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Biweekly Human Rights Roundup

Human Rights Round Up #26

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Biweekly Human Rights Roundup

Modern Slavery in Malaysia, Challenge over Shariah Law, Rohingya Protection Report … Human Rights Round-up (29/05/2020)

1. Modern slavery in Malaysia

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(The Star)

#MigrantsRights

Tesco’s slavery review reports abuses in Malaysia. Among the 168 migrant workers interviewed, the allegations consist of: passport retention, unexplained and illegal wage reductions, heavy indebtedness to labour brokers in home country, and excessive overtime. 

Tesco has developed a plan, entailing detailed investigations of alleged abuses, setting up support lines and grievance mechanisms for agency workers and guidelines to ensure workers have access to passports whenever needed.

2. Constitutional challenge over Selangor’s Shariah law criminalizing unnatural sex

29 May 6
(Queer Lapis)

#LGBT

The Federal Court recently decided that it will hear a man’s constitutional challenge over a Selangor state law that makes it a Shariah offence to have unnatural sex, specifically on whether the Selangor state legislative assembly has the powers to enact this state law in the first place.

Check out Queer Lapis for more info!

3. Period Poverty and Covid-19

29 May 7
((Vimala Kanagaratnam  – Picture courtesy of Kotex Malaysia; The Star)

#WomensRights

Social Marketer, Ms Kanagaratnam, and Kotex Malaysia have teamed up to provide 384 packs of sanitary pads to women and girls in need across the Klang Valley, including the Enhanced Movement Control Order (EMCO) zones.

Those from the B40 communities have benefited – due to COVID-19, many have either lost their income or had to rely on limited financial resources.

4. Private hospitals fined RM200,00 under Price Control and Anti-Profiteering Act 2011

29 May 4
(Free Malaysia Today)

#Healthcare

The Association of Private Hospitals Malaysia (APHM) was handed a RM200,000 compound fine for charging patients RM201.60 for 18 pieces of 3-ply face masks used by the nurses during treatment. It was RM11.20 for each mask, almost 10 times higher than the government’s ceiling price of RM1.50.

5. Myanmar submits first Rohingya protection report

29 May 8
(The International Court of Justice; The Irrawaddy)

#Genocide

Myanmar has submitted its first report to the ICJ on the measures it is taking to protect the Rohingya as required by a court order in January. 

Previously, the ICJ issued 4 urgent measures against Myanmar requiring it to comply with the UN Genocide convention and to report them, after Gambia filed a case against Myanmar.

6. Rohingya refugees yearn for Myanmar at Hari Raya

29 May 9
(Free Malaysia Today)

#RefugeeRights

In Malaysia, the Rohingya get to freely celebrate Hari Raya, not only with festive food and visiting friends, but also colorful lights on the streets 

These are non-existent in Rakhine – regularly closed mosques, jailed relatives and police harassment are usual all year round, even during Ramadan.

Rahman, who has been in Malaysia for three years with his wife and two sons, said he is happy living in a Muslim-majority country and going to mosques unimpeded by the police, but he readily admits he would trade it all for a chance to return to Myanmar.

“Malaysia is helping us in a way no other country is, and I appreciate all the help we have received. But this is not our country and we are all just living here temporarily… Definitely, if we can go home, we will…,” he said.

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General Writings

An Explainer on The Gambia v Myanmar at the International Court of Justice

Written by Jefferi Hamzah Sendut

2019-12-12_gambia_icj
Credit: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ

In an ongoing case at the International Court of Justice (ICJ), The Gambia is suing (‘bringing a case against’) Myanmar, accusing Myanmar of committing genocide against its Rohingya population. This post outlines how the case has been brought to the ICJ (see also previous analysis of the case’s route to the ICJ, for example here, here and here).

The ICJ is the UN’s top court, composed of 15 independent judges. Although the ICJ may issue formally non-binding ‘advisory opinions’, its primary role is to make binding judgments to settle disputes between countries, referred to as ‘States’ in legal terminology. The ICJ only settles disputes between States – individuals cannot bring a case to the ICJ themselves, or have a case brought against them. This aspect of the ICJ’s role is the focus of this post. 

The importance of consent

The ICJ can only settle disputes between States with their consent. Without the consent of the States involved, the ICJ will have no power, or ‘jurisdiction’, to decide a case. This is a key difference between the ICJ’s role, and the role of national courts, which have compulsory jurisdiction. The ICJ must first establish that it has jurisdiction before it can consider the substance, or ‘merits’, of a case.

State consent is expressed in three main ways. First, consent may be expressed when two States agree to bring a specific dispute to the ICJ, making a ‘special agreement’ to do so. This occurred between Malaysia and Singapore in the Pedra Branca/Pulau Batu Puteh case. 

Second, consent may be expressed through the ICJ’s ‘optional clause’ system. States can voluntarily declare that they consent to the ICJ settling certain kinds of disputes involving them. A declaring State can subsequently bring a case against, or have one brought against it, by another State which has made a corresponding declaration. The Aerial Incident case between Pakistan and India illustrates how the optional clause system operates. The ICJ was unable to make a final merits judgment after Pakistan brought a case against India, because although both States made an optional clause declaration, the declarations did not correspond. The text of India’s declaration showed that unlike Pakistan, it had not consented to the ICJ settling disputes between it and the other Commonwealth States. 

Third, a State may consent to the ICJ’s jurisdiction through a ‘compromissory clause’ included in an agreement, or ‘treaty’, between it and other States. When States make treaties with each other, they may include a clause in which they agree to submit to the ICJ any future disputes relating to the treaty. These clauses are known as compromissory clauses. This method of expressing consent to the ICJ’s jurisdiction differs from the making of special agreements, because the main content of the treaty involved will concern a general subject matter. These are not agreements relating to a specific dispute, made after a dispute has already arisen. 

The compromissory clause in the Genocide Convention 1948 treaty is what enabled the current case between The Gambia and Myanmar. The main content of the Genocide Convention, which Myanmar committed to in 1956, concerns rules on the prevention and punishment of genocide. One of its clauses states that the ICJ will settle related disputes. In bringing a case against Myanmar, The Gambia is arguing that a dispute exists between it and Myanmar relating to commitments under the treaty, and that Myanmar has consented to the ICJ settling this dispute. The case at the ICJ is hence distinct from a criminal trial of an individual which would occur at the International Criminal Court, for instance. 

Linked to this, The Gambia must formally establish the existence of a dispute between it and Myanmar to enable it to use the Genocide Convention’s compromissory clause. A dispute would require The Gambia and Myanmar to have ‘clearly opposite views’ on the fulfilment of legal obligations. The Gambia has sought to show this using UN reports, both Gambian and Myanmarese statements, and a note sent by it to Myanmar. Although traditionally considered a low bar to clear, The Gambia will be wary of its importance after the 2016 Marshall Islands cases, where the ICJ threw cases out for the first time due to a technical lack of a dispute. 

The requirement of standing 

The Gambia must additionally show it has the standing to bring its case against Myanmar, meaning it has a ‘legal right or interest’ in the subject matter of the case. While The Gambia itself has not been directly ‘injured’ by Myanmar’s persecution of the Rohingya within Myanmarese territory, it has argued that the Genocide Convention’s obligations are ‘erga omnes partes’ obligations. The Gambia is arguing that like the UN Torture Convention, all States committed to the Genocide Convention have an interest in the fulfilment of its obligations, regardless of whether they are injured

Conclusion 

In a recent decision in The Gambia v Myanmar case, the ICJ provisionally ordered Myanmar to ensure it respects the Genocide Convention while the case continues. What this means is that the ICJ accepted that The Gambia’s arguments are strong enough to show there is an urgent risk of irreparable harm to relevant legal interests which the ICJ may protect. The ICJ has not yet definitively decided whether it has jurisdiction to decide on the merits of the case, nor has it made a merits decision that Myanmar has committed genocide. Nevertheless, the case is one to watch, not only because of its implications for the Rohingya people, but also as a demonstration of the ICJ’s dispute settlement role in an important context.

 

Writer Profile

Jefferi
Jefferi Hamzah Sendut is a Master of Laws Candidate at the London School of Economics and Political Science. He holds a law degree from St John’s College, University of Cambridge. His research interests include international dispute settlement, international human rights law, and international investment law.

Categories
Biweekly Human Rights Roundup

Death Penalty, Child Marriage and Freedom of Religion… Human Rights Round-up (24/01/20)

  1. Singapore’s execution of death sentence alleged to be unlawful and “brutal

24 Jan 1
(Bernama)

#DeathPenalty

Rights group Lawyers for Liberty (LFL) has been informed by a Singaporean prison official that if the rope breaks during the hanging, the prisoner will be yanked in opposite directions and kicked on the neck hard to simulate hanging injuries. LFL advisor N Surendran said it was possible that the Singapore’s government leaders including its home minister are unaware of the matter and that every death row prisoners in Changi, including Malaysians, are in danger of suffering “this excruciating death”.

2. Police lockups to have Custodial Medical Unit

Doctor
(Canva)

#DeathinCustody

In collaboration with the Health Ministry, Federal police Management Director Datuk Abd Rahim Jaafar announced an initiative to set up a Custodial Medical Unit (UMU) at police lockups to reduce the number of deaths in custody. Datuk Abd Rahim said, in line with Rule 10 of the Lock-up Rules 1953, each detainee will be examined to ascertain whether they are fit to be detained or require immediate medical attention. He also expressed hopes that this examination will prevent inappropriate incidents, such as the alleged police torture and abuse, from happening.

3. Underage marriage to be addressed by Five-Year Strategic Plan

24 Jan 6
(Amazons Watch Magazine)

#ChildMarriage

ASASI is glad to share the news that the Malaysian government has a National Strategic Plan to tackle child marriage. Deputy Prime Minister Dr Wan Azizah Wan Ismail, who launched the plan, said the government has identified six major causes of underage marriage: poverty; lack or no access to reproductive health education; lack of access to education and society’s stigma that marriage is the best choice to solve problems. For the implementation and development of programmes under the plan, a steering committee has been set up as a platform for implementing agencies to report on the “status, issues and challenges as well as suggestions for improvements for each programme that is being implemented”.

4. Human Rights Watch: Malaysia’s Human Rights reforms are still slow

24 Jan 5
(Zunar)

In its 2020 report, Human Rights Watch (HRW) mentioned that Malaysia is still very slow in reforming human rights. HRW acknowledged that the new government has taken steps in upholding human rights, such as repealing Anti-Fake News law and strengthening parliamentary independence to consider rights issues. However, Malaysia still fails to accomplish reforms in important areas such as freedom of religion, child marriage, and LGBT rights.

5. Leave to appeal in declaring as non-Muslim allowed in the Federal Court

Mahkamah
(Ask Legal)

#FreedomofReligion

The Federal Court has granted leave to appeal (permission for a party to appeal to a higher court) for Rosliza Ibrahim’s declaration that she is a Buddhist and not a Muslim. Her originating summons claimed that she was brought up by her late Buddhist mother, not by the Muslim father and no registration of marriage between her parents. Previously her case was dismissed because it was held that her case was under the Syariah Court’s jurisdiction and not the Civil High Court.

6. Myanmar ordered by the ICJ to protect Rohingya from genocide

24 Jan 7
(Wikipedia)

#RefugeeRights #Genocide

The United Nation’s highest court, the International Court of Justice (ICJ), unanimously declared there was prima facie evidence of Myanmar breaching the 1948 Genocide Convention and warned that the estimated 600,000 Rohingyas remaining in Myanmar were “extremely vulnerable” to attacks by the military.  Thus, the ICJ ordered for emergency “provisional measures” to be enacted in the country. The ICJ’s orders are legally binding on Myanmar.

7. Stay of execution granted for SIS until appeal 

 

SIS 2
(Sisters in Islam)

#WomensRights

The High Court has granted a stay of execution of a fatwa against Sisters in Islam (SIS). The 2014 Selangor fatwa declared SIS as deviant and its enforcement was decided in 2019.  SIS Executive Director Rozana Isa said not only the threat of enforcement will affect the operations of SIS, under current legal provisions, it is a Shariah criminal offence to go against a fatwa. Rozana added that despite being heavily scrutinized, many women and men still seek for their help and advice regarding many issues, for example “child marriage, female genital mutilation, children born out of wedlock, marital rape, polygamy, maintenance, etc” and they should not bear the risk of such enforcement of the fatwa.