Jul 15, 2020 | Advocacy, Multimedia items, News, Video clips
The ICJ today condemned the order issued by Zulkifli Mohamad Al-Bakri, Malaysia’s Minister in charge of religious affairs, to the Federal Territories Islamic Religious Department (Jawi) to take action against the transgender community.
The ICJ called on the Minister to rescind the order immediately and take steps to ensure non-discrimination and equal protection of all persons in Malaysia, including LGBTI persons.
On 10 July 2020, Zulkifli Mohamad Al-Bakri announced in a social media post that he had given the Jawi authorities “full licence to carry out its enforcement actions” against transgender persons in Malaysia. He elaborated that his order would beyond arresting transgender persons but would also extend to providing them “religious education” so that they would “return to the right path”.
“This unacceptable transphobic and homophobic attack from a government official highlights the societal prejudices and the lack of legal protections against discrimination faced by transgender persons in Malaysia,” said Ambiga Sreenavasan, a prominent Malaysian lawyer and Commissioner of the ICJ.
“Instead of ensuring that the human rights and dignity of all persons are respected and protected, the Minister, through his statement, is going in the complete opposite direction by advocating state action against persons belonging to sexual orientation and gender identity minorities,” added Ambiga Sreenavasan. “The Minister is legitimizing harassment, discrimination and violence against transgender people, and increasing violations of their human rights.”
Across the country in 13 states and the federal territories, a “male” who “poses” as a woman or wears the clothing of a “woman” may be subjected to criminal liability under state-level religious enactments. Consensual same-sex sexual relations are criminalized as “unnatural offences” in both secular civil law and religious state-level laws. These “offences” carry heavy penalties in the form of fines, imprisonment and corporal punishment in the form of caning, which constitutes impermissible cruel, inhuman or degrading punishment under international law and standards.
The ICJ stressed that these laws served to institutionalize systemic discrimination on the basis of sexual orientation and gender identity and expression, while also creating barriers for LGBT people when seeking justice. They provide state authorities with expansive power to police gender identities, expressions and sexual orientations of people.
The ICJ notes that experiences of severe stigma, marginalization, and violence committed by families, communities, and State actors lead to immense health risks and mental health disparities of transgender individuals.
The ICJ is also deeply concerned about the Minister’s plan to require members of the transgender community to undergo religious conversion therapy. Numerous studies have shown how religious conversion therapy and related practices are causing real harm not only to transgender people, but also to lesbian, gay, and bisexual individuals.
The ICJ calls on the Government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, by ensuring that transgender people and all persons are legally protected against discrimination, and that they are able to live free from prejudice, harassment, and violations of their human rights.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, e: emerlynne.gil(a)icj.org
Background
In 2019, the Human Rights Commission of Malaysia (SUHAKAM) released a report on Transgender Persons in Kuala Lumpur and Selangor. Many of the transgender people interviewed for this report said that they constantly face arbitrary arrests, discrimination in obtaining employment, and even discrimination in obtaining housing because of their gender identity. A large majority of those interviewed experienced violence because of their gender identity.
Mar 4, 2020 | News
Following the arrest on 28 February of at least three persons, the ICJ has called on the Hong Kong authorities to drop criminal charges of taking part in an “unauthorized assembly” against them and to reform the Public Order Ordinance in compliance with international human rights obligations.
On 28 February, Hong Kong police arrested publisher Jimmy Lai, the founder of Next Media, which publishes the Apple Daily newspaper, and two pro-democracy activists, Lee Cheuk-yan, the vice-chairman of the Labour Party, and Yeung Sum, a former chairman of the Democracy Party, for taking part in a march banned by police on 31 August 2019. The Police prohibited the march on the stated grounds that the Civil Human Rights Front could not guarantee the march would be peaceful and orderly, shifting responsibility of maintaining order to the organizer.
“We are extremely concerned about the way in which the unauthorized assembly provisions of the Public Order Ordinance has been used to silence lawful expressions of political opinion since the Umbrella Movement of 2014,” said Frederick Rawski, ICJ’s Asia Pacific Director. “These most recent arrests, made for allegedly participating in a largely peaceful protest more than six months ago, are part of a troubling pattern of bringing legal action to harass activists involved in peaceful acts of protest.”
The arrests were made pursuant to the Hong Kong SAR Public Order Ordinance (Cap. 245) Section 17A(3)(a). Under the ‘unauthorized assembly’ provisions of the law, every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly is guilty of an offence and can be sentenced up to five years imprisonment.
The authorities have wide discretion to prohibit public meetings, and prosecute those who are alleged take part in them. These overbroad provisions have been used to restrict the proper exercise of free assembly and association rights – including onerous requirements to obtain a “notice of no objection” from the government for even small gathering under a threat of a maximum five years imprisonment for violations.
“The ICJ calls upon the Hong Kong SAR government to take measures to protect the right to peaceful assembly and create an environment in which people can safely express diverse ideas and dissenting voices – consistent with international legal obligations,” said Rawski. “This includes ensuring that the law is not used to harass pro-democracy activists and human rights defenders.”
The ICJ underscores that any restrictions to the right of peaceful assembly must be narrowly drawn to be permissible under international law. Restrictions are not permissible unless they have been provided by law, and are necessary and proportionate to a legitimate purpose enumerated in article 21 of the ICCPR, such as public order. However, imposing criminal charge on people exercising their right of peaceful assembly who fail to comply with a procedural requirement, such as notification, unduly restricts freedom of peaceful assembly by adding unnecessary barriers to public gatherings. Furthermore, the sentencing guidelines of the Ordinance, which include the possibility of a peaceful participant of a public assembly being sentenced to five years in prison if the organizers fail to comply with the notification requirement, are extreme, disproportionate and open to abuse.
Hong Kong SAR, though not the rest of the PRC, is legally bound by the ICCPR. Article 21 of the ICCPR and Article 27 of the Basic Law in Hong Kong both recognize and protect the right of peaceful assembly. The UN Human Rights Committee, the supervisory body responsible for the ICCPR and other UN independent authorities, have repeatedly urged the authorities to ensure that the Public Order Ordinance is implemented in conformity with Hong Kong’s obligations under the ICCPR.
To download the full statement with additional information, click here.
See also: Hong Kong: ensure police do not use excessive force against protesters
https://www.icj.org/hong-kong-ensure-police-do-not-use-excessive-force-against-protesters/
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
Feb 5, 2020 | Advocacy, News, Open letters
ICJ Commissioners and Honorary Members today denounced the rapidly escalating rule of law crisis in Poland, after a new law was passed that would result in harassment of judges upholding the independence of the judiciary.
A group of 44 ICJ Commissioners and Honorary Members, including senior judges, lawyers and legal scholars from around the world said in their statement “it is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.”
The statement
The International Commission of Jurists (ICJ), its Centre for the Independence of Judges and Lawyers (CIJL) and the undersigned Commissioners and Honorary Members of the ICJ are alarmed at the rapidly escalating rule of law crisis in Poland.
It is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.
The passing by the Sejm on 23 January of the amendments to the laws on the judiciary, and their signing into law on 4 February, means that judges will be prohibited from questioning the legitimacy or institutional independence of any Polish court, even where its members have been appointed through a politically controlled process, in violation of EU and international law. Judges will face disciplinary action for denying the validity of any judicial appointment.
This law is an attempt to prevent any Polish court from upholding the independence of the judiciary, in the face of repeated legislative and government attacks on judicial independence in recent years.
This is directly contrary to the obligations of judges under the EU treaties to apply EU law, and would therefore lead to violations of Poland’s EU law obligations. It would also lead to violations of Poland’s obligations under international human rights law, since it would require judges to act contrary to their duty to uphold the right to a fair hearing before an independent and impartial tribunal.
As the Venice Commission noted in its recent opinion on the amendments, they are clearly “designed to have a nullifying effect” on recent judgments and resolutions of the Court of Justice of the EU and the Polish Supreme Court, which have called into question the validity of recent judicial appointments. As such, they do severe damage to the rule of law in Poland.
These developments follow recent legislation which has politicised the National Council of the Judiciary (NCJ) and imposed executive control of the appointment process for judges of the Supreme Court, court presidents and other judges. A powerful new Extraordinary Chamber as well as a Disciplinary Chamber of the Supreme Court, appointed under this new system, has further entrenched political control of the judiciary.
The ICJ, its undersigned Commissioners and Honorary Members, applaud the continued resolute defence of the rule of law by sections of the Polish judiciary. This has been evident in the resolution of the Supreme Court (Civil, Criminal, Labour and Social Security Divisions) of 23 January which found that recent judicial appointments meant that some Polish courts were not sufficiently independent to be legitimately constituted.
We deplore the response by President Adrzej Duda in which he suggested that judges opposing the judicial reforms on the judiciary acted out of improper self-interest.
The undersigned ICJ Commissioners and Honorary Members affirm their solidarity with Polish judges, in particular those who are currently facing abusive disciplinary or criminal proceedings for carrying out their judicial functions in accordance with the principle of judicial independence, or for exercising their freedom of expression, association or assembly as a means to defend the rule of law.
We recall that international human rights law and international standards on the judiciary require all branches of government to respect the independence of the judiciary. Furthermore, they recognise that judges have rights to freedom of expression and association and that they have a particularly important role in contributing to discussions on issues of the functioning of the judicial system and the rule of law, especially in defending the independence of the judiciary.
We call on the international community to respond to the Polish rule of law crisis in a manner appropriate to the gravity of the situation, before the damage to the Polish legal system becomes further entrenched.
In particular, we call on the European Union to urgently advance proceedings concerning Poland under Article 7 TEU, in light of the clear breach of EU law and EU fundamental values entailed by the new law, in conjunction with previous reforms, and by the government’s open defiance of decisions of the Court of Justice of the EU and the Polish Supreme Court.
Poland-Commissioners-Statement-Advocacy-Open-Letter-2020-ENG, (full text with all signatories, PDF)
Jan 15, 2020 | News
Today, following the commencement of the trial of political opposition leader Kem Sokha, the ICJ condemned his continuing legal harassment and called on the Government of Cambodia to drop the ill-founded and apparently politically-motivated charges of treason against him.
“The trial hearing today marks and extends more than two years of legal harassment of one of Cambodia’s most prominent leaders of the political opposition,” said Frederick Rawski, ICJ’s Asia Pacific Director.
“The charges against Kem Sokha are wholly unsubstantiated – They should be dropped, and the trial discontinued in the accordance with his right to fair trial.”
In September 2017, Kem Sokha, leader of the now-defunct main opposition Cambodia National Rescue Party (CNRP), was arrested without warrant by more than 100 police officers in a midnight raid on his home. His arrest, in violation of his parliamentary immunity, was reportedly made on the basis that he had allegedly committed a crime in flagrante delicto – the Prosecution Office of Phnom Penh Municipal Court argued that he had been caught “red-handed” in an act of treason despite the fact that the alleged act was a speech he had made four years earlier in Australia in 2013. In the speech, Sokha had alluded to receiving foreign assistance in advocating for democratic change in Cambodia.
Kem Sokha was thereafter charged with alleged “conspiracy with a foreign power” under article 443 of the Criminal Code, and detained in the remote Trapaing Thlong prison in Tboung Khmum Province near the Vietnamese border. His applications for bail were rejected multiple times before he was released from prison after one year in pre-trial detention. During this period, Sokha was also denied access to independent doctors and medical treatment, despite his suffering from serious medical conditions. In 2017, the courts in Phnom Penh ruled that his pre-trial detention was legal under Cambodian law and refused him bail, even though Sokha had been barred from attending the proceedings, which his lawyers also boycotted in protest.
Kem Sokha’s arrest occurred in the midst of an intense crackdown on political opposition, civil society and independent media in the lead-up to the 2018 general elections. Two months after his arrest, Cambodia’s Supreme Court dissolved the CNRP and banned 118 CNRP officials from political activities for five years. In July 2018, the ruling Cambodian People’s Party won the elections by a landslide.
Following the elections, the Cambodian government has continued to systematically repress and persecute perceived critics of the regime through abuse of legal and judicial processes. In 2019, Cambodian authorities brought apparently politically-motivated charges against more than 100 members of the political opposition, more than half of whom were detained.
“There is an ongoing human rights and rule of law crisis in Cambodia, which needs to be urgently addressed,” said Rawski.
“The dissolution of the CNRP and imprisonment of its leader were crucial indicators that the Cambodian government had crossed a red-line a long time ago.”
The ICJ has called on the Cambodian authorities to fulfill the State’s obligations to protect people’s rights guaranteed under international law, including the rights to free expression, political participation and freedom of association, as well as the right to a fair trial and freedom from arbitrary detention.
To download the full statement with additional background information, click here.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
ICJ, ‘Cambodia: Charges against Kem Sokha must be dropped and respect for fundamental freedoms restored’, 14 November 2019
ICJ, ‘Misuse of law will do long-term damage to Cambodia’, 26 July 2018
ICJ, ‘Cambodia: the ICJ condemns dissolution of main opposition party’, 16 November 2017
