Human Rights Committee

Eighty-ninth Session

2424^th & 2425^th Meetings (AM & PM)

HUMAN RIGHTS COMMITTEE’S DILIGENCE, SERIOUSNESS MAKE IT ‘MODEL’ FOR OTHERS,

REFORM BEING APPROACHED CAUTIOUSLY, SAYS CHAIRMAN, AS SESSION OPENS

Begins with Madagascar’s Report on Compliance

With International Covenant on Civil and Political Rights

Before embarking on a review of country-specific compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee opened its annual session today with incoming Chairman Rafael Rivas Posada of Colombia saying that the cautious pace of the Committee’s reform would ensure that no radical changes would be adopted that could undermine its importance.

The Chairman told the 18-member Committee, which examines the reports submitted by the 160 States parties to the Covenant, that advancing step-by-step towards reform would allow the Committee to remain a model in the area of human rights, owing to its professionalism, diligence and seriousness.  The Committee would not tolerate excessive demands concerning the speed of the reform and due attention would be devoted to all suggestions in that regard. 

The Committee also reviews compliance with the Covenant’s two Optional Protocols -- the first allowing individuals to submit complaints to the Geneva-based Committee, the second seeking to abolish the death penalty.

The panel of independent experts began its eighty-ninth session today with a review of the third periodic report of Madagascar.  Introducing Madagascar’s report, the country’s Minister of Justice, Lala Henriette Ratsiharovala, said that, since the review of Madagascar’s second periodic report in 1991, the following two presentations had been delayed.  According to the present report, drafted in December 2004, the Government’s efforts to comply with the Covenant should be seen in the context of the factors that had led to a deterioration in its economic situation.  Those included the post-election crisis in 2002, the devastation caused in rice-growing areas by cyclones and floods, the rise in petrol and rice prices on the international markets and the slide in Madagascar’s currency. 

She said that the present Government, in power since 2003, had established a technical committee comprised of the public sector, non-governmental organizations and civil society, which had made it possible to make up the delays and present reports to several monitoring bodies, including the report before the Human Rights Committee today.  Additional progress since 2004 had included reform of the legal and prison systems, ratification of the Convention against Torture and two additional protocols on the Convention on the Rights of the Child, and the launch of a constitutional review leading to a popular referendum.

Experts commended the country on its recent changes, which many felt were worthy of international attention and interest, but they question the role of customary law and customary institutions, especially the customary courts, or the so-called Dinas.  One expert, though he understood that customary law often was a vehicle for the social culture of the country, felt that a modern State that had signed up to many international commitments and instruments could not use customary law and tradition as an excuse for human rights violations.  He, along with several other experts, wanted to know whether the Dinas were applying customary laws and viewed as equal in status to judges. 

A member of the high-level delegation explained that a Dina was more of a social organization and a way of managing a community.  The Dina could not act contrary to the Constitution and that meant it could not act contrary to the Covenant.  The Dina had to be consistent with laws and regulations, so “it wasn’t a system of archaic parallel courts, but institutions which respected the obligation to hear both sides”.  There had been abuses in the past, possibly in the south-east, but customary chiefs who had gone beyond their rights under the law had been prosecuted and sentenced in proportion to what they had done, he said.

Responding to several experts’ questions about the systematic murder of twins in Madagascar, another member of the delegation said that issue had formerly been taboo in her part of the country, the south-east, but twins were never killed.  The “twins taboo” involved abandoning one of the children.  That was an old tradition based on ignorance and a lack of education.  Over the last few decades, things had changed, because many women and men had become more educated.  Many people from her region, if they went along with the “twins taboo”, did so out of fear of reprisals from their families.  They moved away, in order to bring up their twins in peace.  But, not everybody had the option of moving, so centres had been set up to raise the twins or put them up for adoption.  The custom on the twins was still there, but with help from the United Nations Development Programme (UNDP), work was under way to raise awareness in the areas where the problem had existed.

Along with the Minister of Justice, the other members of the delegation are:  Lucien Rakotoniaina, Magistrate, Director of Studies, Justice Ministry; Mohajy Angeline, Director of Multilateral Cooperation, Minister of Foreign Affairs; Mboara Andrianarimanana, Technical Counsellor in Charge of Juridical Questions, Foreign Affairs Ministry; Hantasoa Fida Cyrille, Chief of Initial and Periodic Reports on Human Rights, Foreign Affairs Ministry; Josiane Ralaivaoarisoa, Magistrate, Justice Ministry; Benjamin Andriamihanta, Magistrate; Marie Rasoamananjara, Police Commissioner; Francis Ravoahangilalao, Superior Technician, National Statistical Institute, Ministry of Economy, Planning and Commercial and the Promotion of the Private Sector; and Mr. Rasoamanambola, Vice-President of the National Confederation of Human Rights Platforms. 

Opening remarks were delivered this morning by Representative of the Secretary-General Mgonlardje Mbaidjol.  Taking their oaths as new members today were Yuji Iwasa of Japan, Zonke Zanele Majodina of South Africa, Iulia Antoanella Motoc of Romania and Jose Luis Sanchez-Cerro of Peru. 

Elected as Vice-Chairpersons were Ahmed Tawfik Khalil of Egypt, Elisabeth Palm of Sweden and Ivan Shearer of Austalia.  Their terms expire on 31 December 2008.  Abdelfattah Amor of Tunisia was elected to serve as Rapporteur.  His term is due to expire on 31 December 2010.

In addition to the new members and the Bureau, the other experts are Prafullachandra Natwarlal Bhagwati of India, Christine Chanet of France, Maurice Glele-Ahanhanzo of Benin, Walter Kälin of Switzerland, Rajsoomer Lallah of Mauritius, Michael O’Flaherty of Ireland, Nigel Rodley of the United Kingdom and Ruth Wedgwood of the United States. 

The Committee will meet again at 10 a.m. on Tuesday, 13 March, to continue its consideration of Madagascar’s implementation of the Covenant.

Background

The Human Rights Committee met this morning to open its eighty-ninth session.  Scheduled to run through 30 March, the Committee is expected to examine the third periodic report of Madagascar on 12 and 13 March, the fifth periodic report of Chile on 14 and 15 March, and the third periodic report of Barbados on 21 and 22 March.  It will present its concluding observations at the end of the session.  For background see Press Release HR/CT/681 issued 8 March.

Opening Remarks

The Secretary-General’s Representative, NGONLARDJE MBAIDJOL, reviewed relevant developments since the Committee met last year, saying that everyone in the field knew well the value of the Committee’s work for the effective promotion and protection of human rights.  The agenda was particularly dense this year.  The wide-ranging body of human rights norms and standards had been enriched through the adoption of three new instruments.  On 13 December 2006, the General Assembly adopted the International Convention on the Rights of Persons with Disabilities and its Optional Protocol.  That was a landmark treaty affecting more than 600 million people worldwide.  The signing ceremony was set for 30 March in the General Assembly Hall.  On 20 December 2006, the Assembly also adopted the International Convention for the Protection of All Persons from Enforced Disappearances, which was opened for signature in Paris on 5 February, and thereafter, at United Nations Headquarters in New York.  So far, 57 States had signed that Convention. 

Also, since the last session, the Human Rights Council had held its resumed second session from 27 to 29 November 2006, and its third session from 29 November to 8 December 2006, he said.  In addition, it had held two special sessions:  one on the Israeli military incursions into the Occupied Palestinian Territory, including northern Gaza and Beit Hanoun on 15 November 2006, and another one on the situation of human rights in Darfur from 12 to 13 December 2006.  The one-year deadline by which the Council was expected to conclude its institution-building processes, namely the establishment of the Universal Periodic Review Mechanism and the review of all mandates and mechanisms inherited from the former Commission on Human Rights, was close at hand. 

He said that the Facilitator had prepared conclusions, as well as a non-paper, identifying areas of emerging agreement, areas requiring further consideration, as well as compromise proposals on issues such as the basis of review and objectives and principles of review.  Complementarity with, rather than duplication of, other human rights mechanisms, figured among those areas of convergence.  There was also emerging agreement that human rights instruments to which a State was party should constitute a basis of review.  A report of progress achieved thus far would be formally presented by the Facilitator to the Council at its fourth session.  The Universal Periodic Review would hold another session in April, and the working group was expected to conclude its work by 18 June.  

Turning to the reform of treaty bodies, he said that the treaty bodies’ chairpersons were scheduled to meet with States parties on 14 and 15 June to discuss treaty body reform ahead of the sixth Inter-Committee Meeting and the nineteenth Meeting of Chairpersons to be held, respectively, from 18 to 20 June and 21 to 22 June.  He also updated the Committee on members’ reporting obligations under the Covenant since the last session in Geneva. 

New Members, Elections and Address by Chairman

Next, four new members from Japan, South Africa, Romania and Peru, elected to the Covenant on 7 September 2006, were welcomed to the Committee, following which they took an oath.  Rafael Rivas Posada ( Colombia) was elected Chairman and, following some brief remarks, the rest of the Bureau was constituted.

Addressing members, the new Chairman noted that the Committee’s work had always been characterized by team spirit and solidarity.  Faced with heavy demands, the Committee was most interested in perfecting its working methods and ensuring its increased effectiveness.  There had been so many reform proposals that it had not been easy to navigate through them all, as other United Nations bodies had done.  The document before the Committee was proof of its determination to continue in its work without pressure, without excessive demands as regarded the speed of the reform; one must advance cautiously in implementing the reforms, step-by-step, without becoming overly enthusiastic and adopting radical changes that would undermine the importance of the Committee in the human rights sphere.  Attention would be devoted to all suggestions, and the Committee’s working methods would continue to be improved.  The Committee would remain a model in the area of human rights, owing to its professionalism, diligence and seriousness. 

Madagascar’s Report

The country’s third periodic report (document CCPR/C/MDG/2005/3), drafted in December 2004, sets forth the steps the Government had taken to comply with the Covenant’s 27 substantive articles since it last reported formally to the Committee in 1991. 

The report also provides context for the period under review.  Specifically, it concludes that the post-election crisis in 2002, the devastation caused in rice-growing areas by cyclones and floods, the rise in petrol and rice prices on the international markets and the slide in Madagascar’s currency had led to a deterioration in the country’s economic situation.  Despite that, the country had attained an economic growth rate of approximately 5 per cent and reached the completion point on its external debt, a large tranche of which had been subsequently written off.

Also, Madagascar had obtained financial and technical support from other partners, including the European Union.  The State’s first step had been to see that security was restored without delay and remove the roadblocks that were preventing the free movement of people and goods.  Steps had also been taken to repair the infrastructure damaged during the crisis.  Those responsible for acts of violence, crimes and offences resulting in damage to public works, or for incitement to racial hatred or secession, were arrested and tried.  The Government then held general and municipal elections for representatives who would be able to legislate on behalf of the people and help run the affairs of the State.

At the same time, the report says, economic and institutional reforms had been implemented to ensure market liberalization –- withdrawal of the State, regulation of the market by the laws of supply and demand, the gradual introduction of free competition and the opening up of the economy.  In cooperation with its international partners, the Government had taken steps to rehabilitate the country in all its sectors, particularly the economy, education, health, agricultural and justice.  Roadbuilding and repair programmes had also been carried out in order to create a development-friendly environment, with the aim of cutting poverty rates by 50 per cent by 2010.

Also according to the report, one of the Government’s main priorities in its efforts to establish the rule of law, good governance and a democratic society was to combat corruption.  As well as ratifying the United Nations Convention against Corruption, Madagascar had also embarked upon a reform of its domestic legislation and the creation of independent bodies to combat corruption.

The report’s authors state that the document, which was prepared with the support of the European Union and the United Nations Development Programme (UNDP), demonstrated the firm desire of the State of Madagascar to discharge the obligations it assumed upon ratification of the Covenant and to apply in good faith the guidelines for its implementation in domestic law. 

Consideration of Report

Prior to introducing the report, LALA HENRIETTE RATSIHAROVALA, Minister of Justice, introduced the members of her delegation:  Lucien Rakotoniaina, Magistrate, Director of Studies, Justice Ministry; Mohajy Angeline, Director of Multilateral Cooperation, Minister of Foreign Affairs; Mboara Andrianarimanana, Technical Counsellor in Charge of Juridical Questions, Foreign Affairs Ministry; Hantasoa Fida Cyrille, Chief of Initial and Periodic Reports on Human Rights, Foreign Affairs Ministry; Josiane Ralaivaoarisoa, Magistrate, Justice Ministry; Benjamin Andriamihanta, Magistrate; Marie Rasoamananjara, Police Commissioner; Francis Ravoahangilalao, Superior Technician, National Statistical Institute, Ministry of Economy, Planning and Commercial and the Promotion of the Private Sector; and Mr. Rasoamanambola, Vice-President of the National Confederation of Human Rights Platforms. 

Ms. RATSIHAROVALA said that, since the review of her country’s second periodic report in 1991, the following two presentations had been delayed, owing to a number of factors, which she would not enumerate now.  The Government in power since 2003 had established a technical committee comprised of the public sector, non-governmental organizations and civil society, which had made it possible to make up the delays and present reports to several monitoring bodies, including the report before the Human Rights Committee today.  The reports to the Economic and Social Council (ECOSOC) and on the Convention on the Rights of the Child, among others, had been drafted and were being sent to the reviewing bodies.

She said that, since the draft of today’s report in December 2004, additional progress had been made in the reform of the legal and prison systems, specifically the issuance of a statute and decree in force from 2006 to 2015 on the organization of the penitentiary system.  In 2005, Madagascar ratified the Convention against Torture and two additional protocols on the Convention on the Rights of the Child.  The Government had also publicly disseminated in the national language a human rights manual that included the text of the Covenant.  A constitutional review would be the subject of a popular referendum.

She reiterated her country’s firm intention to adopt a participatory course and create an interactive dialogue leading to suggestions and recommendations.  All would be taken into account for future reforms and other appropriate activities directed at improving implementation of the Covenant in Madagascar. 

Responding to written questions provided to the Government on the question on the protection of foreign citizens, a member of the delegation said that that question was addressed in the Constitution, which referred to “all individuals” on Madagascar’s territory as enjoying protection, equality and human rights before the law.  Foreign citizens, thus, received the same treatment as nationals, except for certain rights that were limited to citizens.

Asked about the evolution of jurisprudence after a Supreme Court decision to implement a covenant on persons who were victims of dismissals based on gender or age discrimination, he said that there had been no other such decisions, as the concept of human rights was not well known to the population, nor to judiciary personnel.  That imperfection was being corrected through an awareness programme and through the training of officials in the justice system.

Asked about declarations of states of emergency, he said that such a state had been proclaimed in 2001, due to an exceptional situation.  Constitutional protection resided in the fact that such states of emergency were provided for in the Constitution.  Legal protection was expressed in two ways.  First, a state of emergency was limited in time to three months and might only have limited effects throughout the national territory.  Jurisdictionally, it was always possible to launch an appeal at an administrative level, if there was any abuse of power during the state of emergency. 

Responding to a question on gender equality, he said that women’s participation in the public and private sectors had been part of the statistical information provided to the Committee.  There had been an evolution in the number of women in key positions at the national and international levels, and those figures would further improve.  As for women’s participation in the economy, a table was given to the Committee to show the rate of such participation.

Regarding the right to life and the prohibition of torture and degrading treatment, he said that contraceptive use had reduced maternal mortality, particularly deaths linked to clandestine abortions or infections.  Madagascar’s policies were intended to increase the use of contraceptives by 2012.

Regarding death sentences, he said that the most severe crimes were murder and assassination with premeditation.  There was also the burning of homes, poisonings and actions against the State.  A draft law intended to abolish the death penalty had been reviewed by Parliament, but its adoption was postponed.  Madagascar was an abolitionist State, and the Government was proceeding towards the abolition of the death penalty.  It had no objection to the adoption of the Optional Protocol, especially the part regarding the death penalty.

As for questions about extrajudicial or summary executions carried out by customary courts, he said that there had been no such executions.  Those courts operated in a jurisdiction that was not recognized in the Constitution.  Justice was meted out by the Supreme Court and other bodies, but there were parallel customary jurisdictions that had evolved and that had, in the past, made decisions leading to summary executions for certain bandits.  In 1997, the State had become aware of that situation and arrested and tried members of those customary courts.  Since then, no such cases had been decided by customary courts.

To avoid the existence of customary courts operating parallel to the State, a law passed in 2001 called upon those courts to comply with national laws.  The customary courts only covered minor violations, and their decisions were only applicable when approved by the president of the tribunal.

Regarding torture, which had been allegedly applied reciprocally among the supporters of the two presidential candidates in 2001, there were complaints that had been tried and judged, and victims had been able to obtain reparations.  The existence of such complaints helped State authorities to respond to practices of torture.  When people came before the customary courts, they must be accused of violating a Malagasy law.  There were no longer extrajudicial deaths, since customary courts were no longer allowed to impose capital punishment.

Regarding the prohibition of slavery and forced labour, and what type of work was performed by detainees, he said that a new decree covered work carried out in prisons.  Prisoners were made to perform tasks of maintenance and cleaning their own cells.  In the new decree, it was no longer possible to use those people as free labour.  If detainees worked, they must be remunerated, and their wages must approach the wages given free labour.  As for protection for domestic workers, they were treated the same as any other workers.  There was a minimum employment age, and a right to health care.  Future measures would be part of the overall policy to improve the standard of living.

As for personal security and the right not to be subjected to arbitrary detention, a draft reform had been introduced to reduce pretrial detention times.  The measure was adopted by the Government and passed on to Parliament.  The maximum pretrial detention time was equal to the maximum possible sentence, up to 20 months.  Unfortunately, there was no rule requiring that existing cases be expedited.  Such regulations would come into effect after the adoption of the relevant text.

Regarding the number of cases pending before the courts, and people who had spent more than five years remanded (waiting for their cases to be heard), work was being done to try and resolve those cases.  At the moment, the State was trying to deal with those remanded for more than three years, and a greater number of decisions were being made in that area.  The Government had increased the size of teams hearing the cases.  It had been found that no one was in prison awaiting an appeal, except for one case from 1978, but measures had been taken to deal with that situation.

As to allegations of arbitrary arrests and detentions before, during and after the elections, he said that, for an arrest to be considered “arbitrary”, it must have taken place outside of the legal framework.  During the 2001 election period, there had been no problems before the actual voting, and there had been no confrontations during the voting and after the election, apart from the proclamation of results by a constitutional court, which was contested by a large part of the population.  From that point, a popular movement was organized to challenge the results.  Court records showed two opposing camps from that point.  On the one hand, those in power at the time refused confrontation; on the other, there were supporters of the candidates who wanted to contest court records.  There were no arrests until after international recognition of the regime on 6 May.  Those were the result of clearly defined crimes committed for political purposes, such as property destruction, kidnapping, murder and undermining State security.  It could not be said those arrests were arbitrary, since they were based on established facts and established inquiry.

Experts’ Questions and Comments

ABDELFATTAH AMOR, expert from Tunisia, said that the country’s recent changes were worthy of the attention and interest of the rest of the world.  The changes were extremely promising, especially when one considered the remaining human rights problems.

Concerning the Constitution’s article 8, he understood that there would be a referendum, through which a new or revised Constitution would be adopted.  He wished to see a draft of that document to see how the proposed changes compared to the current Constitution.  With the current text and positive law in general, he could not help but wonder what role customary law and customary institutions played, including the customary courts. 

Obviously, he said, custom and tradition and, along with that, customary law could be expected to be the vehicle for the social culture of the country, but, on the other hand, a modern State which had its prescriptive law and which had signed up to many international commitments and instruments could not use customary law and tradition as an excuse for human rights violations. 

He said that the delegation had provided an explanation for the Dina, but clearly, there were places where the Dina was being used as the court system, and however serious the offence, the judges or people acting as judges were viewed as equal in status to judges.  The delegates had offered that Dinas were used only in the case of minor misdemeanours, but was the Dina system applying customs or pre-established norms?  Was polygamy allowed along parts of the coast, for example?

The Committee could not tolerate any breach of article 3 of the Covenant, he said.  It was the duty of the State and the State alone to ensure compliance with the articles of the Covenant, and no local-specific conditions could ever be used to justify a Government not fulfilling its obligations under the Covenant.  Culture was often invoked, but the rule of law was not there to simply reflect the current state of things in a society.  “No, the law had the job of changing society,” he stressed.  He also asked several questions about reciprocity and the treatment of foreigners, including in the context of jurisprudence.

MICHAEL O’FLAHERTY, expert from Ireland, said he had appreciated the frankness about the low level of awareness among judicial personnel in the State party, and asked what specifically was being done with judges and the Dina in promoting awareness in that regard.  He also wondered about the role of human rights education, including in the training and education of lawyers and judges. 

He asked the delegation to share specific time lines as to when the review of the first phase of existence of the National Human Rights Commission might be completed and when that body might be re-established.  He also wanted to know when the Government would make the Commission compliant with international reform standards, known colloquially as the Paris principles. 

Concerning article 8 of the Covenant on trafficking, he noted that there was a problem of trafficking between Madagascar and its neighbours in the context of the tourist industry and asked if the Government had identified whether Madagascar was a sending or receiving State and what programmes it was implementing to tackle the problem.  He also sought statistics on criminal prosecutions of traffickers and actions taken in support of the victims, particularly the women and children.  Finally, he wanted to know the extent to which the country was involved in regional discussions with its neighbours to tackle that inter-State problem.

MAURICE GLELE-AHANHANZO, expert from Benin, said he was concerned about gender equality and the delegations’ indication that equality between men and women in Madagascar was “a given”.  In terms of the systematic annihilation of a twin, he said there was a similar problem in part of Benin; when one had three children, they had a great feast, but when they had twins, one had to be eliminated.  That problem had been solved, because there was now a provision in place, but what was Madagascar doing to solve that problem?

Noting that the report had referred to sociology difficulties in the context of gender-based discrimination, he asked what the Government was doing in that regard, specifically what training and education was under way to “liberate those men still against equality between men and women”?  That was a general concern for all of Africa, he added, and he wanted to know the role of the Government in that.  Also, was a programme in place for gender equality at all levels and for all sectors? he asked.

AHMED TAWFIK KHALIL, expert from Egypt, said that, on the right to life, the report had referred to the prevailing ignorance about contraceptive methods.  The Government was fully aware of the dimensions of the problem, as evident on page 15 of the report, but he was disappointed that little seemed to be done about it.  Thus, the numbers of unwanted children and legal abortions was high.  Greater emphasis should have been put on modern contraceptive methods.  From table 34, it was clear that the use of family planning methods was fairly low.  Awareness seemed to be growing and there might be some success in the coming years, but that knowledge remained fairly limited.

Also, before competent courts or the Appeals Court endorsed decisions of the decision, did they satisfy themselves that minimum guarantees under the Covenant’s article 14 had been respected? he asked.

He said he was grateful to learn from the State party that it had completed ratification of the Convention against Torture.  Several non-governmental organizations had suggested that, in the proposed draft law, torture be clearly defined.  Along the same lines, the State party should be well aware that the preambular paragraph of the treaty’s Optional Protocol stressed that a State party, first and foremost, should concentrate on prevention of torture.  He asked whether Madagascar intended to eventually adhere to that Protocol. 

ELISABETH PALM, expert from Sweden, said that the Covenant indicated that slavery had been abolished, but one form of that institution endured, namely the failure to pay proper wages.  Included in that category were domestic workers and detainees.  The reorganization of the penal system since 2006 was most welcome; however, provisions allowing detainees to work outside prison for private enterprises without proper wages were of concern.  What kind of work were those detainees performing?  Was it compulsory?  How were wages related to normal wages for the same work?  Who received the money, if any was paid at all?  As for children domestic workers, it appeared that they continued to work under harsh conditions for little or no pay, despite the prohibitions in the decree.  What was the State doing to enforce the new decree? 

RAJSOOMER LALLAH, expert of Mauritius, said that he hoped that not so much time would pass before the Committee next reviewed Madagascar.  In the current report, no reference had been made to the Committee’s previous recommendations, except on the situation of women.  Regarding the events of 2001 and how those responsible for them were dealt with, it was important that there be a perception among people, even those opposed to the current Government, that there was no impunity.  The judiciary had not been perceived as independent in Madagascar.  How many of those who supported the present Government had been sanctioned, in comparison with those who supported the other party?  Impunity and discrimination were two of the greatest enemies of a democratic order. 

He noted that the report had been drafted in 2004, but no mention had been made of the state of emergency declared in 2001.  Answers had only been given in written form, and were rather sketchy.  The Constitution failed to mention that certain rights were basic and non-derogable at any time from the executive.  Had any information been given to the Secretary-General and other States parties of the Covenant regarding the 2001 state of emergency?  When derogations were made, as in 2001, the Committee should know which rights had been derogated, the extent of derogation and what measures had been taken.

Regarding the customary courts, he said that it should not be assumed that the Committee understood how they worked.  If the extrajudicial machinery interfered with any right protected under the Covenant, then what were the remedies?  Had there been actual decisions of the Dina courts?  Would tribunals that approved Dina decisions take into consideration rights that the Covenant protected?  Did everyone convicted of a crime have the right to review by a higher tribunal?  What were the rights of plaintiffs, defendants and prosecuting authorities, and the limit of those rights?  Did the presumption of innocence apply?  Was there a code of conduct relating to the judiciary? 

CHRISTINE CHANET, expert of France, said that there appeared to be wide gaps between the reality on the ground and what was printed in the report.  Some of the figures were very much the same as last time.  For example, the number of people sentenced to death for cattle thefts was similar, even though the Committee had been told that only the most serious crimes carried such a penalty.  Making any theft a capital crime seemed out of proportion.  As for selective justice and impunity, she asked whether there really were double standards in the treatment of different types of prisoners.  It seemed to depend on the political side of those arrested.  Also, why had a committee of inquiry been set up but its results never released?  How did the Dina function?  How was the right of recourse exercised?  Was torture defined as a crime under the new law, or was it simply treated as an aggravating circumstance for certain crimes?  There were rules about the length of time spent in detention, but courts could overrule them.  What was being done to address that?

Mr. GLELE-AHANHANZO asked what was the maximum amount of time people could be held on remand?  How was it possible that someone could have remained imprisoned since 1978 while their case was under appeal?

JULIANA ANTONELLA MOTOC, expert of Romania, asked what measures had been taken by the State for the large numbers of people in Madagascar who were subject to customary law.  What had been done to teach people about the Covenant?  Had measures been taken so that chiefs knew its provisions?  How often were chiefs acting against the law of the country with extrajudicial sentences?  Also, would there be specific measures taken to condemn and combat corruption?  Would the Committee’s recommendations be implemented?  She also wanted more detail on systematic kidnappings.  What would happen to the draft bill on remand detentions?  Would it be adopted in a reasonable amount of time?  Did the Constitution recognize the existence of minorities? 

YUJI IWASAWA, expert from Japan, asked whether the customs in rural areas affected human rights other than equality between men and women and right to life issues.   The delegation had offered an explanation in its written replies concerning what the Government had done to address inequality between men and women, but could it supply an evaluation on the effectiveness of those measures?

EDWIN JOHNSON, expert from Ecuador, took up the issue of trade union rights in free zones, noting a lack of political representativeness.  He had learned that workers found it difficult to organize trade union meetings and that those were even forbidden in some cases.  Unions also complained about the attitude of some owners who prevented genuine dialogue between the parties.  Even parties to the collective bargaining agreement in the so-called free zones had made complaints about abuses regarding mandated overtime, night work for women and sexual harassment.  He sought additional clarification in that connection.

Responding to questions about customary law and their consistency with the application of the Covenant, a member of the delegation said that Madagascar had undertaken public information programmes to try and make sure that inconsistent laws were changed.  Such work had been done in partnership with UNDP.  There were plans to organize a community dialogue in the villages or in smaller places, especially where there was resistance to applying the Covenant, such as with the twins issue.  Discussion was a step in the right direction.  The challenge was to overcome taboos by bringing in all aspects of society in hopes of changing behaviour. 

As for reconciling how a modern State could have customary courts handing down illegal judgments; that was in the past.  The State had done its utmost to end that practice by prosecuting and convicting customary chiefs.  That was the point of bringing in Dina, to make judgments at the village level that did not conflict with national laws.  Dina dealt with lesser issues, but, if one of the parties was not happy with the decision, it had recourse to courts of first instance.  The ultimate goal was to get rid of the customary courts.

As for summary executions, he said that the forces of law and order had sometimes carried them out, but it was always in the face of attacks from armed bandits.  In those instances, the policeman’s life was in danger, making it legitimate self-defence.  Policemen also had a right to life and protection.  Of course, mistakes had been made, but policemen could also be prosecuted and punished.

Regarding selective justice and accusations that only supporters from one camp had been found guilty, he said that it was important to take context into account.  Barricades had prevented movement around the capital.  The army had been sent out to get rid of them.   Bridges had been blown up, and there had been arson and kidnappings.  The other side had committed no such crimes.  He asked how it was possible to be impartial when one camp was made up of innocent victims and the other was committing all the crimes.

Another member of the delegation said that a Dina is more of a “social thing”.  The Dina could not act contrary to the Constitution, and that meant it could not act contrary to the Covenant.  The Dina comprised measures that the community designed by consensus as a way to manage itself.  Under law, it was stated clearly that the Dina had to be consistent with laws and regulations, so “it wasn’t a system of archaic parallel courts, but institutions which respected the obligation to hear both sides”.  In other words, the right to a defence was there and it was respected.  So, the Dinas could not be considered archaic kinds of courts opposed to human rights. 

He added that there had been abuses in the past, possibly in the south-east, but customary chiefs who had gone beyond their rights under the law had been prosecuted and sentenced in proportion to what they had done.

Hailing from the south-east of the country, another member of the delegation said that, in her part of Madagascar, the twins issue was taboo, but things had changed in practice.  To start with, it was an old tradition, based on ignorance and a lack of education.  Over the last few decades, things had changed because many women and men had become more educated.  Many people from her region, if they went along with the “twins taboo”, only did so out of fear of reprisals from their families.  They moved away, in order to bring up their twins in peace, but not everybody had the option of moving, so centres had been set up to raise the twins.  It was not correct to say that one of the twins would be killed.  “No.  No one was ever killed.  What had occurred was that one of the children was abandoned.  That was common, but now things have changed,” she said. 

When one of those children was taken in by the centres, they were looked after by non-governmental organizations and offered for adoption by “good people”, by men and women of good will, she added.  That was why a change had been made to the law on domestic adoptions, so that was not seen as trafficking in human beings.  The custom on the twins was still there, but with help from UNDP, work was under way to raise awareness in the areas where the problem had existed.  It had everything to do with fear, as everyone knew, so that fear had to be addressed. 

Turning to the issue on reciprocity, another delegate said that, according to the Constitution, treaties that were ratified took precedence over domestic laws, on the condition that they were applied by the other party.  So, that reciprocity referred only to bilateral treaties.  As far as the content of treaties’ preambular paragraphs, that matter had been discussed “doctrinally”, and a pragmatic approach had been adopted.  The idea was to integrate those paragraphs into Madagascar’s positive law, but there was no case law jurisprudence yet, so seminars were being held to build capacity in that field.

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For information media • not an official record