Friday, July 30, 2010

Senate stalemate indicates larger problems in campaign finance reform 10:07 AM ET [Nick Nyhart, President and CEO of Public Campaign]: "With just four Republican Senators in play on the DISCLOSE Act its failure to reach closure Wednesday was no surprise. The original intent of the legislation was to blunt the impact of the disastrous Supreme Court decision in Citizens United v. Federal Election Commission. Unfortunately, it became a political football for Republicans and Democrats alike. While the transparency and disclosure provisions included in the bill would let the American people know who is trying to buy our elections, Congress should have been bolder. The American electorate is not angry about a few bad apples--they want to throw out the whole moldy barrel. Congress should pass some form of the DISCLOSE Act, but it should also move forward with more comprehensive legislation too--the Fair Elections Now Act (H.R. 1826, S. 752). This bipartisan legislation would allow candidates to run competitive campaigns for office on a blend of Fair Elections funds and small donations. With Fair Elections, candidates would be accountable to their voters, instead of the big money donors funding their campaigns. The legislation has the broad, bipartisan, and cross-caucus support of 157 U.S. House members and 23 U.S. Senators. Fearing the new forms of special interest political retaliation allowed under Citizens United, candidates for Congress will now have to spend even more time raising big donations and less time working for working Americans. It's important to know what big lobbying interests are funding elections, but wouldn't it be great if we never had to question the motives of our elected officials to begin with? It's time to make our government of, by, and for the people by passing the Fair Elections Now Act." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Monday, July 19, 2010

More constitutional amendments by Turkish High Court are unwarranted 10:07 AM ET [Serkan Yolcu, Uludag University Faculty of Law]: "On Wednesday July 7, 2010, the Turkish media was unexpectedly informed by the press office of Constitutional Court that the Court made its eagerly anticipated judgment on the constitutional amendment package that has been on the agenda for months. After 9.5 hours of debate in only one day, the eleven members of the Court decided to annul a few clauses of some articles of the package. The partially annulled articles rearrange the process of electing members to the Constitutional Court and the Supreme Board of Judges and Prosecutors (HSYK). The Court annulled the provisions that would have prevented members of the high judiciary from voting for more than one candidate in their selection to HSYK and the Constitutional Court. The provision that would have allowed the president to assign political science and economics academics or senior executives to the HSYK was also annulled. Apart from these very minor changes the package still preserves its content. The decision is very interesting in terms of the votes. While discussing the motion, 39 claims were rejected with different votes of which only 7 decisions were taken unanimously and the rest was decided by majority of votes. However, 7 annulment decisions were decided unanimously. The decision was immediately and heavily criticized. The main argument is that the Court exceeded his authority (again!) by reviewing the amendments in respect to substance even though it is not empowered to do so according to the 1982 Constitution. (Article 148 of the Constitution stipulates that "Constitutional amendments shall be examined and verified only with regard to their form ... the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with".) The reasoned judgment of the Court has not been published yet but as far as it's learned from the media, the Court annulled those clauses by finding them contrary to the principle of "democratic... [S]tate governed by the rule of law" provided in the Article 2 of the Constitution. Therefore it's not possible to decide the constitutionality of the amendments without a substantial review in this respect. This is not the first time the Court reviewed the compatibility of constitutional amendments with respect to the Constitution. Under the 1982 Constitution, there have been four times (1987, 2007, 2007, 2008) in which the Court made the judicial review of the constitutional amendments. The most controversial one was the decision on June 5, 2008 which annulled the amendments to the Article 10 and 42 of the Constitution relating to removing the ban on headscarves at universities. This was the only time the Court annulled a constitutional amendment under the 1982 Constitution until the decision of July 7, 2010. Since that decision, the Court is said to be in violation of the Constitution because it does not have a competence for judicial review of constitutional amendments in respect to substance. Today in 2010, the Court is said to be in violation of the Constitution again by deciding partial annulment of the current constitutional amendment package. Under Turkish constitutional system, the Constitutional Court does not have the power to review laws that have not completed its enactment process. Likewise, these constitutional amendments are not valid and unenforceable because their enactment process is not yet completed. The package will be subject to a referendum on September 12, 2010 because it did not receive enough votes in the Assembly to enter into force immediately. Therefore, this referendum will be both on the validity and the enforcement of the amendments. Consequently this law amending the Constitution has not become a "law" yet. The Constitutional Court has no power to make a preventive review of legislation. The 1982 Constitution allows the Court only to make a posteriori review of laws. In other words, the Court cannot review a law even amending the Constitution which has not finished its procedure to become valid. However, the Court invalidated constitutional amendments by reviewing them while they are on their way to referendum. Nowadays both the opposition party and the current heads of high judicial bodies are not satisfied with the decision because they believe that the rest of partly annulled articles are contrary to the separation of powers and judicial independence. The opposition parties in the Parliament started campaigns for saying "no" in referendum while the government is trying to persuade people to say "yes". On the other hand, although the supporters of the constitutional change censure the decision because the Court exceeded its powers by reviewing the substance of the amendments they are pleased with the decision and seem to ignore it because the decision did not affect the main idea of the constitutional change and abolish the whole package." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Friday, July 09, 2010

Wisconsin same-sex marriage decision sets stage for change 4:07 AM ET [Katie Belanger, Fair Wisconsin]: "On Wednesday, June 30, 2010, the Wisconsin Supreme Court upheld the 2006 state constitutional amendment banning marriage equality and civil unions in the McConkey v. J.B. Van Hollen et al. decision. In this case, William McConkey challenged the validity of the amendment, stating that it violates the single subject requirement for all constitutional amendments by addressing both marriage and civil unions. This decision was not about public policy, but rather about legal procedure. In the unanimous decision, liberal and conservative alike agreed that the amendment did not violate the single subject rule. Our highly politicized Supreme Court had the opportunity to use this case to make a statement, to undermine our 2009 domestic partnership victory and do irreparable harm to the fight for equality, but they did not. Conservative Justice Michael Gableman was tasked with writing the opinion. While many of us disagree with the court about whether or not civil unions are the equivalent of marriage, Gableman's words were clear: "...the question before us is not whether the marriage amendment is good public policy or bad public policy, nor its interpretation or application..." These statements signal that the court was not weighing in on the merits of the amendment. They did not interpret the amendment. They did not discuss or include commentary on whether the amendment was the right step for our state or not. The justices took care to not legislate from the bench. The outcome was not what we at Fair Wisconsin had hoped for. When we joined with the ACLU and Lambda Legal to file an amicus brief in the case, it was for the express purpose of preventing the court from doing irreparable harm to our current legislative victories and our future priorities. So, where do we go now? This decision is not a step backwards; it rather confirms the status quo. It does not change the amendment or domestic partnerships. Couples who have registered as domestic partnerships are not affected and couples can continue to register at their county clerk's office. Some have said that this decision may bolster the confidence of the anti-fairness conservatives who see an opportunity to challenge the domestic partnership registry. To those people I say, "Been there, done that." The Supreme Court threw out the first challenge before they even decided the McConkey case. And if our opposition brings the case to a lower court, we are ready to once again swiftly and effectively defend the critical protections that so many couples are enjoying around the state. What this decision does is clarify the path to full equality. We're going to have to push up our sleeves and do it the old-fashioned way. Putting boots on the ground, continuing to elect leaders who will stand with us in the fight for equality, educating people about the harms the amendment inflicts on caring, committed same-sex couples across the state every day. Repealing a constitutional amendment is no easy process. Two consecutive sessions of the legislature need to pass the repeal measure and then we go back to the ballot with another statewide referendum. I have no doubt that we will accomplish these goals and more. This is a marathon, not a sprint. It will take time to get the right elected leaders in office. It will take time to change the hearts and minds of our friends and neighbors, to gain their support for lesbian, gay, bisexual and transgender equality. So, we'd better get a move on." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, June 30, 2010

Court decisions stifle reasonable gun control measures 2:06 AM ET Richard Aborn [President, Citizens Crime Commission]: "What is most important to the gun control movement is the ability to pass reasonable laws designed to break up the illegal gun markets. While I disagree with this decision, as I do with District of Columbia v. Heller, these rulings do not deter us from pursuing laws that would close the gun show loophole and address licensing and registration. These laws are all vital to public safety and do not violate either the Supreme Court decisions or the rights of legitimate gun owners. Presented with two opportunities to do so, the Court declined to indicate that reasonable regulations of guns - and in particular handguns - would violate the individual right to bear arms that the Court has now established . This is critical to our ability to continue to pass laws that will make everyone safer. These decisions will, however, cause an endless stream of challenges to gun control laws. Resisting these challenges will absorb large amounts of vital resources that could be much better spent elsewhere. This is unfortunate. We remain resolute in our determination to reduce gun violence in its many forms. These two decisions do not diminish that resolve. We are undeterred." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, June 23, 2010

Firing squad execution underscores inhumanity of death penalty 4:06 AM ET Richard C. Dieter [Executive Director, Death Penalty Information Center]: "Ronnie Lee Gardner [BBC Backgrounder] was executed in a hail of bullets as he sat strapped to a chair in a Utah prison a few nights ago. Gardner got the kind of execution he wanted--death by firing squad--and Utah finally got what it wanted--retribution for the murder Gardner had committed twenty-five years ago. We the people (and in this case, there was a worldwide audience) probably scratched our heads wondering what that was all about. Even though the U.S. is averaging one execution per week, no one pays much attention to such events because they are not news. They are not the first or the last, the most or the least of anything. Gardner's execution was news because it was the first use of the firing squad in 14 years and probably one of the last such executions in U.S. history. We just don't do things like that any more. The firing squad, like the electric chair, the gas chamber, and the gallows, is more appropriately found in museums and old movies, not in modern civilized society. We don't shoot or hang people because such actions are repulsive to our sensibilities, demeaning to human life, and accomplish nothing worthwhile. But while the firing squad is clearly on the way out, executions by lethal injection continue under a cloak of antiseptic obscurity. The death penalty is winding down, as overwhelming evidence in this country and around the world demonstrates. Death sentences, executions, and the number of states with the death penalty have dropped sharply in the past decade. The U.S. is now one of a very small number of countries to carry out executions annually. The strong stream of progress in human rights implies that capital punishment itself will eventually be relegated to the same history as slavery, apartheid, and torture. Even as vestiges of these practices remain, they are clearly condemned in the world community. We continue to execute people in this country not because such actions are necessary but because we have not yet figured out how to extricate ourselves from this practice. In the meantime, people like Ronnie Gardner are chosen from among thousands on death row and killed because their number has come up. Occasionally they "go out in a blaze of glory," but as retiring Justice John Paul Stevens recently concluded, it is the pointless and needless extinction of life." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Sunday, June 20, 2010

Culture alone fails to account for female genital mutilation 4:06 AM ET Yifat Susskind [MADRE Policy and Communications Director]: "The report by Human Rights Watch on female genital mutilation (FGM) in Kurdistan reveals the troubling reality facing women and girls compelled to undergo the procedure. Human Rights Watch references specifically the failure of the Kurdistan Regional Government to take seriously the issue of FGM and to enact legislation to curb the practice. In investigating this issue, many have sought to demonstrate that Islam does not require this practice and that most Muslims practice their faith without FGM. Others have countered with the reverse, claiming that FGM forms an essential part of traditional culture. This debate about whether or not FGM is "cultural" obscures a fundamental reality: culture alone explains very little. It provides a context but does not serve as a useful explanation for harmful practices against women. Like all behavior, FGM has a cultural dimension, but its prevalence is equally shaped by social and economic factors (like poverty) and discourses (like women's rights) that can be deployed to either combat or promote FGM. Once we recognize the conditions and discourses that advance women's rights, we can also see how a legacy of US sanctions, invasion and occupation has undermined progress for women. War invariably constricts the civil society spaces where discussions on women's rights could occur. The work to end the practice of FGM must happen in concert with an effort to re-open and expand spaces for progressive discussion on women's human rights that have been shut down by the reality of war and violence. The Kurdish Regional Government must take a strong stance, but we must also work to eliminate the conditions that hamper the progress of a women's rights movement against FGM and all human rights violations." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, June 12, 2010

International compliance with new clean air directives imperative 5:06 AM ET Nicole Nishimura [California Environmental Rights Alliance] "The California Environmental Rights Alliance is an environmental justice organization based in Southern California - home to the worst air quality in the United States. Our organization works with those hardest hit by the effects of pollution. Oftentimes the most polluted neighborhoods are in low-income communities and communities of color - those least equipped to deal with the consequences. We work with these communities on the policy level helping to implement regulations that are protective of community health. That said, naturally, we are strong advocates of compliance when it comes to environmental regulations. It is unfortunate that the UK has yet to comply with the 2008/50 directive [PDF]. Given the amount of research done, the effects of pollution - PM 10 (particulate matter smaller than 10 micrometers) included - are devastating. By reducing emissions, we have the power to save lives and prevent debilitating illnesses. Saving lives should not be negotiable. To underscore the impacts of air pollution, a study conducted by the California Air Resources Board found that PM 2.5 alone is responsible for 5,400 premature deaths in the South Coast Air basin, a four-county area in Southern California with an approximate population of 16 million people. These are people dying from the air they breathe. With the advancement of technology and pollution control devices, there is no longer an excuse to keep functioning the way we have. Thousands of deaths attributed to air pollution is unacceptable. It is time for us to start cleaning up our act - which means it is imperative that companies, cities, states and nations comply with regulations and strive to reach emission reduction targets." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Monday, May 10, 2010

Convicted Mumbai terrorist better serves Indian security interests if kept alive 10:05 AM ET Animesh Roul [Executive Director, Society for the Study of Peace and Conflict] "Mohammed Ajmal Amir Kasab, the lone surviving terrorist in the November 2008 Mumbai attacks has been sentenced to death by the court yesterday, May 6. Kasab was found guilty earlier this week and convicted for mindless murder and waging war against the country. The most surprising aspect of the trial was the acquittal of other two accused, Fahim Ansari and Sabauddin Ahmed for lack of evidence. Both of them are Indian nationals and accused of having surveyed Mumbai and drawn maps of the targets at the behest of Pakistan based Lashkar-e-Taiba. Though the death sentence was widely expected, many in India believe that the actual execution might be delayed due to number of legal factors. For example, Kasab can appeal in the High Court and the apex court subsequently which is obviously time consuming. Even if he gets nothing from these courts, he still has one last chance - the Presidential pardon. Consider the example of Afzal Guru, the prime convict in the December 13, 2001 Parliament attack case, who was sentenced to death way back in 2006, and is still awaiting execution due to the archaic legal system prevalent in India. There are nearly 25 such cases awaiting Presidential approval. To recollect the horror, Mumbai terror incidents took nearly 170 lives including the nine terrorists affiliated to the Pakistan based Lashkar-e-Taiba. Kasab was involved in the railway platform shooting in that fateful night. Special Judge M. L. Tahaliyani who handed out the verdict said Kasab has lost the right to any humanitarian benefits. However, the verdict serves two strategic purposes, besides pleasing the domestic clamor for capital punishment for Kasab. By giving the death penalty, India's judicial system proves that strong action can be taken against any killers, motivated, brainwashed or otherwise. Also, it aims to be a deterrent for any terrorists sitting across the border. Plausibly enough, any leniency towards Kasab would have sent a wrong signal to jihadis in Pakistan and their homegrown brethren in India. Whether swift death or a delayed execution, the end of Kasab might not help India to get all the masterminds of Mumbai carnage who are still moving freely in Pakistan. A living Kasab can give a better bargaining option against Pakistan and for the first time ever Kasab's capture caught Pakistan on a back foot since it adopted a proxy war strategy against its eastern neighbor." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, May 08, 2010

Ninth Circuit's Khatib decision undermines free exercise of religion 9:05 PM ET Christina Abraham [Civil Rights Director, Council on American-Islamic Relations (CAIR) -Illinois] "In a feat of apologetic acrobatics, the Ninth Circuit Court of Appeals rendered a decision [PDF file] in Khatib v. County of Orange affirming a district court's dismissal of a complaint under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The decision uses faulty legal reasoning to arrive at a conclusion that dangerously undermines the well-established principle that the government may not unnecessarily infringe upon an individual's right to exercise his or her religion. Souhair Khatib sued the County of Orange after she had been held in the county court's holding facility from 9am to 4:30pm and was forced to remove her religious headscarf (hijab) while in the presence of men - a violation of her sincerely held religious beliefs. RLUIPA prohibits the government from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution. In Khatib, the case centered on whether the holding facility at the Orange County Superior Court falls within the meaning of "institution" under RLUIPA. The majority on the Ninth Circuit panel held that it did not. In so doing, it ignored the statute's clear language and intent. RLUIPA defines "institution" as "any facility or institution...(B) which is...(ii) a jail, prison, or other correctional facility" or "(ii) a pretrial detention facility." The majority on the Ninth Circuit panel ultimately held that the court holding facility didn't constitute a pretrial detention facility because detainees could not "reside" there. However, the clear language of RLUIPA states in its opening provision that the statute is intended to protect any person "residing in or confined to an institution." As Chief Judge Kozinki put it in his dissenting opinion, "If Congress had meant to include only institutions with beds, there would have been no point in adding 'or confined to' following residing." In fact, nowhere in RLUIPA does Congress indicate a residency requirement for the statute to apply. What Congress did do, however, was expressly instruct adjudicators to interpret the statute "in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." That clearly did not happen here. Chief Judge Kozinski said it best in his dissent when he stated, "Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility?" The answer is no, we cannot honestly say that. The decision rendered in the Ninth Circuit was not honest at all. It was, at best, a shallow legal interpretation that needlessly permitted a government-run institution to impair the religious exercise of an individual entitled to that right. Unless successfully appealed, this decision will set a crack in what is otherwise a solid body of jurisprudence designed to uphold one of this nation's most dearly-held rights. Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, May 05, 2010

Spain leads way in effort to resettle Guantanamo detainees 10:05 AM ET Ken Gude [Director, International Rights and Responsibility Program, Center for American Progress] "Spain is leading the way among US allies in assisting the Obama administration in the critical counterterrorism mission to close the detention center at Guantanamo Bay. With domestic efforts stalled due to political opposition and opportunism, the Obama administration is forced to turn to allies like Spain to bring down the population at the prison. Spain's leadership is crucial to persuading other countries, and hopefully the United States Congress, to join in this effort to close Guantanamo and prevent our terrorist enemies from using that symbol to recruit new members into their ranks. Regardless of the improvements that have been made to conditions at Guantanamo or to the military commission trials once again underway, closing the prison remains a national security imperative. Guantanamo is a symbol of American lawlessness and hypocrisy that has played into the hands of our enemies. President Obama accurately described the net negative impact of the prison for US national security when he said last May that it "created more terrorists around the world than it ever detained." Any plan to close Guantanamo must include dozens of transfers to third countries because international law restricts sending detainees to countries where they face the prospect of torture. Spain has accepted this responsibility and has consistently stepped up to the plate to help remove this terrorist recruiting tool. It originally pledged to resettle two detainees - the second of which arrived Tuesday - but recently upped their pledge to five as it became clear that more help would be needed to find homes for detainees released from Guantanamo. Spain's increased assistance is commendable because it comes in the face of outright refusal on the part of the US Congress to accept any detainees for resettlement into the United States. Spain's leadership is also essential to bring other countries, particularly major European countries like Germany, into the effort to close Guantanamo. Germany had previously refused to accept Guantanamo detainees but reports out last month indicate that they are close to agreeing to resettle some detainees. Such a move from Germany could induce France to add to its one detainee and others could follow suit, moving the Obama administration closer to its objective to close the prison. The Obama administration has never wavered in its commitment to close Guantanamo, even in the face of political opposition in the United States. It now relies more than ever on its allies to keep making progress toward that goal and Spain has consistently been willing to do its part and more. Spain and many other countries realize the danger that flows from increased terrorist recruitment and incitement is not only directed at the United States, it threatens us all. Let's hope that the US Congress can learn from that enlightened approach and finally put this tragic episode in US history behind us." Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST