Friday, July 09, 2010

Milestone victory for gay refugees in UK

A unanimous decision by five judges of the UK supreme court in favour of the appellants in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 represents a milestone in legal history. It secures the rights of LGBT people in need of protection from persecution, and will bring to an end years of discriminatory policy by the immigration services., Wednesday 7 July 2010

To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is.

reasonable tolerability' test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future'

HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 On Appeal from: [2009J EWCA Civ 172

Supreme Court Press Summary 7 July 2010

Download the full judgement: HJ (Iran) (FC) (Appellant) v SSHD

Justices: Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Collins, Sir John Dyson SCJ

Background to the application
HJ and HT are homosexual men - from Iran and Cameroon, respectively - who seek asylum in the United Kingdom on the basis that they would face the risk of persecution on grounds of sexual orientation if returned to their home countries.

In both Iran and Cameroon it is a criminal offence punishable by, inter alia, imprisonment and, in the case of Iran, by the death penalty, for consenting adults to engage in homosexual acts.

The Convention relating to the Status of Refugees, as applied by the 1967 Protocol ("the Convention"), provides that members of a particular social group, which can include groups defined by common sexual orientation, are entitled to asylum in States that are parties to the Convention if they can establish that they would face a well-founded fear of persecution if returned to their home country.

The Court of Appeal found that, if returned to their respective home countries, HJ and HT would conceal their sexual orientation in order to avoid the risk of being persecuted. As HJ and HT would hide their sexuality they would not come to the attention of the State authorities and so would not be at risk of persecution. Accordingly, neither party had a 'well-founded fear of persecution' that entitled him to protection under the Convention: it was permissible for a State party to the Convention to refuse asylum to a homosexual person who, if returned to their home country, would deny their identity and conceal their sexuality in order to avoid being persecuted, provided that the homosexual person's situation could be regarded as 'reasonably tolerable'. Only if the hardship which would be suffered was deemed to exceed this threshold would the applicant be entitled to protection under the Convention.

The Appellant appealed to the Supreme Court, contending that the 'reasonable tolerability' test espoused by the Court of Appeal was incompatible with the Convention.

The Supreme Court unanimously allows the appeal holding that the 'reasonable tolerability' test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. H] and HT's cases are remitted for reconsideration in light of the detailed guidance provided f:y the Supreme Court.

Reasons for the judgment
There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members' sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger].

To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger].

The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope].

Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger].

One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country 'on condition' that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52]-[53] and [65] per Lord Rodger].

The 'reasonable tolerability' test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger].

There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger].

Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at:!decided-cases/index.html

Police assassinates protesters, more journalists arrested, orders to capture labor leaders in Panama war zone

La Prensa reports one, but sources close to the events say four five protesters have been killed and tens wounded by the police in Bocas del Toro. The protests, by banana plantation workers and other labor organizations, have been going on for days and are held against the infamous “chorizo law”. Minister of the presidency Papademente is said to travel to Bocas, and the cabinet is currently holding an emergency session.

The exact law that the protests are held against gives the police immunity in case they commit crimes.

According to La Estrella, the police is trying to capture the entire leadership of labor union SUNTRACS, for “attacking the honor of president Martinelli”.

Yesterday, a photographer for El Panama America was detained for 6 hours because he took pictures of policemen guarding the Canal expansion project. He was stripped naked, handcuffed, and locked up for hours with various people being held at the police station in Veracruz.

The strike at the Canal expansion project reveals that the law 30, better known as the “chorizo law”, is being used by the labor unions to break open existing contracts and agreements. They argue that, if one contractual point is no longer valid, the whole contract needs to be renegotiated. This is a smart and effective tactic, because at projects like the Canal expansion the corporations can’t change the protesting workforce overnight – not enough qualified workers are available.

Meanwhile, the authorities are distributing version three or four of an “explanation” for detaining La Prensa columnist and Spanish journalist Paco Gomez Nadal at the airport and prohibiting him from leaving the country. After first pointing at imaginary tax problems the scribent would have, then changing the narrative about him being able to leave or return, they now maintain that the journalist doesn’t have a valid work permit.

Another journalist illegally detained by Martinelli’s mafia, the 70 year old Carlos Nuñez, will reportedly be transferred to the Tinajitas prison. Sources close to the case told Bananama Republic that Nuñez needs heart surgery and should not be held at all.

Calls for our madman president Martinelli to resign are mounting, and we think it’s only a matter of time before the word “overthrow” enters the vocabulary.

En la mañana de hoy, fuerzas antimotines dispersaron a los manifestantes que protestaban por la aprobación de la Ley 30.

No soy fotógrafo de guerra, así que tomé los videos desde el interior de mi casa. El que sigue fue tomado desde el interior de la Clínica San Rafael, en la avenida 17 de abril de Changuinola

También en la calle Luis Flores:

Y un testigo de excepción:

Seguiremos informando.

International probe finds "systematic patterns of violence" behind sexual abuse of Penan women

International probe finds

"Systematic patterns of sexual violence": Title page of the new NGO report.

KUALA LUMPUR, MALAYSIA. The Penan Support Group, a coalition of 36 Malaysian non-governmental organizations (NGOs), yesterday presented new evidence on the sexual abuse of indigenous women by timber company employees in remote rainforest areas of the East Malaysian state of Sarawak in Borneo. On the occasion of a media conference in the Malaysian parliament, the group released its comprehensive report entitled "A Wider Context of Sexual Exploitation of Penan Women and Girls in Middle and Ulu Baram, Sarawak, Malaysia."

The report presents seven previously undocumented cases of sexual abuse and concludes that "the cases all point to systematic patterns of violence" which include "harassment, abduction, rape, physical assault, emotional abuse, coercion into marriage and desertion upon pregnancy." The fact-finding mission had visited three Eastern Penan communities and one Kenyah community and had listened to evidence from a further thirteen Penan communities." The report is the result of a fact- finding mission to Sarawak's Upper Baram region conducted by the Penan Support Group, FORUM-ASIA and the Asian Indigenous Women's Network (AIWN), which took place in November 2009.

The Penan Support Group urges the Malaysian authorities to act decidedly in order to protect the victims and calls for "a political solution" to prevent further sexual violence by loggers. It states that the wider context of these cases of sexual violence includes the "systemic undermining of the autonomy and sustainability" of the native communities by the state government's logging policies, "the denial of their land rights, the denial of basic citizenship rights" and "the failure to provide a supporting environment for the right of redress.

The mission was organized after the Sarawak police had refused to further investigate a number of sexual abuse cases which were documented by a Malaysian federal government report in September 2009. Sarawak's political leadership had claimed that the cases described by the Federal Ministry of Women, Family and Community Development were not true. Allegations of sexual abuse of Penan women by employees of two timber companies, the Samling group and Interhill, had first been made public by the Bruno Manser Fund in September 2008. Both companies had denied the allegations.

Download the complete report here (PDF 6.5 MB)

(7 July 2010)

Penan_Support_Group_Press_Release_2010_07_06.pdf (104KB)

Tuesday, July 06, 2010

Johannes Mehserle pulverized on the witness stand

On Friday, June 25, the BART cop who pulled the trigger unjustifiably killing Oscar Grant a year and a half ago, on New Year’s of 2009 on a BART station platform in East Oakland, Johannes Mehserle, wrapped up his testimony in one of the most important murder trials of the last 20 years. The courtroom was filled to capacity with reporters, Grant’s family and friends, and concerned community members.

This is the photo of Johannes Mehserle taken by Oscar Grant with his cell phone moments before Mehserle shot him in the back as he lay face down on the BART platform, restrained by Officer Tony Pirone kneeling on his head and neck. Note the taser in Mehserle’s right hand. Mehserle had to re-holster his taser before pulling his gun and shooting Grant. – Photo: Oscar Grant via Los Angeles Superior Court

Mehserle began the morning with, “My main focus was on his (Grant’s) hands going into his right pocket. I remember the digging motion with his right hand. I was pulling as hard as I could to get it out. I made the decision at that point to tase him,” said Johannes Mehserle on the witness stand. “I didn’t know what his intentions were. I remember saying I’m going to tase him twice.” Mehserle made it clear that his defense was that he thought that Oscar Grant had a gun. “I thought that I didn’t want to get shot.”

“I stood up to create distance, so the taser would work,” said Mehserle as he tried to justify tasing an unarmed 150-170-pound person who was under the restraint of two police officers who are over 6 feet and 250 pounds each. “I remember the pop, that wasn’t very loud. It wasn’t like a gunshot. I remember thinking, ‘What went wrong with the taser?’”

Then Mehserle broke out into a theatrical sob that should have won him an award. Through his tears and red flushed face, he continued: “I looked at my right hand. I didn’t know what to think. It (his 40 caliber revolver) shouldn’t have been there. I remember Oscar Grant saying, ‘You shot me!’” At that point Oscar Grant’s mother, Wanda Johnson, marched out of the courtroom.

About 20 seconds later, Tim Killings from Oakland began to march out, and he shouted, “You should save those fuckin’ tears, dude.” The presiding judge, Robert Perry, demanded that Killings be arrested for contempt.

Attorneys John Burris and Adante Pointer (right) stand on either side of Jack Bryson Jr. at Los Angeles Superior Court on Thursday, June 24, the day of Bryson’s gripping testimony about what he and his friends encountered on New Year’s 2009, including the murder of their friend, Oscar Grant, and what happened in the aftermath. Burris and Pointer of the Law Offices of John Burris head the legal team that represents Jack Bryson Jr., Nigel Bryson, Michael Greer and Carlos Reyes in a civil lawsuit rooted in the terrorism aimed at them by the BART police before and after Grant was murdered. – Photo: Minister of Information JR
Tim Killings was one of six Black males under 40 who were banned from the courtroom that day. The others were Jabari Shaw, poet Ghetto Prophet, Jovan Cochran, myself and Anyi Howell of Youth Radio, who was also held in contempt for plugging his turned off cell phone into an empty socket in the courtroom. Tim Killings, who is being held without bail, will go to court on Tuesday, and Anyi Howell goes to court on Wednesday to face his charges.

The political climate that allowed six out of the seven Black males under 40 to be banned from the courtroom is consistent with the track record of this case: The trial was moved out of Alameda County because of defense claims that Blacks in the area could not be unbiased, and no Black people were picked to sit on the Los Angeles jury.

Another point that must be documented is that the LA Sentinel, the biggest Black newspaper in Los Angeles, was denied entry to Mehserle’s testimony under the pretext that the courtroom was too full. That brings to three the number of Black journalists excluded Friday: Anyi Howell of Youth Radio, the Sentinel editor and myself.

The judge, who was angry at Killings’ remarks, shouted, “I will clear the courtroom of everyone, even the press, if we have any more outbursts.” He then declared a five-minute recess. When Mehserle left the witness stand, which was after the jury had left the room, he was no longer crying.

The defense ended its line of questions by asking Mehserle to speak directly to the jury. He said, “I didn’t intend to shoot Mr. Grant. I meant to tase him.”

The prosecution started off by asking Mehserle how much time he spent preparing for this day in court. The defense lawyer kept objecting, and Mehserle acted confused as if he did not understand the line of questioning, which was designed to show that Mehserle rehearsed his theatrics for months before the murder trial got underway. Mehserle finally conceded to preparing “more than an hour.”

Los Angeles supporters of Oscar Grant, well aware that the fate of Johannes Mehserle is up to the jury, displays this banner every day after court to remind them of their duty. No matter which exit from the courthouse the jury uses, the supporters are always at the right place at the right time. Here, Chela Simone of Oakland (far right) stands strong with the Los Angeles young people, ranging in age from 12 to early 20s. – Photo: Minister of Information JR
Mehserle’s defense objected to the prosecutor’s questions to Mehserle, “Is it true that you currently live in LA with members of the defense team?” and “Did you ever do any role-playing in your preparation for the case?”

The prosecutor saw it as his mission to prove that Mehserle meant to shoot Oscar Grant. It was never his intention to tase him. Under cross-examination, Mehserle blurted out, “In my mind, I thought he was going for a gun.” The prosecutor asked, “When you watched the video, did you hear yourself say, I’m going to tase him?” Mehserle replied, “No.”

The prosecutor continued, “Why did you fire (what you thought was a taser) when Officer Pirone was in such close proximity (because the tase would shock anyone touching the victim)?” Mehserle answered, “I knew I had to act very fast with the taser.” The prosecutor fired back, “Because you were going against a gun?”

“Yes,” said Mehserle. Then the prosecutor asked him what effect does being tased have on the body. He answered that tasing makes the body tighten up. Stein then unloaded his legal nuclear bomb on Mehserle when he asked him, “Why would you want a hand holding a gun to constrict?” Mehserle answered, “I wasn’t thinking about that.”

Mehserle later admitted on the stand that he never called for medical assistance in what he was trying to define as an accidental shooting, as well as he never told any of the other police officers on the platform or at the BART police station headquarters that he meant to pull out his taser. The day ended with the family, friends and supporters of Oscar Grant feeling good about how the prosecutor pulverized Johannes Mehserle on the stand.

The last action of the court, after court had been adjourned, was to ban me for what a baliff said that I said. He lied and said that I told witnesses that I was going to put bullets in their back. This couldn’t be further from the truth. The bailiff claimed the judge said that I couldn’t come back into the courtroom and if I did, I would be arrested. I spoke with a supervisor, who told me to come back and that the particular bailiff that lied on me may not be working the front door of the Mehserle courtroom. He also told me that he would only enforce the ban if the judge enforced it.

It was another day in the Los Angeles Jim Crow courtroom of Robert Perry. It showed us how much things have not changed in this country, since the time when it was openly said that a Black man has no rights that whites – in this case, pigs – are bound to respect.

Email POCC Minister of Information JR, Bay View associate editor, at and visit

On Friday June 25, 2010, Oakland resident Timothy Killings who was watching the Johannes Mehserle trial could not contain himself in court and shouted out to Mehserle, “Save those fucking tears” when he was testifying about shooting Oscar Grant.

During direct examination by Michael Rains, Mehserle began to sob when talking about shooting Grant with his weapon. The family and other court room spectators where not moved by Mehserle’s display of emotion and Grant’s mother, Wanda Johnson, got up and walked out of court.

Killings was released from the Los Angeles County Jail on Monday and was back at the courthouse on Tuesday morning to support justice for Oscar Grant. He cannot visit the courtroom and he has been barred from the ninth floor.

Date: June 29, 2010
Location: Downtown Los Angeles
Interview by: Alex Alonso
Soula Media

Sunday, July 04, 2010