Mar 17, 2021 | News
Imposition of Martial Law in several areas of Myanmar subjects civilians to trial by military tribunals, a dangerous escalation of the military’s repression of peaceful protests, said the ICJ today.
“Use of martial law marks the return to the dark days of completely arbitrary military rule in Myanmar. It effectively removes all protections for protestors, leaving them at the mercy of unfair military tribunals.”
– Ian Seiderman, ICJ’s director of law and policy
On 14 March, the Myanmar military issued Martial Law Order 3/2021, covering a number of townships of different provinces in Myanmar. According to this order, military officials assume full authority from civilian officials, and civilians may be subjected to military tribunals for charges of 23 violations of the criminal code and other laws. The 23 crimes include many of the charges used most against peaceful protesters in the past month, including charges of ‘disrupting or hindering government employees and services’ and ‘spreading false news’ about the government, and ‘exciting disaffection towards the government.’
The Martial Law Order also assigns disproportionately severe sentences, including the death penalty and prison sentences with hard labor. Judgments of military tribunals are not subject to appeal, even if the death penalty is imposed.
“Martial law has been imposed in precisely the areas where the military have used unlawful and lethal force against peaceful protesters, and removes even the pretense of access to courts for the people whose rights have been violated systematically by the military, ” said Seiderman.
The ICJ’s detailed review of military courts has documented that they lack competence, independence and impartiality to prosecute civilians. International law provides that the jurisdiction of military tribunals must generally be restricted solely to specifically military offenses committed by military personnel.
“The military courts lack transparency, due process and judicial oversights. It leaves no possibility to appeal the sentences, including the death sentences that have been handed down by military generals, ” said Seiderman.
Since the military coup d’etat of February 1 and the declaration of a state of emergency, the military has enacted and amended legislation enabling ongoing gross human rights violations, including possible crimes against humanity. More than 200 people have been unlawfully killed, with 2,000 more injured as security forces have used excessive force to suppress peaceful protests.
Background
On 14 March, the military-appointed State Administration Council, in accordance with Article 419 of the Constitution, enacted Martial Law Order 1/2021, imposing martial law in a number of areas in Yangon. The affected areas were further expanded through two other orders issued on 15 March, Martial Law Order 2/2021 and 3/2021. These orders transfer all power to the Military Commander in those areas. All local administration bodies have been placed under martial law, effectively giving military full control of all judicial and administrative processes.
The Order 3/2021 in particular is divided into six main sections with the most concerning provisions in relation to the list of crimes to be heard by military tribunals, and the proscribed punishments.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Mar 15, 2021 | Advocacy, Non-legal submissions
Today, during a General Debate, the ICJ called on the UN Human Rights Council to condemns a set of laws amendend by the military governmentn in Myanmar and restricting human rights, and to demand the return to of Myanmar civilian rule respecting the rule of law.
The statement reads as follows:
“Madame President,
The International Commission of Jurists (ICJ) condemns the illegitimate attempts to “amend” several laws by the Military appointed Myanmar’s State Administration Council (SAC) following its unlawful seizure of power on 1 February 2021.
The implementation of the Amended Law Protecting the Privacy and Security of Citizens (2017) would undermine the democratic process, criminalize peaceful protests and remove various human rights protections. It would provide for broad and unchecked power to the military to arrest anyone without a warrant and aim to remove basic protections, including the rights to be free from arbitrary detention and from warrantless surveillance and search and seizure.
The amendments to the Penal Code and the Criminal Procedural Code have made non-bailable certain offenses, specifically targeting persons criticizing the coup or the military junta, as well as those encouraging others to support the “Civil Disobedience Movement.”
In addition, Amendments made to other existing laws, such as the Ward and Tract Administration Law and Electronic Transactions Law, allow for search and seizure at night without arrest warrant and allow for the silencing of critical voices against the coup and human rights violations of the military, in violation of international standards.
The ICJ calls on the Council to adopt a resolution, which, among other things, univocally condemns and demands the repeal of these laws and the return to of Myanmar civilian rule respecting the rule of law.
Thank you.”
Feb 12, 2021 | Advocacy, Non-legal submissions
The ICJ today addressed an emergency Special Session of the UN Human Rights Council on Myanmar, outlining violations to human rights and the rule of law occurring in the country since the coup d’état of 1 February.
The Special Session is expected to adopt a resolution to address “The human rights implications of the crisis in Myanmar.”
The ICJ statement read as follows:
“Madame President,
The International Commission of Jurists condemns the Myanmar military’s unlawful seizure of authority and the unconstitutional declaration of a state of emergency on 1 February.
These actions defy core rule of law principles and provide an illegitimate basis for the suspension and erosion of human rights.
Nearly 200 people, including human rights defenders, have been arbitrarily detained, some in unknown locations. Security forces have used excessive force against peaceful protesters, causing serious injuries.
Regulations imposed pursuant to the state of emergency grant military forces nearly complete impunity. Furthermore, these regulations suspend crucial judicial remedies for violations of rights, such as the writ of habeas corpus.
Judges, including from the Supreme Court, have been illegally removed and replaced, undermining the independence of an already embattled judiciary.
The military takeover further endangers the already grave situation of the Rohingya community.
The ICJ calls on the Human Rights Council to urge the military to immediately return authority to the civilian government and allow immediate access to the Special Rapporteur on Myanmar and other special procedures, the OHCHR, and the Independent Investigative Mechanism for Myanmar, whose mandate includes investigating all serious human rights violations.
Member States should take necessary measures to ensure truth, justice and accountability for crimes under international law, including by supporting all relevant accountability mechanisms.
Thank you.”
Feb 8, 2021 | News
The Myanmar military’s coup d’etat of 1 February is unconstitutional and fails to comply with basic rule of law principles, said the ICJ today.
“The Myanmar military’s actions violate even the flawed Constitution that the military itself imposed in 2008,” said Sam Zarifi, ICJ’s Secretary General. “The irregularities alleged by the military in the recent elections do not justify declaring a state of emergency and shattering the already weak rule of law in the country.”
The coup d’etat does not comply with the Constitution of the Republic of the Union of Myanmar 2008, which suffers from multiple shortcomings in basic respect for the rule of law and international human rights standards.
Article 417 of the Constitution requires the President to declare a state of emergency when there is a risk to the sovereignty of the country.
Article 418 requires the President to hand over all power to the Commander-in-Chief of the Army. Contrary to this provision, the state of emergency was declared by the Vice-President, after the military detained President Win Myint.
“The accountability of the military to the civilian authorities is a core rule of law principle”, said Sam Zarifi “Myanmar’s military leaders have turned this principle on its head by usurping total authority again.”
The ICJ is concerned that Myanmar’s Constitution provides for the possibility of suspending protections for a number of human rights, such as freedom of expression and association and the right to habeas corpus. Under international human rights law, derogations from certain rights are permissible only when strictly necessary to meet a specific threat to the life of the nation, conditions not met under the current emergency.
The right to habeas corpus is among those rights that may never be suspended. The writ of habeas corpus allows any person detained by any State agent, including during emergencies, to challenge the lawfulness of the detention.
“The right to test the lawfulness of any detention needs to be restored and the judiciary must be able to independently examine the legality of any arrests and detentions and order to release of those it finds are detained illegally” said Sam Zarifi.
Of particular concern to the ICJ is the near-total impunity provided to the military after the declaration of the State of Emergency, and the proliferation of arbitrary detention without recourse to legal review.
Article 432 of the Constitution effectively shields the military and security forces from any review of ’legitimate measures’ pursuant to the declaration of a state of emergency, which the ICJ notes also flies in the face of the rule of law.
“After the shock of the coup d’etat, we are now seeing brave lawyers and civil society activists trying to use peaceful means at their disposal to demand their rights,” Zarifi said. “This movement is not focused around an icon or even one party, but on the notion that the people of Myanmar should be able to government themselves and decide their future.”
Contact
Sam Zarifi, ICJ’s Secretary General, sam.zarifi(a)icj.org
Oct 11, 2016 | News
Thailand should immediately end the use of Article 44 of the Interim Constitution which gives the Head of the military junta sweeping, unchecked powers contrary to the rule of law and human rights, said the ICJ today.
Despite widespread international condemnation of Article 44, its use has increased every year since the Interim Constitution was promulgated on 22 July 2014 following the coup d’état of 22 May 2014.
The Head of the National Council for Peace and Order (NCPO), Prayut Chan-o-cha, has issued at least 107 Orders under Article 44 (available in the public domain): at least one in 2014; 44 in 2015; and 62 in 2016 to date – with 37 Orders being issued since June 2016 alone.
“The Head of the NCPO’s increasing willingness to use extraordinary powers to make ad hoc, arbitrary changes to existing laws and regulations without judicial oversight should be alarming to everyone, including the business sector,” said Wilder Tayler, Secretary General of the ICJ.
“Article 44 places law making power in the hands of one man, while Articles 47 and 48 of the Interim Constitution block judicial review or access to remedies and reparation. This is entirely inconsistent with the three fundamental pillars of the rule of law, equality, accountability and predictability, and should be revoked immediately,” he added.
The Article 44 orders range from those restricting the civil rights of all people in Thailand to those aimed at seemingly minor and ordinary bureaucratic processes.
To date, Article 44 has been used to introduce a raft of revisions into existing Thai law without observing proper process or practice, including providing for the acquisition of land for the establishment of Special Economic Zones bypassing the usual environmental and social checks and balances provided for in domestic legislation; granting military officers sweeping powers of investigation, arrest and detention; and prohibiting the gathering of five or more persons for political purposes.
“It is long past time for Thailand to revoke Article 44 and all others laws, orders and announcements issued since the military coup that are inconsistent with the rule of law and human rights,” Tayler said.
“The justifications the military presented for such measures were never valid or credible, and certainly not so after more than two years of direct military rule.”
All Orders issued under Article 44 – and all other NCPO Orders and Announcements – will continue to remain in force under the draft Constitution that was accepted at a public referendum on 7 August 2016, and may only be repealed or amended by an Act.
Last week, Deputy Prime Minister Wissanu Krea-ngam announced that the NCPO was considering converting many of the hundreds of orders issued by the NCPO into legislation, including those issued under Article 44.
thailand-art-44-ncpo-news-press-releases-2016-eng (full text with background, in PDF)
thailand-head-of-ncpo-orders-advocacy-2016-eng (full list of all publicly available Head of NCPO Orders, in PDF)
thailand-art-44-ncpo-news-press-releases-2016-tha (full text in Thai, PDF)
