Jul 1, 2020 | News
On 30 June, the ICJ and five other organizations sent open letters to the Prime Minister of Vietnam and the European Union (EU) calling for the immediate and unconditional release of human rights defenders, Dr. Phạm Chí Dũng, Nguyễn Tường Thụy and Lê Hữu Minh Tuấn.
The ICJ, Boat People SOS, Human Rights Watch, International Federation for Human Rights, VETO! Human Rights Defenders’ Network and Vietnam Committee on Human Rights in their address to the Prime Minister, urged the Vietnamese government to cease all harassment of other activists from the Independent Journalists Association of Vietnam (IJAVN).
In November 2019, Dr. Phạm Chí Dũng, founding member and Chairman of IJAVN, was arrested in Ho Chi Minh City for allegedly “making, storing, distributing or disseminating materials” that “oppose the State” in violation of article 117 of Vietnam’s Penal Code. He has since been held in incommunicado detention.
Following Phạm’s arrest, a number of persons were subjected to various forms of harassment up to and including arrest and prosecution in connection with their IJAVN membership. In May and June 2020, two IJAVN members, journalist Nguyễn Tường Thụy and law student Lê Hữu Minh Tuấn, were arrested in Hanoi and Quang Nam provinces on similar charges.
In their letters, the ICJ and other organizations raised concerns that Phạm had been targeted and arrested for his human rights advocacy. From 2013 till his arrest, Phạm wrote independently on key rights issues in Vietnam, including on freedom of expression, labour rights, detention of human rights defenders, and harassment of independent civil society. In July 2012, he was arbitrarily arrested under charges of “conducting propaganda against the State” and released in February 2013 after months in prison without trial. In 2014, he was prevented by Vietnamese authorities from travelling to Geneva to participate in a United Nations Human Rights Council side-event connected to the Universal Periodic Review of Vietnam, following which his passport was confiscated.
The organizations noted that the arrest and arbitrary detention of Phạm, Nguyễn Tường Thụy and Lê Hữu Minh Tuấn contravened article 19 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to freedom of expression, as they appeared to have been politically motivated to curtail the rights of the three individuals to freely express their opinions and share information relating to domestic affairs.
In a 2019 ICJ report on freedom of expression and information online across Southeast Asia, national security-related provisions in Vietnam’s Penal Code, including article 117, were shown to have often been abused to curtail free speech and access to information online.
The organizations further noted that the prolonged incommunicado detention of Phạm constituted a violation of the prohibition on torture and other ill-treatment, the right to liberty and the right to be treated with dignity under articles 7, 9 and 10 of the ICCPR.
They further called on Vietnam to protect and facilitate the work of human rights defenders in line with the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Human Rights Defenders Declaration).
The letter to the Prime Minister of Vietnam by the ICJ, Human Rights Watch and VETO! Human Rights Defenders’ Network is available here.
The letter to the European Union by the ICJ, Boat People SOS, Human Rights Watch, International Federation for Human Rights, VETO! Human Rights Defenders’ Network and Vietnam Committee on Human Rights is available here.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
ICJ, ‘Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia’, December 2019
Jun 26, 2020 | Cases, News
The ICJ today welcomed the judgment by the Court in the case of Bagirov v. Azerbaijan. It found that the suspension from legal practice and subsequent disbarment of Khalid Bagirov violated his rights to freedom of expression and to respect for private life under Articles 10 and 8 of the European Convention on Human Rights (ECHR).
Khalid Bagirov’s suspension from the practice of law was based on his public criticism of ill-treatment by the police, following the wide media coverage of the death of an individual in police custody. Later he represented the victim as a lawyer in the proceedings.
His subsequent disbarment arose from his remarks about a judge made in the courtroom when representing his client in another high-profile case.
The ICJ intervened in this case as a third party, providing an evaluation of the State’s obligation to protect the right to freedom of expression of lawyers in light of international standards on independence of the lawyers and the consequences of disciplinary proceedings for lawyers’ rights under Articles 8 and 10 ECHR.
The ICJ calls on the Azerbaijani authorities to fully and promptly implement the judgment, including by taking steps to restore Khalid Bagirov as a member of the Azerbaijan Bar Association.
“Khalid Bagirov must now be reinstated as a lawyer and be allowed to resume his legal practice in Azerbaijan,” said Massimo Frigo, ICJ Senior Legal Adviser.
“But in addition, this judgment shows that measures need to be taken to address the systemic problem of unjustified disbarments of lawyers who seek to defend human rights in Azerbaijan. Reforms are needed to ensure that the disciplinary process is independent and fair and that penalties are proportionate.”
In its judgment of 25 June 2020, the Court held under Article 10 of the Convention that the reasons given by the domestic courts in support of Khalid Bagirov’s disbarment were not relevant and sufficient, and that the sanction imposed on him was disproportionate to the legitimate aim pursued, having highlighted that “the disbarment cannot but be regarded as a harsh sanction, capable of having a chilling effect on the performance by lawyers of their duties as defence counsel”.
In relation to Article 8 ECHR, the Court further noted that “…in a series of cases it has noted a pattern of arbitrary arrest, detention or other measures taken in respect of government critics, civil society activists and human rights defenders … Against this background, the Court underlines that, notwithstanding the duties, in particular, with respect to their conduct, with which all lawyers must comply, the alleged need in a democratic society for a sanction of disbarment of a lawyer in circumstances such as this would need to be supported by particularly weighty reasons” which had not been established in this case.
In respect of the suspension of the lawyer, the Government contended that the interference with Mr Bagirov’s rights to private life and freedom of expression had been prescribed by law and pursued the legitimate aims of preventing the disclosure of information received in confidence or maintaining the authority and impartiality of the judiciary.
The Court found that, he was not the victim’s lawyer when he made the impugned statements about the police, furthermore, the Court mentioned that it did not find any provision of domestic law preventing a lawyer from calling for peaceful protests against police brutality for the purpose of preventing violence.
The Court further found that while Mr Bagirov’s remarks, about a judge’s lack of capacity, were capable of being offensive, the sanction imposed on him did not struck a fair balance between the need to protect the authority of the judiciary and the need to protect his rights to private life and freedom of expression.
In this connection, the Court stated that inter alia, Mr Bagirov had confined himself to making a statement in a courtroom as a lawyer, in the context of his objections to the shortcomings of the proceedings.
Background
In addition to its intervention in Bhagirov v Azerbaijan, the ICJ has also intervened as a third party in other cases of lawyers from Azerbaijan (Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 54, 19 April 2018).
In 2019, the ICJ published recommendations to the Azerbaijan Bar Association on the role and independence of Lawyers,
In 2016, the ICJ published a mission report Defenceless Defenders: Systemic Problems in the Legal Profession of Azerbaijan
Jun 20, 2020 | News
As the general internet shutdown in Rakhine and Chin states reaches one year, the ICJ repeated its call for the Myanmar Government to end mobile internet restrictions and temporarily halt hostilities with the Arakan Army.
The ICJ also called for an amendment of Section 77 of the Telecommunications Act, pursuant to which the government can order telecommunications providers to suspend internet services.
“The internet shutdown in Rakhine and Chin states stifles freedom of expression, prevents information-sharing, and exacerbates the plight of affected communities by impeding humanitarian and health access during a global pandemic,” said Frederick Rawski, ICJ Asia-Pacific Director. “Such a drastic measure is disproportionate and unnecessary. The government should focus on fighting COVID-19, instead of waging a battle against its own population.
The shutdown was first imposed on 21 June 2019 by the Ministry of Transport and Communications (MOTC), purportedly to facilitate government objectives in the armed conflict with the Arakan Army.
Section 77 of the Telecommunications Law authorizes the the MOTC to “direct the licensee to suspend a Telecommunications Service, to intercept, not to operate any specific form of communication, to obtain necessary information and communications, and to temporarily control the Telecommunications Service and Telecommunications Equipments” in the event of an “emergency situation” for the “public interest.” However, the law does not define the scope of an “emergency situation.” The ICJ previously described Section 77 to be vague, and warned of abuse by authorities in the absence of independent judicial oversight by civilian courts.
In April, as Myanmar encountered its initial cases of COVID-19, the ICJ highlighted how arbitrary and unnecessary online media restrictions not only violate a person’s right to freedom of expression and information, but also deny access by affected communities to essential health information. Access to health information is a component of the right to health protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Myanmar is a party.
“The internet shutdown effectively deprives large swathes of the population in ethnic minority states of the benefits of government services, and information about its COVID-19 response,” said Frederick Rawski. “Such a blanket internet shutdown is not necessary for reasons of national security, and undermines the government’s own public health efforts.”
The ICJ recalled that the ICESCR requires States to observe the principle of non-discrimination in enacting measures to protect the right to health. The internet shutdown clearly has a disproportionately adverse impact on the human rights of members of ethnic minorities.
Despite appeals from UN officials, rights groups, ethnic armed organizations, and ambassadors to Myanmar, the Myanmar Government still refuses to hold a ceasefire throughout the country, including areas of Rakhine and Chin states where the Arakan Army operates. The conflict has resulted in deaths, many from unlawful killings, as well as serious physical and emotional injury, and mass displacement of persons.
Download
Myanmar-Internet-Shutdown-Press-Release-2020-BUR (PDF)
Contact
Frederick Rawski, ICJ Asia-Pacific Regional Director, e: Frederick.rawski(a)icj.org
Related work
Publication: Myanmar’s ongoing Internet shutdown and hostilities threaten right to health during COVID-19
Statement: Government must lift online restrictions in conflict-affected areas to ensure access to information during COVID-19 pandemic
Report: Curtailing the Right to Freedom of Expression and Information in Myanmar
Jun 16, 2020 | News
Today, the ICJ condemned the prosecution and conviction of journalists Maria Ressa and Reynaldo Santos, Jr. after the Manila Regional Trial Court found them guilty of cyber-libel for an article published on the news website Rappler. The ICJ called for the judgment to be reversed on appeal.
The ICJ also called on the Philippines to reform its laws to remove the possibility of criminal sanction for defamation and libel offenses, in line with its international legal obligations. The ICJ recalled that imprisonment for such offenses is never permissible.
“The guilty verdict is a new low for the Duterte administration, and adds to an atmosphere of intimidation that creates a chilling effect on online expression, especially for journalists seeking to hold the government to account,” said Frederick Rawski, ICJ Asia-Pacific Director.
“The conviction is not only a miscarriage of justice in this particular case; it also sets a terrible precedent for the use of criminal defamation laws to prosecute speech online in the Philippines and elsewhere in the region.”
Ressa and Santos were convicted pursuant to Section 4(c)(4) of the 2012 Cybercrime Prevention Act (CPA), and sentenced to imprisonment of up to six years and a fine of PhP 200,000 (approx. USD 4,000). Ressa is the executive editor of Rappler while Santos was the author of the article. Ressa’s conviction comes after years of legal harassment, forming part of a pattern of attacks upon the press by the Duterte government and placing the Philippines in violation of the right to freedom of expression under the International Covenant on Civil and Political Rights (ICCPR), to which the Philippines is a party.
The charges involved an article first published in May 2012 on the Rappler website, months before the CPA was enacted in September 2012. The article reported on businessman Wilfredo Keng’s alleged involvement in “human trafficking and drug smuggling.” Keng initiated the criminal proceedings against Ressa and Santos in October 2017, five years after the article was published.
However, the trial court considered the article to have been “republished” on 19 February 2014 when Rappler updated the article on its website to fix a typographical error. Further, since the CPA does not expressly mention the prescriptive period, the trial court held that Republic Act No. 3326 applies, which provides a 12-year prescriptive period for offenses punished under a ‘special law’ such as the CPA. In contrast, ordinary libel under the Revised Penal Code carries a one-year prescriptive period.
“Regardless of the merits of the case, criminal sanction involving imprisonment must never be imposed for defamation,” said Rawski.
“On top of this general consideration, the judgment even sets a dangerous precedent by expanding the prescriptive period and ‘publication’ requirement for the crime of libel, contradicting well-established protections against ex post facto laws and that any ambiguity in penal laws must be resolved in favor of the accused.”
The right to freedom of expression under Article 19 of the ICCPR extends to political discourse, commentary on public affairs and journalism. The UN Human Rights Committee, the supervisory body for the ICCPR, has called on States to abolish existing criminal defamation laws and reserve defamation for civil liability. The Committee concluded in 2012 that the Philippines’ criminalization of defamation, including under the CPA, breaches its obligations under the ICCPR. Article 15 of the ICCPR also prohibits the prosecution of persons for acts that were not considered a crime at the time of commission.
The Committee and the UN Human Rights Council have affirmed that these safeguards apply online as well as offline, as Article 19 protects expression regardless of frontiers and through any media of one’s choice. The UN Special Rapporteur on freedom of expression has consistently called for decriminalization of defamation as a criminal offence, which is inherently harsh and encourages self-censorship.
Contact
Emerlynne Gil, Senior International Legal Adviser, +662 619 8477 (ext. 206), emerlynne.gil(a)icj.org
Download
Philippines-Maria-Ressa-Press-Release-2020-ENG (PDF)
Related work
Report: Curtailing Free Expression, Opinion and Information Online in Southeast Asia
Philippines: order to major media outlet to stop airing violates freedom of expression and access to information
May 26, 2020 | News
The ICJ today expressed its grave concern over the National People’s Congress (NPC)’s draft Decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region (HKSAR) to safeguard national security (“the Decision“).
The ICJ called upon the NPC to withdraw the Decision and to protect human rights, including freedom of expression and association, in accordance with its international human rights obligations and its longstanding commitment to respect the right to political participation of the people of Hong Kong.
The call comes after the NPC presented a decision at the third annual session of the 13th NPC on 22 May, 2020 which paves the way for legislation that would, “prevent, stop and punish any act occurring in the HKSAR to split the country, subvert state power, organize and carry out terrorist activities and other behaviours that seriously endanger national security as well as activities of foreign and external forces to interfere in the affairs of the HKSAR” and would allow the central government to set up “security organs” in the territory.
The ICJ stressed that while the precise contents of the proposed National Security Law have not been publicized, the language of the Draft Decision is troubling given how categories of “terrorist activities” and “subversion” have been abused in the past.
“There is a well-substantiated fear that the new security law will be used to suppress freedom of expression and curtail the activities of human rights defender in violation of the rights of the people of Hong Kong guaranteed under its Basic Law and international human rights standards,” said Frederick Rawski, Asia & the Pacific Director of the ICJ. “We have already witnessed, many times over, how other deeply flawed laws like the Public Order Ordinance, have been abused to criminally charge peaceful protesters.”
It is expected that the NPC’s Decision will be added to Annex III of the Basic Law. Under the Article 18 of the Basic Law, Chinese national legislation only has effect in Hong Kong if it is listed in Annex III of the Basic Law and related to defence, foreign affairs or other matters outside the limits of the HKSAR’s autonomy. Once added to Annex III, the law can be promulgated by the Hong Kong Chief Executive by issuing a legal notice in the Government Gazette.
In 2003, the HKSAR government attempted and failed to enact a similar national security bill, after an estimated half a million people took to the streets to oppose the legislation.
“It is especially alarming that the central government has decided to take such a top-down, and anti-democratic approach to imposing this law by bypassing Hong Kong’s Legislative Council. There are no winners from such an approach, which will provoke a massive public response and a return to the unlawful use of force by the police,” said Rawski.
The ICJ stressed that legislation that seeks to address genuine national security concerns must comply with rights protections in the Basic Law, the International Covenant on Civil and Political Rights (ICCPR), which is applicable to Hong Kong, and other international human rights standards and should be subject to genuine public consultation and debate.
The NPC is expected to vote on the resolution at the end of the annual session, likely on May 28, 2020. The NPC decision will delegate the Standing Committee to draft the actual details of the new legislation for Hong Kong, which would then be included in Annex III of Hong Kong’s Basic Law. The new law will be introduced in Hong Kong through either promulgation or local legislation.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director, t: +66 2 619 84 77; e: frederick.rawski(a)icj.org
Boram Jang, ICJ Legal Adviser, Asia & the Pacific Programme, e: boram.jang(a)icj.org
See also
Joint Statement: Hong Kong arrests of pro-democracy figures condemned by international legal community
China (Hong Kong): Authorities must protect right of peaceful assembly and end legal harassment of activists and journalists
China (Hong Kong): ensure police do not use excessive force against protesters
