Category: Law

  • Home secretary says government will seek leave to appeal against judgment as she gives statement to MPs

    Jacob Rees-Mogg declined to comment on the privileges committee report when he was doorstepped by reporters this morning. He told ITV he was going to church, and then to the Test match.

    The Suella Braverman statement in the Commons on the court of appeal judgment on the Rwanda deportations policy will take place at about 5pm.

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    This post was originally published on Human rights | The Guardian.

  • Deaths and alleged abuse of Kenyan women in Saudi Arabia fuels demands for Nairobi to act on human rights

    Rights groups have expressed concern that not enough has been done to address the alleged mistreatment of domestic workers in Gulf states, such as Saudi Arabia, after the Kenyan government moved to secure work opportunities abroad for its citizens.

    “This is a matter of grave public interest,” said John Mwariri, a lawyer at Kituo cha Sheria, a legal aid organisation. “Many of our Kenyan citizens have been abused and are dying there. There is an urgent need for protections.”

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    This post was originally published on Human rights | The Guardian.

  • If current circumstances prevail, NO will win the Voice Referendum decisively, and this will be a tragedy for Australia. As a YES voter & YES advocate who campaigns every day for YES to VOICE, I can assure you with certainty that a NO victory will occur for one reason only. VOTERS DO NOT TRUST POLITICIANS. …

    Continue reading THERE IS ONLY ONE WAY ‘YES’ CAN WIN ‘VOICE’ REFERENDUM

    The post THERE IS ONLY ONE WAY ‘YES’ CAN WIN ‘VOICE’ REFERENDUM appeared first on Everald Compton.

    This post was originally published on My Articles – Everald Compton.

  • In Brief

    Legislation passed by the U.S. House of Representatives and a Senate committee in the first half of this year seeks to change China’s label of developing country used in the World Trade Organization (WTO). Chinese officials have responded by reaffirming that China is still a developing country under international law. 

    Asia Fact Check Lab (AFCL) found that there is no clear and uniform definition of a “developing country” within the international community. Different classifications systems used by the UN and World Bank refer to China respectively as a “developing economy” and an “upper middle-income country,” while the WTO allows countries to self-identify as a “developing country.”. 

    In addition, China’s classification as a “developing country” in certain international treaties does not imply that there is a universal set of international laws which define China as a “developing country.”

    In Depth

    The U.S. Senate Committee on Foreign Relations approved the Ending China’s Developing Nation Status Act on June 8. The bill requires the State Department to attempt to “stop China from being classified as a developing nation by international organizations”  and specifies the World Trade Organization (WTO) as one international organization in which the People’s Republic of China (PRC) receives “beneficial treatment” as a result of its status as a developing country. 

    Chinese Ministry of Foreign Affairs spokesperson Wang Wenbin responded to the bill at a press conference on June 9, saying that “China’s status as the world’s largest developing country is rooted in facts and international law” and that “the rights that China is lawfully entitled to as a developing country” will not be deprived by US politicians.

    Wang had earlier claimed at a press conference on May 12 that China’s status as a developing country should not be changed due to the WTO recognition. 

    Who decides whether a WTO member is “developing or not?” 

    Wang Wenbin’s claim that China’s status as a developing country is recognized by the WTO is false, as the organization allows individual member states to decide for themselves whether they are a developing country or not. 

    The WTO does not provide specific definitions for “developed” and “developing” countries. It is up to individual members to declare their own categorization. However, other members have the right to question the decision of a member country to utilize provisions meant for developing countries.”

    How do the World Bank and the UN classify China’s economy?

    Both the UN and the World Bank use gross national income(GNI) per capita as the defining criteria to measure a countries’ economic development. 

    The UN World Economic Situation and Prospects report classifies different countries’ economies into four categories: developed, developing, least developed and economies in transition. China’s economy is classified as developing. 

    China’s economy is classified as “developing” by a UN report and as “upper-middle income” by the World Bank. Credit: AP
    China’s economy is classified as “developing” by a UN report and as “upper-middle income” by the World Bank. Credit: AP

    The World Bank, on the other hand, does not use the word “developing” at all, but instead divides the world’s countries into four tiers: low, lower-middle, upper-middle and high. China stands on the border between upper-middle income and high income countries, with nominal per capita income at $11,880 as of 2021. While a huge leap from forty or even twenty ago, this number is still well below that of other widely recognized developed economies such as Japan, the U.S., Germany, France or Taiwan

    Does international law entitle China to remain a developing country?

    The Chinese foreign ministry claims that the basis of China’s status as a developing country in international law cannot be denied. The ministry pointed to the recognition of such status in international treaties such as the United Nations Framework Convention on Climate Change, the Montreal Protocol as proof of its acceptance by the international community. Wang’s statement that the U.S. was attempting to “deprive China of its developing country status” would seem to further imply that China’s status as a developing country is permanent. 

    Such claims are misleading. 

    “There are no authoritative definitions of ‘developing country’,” Steve Chanozits, an associate professor of law at The George Washington University, tells AFCL. “There is no consensus definition in international law.  Countries can self-assess their own progress toward their development goals and the international community can also make such an assessment.” 

    While there are many international treaties which divide countries into different categories based on income, with each category bearing different obligations, Charles Kenny, a senior fellow at the Center for Global Development, told AFCL. These categories and their cutoff points are determined after negotiation amongst the relevant parties, Kenny says. 

    Therefore, China’s status is not permanent or “lawfully entitled” as China’s foreign ministry indicated, but it has a certain time limit and must undergo regular review or redefining by member states in the institutions, Chen-en Sung, an expert on international law and director of the Taiwan Constitutional Foundation, told AFCL. China’s developing status shouldn’t be generalized, but must instead be viewed in light of the respective provisions of the cited treaties, along with the rights and obligations of countries labeled under different statuses.

    Why does it matter whether a country is labeled as developed or developing? 

    In certain international organizations such as the WTO, the designation of being a developing country allows a country to seek (but not necessarily to obtain), “special rights or extra leniency.”

    “Various categorizations are used for purposes including who gets financial support to achieve various global objectives, or who gets greater leniency when it comes to international trade rules or who is eligible for ODA [Official development assistance], there are reasons why countries might want to put themselves in the ‘developing’ category,” Kenny says.

    Furthermore, the label of a “developed” country often carries a responsibility to help poorer countries in tough economic straits and to abide by more stringent regulations on issues of global importance such as climate change. 

    Being designated as a “developing” country allows countries to request “special rights or extra leniency” in the WTO. Credit: AP
    Being designated as a “developing” country allows countries to request “special rights or extra leniency” in the WTO. Credit: AP

    “The PRC often uses its status as a middle-income country to excuse itself from global responsibilities – including fighting climate change and in the provision of debt relief in the current debt crisis. However, the sheer size of the PRC’s economy means that it is impossible to deliver global public goods in climate or in staving off the current debt crisis in many developing countries if it continues to avoid its responsibilities or adherence to international norms,” a United States Agency for International Development spokesperson told AFCL. 

    Conclusion

    AFCL found that China’s economy qualifies as developing and upper middle income according to the respective standards set by the UN and the World Bank. Currently, within the WTO organization, China is recognized as a “developing country.”

    However, the status in the WTO is based on self-declaration, and it may be subject to uncertainty in the future due to its own development or challenges from other members, according to WTO rules. 

    China’s foreign ministry’s statement that China’s status as a developing country “rooted in facts and international law” is misleading.


    This content originally appeared on Radio Free Asia and was authored by By Shen Ke.

    This post was originally published on Radio Free.

  • China scores better on food, health and housing, while crackdowns have worsened Hong Kong’s ratings

    China has been ranked as the worst country in the world for safety from the state and the right to assembly, in a human rights report that tracks social, economic and political freedoms.

    The Human Rights Measurement Initiative (HRMI), a New Zealand-based project, has been monitoring various countries’ human rights performance since 2017.

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    This post was originally published on Human rights | The Guardian.

  • This content originally appeared on Human Rights Watch and was authored by Human Rights Watch.

  • Ombudsman rules that hospital in Nowy Targ failed to tell Dorota Lalik, 33, that her life was in danger and could be saved by an abortion

    “Stop killing us,” protesters across Poland chanted this evening, demanding the legalisation of abortion, after reports reached the media of a pregnant woman’s death in a hospital in May.

    On Monday, Poland’s patients’ rights ombudsman, Bartłomiej Chmielowiec, said that the John Paul II hospital should have told 33-year-old Dorota Lalik that her life could be saved through an abortion. The hospital violated her rights by withholding the information, the ombudsman ruled.

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    This post was originally published on Human rights | The Guardian.


  • This content originally appeared on Democracy Now! and was authored by Democracy Now!.

    This post was originally published on Radio Free.

  • Liberty writes to home secretary saying she acted unlawfully because parliament had rejected measures

    Human rights campaigners have begun legal action against the home secretary, Suella Braverman, after she forced draconian new police powers through parliament in a move described by the House of Lords as a “constitutional outrage”.

    Liberty wrote to Braverman on Wednesday, saying her move to empower police to curtail or restrict protests that caused “more than minor” disruption was unlawful.

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    This post was originally published on Human rights | The Guardian.


  • This content originally appeared on openDemocracy RSS and was authored by Chrissy Stroop.

    This post was originally published on Radio Free.

  • Seg2 trump assange 2

    The majority of former President Donald Trump’s charges for mishandling classified documents stem from the Espionage Act, a World War I-era law that has often been used to silence dissent and go after whistleblowers. We speak with Chip Gibbons of Defending Rights & Dissent, who calls for reforming the Espionage Act. Regardless of Trump’s conduct, the Espionage Act is “basically unconstitutional” and should not be used as it is currently written, says Gibbons, and notes Trump himself used the Espionage Act to go after whistleblowers when he was in office.


    This content originally appeared on Democracy Now! and was authored by Democracy Now!.

    This post was originally published on Radio Free.

  • Prime Minister Hun Sen has instructed his government to speed up a draft election law amendment that would ban any politicians from running for office if they don’t vote in next month’s parliamentary election.

    Amendments to two articles in the election law would prohibit those who don’t vote on July 23 from ever running for any commune, district, provincial, Senate or National Assembly office, he said at a public gathering with workers in Phnom Penh on Tuesday. 

    “If you dare not vote, you won’t be able to run for councilors or Senate,” he said. “You will be done.”

    The move appears to be aimed at boosting voter turnout, and in reaction to talk of an election boycott by opposition activists, according to Sam Kuntheamy, executive director of the Neutral and Impartial Committee for Free and Fair Elections in Cambodia.

    The boycott would be a way of expressing public anger over the banning of the main opposition Candlelight Party from running in the election.

    The proposed amendment would also impact voters who don’t vote in this election, he said. “The amendment will change the vote from ‘right to vote’ to ‘compulsory to vote,’” he said.

    Phil Robertson, Human Rights Watch’s deputy Asia director, said Hun Sun is trying to pressure people to vote because he thinks a high voter percentage will bring legitimacy to the election, said 

    “There is nothing he can do to make the election legitimate because he has already engineered – through a bogus requirement – the disqualification of the main opposition party,” he told Radio Free Asia. 

    “So this is Hun Sen running against a bunch of firefly parties, parties that really don’t have any chance of winning. And he’s trying to inflate the numbers,” he said.

    ‘If you dare’

    Hun Sen also accused activists from the opposition Candlelight Party of launching an Internet campaign urging people not to vote. 

    Last month, the National Election Committee ruled that the Candlelight Party couldn’t appear on the ballot, citing inadequate paperwork. The party had hoped to organize a demonstration this month to protest the ruling but postponed that after Hun Sen threatened to arrest the party’s vice president and other members.

    Hun Sen has implemented many bad laws to protect his power since 2017, when the Supreme Court ordered the Cambodia National Rescue Party – the main opposition party at the time – to be disbanded, according to Eng Chhai Eang, a top CNRP official who now lives in the United States.

    One way around the new requirement would be for voters to go to polling stations, take a ballot into a voting booth and then destroy it, he said. 

    “All parties can join in this,” he said.

    Only a dictator would change the election law just six weeks before an election, Robertson said.

    “Hun Sen likes to borrow rights’ abusing ideas from other countries. He borrows from Singapore. He borrows from military coup governments in Thailand. He borrows whatever sort of thing he can use to try to justify whatever he needs to do,” he said.

    “The reality is that this election is rigged. It’s fixed from the beginning.”

    Translated by Samean Yun. Edited by Matt Reed and Malcolm Foster.


    This content originally appeared on Radio Free Asia and was authored by By RFA Khmer.

    This post was originally published on Radio Free.

  • Jury clears ‘Brook House three’ of public nuisance charges over non-violent protest near Gatwick

    Three activists who lay on a road outside an immigration detention centre to prevent people being put on a Home Office deportation flight to Jamaica have been cleared by a jury of charges of causing a public nuisance.

    The acquittal at Lewes crown court was hailed by the defendants at a time when the right to non-violent protest is under unprecedented threat.

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    This post was originally published on Human rights | The Guardian.


  • This content originally appeared on Radio Free Europe/Radio Liberty and was authored by Radio Free Europe/Radio Liberty.

    This post was originally published on Radio Free.


  • This content originally appeared on openDemocracy RSS and was authored by Jim Fitzpatrick.

    This post was originally published on Radio Free.

  • Downing Street crisis meeting hears that about 8,000 who arrived under Operation Warm Welcome will be evicted this summer with nowhere to go

    Thousands of Afghan refugees in the UK face homelessness this summer, the government was warned last week at a secret crisis meeting in Downing Street.

    Council officials told No 10 and Home Office civil servants that about 8,000 Afghan refugees, allowed into the country in 2021 under the slogan Operation Warm Welcome, are due to be evicted from hotels as early as August because of a government deadline, yet have nowhere to go.

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    This post was originally published on Human rights | The Guardian.

  • New Delhi, June 8, 2023–The Indian government must repeal the country’s sedition law and reject recommendations from the Law Commission to retain and expand the legislation, as it would impinge on press freedom, the Committee to Protect Journalists said Thursday. 

    On May 24, the commission, which advises the Indian government on legal reforms, recommended retaining the country’s sedition law, expanding the definition of sedition, and increasing the punishment for violating the law, citing the need for national security.

    India’s Supreme Court suspended the law in May 2022. The Indian government had promised to “re-consider” and “re-examine” the British colonial-era law after its constitutional validity was challenged in the Supreme Court by journalists and human rights organizations.

    “We are deeply concerned by the Indian Law Commission’s recommendation to retain the country’s colonial-era sedition law–which has been repeatedly abused to stifle freedom of the press and expression–and to enhance its punishment and implement an overbroad definition for sedition,” said Beh Lih Yi, CPJ’s Asia program coordinator. “The Indian government must formulate a timeline to repeal the sedition law and ensure it is never again used against any journalist for doing their job.”

    Under the current Indian statute, sedition is described as attempts to create “hatred or contempt” or excite “disaffection” towards the government by spoken or written words, signs, or “visible representation.” 

    The commission recommended adding to the definition “with a tendency to incite violence or cause public disorder,” according to independent news website The Print. The interpretation of “tendency” would mean “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.”

    The commission also proposed increasing the punishment of sedition from up to three years’ imprisonment to seven years and keeping the potential penalties of life imprisonment or a fine.

    India Law Minister Arjun Ram Meghwal said the recommendations were not binding, and a final decision will be made after consulting all stakeholders.

    CPJ’s emails to Meghwal and Ritu Raj Awasthi, chair of the Law Commission, did not receive any replies.

    The sedition law has often been used in India to target journalists. In 2012, CPJ wrote to the then-Prime Minister Manmohan Singh demanding its repeal.


    This content originally appeared on Committee to Protect Journalists and was authored by Committee to Protect Journalists.

    This post was originally published on Radio Free.


  • This content originally appeared on openDemocracy RSS and was authored by Chrissy Stroop.

    This post was originally published on Radio Free.


  • This content originally appeared on Human Rights Watch and was authored by Human Rights Watch.

    This post was originally published on Radio Free.


  • This content originally appeared on Democracy Now! and was authored by Democracy Now!.

    This post was originally published on Radio Free.


  • This content originally appeared on Democracy Now! and was authored by Democracy Now!.

    This post was originally published on Radio Free.

  • Guest seg3 onziema rally split

    We go to Kampala, Uganda, to discuss the impact of one of the most draconian anti-LGBTQ laws in the world, just signed by Ugandan President Yoweri Museveni. The new law makes same-sex relationships punishable by life imprisonment. Some LGBTQ people could receive the death sentence. Homophobia in Uganda is heavily influenced by American evangelists, who function as “exporters of hate,” notes Pepe Onziema, a Ugandan human rights activist, causing LGBTQ Ugandans to “end up as collateral damage.”


    This content originally appeared on Democracy Now! and was authored by Democracy Now!.

    This post was originally published on Radio Free.

  • Global outcry over Museveni’s assent to draconian new anti-gay law, condemned as a ‘permission slip for hate and dehumanisation’


    Uganda’s president, Yoweri Museveni, has signed into law the world’s harshest anti-LGBTQ+ bill, which allows the death penalty for homosexual acts.

    The move immediately drew condemnation from many Ugandans as well as widespread international outrage. The UK government said it was appalled by the “deeply discriminatory” bill, which it said will “damage Uganda’s international reputation”.

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    This post was originally published on Human rights | The Guardian.

  • Experts point to crackdown on national security and legal system that encourages guilty pleas

    Chinese courts prosecuted 8.3 million people in the five years to 2022, a 12% increase on the previous period. There was also a nearly 20% increase in the number of protests against court rulings.

    The figures released by the supreme people’s procuratorate (SPP) in March give a glimpse of how China’s notoriously opaque justice system has operated in recent years, amid a tightening domestic security environment.

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    This post was originally published on Human rights | The Guardian.

  • Council of Europe committee warns new legislation risks breaching internal convention rights and the rule of law

    The UK has been accused of wrongly labelling refugees and trafficking victims as criminals in a critical report from European representatives.

    The report from a committee of the Council of Europe’s parliamentary assembly has warned ministers they could be at risk of breaching their international obligations and the rule of law with their new legislation.

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    This post was originally published on Human rights | The Guardian.

  • Victoria was sentenced to 21 months but has served 15 years. Even the politician who introduced indefinite detention now says he regrets it

    There are those of us who exist in a more or less free society. And there are those who, while also living within the borders of the United Kingdom, exist in a police state. If the rest of us knew these people existed and what was being done to them in our name, we would scarcely believe it.

    No one, including Victoria Carter (an assumed name), would deny that her crimes warranted a significant prison sentence. She had come from a terrible place: a father who beat her up, an alcoholic mother whose friends sexually abused her, extreme poverty as all the money was spent on drink. As a young teenager, she ran away from home, after which she had more than 10 placements in foster care and care homes. She responded with anger, violence and self-destruction.

    George Monbiot is a Guardian columnist

    Do you have an opinion on the issues raised in this article? If you would like to submit a response of up to 300 words by email to be considered for publication in our letters section, please click here.

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    This post was originally published on Human rights | The Guardian.

  • On 6 December 2022, the Parliament of Indonesia passed the country’s new criminal code (NCC), outlawing sex and cohabitation outside of marriage. Under the new law, extramarital sex carries a jail sentence of one year, while cohabitation of unmarried couples carries a jail term of six months. In a statement given to Reuters, a spokesperson for the Indonesian justice ministry justified the law on the grounds that it aimed to “protect the institution of marriage and Indonesian values.”

    The law was passed despite widespread outrage, with thousands taking to the streets in protest, as well as a coalition of Indonesian civil society organizations petitioning the country’s president to delay the law’s passage. Regardless of the government’s claims that the law is designed to protect “Indonesian values,” the new criminal code flagrantly violates Indonesia’s obligations under international human rights law (IHRL).

    In order to get a sense of Indonesia’s IHRL obligations, it is essential to examine  the relevant treaty to which Indonesia is a party—namely, the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR places a responsibility upon State Parties to uphold the right to privacy using the language, “no one shall be subjected to arbitrary or unlawful interference with his privacy,” which includes the right to freedom of association and the right against arbitrary or unlawful interference with privacy.

    The right to sexual freedom is woven within the tapestry of the right to privacy.  For instance, in Toonen v. Australia at the United National Human Rights Council (UNHRC), the major issue was the prohibition of homosexual intercourse in Tasmania (one of Australia’s six constitutive states). The UNHRC concluded that a prohibition on adult consensual homosexual intercourse constituted “arbitrary interference” with Mr. Toonen’s right to privacy (para. 11), thus violating Article 17 of the ICCPR. Indonesia’s NCC, by criminalizing sex outside marriage, constitutes severe and arbitrary interference on individuals’ rights to privacy and association in the same manner as Tasmania’s ban on homosexual intercourse. Thus, the NCC violates Indonesia’s commitments under IHRL.

    To qualify as a legitimate restriction on the rights in the ICCPR, a measure must meet two tests as set out in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR and General Comment No. 18 (para. 13) (For UNHRC jurisprudence see here). First, the differentiation must be reasonable and objective. Second, it must be to achieve a legitimate purpose under the ICCPR. While examining the applicability of the legitimate restriction exception in such cases, Fellmeth writes that it is essential to look at the degree of state interference into sexuality (p. 890). Such an exception was created to protect laws that aim to combat child abuse or actions demeaning women. However, countries like Indonesia are trying to misuse it to legitimise the oppressive NCC.

    For example, in Fedotova v Russia Federation at the UNHRC, Russia argued that a restriction on dissemination of “homosexual propaganda” amongst minors was based on the reasonable and objective purpose of avoiding harming their development by forming perverted views about family values. The UNHRC refused Russia’s arguments and concluded that the State could not restrict Fedotova’s right to freedom of expression about her homosexuality to protect “traditional family values.” Additionally, in Toonen v. Australia, Tasmanian authorities had argued that the ban on homosexual intercourse was based on the reasonable and objective purpose of public health to prevent the spread of HIV/AIDS in Tasmania (para. 6.5). However, the UNHRC and even Australia itself denied the assertion that criminalization of homosexual activity would prevent the spread of HIV/AIDS (para. 8.4). Thus, Tasmania’s defence of their law working within the ambit of legitimate exceptions was denied by the UNHRC (para. 8.4) In an extremely similar manner as in Fedotova v Russian Federation, Indonesia has based their restriction on the right to privacy on “protecting the institution of marriage and Indonesian values.” This does not meet the reasonable and objective criteria as depicted by UNHRC jurisprudence in Fedotova. Further, Indonesia has provided no argument towards the legitimate purpose test. Thus, the NCC would not qualify for the legitimate restriction exception.

    The NCC poses a legitimate threat to the members of the LGBTQ community living in Indonesia and constitutes an arbitrary interference to their right to privacy. Such a law combined with a political climate which systematically targets members of the LGBTQ community has stifled hope for the community in Indonesia. The former Defense Minister of Indonesia, Ryamizard Ryacudu, had stated that the existence  of LGBTQ activists is “more dangerous than nuclear warfare” and that they have “declared a proxy war on the State.” As per a report by the Human Rights Watch, the LGBTQ community in Indonesia is under constant threat and there also have been instances of militants attacking LGBTQ activists. The circumstances in Indonesia illustrate how sexual and moral panics may construct certain subjects as dangers to the existing social order and try to propagate the regressive idea that the “moral,” righteous people must be safeguarded from the “deviant.” Further, the NCC effectively criminalises the existence of the LGBTQ community within Indonesia and has a disproportionate impact on them.

    The New Criminal Code recently introduced by Indonesia’s Parliament poses a clear and present danger to the basic right of sexual freedom in the country, violating Indonesia’s obligations under international human rights law. The international community must come together to swiftly condemn this act, and support the advocacy of Indonesian citizens and civil society groups who are protesting this attack on basic freedoms.

    This post was originally published on LSE Human Rights.

  • Since the elevation of the Bharatiya Janata Party (BJP) to power on the national level, India has been witnessing a state-driven clampdown on the rights of its citizens in furtherance of the ruling disposition’s ideological agenda. The BJP- a right-wing, Hindu Nationalist party that believes in replacing India’s pluralistic, secular democracy with an ethnocratic Hindu state, secured an absolute electoral majority on its own for the first time in the 2014 General Elections under the leadership of strongman Narendra Modi and replicated its performance in the 2019 elections. Under its watch, arrests of dissidents, activists, journalists and intellectuals, who refuse to toe the regime’s line, have become increasingly more common, with scant regard paid to evidence and guidelines  enshrined  in  the  Code  of  Criminal  Procedure  (CrPC).  Religious  minorities  have become especially vulnerable as they routinely face systematic state persecution and violence from vigilantes. Draconian laws, such as the Unlawful Activities Prevention Act (UAPA) and Prevention  of  Money  Laundering  Act  (PMLA),  in  effect,  sanction  preventive  detention  by making  bail  well-nigh impossible to procure. These laws initially aimed to combat criminal activities, such as terrorism and money-laundering. However, the present government has since amended the statutes to bypass some of the most fundamental principles of fairness, such as the presumption of innocence and the right to be heard. The process has thus become the punishment, making these laws a handy tool for the state to crack down on dissent. The continued  incarceration  of  activists  from  diverse  backgrounds  pertaining  to  a   civil  society gathering at Bhima Koregaon and journalists like Siddique Kappan whose bail plea was rejected in October last year, are some of the most egregious instances of the misuse of these laws. In the former case, following the breaking out of violence at a gathering called by activists belonging to the Dalit community, a group of intellectuals and human rights activists affiliated with different institutions from all across India were linked to the incident on sketchy evidence and arrested. One of them, Fr. Stan Swamy, died in incarceration, whereas others had to spend more than three years in prison before securing bail. Repression of civil society organisations, independent media houses, and think tanks using investigative agencies has become commonplace under the Modi regime.

    This state of affairs is prevalent despite judicial decisions over the years that have characterized detention for long periods without trial as a violation of the right to life and personal liberty as provided under Article 21 of the Indian constitution. The Supreme Court has also provided a set of guidelines in D.K. Basu v. State of West Bengal, for police officers to follow, concerning arrests. In Joginder Kumar v. State of U.P., the court stressed the need for sufficient justification for arresting the accused. Acknowledging that most of the arrests in the country were either unnecessary or unjustified, the court established a set of safeguards such as immediately informing the relatives and friends of the accused about his arrest.

    However, judicial diktats have failed to dissuade the state from committing unlawful arrests, primarily due to the absence of a legal framework to affix accountability. In the face of repeated instances of non-compliance with its directions and recognizing the need to provide the victims with a remedy, the apex court, in Rudal Sah v. State of Bihar, observed that true relief didn’t simply constitute a release from imprisonment; instead, compensation had to be provided to the victims to mitigate, in some measure, the harm suffered by them as a result of spending long periods in incarceration. The court has since then, unequivocally asserted multiple times that compensation is the ‘only appropriate remedy’ in cases of violation of Article 21.

    Despite past decisions, recent actions of the judiciary reflect a change in its stance, as exhibited in the Akshardham case, in which the Supreme Court decided not to grant compensation to people who had wrongfully faced prosecution and detainment, even while acknowledging that the accused had been the scapegoats of a conspiracy. This particular decision of the judiciary shows that giving compensation is still a matter of judicial discretion in India, and depends on the deliberations of individual benches. However, the Akshardham case decision is in stark contrast  to  the  protections  that  are  supposed  to be provided by Articles 9 (5) and 14 (6) of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 (5) of the European Convention on Human Rights (ECHR). Specifically, these sections lawfully outline that there should be an enforceable right to access these payments in cases of unlawful prosecution and detention. While ratifying the former covenant, the Indian government confessed that no such right existed in India. Conversely in Spain, a statutory right to compensation exists in cases where there is proven judicial or procedural error concerning arrests. Spanish courts have applied this  principle  to  even  those  cases  where  the  accused  is  made  to  undergo  detention  by the authorities after following every safeguard and gets acquitted after the trial. Such a position avers that rights can’t be curtailed by the state simply on the suspicion of guilt, or by maliciously imputing guilt on the basis of flimsy evidence- principles that desperately need to be  incorporated into Indian criminal jurisprudence.

    As of now, the absence of a clear statutory or constitutional right to compensation in cases of unlawful prosecution and detainment encourages the state to continue to abuse its power and disobey expressly laid out judicial directions. The arbitrary arrests of dissenters and journalists are the most glaring evidence of the abusive repression. Such actions not only intimidate the regime’s critics, but also whip up public support for the BJP’s ideological project, as the government misrepresents these actions as strong measures intended to maintain national security. Seen together with the attempts to erode the autonomy of democratic institutions, discriminatory laws, and policies targeting religious minorities, undermining of federalism, and widespread proliferation of hate speech and fake news, such acts of repression threaten the foundations of Indian constitutionalism. One possible solution, therefore, would be to elevate the right to compensation for violation of Article 21 to the stature of a fundamental right; the legislature can viably incorporate this right into Article 32 of the Constitution, which provides for the right to secure remedies for the enforcement of fundamental rights by approaching the Supreme Court. Adopting such a measure would bind the state to legally having to compensate individuals who have had to endure long years of wrongful imprisonment, thereby serving both as a remedy for the victims and an effective deterrent against such actions in the future.

    Bibliography

    Statutes

    1. International Covenant on Civil and Political Rights
    2. European Convention on Human Rights
    3. Constitution of India
    4. Code of Criminal Procedure

    Cases

    1. Sebastian M. Hongray vs Union Of India 1984 AIR 571
    2. Shri D.K. Basu State of West Bengal 1997 1 SCC 416
    3. Rudul Sah State of Bihar 1983 AIR 1086
    4. Bhim Singh, MLA State of Jammu and Kashmir AIR 1986 SC 494

    Other Sources

    1. Ara, I. (2022) A List of Activists, Scholars and Scribes Whose Personal Liberty Remains at Judiciary’s Mercy. The Wire. Available at:  https://thewire.in/rights/jail-bail-hearings-court-delhi-riots-elgar-parishad [Accessed 25 Nov. 2022]
    2. Loganathan, S. (2022). Watch | Data Point: UAPA, 153A, PMLA: What do these laws have in common? The Hindu. 8 Sep. Available at:  https://www.thehindu.com/data/watch-data-point-uapa-153a-pmla-what-do-these-laws-have-in-common/article65865206.ece [Accessed 27 Nov. 2022].
    3. Shantha, S. (2022) Bhima Koregaon Violence: Four Different Theories, but No Justice in Sight.  The Wire.  Available at:  https://thewire.in/rights/bhima-koregaon-violence-four-different-theories-but-no-justice-in-sight [Accessed 27 Nov. 2022].
    4. The Indian Express. (2016). Akshardham terror attack case: SC refuses compensation plea of acquitted persons. Available at: https://indianexpress.com/article/india/india-news-india/akshardham-terror-attack-case-sc  -refuses-compensation-plea-of-acquitted-persons-2895251/ [Accessed 27 Nov. 2022].
    5. poderjudicial.es. (n.d.).  C.G.P.J – Leyes.  Available at:  https://www.poderjudicial.es/cgpj/es/Temas/Compendio-de-Derecho-Judicial/Leyes/Ley-Organica-6-1985–de-1-de-julio–del-Poder-Judicial [Accessed 27 Nov. 2022].
    6. Nair, R (2022) Violations of Rights and Compensation: India’s Failure to Adhere to International Standards. The Leaflet. Available at: https://theleaflet.in/violations-of-rights-and-compensation-indias-failure-to-adhere-to-international-standards/ [Accessed 27 Nov. 2022].

    This post was originally published on LSE Human Rights.

  • This is a slightly revised version of a vote of thanks given after a panel to launch of the ‘Women and Whitlam’ book with contributors, Elizabeth Reid, Marie Coleman and Blair Williams in conversation with editor Michelle Arrow. This was part of the ANU Meet the Author series, organised by Colin Steele at Kambri Cultural Centre Cinema, April 18. The podcast is available at  Meet the author – Michelle Arrow, Marie Coleman, Elizabeth Reid and Blair Williams.

    If you’re interested to know more about the book itself, check out this Q and A Michelle Arrow did with BroadAgenda editor, Ginger Gorman.

    As the Honorable Tanya Plibersek observes in her foreword in popular memory, “the Whitlam government can feel like a three-year blur of movement and change.” But those revolutionary changes took years of hard, detailed policy work, much of it in the “long, cold exile of opposition” for 23 years. Moreover, despite the parlous representation of women in Parliament, the judiciary and senior levels of the public service at the time, these changes were co-created in partnership with women who were directly affected by major policy changes. As Plibersek avows, as we now say, Nothing about us, without us.

    Women were brought into the governing apparatus, but were connected to large numbers of women beyond, mobilised through the Women’s Electoral Lobby and the wider congregation of the Women’s Liberation Movement, embracing vibrant, diverse, debating streams of feminists – liberal feminists, radical feminists, socialist feminists. I swam in the latter stream.

    Plibersek draws two great lessons from Gough Whitlam – first that governments must be brave and bold, and second that they must be practical. She quips: “You can buy Blue Poles and sewer Western Sydney.”

    The many contributors chart how expansive this revolution was for women. Legislation and policy changes initiated included:

    • Equal pay for work of equal value, extension of the minimum wage for women, early analyses of the gendered segmentation of the work force and of gaps in pay and superannuation
    • The establishment of paid maternity leave provisions for women working in the Commonwealth Public Service
    • No fault divorce and the establishment of the accessible Family Court system, moving marriage law away from the patriarchal precepts of medieval ecclesiastical courts and Christian notions of guilt
    • Support for women subject to domestic violence, and for divorced, widowed and unmarried mothers, through the Supporting Mothers’ Benefit
    • Provision of broad public health support through Medibank (pushed back under Fraser, but reanimated as Medicare under Hawke) and specific women’s services – cheap, accessible contraceptives, breast screening, pap smears and moves toward to the decriminalisation of abortion (although that was not effected across all states and territories until 2019)
    • Free tertiary education for women and men (precipitating a great wave of university enrolments including many working class and older women)
    • Robust support for the arts – leading to the establishment of the Australia Council, the Australian Film Commission and the Australian Film, Television and Radio School which afforded opportunities for women performers including Cate Blanchett, Margaret Roadknight and Patricia Amphlett (aka Little Pattie)

    And a range of other policy developments: support for the disabled, dedicated urban and regional planning, the end of conscription and the release of draft resisters from prison, all of which had positive effects for women.

    Born in 1949 into a working-class family in Sydney where I was involved in the anti-war movement, the women’s movement and students for a democratic society, I felt viscerally the effects of these revolutionary changes in Australian politics and society. They transformed, indeed revolutionised, my horizons for the future.

    This book consummately charts these revolutionary changes in Australian society – across diverse fields – women’s influence in politics, women and the law, women’s health, welfare, and social policy, women in arts and education. I was sad not to see the latter accompanied by a consideration of the revolutionary changes in higher education – not just in the numbers of women as students and staff but of the radical revolution in knowledge, challenging masculinist disciplines and misogynist practices.

    Still, the book shows the vital connections between these several fields across the broader terrain of Australian society. For example, the changes effected in family law (as remembered by Elizabeth Evatt and Camilla Nelson) were integrally connected with the broader changes in what was happening in socio-economic life and in social values.

    Authors contributing to this book combine moving personal memoir with consummate analysis of the processes they were engaged in and the changes they were precipitating. I especially relished Biff Ward’s evocation of sisterhood in the women’s movement in Canberra in the 1970s and her recollection of the party where the position of a Special Adviser to PM Whitlam was announced – a post awarded to Elizabeth Reid. Less rosy recollections pervade the chapter co-authored by Cathy Eatock and her late mother Pat – a woman who combined strong commitments to women’s rights and Aboriginal rights but who endured domestic abuse, difficulties with caring for a disabled child and homelessness.

    (L to R) Marian Sawer, Elizabeth Reid, Blair Williams, Mare Coleman, Michelle Arrow at the "Women and Whitlam" author event in Canberra. Picture: Supplied

    (L to R) Marian Sawer, Elizabeth Reid, Blair Williams, Mare Coleman, Michelle Arrow at the “Women and Whitlam” author event in Canberra. Picture: Supplied

    She lived for a while at the Women’s Liberation House on Bremmer Street (where she and her kids could only bed down when meetings were over) and with her friend Elizabeth Reid (who was her campaign manager when Pat ran as an Independent for parliament. Pat suffered racist interrogations and vilifications of her Indigenous identity. She eventually won a defamation case against Andrew Bolt.

    There are graphic accounts of media and popular misogyny in the period. There was the snide reporting of women appointed to new well-paid positions in the public service –  sexist jokes proliferated (e.g. to Margaret Reynolds that Chairlady sounded like Charlady). There was the infamous Canberra Times’ reportage on the Women and Politics conference in Canberra in 1975 which brought over 800 women to the capital.

    This occasioned a vigorous protest from many delegates who occupied the newspaper’s offices, demanding professional journalistic standards. Similarly in reports on the International Year of Women, and subsequently the large UN Conference in Mexico in 1975, divisions between women were often exaggerated and amplified. Yet, there were welcome signs of the popular penetration of new values – alongside the “Easy Summer Cooking” in The Women’s Weekly appeared an “Easy Guide to Family Law.”

    I focus finally on the key message for me about that revolutionary period and how this matters in our present feminist moment. Fundamentally, that is the need for sustaining an interaction between a large social movement and bold action at the heart of government. This is a potent double helix. As Elizabeth Reid and Biff Ward so eloquently show us, it was the mobilisation of women in small consciousness-raising groups, where the personal was political, in large meetings and conferences, and on the streets which put pressure on and legitimated this cascade of policy changes.

    The cover of "Women and Whitlam." Picture: Supplied

    The cover of “Women and Whitlam.” Picture: Supplied

    Moreover, in her work as Whitlam’s Special Adviser Elizabeth reached out through consultations with women right across Australia and they reached out to her in a flood of letters. Moreover, although women like her and a number of other women who authored chapters in this book might be recognised as ‘leaders’ in this period, there was a broader feminist ethos which stressed collectivity rather than individualist achievement.

    As Ranuka Tandan persuasively argues in her chapter – a grassroots women’s movement is vital. And a social movement relevant today and resilient in the face of future misogynist pushbacks must be one that embraces women in all their diversity, and that expressly and frankly confronts the entanglement of the oppressions of race and gender. Tandan celebrates First Nations women fighting on the street today.

    We might recall that when Elizabeth Reid made her famous speech at the UN Conference in Mexico she addressed that question, confronting how the feminist perspectives of women differed, diverging between what were then called ‘First World’ and ‘Third World’ (what we might now call minority and majority worlds). It was exciting to be part of that large crowd outside Parliament House in the March4 Justice in 2020 and to witness the incendiary intergenerational outrage which ignited there.

    It is gratifying to see the boldness of young white women like Grace Tame and Britanny Higgins. But, as Ranuka Tandan and Blair Williams argue it is important to work to redress intersecting oppressions and to build and sustain the energy of a large, inclusive social movement, beyond the bright spotlight of the media, and now the relentless spotlight of social and digital media, with its even greater potential for misogyny. As someone who has worked in universities for decades, I end by highlighting how important universities are as sites for transforming knowledge for revolutionary social change, as places where books like this can be created, launched and most importantly read for their insights for our shared feminist futures.

    • Elizabeth Reid was appointed the world’s first advisor on women’s affairs to a head of government by the Australian Labor Government of Gough Whitlam in 1973. Picture: Ginger Gorman  

    The post Whitlam’s revolution and why it matters now appeared first on BroadAgenda.

    This post was originally published on BroadAgenda.

  • Background

    Recently, Singapore’s parliament decriminalised sex between men, thereby, repealing the British colonial-era law i.e., Section 377A of the Penal Code, which was discriminatory and inconsistent with the rights to equality, privacy, and freedom from arbitrary arrest and detention.

    The Court of Appeal had explicitly ruled last year that Section 377A of the Penal Code stays on the books but cannot be used to prosecute men for having gay sex, asserting that this regulation is unenforceable in its entirety. As a result, the aforementioned legislative change was expected to have come sooner or later.

    Judicial Decisions over the years

    Repeatedly, Section 377A has been challenged and marked by the courts of Singapore as unconstitutional. In 2010, Tan Eng Hong v. Attorney-General was the first judicial challenge made, wherein, the Court of Appeal held that the authority to strike it down lay only with the legislature. Furthermore, in another landmark ruling of Lim Meng Suang v. Attorney-General in 2014, the Court of Appeal held that Section 377A was valid and consistent with Article 9 (right to personal liberty) and Article 12 (right to equality) of the Constitution of Singapore.

    In addition to the above, multiple petitions were filed for the repeal of this draconian section following the high-profile repeal of Section 377 of the Indian Penal Code in 2018, which is effectively identical to Section 377A of the Singapore Penal Code, but all such legal challenges went in vain and were eventually dismissed by the courts in Singapore.

    Finally, on the 21st of August, 2022, current Prime Minister Lee Hsien Loong announced that the government would table a motion in the Parliament to quash Section 377A. After a two-day debate, Section 377A was officially repealed on the 29th of November, 2022.

    Legal Implications

    Although decriminalisation is a welcome step, it comes hand-in-hand with another amendment that proposes the introduction of a new “Institution of Marriage” clause as a reform to the existing constitution that would clarify that the Parliament, and not the courts, have the sole right to make laws to “define, regulate, protect, safeguard, support, foster, and promote” the institution of marriage. Such a move by the government showcases the unequal treatment meted out against the LGBTQ population of the country.

    As is quite evident from the above discussion, the bill has been introduced to, firstly, appease the conservative segment of the Singaporean society and, secondly, prevent court challenges that in other countries have led to the legalisation of same-sex marriage and hence, appears to be a massive setback for the LGBTQ community. The government’s opinion that the fundamental rights of the LGBTQ people are a political issue rather than a legal one also highlights their blatant disregard for the community’s interests.

    Social Implications

    Gay rights campaigners are relieved by the government’s decision but believe that “the true impact of repeal will be determined by how the people of Singapore respond to it, and treat each other, in the days and months to come.”

    There are still abundant stories of discrimination being meted out against the community. To  begin with, certain television programs in the nation continue to depict homosexual men as deviants, failing to acknowledge their authentic identities, ultimately resulting in the perpetuation of an enduring stigma in the minds of people, in a way, fostering a perception that being gay is morally objectionable.

    In the end, while courts have struck down this colonial law, the Singaporian society still does not accept homosexuality in its complete sense, thereby refusing to give up its current viewpoint on heterosexual marriage. In light of this, the Roman Catholic Archdiocese of Singapore also emphasized on the fact that, “the fruitfulness of marriage necessitates that marriage must be open to procreation.” Hence, we find ourselves in a position where there is a need to overcome such prejudicial social attitudes. The government’s stance to try and balance both the pro- and anti-standpoints cannot work in the long run. With an increasing public participation and shift towards a more liberal stance, Singapore will be exposed to increasingly globalised values. As a result, with enough public discourse, there could hopefully be a possibility for a legalisation of same-sex marriage in the future.

    Conclusion

    In Singapore, although attitudes towards LGBTQ issues have shifted towards a more liberal stance in recent years, especially among the young, but conservative attitudes remain strong among religious groups, which is apparent from the National Council of Churches of Singapore’s statement that, “the move has weakened the legislation’s role as a moral signifier.” Hence, the LGBTQ community still has a long way to go in changing the prevailing misconceptions and fostering an understanding societal atmosphere for their community.

    The new constitutional amendment now hangs like a sword over the heads of gay rights activists who will once again need to convince the masses that complete equality needs to be the norm in Singapore. Such changes, however, leave room for a future parliament to expand the definition of marriage to include same-sex relationships following the lead of countries such as Brazil, the United States of America, and Taiwan

    As a global community, we need to make sure that LGBTQ couples and their families also get their due right to be recognised and protected with immediate effect.

    This post was originally published on LSE Human Rights.