Posts Tagged ‘rule of law’

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The will of the people or ‘democracy under the rule of law’ in Europe ?

December 9, 2017

It is not often that I recommend the reading of long ‘governmental’ documents, but this time it do without hesitation. The Dutch Advisory Council on International Affairs published on 4 October 2017 its 104th thoughtful report, entitled: “The will of the people? The erosion of democracy under the rule of law in Europe”. Below I reproduce the Conclusions and recommendations, but reading only these you miss out on gems such as the section on Media page 27:

“Until the end of the twentieth century the media landscape was dominated by newspapers, radio and television. However, the advent of the internet in the early 1990s and social media in the early 2000s brought about a radical change. The low cost of accessing the internet means that everyone is now, in principle, able to generate journalistic content (through blogs, websites, YouTube videos, live streaming, etc.). This has resulted in democratisation of the media and diversification of the media landscape, but has also had negative effects.

The independence of the media is crucial for the credibility of reporting. But on the internet this seems to be largely immaterial: media that focus on a specific political or ideological niche are highly successful online. Besides the role of the internet, another factor instrumental in undermining media independence is the concentration of media ownership in the hands of just a few companies..The income of the traditional news media is being squeezed by greater competition.

 

Online media are often funded from advertising revenue. Consequently, the facts are no longer necessarily central; what counts is attracting as many visitors as possible to the site, relying on the speed of posting news online, sensational content and the ideological message. This undermines the reliability of the media. As everyone is now potentially able to generate news and the quantity of media content has risen explosively, it is becoming ever more difficult to check the content, sender and sources. So it is easy, for example, for populist movements to claim that the traditional media, especially newspapers, are biased and mendacious. This problem is exacerbated by the phenomenon of ‘fake news’, which is disinformation generally intended to substantiate one’s own political positions or undermine the positions and reputation of political opponents.

Whereas at the time of the Arab Spring there was much praise for the positive impact of social media (Facebook, Twitter, Instagram, etc.) on the democratic process, there is now greater awareness of its darker side.61 First, social media contributes to the formation of ‘ lter bubbles’. Informational bubbles of this kind are created by the user personally (self-selection) and strengthened by search and personalisation algorithms (pre-selection). This hyperpersonalisation of news and opinion has created a situation in which people are shielded from conflicting positions and isolated from people who think differently. In addition, social media tends to polarise social debate. Although social media undeniably facilitates and intensifies political debate and discussion, the nature of reactions on social media (fast, brief, simplistic, one-sided and often anonymous) has made the tone of the social debate considerably more strident. Finally, social media makes individuals more transparent. Connections, posts and likes help to create a more complete picture of individuals, who they are and what they think, believe and want. Within a democracy under the rule of law this picture can be used, for example, to microtarget voters with a view to influencing their political choice. But social media is also a powerful tool for monitoring individuals and identifying political opponents.”

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Conclusions and recommendations

‘The rule of law is not a peaceful property, a house in which we can sleep serenely.’160

This statement, made by the late senator Willem Witteveen in a parliamentary debate on the rule of law in 2014, remains as relevant as ever. Democracy under the rule of law needs constant maintenance, in Europe as elsewhere. Since the turn of the millennium, the increasingly apparent alienation between the institutions of democracy under the rule of law and sections of the population whose circumstances and prospects have become precarious and/or who feel that the nation’s cultural identity is under threat, has created an environment fraught with risk. In several European states, movements with varying degrees of influence have emerged that want to use democratically acquired power to limit the political status and legal safeguards of other population groups. This indicates that, to a large extent, they do not feel that constitutional democracy, i.e. democracy under the rule of law, is in everyone’s interest, including their own.

As pointed out in the introduction to this advisory report, it is an essential but delicate task, when standing up for the rule of law in the international arena, to respect the democratic character of the states concerned and enhance their democratic quality. As societies become ever more complex, rights, obligations and diverse social interests must constantly be weighed against one another and conflicts resolved. This means that all levels of government need to strike a balance between catering to the public’s wishes and making an independent assessment based on the general interest. Due to a large number of developments and factors, which have been described in this report, this balance has gradually been disturbed in recent decades. Many people across Europe now feel that the institutions of democracy under the rule of law mainly benefit others, including ‘the establishment’ or minority groups. This dissatisfaction is fuelling alternative political movements that promise more consultation and more effective government.

In Europe, a broad effort is required to restore and strengthen public support for democracy under the rule of law. It should be clear to all that the rule of law does not hamper democracy but rather bolsters it. There needs to be greater awareness that democracy only benefits all citizens if it is accompanied by rule-of-law safeguards. Citizens also need to know that their voices are being heard at international level. EU institutions must serve the public visibly and tangibly. That is not sufficiently the case at present.

All member states of the Council of Europe and the European Union are responsible for maintaining democracy under the rule of law in Europe. The fact that national governments working together in the EU appear unwilling to call one another to account for the erosion of democracy, the rule of law and human rights does nothing to enhance the EU’s credibility in the eyes of its own citizens. It merely confirms the widespread perception that the EU promises human dignity but does not effectively protect it.

This does not just undermine norms and values that are a key part of the European identity; the stability of Europe, too, is at stake. If the protection of individual rights and minorities is eroded, this rapidly generates domestic tensions, bilateral conflicts and, inevitably, migratory flows that can sometimes assume unmanageable proportions.

And if the erosion of democracy under the rule of law goes hand in hand with the undermining of common EU institutions, as is often the case, those institutions will increasingly be incapable of taking effective action to resolve such crises.

Even if no large-scale escalation occurs, the erosion of democracy under the rule of law eats away at the foundations of interstate cooperation that are important in Europe. Police cooperation, the European arrest warrant, the transfer of asylum seekers under the Dublin system – all these forms of cooperation are based on mutual trust in the quality of legal systems and the protection of the core values of the rule of law. But if the factual basis for that mutual trust disappears, mutual recognition and solidarity will sooner or later also be put in jeopardy.161

In addition to these considerations, a deficient democracy under the rule of law creates an unattractive investment climate. Confidence in constitutional stability and in the fair and effective public administration of justice is, after all, essential. Without such confidence, investors will be forced to resort to arbitration and other forms of investment protection; they will then have to contend with both increasingly critical public opinion and legal objections.162

Recommendations

Below the AIV will make a number of policy recommendations concerning how the Netherlands can work in the appropriate international bodies and bilaterally to preserve the constitutional structures of democracy under the rule of law from (further) erosion. The Netherlands must be prepared to swim against the tide and continue its engagement on this issue, with a view to preventing the operation of the democratic system from eroding its own principles.

It needs to be completely clear, of course, that such efforts should support states’ democratic functioning – taking account of their historically acquired characteristics; a democracy’s procedural and substantive features must not be further torn apart, but rather woven together in a more convincing manner. This requires respect for the diversity that can exist among the member states of the Council of Europe and the European Union. Alignment should constantly be sought with the common fundamental values of democracy and the rule of law as accepted by all the nations concerned. The recommendations made here therefore build on what has been agreed with and by the other states.

There is a need for caution here. For various reasons, there is bound to be some discrepancy between the complexity of the problems described in this report and the recommendations presented below. First, there is no magic bullet that will halt the erosion of democracy under the rule of law in Europe in a simple manner, because numerous complex factors are involved (see chapter II). What is needed is a differentiated approach at various levels: national, international, governmental, societal, etc. Second, a society can only achieve democracy under the rule of law from within. Individuals and organisations from other countries can merely play a supporting role. It stands to reason that the Dutch government – to which many of the recommendations relate – can mainly offer support in the realm of social developments and their anchoring in the rule of law. Third, the political balance of forces in Europe, especially in the European Union, currently offers limited scope for voicing a powerful counter-message. Only a limited number of European countries are firmly committed to defending the principles of the rule of law. Finally, account must be taken of the increased public scepticism towards EU cooperation that has developed in the Netherlands, as in other countries.

1. Increasing institutional responsiveness

Council of Europe

The Council of Europe is the most important organisation in Europe when it comes to setting standards for human rights and monitoring how they are reflected in member states’ legislation, policy and practices. Nevertheless, there appears to be little awareness in Europe of the Council’s importance in this regard. The Netherlands could take the lead in a political re-evaluation of the Council’s importance. This could be done in the following ways:

  1. Working with like-minded countries to secure a greater political role for the Committee of Ministers in monitoring the implementation of judgments of the European Court of Human Rights in the member states. The Committee of Ministers should not restrain the Council of Europe’s independent institutions (the European Court of Human Rights and the European Committee of Social Rights), but support and encourage them.
     
  2. Promoting the implementation of the Brussels Declaration and the Plan of Action on Strengthening Judicial Independence and Impartiality by entering into a twinning relationship with certain countries and helping them to increase knowledge about the Council of Europe and the European Court of Human Rights within government and the judiciary, and among the legal profession and NGOs, to expand national parliaments’ role in implementing judgments by the European Court of Human Rights in the member states and to create an independent national human rights institute.
     
  3. Taking the initiative to expand the Committee of Ministers’ traditional focus on civil and political human rights to include the social rights laid down in the European Social Charter. The Netherlands could highlight this by providing extra support for the HELP programme.
     
  4. At set times, the government should provide the Permanent Parliamentary Committees on Foreign Affairs and Justice with confidential information about the deliberations in the Committee of Ministers, especially as regards the implementation of judgments by the European Court of Human Rights.
     
  5. The Netherlands can support reciprocity within the Council of Europe by asking the Venice Commission for advice on Dutch legislation in the event of dilemmas like those concerning the judicial review of legislation and the consequences of referendums.

European Union

  1. Within the EU, the Netherlands must continue its efforts to strengthen the annual rule of law dialogue, as a stepping stone towards a peer review mechanism,163 for which there is still insufficient support in the Union.
     
  2. The Netherlands can join with like-minded countries to form a (possibly informal) group of ‘trailblazers’ that launches a peer review. Such a group can set a positive example of European cooperation for EU citizens, including people in countries that do not yet want to participate. It will show them that ideas on the rule of law can be exchanged in an atmosphere of openness and mutual trust.
     
  3. Some EU member states, notably Poland and Hungary, are currently firmly opposed to the notion that membership of the Union entails certain responsibilities in terms of democracy and the rule of law. At the same time, these countries receive substantial amounts in EU subsidies. In the upcoming negotiations on the EU budget (multiannual financial framework) and how to reform it, the Netherlands should seek to link receipts from the cohesion and structural funds to success in satisfying the original Copenhagen criteria for EU accession.
     
  4. The Netherlands can express support for the European Parliament’s proposal for an    EU Pact for Democracy, the Rule of Law and Fundamental Rights.
     
  5. The Senate and the House of Representatives can play a constructive role in promoting the principles of democracy under the rule of law in Europe by raising this issue with other European national parliaments. Consideration could be given to creating a parliamentary network focusing on practical cooperation and knowledgesharing on linking democracy and the rule of law. This could be done bilaterally, but also, for example, by setting up a trilateral partnership among a number of parliaments. In addition, like-minded leaders of European political parties should enter into a dialogue in their own political group in the European Parliament with those parties that approve measures at national level that undermine democracy under the rule of law.
     
  6. Dialogue should always be preferred over confrontation in international diplomacy. The same applies when addressing the issues of democracy, the rule of law and human rights. Where dialogue repeatedly fails, however, the international community should be willing, as a last resort, to draw a line in the sand. In concrete terms, this means that the Netherlands and its EU partners should make clear that there can be no room for Turkey in the Council of Europe and the European Union if it decides to reintroduce the death penalty.
     
  7. Legislation like Russia’s ‘foreign agent’ law and its abuse of general legislation in respect of NGOs should consistently be condemned by the Netherlands, both bilaterally and internationally, in cooperation with like-minded countries.

OSCE

The Netherlands could in the near future consider launching a candidacy for the Chairmanship of the Organization for Security and Co-operation in Europe (OSCE). This would give it the opportunity to put democratisation and the principles of the rule of law more emphatically on the organisation’s agenda, including in the field of human rights.

G20/OECD

The Netherlands is currently taking part in the G20 at the invitation of Germany, which now holds the Presidency. The Netherlands should strive for ongoing participation in this forum, which is ideally suited for working with like-minded countries to address the adverse consequences of globalisation. As in the OECD, a discussion on this subject should focus not only on trade, investment and development but also on socioeconomic rights, environmental rights and the relationship between government and citizens. The Sustainable Development Goals could provide a useful tool for this purpose.

2. Social diplomacy

The above recommendations are aimed mainly at governments and multilateral institutions. Earlier in this report, however, the AIV stated that international political pressure by governments, however essential, is not sufficient to safeguard democracy, the rule of law and human rights in Europe. Above all, there should be broad support in society for these values, and the public should have confidence in the institutions of democracy under the rule of law. This requires a long-term dialogue with civil society organisations, opposition movements and institutions that can translate international human rights to the national level. The AIV would make the following recommendations for this purpose.

  1. As part of its human rights policy, the Ministry of Foreign Affairs should set up a democracy and rule of law programme that focuses on the member states of the Council of Europe where democracy under the rule of law is in danger. It should also draw on the expertise of other relevant ministries (e.g. the Ministries of Education, of Security and Justice, and of Economic Affairs).

    To support this programme, a rule of law fund should be created. During the next government’s term of office, around €2.5 million per year should be set aside for this purpose in the Ministry of Foreign Affairs budget. The existing MATRA programme, which focuses exclusively on strengthening democracy and the rule of law in candidate and potential candidate countries of the EU and the countries of the Eastern Partnership, can be integrated into this broader rule of law fund. The MATRA programme budget is set to decline from €13.7 million in 2017 to €9.1 million in 2018 and 2019. The AIV recommends that, at the very least, this reduction should be reversed.

    The rule of law fund will support civil society organisations with a regional focus on areas such as the following:

    • People-to-people and profession-to-profession contacts. Through placements and exchanges, knowledge and experience can be shared between socially relevant professional bodies, like the judiciary and legal profession, the ombudsman, educational, knowledge and cultural institutions and the media.
    • Raising public awareness of the value and importance of democracy under the rule of law. This can be achieved, for example, by promoting education in citizenship, democracy and human rights, especially among young people. The expertise of the Council of Europe’s Directorate of Democratic Citizenship and Participation can be used for this purpose.
    • Supporting citizen and other initiatives aimed at research and quality journalism in vulnerable democracies.
     

  2. In international forums dealing with internet freedom and governance (e.g. the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition), the Ministry of Foreign Affairs can devote more attention to the internet’s potential role in strengthening the principles of democracy under the rule of law where they are under threat.
     
  3. The Ministry of Foreign Affairs can work with the private sector (e.g. via major social media platforms and the Global Network Initiative) and NGOs in organising projects on digital citizenship, democracy and human rights. A concrete example is the organisation of a Democracy Hackathon, where European software programmers and website developers work together on ICT products (e.g. an app) that can improve trust between citizens and government (both local and national). This ‘hackathon’ could focus on a different theme every year, such as the internet and privacy, social media etiquette, fake news and fact-checking, as well as services provided by local and national government, migration and election observation.

3. Strengthening the capacity of the Ministry of Foreign Affairs and its missions

  1. The AIV strongly recommends that the policy capacity of the Ministry of Foreign Affairs and Dutch missions in Council of Europe member states be evaluated and, where necessary, expanded with local knowledge. This will enable the ministry and missions to identify and respond quickly to local initiatives and opposition movements in the fields of democracy, the rule of law and human rights. Missions will need to have sufficient funds at their disposal for this purpose.164
     
  2. In its strategic secondment policy, the Ministry of Foreign Affairs could focus more explicitly on both non-governmental and multilateral organisations that exert influence, directly or indirectly, on democratisation and the principles of the rule of law, for example the G20, the OECD and the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition.

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160 From senator Willem Witteveen’s contribution to the debate on the rule of law, Proceedings of the Senate 2013-2014, 22-5-1 (March 2014).
161 For example, Germany will no longer be able to avoid the decision not to send asylum seekers back to Hungary. See Politico, 11 April 2017, ‘Germany suspends migrant returns to Hungary – Hungary’s been criticized for detaining migrants in camps on its border with Serbia’, <http://www.politico.eu/article/ germany-suspends-migrant-returns-to-hungary/>.
162 See case C-284/16 (Achmea), now pending before the EU Court of Justice, which, among other things, revolves around the question of whether the Dutch-Czech arbitration agreement is compatible with EU law.
163 See the earlier recommendation for a peer review in AIV advisory report no. 87, The Rule of Law: Safeguard for European Citizens and Foundation of European Cooperation, The Hague, January 2014, pp. 35-37.
164 See also AIV advisory letter no. 32, Representing the Netherlands Throughout the World, The Hague, May 2017.

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2016 Tang Prizes to Louise Arbour and US sinologist

June 22, 2016

 On 21 June 2016  it was announced that Louise Arbour, a Canadian lawyer and former United Nations High Commissioner for Human Rights, was named the winner of the second Tang Prize in rule of law. The Tang Prize is awarded to Arbour “for her enduring contributions to international criminal justice and the protection of human rights, to promoting peace, justice and security at home and abroad, and to working within the law to expand the frontiers of freedom for all,”  Arbour, 69, was also the chief prosecutor for the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) between 1996 and 1999. In 1998, Arbour became the first prosecutor to get a conviction of genocide in an international tribunal, when the ICTR convicted Jean-Paul Akayesu, a mayor in Rwanda, of genocide. Tribunal defined rape as a means of perpetrating genocide — the first time that rape was considered an act of genocide by an international tribunal. The following year, as the chief prosecutor for the ICTY, Arbour again made history by indicting Yugoslav President Slobodan Milosevic, who became the first sitting head of state to be tried for war crimes by an international tribunal.

A Tang Prize award ceremony will be held Sept. 25 in Taipei. The laureate will receive a cash prize of US$1.23 million and a research grant of up to NT$10 million to be used within five years.

The biennial Tang Prize was established in 2012 by Taiwanese entrepreneur Samuel Yin to complement the Nobel Prize and to honor top researchers and leaders in four fields: sustainable development, biopharmaceutical science, sinology and rule of law.

This year the Tang Prize in the category sinology also has a human rights component as the laureate is William Theodore de Bary, Professor Emeritus of Columbia University. Read the rest of this entry »

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Panel on Human rights defenders and the rule of law – 8 June Geneva

May 29, 2015

The International Service for Human Rights and United Kingdom Mission in Geneva are organising a panel discussion on “Human rights defenders and the rule of law” on Monday, 8 June 2015, 16.30-18.00 (followed by a reception) at the Graduate Institute, Maison de la Paix (Auditorium 2), Genève, Switzerland.

This event will discuss the importance of the rule of law in safeguarding the rights to freedom of expression, association and assembly for human rights defenders and activists, and the vital role of human rights defenders and international mechanisms in establishing, maintaining and promoting the rule of law. It will also explore the notion that respect for the rule of law requires respect for the rule of international law and national law that is in conformity with international law.

Panelists:

  • Olga Abramenko, Director, ADC Memorial (Russia)
  • Ruki Fernando, Human Rights Advisor, INFORM Human Rights Documentation Centre (Sri Lanka)
  • Mona Rishmawi, Chief of the Rule of Law, Equality and Non-Discrimination Branch with the Office of the High Commissioner for Human Rights
  • Phil Lynch, Director, International Service for Human Rights

Moderator: Julian Braithwaite, UK Permanent Representative to the UN in Geneva

If you want to attend please contact before 3 June: anne.jahren@fco.gov.uk

For those unable to attend, you can follow the event on Twitter through @UKMissionGeneva and @ISHRGlobal.

Human rights defenders and the rule of law: panel discussion on 8 June.

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What the Human Rights Council did on HRDs in March 2015

April 7, 2015

For those (few, I hope) who do not regularly read the Human Rights Monitor of the ISHR, here is a wrap-up of the 28th session of the Human Rights Council in relation to human rights defenders:ISHR-logo-colour-high

5 Resolutions adopted: Read the rest of this entry »

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Stop dancing with dictators, says Chinese human rights defender Teng Biao

March 17, 2015

‘Chinese leaders are not known for tolerating dissent, but Xi Jinping is less tolerant than his predecessors.’ Photograph: EPA/WU HONG

‘ Xi Jinping, even less tolerant than his predecessors.’ Photograph: EPA/WU HONG

Human rights defender Teng Biao, a visiting fellow at Harvard Law School, President of China Against the Death Penalty, and Co-founder of the Open Constitution Initiative, is in Ireland as the guest of Front Line Defenders. In a post of 10 March 2015, he depicts the grim situation of human rights defenders in China since President Xi took office. ‘Chinese human rights defenders are facing the most severe crackdown since the Tiananmen massacre in 1989’ he states. The hard-hitting piece [“Over 1,000 human rights activists were detained since President Xi took office“] is interesting enough to provide in full:

“I remember Cao Shunli’s speech during her trial. She was a brave activist who fought for land rights, documented cases of human rights abuse and participated in the United Nations human rights system.Tang Jingling, a lawyer in Guangzhou, is a prominent leader of the non-violent civil disobedience movement.

Ilham Tohti is a Uighur professor who set up a website to promote the rights of the muslim Uighur people. He advocated mutual understanding and reconciliation between Han Chinese and the Uighurs.

Pu Zhiqiang and Xu Zhiyong are both well known lawyers who have played a key role in abolishing the laws allowing extrajudicial detentions, in breach of China’s own constitution. Xu also founded an NGO called the Open Constitution Initiative, focusing on religious freedom and free speech. The organisation worked on the issues of forced eviction, forced abortion and ensuring transparency in local elections.

Guo Feixiong, Liu Ping, Ding Jiaxi, Zhao Changqing, all took an important part in the New Citizens Movement which has campaigned for constitutional government and for Communist Party officials to declare their assets.

Cao Shunli was arrested on her way to a human rights training in Geneva and died in custody as a result of torture, on March 14th, 2014. All the others are now in jail.

Chinese leaders are not known for tolerating dissent, but Xi Jinping is less tolerant than his predecessors. Over a thousand human rights activists have been detained since Xi took office, and Chinese human rights defenders are facing the most severe crackdown since the Tiananmen massacre in 1989. Xi’s suppression is widespread, targeting not just those at the forefront of the human rights struggle in China, but also faith groups, internet users, universities, and the media. Many members of China’s budding civil society, who have avoided politically risky issues so far, are now also being jailed.

In the past, those who crossed a red line, who stood out, took to the street, or who engaged in organised actions were the main targets of the crackdown. Now, the dragnet is much wider and is being used against anyone who demonstrates. At least 10 feminist activists were detained last week as they planned to stage a small protest against sexual harassment on public transport, which is a common occurrence in China. The government seems to be targeting all the nodes that connect civil society, picking off emerging civil society leaders, and destroying the capacity for civil resistance.

It seems that the Communist Party of China has never been stronger or more confident: China is the second largest economy in the world. China is exerting more influence on the international stage. There is no viable opposition, and the Chinese model is more effective than western democracies that have been bogged down by financial crises and intractable social problems. But as David Shambaugh pointed out in his recent article in the Wall Street Journal, “A more secure and confident government would not institute such a severe crackdown. It is a symptom of the party leadership’s deep anxiety and insecurity.”

For the Communist Party of China, “governing the country according to law” does not mean the “rule of law” as you and I understand it. It is first and foremost a tool to further control society, as the Party understands perfectly well that the rule of law, freedom of information, religious freedom, property rights, and other basic features of democratic governance would mean the demise of the Party’s rule, as Freedom House pointed out in its recent report.

Chinese civil society, fragile as it is, owes its emergence to the dedication and sacrifice of many human rights defenders. Every day, we receive information from all over the country about human rights defenders being detained, disappeared, tortured, or sentenced. But despite the perilous journey, more and more Chinese people – lawyers and journalists, farmers and bloggers, poor and rich, young and old, males and females – have stepped up to join the human rights movement, driven by their dignity, belief in freedom, and the desire to make a difference in our time of great change.

These Orwellian rulers can only do so much damage to the spirit of the people. A few are silenced but many more are inspired by a combination of international and domestic recognition, the admiration of “fellow travellers”, a sense of mission, and occasional victories in human rights cases. I speak from experience. I have been banned from teaching, fired from my job, disbarred, disappeared, detained and tortured for my human rights work since 2003, but I have never felt that I should stop. I believe it is my responsibility to fight for freedom for the next generation, for the dream that my children can live in a free and democratic country. This dream is shared by more and more Chinese people, even at this unlikely moment when the night seems the darkest.

Most Beijing watchers in the west misunderstand Beijing. Every time Beijing has a new slogan like “rule by law” or “harmonious society,” they embrace it as a sign of change, ignoring all the evil the Communist Party of China has been perpetrating. They fail to see where the real hope lies and remain fixated on the ruling class. Their selective blindness has hindered the West’s understanding of the real state of affairs in today’s China. If we human beings can learn anything from modern history, it is that it is time for the West to stop wishful thinking, to stop dancing with dictators, and to support human rights activists who are challenging the one-party dictatorship in China. History will judge the crimes committed by dictators against universal values, and it will also remember those Western governments who adopted short-sighted policies of appeasement in dealing with autocratic regimes and favouring trade over human rights.”

Over 1,000 human rights activists were detained since President Xi took office.

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The Plight of China’s Human Rights Lawyers Worsened

January 19, 2015

Under the title “The Plight of China’s Rights Lawyers” Frances Eve, in Chinafile of 16 January 2015, has made an excellent compilation of the travails of the Chinese human rights lawyers in 2014. It was one of the worst years for civil society and human rights defenders in particular.

Pu Zhiqiang, center, pictured in 2011 talking with the media while he was serving as artist Ai Weiwei’s lawyer – Peter Parks/AFP/Getty Images

At least 9 lawyers either are currently facing criminal charges or began serving prison sentences in 2014: Ding Jiaxi, Pu Zhiqiang, Qu Zhenhong, Tang Jingling, Xia Lin, Xu Zhiyong, Yu Wensheng, Chang Boyang and Ji Laisong (the last 2 now released). The unprecedented scale of criminal prosecution against rights lawyers sharply contradicts the goal of “governing the country by law,” which was proclaimed at October’s Fourth Plenum meeting. Here the whole piece for those interested:

“As the year came to a close, at least seven prominent Chinese human rights lawyers rang in the New Year from a jail cell. Under President Xi Jinping, 2014 was one of the worst years in recent memory for China’s embattled civil society. Bookending the year were the cases of two prominent legal advocates: in January, Xu Zhiyong was sentenced to four years imprisonment for his moderate criticism of government policy and leading the “New Citizens’ Movement,” a group advocating for political reforms in China. Outspoken free speech lawyer Pu Zhiqiang, who turns 50 tomorrow, has spent the past six months in detention as authorities continue to build a case against him.

The past year has been distinctly bad for a band of crusading lawyers, who for the past decade or so, since their movement first emerged, have described their mission asweiquan, “safeguarding rights.” According to several Chinese rights lawyers, more members of their ranks—which have grown from just a handful to over 200—are currently in detention than at any time since 2003, when lawyers involved in this kind of work first began to face criminal detention.

Among the first to be arrested was Gao Zhisheng, a feisty and outspoken defender of everyone, from factory workers and peasants to journalists and underground Christian and Falun Gong practitioners, who was sentenced to three years in 2006 on the politically motived charge of “inciting subversion of state power.” Suspending his sentence, authorities instead held Gao several times in detention incommunicado—where he was brutally tortured—until 2011, when judges ordered Gao to be sent to prison for “violating” his parole. Gao, who was released into a form of house arrest in August 2014, was a prominent case, yet imprisoning lawyers was still unusual at the time. Since then, rights lawyers who have taken on cases involving politically “sensitive” issues have increasingly faced threats, harassment, administrative punishments, the revocation of their law licenses, and, as in a few widely publicized cases, disappearance and eventorture.

But since President Xi Jinping came to power, the government’s war on rights lawyers has escalated. At least nine prominent lawyers either are currently facing criminal charges or began serving prison sentences in 2014: lawyers Ding Jiaxi, Pu Zhiqiang, Qu Zhenhong, Tang Jingling, Xia Lin, Xu Zhiyong, and Yu Wensheng, as well as Chang Boyang and Ji Laisong who were both released on bail awaiting trial after months in detention. The unprecedented scale of criminal prosecution against rights lawyers sharply contradicts the goal of “governing the country by law,” which was proclaimed at October’s Fourth Plenum meeting, a gathering of senior Chinese Communist Party leaders.

A student leader in the 1989 pro-democracy movement, Pu Zhiqing had gone on to represent several high profile free-speech cases, including an anti-defamation ruling in favor of the magazine China Reform in 2004 and a much heralded defence of the authors of a widely read exposé of rural corruption. More recently, he defended activist artist Ai Weiwei and petitioner Tang Hui—who was sent to a re-education through labor (RTL) camp for petitioning for stronger punishment for her daughter’s rapists—in a case which garnered widespread public sympathy. State media evenfeatured Pu in reports on RTL, an unusual platform for a government critic. But now Pu has been detained on charges of “creating a disturbance” and “illegally obtaining personal information” after attending a seminar in May discussing the June Fourth Massacre. Police later tacked on additional charges of “inciting ethnic hatred” and “inciting separatism,” reportedly over a blog post Pu had written criticising the government’s version of the Kunming knife attack in March 2014. Lawyer Qu Zhenhong, who initially served as Pu’s lawyer, was arrested in June in connection with his case.

Tang Jingling, arrested after taking part in a commemorative “June Fourth Meditation” last summer, was a lawyer who defended victims of government land grabs, counterfeit medicine, and village corruption until authorities refused to renew his law license in 2006. He then became a “citizen representative,” continuing to give legal assistance, and later a member of a non-violent civil disobedience movement that works on labor rights, the hukou system, and equal education. At the end of the year, Guangzhou police transferred Tang’s case to the local prosecutor, an indication that he may be indicted and tried soon. If convicted, Tang faces a lengthy prison sentence for “inciting subversion of state power.” Meanwhile, his wife has faced harassment forspeaking out on his case.

In November, authorities arrested two lawyers, Yu Wensheng and Xia Lin, after they were hired by families to represent activists detained for expressing support for the protests in Hong Kong. Yu faces a charge of “creating a disturbance” and Xia, a former member of Pu Zhiqiang’s legal team and partner at Pu’s Huayi Law Firm, is accused of committing fraud. Those imprisoned last year include the lawyer Ding Jiaxi, who is serving a 42-month sentence after demanding government transparency and anti-corruption measures with the New Citizens’ Movement, alongside Xu Zhiyong, whose advocacy and election to his district’s People’s Congress made him another former darling of the Chinese press. Xu missed the birth of his daughter while he awaited his January trial.

While incarcerated, these lawyers have all been granted only limited access to their attorneys. The PRC Law on Lawyers (2007) authorizes lawyers to meet with their clients starting on the very day when they are put under detention, as does China’s Criminal Procedure Law. But, according to lawyers and family members of detainees, such provisions are rarely respected on the ground and often overridden by local administrative or Party orders, especially in political cases.

Family members of the jailed lawyers have reason to fear, since rights lawyers are no strangers to torture in detention and police brutality. Tang Jingling told his lawyer he was assaulted at Guangzhou No. 1 Detention Center, and in an open letter to Xi Jinping Pu Zhiqiang’s wife decried the “inhumane mental and physical torment” her husband has been subjected to at the Beijing No. 1 Detention Center. In Heilongjiang province in March, four lawyers were taken into custody and severely beaten after they requested to meet with their clients; according to their family members, the four suffered 24 broken ribs among them. Gao Zhisheng suffered such ill-treatment in prison that he lost almost all his teeth and remains very frail.

China’s leaders are far from governing the country under a system based on the rule of law. Instead, they are paying lip service to the idea in order to give legitimacy to the Communist Party’s rule while building a legal system that serves their political interests. This includes manipulating the criminal justice system to silence dissent and rein in human rights lawyers who push for judicial independence, fair trials, and protection of their clients’ legal rights. Chinese law bars a convicted lawyer from practising law for good. This is at the heart of what makes the currently growing trend of criminalizing rights lawyers particularly troubling.

Allowing lawyers and the judiciary to carry out their work without political interference is a key indicator of a country’s success in promoting rule of law. In November, China’s nominal legislative body, the National People’s Congress, posted online for “public consultation” several amendments to the country’s Criminal Code. Among these draft amendments is Article 35, which would revise the Criminal Law on the disruption of court proceedings by giving authorities overly broad powers to interpret speech in court as insulting, threatening, or disruptive and includes the vague provision prohibiting “anything else that seriously disrupts court proceedings.” The effect of these changes would be to criminalize lawyers’ speech during trials if they challenge the court, punishable by up to three years in prison. More than 500 rights lawyers across China have signed an open letter to the NPC, demanding they drop this amendment as it runs “counter to the direction of judicial reform.”

China’s embattled rights lawyers, however, have refused to be coerced into submission. On the contrary, they are increasingly challenging authorities for failing to practice the respect for the law that they preach. More young lawyers are joining the movement. Trained professionals, they strongly believe that all suspects should be afforded a fair and public trial, and they see no reason why ruling élites should be above the law. Many are paying a heavy price, but see it as a part of the struggle for a “better future.” Facing the charges against him, Pu Zhiqiang is fully aware of what awaits him. As he said to his lawyer from jail: “If we lose, I probably can’t be a lawyer after I get out, so what can I be?”

The Plight of China’s Rights Lawyers | ChinaFile.

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Asma Jahangir speaks on human rights restrictions justified in name of religion

December 9, 2014

From left: Asma Jahangir, Bill McKibben, Alan Rusbridger and Basil Fernando (photo: Wolfgang Schmidt/Right Livelihood Award Foundation)

(The four winners of this year’s Right Livelihood Award (from left): Asma Jahangir, Bill McKibben, Alan Rusbridger and Basil Fernando. US whistle-blower Edward Snowden (not pictured) also received an honorary award)

Qantara.de 2014 on 9 December 2014 published an interesting interview by Roma Rajpal Weiss with Asma Jahangir, a prominent human rights defenders, winner of the Right Livelihood Award of this year and Laureate of the MEA as far back as 1995. The title “Every restriction is justified in the name of religion” is taken from Asma’s statement that most restrictions on the human rights of women in Pakistan are justified by arguments (perhaps rather feelings) based on religious or tradition. Read the rest of this entry »

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Battered Lawyer Wins Zimbabwe Law Society Award

November 18, 2014

Kennedy Masiye

RadioVop in Zimbabwe reported on 14 November 2014 that Kennedy Masiye, a human rights lawyer who was brutally assaulted by the police recently, has been honoured by the Law Society of  Zimbabwe (LSZ) for his outstanding contribution to the protection and promotion of human rights in the country.

Masiye, a senior project lawyer with Zimbabwe Lawyers for Human Rights (ZLHR) was named as the human rights lawyer of the year 2014 at the LSZ’s Summer School held in Nyanga last week. Masiye could not attend the award ceremony as he was detained in hospital (see picture above) recovering from acts of police brutality meted on him while in the course of discharging his professional duties.

[The LSZ’s human rights award is sponsored by Scanlen and Holderness Legal Practitioners and targets junior to mid-career lawyers under 35 years of age]

Masiye has represented and secured acquittals for several human rights defenders in the country including some former farm workers and villagers facing eviction from their living quarters.

“I am humbled by the award. At least the work that I am doing as a human rights lawyer is being recognised by the legal fraternity. ZLHR has enabled me to explore my potential in the human rights field. The award is an icing on the cake given the work that we have being doing at ZLHR,” said Masiye.

RadioVop Zimbabwe – Battered Lawyer Wins Zim Law Society Award.

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BANGLADESH: Chains of Corruption Strangle Nation — Asian Human Rights Commission

May 12, 2014

To better understand the climate of lawlessness in which the Final Nominee of the MEA 2014, Adilur of ODHIKAR, has to operate, please read the detailed statement below by the Asian Human Rights Commission. It tells how seven men, including a lawyer and city councillor, have been murdered in cold blood, mostly likely by the infamous Rapid Action Battalion (RAB) in Bangladesh. I decided not to shortened it:

“The rule of law does not exist in Bangladesh. The way the Rapid Action Battalion (RAB) abducted seven men, including a senior lawyer and a member of the mayoral panel of the Narayanganj City Corporation (NCC), on 27 April 2014, and murdered them, allegedly on behalf of a feuding faction of the ruling party, in exchange for a 60 million Taka (US$ 774,000) bribe, is proof yet again of this fact. The role of family members of a cabinet minister in masterminding the operation, police inaction in the face of knowledge of the abduction, and eyewash gestures at the highest levels of government confirm fears. The politics of blood and wealth reign supreme in Bangladesh; there is no space for the rule of law. A ‘chain of corruption’ has replaced the ‘chain of command’ in Bangladesh’s law-enforcement system, and the people are forced to pay more to the law enforcers than they do their government (For further details, please see an earlier statement on the subject).

On 27 April 2014, Mr. Md. Nazrul Islam, a Councillor of the NCC, approached the district’s Sessions Court to seek permanent bail in a case filed against him and his followers by political opponents, the Bangladesh Awami League, i.e. the ruling party.

At the court premises, Nazrul was under constant surveillance by plain-clothed members of the RAB. Nazrul’s associates caught one of the plain-clothed men, who happened to be armed, and handed him to the on-duty police officers at the court. The police released the man following intervention by a uniformed RAB officer, who came to rescue his colleague. Vehicles with “‘RAB-11’ signs were also noticed parked in front of the court.

By 12:30 p.m., Nazrul and fifteen more persons, who were all accused in the same case, managed to get bail from the court. After a while, Nazrul, along with three associates and his car driver, left the court. Their car began heading towards Dhaka through the Dhaka-Narayanganj Link Road. Mr. Chandan Kumar Sarker, a senior lawyer of the Narayanganj Bar Association, whose car followed that of Nazrul, left the court for lunch at his home, located adjacent to the Dhaka-Narayanganj Link Road.

The RAB team abducted Nazrul and his associates, allegedly from a place called Lamapara. Chandan’s car is reported to have arrived at the scene right when Nazrul and his associates were being abducted by the RAB. So there would be not witnesses to the abduction, the RAB team abducted Chandan and his car driver too.

Within 24 hours of the abduction, Chandan’s car was found at the Gulshan Niketan area of Dhaka, while the car carrying Nazrul and his associates was found at Rajendrapur, Gazipur District, where a cantonment is situated. After three days, on 30 April, dead bodies of six of the seven men were found floating in the Shitalakkhaya river, adjacent to Narayanganj. The seventh body was found in the same river on 1 May. Each dead body had 24 bricks fastened to it, 12 in the front and 12 in the back. The bricks were placed in ration bags, similar to those distributed among security forces.

The Civil Surgeon of Narayanganj district, who headed the team that conducted the autopsy on the dead bodies, told the media that all the seven victims were hit in the head before they were strangulated. The injuries on most bodies appeared similar; Nazrul’s body had additional injury marks. The abdomens of all seven bodies were perforated, so that the bodies would not float. However, the jute ropes used in fastening the dead bodies rotted under water and gave way. As a result, the dead bodies surfaced. The Civil Surgeon said that he believed “only professional, skilled and trained people could have carried out such an act.“

The police officers later admitted to the media and local human rights defenders that they came to know about the abduction of seven people, including Nazrul Islam and Chandan Sarker, soon after the incidents occurred. However, the police did not take any action. The police did not include the names of any RAB officers in the complaint regarding Nazrul’s disappearance. This is the kind of immunity enjoyed by criminals in the RAB, and the goons of the ruling parties of Bangladesh. The deliberate avoidance of the police, other units of RAB and all the agencies in rescuing the abducted men alive also indicates the level of lawlessness that plagues the country.

Lt. Col. Tareque Sayeed Mohammad, Commander of RAB-11, based in Narayanganj, is married to a daughter of Mr. Mofazzal Hossain Chowdhury (Maya), a cabinet minister of the incumbent regime. The RAB-11 Commander and his brother-in-law, Mr. Sajedul Islam Chowdhury, also known as Dipu Chowdhury (son of Minister Mofazzal Hossain Chowdhury), who is a business partner of NCC Councillor Nur Hossain, allegedly planned the abduction and disappearance of Nazrul, as a result of enmity between Nazrul and Nur, with Nur, allegedly, being a goon of Mr. Shamim Osman.

Mr. Shamim Osman, a Member of Parliament from Narayanganj district won his seat uncontested in the January 5th fake parliamentary election (For further details, please seeAHRC’s statement on the fake general elections in Bangladesh here). Prime Minister Sheikh Hasina backs Mr. Osman; he has even claimed, in a press briefing, that he informed the Sheikh Hasina over telephone within ten minutes of the RAB abduction. Sheikh Hasina, who also happens to be the nation’s Home Minister, has not denied Shamim’s version of events.

The Prime Minister and Home Minister Sheikh Hasina took no action to save the lives of the abducted seven. Her hands are stained with the blood of these seven victims. Following continued public protest, the government withdrew top officials from Narayanganj district two days after the disappearance of the seven men. The officers include the Deputy Commissioner (DC), the Superintendent of Police (SP), and three officers of the RAB-11, namely Lt. Col. Tareque Sayeed Mohammad, Major Arif Hossain, and Lt. Commander SM Masud Rana. The three military officers were deputed back to their original units in the army and navy. On 5 May, the government announced that these three military officers had been given forced retirements. The government has, however, not frozen their bank accounts or arrested any of the officers.

Since the abduction and disappearance of the seven men, a number of people took to the streets around Narayanganj and other parts of the country. The district Bar Association continuously staged protests demanding the return of their member, Mr. Chandan Kumar Sarker. The lawyers called for a general strike in the district, which was supported by different Bar Associations in Bangladesh. Public protests have not stopped.

The Narayanganj Bar Association, along with another organisation and the son-in-law of slain lawyer Chandan Kumar Sarker, has filed a writ petition with the High Court Division demanding the arrest of the military officers.

On 11 May 2014, a High Court Bench has directed the government and the Inspector General of Bangladesh Police to arrest the three military officers. Two of the officers are reportedly being housed in the Logistic Area of the Dhaka Cantonment. The High Court has also asked the authorities to explain why they would not be directed to “effectively consider an amendment to the existing law(s) regulating professional activities of the police, RAB and other law enforcement agencies aiming at updating their various legal provisions relating to their duties and responsibilities towards ensuring effective enjoyment of the citizens’ rights enshrined Article 31, 32, 36, 42 and 44 of the constitution.“

The court has reportedly asked the authorities to explain why the government would not be directed to ensure ‘uninfluenced’ and ‘unbiased’ investigation into the murders. The authorities have also been asked why the government would not be directed to “oversee the performance of the law enforcement agencies in view of human rights“. Secretaries to the home, law, and public administration ministries, the National Human Rights Commission chairman, and the Inspector General of Police have been asked to reply in four weeks. The police have not yet identified all the alleged RAB perpetrators and no RAB official has yet been accused in the cases filed regarding the seven victims.

Could this abduction and murder of seven men have been committed by but three officers? It is likely that more than a dozen RAB personnel were involved in the crime; this is something the government has been trying ignore. Bangladeshis know that the officers of the military and paramilitary forces – such as the Bangladesh Army, the RAB, and the police – enjoy impunity for the crimes they commit. Officers of the armed forces and ruling politicians and their associates and families are understood to be above Bangladesh’s Constitution and other domestic laws while the party is in power.

Everyday, citizens are abducted by plain clothed men claiming to be the officers of the Rapid Action Battalion (RAB) and the Detective Branch (DB) of Police. No such incident has been met with a credible investigation. Citizen questions about the abductions, which are followed by either disappearance or the recovery of dead bodies, have not been answered.

In few incidences the abductees have been found alive, following temporary disappearance. These victims and their families are usually more scared than ever. Nobody dares to share the true stories of their abduction, either publicly or privately, on fear of extrajudicial execution, and with an understanding that an official complaint will come to nothing. On the other hand, law-enforcement agencies continue to blame ‘criminals’ for such abductions and disappearances.

The people of Bangladesh have been demanding that the RAB be disbanded immediately for its utter failure in acting under the purview of the laws of the land. Instead, the RAB, which claims to be an ‘elite force’, has always blamed ‘criminals’ for gross violation of human rights, such as the extrajudicial executions and enforced disappearances. If the RAB’s job is to blame ‘criminals’ for committing crimes like abduction and disappearance, criminals that use similar uniforms, vehicles, and mien across the country, then what kind of elite force is the RAB? The Asian Human Rights Commission and its sister organisation the Asian Legal Resource Centre recommended in 2006 that the government of Bangladesh disband the RAB. At that time, a Special Report titled “Lawless law-enforcement and the parody of judiciary in Bangladesh” was published in article2. The AHRC reiterates that the RAB should be disbanded, immediately, joining voices in Bangladesh making this demand at present.

The discourse regarding abduction, disappearance, and extrajudicial executions should not focus on only the seven victims of Narayanganj, i.e. on event reporting. There are so many names like Mohammad Salim Mian, Imam Hossain Badal, Chowdhury Alam, M. Ilias Ali, who have been victim to enforced disappearance. In last eight years, hundreds of people have been disappeared. The discourse must include all these victims. None of their families have received any answer from the government or justice through the judiciary. The people have to find a way to bring the rule of law to Bangladesh. Presently, law-enforcement agencies do not comply with the system of rule of law. It is the chains of corruption that are being complied with. And, it is these chains of corruption that are strangling the nation and mangling the fate of rule of law, against the people’s aspirations.”

 

BANGLADESH: Chains of Corruption Strangle Nation — Asian Human Rights Commission.

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Nominations for the Lawyers for Lawyers (L4L) Award as from today

January 25, 2013

As of today one can also nominate for the Lawyers for Lawyers Award a lawyer, or a group of lawyers, who work to promote the rule of law and human rights in an exceptional way and who have been threatened, obstructed or in any other way hindered because of their work as a lawyer. An additional criterion is that this lawyer, or group of lawyers, may benefit from the publicity and recognition of the Lawyers for Lawyers Award.

The Lawyers for Lawyers Award, organised by the Netherlands-based NGO with the same name, will be presented for the second time in Amsterdam on 23 May 2013. An independent jury, consisting of  Heikelien Verrijn Stuart, Theo van Boven, Egbert Mlogoyjer and Els Swaab, will decide which lawyer will receive the award. The prize consists of a donation of €10.000. Anyone can submit a nomination, but a lawyer or group of lawyers cannot nominate themselves. The closing date for submission of nominations is 15 February 2013.

Only nominations done on the website will be taken into consideration. The nomination form is available here and other information is available here.

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