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ICJ Review-41-1988-Eng For the Rule of Law THE REVIEW INTERNATIONAL COMMISSION OF JURISTS HUMAN RIGHTS IN THE WORLD Bahrain 1 Paraguay Burma 4 Romania Colombia 7 Sudan Fiji 11 Tibet Iraq 13 COMMENTARIES UN Sub-Commission on Discrimination and Minorities 26 AIDS and Discrimination 35 ARTICLES Malaysia - The Judiciary and the Rule of Law Justice Kirby CMG 40 The Universal Declaration of Human Rights and Latin America Marcelo G. Kohen 44 ILO and Indigenous Peoples: Revision of ILO Convention 107 Howard R. Berman 48 JUDICIAL APPLICATION OF THE RULE OF LAW Inter-American Court of Human Rights - Honduras held answerable for disappearances 58 Supreme Court of Zimbabwe - Corporal punishment held unconstitutional 61 No. 41 December 1988 Editor: Niall MacDermot ASSOCIATES OF THE INTERNATIONAL COMMISSION OF JURISTS The International Commission of Jurists is a non-governmental organisation devoted to promoting throughout the world the understanding and observance of the Rule of Law and the legal protection of human rights. Its headquarters is in Geneva, Switzerland. It has national sections and affiliated legal organisations in over 60 countries. It enjoys consultative status with the United Nations Economic and Social Council, UNESCO and the Council of Europe. Its activities include the publication of its Review; organising congresses, confer­ ences and seminars; conducting studies or inquiries into particular situations or subjects concerning the Rule of Law and publishing reports upon them; sending international observers to trials of major significance; intervening with governments or issuing press statements concerning violations of the Rule of Law; sponsoring proposals within the United Nations and other international organisations for improved procedures and conventions for the protection of human rights. If you are in sympathy with the objectives and work of the International Commission of Jurists, you are invited to help their furtherance by becoming an Associate. Associ­ ates, who may be either individual or corporate persons, are of three categories: Patrons, contributing annually Swiss Fr. 1,000 Sponsors, contributing annually Swiss Fr. 500 Contributors, contributing annually Swiss Fr. 100 Contributors will receive by airmail copies of the ICJ Review, ICJ Newsletter and the Bulletin of the Centre for the Independence of Judges and Lawyers. Patrons and sponsors will receive all ICJ publications, including special reports. You are invited to write to the Secretary-General of the International Commission of Jurists, P.O. Box 120, CH-1224 Chene-Bougeries/Geneva, Switzerland. SUBSCRIBERS Alternatively, you are invited to become a subscriber to the REVIEW. Annual Subscription Rates: By Surface Mail Swiss Fr. 20.00 By Air Mail Swiss Fr. 23.00 Special Rate for Law Students Swiss Fr. 10.00 Note: Payment may be made in Swiss Francs or in the equivalent amount in other currencies either by direct cheque valid for external payment or through a bank to Societe de Banque Suisse, Geneva, account No. 142.548, National Westminster Bank, 63 Piccadilly, London WIV OAJ, account No. 11762837, or Swiss Bank Corporation, 4 World Trade Center, New York, N.Y. 10048, account No. 0-452-709727-00. Pro-forma invoices will be supplied on request to persons in countries with exchange control restrictions to assist in obtaining authorization. Human Rights in the World Bahrain* The Institutional and the court may decide without delay on Legal Setting the lawfulness of the detention (cf. Ar­ ticle 9, para. 1 and 4 of the international Although Bahrain has been a member Covenant on Civil and Political Rights, of the United Nations since September hereafter called the “Covenant”), the 1971, it has yet to ratify any international right of every person to a fair and prompt instrument in the field of human rights. public hearing by a competent tribunal In 1973, two years after gaining inde­ (Article 14, para. 1 and 2), freedom of pendence, Bahrain acquired a Constitu­ expression (Article 19, para. 2), and the tion, some of whose provisions guaran­ right to peaceful assembly (Article 21). tee the protection of human rights. For An analysis of these laws brings to instance, paragraph (d) of Article 19 pro­ light the dangers and violations which hibits any citizen from being subjected to they entail and which may infringe sev­ physical oi mental torture or any type of eral rights at a time. The law on State degrading treatment. Furthermore, any security of October 1976 states in its confession obtained by the use of tor­ First Article “where there is sufficient ture, coercion, threats or degrading treat­ evidence that an individual has per- ment is invalid. formed acts or uttered words which In August 1975, the government sus­ threaten internal or external State secu­ pended several of the constitution’s ba­ rity, the Minister of the Interior is author- sic provisions and the National Assembly ized to order his arrest and imprisonment was dissolved. in one of the prisons of Bahrain, search What is serious about the suspension his home and take any necessary action of the Constitution and the dissolution of to gather proof and carry out the investi- the Assembly with regard to the respect gation. The period of detention must not of human rights in Bahrain is the fact exceed three years." that a certain number of laws threaten, if Obviously, the phrase “threaten inter- not violate, human rights. This applies in nal and external security” is vague and particular to the right of the individual to imprecise and enables the Ministry of personal safety, to freedom from arbi­ the Interior to act arbitrarily (Article 9, trary arrest or detention, the right of any­ para. 1 of the Covenant). Likewise, the one who is deprived of liberty to take period of detention, which can last up to proceedings before a court in order that three years, is a threat to everyone’s This article is a shortened translation of excerpts from the 1988 annual report of the Arab Organisa­ tion of Human Rights. right to take proceedings before a court been authorized to gather information on in order that it may decide without delay students and their activities. This is a on the lawfulness of the detention (Ar­ violation of the right to hold opinions ticle 9, para. 4 of the Covenant). without interference (Article 19, para. 1 Article 2 of the same law stipulates of the Covenant) and the right to associa­ that the sessions of the trial are to be tion (Article 22, para. 1 of the Covenant). held in camera. Article 3, para. 4 directs that the court reports, of which a single copy is made, are confidential. These, Personal Freedom and Safety along with the reports of the defence and the prosecution and the witnesses' state­ The Arab Organization for Human ments, are treated as State secrets. Rights (A.O.H.R) has received a com­ These provisions are a violation of every­ plaint from the Committee for the De­ one’s right to a public hearing (Article fence of Political Prisoners in Bahrain, 14, para. 1 of the Covenant). dealing with four cases of prisoners who Article 7 of Royal Decree no. 7 (1976) had not been tried even though they had which led to the establishment of the been arrested as far back as 1980. These Court of State Security provides that: were Abdenbi Khayami, Abdelkrim A1 “the judgments delivered by this Court Ardi, Faysal Marhoun, and Ja'far Sa- are final and are not subject to appeal or fouan. The complaint asserted that they any other recourse." This is a violation of had been tortured and mistreated. In his the rights to have one’s case reviewed reply, the Minister of the Interior stated by a higher tribunal (Article 14, para. 5 of that: “the information received by the the Covenant). A.O.H.R. is untrue: Abdenbi Khayami The law of 1974 which sets up emer­ was released on 16 December 1986 al­ gency tribunals, provides that the ac­ though he was not brought to trial. The cused may be tried within 24 hours of ar­ same was true for Abdelkrim A1 Ardi, rest. This violates the right of every de­ who was not tried but released on 28 fendant to have adequate time and facili­ May 1986. Faysal Marhoun and Ja’far Sa- ties for the preparation of his own de­ fouan were brought to trial before the fence and to communicate with counsel Superior Court of Appeals, found guilty of his own choosing (Article 14, para. on 9 July 1986 and released on 28 May 3(b) of the Covenant). 1987". The A.O.H.R. is concerned about The law of 1965 on security prohibits the lengthy detention of "political" sus­ public marches, the distribution of tracts pects and hopes that the authorities in criticizing the regime and the circulation Bahrain will ensure that prevailing prac­ of criticism in the press or within asso­ tices conform to international norms. ciations. This law violates the right to peaceful assembly (Article 21 of the Covenant) and freedom of expression The Treatment of Prisoners (Article 19 of the Covenant). and Detainees In addition to the laws, there are ad­ ministrative rules and practices. For ex­ Reports received by the A.O.H.R. re­ ample, the former Minister of Education, vealed that detainees and political pris­ Abdelaziz Mohamed Alkhalifa, confirmed oners had gone on a hunger strike in July in December 1980 that his Ministry had 1987 to protest against the violations of their fundamental rights as political pris­ its London office, that Mohamed Dar- oners. The reports alleged that interroga­ wich, a 29-year-old Bahraini detainee tions were accompanied by physical and was in poor condition. He had been ar­ mental torture, which led to a certain rested in October 1985 and undergone number of deaths among them.* These long periods of solitary confinement, un­ reports gave the names of two of those able to contact either his family or law­ deceased: Mehdi Rida and Dr.
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