Right to Information: Battling Corruption in Mexico
7:05 PM ET
JURIST Guest Columnist Cristian Minor Sanchez, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the eighth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. He explores how strengthening the right to information could be key to ending corruption in Mexico...
One of the biggest challenges for the Mexican government in the last decade has been overcoming the corruption of its institutions. It is a problem that has plagued all levels of government. This problem, as in many countries around the world, has brought about economic and social instability. It is defying the rule of law in a democratic state.
The problem can be attributed to, among other things, the idea held by many public servants that they are the owners of a "corporation" called the government. Accordingly, they believe that they have the right to use and misuse public resources as if they owned them. However, public servants should realize that, in an analogy to American corporate law, they are simply the board of directors and officers of the corporation and we, the people, are the shareholders and true owners. Therefore, public servants, who only hold their positions for a limited period of time, owe fiduciary duties to the people, such as the duty of loyalty and the duty of care. The people, as the real owners of this corporation, should have the right to ask and to know how the corporation is performing and using public resources. With an informed society, public servants would act knowing that they could be held accountable for their actions. This potential for accountability creates a greater sense of responsibility and, as a result, is likely to encourage public servants to be more truthful and efficient in the performance of their functions.
For this article, I will focus on one of the solutions that the Mexican government, in conjunction with different sectors of society, has found to be effective in the fight against the corruption and wrongdoings of government officials. This solution was the amendment to Article 6 of the Political Constitution of the Mexican United States, which gives the people the right to know and have access to public information held by the government. This right is a tool to prevent the misuse of public resources by public servants and to promote transparency.
The idea of transparency and access to public information is not a novel discovery made by the people of Mexico, although until the end of the last century it was almost nonexistent in the country. This is why the idea has had a large negative effect on the government and society. Access to public information has become a fundamental right and the consolidation of democracy has generated awareness in Mexican society about how the power of the government is exercised, what the government does, how it does it and for what purpose it is done.
It is important to provide some historical background about the development of this constitutional right in order to understand why it has become so crucial to continue with a democracy sustained by real rule of law.
In 1917, the current constitution of the United Mexican States was promulgated. It has 136 articles and is divided into two parts. The first covers the fundamental rights of the people, and it contains limitations on the relationship between the state and the people. It is referred to as the dogmatic and covers the first twenty-nine articles of the Constitution. The second part is called the organic part and it covers Article 30 to 136. This part of the Constitution organizes the structure and function of the three different powers, as well as the organization of the powers of the states of the republic.
Article 6, the article of interest for this discussion, as originally enacted in 1917 stated only: [T]he expression of ideas shall not be subject to any judicial or administrative investigation, unless it offends good morals, infringes the rights of others, incites to crime or disturbs the public order. Obviously, the original purpose of the constitutional article was only to guarantee freedom of speech, similar to the First Amendment to the US Constitution.
Nonetheless, in 1977, Article 6 was amended. The following phrase was added at the end of the article: "The right to information shall be guaranteed by the State." The legislative history indicates that this text was added because of a need to allow and guarantee political parties access to the media so that they could communicate their ideas. For several years, this amendment created a debate regarding its scope that focused mainly on the issue of regulating the access of political parties to the media. Also, the Supreme Court of Justice of the Nation (Supreme Court) ruled that this phrase only regulated the access of political parties to the media. Another proof of the intent of the legislators to amend Article 6 with the purpose of guaranteeing political rights, instead of a fundamental right, was the myriad activities that surrounded the reform. The addition was made with a number of amendments called the Political Reform of 1977 which was used as a framework of reform for political and electoral rights. However, some academics indicated that this amendment also provided the people with the power to access governmental information and did not stop at access to political rights.
Although the intent of the legislators was clear when they passed the amendment in 1977, the Supreme Court reversed its previous ruling decades later. In 1996, the Supreme Court held that, even though the amendment had been construed as a right for political parties in the past, it should be read to provide the people with a fundamental right and obliged the government to provide truthful information.
Furthermore, the Supreme Court held in a different decision that the exercise of the right to information was only limited by national and societal interests and by the rights of third parties. In other words, this fundamental right is limited by information considered to be reserved because of its nature or confidential because it protects private information of the people held by the government.
At this stage, the right to information was construed by the Supreme Court not as an autonomous right, but in some way expressly or implicitly connected with other fundamental rights, such as the freedom of speech, the right to petition and the right to be heard in court.
Nevertheless, at that time, there was no regulation that could enforce this fundamental right. But, at the beginning of the twenty-first century, there was an international dissemination of terms such as "transparency" and "access to public information." The first term was understood as the obligation of the government to make public the information in its possession and the second term was understood as the fundamental right of the people to have access to information held by the government, also known as the "right to know." This international movement that resulted in the promulgation of laws of transparency and access to public information around the world had a direct impact on different groups of the society, such as non-profit organizations, academics and chambers of commerce. These groups worked together and started to promote the creation of a law that could guarantee transparency and access to public information in Mexico. As a result, the Congress of the Union passed the Federal Transparency and Access to Public Government Information Act [PDF] in 2002. The act created the Federal Institute of Access to Public Information (IFAI). The main principle of the law is transparency, which is understood as the responsible exercise of power. When government makes information public to society about how politics and administration are conducted, society can participate in the democratic exercise of power. Therefore, decreasing the unlimited power of the government and reducing corruption.
This act established that information in the possession of the government is public and that the government has an obligation to provide it to any person who requests it through a quick and simple process. The same act also establishes that the only way in which the delivery of information would be refused is if such information is under one of the two categories of restricted information: reserved or confidential.
In the years that followed the enactment of this law, most of the 31 legislatures of the states of the Mexican Republic started to enact laws to enforce this fundamental right and to create agencies around the country with the purpose of enforcing these laws. However, the constitutional foundation of this fundamental right was weak and unclear. The main problem was that the legislatures did not construe this fundamental right or its scope uniformly because neither the constitution nor the Supreme Court provided a basic understanding of the main principles on which the regulations should be based.
In 2007, after a great effort by legislators, academics, members of the government and members of society as a whole, the Congress of the Union passed a constitutional amendment [PDF] to Article 6. Under this amendment, the constitution explicitly guarantees the right of access to public information and elevates it to the level of a fundamental right by establishing seven categories with principles and fundamentals that constitute its legal framework.
The first category establishes the principle that all information held by any authority, entity or agency, at the federal, state or municipal level, is public and can only be reserved temporarily for reasons of public interest in the terms. Also, when interpreting this fundamental right, the standard of maximum publicity should be used. The second establishes the principle that private information of the people and personal data held by the government shall be protected based on terms and exceptions determined under law. The third establishes that any person shall have free access to public information, personal data or the rectification of those without needing to demonstrate any kind of legal interest or justification for the utilization of the information. The fourth states that there shall be a mechanism to access public information and a mechanism for dispute resolution procedures and that these procedures shall be resolved before specialized and impartial agencies with autonomy of operation, management and decision-making. The fifth establishes that the government shall preserve its documents in administrative archives, and mandates that the government shall publish information related to the use of public resources and management indicators. The sixth states that the laws shall determine how the government shall publicize information related to public resources given to individuals and corporations. And the seventh category establishes that non-compliance shall be sanctioned according to terms determined by the law.
It has been almost four years since the constitutional amendment to Article 6. It has proven to be effective, and now all the laws in the country have been changed to comply with this new constitutional text. Although authorities still resist the idea that they do not own public resources and that they cannot deny the delivery of information to the public, as it is established upon one of the most fundamental societal rights, it has been affirmed that the people have the right to know what their government does with public resources.
This amendment has resulted in several thousands of requests for public information, more oversight in how public servants manage public resources, public disclosure of financial information regarding political parties, dissemination of information on administrative and criminal sanctions and information for each of the three branches of the government being made available online — such as the goals of an entity, the salaries of public servants, public spending, government bidding procedures and opportunities and financial reports. Thus, the exercise of the fundamental right to information is a successful remedy to corruption as it promotes both accountability and transparency. This fundamental right has proven to be a real democratic tool that empowers the people and it can be used for social benefit to delineate the way in which the government should be conducted.
Mexican society and the Mexican government have a long way to go to reach a complete democracy founded on the most fundamental rights and their own constitution. To achieve this goal, both parties have to make a greater effort to overcome the problem of corruption so that the country will be seen again as a nation governed by the rule of law.
Cristian Minor Sanchez received his first law degree from the Autonomous University of Puebla State, in Puebla, Mexico, in 2003, where he also received a diploma in Mediation as an Instrument for the Resolution of Conflicts in 2007 and a diploma in Human Rights, Public Safety, and Administration of Justice in 2008. Minor worked for several years as a law clerk at the Commission for Access to Public Information and Protection of Personnel Data in Puebla, Mexico, before moving to Pittsburgh, where he was a member of the UPMC Health Plan Insurance Services Division for two years. During his legal studies, Minor worked as a legal intern at the Senate of the Republic in Mexico City.
Suggested citation: Cristian Minor Sanchez, Battling Corruption in Mexico through the Right to Information, JURIST - Dateline, May 23, 2012, http://jurist.org/dateline/2012/05/cristian-minor-sanchez-mexico-corruption.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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The Unsure Fate of Affirmative Action
10:05 AM ET
JURIST Associate Editor James Craig, University of Pittsburgh School of Law Class of 2014, discusses the history of affirmative action and argues that recent studies and case law have left affirmative action with an uncertain future...(His opinions are not intended to represent those of JURIST)
In February 2012, the US Supreme Court granted certiorari to once again decide the constitutionality of affirmative action in higher education. Next term, the Court will hear the case of Fisher v. University of Texas at Austin, which arises from a complaint made by Abigail Noel Fisher alleging that she was denied admission to the University of Texas while minority students with lower grade point averages and standardized test scores were admitted. In its April 2012 decision, the US Court of Appeals for the Fifth Circuit upheld the university's affirmative action program by finding that it passed strict scrutiny. The Supreme Court will be called on to address whether the University's program, which gives minority students an advantage on undergraduate college applications, violates the Due Process Clause of the Fourteenth Amendment.
The issue of affirmative action stems from the divisive period of the Civil Rights Movement during the 1950s and 1960s. In the midst of civil strife and tense race relations, the US Congress, with the encouragement of President Lyndon B. Johnson, passed a series of laws which are popularly known as the Civil Rights Act of 1964. One section of that document has particular bearing on the issue of affirmative action — Title VII.
Title VII prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin and at its heart held the Equal Protection Clause of the Fourteenth Amendment, which states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." However, the law alone did not end the inequality. Supplementing Title VII, Johnson declared that all federal contractors be required to take affirmative action in hiring practices towards minorities in his Executive Order 11246. Subsequently, the practice became integrated into higher education in public universities.
The first true challenge to the policy in regards to college admissions came in 1978 in the decision in Bakke v. Regents of the University of California. In Bakke, an applicant to the University of California Davis School of Medicine was denied admission while other, less academically qualified minority candidates were granted admission. The Supreme Court decided that the University's quota system for admitting minorities was far too rigid and thus violated the Equal Protection Clause of the Fourteenth Amendment. However, Justice Powell went further to state that despite their ruling, diversity in higher education was, in fact, a compelling interest to continue affirmative action.
Many years and much debate later, two cases changed the standard of review for affirmative action cases. The cases of Freeman v. Pitts and Adarand Constructors, Inc. v. Pena, falling within three years of one another, illustrated the court's renewed interest in the policy. In Freeman, the court found that not only was diversity a compelling interest in pursuing affirmative action in higher education, but remedying past racial injustice also met this benchmark. Then, in Adarand, the court found that the standard of review for federal race and ethnicity based programs would be strict scrutiny, requiring: - (1) a compelling governmental interest in promoting or restraining a certain action, and
- (2) that the action be narrowly tailored to that end.
The decision in Adarand reaffirmed the 1989 case of City of Richmond v. Croson, which applied the standard to state-based challenges.
The next cases of importance came a decade later in Gratz v. Bollinger and Grutter v. Bollinger in 2003, collectively known as the Michigan cases. In Gratz, the two petitioners Jennifer Gratz and Patrick Hamacher — both white residents of the state of Michigan — were denied admission to the University of Michigan's undergraduate program. The petitioners filed suit against the university in 1997 claiming that their Fourteenth Amendment rights to equal protection were infringed upon. They sought declaratory and injunctive relief. The Court heard the case in conjunction with another case that had been brought against the University's law school, Grutter v. Bollinger. In Grutter, the petitioner Barbara Grutter was similarly denied admission to the University's law school based on the school's affirmative action policy that gave minorities an advantage in admissions. The Court split their decision on the two cases. In Gratz, the Court held that Michigan's point-based admissions system was too rigid and gave too much weight to race. However, the Court diverged from this opinion in Grutter where they held that the more holistic approach to admissions utilized by the university's law school was constitutionally valid and that there was still a necessity of promoting diversity in higher education. Justice O'Conner, writing the opinion of the court stated: The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. While the decision in Grutter held that affirmative action in higher education was still supported by a legitimate governmental interest, only four years later a fractured Court dealt a blow to the legal rationale underpinning their decision. In the case of Parents Involved in Community Schools v. Seattle School District No. 1, the Court found in its plurality opinion that remedying past racial diversity was no longer a sufficiently compelling governmental interest. Additionally, the Court held that denying a student admission to the school of their choice based on a pursuit of racial diversity violated that student's equal protection rights. However, Justice Kennedy writing in concurrence stated that "diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." Further, while this case represented a changing view on the program, the Court has long held that affirmative action in higher education is uniquely privileged.
In recent years, strongly competing opinions have emerged on the rationale underlying affirmative action in higher education. Former presidents of Princeton and Harvard, William G. Bowen and Derek Bok, respectively, are strong proponents of the policy. In their 1998 book, The Shape of the River, they offer empirical evidence showing the benefits of the policy on minorities. They cite reasons including increased college access to minorities, increased earning power of graduates and popular support for affirmative action as the basis for the continued necessity of the policy.
Opponents of the program, including Marie Gryphon of the CATO Institute, have called their statistics into question and systematically undercut their arguments. Ms. Gryphon argued that not only were their conclusions based on flawed representative samples but contended that the policy is actually detrimental to minority students. According to Gryphon, affirmative action produces no concrete benefits to minority groups but instead produces several significant harms. First, a phenomenon called the "ratchet effect" occurs when the preferences at a handful of top schools, including state flagship institutions, worsen racial disparities in academic preparation at all other American colleges and universities. This occurs due to the fact that top schools are able to create a class that is both racially diverse and academically equivalent while less selective schools are forced to make greater concessions in order to create a racially diverse student body. Here, the schools are forced to accept less academically prepared minority candidates in order to achieve racial diversity due to the dwindling pool of applicants.
This gap in preparation combines with other negative factors to create disparate graduation rates between minority and non-minority groups. Ms. Gryphon cites recent sociological research concluding that admission preferences hurt campus race relationships. According to the studies, this in turn harms minority students' performance by activating fears of confirming negative group stereotypes, lowering grades and reducing college completion rates among minority students.
Finally, Gryphon argues that the benefit of affirmative action programs may not be as great as previously thought. She states that recent research shows that skills, not credentials, can narrow socioeconomic gaps between white and minority families. Therefore, policymakers should end the harmful practice of racial preferences in college admissions. Instead, they should work to close the critical skills gap by implementing school choice reforms and setting higher academic expectations for students of all backgrounds
Further complicating the issue is the recent accidental release of the academic information of students at Baylor Law School, including their GPA and LSAT scores. However, even with hard data, there is still disagreement over how significant of an advantage was given to those students. Some sources view the advantage as miniscule while others view it as significant. Despite disagreement over the impact of the program, the incident has brought the subject of affirmative action to the forefront of the minds of the legal community once again and will likely play some role in the upcoming case.
Ultimately, the issue of the continued implementation of affirmative action is going to come down to the decision of a Court bearing little resemblance to the one that upheld the program in Grutter. Two justices who signed on to the opinion, Justices Stevens and Souter, have been replaced with ideologically comparable successors in Justices Sotomayor and Kagan. However, Kagan has recused herself due to her role in the case as former US solicitor general. Likewise, Chief Justice Rehnquist has been replaced with conservative Chief Justice John Roberts. However, O'Conner, the opinion writer for Grutter, has since retired and has been replaced by the more conservative Justice Samuel Alito. Remaining on the Court are Justices Thomas, Scalia and Kennedy who dissented in Grutter and Justices Breyer and Ginsburg who wrote concurrences. The 5-4 Grutter majority seems to have dwindled to a 5-3 split in the other direction.
The fate of affirmative action, the policy that Justice O'Conner predicted would stand for 25 years from her opinion in Grutter, will likely face tough opposition in the upcoming term. With the changing membership of the Court, the recent case law and the recent research and events it is not inconceivable that the decades old practice could come to an end.
James Craig earned his B.A. in political science and history from the University of Pittsburgh in May 2011. He is currently an associate editor of JURIST's Social Media service.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: James Craig, The Unsure Fate of Affirmative Action, JURIST - Dateline, May 18, 2012, http://jurist.org/dateline/2012/05/james-craig-affirmative-action.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Croatian Accession to the EU: Political Battles and Legal Challenges
2:05 PM ET
JURIST Guest Columnist Dora Rotar, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the seventh entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. Rotar examines the political and legal challenges Croatia will face as it prepares to enter the EU...
After six years of negotiations, Croatia will become the twenty-eighth member state of the European Union (EU) on July 1, 2013. Croatia began this journey eight years ago and has overcome many barriers in order to become a member state. Over the past ten years, accession to the EU has been the primary foreign political goal of each Croatian government. It has also been one of the few points of agreement among the right and left-wing political movements in Croatia. However, notwithstanding the goals of each government and all the proclaimed political efforts, Croatia has had the longest negotiations out of all the countries in transition that have become member states of the EU. Hungary, Poland, Estonia, the Czech Republic, Slovenia, Cyprus, Bulgaria and Romania negotiated for less than five years, while Slovakia, Latvia, Lithuania and Malta negotiated for less than three years.
Given Croatia's recent history, the six-year negotiation period is not entirely surprising. In addition to overcoming the political turbulences typically found in countries in transition, Croatia has been burdened with the consequences of the Yugoslav Wars, which lasted throughout the first half of the 1990s. The main reasons for the long and painful Croatian negotiation process were issues regarding Croatia's cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), border issues with Slovenia and internal problems of corruption in business and politics. The 2008 financial crisis also influenced the accession process, as it increased European skepticism towards further enlargement of the EU.
In December 2004, the EU scheduled negotiations with Croatia to begin on March 17, 2005. However, the day before the negotiations were scheduled to start, the EU postponed them because Chief Prosecutor of the ICTY Carla del Ponte claimed that Croatia was not fully cooperating with the ICTY. Specifically, the prosecutor claimed that Croatia failed to cooperate with the capture of Croatian fugitive Ante Gotovina, who served in the Croatian Homeland War as a general and had been in hiding since 2001. Negotiations finally got underway on October 3, 2005, after the ICTY prosecution confirmed that Croatia was putting its best efforts forth to find Gotovina and to bring him to The Hague. In December 2005, he was arrested in Spain and brought before the ICTY. Gotovina was found guilty of war crimes in April 2011 and is awaiting the decision of the court on his appeal.
Problems continued in the Croatia-ICTY-EU triangle. Multiple times the lack of cooperation between Croatia and the ICTY caused a problem that, left unresolved, continued to block the Croatian accession to EU. The most notable of these problems involved a set of war documents that the ICTY requested during the last round of the accession negotiations. Some of the documents never existed, some were destroyed during the war and some were not in the possession of the Croatian government. However, the ICTY continued to block Croatian accession to the EU until Croatian diplomats provided evidence that the Croatian government had fully investigated all the circumstances surrounding the missing documents and reassured the ICTY and the EU member states that it did not possess any of the remaining documents.
Another significant blockade to the negotiation process was initiated by Slovenia, the only former Yugoslavian country that is currently a member state of the EU. Border discrepancies between Croatia and Slovenia had remained unresolved since the two nations declared their independence in 1991. The most significant dispute regarded the maritime border in the Piran Bay. Both of the countries claim that the border should be determined using Article 15 of the UN Convention on the Law of the Sea (UNCLOS). Croatia claims that the border should be the median line between the two shores in accordance with the first sentence of Article 15. However, Slovenia argues that the exception to the general rule found in the second sentence of Article 15 should apply, meaning that the border should be determined in accordance with historic and other special circumstances. The problem culminated with Slovenia's ten-month blockade of Croatian accession to the EU, beginning in December 2008. Ultimately, the Croatian and Slovenian prime ministers agreed that a panel of five arbitrators would resolve the dispute and each country would appoint one of the arbitrators, while the remaining arbitrators would be appointed by mutual consent.
Another issue constantly raised during the negotiation process was corruption, which is inherent in all transitional countries and is usually closely connected to the privatization process. The EU wanted assurances that Croatia was truly willing to remedy past corruption issues and carry on enforcement into the future. The declarative efforts of the Croatian government had little effect on the EU until corruption associated arrests in politics and business reached their highest levels during 2009 and 2010. These culminated in the arrest of the former Croatian Prime Minister Ivo Sanader in December 2010. Sanader was taken into custody shortly after he abruptly resigned during his second term. His indictment reassured the EU that Croatia was serious in its efforts to fight corruption, and led the EU to conclude the negotiation process in December 2011.
As part of the EU membership and negotiation process, every state must harmonize its national laws with the EU legal framework. Croatia's negotiation process was divided into two phases. The goal of the first phase, often referred to as "screening," was to assess the differences between the EU acquis communautaire, divided into 35 chapters, and Croatian law. During this step, Croatia and the EU must decide how to proceed in order to fully harmonize the existing laws. The second phase included three steps for each of the 35 chapters. The first step was the opening of a particular chapter. The second was the negotiations of the terms and conditions of harmonization of the national law with a specific chapter, including negotiations on the possible transitory periods for certain relevant issues. And the third dealt with the closing of a negotiated chapter. When all 35 chapters were closed on June 30, 2011, Croatia officially finished the accession negotiations. The Treaty of Accession was signed on the December 9, 2011.
From a lawyer's perspective, July 1, 2013, signifies the beginning of real change in this arena. On that date, a set of completely new laws are going to enter force throughout Croatia, even though Croatian legislative body did not enact these laws and Croatian judges have not yet applied them in court. Thus, since the beginning of the negotiation process, Croatia's efforts have focused on educating public officials, judges and lawyers on how to apply the new rules and how to adapt to the impending changes to the legal system.
Dora Rotar received her master's degrees in law from the University of Zagreb's Faculty of Law in Zagreb, Croatia, in 2007. She works at the Zagreb Faculty of Law, in the Department of Private International Law. Rotar was also the 2011 on-site Associate Director of the Institute for International Commercial Law & Dispute Resolution, which is held each summer in Zagreb and Zadar, Croatia.
Suggested citation: Dora Rotar, Croatian Accession to the EU: Political Battles and Legal Challenges, JURIST - Dateline, May 16, 2012, http://jurist.org/dateline/2012/05/dora-rotar-croatia-eu.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Moving Towards an Efficient and Unified Legal System in Kosovo
9:05 AM ET
JURIST Guest Columnist Kushtrim Tolaj, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the sixth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. Tolaj discusses Kosovo's efforts to establish a more efficient judicial system and the challenges it faces in the future...
On February 17, 2008, the Assembly of Kosovo unanimously passed its declaration of independence, announcing Kosovo as an independent, sovereign, democratic, secular and multi-ethnic republic. Since its declaration of independence, Kosovo, the world's newest, independent state, has taken great strides to create an efficient legal system by adopting a modern legal infrastructure. However, Kosovo must overcome obstacles in the northern part of the country in order to unify its legal system.
Kosovo's declaration of independence coincided with major changes in its international oversight arrangement. With an invitation extended by the government of the Republic of Kosovo, the EU established the Rule of Law Mission in Kosovo (EULEX), which deployed around 2,000 EU police, judges, prosecutors and customs officers to the republic. Since the end of the Kosovo War, until the declaration of independence in 2008, these powers had been exercised by the UN Interim Administration Mission in Kosovo (UNMIK). However, in contrast to UNMIK's absolute authority over Kosovar institutions, EULEX's key objective is only to assist, advise and support Kosovar authorities on rule of law matters, specifically those related to the police, judiciary and customs.
The work carried out by the UNMIK allowed the judiciary to resume functioning; however, it did not generate the expected results in establishing an efficient, well-functioning and independent legal system. With the declaration of independence, Kosovo's institutions have undertaken the bulk of the burden in creating a modern legal system in accordance with international standards and comparable to other legal systems in Western European countries. The new and modern Constitution [PDF], adopted in 2008, proclaims the Republic of Kosovo as a representative, democratic republic. Governance is based on the principles of separation of powers and checks and balances. Likewise, the Constitution provides that judicial power is unique, independent, fair, apolitical and impartial. The new Law on Courts [PDF], adopted in 2010, with most of its provisions taking effect in 2013, sets the framework for creating a modern, independent judiciary. This is significant because the judiciary, consistent with old Yugoslav socialist legislation, has not made any developments and has fallen out of step with the nation's reality. Moreover, the new law transforms the structure of the court system into basic courts, the Court of Appeals and the Supreme Court. The new infrastructure is based on the US model and provides for a more structured organization of the courts.
While this entire body of rules creates an adequate modern legal infrastructure, the judiciary still remains weak. During 2009 and 2010, Kosovo's professional judiciary underwent a nationwide Special Appointment Process. This process was meant to eliminate corrupt judges, to minimize political influences and to create a more effective legal system. While essential to the ultimate success of the courts, this process initially slowed the already backlogged courts and negatively impacted the delivery of justice. In addition to meeting the criteria such as a law-abiding background, judges also had to pass an ethics examination as part of their reappointment. Those who failed the ethics examination continued to hear cases until their successors were appointed. After a number of judges left the bench, the remaining judges' caseloads continued to increase, exacerbating the judiciary's unproductive process. Despite this, the positive effect of the new judicial system, although not yet evident, is likely to be seen in the near future. In addition, the adoption of plea bargaining and the institutionalization of alternative dispute resolution methods, such as mediation and arbitration, contribute to the reform efforts. Nevertheless, the effect of these rules in reducing the backlog of cases will be achieved only through their proper implementation and application.
The lack of an effective court system is most evident in the Mitrovica region, where the courts have not functioned since violent protests by the Serbian local minority and the occupation of the courthouse and the prosecutor's office that followed Kosovo's declaration of independence in February 2008. The Mitrovica courts serve more than 200,000 citizens of the Republic of Kosovo and their functioning is uniquely important to the delivery of justice. Currently, only EULEX holds trials there on an ad hoc basis, although the official courthouse remains closed. Upon demolishing the courthouse and destroying and burning court files, the local Serbian minority, with financial support from the government of Serbia, began to operate a parallel court from a house in Northern Mitrovica, outside the legal framework of the Republic of Kosovo. Being in flagrant violation of Kosovo's Constitution, the government refused to recognize the parallel institution and its decisions. Furthermore, its facilities are inadequate to meet the demand for judicial services and the body does not possess the necessary enforcement mechanisms. As a result, its decisions remain mere pieces of paper.
These political uncertainties in the north of the country created a number of other difficulties. As a consequence, the Albanian judges and other court staff continued their work in the facilities of the courthouse in the city of Vushtrri. However, this courthouse is small and cannot accommodate all the judges, forcing them to perform their duties on rotational working hours as an attempt to create minimum working conditions. The prosecutor's office experiences an identical situation; thus the prosecutors can barely investigate all the cases in the area. Similarly, EULEX prosecutors conduct their investigations on a limited basis. This situation reflects the severe state of the judiciary, especially as the chaos in the district fosters a number of human rights violations. The rights, such as access to justice and speedy trial, are consistently violated; moreover many cases are prescribed resulting in breaches of the right to trial of the residents. Furthermore, the EULEX judges and prosecutors who perform their duties on a limited basis only handle high profile emergency cases. Consequently, this state of disorder and confusion deteriorates our legal system's efficiency.
Additionally, the border between Kosovo and Serbia, in the Northern Mitrovica, remains a black hole. Notwithstanding enjoyment of the vast number of rights that may not be found in other jurisdictions in Europe, such as participation in governmental and judicial institutions, and the provision of reserved seats in the Parliament, the Serbian minority has continuously rejected the legal framework of the Republic of Kosovo. Although Kosovo security forces and customs agents operate jointly with EULEX police at border checkpoints, the Kosovo Government and international institutions have reported that the border with Serbia is a systematic source of smuggling, tax evasion and organized crime from which Kosovo's economy suffers severely. In addition, the lack of proper functioning of the judiciary in the area enables this underworld business to grow. During the past several years, violent Serbian minority groups have set checkpoints on fire at the border, including in a recent attack in July 2011. Outrageously, it is believed that the international community has tolerated this anarchic situation for many years in order to avoid renewed tensions in the Balkans. In July 2011, the government of Kosovo attempted to establish rule of law in the area by seizing full control of the border and placing customs agents and police forces at the checkpoints. As a result of their deployment, the situation has improved, but still remains tense with Serbian groups impeding freedom of movement by using rocks and wood to barricade roads throughout the northern part of the city.
Finally, the limited functionality of courts and prosecutors' offices in the north represents a lasting problem with appalling consequences for the future of the judicial system. The government of Kosovo supported by EULEX must urgently address this issue and extend its functionality to this part of the country, in an effort to ensure rule of law for all residents of the Republic of Kosovo. Tolerating this disorderly situation will result in continuous human rights violations and unpredictable and irreparable consequences for the entire functioning of the country.
Kushtrim Tolaj received his bachelor's of law degree from the University of Prishtina in Kosovo, in 2009. Tolaj has worked as a project coordinator for Iniciativa Vizionare Rinore, a Kosovar NGO, as a coordinator of legal education reform and as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina. Tolaj has also worked as a Customs Agent for the Republic of Kosovo.
Suggested citation: Kushtrim Tolaj, Moving Towards an Efficient and Unified Legal System in Kosovo, JURIST - Dateline, May 8, 2012, http://jurist.org/dateline/2012/03/kushtrim-tolaj-kosovo-judiciary.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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The Need for Greater Protection of Property Rights in Azerbaijan
9:05 AM ET
JURIST Guest Columnist Leyla Safarova, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the fifth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. Safarova explores property law in Azerbaijan, arguing that ineffective laws, distrust in the courts and a lack of enforcement protocol are to blame for the current state of property rights in the country...
In May 2012, Baku, the capital of Azerbaijan, will host the Eurovision Song Contest, an annual competition held among active member countries of the European Broadcasting Union. The Azerbaijani government has allocated around USD 105 million for the construction of the concert hall where the contest will take place. The concert hall will be built where apartment buildings are currently located. According to a Human Rights Watch report, the inhabitants of the last apartment building on the construction site were forced to evacuate their dwellings and residents were offered compensation for their dwellings well below the property's market value.
Mass media condemned these forced evictions and declared them unlawful, stating that such expulsions are direct violations of the fundamental human rights proclaimed in the Constitution of the Republic of Azerbaijan. The Public Association for Assistance to Free Economy has described the evictions as human rights violations and as having no legal authority. However, since 2008, such forceful evictions have occurred on a massive scale. These unlawful and unjust evictions continue because of the lack of a proper enforcement policy.
The Constitution of the Republic of Azerbaijan, the Civil Code of the Republic of Azerbaijan and the Law on Expropriation of Lands for State Needs [PDF] regulate property laws. The Republic of Azerbaijan also signed the European Convention on Human Rights on January 1, 2001, which went into effect in Azerbaijan on April 15, 2002. The first section of the convention provides that, "[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
The Constitution and other laws provide the conditions for expropriation. Under the Constitution, the expropriation of property is only allowed for state needs, and fair market value well in advance. Other than that, property is intact and is protected by the state. State needs are clearly defined in the Civil Code of the Republic of Azerbaijan and are limited to the construction of roads and other communication lines and demarcation or the construction of strategic defense complexes. Prior to the 2009 amendments to the Constitution, property could be taken for state needs and for public use. The limitation of the 2009 amendments can be considered a positive step forward, yet the situation declined with the enactment of the Law on Expropriation of Lands for State Needs on April 20, 2010. One of the negative aspects of the expropriation law is that it expanded the definition of state needs. Under the expropriation law, state needs now include building strategic roads and the installation of other communication lines, such as oil and gas pipelines, sewerage system, high tension electric power lines and hydro-technical constructions, the assurance of consistent protection of the state's border, the construction of strategic defense and security complexes and the construction of strategic mine industry complexes.
Although the expropriation law clearly draws limits for expropriation cases in practice, governmental officials and wealthy private businesses rarely obey these restrictions. Even though the government does sometimes tear down buildings due to state needs, more often buildings are frequently torn down for mere business purposes or reasons that have little to do with actual state needs. An example of this practice was the order that the Baku Executive Power issued in 2008. On September 24, 2008, the head of Baku Executive Power signed an order for the demolition of the residential and non-residential buildings located behind the Heydar Aliyev Palace in downtown Baku. The order also called for the eviction of the residents of those buildings in conjunction with the development of a park plan. The residents were notified to vacate their homes for which they would have been compensated AZN 1,500 (USD 1,875) per 11 square feet, although the properties were valued around AZN 3,000-5,000 (USD 3750-6250) per 11 square feet. The market value of those properties at the time was two to three times the offered price. Human rights defenders reported that the water, electricity and gas utilities were shut off in the buildings to force occupants to vacate. At the year's end, residents remained dissatisfied and tensions with local authorities continued. Most houses had, at that point, been demolished and fenced off from the residents. By giving this order, the head of Baku Executive Power clearly abused his power under the Constitution, as absent a court order, nobody can be forced to leave their property. In addition, the residents who were forced to leave were not fairly compensated. Generally, the unfairness and inadequacy of money offered invokes endless disputes between owners and expropriators and these disputes ultimately end up in the courts.
Despite the imperfection of the legislation on property rights and the array of gaps in the laws, they can protect basic property rights. In light of Azerbaijan's apparent plans to respect the provisions of the European Convention on Human Rights, gaps and shortcomings that exist in laws do not serve as an excuse for leaving property rights unprotected. The issue rests in the poor enforcement of current laws and provisions.
People who are forced to leave their homes, in some cases, simply may not want to leave and, in other cases, people willing to leave oftentimes are not satisfied with the amount of compensation offered for their dwellings. In both cases, however, the end result is that they are compelled to vacate their homes dissatisfied with the situation. The main reason for people's dissatisfaction is the discrepancy between the offered compensation and the property's real market value. As a result, many pursue legal action in the court system in pursuance of justice. However, the impartiality and corruptness of the court system has not brought favorable results. According to the US Department of State's Bureau of Economic, Energy and Business Affairs' report, an effective mechanism to protect property rights in Azerbaijan is by no means assured.
The Monitoring Committee of the Council of Europe noted in its report that "[j]udicial corruption and the lack of independence of the judiciary remain serious problems in Azerbaijan, as the authorities themselves acknowledge. The shortcomings of the Azerbaijani judicial system result in the creation of new cases of unfair and politically motivated trials." People who pursue actions look forward to exhausting local remedies, so that they can have recourse to the European Court of Human Rights (ECHR). According to the Azeri-Press Agency (APA), Azerbaijani citizens applied to the ECHR mostly for the protection of property rights. Correspondingly, the number of property cases brought before the ECHR are increasing year by year. Pursuant to the APA report on January 27, 2012, the ECHR in 2011, delivered nine judgments with respect to Azerbaijan; four out of nine judgments were related to property rights. Also, according to the APA report, 14 out of the 42 total ECHR judgments dealt with the violation of property rights. In practice, the courts are weak and the judges are often inexperienced. The flaws in the court system lead to distrust in the system and, as a result, the vast majority of the people who are forced to abandon their dwellings are unwilling to pursue actions in the courts.
Leyla Safarova received her bachelor's degree in International Law from Baku State University in 2008. She received an LL.M. in Commercial Law from the same institution in 2010, and was a member of the 2010 Vis International Commercial Moot team. Safarova also holds a certificate in International Relations from Eastern Michigan University. Safarova has worked for Baker & McKenzie's law offices in Azerbaijan, is the recipient of a Fulbright Fellowship administered by the Institute of International Education.
Suggested citation: Leyla Safarova, The Need for Greater Protection of Property Rights in Azerbaijan, JURIST - Dateline, May. 1, 2012, http://jurist.org/dateline/2012/03/leyla-safarova-azerbaijan-property.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Towards Exempting the Severely Mentally Ill from the Death Penalty
3:04 PM ET
JURIST Guest Columnist Olga Vlasova, Brooklyn Law School Class of 2013, is the Sparer Public Interest Law Fellow. She argues for prohibiting the death penalty for severely mentally ill offenders...
According to Mental Health America, about 10 percent of all death row inmates suffer from a serious mental illness. Although a severely mentally ill inmate on death row may have his execution delayed due to incompetency, once the individual has regained competence, he can be executed. The Supreme Court has never ruled that the US Constitution prohibits sentencing severely mentally ill offenders to death. However, both the Eighth Amendment and the Fourteenth Amendment provide grounds to challenge the use of capital punishment on severely mentally ill offenders.
Imposing the death penalty on severely mentally ill offenders raises a possible challenge to the Eighth Amendment's ban against cruel and unusual punishment. In Gregg v. Georgia, the Supreme Court defined cruel and unusual punishment as a punishment that is excessive and that does not comport with the dignity of man. To be excessive, the punishment must involve "the unnecessary and wanton infliction of pain," and it must be "grossly out of proportion to the severity of the crime." Imposing the death penalty on the severely mentally ill is unnecessary and amounts to wanton infliction of pain, as it does not serve the principal social purposes of capital punishment: deterrence and retribution. Making an example of a severely mentally ill individual is unlikely to serve as a deterrent to others. And capital punishment is even less likely to deter future severely mentally ill offenders. Despite a long history of stigmatizing mental illness, our society is beginning to realize that serious mental illness can drastically impact an individual's actions and impair one's ability to appreciate those actions. Therefore, finding alternatives to the traditional penal system might be more plausible now than before.
Furthermore, imposing the death penalty on severely mentally ill offenders could be considered excessive. In Roper v. Simmons, the Supreme Court stated that the death penalty should be reserved for the worst offenders, those who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." Those suffering from severe mental illness at the time of their offense cannot be considered to fall into the group characterized by "extreme culpability."
Additionally, the Supreme Court has repeatedly stated that the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. This principle was the grounds for the Supreme Court's decision in Atkins v. Virginia, which overruled Penry v. Lynaugh. In Atkins, the Supreme Court concluded that society's contemporary standards reflect the view that imposing the death penalty on the intellectually disabled constitutes excessive punishment and thus, violates the Eighth Amendment.
The unconstitutionality of imposing the death sentence on intellectually disabled offenders may eventually become the grounds for finding that seriously mentally ill offenders should also be exempted from the death penalty. However, at this time, there is no clear trend toward changing the law. Of the 34 states that use the death penalty, only Connecticut exempts a defendant from being sentenced to death if "the defendant's mental capacity was significantly impaired or the defendant's ability to conform the defendant's conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution." Other states, such as Kentucky, North Carolina and Indiana have proposed similar legislation, but it has failed to pass.
Nevertheless, there are some indicators that our society is moving toward rejecting the imposition of the death penalty on the severely mentally ill. Recently, a number of Kentucky prosecutors called for legislation exempting the severely mentally ill from the death penalty. A bill is pending before the Kentucky General Assembly, HB 145, which could accomplish this. Also, the American Bar Association has made a recommendation [PDF] against executing or sentencing to death defendants if, "at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity to appreciate the nature, consequences or wrongfulness of their conduct, to exercise rational judgment in relation to conduct, or to conform their conduct to the requirements of the law." The American Psychiatric Association, the American Psychological Association and the National Alliance for the Mentally Ill have endorsed very similar resolutions calling for an exemption of those suffering from severe mental illness from the death penalty. Finally, according to a Gallup poll, 75 percent of Americans surveyed in May of 2002, opposed the death penalty for the mentally ill.
The Fourteenth Amendment arguments for exempting severely mentally ill offenders from the death penalty are derived from the Equal Protection and Due Process Clauses. Currently, our laws already exempt intellectually disabled offenders and juvenile offenders from the death penalty. In establishing these exemptions, the Supreme Court primarily relied on two premises. The first being that people whose judgment is substantially impaired or people who are immature have diminished personal responsibility for their actions, and the second being that the adverse impact of immaturity or mental impairment on an offender's ability to make rational judgments or to control his or her behavior make an offender less culpable, and thus, not deserving of the death sentence. It can be argued that severely mentally ill offenders represent a group that is not significantly different from offenders suffering from intellectual disability or juvenile offenders. Offenders who suffered from severe mental illness at the time they committed their crimes had the same characteristics as the intellectually disabled group, which is mental deficiency that results in functional impairment. Accordingly, the legal analysis of culpability should focus on the severity of the impairment caused by mental deficiency and not on the actual medical diagnosis of an offender. The concern should not be whether the diagnosis is intellectual disability or paranoid schizophrenia. If both diagnoses would result in a similar degree of impairment, the legal analysis should be the same. Therefore, treating severely mentally ill offenders differently from intellectually disabled and juvenile offenders should be found to violate the Equal Protection Clause of the Fourteenth Amendment.
The due process argument relies on the unfairness that results from the way a fact-finder can treat mental illness during sentencing. Mental illness and insanity traditionally have been viewed as mitigating circumstances that reduce an offender's culpability for the crime, and modern state statutes reflect this view. Nevertheless, studies have shown that in reality judges and juries often treat mental illness as an aggravating rather than mitigating factor. In fact, one study from Professor Christopher Slobogin's article, Mental Illness and the Death Penalty, demonstrates that a failed insanity defense is one of the most accurate predictors of who will receive the death penalty. The states' failure to assure that mental illness is treated as a mitigating factor results in prejudice that violates a defendant's constitutional right to a fair trial. Slobogin argues that this failure constitutes a violation of the Due Process Clause of the Fourteenth Amendment. Also, the states' failure makes the imposition of the death penalty arbitrary and unconstitutional as applied, in clear violation of Furman v. Georgia, a seminal case in which the Supreme Court's plurality agreed that the Fourteenth and the Eighth Amendments cannot tolerate arbitrariness in the imposition of the death penalty.
According to the Supreme Court, the Constitution does not prohibit sentencing the severely mentally ill to death, and Fourteenth Amendment arguments relying on equal protection and due process have not yet convinced the Court to create an exemption for this group. However, in Atkins and Roper, the Supreme Court has recognized that the interpretation of the Eighth Amendment's ban on cruel and unusual punishment must comport with our society's evolving standards of decency. The emerging trends in state legislatures, as well as recommendations of the American Bar Association and other prominent organizations, could open the door for an eventual Supreme Court ruling that finds the Eighth and Fourteenth Amendments to prohibit imposing the death penalty on those suffering from severe mental illness.
Olga Vlasova holds a B.A. in Psychology from Hunter College and a M.A. in Forensic Psychology from John Jay College of Criminal Justice. Before starting law school, Olga worked in the field of crisis intervention, as a social worker and a family violence prevention program coordinator.
Suggested citation: Olga Vlasova, Towards Exempting the Severely Mentally Ill from the Death Penalty, JURIST - Dateline, Apr. 30, 2012, http://jurist.org/dateline/2012/04/olga-vlasova-death-penalty.php.
This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Is EU Membership the Best Option for Croatia?
9:04 AM ET
JURIST Guest Columnist Ann Eisenberg, Cornell University Law School Class of 2012, is an Articles and Symposium Editor for the Cornell International Law Journal. She questions whether EU membership is the best decision for Croatia given the current debt crisis...
By the time Croatia joins the EU on July 1, 2013, it will have engaged in a nationwide overhaul for over a decade. A mountain of new legislation, stalled negotiations, war crimes scandals and a dispute with neighboring Slovenia have all prolonged the path to membership. But, has the struggle been worth the effort? Croatia is finally getting on board just as other member countries may be considering jumping ship amidst bankruptcies, the questionable future of the euro and ongoing debt crises. Croatians indeed wonder if they have joined just in time to pay the bill for Greece.
Like other candidate countries, Croatia's government needed to meet the Copenhagen Criteria in order to join, a benchmark that is a central concern for the European Commission, which is in charge of representing the EU's interests. The Criteria require that candidate countries establish democracy, rule of law, a market-based economy and a commitment to European political and economic union. Croatia was also required to accept the EU legal framework and incorporate EU law into its national legislation. Croatia met the Criteria as of June 2004, when the European Council made the country an official candidate.
Among Croatia's more difficult reforms was the total revamping of the judiciary, which included addressing an extensive backlog of cases and the tendency to have excessively lengthy proceedings often resulting in cases being brought to the European Court of Human Rights. As a formerly totalitarian society, reformers in Croatia were faced with promoting a novel and foreign culture of rule of law. Biased lower court adjudicative proceedings for war crimes were also problematic as the national origin of defendants and victims frequently influenced case outcomes.
Many of the problems facing Croatia, and the judiciary in particular, stemmed from the 1990s war of independence from the Yugoslav Federation. The EU would not even begin negotiations until the Croatian government helped arrest Ante Gotovina, a former Lieutenant General who had led the bloody Operation Storm against Serb civilians and prisoners of war. Zagreb's perceived half-heartedness in hunting down Gotovina, in addition to other war crimes suspects, delayed Croatia's EU bid. Interethnic animosities related to the bloody struggle persisted into the early 21st century, infecting judicial proceedings.
Croatian sentiments have been deeply divided on the question of EU membership, with support waning in 2012, from its high point several years prior. Prime Minister Zoran Milanovic stressed the benefits that would come with joining, such as access to 500 million additional consumers and an additional two billion dollars per year in development aid. All of Croatia's major political parties were also in favor of joining, as well as most of the minority Serb population. However, many citizens were concerned about the dominance of France and Germany, the unlikelihood of the powerful EU heeding any of Croatia's concerns in light of its relatively small size and the expensive changes that would need to be made on the ground.
Europe's recent economic struggles have not gone unnoticed by Croatians. As of the winter of 2012, the most glaring disincentive for Croatia's joining would have been the European debt crisis. Croatians realized that they may have joined just in time to pay the bill for Greece and other debt laden countries, and right when the EU had lost its luster with its debt burdened economies and bickering leaders. Croatia's increased momentum toward membership has seemed to walk in step with the EU's battle to float weak economies since 2009.
According to The New York Times, the EU's crisis "has produced the deepest tensions within the union in memory." The survival of the 17-year-old euro as a multinational currency is uncertain and the entirety of Europe continues to be stifled by an atmosphere of economic stagnation. The crisis quickly bled into politics, causing governmental transitions in Ireland, Portugal, Greece, Italy, Spain, Finland and Romania. Despite two bailouts, Greece continued to teeter on the brink of instability in early 2012, although commentators believe that a March 2012 bond swap may have proven a successful remedy.
On January 22, 2012, a poor turnout of Croatian citizens voted to join the EU. With 66 percent in favor and 33 percent against, the country of four and a half million will become the 28th member next year. In June 2011, the EU had given its final approval to Croatian membership after six years of renewed negotiations. With the vote, Croatia joined the 21st century flood of Balkan nations gaining membership pursuant to the June 2000 Feira European Council determination. In 2004, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia joined the EU. Romania and Bulgaria also joined in 2007.
Is there a poetic contradiction in the fact that Croatia gained independence a mere 20 years ago only to relinquish aspects of its autonomy to another struggling overseer? Some Croatians certainly think so. Nationalist groups, army veterans and right-wing activists in particular are wary of the loss of Croatia's sovereignty and feel that it demeans the 15,000 lives that were lost in a war for Croatia's national identity.
Other Croatians see it differently. "I would rather be with Germany and France than with Serbia and Bosnia," said one lawyer based in Zagreb. Indeed, as troubled as European economies may be, it is possible that Croatia is not better off without them, with its 13 percent unemployment rate and 61 billion dollar debt.
Now that this somewhat tepid marriage is official, Croatians are going to feel the changes while remaining uncertain of the benefits. Privatization of shipyards, upgrading of farms and the continued overhaul of the legal system are just several among many expensive measures that Croatia will have to make in order to comply with EU standards. These changes will be felt personally by farmers and shipyard workers, many of whom risk losing their jobs. Meanwhile, Croatia will maintain the status of "Active Observer" until it gains full membership, allowing it to watch the unfolding European story for another few months without feeling the direct sting of the crisis.
Ann Eisenberg received her Bachelor of Arts degree in Linguistics and French Cultural Studies from Cornell University. At Cornell Law School, Eisenberg was a student advocate in the Advanced International Human Rights Clinic, and was also a research assistant for the Somalia Constitution Making Project.
Suggested citation: Ann Eisenberg, Is EU Membership the Best Option for Croatia?, JURIST - Dateline, Apr. 29, 2012, http://jurist.org/dateline/2012/04/ann-eisenberg-croatia-eu.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Amending the Stolen Valor Act to Protect Free Speech
4:04 PM ET
JURIST Guest Columnist Jeff Barnum, University of Washington School of Law Class of 2012, is a Lieutenant in the US Coast Guard. In this article he argues for amending the Stolen Valor Act to better comply with free speech...
It is a busy time at the Roberts Court. In addition to wrestling with the health care hullabaloo, and examining the federal government's pre-emption of immigration laws, the Court is also mulling over a significant First Amendment issue, which could either further vindicate or vitiate the Court's reputation as a defender of free speech rights. The issue involves the Stolen Valor Act (SVA), which prohibits falsely representing either verbally or in writing the receipt of a military award. The SVA prohibits reprehensible speech, but also implicates the First Amendment's restriction on passing any law abridging free speech. Amid many divergent viewpoints, the main divide is whether the First Amendment protects false speech.The US Court of Appeals for the Ninth and Tenth Circuits voiced both sides of this debate in their respective decisions to strike down, United States v. Alvarez, and uphold, United States v. Strandlof, the SVA.
In Alvarez, the Ninth Circuit held that the First Amendment generally protects false speech, with exceptions for a few narrow categories of speech. Among these categories are "certain subsets of false factual statements, carefully defined to target behavior," such as defamation or fraud. This approach relies upon the Supreme Court's decision in United States v. Stevens, where the Court not only described a discrete list of categories of unprotected speech, but also hinted that the list was nearly finite.
Conversely, the Tenth Circuit stated in Strandlof that, "knowingly false factual statements are not intrinsically protected under the First Amendment," while acknowledging that some protection exists to ensure "breathing space" for protected speech. Those espousing the "breathing space" analysis rely on considerable dicta from the Supreme Court, placing false statements of fact outside the ambit of First Amendment protection. During oral arguments in Alvarez, Justice Scalia seemed to agree with this position, stating that he believed there was no "First Amendment value in falsehood."
Both positions present problems. Relying on Stevens for a finite list of proscribable speech leaves other forms of false speech potentially subject to strict scrutiny. As noted by their amicus brief [PDF] in Alvarez, 20 states identified various state laws, such as outlawing bomb-threat hoaxes and impersonating a police officer, that are unrelated to either defamation or fraud, but whose proscription is important to a well-ordered society. Stevens' categories of unprotected speech also do not include false statements to law enforcement officers, perjury, or false distress calls to the Coast Guard, but these categories of speech also seem to be legitimate targets of government regulation.
Conversely, if the government may regulate speech based solely on its falsity, vast swaths of speech would suddenly be amenable to government scrutiny. Chief Judge Kozinski of the Ninth Circuit aptly characterized this "ever-truthful utopia" as "terrifying," and went on to raise the specter of government prosecutions for "career advancement ('I'm sooo lucky to have a smart boss like you') ... to set up a surprise party ('I need help moving the piano') ... or to maintain innocence ('There are eight tiny reindeer on the rooftop')." Kozinski recognized that "[s]aints may always tell the truth, but for mortals living means lying."
However, most false speech is proscribed because of its injurious effects. The differences appear in the quantum of proof required before the speech is prohibited. When one individual deceives another individual in a private transaction, the courts require proof of actual harm before civil or criminal liability attaches. For example, in Illinois ex rel. Madigan v. Telemarketing Associates, Inc., the Court required not only fraudulent intent on the part of the speaker, but also detrimental reliance on the part of the listener. Additionally, in any tort action involving speech, such as defamation or infliction of emotional distress, the plaintiff must establish actual injury to justify a damage award. The listener's reliance or the tort victim's injury serves an evidentiary function, separating the potentially harmful speech from actually harmful speech.
When the speaker deceives the government, by contrast, there is a presumption of harm because the speaker is damaging the integrity of the governmental process. While federal law criminalizes false statements to federal officials, it does not require the federal official to act on or even credit the false statement. The false statement need only be "material," which means the statement "must have 'a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.'" Similarly, a grand jury need not actually believe a false statement for a lying witness to be liable for perjury.
While the SVA regulates speech between private individuals, it does not require the listener to suffer any injury. Thus, if it is to be justified at all, it must be justified by a law requiring some detriment to the functioning of government processes.
At oral argument in the Supreme Court, Solicitor General Verrilli stated that allowing fakers to claim unearned military honors debases the meaning of the award. As a military officer, I completely agree with this statement. When somebody claims an unearned award, it deeply discounts the incredible dedication required to receive that award legitimately. Our nation's finest, members of our armed forces, should not have their achievements cheapened by charlatans while their government, as a representative of a supposedly grateful nation, stands idle, powerless to address the misappropriation of powerful symbols of courage and character. If courage is the coin, then falsehood cannot be the currency.
In spite of this apparent harm, however, the magnitude of the problem, at least by the evidence in the legislative history, does not warrant the drastic step of restricting speech wholesale. Moreover, the logical implication of upholding the SVA is that the government may restrict false speech so long as the government interest is sufficiently strong and well-articulated. Yet the Court has characterized such thinking as "startling and dangerous." In Stevens, the Court stated that the "First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." Although the litany of horribles postulated by Chief Judge Kozinski might not come to pass, the concept that the government may criminalize speech simply because it is false is antithetical to First Amendment freedom.
Besides, the SVA is hardly the only means by which the government can protect the integrity of military honors. For example, Congress could focus on the harm to deceived individuals, and amend the SVA to require a listener's detrimental reliance on the false claim, and thus, transform the SVA into a kind of constitutionally acceptable anti-fraud statute. Alternately or perhaps concurrently, Congress could address the harm to the governmental processes, hold comprehensive hearings, and solicit the views of military commanders and others to establish the existence vel non of an epidemic of faux military honorees.
Although the ends of the SVA are laudable, the means need to be refined to comport with the First Amendment. It is no small irony that the very principles of the First Amendment, principles defended at great personal risk by our military personnel, could serve to restrict the government's ability to honor those same military personnel. Yet, there is another side: it is a more fitting tribute to the sacrifice of our men and women in uniform to ensure that our liberties are respected and preserved by careful and close scrutiny of any government action restricting a citizen's right to speech.
Jeff Barnum is a third year law student at the University of Washington School of Law, and a Lieutenant in the United States Coast Guard.
The opinions expressed herein are solely those of the author.
Suggested citation: Jeff Barnum, Amending the Stolen Valor Act to Protect Free Speech, JURIST - Dateline, April 28, 2012, http://jurist.org/dateline/2012/04/jeff-barnum-stolen-valor.php.
This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Accepting Responsibility for the Displacement of the Chagos Islanders
9:04 AM ET
JURIST Guest Columnist Elena Landriscina, American University Washington College of Law Class of 2012, is a student attorney at the school's UNROW Human Rights Impact Litigation Clinic. Here she discusses the expulsion of the Chagos Islanders from Diego Garcia, and the need for the US to take responsibility for its role and to honor the human rights of the Chagossians...
The US has been a shadowy puppet master behind the UK's crimes against the indigenous people of the Chagos Archipelago. In the 1960s and 1970s, the UK forcibly removed the Chagossians from their islands to enable the US to build a military base on Diego Garcia, one of the islands in the Archipelago. Diego Garcia is also where rendition planes allegedly stopped before spiriting people, such as Libyan dissident Abdel Hakim Belhaj, away to torture.
The expulsion of the Chagossians for the construction of the Diego Garcia military base is a "many-sided secret," to quote a 2002 cable signed by former US ambassador to the UK, William Stamps Farish. This secret received renewed attention when The Guardian recently reported how the UK lied about the Chagossians to avoid international outcry about their expulsion. Newly released archival documents from the UK Foreign & Commonwealth Office (FCO) show that in 1970, the UK conspired to call the Chagossians "contract labourers" to ensure that no alarm bells would sound over the forced expulsion of the indigenous population.
The US Department of State offered a similar lie to Congress in 1975. After belatedly learning about the expulsion through a Washington Post article, US Senators demanded an explanation about the removal of the Chagossians. In response, the US Department of State speciously claimed in the 1975 Report on the Resettlement of Inhabitants of the Chagos Archipelago that the Chagossians were "basically transitory," that the islands were "sparsely populated, essentially by contract workers," and that "[n]o coercion was used" to remove the Chagossians. Unsurprisingly, US Department of State officials did not describe the tactics that were used to remove the population: an embargo that aimed at starving the population, death threats and even the rounding up and extermination of the Chagossians' pets. Questioned about the source of information about the alleged "transitory" population at a November 4, 1975, House Special Subcommittee hearing, George T. Churchill, a US Department of State representative, explained: "[t]he basic sources, sir, are British. All population data that I discovered regarding these people were from British sources."
The US would shift the blame for the expulsion to the UK, but the careful use and repetition of words in the 1975 report, such as "basically" and "essentially," to describe the population shows that the US Department of State knew that the Chagossians were not mere contract workers.
The Chagossians, who now live in abject poverty on the island nations of Mauritius and the Seychelles, have struggled to return to their islands. They are currently fighting two governments that had no qualms about trampling their human rights in pursuit of military interests. As anthropologist David Vine explains in Island of Shame, the Chagossians are the victims of the US's "Strategic Island Concept," which was developed in the 1950s to stave off the possible decline of US military influence in a region where Western colonial power was receding. Vine explains that after the US selected Diego Garcia as a location for a military base and the UK accepted the deal, the US made secret payments totaling $14 million to help the UK manage the costs of removing the Chagossians.
Furthermore, the US plays a significant role in the Chagossians' continued displacement. According to the terms of a 1966 agreement, the UK consults with the US on issues related to the Archipelago. In 2010, the UNROW Human Rights Impact Litigation Clinic, which sued the US on behalf of the Chagossians in 2001, filed Freedom of Information Act (FOIA) requests with several government agencies. Declassified US Department of State documents released in response to these requests help to shed some light on just what the US-UK consultation under the 1966 agreement has looked like.
A cable dated July 10, 1999, and signed by Strobe Talbott, then Deputy Secretary of State, shows that US Department of State officials in Washington worked to feed arguments to their counterparts in the UK to help them defend against a lawsuit brought by the Chagossians: "8. (U) Action request. Interested commands are invited to submit additional unclassified arguments for preventing the return of the Illois to the Chagos Islands. The timeline for this information is very brief, as the UK has secured an extension of the court case pending our input." Although the Chagossians ultimately won the case on November 3, 2000, their victory was overturned by a controversial 2004 "Order in Council," which prohibited the Chagossians from returning. In 2008, the case, R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2), was heard in the House of Lords, which upheld the prerogative powers of the Crown. These documents show that while the UK claims sovereignty over the islands, the US pulls the strings, helping to shape the UK's arguments and its policy concerning the Chagossians' fate.
The US government has evaded accountability for the forced removal of the Chagossians, even while simultaneously claiming a commitment to human rights. In response to the class action lawsuit, Bancoult v. McNamara, filed by UNROW in the US District Court for the District of Columbia, the US government invoked the political question doctrine to bar the court from examining the Chagossians' claims of forced relocation, torture, racial discrimination, cruel, inhuman and degrading treatment, and common law torts. The court dismissed the lawsuit on political question grounds, and the US Court of Appeals for the District of Columbia affirmed the dismissal.
Redress for the Chagossians from the political branches is long overdue. At the Special Subcommittee hearing, the US Department of State claimed that the US bore "no legal responsibility" towards the Chagossians. Many in Congress did not believe this at that time. On October 20, 1975, Senator Culver remarked, "[n]o amount of rationalization by our State Department can alter U.S. responsibility for uprooting the native residents of Diego Garcia in order to make way for a military base."
The recent FOIA documents and the UK FCO archives show that the US's continued disavowal of its responsibility for human rights violations is untenable. More than 28,000 people have signed a White House petition to send a simple message to President Obama: accept responsibility and honor the human rights of the Chagossians.
Elena Landriscina will graduate in May 2012, with a law degree from American University Washington College of Law, where she has focused on human rights and international law.
Suggested citation: Elena Landriscina, Accepting Responsibility for the Displacement of the Chagos Islanders, JURIST - Dateline, Apr. 26, 2012, http://jurist.org/dateline/2012/04/elena-landriscina-chagos-islanders.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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Wednesday, April 25, 2012
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Federal Law Preempts Only Two Provisions of Arizona Immigration Law
7:04 AM ET
JURIST Guest Columnist Steven Fazzi, University of the Pacific McGeorge School of Law, is a Legislative and Comment Editor for the McGeorge Law Review. Here he argues that the Supreme Court should find federal law preempts only two provisions of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act...
Immigration law and its enforcement are hot topics in American discourse and little wonder: according to a Pew report, there were 11.2 million undocumented noncitizens living in the US as of March 2010. Further, according to a Department of Homeland Security report [PDF], another 12.6 million legal permanent residents lived in the US as of January 2010. Laws affecting immigrants, albeit not properly considered immigration laws, as they do not consider who is permitted to remain within our borders, are equally newsworthy. For example, laws limiting immigrants' access to US jobs are popular political fodder even though immigrants' prevalence in the US workforce is frequently overstated. Likewise, laws affecting immigrants' access to healthcare and to financial aid for postsecondary education are popular topics.
In the American discourse on immigration law and on other laws affecting immigrants, one state has distinguished itself as more visible than the rest: Arizona. Last term, in Chamber of Commerce v. Whiting, the Supreme Court considered the constitutionality of (1) the provision of the Legal Arizona Workers Act punishing state employers who knowingly or intentionally employ undocumented immigrants against an express preemption challenge and (2) Arizona's mandate that employers use the federal E-Verify system to confirm employment eligibility against an implied preemption challenge. By a 5-3 vote, the Supreme Court upheld the former against an express preemption challenge and the latter against an implied preemption challenge. Before the current term concludes, the Court will decide whether to uphold the preliminary injunction issued against Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, a bill enacted as SB 1070 in April 2010.
The US challenged six of the SB 1070's provisions in the US District Court of Arizona, in United States v. Arizona. That court concluded that Congress' Immigration and Nationality Act (INA) likely preempts SB 1070 §§ 2(B), 3, 5(C) and 6. The US Court of Appeals for the Ninth Circuit affirmed 2-1, and the Supreme Court granted certiorari. The Court should conclude, as Ninth Circuit Judge Carlos T. Bea did in his partial concurrence and partial dissent, that federal law preempts only §§ 3 and 5(C).
SB 1070 § 3 makes "a person ... guilty of willful failure to complete or carry an alien registration document if the person" violates certain federal immigration registration rules, namely, failing to carry registration documentation at all times or willfully failing to register. Persons in violation of SB 1070 § 3 may be fined up to $100, jailed for up to 20 days for a first offense and jailed for up to 30 days for each subsequent offense. The text of the INA does not contemplate that state officers would enforce the registration rules punished by SB 1070 § 3. Congress could have authorized the states to enforce these rules, but it has not expressly done so. Therefore, the Supreme Court should find that the INA preempts SB 1070 § 3.
SB 1070 § 5(C) makes it a misdemeanor for "a person who is unlawfully present in the US and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." It is clear that states can regulate undocumented immigrants' employment. Whether a state may criminalize undocumented immigrants who have already obtained work is an altogether different matter. Congress has enacted 8 USC § 1324a, which penalizes employers who knowingly or negligently hire undocumented immigrants, and 8 USC § 1324a(b), which requires employers to verify work authorization. Congress has also enacted 8 USC § 1324a(g)(1)-(2), which safeguards undocumented immigrants from financial penalties for obtaining work. In sum, under the INA, Congress' intended method of curtailing unauthorized immigrant employment is to penalize employers rather than to criminalize undocumented immigrants who gain work. The Court should find that federal law preempts SB 1070 § 5(C).
SB 1070 § 2(B) directs each officer who has reasonable suspicion that a person lawfully arrested is an undocumented immigrant to make "a reasonable attempt ... when practicable, to determine the [person's] immigration status." It also instructs Arizona officers to determine each arrestee's immigration status prior to release and to verify that status with the federal government. SB 1070 § 2(B) seems to satisfy Congress' intent—as expressed in 8 USC § 1373(c)—that state officials aid federal officers to check persons' immigration status. True, pursuant to 8 USC § 1357(g)(1), Congress envisioned that the Attorney General would authorize state officers' enforcement of federal immigration laws by written agreement, and SB 1070 § 2(B) does not explicitly contemplate any such agreements.
However, Congress did not mandate a written agreement for every manner of local-federal immigration law enforcement cooperation. In fact, 8 USC § 1357(g)(10) explicitly contemplates that state officers may communicate a person's immigration status to the Attorney General—or identify, apprehend or detain undocumented immigrants—without written agreement. Moreover, SB 1070 § 2(B)'s scope seems to be narrow: the provision pointedly does not direct Arizona's law enforcement officers to perform removal or other federal immigration law functions. On the whole, SB 1070 § 2(B) seems to be in lockstep with the INA's provisions, and the Supreme Court should decide that it is not preempted by federal law.
SB 1070 § 6 authorizes each Arizona peace officer to, without warrant, arrest any person where "the officer has probable cause to believe ... [t]he person ... has committed any public offense that makes the person removable from the United States." 8 USC § 1252(c) provides that state and local officers may arrest and detain individuals illegally present in the US provided that those individuals have "previously been convicted of a felony in the United States and deported or left the United States after such conviction" and that "the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual."
SB 1070 § 6 makes no mention of the felony conviction and the Immigration and Naturalization Service confirmation requirements contained in the federal regulatory scheme. This could be problematic from an enforcement standpoint: it charges Arizona's peace officers with the unenviable task of determining whether a particular offense makes an immigrant removable and some lawfully admitted noncitizens could be inconvenienced with warrantless arrests. However, the Court should not invalidate SB 1070 § 6 based on this possibility or on the fact that the bill effectively grants Arizona peace officers greater authority to make warrantless arrests than federal immigration officials enjoy. Under 8 USC § 1357(a) a federal officer may effect warrantless arrests of undocumented immigrants only when (1) the federal officer views an immigration violation or (2) it is likely that an undocumented immigrant will escape before a warrant will issue. Instead, the Court should find that SB 1070 § 6's authorization of warrantless arrests is contemplated under the aforementioned 8 USC § 1357(g)(10) and thus not preempted. Whatever the Court decides in Arizona v. US, its decision is sure to only stoke the ongoing American discourse on immigration laws and on other laws affecting immigrants.
Steven Fazzi received his Bachelor of Arts and Master's of Arts degrees in Communication Studies from California State University, where he also worked as a graduate assistant. At McGeorge School of Law, Fazzi has studied abroad in Antigua, Guatemala and Salzburg, Austria.
Suggested citation: Steven Fazzi, Federal Law Preempts Only Two Provisions of Arizona Immigration Law, JURIST - Dateline, Apr. 25, 2012, http://jurist.org/dateline/2012/04/steven-fazzi-immigration-arizona.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
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