The last missing bookseller: One year on, the anniversary of Gui Minhai’s abduction demands action

This op-ed was originally published at Hong Kong Free Press on 17 October 2016.

A year ago today Gui Minhai disappeared while vacationing in Thailand. A Swedish citizen, Gui is one of five Hong Kong booksellers to have been abducted by China last year but the only one who remains missing. On the anniversary of his abduction, it is time to redouble the call for his release.

On January 17, he reappeared, in China, on State-owned television to deliver a forced confession. He admitted having fled China after a supposed hit-and-run in 2003. Chinese lawyers, however, have found no record of the conviction, despite legal requirements that such be public. He claimed he had returned to China willingly, refutable by the lack of official immigration records of him leaving Thailand. Puffy-eyed and struggling with the words, he went on to say he didn’t want help or legal counsel, a common refrain of forced confessions.

Gui Minhai

Broadcasting his forced confession denied his right to a fair trial, which the UN Human Rights Committee has held must be protected at all times. Treating the CCTV broadcast as a conviction in the court of public opinion, the government sought to not only deny him the right to a fair trial but to a trial altogether.

See also: A call that never comes: Why I cannot remain silent after Chinese authorities abducted my father

Following the broadcast, Reporters Without Borders called on the European Union to adopt sanctions against CCTV and Xinhua for ceasing to be news media and violating his right to a fair trial. The European Union passed a similar measure in 2013 against Iranian Press TV but there is no such political will to do so with CCTV, despite a rising trend in televised forced confessions from journalist Gao Yu to human rights lawyer Zhang Kai and others.

For a year now, Gui has been denied regular communication, his whereabouts a secret. The Swedish government hasn’t been informed of the specific charges against him and no legally mandated detention notice has been presented. Angela, his daughter, has been denied contact for months, refused even basic information about his fate

Under international law, an enforced disappearance is when the State takes someone and refuses to acknowledge the abduction or conceals their fate or whereabouts. It is a crime, without exceptions. The International Commission of Jurists has even called it “one of the most odious violations of human rights.” And yet, this is what China did to Gui Minhai.

missing booksellers lee bo

On February 4, the European Parliament called for the immediate release of the five Hong Kong booksellers. Coordinated diplomatic and media attention raised the stakes on China and contributed to the release of the other four but comparable targeted actions for Gui Minhai have been lacking.

Such efforts have been stalled by China’s refusal to acknowledge his Swedish citizenship, attempting to block his access to international support. Sweden’s unwillingness to push his case as forcefully as we might expect if he was a natural born citizen has not helped.

While Sweden’s foreign minister, Margot Wallström, did call Gui’s treatment unacceptable in January, her public statement came only after another Swedish citizen, my friend and former colleague Peter Dahlin, was also detained and forced to confess on CCTV. This lack of proactive action continued, as it took Angela Gui’s moving appearance on Swedish television in September to prompt Wallström to publicly call out the urgency of Gui’s detention. Wallström claims that Sweden is engaged in quiet diplomacy but this approach has been largely insufficient.

Margot Wallström

Margot Wallström.

Although Swedish authorities were finally allowed a second meeting with Gui at the end of September, more than half a year after the first, this should arguably be seen more as the result of slowly mounting international attention than of Sweden’s quiet diplomatic efforts.

Because Gui Minhai is Swedish, diplomatic protocol dictates that it is Sweden’s prerogative on how to proceed. Their failure has been treating this as a simple consular issue, and pursuing the softer-toned approach of quiet diplomacy, which has not worked with China. Without political ramifications, China has little reason to give concessions. This has prevented other countries and the EU from pursuing more active or public measures.

European diplomats with whom I have spoken in private have expressed concern at the apparent lack of urgency from the Swedish government and for treating the abduction of an EU national as a mere consular issue. To be fair, some Swedish parliamentarians and officials have said the same informally.

Because this is not only a Swedish or Chinese issue, when China can abduct a foreign citizen from a third country and hold them in secret detention for over a year it weakens the universality of human rights for all, and puts anyone who opposes China at risk.

In May, the US Congressional Executive Committee on China discussed Gui Minhai’s detention, and in September Angela spoke before the Human Rights Council. It is disappointing that there has been no comparable action before the Swedish or European Parliaments.

Swedish Parliamentarians should request an urgent debate at the upcoming plenary session of the European Parliament. This must receive the strongest possible support from the European Parliament’s subcommittee on Human Rights and Delegation to China group.

The European Union should be prepared to outline concrete follow-up measures.

I understand the importance of cautious diplomacy on sensitive human rights cases, and have personal experience with such mechanisms, but it has limitations. It is no longer enough to rely on quiet diplomacy alone. And so, for the one-year anniversary of his abduction, it’s time for both the European Parliament and the international community to treat Gui Minhai with greater priority and to demand his immediate release.

China should be proud of Wang Quanzhang – instead it persecutes him

This oped originally appeared at the Guardian on 23 September 2016, co-authored with Peter Dahlin.

Last July, the Chinese government launched its most widespread crackdown on rule of law advocates in decades, detaining some 300 rights defenders. Some have been held incommunicado since, with lawyers and family members trying to visit them in detention being told to look elsewhere.

Meanwhile, state media has been given exclusive access to parade many activists as criminals on television before their trial.

One of the key targets of the crackdown is lawyer Wang Quanzhang.

Wang has drawn the ire of the government many times for his defence of villagers against corrupt local officials, Falun Gong practitioners and fellow rights activists such as Ni Yulan whose treatment in police custody in 2010 left her confined to a wheelchair.

In 2013, Wang was detained during trial for refusing a judge’s illegal demand. This was perhaps the first instance of a rights lawyer being held under a process called judicial detention. Hauling away a lawyer in the middle of defending his client aptly illustrates the barriers to legal aid in China.

Following his release, Wang characteristically treated the incident as a learning opportunity and wrote a legal manual on judicial detention for rights defenders. Wang often devoted as much time to assisting other lawyers as he did defending the rights of those who few others dared to represent.

For this he has suffered in secret detention for over a year and now faces a show trial on charges of subverting state power.

Having known Wang for many years and worked together at China Action until early 2014, we can say he is one of the bravest people we will ever meet. His commitment to the rule of law is unimpeachable. The charges are baseless.

State security has explained that Wang’s crime was defending ‘evil cult’ Falun Gong practitioners and using social media to highlight abuses against his clients. It didn’t seem to matter that these actions aren’t illegal, that Wang has broken no laws.

The lack of actual evidence has been highlighted several times since January. Beginning in March, police and state security have tried to pressure Wang’s wife, Li Wenzu, his parents, and even a fellow lawyer to record video accusations against him. They failed.

The authorities tried coercing responses through threats and promises of lightening his sentence, while the detention centre denied his lawyers and tearful family any contact on the pretext of having no record of him.

Li Wenzu has not been spared. She has been harassed and on several occasions detained, a tactic of political violence designed to scare her into betraying her husband or to intimidate Wang into cooperating.

Such lawlessness and abuse of power only reinforces the hollowness of his impending trial.

In early August, the court claimed Wang had given up his right to counsel and preferred a court appointed lawyer, an absurdity for anyone who knows him. Since 2012, Wang has arranged with a trusted colleague to represent him if detained or arrested, a sad necessity in China that most rights lawyers eventually need their own defence lawyers.

Wang has told us many times since 2010 that under no circumstances would he ever accept a court appointed lawyer. It seems no sham trial is complete without a sham lawyer.

At trial, imaginary “hostile foreign forces” will likely be blamed for Wang’s equally imaginary crimes, as we have seen with recent show trials and a slew of anti-Western propaganda videos.

Wang’s work with China Action has been used against him, despite our not having worked together since 2014. It seems irrelevant that our work focused on strengthening Chinese law, because the “crimes” for which he stands accused are meaningless unless the implementation of Chinese law itself is seen as subverting state power.

If the government is serious about there being room for the rule of law in China, it must immediately release Wang Quanzhang and dismiss all charges against him. We hope it is. For rights defenders like Wang and his colleagues – who any nation should be proud to have as citizens – a conviction will reaffirm that it is not.

Stand Against Gender Discrimination in Nationality Laws

This article originally appeared at the Fletcher Forum of World Affairs on 14 August 2016.

Stand Against Gender Discrimination in Nationality Laws

During its thirty-second session, which concluded last month, the United Nations Human Rights Council adopted a newresolution on women’s equal right to acquire, change, or pass on their nationality. This is a positive step for gender equality, not only for the potential benefit to women worldwide, but because it demands greater international awareness of the intersectional abuses of discrimination. Gender discrimination in nationality laws, as with all forms of gender discrimination, doesn’t only affect women and girls. It also affects men and boys. In highlighting the severity of the problem, this U.N. resolution demands greater action from diverse stakeholders – from the civil society organizations that analyze and devise best practices, to governments that must implement new and existing obligations.

The scale of the problem is vast. The New York-based Global Campaign for Equal Nationality Rights explains that over 50 countries maintain some form of gender-discriminatory nationality laws. The United Nations refugee agency (UNHCR) revealsthat 27 countries continue to deny mothers equal rights to confer citizenship to their children.

For example, although men and women confer citizenship equally to children born in Malaysia, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian government. In the Bahamas and Barbados, only fathers confer citizenship to children born abroad. In Jordan and Saudi Arabia, women who marry foreigners almost never confer nationality to their children, while mothers in Brunei, Somalia, and Lebanon have no right to confer their nationality. This denial of equal rights carries many interconnected challenges –especially among ethnic minorities and refugees – that may result in additional human rights violations.

Gender discrimination in nationality laws, says Catherine Harrington of the Global Campaign for Equal Nationality Rights, is aleading cause of statelessness, a global issue that will affect at least 10 million people in 2016. According to the UNHCR, somewhere in the world a stateless child is born every 10 minutes. Within the countries hosting the 20 largest stateless populations, meanwhile, over 70,000 stateless children are born every year.

This trend has become especially pronounced among Syrian refugees in Jordan and Lebanon. In circumstances like this with high levels of migration, the risks of statelessness are compounded by gender-based discriminatory nationality laws in home and host countries. Coupled with high levels of male labor migration, or casualties in armed conflicts, these laws almost guarantee that the children born of single mother refugees in such countries will be born stateless. Without intervention, stateless children become stateless adults who pass their lack of legal status to their children and the cycle repeats itself.

Statelessness leads to profound human rights violations and livelihood challenges. It often denies children access to health and education. It forecloses on the freedom of movement and increases the likelihood of sexual or labor exploitation by traffickers or other predators. Mothers and children in such countries are more susceptible to sexual violence or domestic abuse.  Abolishing discriminatory nationality laws is therefore crucial to the UNHCR campaign to eradicate statelessness by 2024.

Not only do gender-discriminatory nationality laws fuel statelessness, they are themselves a violation of international human rights law, which is unequivocal on discrimination against women. A 2013 report by the Office of the High Commissioner for Human Rights explains, “States are required to take all measures to remove laws and procedures and to abolish practices that directly or indirectly discriminate against women.”

Several human rights treaties elaborate on non-discrimination in the right to nationality. The Universal Declaration of Human Rights establishes the right to nationality, while the International Covenant on Civil and Political Rights specifically guaranteesevery child the right to nationality. The Convention on the Rights of the Child (CRC), Article 7, holds that children should be registered immediately after birth and should have the right to acquire nationality. Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that states “shall grant women equal rights with men with respect to the nationality of their children.”

While CRC and CEDAW are among the most ratified human rights conventions, they also contain a high degree of reservations. More than 10 states, including Brunei, Jordan, and Lebanon, have entered explicit reservations that they do not consider themselves bound by Article 9 of CEDAW, and others including Kuwait and Malaysia have issued similar reservations to CRC Article 7. This must change.

In the last decade some states have addressed gender discrimination in their nationality laws, such as Indonesia in 2006, Kenya in 2010, and Senegal in 2013. The Abidjan Declaration of the Economic Community of West African States in 2015 further committed to ensuring gender equality and eliminating statelessness. These reforms are encouraging but further mobilization is needed, as highlighted by the recent Human Rights Council Resolution.

The Council has called upon states to implement legislation consistent with international standards and to take immediate steps to reform discriminatory nationality laws, to ensure awareness-raising, and conduct gender-sensitive training for officials, judges, and local leaders.

Additional physical, administrative, and cultural barriers must be identified and removed. This includes addressing the role of ethnic or religious nationalism in fueling gender-based discrimination and the denial of citizenship. Policies in this area cannot overlook the paramount importance of birth registration (not only a human right but also necessary to ensure no child is denied a nationality), and the removal or lessoning of financial obstacles to such. States must ensure appropriate remedies for women and children whose rights to nationality have been arbitrarily violated, and provide accessible, safe spaces and protection mechanisms for those at risk.

The resolution calls for an expert workshop on best practices and encourages states, United Nations bodies, civil society organizations, academia, and others to play an active role in eliminating gender discrimination in nationality law and practice. Without diminishing the complexity of this project, academics and policy-makers must recognize the need for increased critical analysis of the causes of these discriminatory laws. Moreover, they must propose legal and policy changes to eliminate gender discrimination in nationality laws and identify effective measures for holding responsible governments accountable.

Campaigning for a Woman UN Secretary-General: A Conversation With Shazia Rafi

I spoke with Shazia Rafi of the The Campaign to Elect a Woman UN Secretary-General, about the selection of a woman Secretary-General to take over for Ban Ki Moon. Below is the interview, originally published at the Fletcher Forum of World Affairs on 16 May.

Before joining The Campaign Rafi served as Secretary-General of Parliamentarians for Global Action, a nonprofit organization of elected legislators in over 140 countries that works to promote peace, democracy, the rule of law, human rights, and gender equality. Rafi is a 1983 graduate of The Fletcher School.

Michael Caster: The previous process for selecting a Secretary-General came under criticism for a lack of transparency in how the Security Council made a decision in private and forwarded a single recommendation to the General Assembly for approval. How transparent do you expect the new process to be? Will it still defer to the same power players even if it’s done more in the open?

RAFI: There is a reality in the world now: everybody is constantly on social media, everyone is a known category, there are no hidden players anymore and everything else is taking place in a sort of fishbowl.

So when it comes to the UN Secretary-General, it has been the only one out of every inter-governmental institution where there haven’t been open candidates campaigning. The change to a more open process was long overdue. The push has come from everybody. Even the P5 have become increasingly uncomfortable with their role as the ones producing the candidates.

The player who has played quite a role in making this transparent has been the president of the General Assembly, former speaker of the Danish parliament [Mogens Lykketoft]. He wanted to give the General Assembly more power under something called the Revitalization of the General Assembly, a sort of rebalance of the UN power system.

He took the reins in both hands and insisted on holding hearings in April 2016 in which the candidates were forced to send in their nominations with their written vision statements and had to come to a meeting with members of the General Assembly.

I don’t know how transparent it really is. While Member States could ask questions from the floor, civil society managed was forced to put questions prerecorded by people they had preselected and it wasn’t clear half the time who these people were. I wasn’t too pleased with that because those of us with civil society are capable of asking from the floor as well. Also, each male candidate had two questions from civil society; each female candidate had three. This difference in treatment didn’t make any sense.

The decision will still be made by the Security Council and they haven’t set themselves a hard deadline. There’s a soft deadline, that by July they hope to open all dossiers that have been received, which means that those who want to be Secretary-General of the UN should have indicated their interest by July.

MC: What happens in September?

RAFI: The process itself is going to take a few months. Their deliberations will start in July, which is when Japan is president of the Security Council.

Then it goes back to the same process as has been previously used. The Security Council will do their internal straw polls as always. The P5 have different color coded-cards from the E10 [elected members of the Security Council] to indicate “encourage,” “discourage,” and “no opinion.”

The winning candidate has to have at least no “discourage” votes from the P5 meaning that they have not vetoed the final candidate. They need four to five of the rest because it still has to be a majority of the Council that agrees with the candidate and sends that name to the General Assembly. Even though there’s a push to try and get two names, so far the Council has said they will send one name.

New Zealand has the presidency of the Security Council in September and then Russia in October. Russians want to see the decision done in October.

MC: With Ban Ki-moon’s selection, when it was Asia’s turn in the regional rotation, most of the negotiations took place between the United States and China. Now with Eastern Europe under review, is it likely to boil down to negotiations between the U.S. and Russia?

RAFI: The region that is up this time is the Western European and Others Group (WEOG), but within that Eastern Europe has never had a Secretary-General. They have made it very clear that this time it’s their turn, which is why you see so many Eastern Europeans among the candidates.

Yes, this time it will be between the U.S. and Russia. I would not read too much into [the current Russia-U.S. relationship in terms of how much it will affect the process]. Countries are capable of having different compartments for their dialogues with each other. So they may not be on good terms related to some part of the world in which they are clashing right now but there are other things they can talk to each other about. These negotiations are a lot about, “If I agree with you on X, what am I going to get on Y?”

MC: How much resistance would you expect from Russia if the regional rotation system were abandoned?

RAFI: I don’t know what the final position of the Russians will be but so far it is very clear that they are still pushing for it to continue to be an Eastern European. The problem with the Eastern Europe group is that unlike the African Union Group or the Asian Group they are a region that is both within the European Union and not, which confuses the matter for the Russians. They may cherry-pick within the Eastern European region which countries they are willing to go for and which countries they are not. I think there’s a lot of fine negotiation that will take place on that basis.

MC: What about the so-called Group of Four (G4)? How have Brazil, India, Germany, and Japan weighed in on the process as part of Security Council reform and other structural issues in the UN?

RAFI: If you listen to the hearings, the question did come from the G4 to every candidate as to whether the candidates were willing to take up Security Council reform, which has kind of been a dead elephant. Candidates were very cagey, all of them, in terms of answering this one because obviously none of the P5 want to give up their power. This is unlikely to go very far.

MC: Your organization has held events and done a lot of advocacy. What have been some of the most valuable or results-oriented activities so far?

RAFI: I think the most important thing that we’ve achieved is that when we started out last year in the spring people were still referring to the next Secretary-General as he and then they started saying he or she and now they are saying she or he. So there is quite an expectation that, all things being equal, the Council will go for a woman. And we intend to continue to push that.

MC: Women in positions of power, either in the private sector or in political roles, are generally burdened with gendered double standards in which the same qualities that are seen as positive attributes in their male colleagues earn them negative perceptions and scorn. How do you see this playing out with a female head of the United Nations?

RAFI: These negative perceptions are the hurdles that we have. If we are strong, we are seen as, pardon me, bitches. If we are not, we are seen as too weak. I think this race is one where the women who are currently going for the job are already at the head of the agencies, foreign ministries, or whatever. They’ve already crossed certain parts of these burdens where their mettle has been tested. The issue here is going to be much more for Member States as to whether they can cross that mental hurdle when finally there are two candidates at the end that meet all criteria. Can they bring themselves to say this time they will weigh in favor of the woman? Because in an institution that’s never had a woman in the job you need that mindset.

It doesn’t mean the woman is less qualified. It means you have to cross that hurdle in an affirmative action mindset as an institution. And that requires a cross-regional coalition. Now there is a coalition of 56 countries, lead by Columbia, that is a General Assembly group of friends in favor of a woman Secretary-General. Some of them are from the Council but none of the P5 are members because they don’t want to commit one way or another yet.

If it turns out that the final short list is a woman and a man, then it will require that gentle push, and our organization intends to push.

MC: What do you think about the influence of having a woman as the Secretary-General on global gender inequality and women’s rights?

RAFI: The UN is the global institution of peace and security and the bulk of the victims of peace and security are women and children. Women are not a minority. They are almost 51 percent of the world’s population. If you adjust for the fact that China and India take steps to mess with the natural gender balance by aborting female fetuses, the majority of the world’s population is women. They are not reflected in economics. They are not reflected in the positions of power in the same way. But having this job in the hands of a woman I think would be a very strong message to the rest of the world.

MC: There are quite a few countries that have demonstrated their lack of willingness to address discrimination against women. Do you anticipate pushback from countries with bad records on women’s rights?

RAFI: No, I don’t think this will be reflected. For example, the United States is one country that has not ratified Convention on the Elimination of All Forms of Discrimination Against Women. It’s the only Organization for Economic Cooperation and Development country that hasn’t. I don’t think that will affect the U.S. vote. The two are not connected. This is part of their diplomacy, not part of what they do in their own countries.

MC: In terms of the escalating challenges that will confront the UN in the future, what would you like to see as the priority for the new Secretary-General?

RAFI: I want to see preventive peace making as the focus of the UN. That is an area which has been neglected in the past. I want to see the mediation role of the UN expanded because that is where we should have been putting our efforts and our funds and our best people in all of these crises that we are now scrambling to deal with.

MC: Do you have any advice for people at Fletcher who want to get involved at any level of this campaign?

RAFI: Fletcher is a leading think tank on a global basis. It’s also one that has enormous connections within the U.S. administration, State Department, and President’s office. There are Fletcher students in almost all the countries that are on the Security Council. I used the Fletcher directory when I was working in every country around the world. It led me to the right people. I think you have within both your current student body and within the alumni people who can be very influential on their government’s decisions on this. I would particularly say the ones from the countries on the Security Council should push in whatever interaction they have for there to be transparency in the process, even within the Security Council, and I would like them to push for there to be a woman.

Eliminating Statelessness in Southeast Asia

This piece was originally published at The Diplomat on 24 May 2016. Available here.

The government of Myanmar has come under fire this month following Aung San Suu Kyi’s rebuke of U.S. Ambassador Scot Marciel’s reference to the Rohingya, the estimated one million stateless Muslim inhabitants of Myanmar’s Western Rakhine State. Aung San Suu Kyi’s government refuses to fully confront the issue of the Rohingya, who have been denied equal access to citizenship since the passage of the 1982 Citizenship Law. The denial of citizenship has compounded human rights abuses, rising to the crime of genocide, according to an October study by Fortify Rights. The persecution of the Rohingya has deservedly captured increasing international attention in recent years, although greater awareness and mobilization is needed. The plight of statelessness remains a universal challenge.

Around the world, there are an estimated 15 million stateless people. According to the UNHCR, somewhere a stateless child is born every 10 minutes and within the countries hosting the 20 largest stateless populations some 70,000 stateless children are born every year. In 2014, the UNHCR announced its Campaign to end Statelessness in ten years. The same year, the Institute on Statelessness and Inclusion reported that more people in Asia and the Pacific are affected by statelessness than in any other region of the world. How ASEAN addresses this challenge will be key to achieving the UN’s objective of eradicating statelessness by 2024.

The Right to Have Rights

Hannah Arendt, in The Origins of Totalitarianism, calls citizenship the right to have rights, a sentiment which entered jurisprudence in 1958 through U.S. Supreme Court Justice Earl Warren, who wrote that the denial of citizenship is the denial of all claims to protection from any nation.

Modern notions of nationality emerged following World War I through a series of League of Nations treaties, which granted States total freedom to determine how individuals obtained or lost nationality. Such absolutism of State sovereignty changed following World War II with the realization of the degree of harm caused by discriminatory nationality laws, such as the Nuremburg Laws. This realization gave rise to Article 15 of the 1948 Universal Declaration of Human Rights, granting everyone the right to nationality.

Also in 1948, the United Nations commissioned the Study on Statelessness, released a year later. The Study affirmed that eradicating statelessness requires that, “Every child must receive a nationality at birth” and “No person throughout his life should lose his nationality until he has acquired a new one.”

The Convention Relating to the Status of Stateless Persons, adopted in 1954, provides the legal definition of statelessness as “a person who is not considered a national by any state under the operation of its law.” The 1961 Convention on the Reduction of Statelessness followed with more guidance. However, both Conventions remain poorly ratified with only 86 and 65 state parties respectively. The Philippines is the only ASEAN country to have ratified the 1954 Convention.

The right to nationality was further codified in the International Covenant on Civil and Political Rights (ICCPR). However, Brunei, Malaysia, Myanmar, and Singapore are not State parties. On the other hand, all ASEAN member states are parties to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Together they prohibit gender discrimination in matters of nationality, require immediate birth registration, and place an obligation on states to respect the right of the child to preserve identity and nationality.

Statelessness in ASEAN

The 2009 ASEAN Intergovernmental Commission on Human rights (AICHR) and 2010 ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) are both mandated with developing strategies for the promotion and protection of human rights. ACWC is furthermore empowered “to advocate on behalf of women and children, especially the most vulnerable and marginalized, and encourage ASEAN member states to improve their situation” and “to propose and promote appropriate measures…for the prevention and elimination of all forms of violation of the rights of women and children.”

Stateless people are indisputably among the most vulnerable and marginalized and international norms make explicit reference to women and children’s equal right to nationality. As such, AICHR and ACWC appear to have a mandated obligation to play a leading role in the elimination of statelessness in ASEAN, especially in ensuring birth registration and the elimination of gender discrimination in nationality laws.

One of the challenges to a regional approach is the lack of a unified definition of statelessness in domestic laws. The 1954 Convention provides the legal definition but the failure to ratify or implement in domestic laws provides countries with maneuverability. The Philippines offers the best example, having enacted the Convention and definition into domestic law in 2012. Vietnam and Laos provide a definition for stateless persons but do not go as far as the Philippines in implementing protections. The refusal to implement the accepted international definition in Myanmar, for example, has contributed to the State narrative that Rohingya do not qualify for protection as stateless because they are migrants from Bangladesh.

Birth registration, a human right vital for protecting against stateless, is not equally guaranteed throughout ASEAN. Cambodia provides a best practice in birth registration campaigning. In 2000, only around 5 percent of Cambodian births were registered. The Ministry of Interior, with support from UNICEF and others, initiated a pilot program involving more than 13,000 people who had received specialized training in birth registration. Within the first ten months of the program over 7 million adults and children were registered. Subsequently birth certificates were issued free of charge within 30 days of birth and only a small fee was incurred for late registration.

However, the 1996 Nationality Law offers no definition for statelessness and ambiguity in language implies that Khmer ethnicity may be a prerequisite for citizenship. Despite birth registration campaigning, several thousand stateless people remain in Cambodia.

Prohibitive costs for birth registration, requirements for documents that are sometimes unavailable or nonexistent, and associated costs of transportation or hospital fees, contribute to statelessness as well. Such obstacles often remain even after well-meaning policies have been adopted.

In Thailand, the 2005 National Strategy on Administration of Legal Status and Rights of Persons and 2008 changes in the Nationality Law ostensibly provided undocumented and migrant children, including stateless children, the right to attend primary and elementary school. Unfortunately, transportation or uniform costs continue to make education prohibitively expensive. Similarly, according to Children of the Forest, a child protection organization that works with stateless children and trafficking victims at the Thai-Myanmar border, among the common ways that children there become stateless is that parents will leave the hospital before registration because they couldn’t afford hospital services. Failure to register at the time of birth significantly increases the burden of registration at a later date. In 2015, the Thai government reported that over 18,000 previously stateless people had been given Thai nationality over the preceding three years. However, concerns over remaining obstacles in Thailand and elsewhere remain.

Gender discrimination in nationality laws is a significant contributor to statelessness. In Malaysia, although men and women confer nationality equally, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian Government. Mothers in Brunei have no right to pass nationality to their children. In a positive move, Singapore, in 2004, and Indonesia, in 2006, amended their nationality laws to permit mothers to pass citizenship to their children.

Three Approaches for the Elimination of Statelessness

The UNHCR acknowledges that some of the safeguards within the 1961 Convention have been enacted by ASEAN Member States. Still, accession to the two Conventions would provide the clearest framework for adapting national laws and policies to identifying, protecting, and eradicating statelessness within ASEAN. Although this is unlikely any time soon, there are three arguably more achievable measures that would strengthen the efforts to eradicate statelessness: empowering regional human rights bodies; emphasizing birth registration; and eliminating gender discriminatory nationality laws.

ASEAN created and empowered the AICHR and ACWC with a relatively robust mandate but they suffer from the lack of independence and weak enforcement capabilities. ASEAN’s Commitment to human rights, as expressed through the 2004 Vientiane Action Program and subsequent treaties, calls for strengthening such mechanisms.

This includes encouraging and working with States to withdraw reservations and amend laws that violate the right to nationality and birth registration, and localizing the legal definition of statelessness.

While civil society organizations are sometimes invited to regional consultations, the AICHR and ACWC remain under government authority. State representatives are largely coordinated by respective ministries of foreign affairs and not by national human rights institutions. Of course, national human rights institutions are not necessarily independent, as demonstrated in Myanmar and Thailand. However, AICHR and ACWC representatives from Indonesia, Thailand, and the Philippines have attempted to work around certain political obstacles by involving civil society and individual human rights defenders in the drafting or evaluation process, at times, and should be encouraged to do more so in terms of nationality issues.

Empowering regional human rights bodies to take a more active role in the identification and elimination of statelessness may also require the improvement of complaints mechanisms. Specifically, regional human rights bodies with a mandate over CEDAW and CRC should have specialized training and procedures for hearing complaints of arbitrary denaturalization, denial of nationality at birth or obstacles to birth registration.

The establishment of a regional human rights court would provide another forum for investigating and prosecuting the widespread or systematic arbitrary denial of nationality or grave human rights violations arising from the denial of nationality.

Registration at birth is of paramount importance. The ACWC mandate implies a role for the organization in birth registration campaigning and, in cooperation with child protection and gender experts, it should arguably take a more active role in harmonizing birth registration laws and advising campaigns throughout the region.

Drawing from Cambodia, efforts at raising awareness through television and radio should be maintained while other channels should be investigated and utilized. Public education during popular holidays would likely reach larger audiences. Because of challenges of birth registration campaigns reaching hill tribes or remote regions of Thailand, for example, efforts should be made to identify new strategies for locations or times of greatest community congregation. Registration campaigners should also concentrate around markets, where women may be likely to congregate. Campaigning should be increased around holidays when people from more remote areas are most likely to be present or when weather is more amenable to travel.

In order to address financial and administrative obstacles, a regional funding mechanism could be piloted to offset the costs of birth registration, including associated transportation costs. A period should be designated when birth registration is free, and after that waivers should be made available for the extremely poor.

There is also a role for innovative technology. Digital birth registration programs point to innovation in improving registration and archiving records.

A robust regional investigation into gender-based discrimination in nationality laws is a fundamental component of addressing statelessness. A widespread gender-based assessment of equal access to nationality should be conducted throughout ASEAN. Member states, especially Singapore and Indonesia, should work with Malaysia and Brunei to amend their Nationality Laws to abolish gender discrimination. Based on their mandates, this presents a strong opening for AICHR and ACWC involvement.

Admittedly there remain serious social and political obstacles to eradicating statelessness. Such obstacles have been reproduced through decades of structural violence and historical narratives of exclusion. The involvement of United Nations experts or foreign governments is not always greeted with fanfare. But ASEAN has made specific commitments and empowered regional bodies with a mandate to promote and protect human rights. Identifying and eradicating statelessness in ASEAN cannot be seen as a foreign imposition, as the government of Myanmar claims, but as an obligation inherent in the ASEAN Charter and within the mandate of regional bodies for the full realization of human rights for all.

Myanmar: Prisoner Amnesty Highlights the Need for Penal Code Reform

This article was originally published at The Diplomat on 5 May 2016. Available here.

A week after having released 199 political prisoners, on April 17 the Government of Myanmar released 83 additional prisoners. Among those released were student activists involved in peaceful protests against the National Education Law and Naw Ohn Hla, a land rights activist involved in demonstrations against the Chinese-backed Letpadaung Mine.

Htin Lin Oo, a writer and former National League for Democracy information officer, was also among those released. In June 2015 he had been sentenced to two years of hard labor for violating section 295(a) of Myanmar’s Penal Code, which prohibits the deliberate and malicious outraging religious feelings. The charge emerged from a speech in which he had accused several prominent Buddhist organizations of extreme nationalism.

He was mostly referencing Myanmar’s notorious monk, U Wirathu, who has been accused of hate speech and incitement of violence against Muslims by international observers numerous times since anti-Rohingya violence erupted in 2012.

Another victim of abusive 295(a) prosecution, New Zealander Philip Blackwood was released in January. Blackwood, along with two colleagues, had been sentenced in March 2015 to two and a half years of hard labor over a psychedelic image of the Buddha wearing headphones they had used as a promotion for their bar. The court appeared to have caved to pressure from Ma Ba Tha, Wirathu’s organization, and their excessive convictions arguably contributed to the ongoing privileging of Buddhism above other religions.

Both cases are emblematic of the susceptibility of the Penal Code to manipulation that furthers discrimination against ethnic and religious minorities.

Speaking on April 19, a spokesperson for the Office of the High Commissioner for Human Rights commended Myanmar’s new President U Htin Kyaw’s commitment to preventing “those who act legally for political causes or for their own conscience from being imprisoned.” Such commitments are positive but they also highlight the need for critical review of laws that do not conform with international standards. Because section 295(a) of the Penal Code has been used to further religious discrimination and to imprison critics of nationalist hate speech, it requires critical examination if Myanmar is to avoid institutionalizing discriminatory practices in this sensitive time of transition.

Historical Irony

There’s an unmistakable irony in that section 295(a) came about in response to the need to prohibit incitement against Muslim minorities by Hindu nationalists, yet it has become instrumentalized in contemporary Myanmar to insulate Buddhist nationalists against prosecution for incitement against Muslim minorities.

Myanmar, like other former British South Asian colonies, bases its criminal law on the Penal Code of 1860. Section 295(a) was added through legislative amendment in 1927.

In 1924, an unattributed satirical pamphlet written in Urdu titled The Promiscuous Prophet had gone on sale in bookstores in Lahore, in present day Pakistan. Responding to a copy he had been sent, Gandhi wrote, “I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions.” Sure enough, protests within the local Muslim community mounted against the publisher, who was ultimately acquitted; the judge ruled that the Penal Code did not explicitly criminalize this manner of religious hate speech. Around the same time a second case dealing with a publication that ridiculed the Prophet Mohammed was brought before the Lahore High Court amid growing demands for an amendment to the Penal Code that would be more sensitive to protecting religious minorities from hate speech.

In 1927 the Government convened a legislative assembly mandated with this task.

Historian Neeti Nair explains that the legislative assembly was concerned with ensuring maximum personal liberty of expression. The assembly was in agreement that in order for speech to be prohibited, the insult to religion or outrage to religious feelings must have been the sole deliberate and conscious intention. In this the lawmakers were concerned not to punish good-faith social or historical commentary or limit attempts to challenge religious adherents in order to encourage reform. For these reasons the final text aimed to explicitly prohibit only the “deliberate and malicious intention of outraging the religious feelings of any class of persons.”

N.C. Kelkar, one of the commissioners, was less convinced that this language would be sufficient to prevent abuse. He proposed including two explanations that would have explicitly noted what is not to be considered an offense under 295(a). This included stating facts and criticism of individuals, tenets, or observances of any religion with a view to promoting social or religious reform. Kelkar was defeated in this proposal and the amendment entered into force on September 22, 1927 without exception.

Kelkar was surprisingly prescient in insisting on further clarifications. The problem in contemporary Myanmar is that the lack of precise language has allowed for the object and purpose of this section of the Penal Code to be disregarded under pressure from Buddhist nationalist forces at the expense of religious minorities and those who may have spoken in their defense.

How the court has interpreted this section of the Penal Code is inconsistent with both Burmese law and international human rights standards.

Inconsistencies with Burmese Law

The Constitution, in Article 34, recognizes the right of every citizen to the freedom of religion. As such the State should have an obligation to protect this right but the lack of transparency and failure to adhere to the law, and bias in favor of Buddhist plaintiffs, implies the courts are not upholding the equal protection of the freedom of religion.

The Constitution is actually somewhat ambiguous on this. Article 361 sets out that Myanmar recognizes the special position of Buddhism as the faith professed by the majority of the country while merely recognizing in Article 362 that Christianity, Islam, Hinduism and Animism were religions existing in the country at the time the Constitution took effect. From recognizing the special position of one to merely acknowledging the existence of others, it is not difficult to see where courts may be pressured to read bias into the law by politicized Buddhist organizations.

That such groups are as much political as religious should, however, raise a major Constitutional concern. Article 364 forbids the abuse of religion for political purposes. In light of Ma Ba Tha’s role in drafting the recent so-called Protection of Race and Religion laws and issuance of threats preceding the 2015 election it is clearly politicized.

While there are limited similarities with Ma Ba Tha claiming religious offence and threatening disorder with Muslim protests against offensive publications in the 1920s, the 1927 assembly was clear to differentiate between intentional offence and social reform-minded criticism such as in Htin Lin Oo’s case. Ma Ba Tha’s pressure on the court is either a willful misreading of the law or, arguably, part of a program that is more political than religious. In either case, such groups have been allowed to exert undue influence over the court due to a lack of judicial training or independence.

The most important element of 295(a) is that the accused acted with deliberate and malicious intent however courts in Myanmar have not consistently ruled on this requirement. In cases where the court has sentenced someone to prison after disregarding this fundamental requirement it has acted inconsistently and in violation of domestic law. The resulting imprisonment should therefore be considered arbitrary detention, a violation of international law.

Inconsistencies with International Standards

Equality before the law is a core human rights norm. The Universal Declaration of Human Rights (UDHR), Article 8, guarantees that everyone has the right to effective remedy by a competent tribunal. Articles 10 and 11 stipulate that everyone is entitled to full equality before a fair and public trial by an independent and impartial judiciary and that nobody shall be found guilty for anything that doesn’t constitute a penal offense under national or international law. This is reiterated in Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The biased rulings on certain 295(a) proceedings are a far cry from the standard of equality and fairness before the law and the courts’ failure to adhere to the intent requirement violates the defendant’s right not to be found guilty for acts that do not constitute a penal offense under national law.

Failure to uphold equality before the law in these proceedings is a violation of the fundamental human right of non-discrimination, which is to be upheld at all times, under all circumstances. Although the UDHR and ICCPR don’t explicitly define discrimination, the Human Rights Committee has held that the Convention on the Elimination of Racial Discrimination (CERD) provides definitional clarity and sets forth guidelines and specific State obligations. Although Myanmar is not a party to CERD, the Convention offers guidance on eliminating discrimination that the new Burmese Government should consider embracing.

CERD explicitly deals with racial discrimination but this can arguably be extended to other forms of discrimination pertinent to section 295(a) and broader Penal Code reform. Article 2 holds that States shall take effective measures to review governmental policies and to amend or repeal laws that allow for discrimination.

Article 4 continues that States shall prohibit organizations that promote or incite discrimination and should not permit public officials or institutions to promote or incite discrimination. The State and courts’ tacit acceptance of Ma Ba Tha and other nationalist Buddhist organizations have contributed to an emboldening and permissive atmosphere for discrimination in favor of Buddhism over other religions. Public officials and institutions are ultimately responsible for the selective implementation of section 295(a), and as such their behavior appears to be in violation of obligations outlined by CERD.

The Human Rights Committee has provided commentary on such implementation in noting that “laws to discriminate in favor of or against one or certain religious or belief systems, or their adherents over another” are impermissible as are laws that “prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith” as long as they do not constitute incitement.

It is clear from the commentary of the 1927 assembly that the commissioners hoped to preserve the freedom of opinion and expression, which the Human Rights Committee has called “the foundation stone for every free and democratic society.” It is so fundamental that international human rights law only permits for limited restrictions, laid out  in ICCPR Article 20, namely propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The object and purpose of section 295(a) appears to conform with international law in this sense, but selective prosecution has amounted to an undue restriction on the freedom of expression.

During the Universal Periodic Review of Myanmar before the Human Rights Council in November 2015, several States including Norway, Turkey, France, and Nigeria made recommendations that Myanmar address the spread of discrimination and incitement against ethnic and religious minorities and enact laws to this effect. Myanmar ultimately rejected most such recommendations claiming they “are contrary to the situation on the ground.” This rejection, however, falls flat in the face of evidence otherwise.

Time for Penal Code Reform

During the follow-up session to the Universal Periodic Review on March 17, 2016, Myanmar’s Representative U Maung Wai remarked that, “as things are changing, and changing in the right direction in the country, a window of opportunity may arise to revisit these recommendations in the future.”

If President U Htin Kyaw is to be taken seriously on his commitment that those who act legally of their own conscience will no longer be imprisoned and if the new Government is sincere in promoting human rights moving forward, it is time for them to see the window of opportunity as wide open. The Office of the High Commissioner for Human Rights, in the same statement mentioned above, has been clear that it is ready to provide expertise to the Burmese Government to reform those laws that do not conform with international standards. Beginning with a review of the Penal Code would be a good start.

Taiwan: Can Tsai Ing-Wen Change the Politics of Death?

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.