Dec 17, 2015 | News, Publications, Reports
With the signing of the political agreement on a national unity government today, the next step in Libya’s transition will be to ensure that its new Constitution fully conforms to international rule of law and human rights standards, the ICJ said today.
The statement came as the ICJ released its new report The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws.
In the report, the ICJ calls on the Libyan Constitution Drafting Assembly (CDA) to substantially revise the Draft Constitution published in October with a view to ensuring its full compliance with Libya’s obligations under international human rights law and international standards.
Libyan authorities, including the CDA, should also put in place effective mechanisms to ensure that the drafting process is inclusive, participatory, and fully reflects the views of a broad range of stakeholders, including civil society and minority groups.
The report concludes that the Draft Constitution, in many key respects, does not conform to Libya’s obligations under international human rights law or to international rule of law standards.
“The new Constitution provides a crucial opportunity to depart from decades of authoritarianism under Moammar Ghadafi’s regime. It must therefore provide for a strong foundation upon which the rule of law, including the separation of powers, the independence of the judiciary and civilian oversight over military and armed groups, can be established and upheld,” said Said Benarbia, Director of the ICJ MENA programme.
The Draft Constitution should also be amended to provide for a comprehensive set of human rights and protections that fully accord with international human rights law, including provisions relating to non-discrimination, the right to life, the right to liberty and security, the prohibition on torture and other cruel, inhuman or degrading treatment or punishment, protections for minorities, the right to freedom of thought, conscience and religion, fair trial rights, and a range of economic, social and cultural rights.
“The Libyan Constitution must at a minimum conform to the definition and scope of the rights contained within the human rights treaties to which Libya is a state party. Any scope for limitation of rights must conform to the criteria for such limitations under international law and, in particular, only as are provided for by law, are proportionate, and are demonstrably necessary in a free and democratic society,” Benarbia added.
Contact:
Doireann Ansbro, Associate Legal Advisor of the ICJ Middle East and North Africa Programme, tel: +216 71 841 701, email: doireann.ansbro(a)icj.org
Libya-Draft Constitution Flaws Deficiencies-Publications-Reports-2015-ENG (full report in PDF, English)
Libya-Constitution Flaws Report-News-Press releases-2015-ARA (full press release in Arabic, PDF)
Libya-Draft Constitution Flaws Deficiencies-Publications-Reports-2015-ARA (full report in PDF, Arabic)
Sep 1, 2015 | News
Nepal’s Constituent Assembly must ensure that the new Constitution Bill contains strong and effective protections for all human rights in accordance with Nepal’s international legal obligations, said the ICJ today.
The Constituent Assembly endorsed a Constitutional Bill last week.
As per the CA Rules of Procedure, CA members have until 5 September to submit proposals for amendments.
“This draft includes some improvements from earlier versions, but it needs serious revisions to meet international standards regarding human rights protections,” said Nikhil Narayan, ICJ Senior Legal Adviser for South Asia.
“As an immediate matter, the Constituent Assembly must extend the 5 September deadline, and provide adequate time for public consultation and discussion of this essential legal text,” he added.
The ICJ released a detailed briefing paper in July 2015 analyzing provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations.
The ICJ also highlighted the non-inclusive and non-representative nature of the constitution-making process.
Many of those concerns still remain and must be addressed urgently, including:
- Non-citizens are excluded from key rights and protections. For example, Articles 18 (right to equality), 25 (right to property), 27 (right to information), 31 (right to education), 33 (right to employment), 35 (right to health), 36 (right to food), 37 (right to housing), and 43 (right to social security) are all restricted to citizens. These protections must be extended to all persons under Nepal’s jurisdiction, not only citizens, in accordance with Nepal’s international obligations;
- The right to gender equality under women’s rights (particularly in article 38) is not adequately protected. For example, the Constitution should include explicit guarantees for equal pay for work of equal value, and prohibit multiple, intersecting grounds of discrimination on basis of gender and sexual orientation, caste, religion, etc;
- Key economic, social and cultural rights – including in articles 33 and 34 (employment and labour), 35 (health), 37 (housing), and 43 (social security) – are not adequately protected;
- Restrictions and limitations on the rights to freedom of expression, association, assembly, movement, information and press freedom, are broad and vague and do not conform with international human rights standards (including articles 17 and 19 and 27);
- Provisions on remedy for human rights violations (articles 46 and 47) are inadequate;
- Provisions regarding the impeachment of judges (articles 101, 130 and 131) and composition of the Judicial Council (as in article 153, responsible for the appointment, disciplining and dismissal of judges) fail to safeguard judicial independence;
- Provisions on emergencies and consequent restriction of rights are overbroad (as in article 268(10)).
The ICJ noted some improvements in the current draft, such as:
- Making any person whose father or mother is a Nepali citizen eligible for citizenship through descent. Previous drafts required both parents to be Nepali citizens;
- Guaranteeing a broader range of women’s rights, including the right to reproductive health;
- Revising the understanding of victim’s rights to ensure that victims of crime are entitled to “justice including compensation and restitution”;
- Adding more rights to the list of those designated as non-derogable rights during emergencies – including the right to social justice (as contained in article 42 of the Constitution Bill, which amongst other things, guarantees the rights of marginalized groups to participate “in the state structure and public service on the basis of principle of proportional inclusion”), and the rights of dalits (as contained in article 40 of the Constitution Bill, which contains guarantees of equality and non-discrimination).
“While these amendments are welcome, more revisions are necessary,” said Narayan. “The CA must ensure that the constitution-making process is participatory and inclusive. It should provide enough time and opportunities to make necessary amendments and produce a Constitution that fully ensures human rights protections and judicial independence.”
Nepal’s major political parties have stated publicly that they hope to have the Constitution finalized and enacted in mid-September.
However, many political parities and communities have been protesting against the Constitution since the introduction of the new Bill.
On 9 August, three protestors were killed when police fired at protestors violating curfew in Birendranagar, Surkhet.
One protestor was killed and five others were injured when police opened fire during a strike on 18 August.
On 24 August, eight police officers were killed during protests in Kailali district, and over 40 members of the security forces were badly injured.
“The deadly violence that has accompanied escalating protests across Nepal against this Draft is a warning about the high stakes for the drafters of the Constitution,” said Narayan. “The new Constitution should be the platform for bringing the country together after years of conflict, not serve as a new cause for discontent and insecurity.”
The ICJ called on the government of Nepal to conduct prompt, impartial and thorough investigations into all protest-related deaths and injuries.
Where unlawful conduct is established, including by members of the security forces, those responsible must be brought to justice.
Contact:
Nikhil Narayan, Nepal Head of Office and ICJ Senior Legal Adviser, t: +977 9813187821, e: nikhil.narayan(a)icj.org
Jun 25, 2015 | News
While welcoming the recent momentum towards finalizing the drafting of a new Constitution, the ICJ said that the Constituent Assembly in Nepal must ensure strong and effective protections for all human rights, consistent with its international human rights obligations.
In addition, they also must ensure that the drafting process is fully inclusive and participatory,
After seven years of political impasse, the devastating earthquake of 25 April 2015 provided Nepali political leaders an opportunity to restore public faith in public authority by reinvigorating the constitutional process.
The country’s four major political parties have now apparently reached agreement on some previously contentious issues and developed a fast-tracked process for the adoption of a new democratic Constitution.
“The horrific earthquake and the government’s response to it has led to a renewed sense of urgency about finalizing and adopting a Constitution that will help create a stable, representative government structure in Nepal consonant with rule of law principles”, Sam Zarifi, ICJ’s Asia director. “The country’s political leaders have a unique responsibility, and opportunity, to adopt a strong, progressive and human rights-compliant constitutional text”.
International law and standards require meaningful public consultation through a transparent and inclusive process. However, the lack of transparency in the current fast-tracked process, combined with the accelerated timeframe, risks undermining people’s ability to participate effectively in the development of the Constitution.
“None of Nepal’s previous Constitutions were the result of meaningful consultation and public participation”, Zarifi said. “The current government must take immediate steps to consult and ensure the participation of all stakeholders, including marginalized groups and minorities”.
The new Constitution must serve to implement the full range of human rights guaranteed under international law. Specifically, while drafting the new constitution, the ICJ urges the Government of Nepal to ensure, among other things, that:
- The new constitution guarantees all of Nepal’s international human rights obligations;
- Permissible limitations on human rights and provisions derogating from rights during emergencies in the new Constitution comply with international human rights laws;
- There is no impunity for gross violations of human rights and serious violations of international humanitarian law committed during the armed conflict, and criminal law is applicable to acts committed at the time;
- The right to effective remedies and reparation for all human rights is recognized;
- Economic, social and cultural rights are recognized as justiciable; and
- Judicial independence is reinforced.
Contact
Nikhil Narayan, ICJ Senior Legal Advisor (Kathmandu), t: +977 9851061167; Email: nikhil.narayan(a)icj.org
Jul 24, 2014 | News
The new interim Constitution unveiled on Tuesday by the National Council for Peace and Order (NCPO) includes several provisions that place the NCPO and its agents above the rule of law, the ICJ said today.
Jun 18, 2014 | News
The ICJ’s Centre for the Independence of Judges and Lawyers (CIJL) has launched the first in a series of Country Profiles, a new online tool on the ICJ’s website.
Profiles on Myanmar, the Russian Federation, South Sudan and Swaziland are being published today.
Tunisia, Venezuela and Honduras will be added in the coming months.
By the end of 2014, all five regions in which the ICJ is active will be represented (Asia-Pacific, Africa, Europe, Latin America, MENA). The CIJL plans to add further countries on an on-going basis, and periodically to update existing profiles.
Each profile summarises information about the independence of judges, lawyers and prosecutors in the country, and assesses the situation against relevant international law and standards.
The profiles aim to provide users, including legal professionals, academics, government officials and human rights defenders, with material in an accessible format which can also be used for further analysis.
The profiles reflect the efforts of the CIJL and other ICJ programmes to monitor the independence and accountability of judges, lawyers and prosecutors in certain countries, particularly those where their independence is threatened or under attack.
Moreover, the profiles provide reference points on the laws and the standards applicable to the independence of judges and lawyers and the administration of justice in each country.
The profiles can be accessed from the ICJ webpage for the Centre for the Independence of Judges and Lawyers.
They are available as an interactive database on the ICJ’s website, and can also be downloaded in PDF format.
