Feb 28, 2013 | News
The death sentence handed down by the International Crimes Tribunal today against Delwar Hossain Sayeedi (photo) violates international standards of due process and fair trial, and, if carried out, would violate his right to life, says the ICJ.
“The ICJ wholly condemns the atrocities committed in Bangladesh’s war of liberation in 1971, notably the widespread and systematic use of rape as a form of torture and the unlawful killings. It is paramount that those responsible should be held accountable,” said Sam Zarifi, ICJ Asia Pacific Regional Director. “But even perpetrators of atrocities have rights. They should be brought to justice, not subjected to vengeance.”
Delwar Hossain Sayeedi, vice-president of the Jamaat-e-Islami party, was indicted on 3 October 2011 on 20 charges including genocide and crimes against humanity. He was arrested and brought before the War Crimes Tribunal for the first time on 2 November 2010. He was accused of working with the Al-Badr group during the independence struggle in the early 1970s.
The International Commission of Jurists opposes the death penalty as a violation of the right to life and a form of cruel and inhuman punishment. The United Nations General Assembly has called on all States to establish a moratorium on the death penalty with a view to universal abolition.
Today, crowds gathered outside the courthouse as the verdict was being read, demanding Delwar Hossain Sayeedi be sentenced to death for his role in the atrocities committed in the 1971 war of liberation. Earlier this month, widespread protests erupted across Bangladesh after the Tribunal imposed a life sentence on Abdul Qadar Mollah instead of the death penalty.
“The enormous demonstrations and the unfortunate violence that have accompanied each decision of the ICT demonstrate the passions still enflamed by the crimes of 1971. But it is in everyone’s interest to ensure that the rule of law and the path to justice are not subject to immediate political pressure,” Zarifi added. “The Government’s obligation to bring those responsible for the atrocities committed in 1971 to justice must not outweigh the presumption of innocence and the duty to ensure the security of all persons.”
The ICJ says that the International Crimes Tribunal does not adhere to international standards of a fair trial and due process.
According to the ICJ, there are serious procedure flaws at all stages: pre-trial release has been routinely and arbitrarily denied; witnesses have been abducted and intimidated; there have been credible allegations of collusion between the Government, prosecutors and judges.
On 14 February 2013, a draft amendment was tabled in Parliament, retroactively changing the International Criminal (Tribunals) Act 1973 to enable prosecutors to appeal a life sentence and seek the death penalty.
This amendment came after protests for a death sentence in the 5 February 2013 verdict against Abul Qadar Mollah.
As a State party to the International Covenant on Civil and Political Rights, Bangladesh is obligated to guarantee due process and fair trial rights to all suspects, even those accused of war crimes.
Such obligations include the right to an public hearing before a competent, independent and impartial tribunal; the right to be tried in one’s presence; the right to counsel and the right to a full defence; and the right not to be punished again for an offence for which there has already been a final conviction in accordance with the law.
“Failing to abide by minimum standards of due process will cast doubt on the Tribunal’s findings and undermine victims’ hard-fought battle for justice,” Zarifi said. “The Bangladesh Tribunal is one of very few transitional justice mechanisms that have imposed the death penalty.”
This verdict is the third issued by the tribunal. Earlier this month, Abdul Qader Mollah, the assistant secretary-general of the Jamaat-e-Islami was found guilty and sentenced to life imprisonment for committing crimes against humanity during the 1971 liberation war.
On 21 January, Abul Kalam Azad, a former leading member of the Jamaat-e-Islami party, was tried and convicted in absentia and sentenced to death for crimes committed during Bangladesh’s war of liberation in 1971. He was convicted on six counts of a crime against humanity and one count of genocide.
The government established the Bangladesh International Crimes Tribunal in 2010, after amending the International Crimes (Tribunals) Act 1973. The International Crimes Tribunal has jurisdiction to try crimes against humanity, crimes against peace, genocide, violations of the Geneva conventions and any other crimes under international law.
The ICJ supports the right of victims to seek truth and justice for the atrocities committed in the 1971 Liberation War.
However, any such process must adhere to international human rights standards, including full guarantees for a fair trial.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, t: +66 26198477; email: sam.zarifi(at)icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme, t: +66 857200723; email: sheila.varadan(at)icj.org
Feb 15, 2013 | News
The ICJ, in collaboration with the Office of the Attorney General of the Union of Myanmar, held a two-day academic seminar in Naypyitaw entitled “The Prerogative Writs under the 2008 Constitution of Myanmar”.
At the event, which took place on 14 – 15 February 2013, opening remarks were given by His Excellency Dr. Tun Shin, Attorney General of the Union of Myanmar and Mr. Saman-Zarifi, Regional Director for Asia and the Pacific of International Commission of Jurists, to a total of approximately 40 public prosecutors and judges.
The aim of the seminar was to discuss and contribute to the application of the recently re-introduced prerogative writs, namely, habeas corpus, mandamus, prohibition, quo warranto and certiorari, under Myanmar’s 2008 Constitution which came into force in early 2011.
The seminar allowed ICJ to not only gain a deeper insight into the current writ practices in Myanmar but also permitted the Office of the Attorney General to draw best practices from other countries, such as Australia, Philippines and Malaysia.
The topics addressed during the seminar were the importance of prerogative writs in ensuring justice and upholding the rule of law; specific international standards on the independence of prosecutors and their role in the justice system; how writ cases are handled, challenges faced by the prosecutors and the burden of proof; and the powers of the judiciary to promulgate its own rules to ensure fundamental rights, as in the case of the Supreme Court in Philippines.
Panelists included Justice John Dowd AO QC, former Chairman of the International Commission of Jurists; Justice Adolfo Azcuna, Chancellor of the Philippine Judicial Academy and former Justice of the Supreme Court of the Philippines; and Mr. Andrew Khoo of the Malaysian Bar Council.
Jan 11, 2013 | News
The ICJ condemned the decision of Sri Lanka’s parliament today to impeach the country’s Chief Justice, Shirani Bandaranayake (photo).
“Parliament’s impeachment motion has defied the rulings of the country’s Supreme Court and Court of Appeal, and thus thrown into chaos the entire system of checks and balances in the country,” said Sam Zarifi, ICJ’s Asia-Pacific director.
“Sri Lanka’s parliament and executive have effectively decapitated the country’s judiciary in pursuit of short term political gain. As an immediate matter, this has precipitated a legal and constitutional crisis of unprecedented dimensions; but just as worrying are the consequences of this action, which severely erodes accountability and the rule of law in a country already suffering from decades of impunity.”
The impeachment decision now goes to President Mahinda Rajapakse, who precipitated this crisis initially. Under Article 107 of the 1978 Constitution of Sri Lanka, a Chief Justice can only be removed by an order of the President after a motion supporting the removal is passed by a simple majority of Parliamentarians.
The impeachment process against Chief Justice Shirani Bandaranayake has been widely criticized for ignoring international standards and practice. On 6 December 2012, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing. On 1 January 2013, the Supreme Court ruled that the impeachment procedure in Parliament was not constitutionally valid, finding that such procedures could only be established ‘by law’ enacted by Parliament.
The Bar Association of Sri Lanka has publically vowed that it will not welcome a new Chief Justice and the Lawyers Collective has called on the Supreme Court and the superior judiciary to not recognize the newly appointed Chief Justice.
“President Rajapakse should refuse to appoint a new Chief Justice, and instead call on Parliament to enact a new law – through a transparent and democratic process – to govern the impeachment process. Any such law must comport with international standards on judicial independence and guarantees of due process and fair trial,” Zarifi added.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, Bangkok. t:+66 807819002; email: sam.zarifi(at)icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme, Bangkok. t: +66 857200723; email: sheila.varadan(at)icj.org
See also previous ICJ press releases:
Sri Lanka’s Parliament should reject motion to impeach Chief Justice
Impeachment of Sri Lankan Chief Justice: Government must adhere to international standards of due process
Sri Lanka: new ICJ report documents ‘Crisis of Impunity’
Dec 6, 2012 | News
The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.
The ICJ urges the government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.
Today, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.
Protests supporting and opposing the impeachment process erupted on Tuesday 4 December 2012 as the Chief Justice appeared before the Parliamentary Select Committee for the second time.
Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.
Opposition members of parliament publicaly called on the Government to adhere to principles of fair trial and due process in the impeachment process.
Reportedly the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.
The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.
“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”
As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed only in exceptional circumstances involving incapacity or gross misconduct.
A cornerstone of judicial independence is that tenure of judges be secure.
“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.
The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights.
The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of parliament, the majority of which are drawn from the Government coalition. No members of the judiciary are permitted to sit on the Select Committee.
Comparatively in India, an impeachment hearing is presided over by a three-member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.
In South Africa, a judge may only be removed after a hearing by the Judicial Service Commission, a body composed of members of the judiciary.
In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.
The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.
The timing of the impeachment motion raises questions. The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill – before Parliament.
If the bill passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD).
Attacks on the judiciary have been escalating in recent months. In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse.
In early October, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.
In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of state accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.
The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66(0) 807819002; email: sam.zarifi@icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan@icj.org
Dec 6, 2012 | News
On 6 December 2012, the ICJ and ICJ-Kenya convened a roundtable entitled “LGBT Human Rights” in Nairobi.
The event brought together members of the Kenyan bar with LGBT human rights activists for a full discussion of criminal and constitutional law and international human rights standards, as well as possibilities for reform through either judicial or parliamentary processes.
The event was opened by Lawrence Mute, a former national human rights commissioner, signatory of the Yogyakarta Principles, and winner of ICJ-Kenya’s Jurist of the Year award.
