Mar 20, 2014 | News
The ICJ today called on the Ukrainian authorities to discontinue criminal prosecutions and dismissals of Constitutional Court judges.
These measures, which came at a time of crisis in the country, were taken due to disagreement with a ruling made by the judges in 2010.
The measures interfere with the independence of the judiciary, and are inconsistent with the principle of separation of powers and respect for the rule of law.
Wilder Tayler, ICJ Secretary General underscored that “In times of crisis the stability and continuity of the judiciary is essential. Judges should not be subject to arbitrary removal, individually or collectively, by the executive, legislative or judicial branches”.
On 24 February 2014, the Verkhovna Rada, the Parliament of Ukraine, adopted a resolution according to which twelve of the eighteen judges of the Constitutional Court were to be dismissed by the institutions which appointed them.
Five of the judges were dismissed by the Rada itself. The Rada recommended that the Acting President and the Congress of Judges consider dismissing the other seven judges.
On 13 March, the Parliament appointed four new judges of the Constitutional Court.
The grounds for dismissals were breaching the oath of a judge.
Moreover, in accordance with the resolution, the Prosecutor General was assigned by the Parliament to initiate criminal proceedings against those judges who were “guilty of adopting the decision of the Constitutional Court of Ukraine of 30 September 2010 No 20-rp/2010”, which overturned the adoption of the Constitution of 2004.
The Parliament’s resolution against the justices of the Constitutional Court followed the Ukrainian political crisis, which reached its peak on 22 February 2014 after three months of protests and violent clashes, and resulted in a change of government.
“The ICJ is deeply concerned at the dismissal and criminal prosecution of Ukrainian Constitutional Court judges on grounds of their interpretation of the law in judicial decisions” said Wilder Tayler.
“These measures are inconsistent with respect for the independence of the judiciary and the rule of law. It is precisely at moments of transition or crisis, such as Ukraine is now experiencing, that upholding the rule of law and the separation of powers is most critical. Any disciplinary action against judges must respect the independence of the judiciary, be based on established standards of judicial conduct and be taken only following a fair procedure in which the rights of the judge concerned, including to a defence, are respected.”
The ICJ stressed that action taken against the judges of the Constitutional Court is inconsistent with the duties of all branches of the government of Ukraine to respect and protect the independence of the judiciary.
This duty, a fundamental pillar of the rule of law and a fundamental aspect of the principle of separation of powers of the three branches of government, is enshrined in both the European Convention on Human Rights and the International Covenant on Civil and Political Rights, international human rights treaties to which the State is a party.
Furthermore, Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
This requires that judges have jurisdiction over issues of a judicial nature and that judicial decisions by courts must not be subject to revision (Principle 4).
Judges must have guaranteed tenure until a mandatory retirement age or the expiry of their term of office (Principle 12) and can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
The European Court of Human Rights found, in the recent case of Volkov v Ukraine, that dismissal of a judge of the Ukraine Supreme Court through a parliamentary procedure violated the right to a fair hearing under Article 6.1 of the European Convention on Human Rights, since there had been insufficient examination of the merits of the case, and it had not been heard by a tribunal established by law.
Contacts:
Róisin Pillay, Director, Europe Programme, t + 32 273 48 46, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, t + 41 22 979 38 32, temur.shakirov(a)icj.org
Ukraine-dismissal and criminal prosecution of judges-news-2014 (Statement, PDF)
Mar 18, 2014 | News
The ICJ today condemned the arrest and detention on 17 March of prominent human rights lawyer, Thulani Maseko and Nation Magazine editor, Bheki Makhubu.
The ICJ is concerned that Thulani Maseko is being subject to persecution for the legitimate exercise of his professional functions as a lawyer, and that both men appear to be detained for exercising their right to freedom of expression.
The men were arrested after Chief Justice Ramodibedi had issued a warrant for their arrest on charges of “scandalizing the judiciary” and contempt of court.
The charges arise from articles allegedly written by Thulani Maseko and Bheki Makhubu in February and March 2014, in which they questioned circumstances surrounding the arrest of government vehicle inspector, Vincent Gwebu.
The vehicle inspector had been arrested and charged with contempt of court after he had arrested the driver of a High Court Judge.
Thulani Maseko and Makhubu, were jointly charged on 18 March 2014 and remanded to appear on 24 March for a bail hearing.
Their lawyer was not allowed to appear on their behalf, in contravention of international and African regional law and standards guaranteeing the right to be represented by a lawyer in legal proceedings.
The ICJ is also concerned that the accused did not appear in open court, but instead in the Chief Justice’s chamber and were not allowed to apply immediately for bail, also in contravention of international and African regional standards.
The ICJ calls upon the Swazi immediately to release the two men. For as long as they are in detention they must be given access to their lawyers.
For further information contact:
Arnold Tsunga, Arnold.tsunga(a)icj.org, Director, ICJ Africa Regional Programme
Or
Martin Okumu-Masiga, Martin.okumu-masiga(a)icj.org, Deputy Director.
Mar 18, 2014 | News
The arbitrary arrest and detention of prominent human rights defenders is an attempt to silence criticism and divert the spotlight from ongoing abuses, leading global and Asian human rights monitors said today in a joint statement.
The statement was issued by Amnesty International, Forum Asia, Human Rights Watch, the International Crisis Group, and the International Commission of Jurists.
Ruki Fernando of the Colombo-based INFORM and Father Praveen Mahesan, a Catholic priest, were arrested in Kilinochchi on March 16, and are believed to be detained without formal charges under Sri Lanka’s notoriously draconian Prevention of Terrorism Act (PTA).
“The Sri Lankan authorities need to release Fernando and Father Praveen, and end the ongoing state harassment of human rights defenders,” said David Griffiths, Amnesty International’s deputy director for Asia Pacific. “How can the international community take Sri Lanka’s claims to respect rights seriously when rights defenders continue to face intimidation and criminal charges for demanding accountability and human rights protection?”
The police Terrorism Investigation Division (TID) detained and questioned Ruki Fernando and Father Praveen after they sought to ensure the welfare of 13-year-old Balendran Vithushaini, who had been ordered into probationary care following the arrest of her mother, Balendran Jeyakumari, on March 13. Both mother and daughter are active opponents of enforced disappearances in Sri Lanka and have been prominently featured in international media coverage of demonstrations by families of the disappeared, most recently in Jaffna in November 2013 during a visit by British Prime Minister David Cameron.
Fernando and Father Praveen were questioned separately in two different buildings for more than three hours by several TID officers. Lawyers acting on their behalf were given contradictory information about the arrests and the reasons for their detention. The most recent information is that Fernando and Father Praveen have been taken to police Terrorism Investigation Division headquarters in Colombo, and their lawyers are still seeking access to them.
Fernando and Father Praveen have not been charged to date, but according to Sri Lankan Police spokesperson Senior Superintendent Ajith Rohana, they will be charged with “attempting to create instability among communities” and “allegedly promoting separatism” under the Prevention of Terrorism Act.
The PTA has been widely criticized by Sri Lankan civil society, international monitoring organizations, and United Nations bodies. In its report, Authority without Accountability: The Crisis of Impunity in Sri Lanka, the International Commission of Jurists documents how provisions of the PTA have resulted in arbitrary detention, contravened suspects’ right to a fair trial and due process, and facilitated torture and other ill-treatment and enforced disappearances
The human rights groups said that the arrests are particularly disturbing since a resolution on Sri Lanka’s failure to address accountability is under discussion and will be voted on soon at the ongoing Human Rights Council (UNHRC) sessions in Geneva. The international community has long called for Sri Lanka to take meaningful steps to end its culture of impunity.
“This ongoing campaign of reprisals against those speaking out against human rights violations shows the extent of the government’s impunity,” said Sam Zarifi, Asia director at the International Commission of Jurists. “The international community, through its voting at the Human Rights Council, must judge Sri Lanka not by its promises, but by its actions.”
In spite of two prior resolutions by the UNHRC in 2012 and 2013, Sri Lanka has taken no measurable steps towards ensuring justice for the victims of its civil war, and has instead launched an aggressive campaign against those who advocate for accountability. Human rights defenders, activists, journalists, and civil society members who are critical of the government have regularly been threatened and harassed. Those who have an international profile, such as Fernando, face particular government hostility.
“Sri Lankan authorities systematically clamp down on those who seek to reach out to the international community, especially around significant events such as the Human Rights Council sessions or the Commonwealth Heads of Government Meeting,” said Evelyn Balais-Serrano, the executive director of Forum-Asia. “Instead of protecting human rights defenders, the latest arrests show the Sri Lankan government is stepping up its aggressive stance towards those seeking justice and answers.”
The arrests also call into question the Sri Lankan government’s stated commitment to improving respect for human rights since the end of the armed conflict with the Liberation Tigers of Tamil Eelam in 2009, the groups said.
“Arresting peaceful activists known for their work with victims of rights violations from all ethnic communities is not a way to build trust and restore relationships damaged by the war,” said Jonathan Prentice, the International Crisis Group’s chief policy officer. “If sustainable peace is to be more than an illusion, the rights of Sri Lanka’s victims and human rights defenders to speak freely and safely must be protected.”
The organizations stressed that Fernando and Father Praveen should be given full rights while they remain in detention. Under international law, including the International Covenant on Civil and Political Rights, to which Sri Lanka is a state party, people deprived of their liberty must be promptly informed of the reasons for their detention, be given prompt and regular access to lawyers, and be promptly brought before a judge or judicial officer.
“Human Rights Council members should demand the immediate release of Fernando and Father Praveen and be clear that this will not deter them from adopting a necessary resolution on Sri Lanka,” said Brad Adams, Asia director at Human Rights Watch. “The arrest of these human rights defenders shows just how important it is for the international community to stand up for human rights in Sri Lanka.”
Signed by:
- Amnesty International
- FORUM-ASIA
- International Commission of Jurists
- International Crisis Group
- Human Rights Watch
For more information, please contact:
In London, for Amnesty International
In Bangkok, for International Commission of Jurists, Sam Zarifi: +66-857-200-723; orsam.zarifi@icj.org
In Bangkok, for International Commission of Jurists, Sheila Varadan: +66-857-200-723; or sheila.varadan@icj.org
Mar 17, 2014 | Advocacy, Non-legal submissions
The ICJ made an oral statement at the UN Human Rights Council, on the need for fundamental reform of the legal system in Myanmar.
The oral statement was delivered during an interactive dialogue with the Special Rapporteur on human rights in Myanmar.
While noting some progress on legal reform to establish the rule of law during Myanmar’s economic and political transition, the ICJ noted that reforms are fragile and legal obstacles continue to block improvements to the extremely poor state of the rule of law and respect for human rights.
The ICJ considers that Myanmar’s judiciary is not yet independent. State authorities continue to exert improper influence on politically sensitive cases.
The ICJ was therefore deeply disappointed to hear the Representative of Myanmar state during the Council session that the Government rejected as “intrusive and prescriptive, infringing upon the national sovereignty” the Special Rapporteur’s basic recommendation that “the Government … Initiate fundamental reforms to establish a judiciary that is impartial and independent, including from the direct control of the Government and the military”.
Systemic problems affect the independence of lawyers, including the poor state of legal education and undue restrictions on licensing. Lawyers in Myanmar lack an independent Bar Council.
The ICJ stressed the need for Myanmar to ratify and implement all core human rights treaties, to cooperate with international human rights mechanisms, and to agree to the establishment of an OHCHR office in the country. At the same time, ICJ emphasised the continued need for a robust mandate for the UN Special Rapporteur on Myanmar.
The full statement may be downloaded in PDF: Advocacy-UN-HRC25-Myanmar-OralStatement-032014
The report of the Special Rapporteur is available here in Word format: SR Myanmar Report March 2014
For further information, please see the recent ICJ report Right to Counsel: The Independence of Lawyers in Myanmar (click to download PDF).
Mar 10, 2014 | Agendas, Events
This side event to the 25th Human Rights Council session will take place on Wednesday, 12 March 2014, 16.00 – 18.00 pm, in Geneva, Palais des Nations, Room XXII.
The members of this panel are in a unique position to highlight on-going challenges to the rule of law in Myanmar and their impact on the enjoyment of human rights.
They will provide personal insight into the important international presence for human rights monitoring, practical challenges facing lawyers concerning the rule of law, and link these issues to sustainable economic development on the ground in Myanmar today.
This panel argues that it is crucial to maintain a robust engagement with the UN human rights mechanisms in order to support and facilitate the reform process in Myanmar and improve the country’s human rights situation.
Speakers:
Tomás Ojea Quintana, UN Special Rapporteur on the situation of human rights in Myanmar
Kyaw Min San, Myanmar lawyer, Pyoe Pin and Justice For All
Daniel Aguirre, International Commission of Jurists, Myanmar
Chair/moderator:
Carlos Lopez, International Commission of Jurists
The presentations by panellists will be followed by an open interaction with the audience. Copies of the recent ICJ report Right to Counsel: The Independence of Lawyers in Myanmar will be available.
Myanmar – HRC25 Side event – March 2014
