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AFGHANISTAN
CASE N AFG/01 - MALALAI JOYA

Resolution adopted unanimously by the IPU Governing Council at its 184th session
(Addis Ababa, 10 April 2009)

The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Ms. Malalai Joya, a member of the House of Representatives of Afghanistan, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/184/12(b)-R.1), and to the resolution adopted at its 183rd session (October 2008),

Taking into account the letter of the Chairperson of the Committee on Immunity and Privileges of the House of Representatives dated 5 February 2009 and of the information provided by the Afghan delegation at the hearing held with the Committee on the occasion of the 120th IPU Assembly; also taking into account the information provided at the meeting held between the Secretary General and the Permanent Representative of Afghanistan to the United Nations Office in Geneva, together with the information regularly provided by the sources,

Recalling that on 21 May 2007 the House of the People of Afghanistan (Wolesi Jirga) decided to suspend the parliamentary mandate of Ms. Joya, elected as a member of parliament for Farah province in the September 2005 elections for a 5-year period, until the end of her term for violating Article 70 of the Standing Orders in a television interview in which she spoke disparagingly of members of parliament, apparently in the context of her staunch criticism of the former warlords,

Recalling that, according to Article 70 of the Standing Orders (Rules of Procedure), the Speaker of the House of the People can apply as a disciplinary measure advice, warning, publishing the name of the offender in the Official Gazette of the Jirga and debarring the offending member from attending the session of that day, but that a member can be suspended for a longer period only at the request of the Administrative Board and with the subsequent approval of parliament; however, that procedure was not followed in Ms. Joya's case as the Administrative Board was not seized and did not issue any recommendation,

Recalling that, during the meeting held on the occasion of the 119th IPU Assembly (October 2008), the Deputy Speaker stated unequivocally that the suspension of Ms. Joya's mandate until the end of her term was unlawful and that she should be reinstated as quickly as possible, and he gave assurances that parliament would make every effort to reinstate Ms. Joya before the closure of the parliamentary session (early December 2008); noting that, in his meeting with the IPU Secretary General, the Permanent Representative of Afghanistan to the United Nations Office in Geneva also expressed the view that parliament should reinstate Ms. Joya as quickly as possible; noting that this has nevertheless not happened although several members of parliament had reportedly raised the issue in parliament; considering that the Chairperson of the Committee on Immunity and Privileges, in his letter of 5 February 2009, and the Afghan delegation to the 120th IPU Assembly stated that Ms. Joya could be reinstated if she offered an apology; when confronted with the Deputy Speaker's previous affirmation that the suspension had been unlawful and that efforts would be made to reinstate her, the delegation confirmed those statements but added that it had been impossible to reach Ms. Joya as she was often abroad and that the Standing Orders contained no procedure for reinstating her,

Recalling that, in February 2008, having found a lawyer willing to take up her case,  Ms. Joya submitted a complaint regarding the suspension of her mandate to the Supreme Court; that, apart from asking parliament to assign a representative to respond to the case, the Court has reportedly taken no other legal action; noting in this respectthat, according to the sources, the attorney assigned by the Court to follow the case, Mr. Attaullah Wais, has failed to take any action to speed up the proceedings; noting further that, according to the sources, the parliament has so far failed to assign a representative and that the Deputy Speaker and other parliamentary authorities contacted several times by Ms. Joya's lawyer were unwilling to speak to him; according to the Afghan delegation to the 120th IPU Assembly, however, Ms. Joya never contacted Parliament and her lawyer did so only once, but merely to collect documents,

Recalling lastly that Ms. Joya has constantly been receiving death threats and that her safety in Afghanistan is in jeopardy, as is that of many other members of parliament,

Bearing in mind that Afghanistan is a party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to life and to security and freedom of expression; that Afghanistan is also a party to the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which enshrines the right of women to equality with men,

  1. Thanks the parliamentary authorities for the information provided; also thanks the Afghan delegation for its cooperation;

  2. Remains deeply concerned that after almost two years, a period exceeding the actual time that Ms. Joya served in parliament, her suspension is still in place; reaffirms in this respect that freedom of expression is a fundamental tenet of democracy which must be construed as broadly as possible in the case of parliamentarians, the elected representatives of the people who draw attention to the people's concerns and defend their interests, and which necessarily entails the right to be highly critical of the performance of parliament and the government, and should therefore be particularly cherished by parliament; reaffirms also that suspension is a disciplinary measure necessarily limited in time, and that a suspension for the entire term amounts to a revocation of the parliamentary mandate, which is wholly unlawful in this case;

  3. Firmly believes that, in failing to reinstate Ms. Joya, the parliament is not only violating its own Standing Orders but also denying Ms. Joya her right to exercise the mandate entrusted to her by the people and depriving her electorate of representation in parliament, a situation which can only undermine parliament's legitimacy as the body representing the people, and is therefore highly detrimental to democracy;

  4. Deplores the fact that the authorities, despite pledges by the Deputy Speaker, have failed to take any action to end Ms. Joya's suspension and are in fact perpetuating a situation which on several occasions they themselves have qualified as unlawful;

  5. Understands that the parliamentary authorities and Ms. Joya have so far been unable to reach each other to discuss her return to parliament; sincerely hopes that it will be possible as quickly as possible to establish a direct dialogue for this purpose, responsibility for which rests with both parties; nevertheless stresses that there is no requirement for parliament to hear Ms. Joya in order to end her suspension; therefore calls on the parliament to take this step as soon as possible and thus prevent the remainder of her parliamentary mandate from being further reduced and becoming meaningless;

  6. Expresses concern at the failure of the Supreme Court to act with the necessary diligence on Ms. Joya's complaint; strongly believes that a complaint concerning the unlawful suspension of a member of parliament should be dealt with as a matter of priority because of its implication for democracy; therefore calls on the Supreme Court to act on Ms. Joya's complaint without further delay;

  7. Recognizes that the death threats against Ms. Joya are made in the context of generalized violence and insecurity in Afghanistan; stresses nevertheless that the authorities have the obligation to make a determined effort to prevent impunity since impunity only encourages the repetition of crime; calls on the authorities to make every effort to identify and bring to justice those making the death threats against her and other parliamentarians; would appreciate information on any steps taken by the parliamentary authorities to ensure that all competent authorities do their duty in this respect;

  8. Requests the Secretary General to convey this resolution to the competent authorities and to the source;

  9. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 121st IPU Assembly (October 2009).
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