Mar 28, 2016 | News
The ICJ today calls for the reversal of the Supreme Disciplinary Board’s decisions to force into retirement 47 judges following two separate, mass proceedings known as the “July 2013 Statement Case” and the “Judges for Egypt Case”, which concern over 60 judges.
Today’s final decision in the “July 2013 Statement Case” forcibly removed 32 judges from their offices.
It comes after all of the 15 judges referred to disciplinary proceedings in the “Judges for Egypt” were forcibly removed from their offices last Monday.
In a third case on 7 March 2016, the Disciplinary Board removed from office Zakaria Abdel Aziz, a former President of the Judges Club (Egypt’s representative body of judges) and a leading advocate of judicial independence.
“The intensity of Egypt’s attacks against individual judges is reaching a frightening level,” said Said Benarbia.
“By removing judges from the office following mass, arbitrary and unfair disciplinary proceedings, the authorities are purging from the judiciary the very voices that have promoted its independence, and sending a chilling message to others who might challenge the ongoing crackdown on fundamental rights and freedoms in Egypt,” he added.
The ICJ had previously raised concerns about fairness of these proceedings as well as the nature of the charges against the concerned judges.
In the “July 2013 Statement Case” and the “Judges for Egypt Case,” the Disciplinary Board found that the judges had been involved in politics and were therefore “unfit” to carry out their functions.
Article 73 of Egypt’s Judicial Authority Law prohibits judges from engaging in “political activity”.
This prohibition was interpreted by the Disciplinary Board to include “discussing or commenting on legislative and governmental decisions as long as it does not pertain to a case that he [the judge] is looking into as part of his judicial function”.
The ICJ considers that the interpretation by the Disciplinary Board could result in arbitrary limitations to the judges’ right to freedom of expression, assembly and association, well beyond any restrictions that could possibly be justified as necessary to preserve the dignity of their office and the impartiality and independence of the judiciary.
Furthermore, these disciplinary proceedings have failed to meet international standards of fairness, the ICJ says.
The Geneva-based organization previously highlighted procedural flaws in the proceedings against the judges such as failure to be notified properly, to be represented before the Board and to be provided with adequate time and facility to prepare a defense.
“The Egyptian authorities must reinstate all judges that have been removed from their office as a result of unfair and arbitrary proceedings”, said Benarbia.
“Furthermore, they must amend the Judicial Authority Law to ensure that disciplinary offences are clearly and precisely defined within the law; that the exercise of the rights to freedom of expression, association and assembly in a manner consistent with the dignity of the office and the impartiality and independence of the judiciary does not constitute a disciplinary offence; and that the disciplinary procedure is fair and does not undermine the independence and impartiality of the judiciary,” he added.
Contact:
Nader Diab, Associate Legal Adviser of the ICJ Middle East and North Africa Programme, t: +216 51727023; e: nader.diab(a)icj.org
Background
The UN Basic Principles on the Independence of the Judiciary, which were adopted by the UN in 1985 and elaborate on states’ obligations under international law, include the following provisions:
- In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
- Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence. (…)
- A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
- Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
- All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
- Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
Egypt- removal of judges-press release-2016-ARA (full text, Arabic, in PDF)
Mar 21, 2016 | News
The Maldives must stop undermining the independence and integrity of the judiciary through arbitrary and politically motivated actions against judges, the ICJ said today.
“The ICJ visited the Maldives last month for the second time in a year, and we were dismayed to see that the Maldives government has continued to erode the rule of law and weaken the independence of the judiciary,” said Nikhil Narayan, ICJ’s Senior Legal Adviser for South Asia.
“The government must immediately stop targeting judges and other public officials with arbitrary criminal proceedings, threats, intimidation and harassment,” he added.
On 7 February, Magistrate Judge Ahmed Nihan was arrested, along with former Prosecutor General and former Criminal Court Judge Muhthaz Muhsin, in connection with an alleged ‘forged’ arrest warrant against President Yameen.
“The arrest of a judge for issuing a warrant, a function which is well within the ordinary powers and responsibilities of the judiciary, clearly violates basic principles of judicial independence,” Narayan further said. “The fact that the alleged warrant was against the President further suggests that Judge Nihan’s arrest was politically motivated.”
“Moreover, the severity of a charge of ‘terrorism’ for such an act, even if taken at face value, cannot reasonably be viewed as proportionate to the alleged offense,” he added.
On 16 March, more than a month after his arrest, Judge Nihan was charged under sections 4(a)(1)-(2) and 5(a)(2) of the Prevention of Terrorism Act, for attempting to unduly influence the state, attempting to create fear among the public, and attempting to forcefully disappear or hold a person hostage.
The Constitution of the Maldives does not provide immunity for the president from criminal accountability even while still in office.
The ICJ was also concerned to find during its visit that Maldivian authorities have continued to undermine the independence of the judiciary by using the threat of transfer or removal of judges as a tactic of political retribution, harassment and intimidation.
On 14 February, former Criminal Court Chief Judge Abdullah Mohamed was abruptly transferred from the Criminal Court to the Family Court following a sudden and late night meeting of the Judicial Service Commission (JSC), without being given an opportunity to appear on his own behalf during the meeting.
While the JSC has given no reasons for its decision, lawyers, human rights defenders and former government officials with whom the ICJ spoke suggested that the transfer had been taken in retaliation for Judge Abdullah’s failure to remand former Prosecutor General Muhsin following his arrest.
It was also suggested by those interviewed that a further motivation for the transfer was to ensure that Judge Abdullah could not indirectly influence the three-judge bench hearing the former Vice President’s criminal case in favor of the defendant. Judge Abdullah was reported to have close ties with both defendants.
In June 2015, Judge Azmiralda Zahir, one of only three female judges in the entire Maldivian judiciary and the only woman on the High Court, was arbitrarily and unexpectedly transferred by the Supreme Court from the Malé appellate bench to the southern regional bench, a transfer that amounts to a demotion, without formal notice or opportunity to challenge her transfer.
The Supreme Court has neither established clear criteria for its decision-making process in such matters nor informed Judge Zahir of the reasons for her transfer, of which she learned through media reports, despite repeated requests by her to both the Supreme Court as well as the JSC, the ICJ says.
“President Yameen’s government must quickly take genuine steps to restore the rule of law, strengthen the independence and integrity of the judiciary and restart the democratic transition process,” said Narayan.
Contact:
Nikhil Narayan, ICJ Senior Legal Adviser for South Asia, t: +977 9813187821 ; e: nikhil.narayan(a)icj.org
Read also:
Maldives: political crisis erodes rule of law and human rights
Maldives: arrest of Judge Ahmed Nihan further erodes judicial independence
Mar 21, 2016 | News
Thailand’s National Council for Peace and Order (NCPO) must end its interference in the elections of the president and committee members of the Lawyers Council of Thailand (LCT), the ICJ and Thai Lawyers for Human Rights (TLHR), said today.
The LCT in turn must ensure the elections are conducted in a fair and impartial manner.
“International standards explicitly prohibit external interference in the elections of the executive body of a lawyers’ professional association by its members, and the association’s leadership must ensure that such elections are conducted in a fair and impartial manner” said Matt Pollard, the Head of the ICJ’s Centre for the Independence of Judges and Lawyers. “Ensuring the independence and democratic representation of the legal profession is essential to safeguarding human rights and the rule of law, especially in the current circumstances of military rule in Thailand.”
On 29 February 2016, Mr Wichien Choobtaisong, a representative of the electoral group of the current LCT President, Mr. Dej-udom Krairit, wrote to the NCPO “seeking permission” to hold meetings and campaigns for the LCT’s regularly-scheduled elections, referring to the NCPO’s ban on political gatherings of more than five persons.
On 16 March 2016, the NCPO replied, stating that the elections “contradict” the ban on political gatherings, which “must apply equally to all groups and sectors in the interest of maintaining national security during the transition period,” and taking the position that that the elections must accordingly be postponed with the current committee continuing its term until elections are held. The NCPO’s reply also notes it received a letter from the LCT on 14 December 2015, which the ICJ and TLHR have not seen.
In its letter, the NCPO referred to NCPO Announcement 7/2014, which bans the political gathering of more than five persons (Announcement 7/2014 was later replaced by Order 3/2015). The ICJ reiterates that these arbitrary and unjustified orders and announcements should be repealed, and calls on the NCPO, in any event, to immediately withdraw its letter of 16 March, replacing it with written confirmation that the LCT elections will be able to proceed as scheduled, without external interference.
The LCT must then put in place procedures to ensure the elections proceed as scheduled and in a fair and impartial manner.
“Since the military took power, we have seen a marked increase in the number of individuals requiring legal aid for sensitive and political cases,” said Yaowalak Anuphan, the Head of TLHR and member of the LCT. “In this environment, it is even more essential that the Lawyers Council of Thailand is able to exercise its functions without external interference and that everyone has effective and equal access to the legal services of lawyers.”
Contacts
In Bangkok: Kingsley Abbott, International Legal Adviser for Southeast Asia, t +66 94 470 1345 ; e: kingsley.abbott(a)icj.org
In Geneva: Matt Pollard, ICJ Senior Legal Adviser, t: +41 22 979 38 12 ; e: matt.pollard(a)icj.org
Background
The Lawyers Council of Thailand was established in 1957. Its mandate and responsibilities are set out in the Lawyers Council Act 1985.
The objectives of the Council include maintaining the ethics of lawyers, promoting legal education and providing legal assistance.
It also registers lawyers and issues them with licenses to practice law in Thailand. Members of the Council elect the president and committee members every three years.
Article 24 of the Basic Principles on the Role of Lawyers, adopted by the UN in 1990, sets out that: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.
The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Among other things, the UN Basic Principles also affirm that ensuring all persons have effective access to legal services provided by an independent legal profession is essential for adequate protection of human rights and fundamental freedoms.
They note the vital role of professional associations of lawyers including in protecting their members from persecution and improper restrictions and infringements. The Basic Principles specify that governments should respect and reflect the provisions of the Basic Principles in their national legislation and practice.
The UN Human Rights Committee has applied the Basic Principles as a necessary component of the right to a fair trial guaranteed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State Party.
The UN Committee will review Thailand’s compliance with the ICCPR at an upcoming meeting.
Thailand-ICJ and TLHR statment on LCT-News-press releasess-2016-THA (full text in Thai, PDF)
Mar 17, 2016 | Advocacy, Non-legal submissions
The ICJ today joined with the International Bar Association’s Human Rights Institute to make an oral statement on judges & lawyers in Myanmar, during the consideration of its Universal Periodic Review outcome by the UN Human Rights Council.
The statement:
“The International Bar Association’s Human Rights Institute (IBAHRI) and the International Commission of Jurists welcome Myanmar’s decision to accept recommendations made at the Universal Periodic Review relating to the administration of justice and the independence of the legal profession and call on the Government of Myanmar to implement the recommendations which it has accepted ‘in principle’ to reform the Bar Council Act to allow for the Bar Council to become a truly independent and self-governing association.
In order to ‘guarantee in law and practice that lawyers and judges can perform their professional functions without improper interference and legally form and join self-governing associations’, we call for the right to join such associations to be enshrined in law, and that the right of the first Independent Lawyers’ Association of Myanmar (ILAM) to register as an association be respected;
In order to ‘define professional legal standards and disciplinary procedures in conformity with the Basic Principles on the Role of Lawyers’, we call upon the government of Myanmar to engage in a consultation process with the legal profession and other stakeholders in relation to the revision of the Bar Council Act. The government should also commit sufficient funds to allow for the funding of the system created by the new Legal Aid Law.
We are encouraged by and support efforts by the Office of the Supreme Court of the Union to draft and implement a Code of Judicial Ethics.
Finally, we urge the Government to improve legal education and continue legal professional development including with regard to international human rights law and the UN human rights mechanisms.
We are glad to provide support in the realisation of these recommendations and will look for collaboration with the Government to that end.”
Feb 24, 2016 | News
The ICJ today called on the Egyptian authorities to put an immediate end to their campaign to muzzle judges through unfair and arbitrary “unfitness” proceedings.
The Disciplinary Board, in hearings that tried dozens of judges at the same time, declared a total of 41 judges “unfit” for judicial office in 2015, forcing them into retirement.
The Supreme Disciplinary Board is currently reviewing these two cases.
The ICJ is concerned that many of the judges that have been subjected to these proceedings are leading advocates for judicial independence in Egypt and that the proceedings before both the Disciplinary Board and the Supreme Disciplinary Board were not fair.
Further, the cases stem from the judges’ exercise of freedom of association, belief, assembly and expression, and it appears that the Disciplinary Boards did not act in accordance with relevant international standards in this regard.
”Ending judges’ tenure following mass proceedings that are both arbitrary and unfair is inconsistent with Egypt’s obligations under international law,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“With these assaults on individual judges, the Egyptian authorities are ensuring that their ongoing, sustained crackdown on fundamental rights and freedoms is extended to the very institution that is supposed to protect such rights and freedoms- the judiciary,” he added.
In the “July 2013 Statement Case”, 56 judges were subjected to disciplinary proceedings, following the Military seizure of power in July 2013, for endorsing a statement that called for the 2012 Constitution to be restored, for a dialogue between all stakeholders to be established within the framework of constitutional legitimacy, and for the right to peaceful demonstration to be respected.
The ICJ considers the statement to have been made consistent with the judges’ right to freedom of expression and association, exercised in a manner that preserved the dignity of their office and the impartiality and independence of the judiciary.
However, on 14 March 2015, the Disciplinary Board found that 31 of the 56 judges were not fit to hold judicial office and in effect removed them from office by forcing them into retirement.
The Board found there was not sufficient evidence that the other 25 judges had in fact endorsed the statement.
The ICJ is concerned that the procedures and hearings before the Disciplinary Board and the Supreme Disciplinary Board have not satisfied international standards of fairness.
In many instances, judges were not adequately notified of the dates of the hearings or of the courtrooms where such hearings took place.
In Egypt, judges facing disciplinary hearings are entitled to have another judge represent them; however, many of the judges were not permitted by Board officials to bring their representative to the hearings, without any reason being given for barring the representative, or because no representative could be secured as a result of fear of reprisals.
Further, many judges were not provided with adequate time and facilities to prepare their defense.
In another case, the “Judges for Egypt Case”, each judge had limited time to make his case before the Board during the hearings, though they were granted the right to submit at the final hearing written pleadings of no more than two pages .
At the final hearing in the case, while the judges waited all day in the Board’s premises, the hearing was held in the absence of all but one of them.
Furthermore, the Board refused to collect the written pleadings without giving any reasons.
On 22 February 2016, after protesting against the adjournment of his hearing, Judge Amir Awad was arrested and placed under detention for four days by the office of the prosecutor.
He is charged with insulting a public employee and forcibly entering his office.
“Both cases have been tainted by failures to ensure the fairness of the proceedings. The Egyptian authorities must nullify all decisions to remove judges resulting from these proceedings and put an immediate end to all forms of intimidation against and persecution of judges,” Benarbia added.
Contact:
Nader Diab, Associate Legal Adviser of the ICJ Middle East and North Africa Programme, t: +216 51727023; e: nader.diab(a)icj.org
Egypt-Attacks against judges-News-Web Stories-2016-ENG (full story in PDF, English)
Egypt-Attacks against judges- Press Release -2016- ARA (full story in PDF, Arabic)
