[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in three cases. In South Carolina v. North Carolina [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether additional parties may intervene in a lawsuit between two states, over which the Court has original jurisdiction. A special master recommended [report, PDF] that three parties - the city of Charlotte, North Carolina, the Catawba River Water Supply Project, and Duke Energy Carolinas - be allowed to intervene in the lawsuit brought by South Carolina over water flows from the Catawba River. The state of South Carolina and the US government both dispute that recommendation, arguing that the states should speak for the interests of all their citizens. Counsel for plaintiff South Carolina argued that the special master incorrectly applied the standard for intervening. Counsel for the US also argued on behalf of South Carolina as amicus curiae:

In order to intervene in an original action in this Court, a citizen of a State that is a party to the action must show a compelling interest, separate from that of other citizens, that is not properly represented by the State. In an equitable apportionment action, the interest that is at stake is not a private property interest in water. Rather it is the sovereign interest of the State in a particular share of the waters of an interstate river. For that reason, a private interest in water is not an appropriate basis for intervention in such a proceeding.

The Kentucky Supreme Court announced a categorical rule so restrictive of the Sixth Amendment that the United States Government disavows it. The court held that the Sixth Amendment never provides a remedy to a defendant who pleads guilty to a crime on the false advice of his attorney that he would not be deported as a result.

the extension of Mills that the Sixth Circuit's ruling made here is not clearly-established law even today. ... There is a - the vast majority of Circuits, Fourth, Fifth, Seventh, Eighth, Tenth, have rejected the position the Sixth Circuit took here, and in fact, this case is quite distinct from Mills even if Mills were applicable.

[JURIST] The Constitutional Court of the Czech Republic [official website, in Czech] announced Tuesday that it will hold a public hearing on October 27 regarding a challenge to the country's signing of the European Union (EU) reform treaty, known as the Treaty of Lisbon [EU materials; JURIST news archive]. The court will hear arguments [Ceske report] against the treaty from various government representatives, including President Vaclav Klaus [official website, in Czech]. In addition, a group of 17 Czech senators announced on Tuesday that their legal challenge [Xinhua report] will involve whether the treaty violates the Constitution of the Czech Republic [text]. As the last remaining country to ratify the treaty, the Czech Republic is receiving pressure from the remainder of the European Union. EU Commission chief Jose Manuel Barroso [official website] urged [press release] the Czech Republic to sign the treaty and not raise artificial objections, saying it would be "completely absurd" to reopen the ratification process in the other member states.

Efforts to ratify [JURIST news archive] the treaty in all of the 27 member countries required for approval have met some obstacles. The treaty was finally approved by Poland and Ireland [JURIST reports] earlier in the month, after certain guarantees were made by the EU. Germany signed [JURIST report] the treaty last month. In March, the Senate of the Parliament of the Czech Republic [official website] voted to approve [JURIST report] the treaty, but Klaus refused to ratify the document. The Czech Republic's Chamber of Deputies [official website] approved [JURIST report] the treaty in February.

[JURIST] The Constitutional Court of Gabon upheld on Monday the presidential election victory of Ali Ben Bongo Ondimba [BBC Profile]. Bongo, former minister of defence and foreign affairs and of son of long-time Gabonese president Omar Bongo [BBC Profile], received over 40 percent of the vote, but was accused of fraud [Gaboneco report, in French] by his challengers. The court rejected [AP report] the claims filed by the opposition, and ordered that the inauguration can take place in the coming days. Bongo represents a minority party in the nation. This is believed to have played a part in the violence that erupted [NYT report] following the election. Former colonial power, France, had previously acknowledged Bongo as the electoral victor.

Accusations of election fraud and related violence have been widespread in Africa. Earlier this month the International Criminal Court (ICC) [official website] announced [JURIST report] it will prosecute responsible parties for the December 2007 Kenyan post-election violence [JURIST news archive]. In 2008, opposition parties in Zimbabwe alleged [JURIST report] that the government rigged the results of the re-election of President Robert Mugabe [BBC profile, JURIST news archive]. In 2007, the Nigerian presidential election received sharp criticism [JURIST report] from outside observers and opposition leaders, despite what appeared to be a landslide victory for Umaru Yar'Adua [BBC profile].

[JURIST] The Peruvian Catholic Bishops Conference (CEP) [organization website, in Spanish] on Monday strongly condemned a proposed law that would legalize abortion [JURIST news archive] in cases of rape or fetal deformity. The CEP's statement called the proposed legislation "arbitrary," labeling it "not just a matter of religion but of ethics, dignity, human rights and civilization." According to the CEP:

So life can not be waived for any reason, or sacrificed for others, even to save someone. When allowed exceptions to this principle, the door is opened to abortion, euthanasia, and any other discriminatory procedures.

Those who are inclined to sacrifice the life of the fetus in order to protect the life of the mother, even in unfortunate instances of rape, start from the assumption that the mother's life is worth more than the child, which is arbitrary and false. All human beings have equal dignity and equal worth.

Our Constitution recognizes that human life begins at conception, and notes that the unborn child is a subject of law in every respect. And the greatest of these rights is precisely the right to life.

[JURIST] One of the two Afghans on the UN-backed Electoral Complaints Commission (ECC) [official website] resigned on Monday, citing "foreign interference." The panel is tasked with investigating the allegations of fraud surrounding the disputed August presidential elections [JURIST news archive]. Maulavi Mustafa Barakzai's resignation has raised doubt about the commission's work and has generated allegations that the resignation was influenced by President Hamid Karzai [BBC profile, JURIST news archive] - allegations that have been refuted by Karzai's campaign. The ECC released a statement [text, PDF] on Monday expressing its disappointment over Barakzai's resignation. There is no word on whether Barakzai will be replaced but according to Rule of Procedure 2.4 [text, PDF], the panel only needs a quorum of three people, including one Afghan in order to meet and issue rulings. In addition to the two Afghans on the panel, the five-member panel consists of one American, one Canadian, and one Dutch national. The panel must determine whether Karzai has enough votes to be declared the winner of the election or whether he will have to face a runoff vote against challenger Abdullah Abdullah [BBC profile].

Last month, the EEC ordered a recount [JURIST report] of ballots from about 10 percent of polls. Also in September, the ECC invalidated ballots [JURIST report] from certain polls in Kandahar, Ghazni, and Paktika [press releases, PDF] provinces. The ECC also ordered the Independent Election Commission (IEC) [official website] to conduct a partial recount [JURIST report] of votes from polling stations with high irregularities. The IEC said earlier in September that it is conducting its role faithfully and impartially [JURIST report] in an attempt to reassure the Afghan public amid allegations of voter fraud, mainly in response to the more than 100 complaints [JURIST report] filed with the ECC by Abdullah's campaign alleging ballot stuffing, inflated vote counts, and intimidation at the polls by Karzai supporters. Election observers also reported at least two instances of voters fingers, marked with indelible ink to avoid voter fraud, being cut off by Taliban insurgents.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday granted certiorari [order list, PDF] in four cases, including the case of former Enron CEO Jeffrey Skilling [JURIST news archives]. In Skilling v. United States [docket; cert. petition, PDF], the Court will consider whether the federal honest services fraud statute [18 USC § 1346 text] requires the government to prove that the defendant's conduct was intended to achieve "private gain" rather than to advance the employer's interests, and, if not, whether § 1346 is unconstitutionally vague. The second issue is whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced. In February, the US Court of Appeals for the Fifth Circuit [official website] denied [JURIST report] a petition for an en banc rehearing for Skilling after a three-judge panel upheld [opinion, PDF; JURIST report] his previous convictions and ordered him to be resentenced due to error in the lower court. Skilling's appeal was based on a previous Fifth Circuit ruling [opinion, PDF; JURIST report] that overturned convictions for other Enron executives based on "honest services theft" because they had acted in Enron's best interest by direction and did not profit from their actions. The panel ruled that Skilling's case differed from these previous rulings because "no one at Enron sanctioned Skilling's improper conduct" and because Skilling's compensation structure was aligned with Enron's earnings. In 2006, Skilling was convicted [JURIST report] of 19 counts of conspiracy, insider trading, and securities fraud and is currently serving a 24-year sentence. Skilling initially appealed [JURIST report] his conviction in September 2007 claiming prosecutorial and judicial errors.

In United States v. Marcus [docket; cert. petition, PDF], the Court will decide whether the US Court of Appeals for the Second Circuit [official website] erred in its interpretation of Rule 52(b) [text] of the Federal Rules of Criminal Procedure. The Second Circuit adopted [opinion, PDF] as the appropriate standard for plain-error review of an asserted ex post facto violation whether "there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct."

In Health Care Service Corporation v. Pollitt [docket; cert. petition, PDF], the Court will decide whether federal law [5 USC §§ 8901–14] on federal employees' health benefits preempts a state court lawsuit filed against a government contractor administering such benefits. The US Court of Appeals for the Seventh Circuit [official website] ruled [opinion, PDF] that the state law claims were not preempted.

In Holland v. Florida [docket; cert. petition, PDF], the Court will consider whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client. The US Court of Appeals for the Eleventh Circuit [official website] ruled [opinion, PDF] against extending time to file the challenge.

[JURIST] California Supreme Court [official website] Chief Justice Ronald George [official profile] on Saturday criticized [transcript] California's voter initiative process, which gives Californians the right to initiate or make new laws via the ballot box. In a speech to the American Academy of Arts & Sciences [professional association website], George said the process, which effectively allows voters to bypass the legislative process, has made the state government dysfunctional. In his comments on the initiative process, George said:

One Bar leader has observed: "California's current constitution rivals India's for being the longest and most convoluted in the world.... [W]ith the cumulative dross of past voter initiatives incorporated, [it] is a document that assures chaos." Initiatives have enshrined a myriad of provisions into California's constitutional charter, including a prohibition on the use of gill nets and a measure regulating the confinement of barnyard fowl in coops. This last constitutional amendment was enacted on the same 2008 ballot that amended the state Constitution to override the California Supreme Court's decision recognizing the right of same-sex couples to marry. Chickens gained valuable rights in California on the same day that gay men and lesbians lost them.

[JURIST] A Pakistani court on Monday dismissed charges against Islamic cleric Hafiz Muhammad Saeed [Global Jihad backgrounder], the founder and leader of Lashkar-e-Taiba (LeT)[CFR backgrounder], an Islamic group suspected of playing a key role in the 2008 Mumbai terror attacks [JURIST news archive]. A two-judge panel of the Lahore High Court dismissed [NYT report] the charges, which included using language criticizing Pakistan and seeking money for a banned group, citing a lack of evidence. The charges had been filed under the Pakistani Anti-Terrorism Act [text], and were related to speeches Saeed gave while visiting Faisalabad last month. It is claimed that he discussed [Times of India report] the significance of Jihad and asked for funding for his charity Jamaat-ud-Dawa (JuD), which is believed to be a front for the LeT. Saeed's lawyer successfully argued that JuD was not a banned group.

Saeed has been on virtual house arrest [JURIST report] since last month, after Pakistani officials ordered his movements to be restricted over security concerns. Previous restrictions had ended [JURIST report] in June, after the Lahore High Court found there was not enough evidence to link him and his group to the Mumbai attacks. Last month, Pakistan Interior Minister Rehman Malik announced that his government would indict seven suspects [JURIST report] for their role in the attacks, also requesting further evidence from India that Saeed was involved in planning the attacks. Mumbai has suffered a number of terrorist attacks allegedly linked to the LeT in recent years, leading the government to consider controversial terrorism laws and to institute special courts [JURIST reports] to try suspects.

[JURIST] The Uruguayan Parliament [official website, in Spanish] on Monday unanimously approved [press release, in Spanish] legislation that provides rules for individuals seeking to change their gender identity. The bill, which was approved by Uruguay's Senate [official website, in Spanish] on Monday, had been approved by the House of Representatives [official website, in Spanish] last month. The legislation allows [El Pais report, in Spanish] an individual to undergo a sex change at age 18, and allows the person to change his or her name and sexual identity on any official documents, including those dealing with marriage and travel. The bill must now be signed by President Tabare Vazquez [BBC profile] in order to take effect.

Uruguay has been on the forefront in dealing with issues concerning gay, lesbian, and transgender individuals in Latin America. Last month the Uruguayan Senate voted 17-6 to approve [press release, in Spanish; JURIST report] a law legalizing adoption by same sex couples. The new law will permit adoptions by couples in both marriages and civil unions after four years of cohabitation. The Uruguayan common-law relationship law [text, PDF, in Spanish] allows couples to apply to be legally recognized as a civil union after five years of living together regardless of the gender of the parties. It was enacted amid much controversy in December 2007 and went into effect in January 2008.

[JURIST] Palestinian Authority (PA) President Mahmoud Abbas [BBC profile] proposed Monday that the UN Human Rights Council (UNHRC) [official website] reconvene to vote to endorse the findings of a report [text, PDF; JURIST report] by the UN Fact Finding Mission on the Gaza Conflict [official website], which criticized Israel's role in last winter's Operation Cast Lead [Global Security backgrounder]. Abbas's statement comes less than two weeks after the UNHRC decided to postpone the vote until March 2010, due, in part, to the PA's endorsement of such a postponement. Abbas, facing criticism [JURIST report] from fellow Palestinians and human rights organizations, also announced Sunday the formation of a panel [Haaretz report] to investigate who authorized the PA to endorse delaying the vote. US and Israeli officials have said that a vote to endorse the report, which recommends sending the report to the UN General Assembly and could eventually lead to prosecution of Israeli officials before the International Criminal Court (ICC) [official website] for war crimes and crimes against humanity, would complicate peace talks between Israel and Palestinian leaders. The PA's decision not to pursue an immediate vote, however, has delayed [Al Jazeera report] the signing of a reconciliation agreement between Abbas's Fatah party and Hamas, one of Abbas's harshest critics for the PA's decision to delay the vote. Abbas suggested he would like a hearing before the UNHRC by as early as next week

On Monday, Human Rights Watch (HRW) [advocacy website] Deputy Director for the Middle East and North Africa Joe Stork urged [JURIST comment] US President Barack Obama to endorse the report. Last week, B'Tselem [advocacy website] Executive Director Jessica Montell argued [JURIST comment] that Israel should take advantage of the postponed vote to conduct its own investigation into its conduct during the conflict. Last month, an Israeli newspaper reported that Israel conditioned [JURIST report] a proposed mobile phone network in the West Bank on the PA dropping its request that the ICC investigate Israel for war crimes during Operation Cast Lead. The UN commission began its field operations in Gaza in June, entering Gaza through Egypt's Rafah crossing after Israel announced that it would not cooperate with the investigation because it doubted the mission's objectivity, and concluded hearings [JURIST reports] in July. In April, an internal Israeli military investigation found that war crimes had not been committed [JURIST report] in the offensive despite individual reports by Israeli soldiers [Haaretz report].