[JURIST] The US Court of Appeals for the Federal Circuit [official website] ruled [opinion, PDF] that a statute [10 U.S.C. § 2231, text] mandating that five percent of Department of Defense (DOD) [official website] contract spending be awarded to minority companies, is unconstitutional. The opinion, written by Chief Judge Paul Michel [official profile] and issued Tuesday, found that the evidential standard of determining who is a minority violated the Equal Protection and Due Process clauses of the Fifth Amendment because it failed to meet the strict scrutiny test. Citing six studies that Congress used to determine who qualified as a minority, the Court determined that there was a lack of “strong-basis in evidence” to effectively show that the DOD had discriminated against minorities in the past.

The statute, enacted in 1986, has been reauthorized by Congress on several occasions, most recently in 2006. The lawsuit, brought by the Rothe Development Corporation [official website], was filed after a DOD contract was awarded to a company owned by two minorities, despite Rothe submitting the lowest bid. The decision by the Court continues a recent trend [JURIST report] moving away from affirmative action initiatives.

[JURIST] A ballot measure to prohibit holders of government contracts totaling more than $100,000 from contributing to political parties or candidates appeared to win narrow approval from Colorado voters Tuesday, while a similar measure in South Dakota was easily rejected. In Colorado, Initiative 59 [text, PDF] (also called Amendment 54) amends the state constitution to ban such "pay to play" practices. The official results Thursday (with 95 percent of precincts reporting) were:

Yes - 1,050,049 - 51 percent
No - 994,366 - 49 percent

Opponents of the measure say the amendment violates freedom of speech because it broadly extends campaign contribution prohibition to include family members and union members. Rocky Mountain News has more.

In South Dakota, Initiated Measure 10 [text] would have banned government funds from being used for campaigning or lobbying, and also would have limited political donations for some people holding state contracts. With 100 percent of precincts reporting, the official results were:

No - 232,631 - 65 percent
Yes - 127,042 - 35 percent

Opponents of the measure said it limited free speech and would have wasted taxpayer money. AP has more.

As of Thursday, it was still too soon to tell whether Oregon voters passed Measure 64 [text, PDF], which would prohibit public resources, including money collected by public employee unions from payroll deductions, from being used to collect money being used for a political purpose. The measure was gaining nominal support on Thursday, with results as follows:

Yes - 78,3090 - 50%
No - 79,7066 - 50%

Those opposing the measure say public employee unions would be unfairly harmed. The Register-Guard has more.

[JURIST] An amendment to the Maryland Constitution [text] to permit early voting was among several election-reform ballot measures approved by voters in Maryland and other states Tuesday. Question 1 [text and materials] authorizes the Maryland General Assembly to allow voters to cast ballots outside their election districts or wards, to vote as much as two weeks before an election and to request absentee ballots regardless of whether they could vote in person on Election Day. As of 2 PM EST Thursday, unofficial results [text] for Question 1 (with 1,804 of 1,829 polls reporting) were:

Yes – 1,574,480 – 71.6%
No – 623,220 – 28.4%

In Arkansas, voters likewise favored a legislative referendum [Proposed Constitutional Amendment 1 text, PDF; unofficial results] to remove obsolete voting language from the state constitution. The amendment states that all US citizens who are residents of Arkansas, at least 18 years old and lawfully registered may vote, repealing provisions that tied the right to vote to previous registrations of a voter's name and denied voting rights to "idiot[s] and insane person[s]." In Connecticut, a ballot measure [Constitutional Amendment Question 2 text, PDF; unofficial results, PDF] to allow any person who will be 18 years old on or before a general election to vote in the preceding primary election won approval. In California, voters appeared to narrowly support an initiative [Proposition 11 text and materials; unofficial results] amending the state constitution to authorize a 14-member nonpartisan commission, rather than the state Legislature, to establish legislative district boundaries.

Several election-related measures in other states failed. In South Dakota, voters overwhelmingly defeated a measure [Constitutional Amendment J text and materials, PDF; unofficial results] to lift term limits for state legislators. In Nevada, a legislative referendum [Question 1 text and materials, PDF; unofficial results] to amend the state constitution by removing a six-month residency requirement for voting also was defeated. The US Supreme Court ruled in 1972 that a similar durational residency requirement violated the Equal Protection Clause [Dunn v. Blumstein opinion text] of the US Constitution. Finally, in Oregon, voters soundly rejected an initiative [Measure 65 text and materials; unofficial results] to establish a single primary election for partisan offices in which the two candidates receiving the most votes would advance to the general election.

[JURIST] Parliamentary Assembly of the Council of Europe (PACE) [official website] rapporteur Dick Marty [official profile, in French; JURIST news archive] testified Wednesday at the trial of American and Italian intelligence officials for the 2003 abduction and rendition of Egyptian cleric Hassan Mustafa Osama Nasr [JURIST news archive], also known as Abu Omar. Recalling the findings of his own investigation [JURIST report], Marty said that the illegal transfer and detention of Omar was not an isolated incident, but rather an element of a larger CIA scheme, in violation of the European Convention on Human Rights [text]. He went on [COE press release]:

As in the US and Germany, the doctrine of ‘state secrecy’ has been invoked by the Italian government to try and block the judicial procedures aiming to establish the truth about serious human rights violations committed under its responsibility. This is unacceptable and unworthy of a state governed by law. Let justice take its course!...State secrecy is not being invoked to protect secrets – because the facts in question are largely known – but rather to protect the civil servants and politicians responsible for these abuses...

The Abu Omar affair is one of the rare cases where the alleged perpetrators of kidnapping carried out as part of the CIA’s ‘extraordinary rendition’ programme [sic] are facing justice. The trials in the US and Germany, involving the El-Masri affair, have run into the sand after the ‘state secrets’ doctrine was invoked. Parliamentary enquiries [sic], such as the one carried out by the German Bundestag’s committee of enquiry [sic], have also come up against the executive’s refusal to provide certain information requested by the parliamentarians.

[JURIST] The European Court of Justice (ECJ) [official website; JURIST news archive] Thursday ruled [opinion text] that the European Commission (EC) [official website; JURIST news archive] should not have overturned a Dutch law requiring all new diesel-fueled vehicles to be equipped with a soot filter. The Netherlands wanted to require the filters in an attempt to reduce particulate matter emitted by passenger vehicles. The ECJ found that expert testimony provided by the Netherlands demonstrated positive benefits of the policy that the EC court did not properly take into account, saying:

In fact, while the Court of Justice has recognised [sic] that the Commission, as part of its assessment of the merits of a request for derogation under Article 95(5) EC, may have to have recourse to outside experts in order to obtain their advice on new scientific evidence adduced in support of such request (see Land Oberösterreich and Austria v Commission, paragraph 32), the primary responsibility for making that assessment rests on the Commission, which must itself, if appropriate on the basis of the experts’ advice, properly take account of all the relevant evidence and explain, in its final decision, the essential considerations which led it to adopt that decision.

[JURIST] Russian president Dmitry Medvedev [official profile; JURIST news archive] Wednesday proposed constitutional amendments extending the presidential term from four to six years, and the term of members of the State Duma [official website, in Russian] from four to five years. The proposed amendments would change Article 81(1) [text] and Article 96(1) [text] of the Russian Constitution [text], the first changes to that document since it replaced its Soviet-era predecessor [text, in Russian] in 1993. Medvedev made the proposals during his first state of the nation address [text] to the Federal Assembly, saying that they would promote the effective implementation of necessary reforms. He cast the term extensions as "clarifications":

We are not talking about constitutional reform but about a correction to the constitution; about important, but refining amendments that do not touch the political and legal essence of the existing institutes.

[JURIST] Pakistani President Asif Ali Zardari [official profile] on Thursday promulgated the Prevention of Electronic Crimes Ordinance [text] which allows certain acts of "cyber terrorism" to be punishable by death. The ordinance covers a variety of cyber crimes, including unauthorized data access, malicious code, unsolicited mass mailings, and fraud. It focuses on acts of terrorism caused by a person or organization with terroristic intent that accesses computer or electronic systems and "knowingly engages in or attempts to engage in a terroristic act." Such acts include altering electronic information that leads to injury, transmission, or attempted transmission of a malicious program to a government or public entity, aiding in the commission of acts of violence, and stealing or copying classified data necessary to manufacture weapons of mass destruction. According to the ordinance, these criminal offenses that cause the "death of any person shall be punishable with death or imprisonment for life." Reuters has more. APP has local coverage.

In 2006 the US adopted and ratified the Council of Europe's Convention on Cybercrime [text; JURIST report] which, among other goals, aimed to combat terror networks. Earlier this year Human Rights Watch (HRW) [advocacy website] called for the abolition of the death penalty in Pakistan [JURIST report] due to the country's high number of executions and executable offenses and the lack of adequate counsel.

[JURIST] Crime victims gained a higher profile in California’s criminal justice system on Tuesday with voter approval of Proposition 9 [text, PDF], also known as the Victims’ Rights Protection Act of 2008. The only winner among three criminal justice initiatives, Proposition 9, championed by Friends of Marsy's Law [advocacy website], places into the California state constitution 17 rights for victims, their families and their representatives. Written by crime victims, the proposition creates a constitutional Crime Victims’ Bill of Rights, streamlines the parole system, and prevents release of dangerous inmates solely to alleviate prison overcrowding. With all polls reporting, the final results for the Proposition were:

Yes - 53.5% - 5,089,419
No - 46.5% - 4,427,094

By 59.9 percent to 40.1 percent [official results], California voters rejected Proposition 5 [text, PDF], a measure that would have diverted an increasing number of drug addicts and non-violent offenders from overcrowded prisons to rehabilitation programs. Proposition 6 [text, PDF], an initiative that would have toughened penalties for gang and gun crimes, failed 69 percent to 31 percent. The Los Angeles Times has more.

In Oregon, Measure 57 [text, PDF] prevailed over Measure 61 [text, PDF] in Tuesday's election between dueling proposals to crack down on convicted drug dealers and property crime offenders with tougher sentences. Measure 61 sought to extend mandatory minimum prison sentences to first-time identity thieves, burglars and drug dealers while punishing repeat offenders with tougher sentences. Measure 57, an alternative measure sponsored by the state legislature and the Better Way to Fight Crime Committee [advocacy website], proposed to increase prison terms for repeat offenders but also required more comprehensive drug and alcohol treatment for such inmates. The Oregon legislature included a provision on the election ballot stating that the measure capturing the most votes would prevail. Former Oregon state legislator Kevin Mannix, the sponsor of Measure 61, has said that if both measures pass he will go to the courts seeking to “blend” them together. As of Thursday, Measure 57 is ahead by a decisive 61 percent to 39 percent; Measure 61 also appears to be passing by a 51 percent to 49 percent margin. The Eugene Register-Guard has more.

[JURIST] Rights groups filed a writ petition [PDF text; case materials] with the California Supreme Court [official website] on Wednesday seeking to invalidate a state constitutional amendment prohibiting same-sex marriage. Proposition 8 [text and materials], which was approved [unofficial results] by about 52 percent of California voters Tuesday, provides that "[o]nly marriage between a man and a woman is valid or recognized in California." The writ petition, filed by attorneys for the American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights on behalf of Equality California [advocacy websites] and six same-sex couples who want to marry, asks the court to stay enforcement of the amendment until the litigation is resolved. The petition alleges that Proposition 8 is not a valid amendment but rather a constitutional revision, which under provisions of the California Constitution [text] must be approved by the state Legislature [official website]. In a press release [text], Lambda Legal attorney Jenny Pizer said:

If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us. That's too big a change in the principles of our constitution to be made just by a bare majority of voters.

[JURIST] A collective of Saudi citizens [Google group] began a 48-hour hunger strike Thursday to protest what it called the illegal detention of 11 political reformists and to call for judicial reform. The protesters, who include Saudi lawyers, scholars, and activists, hope to call attention to Saudi legal and criminal procedures, which they say are not offering full protection to political prisoners. In particular, they point to Article 114 of the Saudi Criminal Procedure and Detention Law [text], which states that the aggregate detention of prisoners shall not extend past 40 days from the day of arrest without a trial. Several of the 11 political reformers have been in prison for close to 18 months with no trial. The hunger strike is controversial in part because of a Saudi law that bans public gatherings, protests, and political parties. Many of those participating hope to avoid a legal backlash by observing the strike within their own homes so as not to create a public gathering. Instead, participants are seeking a “virtual” gathering by calling for support through blogs and social networking sites such as Facebook [Support for Saudi Hunger Strike Facebook group]. AP has more. From Abu Dhabi, The National has additional coverage.

Human Rights Watch (HRW) [advocacy website] has previously criticized [JURIST report] Saudi Arabia’s criminal procedure as arbitrary in its enforcement and violative of due process rights. Last month Amnesty International [advocacy website] issued a report calling the Saudi justice system flawed and linking these problems to the high rate of executions in the country.

[JURIST] An arrest warrant for Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] on charges of genocide in Darfur could “derail” the peace process in Sudan according to a statement by Assistant Secretary-General for Peacekeeping Edmond Mulet on Wednesday. Reporting [press release; recorded video] to the UN Security Counsel [official website] on the status of the implementation of the Comprehensive Peace Agreement (CPA) [text, PDF] in Sudan, Mulet said that while the overall security situation in Southern Sudan remains relatively calm, an ICC indictment “could have serious security and other implications,” including the targeting of UN peacekeepers, which he said some had described as an "uncontrolled reaction." The UN has a 9,200-strong peacekeeping force deployed in semi-autonomous southern Sudan to enforce the CPA as well as a joint UN-African Union force in Darfur now totaling about 11,500 troops. Mulet also expressed concern over statements by Sudanese government officials that UN staff thought to have cooperated with the ICC would be expelled. AP has more.

Last July, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile; JURIST news archive] applied for an arrest warrant [application, PDF; JURIST report] for Bashir on charges of genocide, crimes against humanity, and war crimes for atrocities committed in the country’s Darfur region. On October 16, the ICC gave Moreno-Ocampo one month [JURIST report] to submit “additional supporting materials in relation to some confidential aspects” of his application. The Security Council continues to call on Sudan to comply with the ICC investigation, but Sudan has refused to do so, calling Moreno-Ocampo a "terrorist" [JURIST reports] and suggesting that he should be removed from office.

[JURIST] Vietnamese Justice Minister Ha Hung Cuong on Monday asked the country's National Assembly [official website] to consider reducing the number of crimes subject to the death penalty. Cuong’s proposal, which would eliminate the death penalty for crimes like bribery and producing counterfeit drugs, comes in response to strong international criticism of the country’s human rights abuses. Le Thi Thu Ba, chair of the legislature’s judicial committee, opposed the plan. The committee cited public health and economic consequences related to the production and smuggling of counterfeit drugs. AP has more. Thanh Nien has local coverage.

Amnesty International [advocacy website] reports that at least 83 people were sentenced to death in Vietnam last year. Capital crimes range from land fraud to economic mismanagement of state resources [BBC report]. Foreign governments and advocacy groups have also condemned Vietnam for persecution of journalists, religious groups [JURIST reports] and ethnic minorities. International pressure proved fruitful in 2005, when Vietnam agreed to publish its court decisions [JURIST report] as a condition for membership in the World Trade Organization (WTO) [official website].

[JURIST] Law enforcement officials from Bosnia and Herzegovina (BiH) Wednesday arrested [press release] Momir Pelemis and Slavko Peric on suspicion that they committed genocide by engaging in the capture and execution of 1700 Bosnian Muslims in Srebrenica [BBC backgrounder; JURIST news archive] during July 1995. The Special Department for War Crimes of the Prosecutor's Office of BiH [official website] directed the State Investigation and Protection Agency (SIPA) to arrest the two men, who were apprehended in the northeast town of Zvornik. From 1992-1995 Pelemis and Peric served in the Serb Zvornik brigade first battalion as deputy commander and assistant commander, respectively. The prosecutor's office is expected to charge the two men with genocide for violating Article 171 of the Criminal Code of BiH [text, PDF]. Reuters has more. From Sarajevo, the Federal News Agency has local coverage.

The arrests of Pelemis and Peric are the latest in a series of arrests stemming from the 1995 Srebrenica massacre. Last week, the Court of BiH [official website, in Bosnian] sentenced former Bosnian Serb special police officer Vaso Todorovic [Court of BiH materials] to six years in prison [JURIST report] for committing crimes against humanity in the Srebrenica massacre. Todorovic was previously charged with genocide before accepting a plea agreement reducing the charge to crimes against humanity. As part of the agreement, Todorovic agreed to testify in related cases.

[JURIST] Judge Nancy Atlas of the US District Court for the Southern District of Texas [official website] sentenced former US Customs and Border Protection (CBP) [official website] agent Santiago Perez to one year and one day in prison for civil rights violations Wednesday. Perez pleaded guilty in August to assaulting two men during separate incidents in 2006 and 2007. The charges stemmed from an investigation led by the Department of Homeland Security Office of Professional Responsibility [official website] into Perez’s use of excessive force against two undocumented illegal immigrants [JURIST news archive] in his custody. Perez admitted to striking a Guatemalan man with a pistol in 2006 and to assaulting, battering, and threatening to kill a Mexican man in 2007 after driving him to a remote South Texas ranch. In a statement [press release], US Attorney Donald DeGabrielle [official profile] said that Perez would remain under supervision for three years at the conclusion of his prison sentence. The Houston Chronicle has more.

In July, the US Court of Appeals for the Fifth Circuit [official website] upheld [opinion, PDF] several charges against two other US border patrol agents found guilty of shooting of an illegal immigrant [JURIST report]. The controversial decision received national attention after members of Congress called upon President George W. Bush to pardon Ignacio Ramos and Jose Alonso Compean [advocacy website]. Many local residents fear that the prosecution of Border Patrol agents limits their ability to do their job properly.