Jul 20, 2017 | News
An interview of ICJ Secretary General Sam Zarifi with Reuters journalist Stephanie Nebehay.
GENEVA (Reuters) – Donald Trump is one of a new breed of leaders around the world who seek to use their democratic mandate to undermine the rule of law, the head of a legal and human rights watchdog said on Wednesday.
Branding the U.S. president an “authoritarian populist”, Saman Zia-Zarifi, secretary-general of the Geneva-based International Commission of Jurists (ICJ), compared him to the leaders of Turkey, the Philippines, Hungary and Venezuela.
Zarifi cited as an example Trump’s travel ban on nationals from six Muslim-majority countries, a policy that he called “highly problematic” under the U.S. constitution and international law.
“What is different now is that a certain kind of populism is being used to actually counter the notion of the rule of law,” Zarifi said in an interview at the headquarters of the ICJ, which is composed of 60 eminent judges and lawyers from all regions who seek to protect human rights and the rule of law.
“The new populism has a certain shamelessness about it that is new. It’s not that people are denying that they are violating rights, what they are saying is they can violate rights because somehow they are empowered by the people,” he said.
Zarifi, who took over at the ICJ in April, said the new breed of populists included Turkey’s President Tayyip Erdogan, Venezuela’s Nicolas Maduro, the Philippines’ Rodrigo Duterte, Hungary’s Prime Minister Viktor Orban and Jaroslaw Kaczynski, head of Poland’s ruling party.
“I would say that in the U.S., Trump is an authoritarian populist. He has authoritarian tendencies but he still is facing checks and balances,” Zarifi said. “So he is not a full-blown authoritarian figure.”
The U.S. Supreme Court revised parts of Trump’s executive order banning travellers from Iran, Libya, Somalia, Sudan, Syria and Yemen, a policy Trump says is aimed at tackling terrorism.
“Looking at it again from the point of view of U.S. law – I’m an American lawyer – it seems highly problematic,” said the Iranian-born Zarifi, who moved to the United States as a teenager and holds a law degree from Cornell University.
Supreme Court rulings would be, he said, “a test for the health of the system of checks and balances in the U.S.”
Turkish Judiciary “Politically Compromised”
A crackdown by Erdogan’s government has led to the arrest of 50,000 people and the suspension of 150,000 in the year since a failed military coup in Turkey where the judiciary is “now politically compromised”, Zarifi said.
The Turkish government has said the action is justified by the gravity of the threat to the state from the coup attempt.
On Monday, the state prosecutor asked a court to remand the local Amnesty International director and nine other activists in custody pending trial for membership of a terrorist organisation.
Erdogan was quoted by Turkish media this month as saying they were detained on the basis of intelligence and that the judiciary would make its own decision.
But Zarifi said the judiciary should have thrown the case out.
“The handling of the case highlights the very serious concerns – and alarm in fact at this point – that we have raised about the independence of the judiciary and the legal system in Turkey over the last few years.”
Photo Credit: Reuters / Pierre Albouy
Jul 12, 2017 | News
The ICJ is alarmed at ongoing attacks on the rule of law in Poland.
On 12 July 2017, the Government tabled in Parliament draft bill no. 1727, that, if approved, would automatically dismiss all judges of the Supreme Court and let the Minister of Justice decide which judges are to be reinstated or newly appointed.
“This draft law is a direct blow to the principle of separation of powers, the bedrock of the rule of law,” said Massimo Frigo, Legal Adviser with the ICJ Europe Programme.
“The security of tenure and conditions of service of individual judges are essential to judicial independence,” he added.
Draft bill no. 1727 follows another piece of legislation, recently approved by Parliament, by which the Parliament empowered itself to appoint the majority of the members of the National Council of the Judiciary, the body which selects and governs the judiciary.
That law gives political powers in the Polish legislature and executive, which have increasingly demonstrated deep disregard for human rights and the rule of law, undue influence over the judiciary.
Such deficiencies were also highlighted by the Office for Democratic Institutions and Human Rights of the OSCE in May 2017.
“These series of legislative attacks to the independence of the judiciary in Poland must stop. These actions are inconsistent with the international obligations of Poland to ensure the independence of judges,” said Massimo Frigo.
“The European Union must intervene. A EU Member State that directly undermines the checks and balances of its own legal system threatens the founding values of the EU of the rule of law and respect for human rights,” he added.
Contact
Massimo Frigo, ICJ Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
International standards
Particularly in a context like present day Poland, mass removal of all judges from a court, by another branch of government, without a fair and evidence-based individual process for each judge, is incompatible with international standards such as the UN Basic Principles on the Independence of the Judiciary (See, ICJ Practitioners Guide no 13 on Judicial Accountability, pp. 99-104). The UN Basic Principles affirm, among other things, that:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
10. …Any method of judicial selection shall safeguard against judicial appointments for improper motives. …
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. 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.
Similar mass removals with politicization of the procedure for reinstatement and new appointments have been condemned as violations of States’ international human rights obligations by, for instance, the UN Human Rights Committee acting under the International Covenant on Civil and Political Rights, to which Poland is also party (see Busyo, Wongodi, Matubaka et al v. Democratic Republic of the Congo, UN Doc CCPR/C/7878/D/933/2000 (2003), and the Inter-American Court of Human Rights (see e.g. Supreme Court of Justice (Quintana Coelle et al) v. Ecuador, Series C No. 266 (2013) and Constitutional Tribunal (Camba Campos et al) v. Ecuador, Series C No. 268 (2013).
Council of Europe standards, in the form of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, provide among other things as follows:
26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.
27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
44. Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.
46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.
47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.
48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.
49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.
50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.
69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
Jul 6, 2017 | News
The Turkish government should immediately release 11 people, including eight Turkish human rights defenders, who were detained yesterday in Istanbul, said the ICJ today.
The human rights defenders were arrested on unknown charges while attending a training in Istanbul on digital security and information management; also reported arrested were two trainers (reportedly a German and a Swedish national) and the owner of the training venue.
Amnesty International has reported that they were denied access to family members and lawyers, contrary to existing regulations.
“These arrests are an alarming setback to efforts to restore the rule of law in Turkey,” said ICJ Secretary General Sam Zarifi.
“Arrest and harassment of human rights defenders violates Turkey’s international legal obligations. Turkish authorities should be protecting human rights and supporting the important work of human rights defenders, but instead we have witnessed a continuing pattern of arrests on human rights defenders in the country,” he added.
On 6 June, Taner Kiliç, the President of Amnesty International Turkey was arrested.
He is currently detained on remand in what several international observers have qualified as baseless charges.
Turkey is currently under a State of Emergency enacted after the attempted coup d’etat of 15 July 2016.
While recognizing the serious attack suffered by Turkish institutions, the ICJ has repeatedly called for an end to this year-long state of emergency under which sweeping measures have been enacted that continue to erode human rights, including rights of fair trial, the right to liberty, and freedoms of expression and association.
“It is time to turn the page of the emergency and return to the rule of law,” said Sam Zarifi. “The work of human rights defenders, judges and lawyers is essential to a democratic society that upholds human rights.”
Background
The human rights defenders arrested are Idil Eser (current Director of Amnesty International Turkey, photo), İlknur Üstün (Women’s Coalition), Günal Kurşun (Human Rights Agenda Association), Nalan Erkem (Citizens Assembly), Nejat Taştan (Equal Rights Watch Association) , Özlem Dalkıran (Citizens’ Assembly), Şeyhmuz Özbekli, and Veli Acu (Human Rights Agenda Association).
Contact
Olivier van Bogaert, ICJ Director of Media & Communications, t: +41 22 979 3808 ; e: olivier.vanbogaert(a)icj.org
Jun 23, 2017 | News, Op-eds
An opinion editorial by Belisário dos Santos Júnior, a Brazilian lawyer who is a member of ICJ’s Executive Committee.
When assessing the Brazilian political situation, it is important to always mention the date, since the situation changes almost every minute, following the rhythm of denunciations and accusations.
Over the past three years, the main preoccupation of most people living in Latin America has been the level of violence in their countries.
In Brazil, however, although political and criminal violence is high, corruption has been the primary concern of the population, before health and with violence coming in only third position of the population’s concerns (source: Latino barômetro).
The yearly global corruption perception index of Transparency International put Brazil in the 79th position, of 176 countries rated (where 1st position is given to the country with the lowest perception of corruption and 176th given to the country with the highest perception of corruption) with a grade of 40 (0 is for the most corrupted countries and 100 for the cleanest ones).
Brazil was sharing its position with countries such as China, India and Belarus. Its grade was 3 points below the world average.
The report mentioned a clear relationship between corruption and inequalities, creating a vicious circle between corruption, unequal distribution of power and unequal distribution of wealth. How can we correct this?
Brazil is currently reacting to the problem with new laws, new police investigations and legal proceedings, which are important.
But these measures alone will not be enough to change a culture of bypassing laws into a culture of integrity and respect of honesty.
The last elected government, elected in 2014, with Dilma Rousseff as President and Michel Temer as Vice-President (photo), should have lasted until 2018 but fell in 2016 with the impeachment of Dilma Rousseff led by the President of the Federal Supreme Court and decided by the National Congress after two ballots.
Rousseff was accused of having manipulated the federal budget to hide the country’s real economic situation. Michel Temer assumed office as President following Rousseff’s impeachment.
Lula da Silva, the former President (2003-2010), ended his term in the middle of a legal storm when the Federal Supreme Court issued its judgment on the Criminal Lawsuit 470 (corruption of parliamentarians to maintain the influence of the Government in the Congress) and sentenced to prison ministers, businessmen, leaders of Lula’s Workers’ Party and other party leaders.
With the progressive use of the system of delação premiada (which is where a defendant is granted a reduced sentence or other beneficial measure for providing evidence against other persons), a measure included in the new Brazilian law to combat criminal organizations, and a series of police operations (the most famous of which is the operation Lava Jato, or ‘Car Wash’ in English), even more politicians and businessmen have been arrested and/or tried for corruption or money laundering.
More than one third of the National Congress’s members have been targeted by police operations for being implicated in controversial acts, either as agents or beneficiaries.
The current President, Michel Temer, and some of his ministers are under investigation by the Federal Police and on the verge of being denounced by the Federal Prosecutor’s Office for passive corruption.
The last two delação premiada, those of the CEOs of two Brazilian transnational corporations (Odebrecht and JBS), have overturned the political order, and so did the information that more than 2000 politicians received money from slush funds to finance their election campaigns.
Two governors and various parliamentarians are already in jail, including the former President of the Chamber of Deputies, Eduardo Cunha.
Lula da Silva himself is already facing various legal proceedings for corruption.
The winning ticket of the 2014 presidential election was recently judged in a case concerning potential abuse of economic power during their campaign.
Following a very close vote (4 against 3), the Superior Electoral Court rejected claims that illegal money was used in the Rousseff-Temer campaign.
If convicted, Michel Temer would have been forced out of the presidency.
The claim of economic power abuse was rejected only on a procedural matter: the evidence gathered – recordings, pictures, content of delação premiada – was considered inadmissible.
Aécio Neves, the opposition leader who competed against the Rousseff-Temer ticket in 2014, is in no better situation: a few weeks ago, a judicial decision deprived him of his mandate in the Federal Senate.
His sister and his cousin are already in jail and he himself is at risk of being sent to prison if the Federal Supreme Court requests this from the National Congress.
The Brazilian institutions are under investigation, but they are still functioning. Even members of the judiciary and the prosecutor’s office are being investigated.
There is still a decent level of trust in the work the current economic team is doing.
The National Congress gave its approval for the Constitutional Amendment on the Expenditure Ceiling, which will impose a series of conditions to public spending over the next few years. This somehow increases the credibility of the country’s economy.
On the agenda of the Congress, but affected by the series of denunciations for corruption that have hit parliamentarians, are the social security and labour reform bills considered essential for the future of the country by all the economic experts.
But it must also be noted that in the name of the fight against corruption, the Police and Federal Prosecutor’s Office have committed some abuses, to the point that a judge of the Supreme Court said Brazil was on the way to turning into a police state.
Corruption has reached such a level of intensity in the Brazilian political world that people are left in a severe and dangerous state of disappointment and despair. Already the current President is reaching a mere 1% approval rating…
Only elections would improve such a situation. The next presidential election is scheduled in 2018. But who will be eligible to run for it? The law prevents anyone who has a police record from applying.
However, society is reacting, taking various initiatives that value integrity measures, compliance actions, measures linked to education, in addition to the holding of intense debates demanding respect for democracy and human rights and calling for political reform.
Some people want direct elections now but this is contrary to the Constitution. However, 2018 is a long way to go and in the meantime there will be many public demonstrations.
But one thing is sure: Brazil is greater than the crisis it is facing now. This country has survived worse situations, including two long periods of dictatorship. Brazil will battle against this new agony. Respect for democracy, the Constitution and rule of law will prevail at the end.
A versão portuguesa pode ser descarregada abaixo:
Brazil-Corruption crisis-News-Op-ed-2017-POR (em PDF)
Jun 13, 2017 | News
The ICJ welcomed today the Special Rapporteur’s report on Turkey and his preliminary findings on his visit to the country last November.
The ICJ welcomes and concurs with the finding that the “situation of the judiciary is undermining freedom of opinion and expression”.
Mass dismissals of judges have had a devastating effect on the judiciary’s independence, already weakened by the current state of emergency. Furthermore, we are concerned at the claim by the President that the state of emergency will remain in place until Turkey reaches “peace and prosperity”. Whatever other questions there may be about their validity, maintaining emergency derogations to human rights law instruments for such an open-ended period would clearly not be in line with international law.
The ICJ is also concerned at the constitutional amendments approved on the 16th of April by a referendum. Among other things, the amendments have given powers to the President and the Parliament to appoint all the members of the High Council of Judges and Prosecutors, the body tasked with protecting the independence of these professions.
The judiciary has had in the past an important role in implementing legislation that has severely limited the freedom of journalists to carry out their job.
The independence of the judiciary has now been eroded to its core in Turkey. Without it, there is no effective remedy in the country to protect freedom of opinion and expression.
Further reading: ICJ’s briefing paper Turkey: the Judicial System in Peril
