persons (COID) and at all levels of staffing with a view to ultimately achieving gender parity;
- Provide gender-sensitive trainings to the Commissioners and staff of the Commissions in order to enhance their capacity to address gender issues in their operation;
- Take all necessary steps to amend the Criminal Code to remove the statutory limitation for filing incidents of rape and other sexual violence, including in relation to acts committed during the armed conflict, in order to ensure justice for all victims;
- Ensure that amnesties and mediation are not used to replace criminal responsibility for gross violations of human rights, including rape and other sexual violence.
- Incorporate a gender-responsive approach in all aspects of the Commissions’ work, including in the interpretation and application of the mandate of the Commissions, prosecution of perpetrators and reparation to the victims and survivors;
- Incorporate an approach in the Commissions’ work that does not restrict women’s experiences during the armed conflict only to bodily harm suffered, but also takes account of structural gender biases and its consequences during the period of a conflict;
- Design and implement gender-friendly procedures for investigation, including statement taking, victim and witness protection and other activities of the Commissions;
- Design and implement specific reparation policies to address the unique needs of women victims;
- Ensure that the gendered aspects of the armed conflict, including its causes and consequences are incorporated in the final report of the Commissions;
- Take effective measures to ensure the widest possible dissemination of the final report of the Commissions in order to ensure that the wider population is made aware of the truth, most especially in relation to women.
The webinar was jointly organized by ICJ in collaboration with the United Nation’s Office of the High Commissioner for Human Rights (OHCHR) and UN Women. This event was organized under the ‘Enhancing Access to Justice for Women in Asia and the Pacific’ project funded by the Swedish International Development Cooperation Agency (SIDA). Due to the COVID – 19 pandemic the webinar was conducted virtually and live broadcasted on Facebook. It was conducted in English language and simultaneous translation in Nepali language was also available.
Contact
Laxmi Pokharel, ICJ Legal Adviser – Nepal, email: laxmi.pokharel(a)icj.org
Download
Briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” (full report in PDF)
May 12, 2021
An opinion piece by Jenny Domino, Associate Legal Adviser, ICJ Asia-Pacific Programme.
On Feb. 24, 2021, three weeks after Myanmar’s military (the Tatmadaw) staged the coup that changed the course of Myanmar’s future, Facebook announced it was banning all “remaining” military and military-controlled state and media entities from Facebook and Instagram, including ads from military-linked commercial entities. To this end, Facebook said it would use the United Nations Fact-Finding Mission on Myanmar’s (FFM) 2019 report on the military’s economic interests in identifying relevant commercial entities. Though Facebook had removed military accounts and pages in the past for their involvement in human rights violations– most notably the account of State Administration Council chairperson, Senior-General Min Aung Hlaing, in 2018– the company’s 2021 decision went much further by indefinitely suspending military and military-related accounts and pages regardless of content or behavior.
In other words, contrary to popular opinion, former President Trump’s account was not the first high-profile account to be indefinitely suspended by Facebook. Commander-in-Chief Min Aung Hlaing’s de-platforming was described as “unprecedented” in 2018, but outside of Myanmar watchers, it garnered little global attention, much less debate.
The 2021 de-platforming of the Tatmadaw offers a renewed opportunity to engage with how Facebook – and other powerful platforms – should do their part to deal with authoritarians and human rights-violating institutions like the military in Myanmar. Facebook’s act to de-platform the Tatmadaw was the culmination of incremental steps taken by the company in response to the “emergency situation” unfolding in Myanmar since the coup. For example, on Feb. 11, Facebook decided to “significantly reduce” the distribution of false content emanating from military accounts and pages still operating on the platform, but stopped short of an immediate outright ban. And it had previously declined to ban the entire military’s presence on its platform despite it being implicated in the Rohingya human rights crisis. At each of these moments, Facebook took action too late, and too incrementally, to avert harm – harm that the platform knew was imminent and which its very design facilitated. Facebook’s history in Myanmar highlights the broader problems with content moderation in vulnerable contexts, and it should serve as a cautionary lesson to companies that wish to prevent their platforms from facilitating atrocities.
A Dance of De-Platforming and Platforming
The coup was not made overnight. Experts observed that the groundwork had been carefully laid months before the coup to delegitimize the results of Myanmar’s November election. The Tatmadaw’s social media presence formed a key part of the plan to control the narrative surrounding the poll, one the Tatmadaw later invoked to justify the power grab.
Facebook’s latest de-platforming decision removed the infamous “Tatmadaw True News Information Team,” which was the military’s official Facebook page, and Major General Zaw Min Tun, the military’s spokesperson. It also included the MRTV and MRTV Live “news” pages. According to Facebook, these pages repeatedly violated its prohibition on incitement to violence and coordinating harm.
As was locally reported last year, the Tatmadaw set up the “True News” page in June 2020 to provide “accurate news” ahead of the November election. This factor is crucial for analyzing the present, as the military has alleged voter fraud as a pretext for the coup. The Tatmadaw has so far attempted to justify its actions – including the unlawful use of lethal force, arbitrary arrests of protestors, democratically elected leaders, journalists, and celebrities, shutdown of independent media, and denial of the nationwide calls to respect the people’s vote – ironically under the guise of protecting “democracy.” The pages most recently banned by Facebook were used to disseminate the Tatmadaw’s false narrative on election fraud and enabled it to lay the groundwork for the coup.
One may wonder why the Tatmadaw True News Information Team and Zaw Min Tun were allowed on Facebook in the first place. Indeed, I asked this question here last year upon the creation of the page. To recall, Facebook banned Min Aung Hlaing and other generals in 2018 for their involvement in serious human rights violations in Myanmar. As found by the FFM then, the Rohingya and other ethnic minorities suffered the brunt of these violations, some of which constituted crimes under international law. As regards speech that could be expected to incite violence or discrimination, the FFM specifically found that Facebook, along with other forms of media, “enabled the spread of … hateful and divisive rhetoric” targeting the Rohingya in a country where, as the FFM observed, “Facebook is the Internet” (para. 1345). Given the platform’s dominance in the country, the FFM found it “unsurprising that propagators of hate speech resort[ed] to Facebook to wage hate campaigns, amplify their message, and reach new audiences.” The platform was also “widely used to spread misinformation … by government officials and the Tatmadaw” (para. 1346).
As I explained last year, Facebook neither attributed its 2018 de-platforming decision to the 2018 FFM report or any of its Community Standards, despite the latter supposedly being the governing law on the platform. Moreover, although select military officials were de-platformed, civilian government officials equally found by the FFM to have disseminated hate speech against the Rohingya were still allowed to remain on the platform with apparently little to no consequence. More importantly in the present context, only select military accounts were permanently suspended rather than the entire military, without any explanation for this particular strategy. The Tatmadaw television network, Myawaddy, was in fact banned in 2018 but allowed to reappear until banned again in the wake of the coup. It was at least in part as a result of these gaps that the Tatmadaw was able to set up accounts such as the Tatmadaw True News Information Team. Even now, Facebook has inexplicably decided to allow at least 23 other pages and profiles “controlled and/or operated by the Tatmadaw” (without specifying which ones) to continue operating, only opting to significantly reduce the distribution of their content.
What Is Proportionate?
It is apparent by now that Facebook’s lack of clarity and consistency in its 2018 de-platforming decision has returned to haunt it in 2021. Both Zaw Min Tun and the Tatmadaw True News Information Team that Facebook platformed in 2020 figured prominently in the coup that has derailed Myanmar’s fragile path to democracy. And Zaw Min Tun remains the military junta’s spokesperson, now leading the Information Team of the State Administration Council.
As a non-State actor, Facebook has the corporate responsibility to respect human rights under the U.N. Guiding Principle on Business and Human Rights (UNGPs), which includes adherence with the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR requires the application of the principles of necessity and proportionality to any measure limiting the right to freedom of expression. This would mean imposing the least intrusive yet necessary means in regulating expression to achieve a legitimate aim. The aims that are legitimate are themselves narrow, including the protection of national security, public health and morals, public order, and the rights of others. The application of these standards to social media platforms seeking to regulate users’ speech, including State actors’ speech, has generated robust debate, but the U.N. Special Rapporteur on freedom of expression notes that platforms have an arsenal of tools to proportionately address problematic content. De-platforming or permanent account suspension of a user is the most extreme response.
In March this year, Facebook released its Corporate Human Rights Policy, wherein it formally committed to respect human rights as laid out in key international instruments. The non-profit BSR recommended adopting such a policy in 2018 in its human rights impact assessment of Facebook’s operations in Myanmar. An important component of this commitment is a clarification on Facebook’s de-platforming approach to world leaders of illiberal and authoritarian regimes, as I initially raised here and here. Such a commitment also demands ongoing human rights due diligence to enable understanding of the wider history and context of the places where Facebook operates, instead of only considering the immediate circumstances surrounding a tragic event. This contextual familiarity is critical to inform questions of risk and to apply the standards of legitimacy, proportionality, and necessity, which are necessarily fact-based.
In the context of Myanmar, a comprehensive ban on military and related accounts appears to have been warranted for some time, given the well-documented and egregious violations with which these accounts have been associated. The FFM reports in 2018 and 2019, Facebook’s own de-platforming decision in 2018, years of widely documented human rights violations in Myanmar, the assortment of international legal proceedings concerning these human rights violations, the prevalence of military-controlled state media, the state of censorship in the country, and other considerations all support a blanket ban on military-linked accounts. Facebook has in fact been moderating Myanmar military-linked accounts under its Coordinated Inauthentic Behavior policy continuously since its initial 2018 actions.
Instead, Facebook’s decisions to (i) platform the Tatmadaw True News Information Team and Zaw Min Tun in 2020, (ii) belatedly reduce distribution of military-related content ten days after the coup, and (iii) wait until the third week of the coup to indefinitely suspend military and related accounts do not seem to be a sufficient response. Facebook justified the indefinite ban in the third week of the coup by invoking four factors:
The Tatmadaw’s history of exceptionally severe human rights abuses and the clear risk of future military-initiated violence in Myanmar, where the military is operating unchecked and with wide-ranging powers.
The Tatmadaw’s history of on-platform content and behavior violations that led to us repeatedly enforcing our policies to protect our community.
Ongoing violations by the military and military-linked accounts and Pages since the February 1 coup, including efforts to reconstitute networks of Coordinated Inauthentic Behavior that we previously removed, and content that violates our violence and incitement and coordinating harm policies, which we removed.
The coup greatly increases the danger posed by the behaviors above, and the likelihood that online threats could lead to offline harm.
Factors 1 and 2 were true long before the coup, while Factors 3 and 4 were true in the first week of the coup as much as in the third week. This is also not the first time that the Tatmadaw disregarded the people’s vote. Further, rumors of a coup spiked in late Jan. this year, prompting diplomatic missions in Myanmar to release a joint statement urging the military to recognize the election results.
Facebook’s responses had also been partially preempted: By Feb. 24, Facebook and other social media platforms were already banned in Myanmar as part of the military junta’s series of network disruptions which, since the coup on Feb. 1, has involved internet and mobile network shutdowns and social media and website bans. Despite the local social media ban, however, Facebook’s decision still carried weight as many people within Myanmar continue to access the platform through virtual private networks (VPN).
Overall, Facebook’s response particularly pales in comparison to its relatively swift action to de-platform former President Trump soon after the U.S. Capitol riots and then refer the matter to the Facebook Oversight Board. Although abhorrent, the violence at the U.S. Capitol was mild compared to the scale of violence called for and facilitated by military-linked Facebook accounts in Myanmar. And the threat to democracy posed by the Jan. 6 insurrection was dwarfed by the actual overthrow of democracy on Feb. 1 in Myanmar and the international crimes several years earlier during the Rohingya crisis. These contrasts reveal a broader problem with Facebook’s approach to content moderation in the most fragile contexts.
A Global Conversation Centered On At-Risk Populations
Facebook’s inconsistent and often-belated de-platforming approach in Myanmar should invite deeper reflection on the parameters of social media access provided to world leaders of illiberal and authoritarian regimes. In its decision on the Trump ban, the Facebook Oversight Board made a policy recommendation to Facebook to “publicly explain” the applicable rules when imposing account-level sanctions against influential users, including its strikes and penalties process. Facebook should take up this recommendation and clarify how it enforces such policies abroad. This problem is also not unique to Facebook. Other platforms such as TikTok and YouTube have respectively moderated Tatmadaw soldiers and video channels for violent content, but have been vague about these content decisions.
Further, beyond formally committing to provide access to remedy in line with the UNGPs, social media companies should explore how various forms of remedy and reparation (including compensation, rehabilitation, and satisfaction in the form of public apologies, memorials, and truth-telling) ought to be made available to communities in Myanmar affected by the adverse human rights impacts that their technology or business operations have engendered. As suggested by Rohingya refugees in Bangladesh, this would include engaging with human rights victims, responding clearly and promptly to requests, providing free internet access to refugee camps, and using their influence to promote an open internet, especially in the region where majority of their users are located.
The U.S. government can also play an important role by considering the global impact of domestic legislation applicable to American platforms before such companies are implicated in atrocities elsewhere. For instance, as I suggested here, talks of reforming Section 230 of the Communications Decency Act would be benefitted by discussions on how the safe harbor provision affects users in varying political contexts, which, in turn, can affect U.S. foreign policy.
As the world ruminates on the Facebook Oversight Board’s recent decision on Trump’s de-platforming, the international community must realize that other countries have needed this kind of intervention long before de-platforming became an issue in liberal democracies. As news from Myanmar continues to shock and inspire, it is time to center the lived experience of at-risk populations, caught between a rock and a hard place, in conceptualizing how online speech ought to be governed in an interconnected world. Let’s not wait for democracy – no matter how imperfect – to unravel before noticing the signs.
First published in Just Security on 11 May: https://www.justsecurity.org/76047/beyond-the-coup-in-myanmar-the-other-de-platforming-we-should-have-been-talking-about/
May 9, 2021 | News
Southeast Asian governments must diminish the misuse of lawsuits to harass and silence civil society, so-called SLAPP suites, said more than 70 international experts, judges, public prosecutors, lawyers, members of civil society organizations, academics, and members of executive and State institutions from Indonesia, Malaysia, the Philippines, and Thailand at a discussion convened by the ICJ and partners on 7 and 8 May.
The participants at the regional dialogue on “The Role of Administration of Judicial Authorities and Legislators in the Fight against Strategic Lawsuits Against Public Participation (SLAPPs) in Southeast Asia” addressed the proliferation of SLAPP suits, which SLAPP suits are undertaken with the principal objective of curtailing or deterring public criticism or opposition to certain activities by the entity initiating the legal action. SLAPP lawsuits typically have a “chilling effect” on the exercise of freedom of expression and other human rights and fundamental freedoms, including freedom of opinion and expression (article 19 of the International Covenant on Civil and Political Rights); freedom of peaceful assembly (article 21); and the right to take part in the conduct of public affairs (article 25).
Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression, stated that it is necessary to bring exiting laws in compliance with international law and standards, including with the principles of legality, proportionate, necessity, legitimate purpose, and non-discrimination, and called for defamation laws to be decriminalized.
Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises, referred to several anti-SLAPP provisions that, in his view, are inadequate, including section 161/1 and 165/2 of Thailand’s Criminal Procedure Code. He pointed out that while the legal reform needed, States also need to train relevant stakeholders who will make use of these. Internal or soft guidance can also be a helpful guideline on how to exercise discretion, and more resources should be allocated to raise awareness.
Several participants, while noting their duties to protect rights to access to justice and the power imbalance between the parties in SLAPP lawsuits, called for a robust legal frameworks and policies that prevent the filing SLAPPs in the first place and allow relevant authorities to identify, call out and dismiss them as soon as they are filed.
In the jurisdictions where such mechanisms exist, participants highlighted the need to address certain gaps to allow authorities to promptly and effectively exercise their power, and the importance of guidelines that can guide the relevant authorities on how to handle and proceed with SLAPPs in a coordinated effort to raise awareness among justice sector actors on this topic.
In the absence of a specific Anti-SLAPP legislation, participants also shared their experience using existing tools in their domestic laws as a basis in combating SLAPPs, including several provisions of the constitutions, other early dismissal mechanism provided in procedural laws, provisions under international laws, and encouraged their peers to think out of the box.
Reforming individual causes of action that commonly form the basis of SLAPPs, such as defamation, to ensure their compliance with international law and standards were also discussed by participants as another approach that the governments should consider, in combination with other measures.
Remedies for persons negatively affected by SLAPP lawsuits were encouraged.
The Workshop was conducted in collaboration with Business & Human Rights Resource Centre (BHRRC); Philippine Judicial Academy; the Supreme Court of the Republic of the Philippines; Lembaga Kajian dan Advokasi Independensi Peradilan (Indonesian Institute for Independent Judiciary or LeiP); Human Rights Commission of Malaysia (SUHAKAM) and AmerBON Advocates.
The speakers at the workshop were: representatives of all partner organizations; Nikhil Dutta, Global Programs Legal Advisor of the International Center for Not-for-Profit Law (ICNL); Joel Hernández García, Inter-American Commission on Human Rights’ Rapporteur on the Rights of Human Rights Defenders and Justice Operators; Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression; and Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises.
