Human Rights Committee

Eighty-ninth Session

2426^th Meeting (AM)

Human Rights Committee Concludes Discussion of Madagascar’s Report, Citing Concerns

About Wrongful Detention, Weak Legal Aid System, Judicial Independence

But Notes Progress in Human Rights Legislation,

Accession to International Treaties, Legal System Reform

In the 14 years since Madagascar had previously reported to the Human Rights Committee on steps it had taken to comply with the International Covenant on Civil and Political Rights, the country had been rapidly transforming itself, enhancing human rights legislation, acceding to major international instruments and reforming its legal and prison systems, but the 18-member expert body that monitors compliance with the Covenant raised questions today about wrongful detentions, a weak legal aid system and lack of an independent judiciary.

According to the experts who examine implementation of the International Covenant and its two Optional Protocols, Madagascar -– the world’s fourth largest island separated from the south-eastern coast of Africa by the Mozambique Channel -– the appointment and tenure of judges, possibly for life terms, might be in the hands of a few politicians.  Also, decisions about their possible misconduct seemed to be shrouded in secrecy.  The registration system for detainees was faulty, and files were sometimes lost, making the situation intolerable for the individuals concerned. 

One expert asserted, “a prisoner without a problem can’t be a prisoner”, adding that this was more than a bureaucratic problem or about getting reorganized.  It became unlawful to detain someone without administrative transparency if the person did not know why they were being held, she said. 

Other experts expressed concerns about legal aid and the right to counsel.  According to a new act of 1997, a suspect might be assisted by legal counsel of his or her choice at the time of investigation, but a defence lawyer paid by the State was not available to a suspect who risked a penalty of fewer than five years in prison.  Also, the legal aid system did not appear to be well known or well functioning. 

Responding to the series of questions about judges and the judiciary, members of the high-level delegation explained that judges were appointed for life and that, because of a shortage of judges, they served in different capacities throughout their careers, from headquarters to the prosecutor’s office and so on.  If judges committed disciplinary offences, depending on the seriousness, they might be relieved of their duties.  The hearings of the disciplinary council were not public, but the results of the decisions were made public through the media.  Holding a detainee without charges or files was not legal and, where case files were lost, those people had been freed immediately.  From time to time, however, the system did manage to find those case files.

As for legal aid, there were very few cases where it was used because it required certain formalities.  For example, the person making a request had to prove that he or she was indigent.  That had been corrected, work was being undertaken with the Dinas -- a less formal legal system arranged and managed by the community –- to set up legal assistance as required and studies were under way to ensure the provision of legal aid.  Kiosks had been set up in various jurisdictions to hand out free brochures and provide information to anyone who requested it.

In closing, the head of the delegation and Madagascar’s Minister of Justice, Lala Henriette Ratsiharavala, said that the two days of intense work had been an opportunity for fruitful exchange and, via the questions, it had been possible to glimpse the Committee’s concerns.  The dialogue had also allowed the delegation to note the primordial importance of the attention to be paid to the promotion and respect of human rights in the country’s development.  Efforts had been undertaken to bridge the gaps, but many steps remained and the country was still far from achieving the goal.  However, Madagascar was determined to move forward.  The Committee’s “objective and unvarnished” observations would allow her country to situate itself in the concert of nations and orient its actions properly. 

In addition to the Minister of Justice, the other members of the delegation were Lucien Rakotoniaina, Magistrate, Director of Studies, Justice Ministry; Mohajy Angeline, Director of Multilateral Cooperation, Ministry for Foreign Affairs; Mboara Andrianarimanana, Technical Counsellor in Charge of Juridical Questions, Ministry for Foreign Affairs; Hantasoa Fida Cyrille, Chief of Initial and Periodic Reports on Human Rights, Ministry for Foreign Affairs; 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.

The Committee Chairman is Rafael Rivas Posada of Colombia.  The other experts, all of whom serve in their independent capacities, are Abdelfattah Amor of Tunisia, Prafullachandra Natwarlal Bhagwati of India, Maurice Glele-Ahanhanzo of Benin, Yuji Iwasawa of Japan, Edwin Johnson of Ecuador, Walter Kälin of Switzerland, Ahmed Tawfik Khalil of Egypt, Rajsoomer Lallah of Mauritius, Zonke Zanele Majodina of South Africa, Julia Antoanella Motoc of Romania, Michale O’Flaherty of Ireland, Elisabeth Palm of Sweden, Sir Nigel Rodley of the United Kingdom, Jose Luis Sanchez-Cerro of Peru, Ivan Shearer of Australia and Ruth Wedgwood of the United States.

The Committee will meet again at 3 p.m. on Wednesday, 14 March, to begin its consideration of Chile’s implementation of the Covenant.

Background

The Human Rights Committee met this morning to conclude its examination of the third periodic report on Madagascar, as part of the Committee’s eighty-ninth session, which is scheduled to run through 30 March.  It will present its concluding observations at the end of the session.  For background, see Press Release HR/CT/681 issued on 8 March.

Response by Madagascar to Questions Posed Yesterday

Responding to questions on trade union rights, a member of the delegation said that the State had taken numerous steps to address that issue, including having inspectors follow up on labour codes, and negotiating with a view to collective bargaining agreements.  Also, business committees had been set up to improve working conditions.  Employees could also be part of other unions not related to their area of work, in order to protect their rights.

On polygamy, she said that the practice was marginal, comprising only 1.6 per cent of households in 2005.  With the education of girls, polygamy continued to decrease. 

On human rights, she said that textbooks on implementing such laws had been distributed.  A bill setting up a national committee for human rights was currently being revised.  In 2006, a representative from the Office of the United Nations High Commissioner for Human Rights had visited Madagascar to review setting up the committee.

On the existence of an institution to monitor what happened during states of emergency, she said that there was no special jurisdiction or institution monitoring the executive.  Citizens could appeal before an administrative chamber if excesses were committed as part of a state of emergency.

Regarding measures on the trafficking of women and children, she said that Madagascar had ratified the two Optional Protocols to the Convention on the Rights of the Child.  There was a bill for reforming the penal commission.  Also, procedures for adoption had been suspended as a way to stop the trafficking of children.

On fighting modern slavery in the form of domestic work, she said that an international body with an international plan of action was fighting that scourge.  A national committee had been established in 2005 to fight child labour.  Also, microcredits had been offered to parents, so that they could set up small enterprises and support their families. 

Regarding detainees and their employment, she said that the work was voluntary and remunerated, not mandatory.

On contraception, she said that it was much more prevalent.  Since 2005, the Ministry of Health had been distributing contraceptives in many districts; that program would be expanded.

Regarding the Convention on Torture, she said that Madagascar absolutely prohibited torture.

On the issue of custody, she said that a bill had been adopted by the Council of Ministers and transmitted to Parliament.  She expressed the hope that the bill would be adopted during the current parliamentary session.

As for corruption, she said that certain officials had been sentenced during the last few years.

Regarding questions about a kidnapping network, she said that there might have been a problem in the interpretation of the report.  The Indo-Pakistani community was the victim of such kidnappings; it did not head the network.

She said that the magistrature had had a code of conduct since 2005, and seminars had been offered throughout the island.  Reform of the magistrature was currently being examined.

Experts’ Questions and Comments

CHRISTINE CHANET, expert from France, asked for clarification about the code of conduct for magistrates, as well as on executions committed by law enforcement officials.  She was surprised by some of the responses to questions about twins.  The delegation had stated that twins were no longer killed, but, apparently, they were abandoned.  So, it seemed that the taboo still existed and that children were still unable to live among their families.  Could the delegation clarify?

RAJSOOMER LALLAH, expert from Mauritius, said, concerning the responses about the Dinas’ operation in the villages, as well as the replies about the custom in the case of twins, that “it was an insidious way of short-circuiting the provisions of the Covenant”.  The Committee had been told that many safeguards were in place to ensure impartiality and fairness in the case of the Dina, but he still did not know how they were elected or chosen, or what their functions were.  In the case of the twins taboo, it was not enough for a State to condone that kind of structure and only provide palliative measures, such as those for adopting children, but to deal “frontally” with the violations.

He said that the only way Madagascar “could stick to its traditions” was to measure them against each and every article of the Covenant.  Attention had been drawn yesterday to the various ways in which the articles of the Covenant could be adversely affected by the Dina.  The Government must look at that in order to comply with its Covenant obligations.  Where there were human rights violations based on cultural or religious practices, those practices had no place in a State party to the Covenant, he stressed.

ABDELFATTAH AMOR, expert from Tunisia, endorsed the previous comments and thanked the delegations for the sincerity of its answers.  He also thanked it for supplying him with a copy of the draft Constitution.  The text reflected substantial progress and he hoped it would be adopted, as it would strengthen Madagascar’s commitment to human rights.  Article 13 was aimed explicitly at the presumption of innocence, and the very basis of political parties had been defined.  Article 131 had referred to the Rome Statute and allowed for the “opening up” of that Statute.  With regard to the Covenant, however, there were certain provisions in the draft that might create problems.  For example, he sought clarification about article 19, specifically whether it implied that abortion was constitutionally accepted.

On the question of cultural values, he reiterated that those could serve as an “alibi” for certain customs that ran contrary to the Covenant.  Article 39 of the draft Constitution said that all persons had the right to respect cultural values, but he feared that certain parties would invoke those or social values.  He supported what had been said yesterday and today about the twins taboo.  With regard to treaties, the new draft had stated that there would be no changes.  He concluded, therefore, that the reciprocity issue did not arise in the case of multilateral treaties, but only in the case of bilateral arrangements.

MICHAEL O’FLAHERTY, expert from Ireland, said he would welcome a comment about the extent to which the public education and human rights programme was sustainable.  He also wanted to know, given the five-year gap, when the national human rights committee would be re-established.  He noted that the only oversight procedure was recourse to an appeals chamber, but that did not seem satisfactory from the point of view of the extent to which human rights could be overridden during a public emergency when the life of a nation was threatened, the subject of article 4 of the Covenant.

RUTH WEDGWOOD, expert from United States, returning to a question about the Dina, asked who took an appeal from the Dina and whether legal aid was available for the defendant in the case of an appeal.  If not, how could a defendant afford an appeal?  The delegation had said that sentences for summary executions were proportionate and that the village chiefs had been punished.  She asked the delegation to elaborate on that point.

Delegation Response

On the topic of persons deprived of their liberty, a member of the delegation said that Madagascar had dealt with 595 cases in 2006, cutting back on the number of people awaiting trial.  Also, efforts had been made to improve infrastructure.  Four new prisons and two extensions had been constructed.  Alternative sentencing provisions were being looked at to help resolve the overcrowding problem.  There had been positive developments in the area of mortality in prisons.  After 328 people had died in 2005, only 83 had died in 2006.  The country was also working to ensure the separation of different categories of prisoners, e.g. women from men, minors from adults.  Money had also been allocated to improve prison food.

A major effort was being made to prevent imprisonment for debts.  He pointed out that it was no longer possible to be imprisoned for not paying civil debts.

As for the right to a fair trial, there were an increasing number of cases and a shortage of judges to deal with them, he continued.  The number of judges and staff recruited had doubled in 2006, and a specialized institute had been set up to train judges.  There was an enhanced respect for the right to defence at all stages, and the independence of judges was guaranteed by the Constitution and by new statutes.  The hierarchical subordination of magistrates depended on free speech, but they could be removed if a serious breach was noted by the higher body of the magistrature.  Reforms were also under way to improve efficiency in legal aid.  If a person was charged with a crime that could carry a sentence of five years, the State would cover the cost of lawyers assigned to the case.

On the subject of freedom of conscience, he said that those rights were widely enjoyed.  As for freedom of expression, he said that seven radio stations and one television station had been closed because they did not respect the technical standards set out by the State.  There had been no arrests over expressions of political views.  On the other hand, there had been arrests for infractions of common law, such as murder and embezzlement.

He said authorizations for public meetings were granted when a request specified that the meetings would be held in a closed area with maximum security guarantees.  Those concerns had more to do with safety than discrimination.

He said that no detainees were under special security arrangements.  Madagascar’s system for detention was uniform, without any reference to political affiliation.  All parties enjoyed the right to appeal to the constitutional high court, and the national electoral council could be contacted at any stage.

As for the rights of minorities, he said that there were no ethnic minorities in the traditional sense.  Those who were part of linguistic minorities were foreigners, and their communities had freedom of language and customs, unless they ran counter to national legislation. 

Regarding the dissemination of the Covenant, he said that the Government had called for training programmes to deal with practical human rights violations.

Experts’ Questions and Comments

Mr. AMOR wanted to know the exact content of article 408, paragraph 2, of the Penal Code, which the delegation considered to be compatible with the Covenant.

Regarding religious freedom, it was well known that Madagascar was a country where there was freedom of religion, religious harmony and diversity.  Clearly, that was a source of wealth for the country.  He wanted to know if it was true that, in 2001 and 2002, certain churches had been involved in politics, specifically in supporting certain political candidates.

He also wanted to know about the role of the electoral council in the case of an electoral dispute.  In the case of a complaint by a voter, was there an initial refusal by the electoral council to bring that complaint to the court, despite the voter’s request to do so?

According to the core report, there were no problems with respect to the 18 or so ethnic minorities, but he wanted to know if there were any disparities between national and ethnic interests.

Mr. LALLAH asked for statistical data on arrests by police and subsequent detention in cases of contractual debts.

ELISABETH PALM, expert from Sweden, sought information about whether people who employed children were punished.  As long as that practice was not prohibited in any enforceable way, it would continue, she said.

Turning to the right to a fair trial, she welcomed the actions referenced in the report that had been taken to improve the judicial system.  The introduction of new legislation was one thing, but that was not the whole solution; the new laws must also be made to work effectively.  For example, according to a new act of 1997, a suspect might be assisted by legal counsel of his or her choice at the time of investigation, but a defence lawyer paid by the State was not available to a suspect who risked a penalty of fewer than five years in prison.  Also, the legal aid system was not well known or well functioning.

Thus, she sought more information about the actual situation of suspects charged with criminal offences.  Was it possible for them to be assisted by a competent lawyer from the time of the preliminary investigation and at different stages of the procedure?

Noting that files on suspects had been lost and, as a consequence, people had been detained for years awaiting judgment, she cited two specific examples by name, and asked whether that situation had to do with the shortage or judges or a lack of a system of registering cases and keeping track of the files.  She also wanted to know whether a system was in place and whether or not it was computerized.  How could it happen that files were so often lost or forgotten “with such a disastrous effect for suspects”?

She also asked a series of questions about the independent nature of judges, whether they were appointed or elected, whether they could be removed, and so forth.

Mr. LALLAH asked about ethnic languages and whether ethnic groups were relegated to “foreign communities” rather than assimilated into the Malagasy population.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said that the delegation had provided a lot of information about the situation in the country after many years, but there was much to be desired still insofar as the human rights situation was concerned.  There were a few questions about which he was still worried.  The first concerned the established of a national school for the judiciary.  He wanted to know who ran the institute and whether the training was compulsory for judges.  He also wanted to know whether there was a final court of appeal and, if so, what its jurisdiction was.

On legal aid, he asked whether such a programme had been established through legislation, and whether a law that provided for legal aid was at the cost of the State or left only to the Bar.

ZONKE ZANELE MAJODINA, expert from South Africa, wanted to know the procedures for asylum seekers and what happened if a case was deemed unfounded.  Specifically, was the person repatriated to his or her country with dignity? Also, concerning the re-establishment of the national human rights committee, what steps was the State taking to ensure that it complied with the Paris Principles –- the broad normative standards that ensured that the body would be independent of the executive?

Delegation Response

Regarding the imprisonment of debtors, a member of the delegation said that the intent was to sanction those debtors who acted in bad faith by refusing to reimburse money or honour contracts.  A United Nations expert study had found such measures to be not incompatible with the Covenant.  If a debtor was capable of honouring obligations but refused, then he was acting in bad faith, and it was permissible to punish him.

As for a national school for judges, he said that it was a mandatory process to go through in order to become a judge.  Admission was competitive and there were three branches -- judiciary, administrative and financial.  Types of training included theoretical and practical, jurisdictional and ongoing training on specific topics.

Another representative clarified that religious freedom was guaranteed by the Constitution and legal processes must be followed.  One dissident Protestant reform church had been closed down because it had broken the law by infringing on the property of others and appropriating the goods of the church from which it broke away.  The church had appealed the decision, and the case was being reviewed.

As for the problem of sects, he said that they existed throughout the world.  The Universal Church of the Union of God was not part of a recognized conventional church.  It had not asked to be recognized as a cultural association and did not respect the legal requirements for gaining that status, which took five years.  The church had also burned the Bible, creating a threat to public order.  As the church’s leaders were Brazilian, all had been expelled from Madagascar.

Regarding the independence of judges, Madagascar had evolved under Napoleonic law and that was how the nomination of judges took place.  They were not appointed as in the Anglo-Saxon system, but must pass a competition.  When they retired, payment followed the norm of other public offices in the country.

Speaking about refugees and minorities, another representative said that Madagascar was more of an island of transit than a destination for refugees.  During their transition, they were protected by the United Nations, and Madagascar respected all their rights.  There had never been cases of repatriation.  As for minorities, the non-existence of ethnic minorities had already been mentioned previously.  There were also no religious minorities.  Tribes or ethnic groups were not defined because they all had the same culture and language.  Foreigners could acquire full citizenship, though not many chose to do so and did not have to live in a separate community.

Regarding the files on detainees, another representative said that there had been problems in that area prior to 2005.  The court in Antananarivo had been computerized for five years, so there was now less of a risk of lost files. 

As for the defence of those accused, another representative said that rights were ensured from the beginning of an enquiry.  Anyone with sufficient means could have a lawyer.  If they did not have the money and the potential penalty was more than five years, legal aid was available and, during the preliminary period, anyone could be assisted by the person of their choice.

Concerning the lost files, she said that that had happened, not in the capital, but in the provinces.  The main cause had been the reorganization of the court of appeal to create additional branches outside of the capital.

As for the law on corruption, she said that the relevant bodies still needed to be established, starting with a superior court to fight corruption.  Also, an anti-corruption penal network had been set up to deal with everything up to the court of appeal level.  Several sentences had been handed down since those bodies had been set up.

Experts’ Comments and Questions

Ms. PALM, expert from Sweden, said that she realized that a statute existed for judges’ appointments, but she wanted to know about the mandate period, whether judges were in office for a limited time, whether they could be removed and, if so, for what kind of offences.  It seemed clear that the filing system had improved, but the confusion in the countryside was worrisome.  She hoped that the files would soon be computerized everywhere. 

As for the magistrature council, she was concerned about its functions and composition, as it was made up mostly of people from ministries and heads of court and made very important decisions for judges and their careers.  It seemed that disciplinary matters were done in secret, which had serious implications for the independence of judges.  Was it true that disciplinary matters were secret, that judges could be moved from posts if found to have committed some misconduct?

Ms. WEDGWOOD, expert from the United States, said the presumption should be that a prisoner without a file should not be a prisoner.  It was not a bureaucratic question of getting reorganized; if the person did not know the reason for being held and if there was no administrative record, then the detention in question was illegal.

As for non-traditional religions, stating that people could only worship in an established church would seem to violate the freedoms contained in the Covenant, which had not been established to distinguish between traditional and non-traditional faiths.  People could have their own revelations.  She urged a rethinking of the practice of limiting religious certification to traditional religions.  A five-year delay was tantamount to denial.

Mr. BHAGWATI, expert from India, said that leaving the fate of judges in others’ hands, such as Members of Parliament who were not themselves judges, could affect the independent judiciary.  That was a concern and should be looked into and corrected.  Such a task could not be in the hands of a few people.  As for legal aid, there should be a body dispensing it, regardless of whether the person deserved it or not.  How exactly was legal aid available?  He also asked how many television and radio stations had been closed down and why.

Delegation Response

A member of the delegation clarified that judges’ terms were for life.  Because of staffing shortages, judges went back and forth between the offices of prosecutors and others.  There were also questions of health and family reunification, so there was no predetermined duration for judges.  They could be relieved for disciplinary reasons, such as in cases of corruption.  Members of the Ministry of Justice were generally all judges themselves.  Hearings of disciplinary councils were not public, but results were brought to public attention through newspapers.

As for holding people without files, she said that was illegal.  People had been immediately freed once it was realized that the file had been lost, though files were sometimes later found.  As for legal aid, she said that it had been used in very few cases because of certain formalities that involved proving the person making the request was indigent.  That had since been corrected, and studies were under way to ensure legal aid.

Another member of the delegation, speaking about religion, said that the type of religion did not matter, but all must respect the laws and tolerate the religions of others.  That was why the Union of God Church had been closed –- because it had offended Catholics.

Closing Remarks

When the Committee concluded its consideration of Madagascar’s third periodic report, Committee Chairman RAFAEL RIVAS POSADA of Colombia said he looked forward to additional information from the capital and he acknowledged additional efforts made by the State party to reform some of the legislative provisions regarding the protection of human rights.  Those efforts had been reflected in the information provided to the Committee. 

However, he said he was surprised at the amount of time that had passed since the previous report –- 14 years.  That time lapse did not contribute to the Committee’s work or to the necessary review of the conduct of Member States in complying with their international commitments.  It should be borne in mind that, along with respect for the Covenant, there was an obligation to submit reports on time, particularly for those States that had suffered a political trauma and were embarking on reform of their Constitutions or legal structures.  It was not easy for the Committee to bear in mind those processes if it did not receive information through the reports.

He said that Committee members had two persistent concerns.  The first concern was the parallel jurisdiction between the courts and the Dinas.  Decisions that could have a direct effect on many of the guarantees in the Covenant had been made at the tribal level.  The explanation had been given that customs entered into conflict with the wish to modernize institutions and avoid possible excesses involving those customs and traditional cultures.  It had been said that that was not a parallel jurisdiction and that efforts had been made to submit those communities to monitoring.  Still, some doubts remained that Dinas operated in the “shadows”.  It was unclear whether the State had effective control over the legal institutions, he added. 

Another area of repeated concern had been the question of the twins, he said.  Those children were subjected to taboos in several parts of the island, and attempts to abandon the twins persisted.  A delegate had said that those children could be legally adopted in a process that was subjected to strict control, but she had also said that the custom existed.  The State party, therefore, should focus on the future and on avoiding that anomaly.

He said that another concern was the way in which the legal institutions functioned in states of emergency.  There were several types of states of emergency and their renewal and indefinite duration allowed the provisions of the Covenant to be suspended.  Serious doubts had also been expressed, despite the information received, about the situation of detainees and forced labour, including that detainees could be handed over to the private sector. 

LALA HENRIETTE RATSIHARAVALA, Minister of Justice of Madagascar, said that the two days of intense work had been an opportunity for fruitful exchange.  Via the questions, it had been possible to glimpse the Committee’s concerns.  The dialogue had also allowed the delegation to note the primordial importance of the attention to be paid to the promotion and respect of human rights in the country’s development.  Any development policy would be unable to attain its objective if it did not try to improve the well-being of human beings.  That was much more important than political satisfaction.  The human aspect of development had been highlighted, because increased riches would not be sustainable without human riches.

In that regard, she said, education was important because transformational primary education was essential in promoting and appropriating democracy.  Madagascar was involved in a transformational process, the aim of which was to ensure rapid and sustainable development.  Democracy was an essential condition for sustainable development, and the reverse was also true.  Given the date of the report, some realities cited were already out of date because her country was rapidly moving forward.  Beyond its accession to major instruments, the Government had paid particular attention to enhancing human rights legislation.  Particularly notable had been the development of the rights of women and vulnerable people, and the improvement of the situation in prisons and of people in custody.  The latter situation was still of concern, but many improvements had been made.

Overall, efforts had been undertaken to bridge the gaps, but many steps remained to be taken, and the country was still far from achieving the goal, she said.  However, Madagascar was determined to move forward.  She thanked the Committee in advance for its objective and unvarnished observations, which would allow the country to situate itself in the concert of nations and orient its actions properly.  The advancement of human rights involved constant vigilance, and she favoured provisions for ongoing evaluation and the practice of democracy, respect of rights and freedoms.

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For information media • not an official record