Mar 20, 2020 | News
Today, the ICJ submitted recommendations on strengthening Thailand’s Anti-Strategic Litigation against Public Participation (SLAPP) law to the Ministry of Justice.
The Ministry of Justice is tasked to conduct a “study on the guidelines for development of laws, regulations or measures to prevent SLAPP,” in accordance with Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022) (NAP).
Articles 161/1 and 165/2, which are intended to implement the NAP, entered into force on 20 February 2019 and 21 March 2019. They were introduced to end SLAPP lawsuits or similar forms of harassment through the legal process against any individuals, including human rights defenders. NAP also refers to the power of a public prosecutor under Article 21 of the Public Prosecution Organ and Public Prosecutors Act as another measure to prevent SLAPP lawsuits.
The use of SLAPPs and similar procedures frequently undermine human rights, including freedoms of expression, association and assembly and the right to political participation. These are protected under Thailand’s Constitution and international human rights obligations.
In the letter, the ICJ expressed its concern that these laws were inadequate to prevent harassment through the legal process and SLAPP. The ICJ therefore called for the adoption of a comprehensive stand-alone law, or the amendment of the Civil Procedure Code and the Criminal Procedure Code, to protect human rights defenders and others from harassment through the legal process.
Background
In an effort to give effect to the UN Guiding Principles on Business and Human Rights (UNGPs), on 29 October 2019, Thailand’s Cabinet approved and adopted the First National Action Plan on Business and Human Rights, making Thailand the first country in Asia to adopt the stand-alone NAP.
The NAP sets out plans to be followed by public and private stakeholders to ensure that businesses – from small and medium-sized enterprises to multinational corporations – respect human rights, and that the government fulfils its duty to ensure remedy and reparation in cases of business-related human rights violations.
The Thai government has identified in the NAP its four key priority issues: (1) labour; (2) land, environment and natural resources; (3) human rights defenders; and (4) cross border investment and multi-national enterprises.
NAP has set out several action points aimed at protecting human rights defenders, including:
- to study the guidelines for development of laws, regulations or measures to prevent SLAPP;
- to push for the review, amendment and repeal of relevant laws, mechanisms and protocols to facilitate protection of human rights defenders, for example with respect to witness protection laws;
- to determine or review policies, protocols, procedures and mechanisms to protect human rights defenders, including women human rights defenders, and ensure their safe conditions of work, and to provide trainings for law enforcement agencies to ensure in practice these protection measures;
- to provide trainings for law enforcement officers to widen their knowledge and understanding in enforcing laws on the protection of human rights, for example with respect to the organization of assemblies, and free expression pertaining to human rights, and preventing dishonest lawsuits that attack human rights defenders;
- to provide trainings and enhance capacity of lawyers;
- to urge businesses to ensure that human rights defenders will not be sued merely calling for rights of individuals to be protected;
- to promote the use of reconciliation mechanisms at all levels of the justice system; and
- to increase access to justice of human rights defenders.
However, NAP’s effectiveness is yet to be assessed because it does not have the status of a law, and is merely a resolution by the executive branch of the Thai government. The NAP was adopted in the form of a Cabinet Resolution, which is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999).
Download the letter to the Ministry of Justice in English and Thai.
Further reading
Thailand: ICJ and HRLA express concern about inadequate protections for human rights defenders in draft National Action Plan on Business and Human Rights
Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022)
Mar 4, 2020 | News
Today the ICJ called on the Malaysian authorities to cease investigations of human rights defenders engaging in peaceful protest.
The ICJ further said that the investigations pose a threat to the exercise of the right to expression and peaceful assembly, which is protected under international law and the Malaysian Federal Constitution.
“These investigations have the effect of harassing and intimidating human rights defenders and pro-democracy activists and look worryingly like a new crackdown on dissent,” said Frederick Rawski, ICJ Asia Pacific Director.
Malaysian law enforcement authorities have opened investigations against Dato’ Ambiga Sreenevasan, an ICJ Commissioner, and nineteen (19) other individuals including human rights defenders Fadiah Nadwa Fikri, Dobby Chew, Amir Abd. Hadi and Nalini Elumalai. They are being investigated for violations of the deeply problematic Sedition Act 1948 and the Peaceful Assembly Act 2012, in connection with wholly peaceful gatherings held over the past few days that were called attention to the recent, sudden political changes in Malaysia.
The ICJ raised concerns that the laws pursuant to which the investigations are being conducted are inconsistent with international and constitutional human rights law and standards. The Peaceful Assembly Act 2012 imposes onerous requirements to organize a peaceful assembly. Meanwhile, the Sedition Act 1948 contains wide, overbroad definitions of what amounts to a ‘seditious tendency’, placing critical voices at risk.
“International law protects the right to hold peaceful assemblies, with limited exceptions not applicable here,” said Emerlynne Gil, ICJ Senior International Legal Adviser. “The ICJ has repeatedly called on Malaysia to abolish these laws, which impose unjustifiably burdensome restrictions and disproportionate penalties on the exercise of freedom of expression and assembly.”
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association and other international legal authorities has also said that while some regulation can be appropriate concerning places of protest, “no authorization should be required to assemble peacefully.”
Previous governments have promised to abolish the Sedition Act, including the Pakatan Harapan coalition which pledged to scrap both the Sedition Act and reform the Peaceful Assembly Act as part of their election manifesto in 2018. To date, no such reforms has been undertaken.
The ICJ reiterated its call on the government to abolish the Sedition Act and abolish or reform the Peaceful Assembly Act 2012. The ICJ also called on the Malaysian government to end the use of these laws to harass and investigate persons solely for participation in peaceful protest.
Contact
Emerlynne Gil, Senior International Legal Adviser, International Commission of Jurists, t: +66 2 619 8477 local 203; e: emerlynne.gil(a)icj.org
Background
Malaysian human rights defenders and civil society groups have been organizing peaceful assemblies to express concern over the current political developments. On 2 March 2020, Malaysian police opened investigations into several individuals for alleged violation of the Sedition Act.
Section 4(1) of the Act reads “[a]ny person who… does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have seditious tendency… shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgits or to imprisonment for a term not exceeding three years or to both.”
The Peaceful Assembly Act 2012 sets down onerous requirements that must be met in order to carry out a peaceful assembly, including: restrictions on the right to organize or participate in an assembly (Section 4) which includes non-citizens; requirements for a ten day notice of an assembly to the Officer in Charge of the Police District, failure to do so will be punished by a fine not exceeding ten thousand ringgit (Section 9(5)); and broad restrictions and conditions that may be imposed by the Officer in Charge of the Police District at their discretion (Section 15).
Oct 19, 2019 | Events, News
On 18 October, Scuola Superiore Sant’Anna, Juezas y Jueces para la Democracia and the ICJ held a a closed-door roundtable discussion in Madrid on the impact of the application of counter terrorism legislation on freedom of expression and association: implementing the EU Directive 2017/541 on combating terrorism.
The discussion took place in the framework of the EU funded project “Judges Uniting to Stop Terrorism with International, Constitutional and European law (JUSTICE) project”.
Judges, prosecutors and lawyers from 10 EU countries shared their practices and experiences in the implementation of the EU Directive 2017/541 on combating terrorism and the application of counter-terrorism legislation and its impact on freedom of expression and association, including humanitarian work within the different legal systems of the European Union (EU) Member States.
The discussion covered the offences of glorification of terrorism and apology for terrorism and its different implementation in various jurisdictions and how legal certainty and proportionality can be ensured. The roundtable further focused on the freedom of expression on-line and the impact of the application of counter-terrorism law on freedom of association and legitimate activities, including humanitarian assistance. These practices were be assessed in light of international human rights law principles in order to identify best practices that could be promoted throughout the EU.
This was a third out of four round-tables organized within this project between April and November 2019 by the ICJ and partners.
See the agenda here.
Oct 14, 2019 | Multimedia items, News, Video clips
The conviction today of Catalan separatist leaders of broadly defined offences of sedition unduly restricts rights of freedom of expression, assembly and association, the ICJ said today.
“These convictions represent a serious interference with the exercise of freedom of expression, association and assembly of the leaders. The resort to the law of sedition to restrict the exercise of these rights is unnecessary, disproportionate and ultimately unjustifiable” said Massimo Frigo, ICJ Europe and Central Asia Senior Legal Adviser.
The ICJ also stressed that the overly broad definition of the crime of sedition applied in this case creates a high risk of arbitrariness.
“We are concerned that the Supreme Court does not comply with Spain’s obligations under international human rights law in the consideration of the charges against these defendants and this seriously undermines these convictions,” he added.
Nine of the twelve leaders on trial – including high-ranking Catalan government officials –were convicted of sedition in connection with their part in the administration on 1 October 2017 of a referendum on Catalonian independence. The referendum was conducted despite having been declared illegal by the Constitutional Court.
The voting process during the referendum was forcibly suppressed in many locations by the police, with credible reports of the use of unnecessary and disproportionate force in breach of Spain’s international law obligations.
“Interference with peaceful political expression and protest is not acceptable, save in limited circumstances where it is strictly necessary and proportionate for compelling purposes such as national security .” Frigo said.
Contact
Massimo Frigo, Senior Legal Adviser, ICJ Europe Programme, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
Background
The 12 people convicted in connection with the October 2017 referendum include Oriol Junqueras (13 years of imprisonment for sedition and abuse of power), former Catalan vice-president; Carme Forcadell, former Catalan parliament speaker (11 years and six months of imprisonment for sedition); eight former ministers in the Catalan government – Jordi Turull (12 years of imprisonment for sedition and abuse of power), Raül Romeva (12 years of imprisonment for sedition and abuse of power), Joaquim Forn (10 years and six months of imprisonment for sedition), Santiago Vila (10 months for disobedience), Meritxel Borràs (10 months for disobedience), Dolors Bassa (12 years of imprisonment for sedition and abuse of power), Josep Rull (10 years and six months of imprisonment for sedition), Carles Mundó (10 months for disobedience); Jordi Sànchez (9 years of imprisonment for sedition) the former leader of the Catalan National Assembly (ANC); and Jordi Cuixart (9 years of imprisonment for sedition), former head of the independence organisation Òmnium Cultural.
Spain has obligations to protect freedom of expression, including political expression, under Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR); and freedom of peaceful assembly and association under Article 11 ECHR and Article 21 and 22 ICCPR.
The Human Rights Committee in its General Comment on freedom of expression has affirmed that: “extreme care must be taken by States parties to ensure that treason laws and similar provisions relating to national security, whether described as official secrets or sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict requirements of paragraph 3” of article 19 ICCPR, which requires that restrictions on freedom of expression be provided for by law and must be necessary for a legitimate purpose, such as national security or public order .) Rights to participate in public life are protected under Article 25 ICCPR.
Sep 27, 2019 | News
The ICJ today called on the Egyptian authorities to respect and protect the right of Egyptians to the freedom of expression, association and assembly, and ensure that all those arbitrarily detained over the past week in the context of recent protests against President Abdel Fattah Al-Sisi’s rule are immediately and unconditionally released.
On 26 September, the Office of the Public Prosecutor issued a statement confirming the detention of more than 1000 people following their “participation in protests” and “confessions” that their participation is related to “their dissatisfaction with the economic situation in the country,” and “opposition to the regime.”
Documentation by local NGOs indicates that as many as 2000 people may have been arrested, and that most of them were charged with “belonging to a ‘terrorist group’ and “distributing false information through social media aiming at disturbing the public order and opinion.”
“Egyptians taking to the street in protest are defying six years of Sisi’s government rampant corruption, relentless repression, and systematic dismantling of the rule of law and accountability safeguards,” said Said Benarbia, ICJ MENA Director.
Benarbia added, “By filling prisons with those purportedly dissatisfied with the situation in the country, Egypt’s prosecutors and judges are acting, yet again, as a docile tool of repression rather than a shield against the military’s crackdown on human rights and fundamental freedoms.”
As the country braces for new protests today, the ICJ is deeply concerned that Egyptian laws place overly restrictive limitations on the exercise of the right to freedom of assembly and give security forces sweeping powers to disperse protests, including by using lethal force when it is not strictly necessary to protect lives.
Six years after the killing by the armed and security forces of more than 1,000 individuals in the context of the dispersal of the Rabaa’ Al-Adawyia and Al Nahda Square sit-ins, the ICJ notes that not a single person has been brought to justice for the mass killings of protestors.
“Egyptian security and armed forces have a long history of recourse to unlawful and disproportionate use of force, including firing with live ammunition into crowds,” said Benarbia.
“They must comply with Egypt’s obligations under international law and guarantee the rights of protesters to life, to be free from torture and other ill-treatment, and to freedom of assembly, association and expression,” added Benarbia.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Download:
Egypt-free detainees-News-Press releases-2019-ARA (press release in Arabic, PDF)
