Violence Against Speakers / Impunity, National Security, Political Expression
Vietnam v. Ta Phong Tan (The Case of Blogger Ta Phong Tan)
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) found that Sudan was responsible for the violation of Articles 2, 4, 5, 6, 7, 8, 9, 10, and 26 of the African Charter on Human and Peoples’ Rights (“The Charter”). The instant case concerned the human rights situation prevailing in Sudan from 1989 until the signing of the Peace Charter on 10 April 1996 and the Khartoum peace agreement of 21 April 1997. Following the coup of 30 July 1989, the Sudanese military and police arrested, illegally detained, executed, and tortured non-Muslims and individuals allegedly associated with the Sudan People’s Liberation Army (“SPLA”) without conducting prior criminal investigations or exhausting fair judicial proceedings. Likewise, government opponents, trade unions and religious leaders, and human rights activists were persecuted, harassed, and arrested by government officials based on their beliefs. The Respondent State argued that during Sudan’s state of emergency, any political opposition to the Revolution for National Salvation (“RNS”) which threatened national security amounted to a violation of the Decree on Process and Transitional Powers Act of 1989. In this respect, the African Commission held that the restriction of human rights during national emergencies is not permitted beyond what is necessary; when such measure is required by law, the restriction should be minimal as per the spirit of The Charter. The Commission also ruled that in a democratic society, the fulfillment and enjoyment of human rights must not be seen as a threat to national stability and security; quite the contrary, human rights legitimize the government and its operations. Hence, in the instant case, the Commission held Sudan responsible, inter alia, for restricting the right to freedom of expression based on an emergency order.
The present case concerned four complaints lodged following the arbitrary arrests, illegal detentions, acts of torture and ill-treatment, and the restrictions imposed by the government of Sudan on the rights to freedom of conscience and expression of individuals associated with the Sudan People’s Liberation Army (“SPLA”) or with religions other than Islam. These applications were as follow: (i) Communication No. 48/90 filed by Amnesty International in October 1990; (ii) Communication No. 50/91 submitted on 30 November 1991; (iii) Communication No. 52/91 filed on 19 March 1991; and (iv) Communication No. 89/93 lodged on 27 August 1992, all of these were combined and examined together by the Commission.
In the first of the joined communications, the Applicants complained that after the coup of 30 July 1989, countless arbitrary arrests and illegal detentions were perpetrated by the police and the military in Sudan, without prior exhaustion of trials and effective investigations. In the second of the joined communications, the Applicants echoed the allegations introduced by the Applicants in the first case, notably that members of opposition groups, including lawyers and human rights activists, were illegally detained and arrested by governmental authorities.
Based on the Applicants’ remarks, the Sudanese Constitution of 1989 was suspended due to a state of emergency order issued in light of the armed conflict taking place in Sudan at the time of the events. The constitutional suspension prevented individuals from lodging complaints to protect their human prerogatives, such as their rights to liberty and security. During the time of the suspension, the Decree No.2 of 1989 allowed “…the detention of anyone suspected of being a threat to political or economic security under a state of emergency” and for the President to issue arrest orders without having to provide evidence or any support for such decisions of detention [para. 3].
In addition, the Applicants complained that the Sudanese Penal Code of 1983 permitted the imposition of the death penalty. An individual could be sentenced to the death penalty for carrying foreign currency without prior declaration, organizing a strike, or drug dealing, among other offenses. Individuals sentenced to the death penalty were not provided with legal counsel and judicial remedies to appeal against such a decision. In July 1989, the government passed the Constitution of Special Tribunals Act which established specialized tribunals to deal with matters concerning national security. Eventually, the government amended the Constitution of Special Tribunals Act and created other tribunals, all composed of judges partly chosen by the President. In the third of the joined cases, the Applicants endorsed these allegations on partial tribunals and unfair trials carried out by the Sudanese judiciary.
In 1990, the Sudanese government enacted the National Security Act, which created the National Security Council and Bureau, and empowered security forces to arrest and search any person under national security reasons. As per the National Security Act, individuals could be retained in prison without having access to legal counsel or their families for up to 72 hours. Likewise, individuals retained in “ghost houses” were subjected to extra-judicial executions, cruel treatment, and torture. The national authorities did not investigate nor prosecute the execution of individuals allegedly associated with SPLA.
On two different occasions, the Respondent State conducted investigations of the human rights violations committed by the Sudanese military and police: (i) the first one in December 1987 concerning summary and extra-judicial executions; and (ii) the second one led by the Commission of Enquiry into the massacres of 1987. However, it emerged from the parties’ submissions that both of these investigations led to no satisfactory results.
Finally, Applicants in the fourth of the joined communications alleged “oppression of Sudanese Christians and religious leaders, expulsion of all missionaries from Juba, arbitrary arrests and detention of priests, the closure and destruction of Church buildings, the constant harassment of religious figures, and prevention of non-Muslims from receiving aid” [para. 18]. In this sense, consideration must be given to the fact that Shari’a was the national law in Sudan, which is based on Islamic customs and religious norms and their interpretations. Most of these allegations were not contested by the Respondent State. However, Sudan argued that tremendous progress had been made since the signing of the Peace Charter on 10 April 1996 and the Khartoum peace agreement on 21 April 1997.
Since the present case pertained to systematic human rights violations occurring in Sudan, the Commission considered that it would be nearly impossible to identify all the victims; thus, the Commission ruled that “the seriousness of the human rights situation in Sudan and the great numbers of people involved renders [national] remedies unavailable in fact, or, in the words of the Charter, their procedure would probably be unduly prolonged” [para. 39]. Therefore, in light of the lack of effective domestic remedies, the Commission concluded that the victims exhausted all available judicial resources as per Article 56 of the Charter.
In the present case, the central issue for consideration was whether restricting the victims’ liberty and freedom of movement on the basis of a state of emergency order, which prohibited any opposition to the ruling party, amounted to a violation of Article 9 of The Charter, considering the magnitude of the armed conflict in Sudan. The Respondent State argued that pursuant to section 7 of the Decree on Process and Transitional Powers Act of 1989, opposition to the RNS was expressly prohibited when national security, economic stability, and the integrity of the Sudanese territory were compromised. In conformity with the Decree on Process and Transitional Powers Act, opponents of the government could be persecuted, detained, and arrested by government officials, including civilians suspected to be associated with the SPLA, human rights activists, religious leaders, and non-Muslims.
Concerning the right to freedom of expression, the Commission recalled that “the Charter contains no derogation clause, which can be seen as an expression of the principle that the restriction of human rights is not a solution to national difficulties: the legitimate exercise of human rights does not pose dangers to a democratic state governed by the rule of law” [para. 79]. Furthermore, the Commission noted that before restricting the exercise of a human right, States parties to The Charter must evaluate the applicability of other less intrusive measures. In other words, restricting the enjoyment of a right must be treated as an exception to the norm since human rights legitimize the government’s operations and actions in a democratic society. Consequently, under the sub examine circumstances, the Commission determined that Sudan had violated the right to freedom of expression enshrined in Article 9 of The Charter.
Moreover, the Commission found that Sudan had violated Articles 4 (Right to Life), 5 (Prohibition of Torture and Cruel, Inhuman and Degrading Treatment), and 6 (Right to Personal Liberty and Protection from Arbitrary Arrest) of The Charter due to the extra-judicial executions, arbitrary trials, arrests, and torture of civilians. This was aggravated by the lack of effort to conduct effective criminal investigations into the actions undertaken by the Sudanese military and the police. The Commission also found that Sudan had infringed Articles 7 (Right to Fair Trial) and 26 (Duty to Guarantee Independence of Courts) of The Charter, notably because (i) the victims were not provided with legal counsel during their hearings, (ii) appealing to higher courts was not available in many instances, (ii) where legal counsel was allowed, tribunals had the power to “veto the choice of counsel of defendants” [para. 64], and (iii) the President and his officials were empowered to appoint the judges which composed the national courts and tribunals, unveiling a lack of impartiality and independence of the judiciary, among other reasons.
Regarding the right to freedom of conscience, the Commission held that it was “… fundamentally unjust that religious laws should be applied against non-adherents of the religion. Tribunals that apply only Shari’a are thus not competent to judge non-Muslims, and everyone should have the right to be tried by a secular court if they so wish” [para. 73]. In this sense, consideration must be given to the fact that Shari’a was the national law in Sudan, which is based on Islamic customs and religious norms and their interpretations. The Shari’a was imposed on everyone under the State’s jurisdiction without considering their religion or beliefs. Non-Muslim were also persecuted and forced to convert to Islam. Therefore, in light of the persecutions, detentions, illegal trials, and executions suffered by non-Muslims, the Commission held that Sudan infringed Article 8 (Right to Freedom of Conscience) of The Charter.
At last, pertaining to the right to freedom of association, the Commission highlighted that section 7 of the Process and Transitional Powers Act of 1989 proscribed the organization of political-driven meetings or assemblies without prior governmental permission. In the Commission’s view, the prohibition was “disproportionate to the measures required by the government to maintain public order, security, and safety. In addition, there is evidence from the Complainants, which is not contested by the government, that the powers were abused”, resulting in a violation of Article 10 (Right to Freedom of Association) of The Charter [para. 82].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming that The Charter does not permit the restriction of such right beyond what is necessary in a democratic society, not even on the basis of a state of emergency order or an armed conflict. In this vein, the Commission held that any effort to restrict the right to freedom of expression during an armed conflict or an emergency without prior consideration of the applicable international standards constitutes a violation of Article 9 of The Charter. Moreover, the Commission ruled that before restricting the exercise of a human right, States parties must evaluate the applicability of other less intrusive measures. The Commission indicated that the restriction of a right must be kept to a minimum not to undermine the rights ratified. Hence, restricting the enjoyment and fulfillment of the freedom of expression must be treated as an exception to the norm.
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