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Legal news from Friday, January 13, 2012




Moldova court throws out presidential election results
Michael Haggerson on January 13, 2012 2:15 PM ET

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[JURIST] The Moldovan Constitutional Court [official website, in Romanian] on Thursday threw out the results [press release, in Romanian] of the recent presidential election and canceled the run off vote planned for January 15. The court ruled that many parliamentary deputies violated the secrecy of the voting procedure [RIA Novosti report] by showing their ballots to TV cameras to show their support of parliamentary speaker and acting president Marian Lupu. Lupu fell three votes shy of the 61 votes required for election, out of 101 deputies. Moldova has been without an official president since 2009.

Moldova's main political parties, the pro-EU party and the Communist Party, have been deadlocked since Moldova's last president, Vladimir Voronin, resigned [RFE/RL report] in September 2009. Lupu has unsuccessfully run for president three times [RFE/FL report]. Voronin, leader of the opposition Communist Party, stated that he refuses to support Lupu but indicated that Moldova could end the deadlock by voting for a non-parliamentary, non-partisan candidate. In April 2009 the Moldovan Constitutional Court confirmed controversial election results [JURIST report] which gave the Communist Party 60 of the 101 parliament seats, after it had ordered a recount [JURIST report] after accusations of falsified voter registration rolls.




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Myanmar begins release of political prisoners
Jaimie Cremeans on January 13, 2012 2:14 PM ET

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[JURIST] Myanmar released over 130 political prisoners [AI report] Friday following announcement by the Burma State Media of a presidential pardon that will free a total of 651 prisoners. Among those released were Hitay Kywe and U Gambira, leaders of a 2007 revolt, Min Ko Naing, student leader of a 1988 protest, and former prime minister Khin Nyunt. In a statement [text] through his spokesperson, UN Secretary-General Ban Ki-Moon "commends the Myanmar leadership for this important development and hopes that all those released will now be able to freely contribute to the process of national reconciliation, as well as to the strengthening of democracy and the rule of law within Myanmar."

Myanmar released 200 prisoners in October after the Myanmar National Human Rights Commission was formed [JURIST reports] in September. Although happy with this start, Ban encouraged Myanmar at the time to release the rest of its political prisoners. Myanmar has been working toward mending relations with the international community since last March, when a newly elected civilian regime took over [BBC report] after 20 years of military rule. Myanmar has still not released all of the 2,202 political prisoners [JURIST report] the UN called for it to release in 2010.




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DOJ defends Obama's recess appointments
Michael Haggerson on January 13, 2012 1:54 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] has defended [text, PDF] the use of recess appointments [CRS backgrounder, PDF] by President Barack Obama [official website]. Obama used recess appointments to install Richard Cordray [WP backgrounder] as director of the Consumer Finance Protection Bureau [official website] and appoint three other individuals to the National Labor Relations Board [official website]. The Recess Appointment Clause [Constitution, Article II, § 2 text] gives the president the "power to fill up all vacancies that may happen during the recess of the Senate." The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Since the sessions were so short, the memo concludes that "the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments."

Obama has been criticized [Heritage Foundation report] by the right for the recess appointments as an unconstitutional extension of presidential power. Chuck Grassley (R-IA) [official website] stated that Obama's use of recess appointments "ignore[s] more than 90 years of legal precedent" [press release]. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments. In 2005 then-president George W. Bush [JURIST news archive] used recess appointments to name Alice Fisher to the top post in the DOJ's criminal division, Peter Flory as an Assistant Secretary of Defense and John Bolton [JURIST reports] as US Ambassador to the UN. The US Supreme Court [official website] declined to hear [JURIST report] a case challenging President Bush's use of recess appointments.




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Poland court issues suspended sentence to communist-era interior minister
Matthew Pomy on January 13, 2012 11:25 AM ET

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[JURIST] The Warsaw Provincial Court handed down a two-year suspended sentence to former interior minister Gen. Czeslaw Kiszczak Thursday. The court found Kiszczak guilty in absentia in relation to the implementation of martial law [Polish government backgrounder] in 1981. Martial law was declared on December 13, 1981, by Gen. Wojciech Jaruzelski [personal website, in Polish], who was declared too sick to stand trial, in an attempt to squelch the Solidarity movement [official website], an opposition group. This caused thousands of people to be illegally detained as well about 100 people to be killed. Kiszczak's sentence will be suspended for five years.

This trial has been going on for more than three years [JURIST report] and involves many of the Polish leaders in 1981, including Gen. Wojciech Jaruzelski and seven other Communist-era officials. Poland's Constitutional Tribunal [official website] ruled [JURIST report] in March that the 1981 declaration of martial law violated the country's then-governing constitution [text]. The trial hit several snags between 2008 and 2011, with both the death of the presiding judge and Jaruzelski's own failing health having delayed the proceedings for several years.




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Canada: same-sex marriages of non-residents not valid
Sung Un Kim on January 13, 2012 11:14 AM ET

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[JURIST] The Canadian government has given notice that the same-sex marriages [JURIST news archive] performed in Canada between non-Canadian couples are invalid. This means that couples who came to Canada since 2004 to get married are not legally wed. The reversal is policy came to light when a lesbian couple who were wed in Toronto filed for divorce. They were told that they are not able to divorce because they were never legally married. The Canadian Department of Justice [official website] stated that such marriages are invalid and cannot be dissolved unless the couple's home country acknowledges same-sex marriage. After creating confusion based on this statement, Justice Minister Rob Nicholson gave an additional statement [news release] that he "will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada." The government's stand has been criticized by many, including former prime minister Paul Martin [advocacy website] who said, "[w]e validated those marriages and you cannot retroactively invalidate marriages that you validated."

Although same-sex marriage is recognized across Canada, various provinces have interpreted rights in different ways. In October, a judge for the Queen's Court Bench of Alberta [official website] granted custody [JURIST report] of a child to a non-biological father who was a ex-partner of the biological father. In January, the Saskatchewan Court of Appeals [official website] ruled [JURIST report] that refusal by provincial marriage commissioners to marry same-sex couples is unconstitutional and thereby invalidated a proposed amendment to Saskatchewan's Marriage act of 1995 that would have allowed the commissioners to refuse to marry same-sex couples based on their religious beliefs.




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Israel Supreme Court upholds citizenship law
Sung Un Kim on January 13, 2012 10:27 AM ET

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[JURIST] The Israeli Supreme Court [official website] on Wednesday upheld [judgment, in Hebrew] a law that prevents Palestinians who marry Israelis from obtaining Israeli citizenship. The court upheld the Citizenship and Entry into Israel Law [text, PDF] in a 6-5 ruling, approving the original version [text, PDF] from 2003 along with its amended versions from 2005 [text, PDF] and 2007 [text, PDF, in Hebrew]. With its ruling the court again rejected the petition [text, PDF in Hebrew] filed by Adalah [advocacy website], a civil rights group in Israel, arguing that the law is unconstitutional. The law denies citizenship and right to reside in Israel to Palestinian citizens from the Occupied Palestinian Territory (OPT) [OHCHR materials] or from "enemy states" defined by the law including Syria, Lebanon, Iran and Iraq. As a result, it restricts Palestinian Arabs, citizens of Israel, from living with their spouse from these regions in Israel. The 2005 amendment allowed women over 25 and men over 35 to apply for temporary permits to live in Israel. In 2006, Adalah had filed a petition against the original version of the law which was rejected [judgment, PDF] by the same court stating that the constitutionality issue does not cover citizens of other countries, especially countries which are considered enemies to Israel.

Israeli government has been active in passing stricter laws this year. The Israeli Knesset [official website] passed [JURIST report] on Tuesday a bill that increases the penalties on illegal migrants in Israel and Israelis helping them. Penalties may include arrest and detainment in prison for indefinite time period without trial. The government also approved a bill [JURIST report] that bans the use of Nazi symbolism.




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UN rights chief urges Nigeria leaders to halt sectarian violence
Brandon Gatto on January 13, 2012 8:30 AM ET

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[JURIST] The UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged Nigerian leaders from all sectors of society to make a concerted effort to stop the recent violence [press release] against civilians unleashed by the Islamic militant group known as Boko Haram [BBC backgrounder]. Only a day after the group's leader promised further attacks against Nigerian citizens, Pillay called specifically on the country's religious leaders to come together and "speak with one voice" in order to prevent future violence:
One day it is a church congregation that is being targeted, the next day it is a mosque, and the day after that it is some secular target. The religious tolerance that has been a central tenet of Nigeria's Federation is being threatened, and I urge all Nigeria's leaders to avoid falling into the trap of calling for, or sanctioning, retaliation or making other provocative statements. Everybody will be the loser if Boko Haram succeeds in its aim and efforts to sow discord between Muslim and Christian, or pit Northerner against Southerner. The fact that people are already leaving some areas where they are in a minority, out of fear of attacks by the majority, shows just how dangerous this is becoming for the country as a whole.
Emphasizing the importance of human rights, Pillay further stated that Boko Haram's attacks against civilians on grounds of religion or ethnicity could be crimes against humanity, and reminded Nigerian authorities to observe human rights and transparency during the course of their investigations. Said Pillay, "There must be no impunity for any acts of violence, including those committed in retaliation for earlier attacks."

Boko Haram has been fighting to overthrow the Nigerian government and create an Islamic state, and has warned Christians in the mostly Muslim northern regions to leave the area. The group has been blamed by Nigerian authorities for hundreds of deaths in bombings and shooting over the last 18 months, and has publicly claimed responsibility for several of the attacks, including church bombings [AP report] on December 25 that killed approximately 40 people. Although Nigerian president Goodluck Jonathan [BBC profile] quickly promised to bring the militants to justice, he has since declared a state of emergency [WP report] in several locations. The Christmas day bombings were internationally condemned, including being labeled as "senseless violence" by the White House [AP report] and "acts of "blind hatred" by the Vatican [AP report]. Additionally, the UN Office of the High Commissioner for Human Rights [official website] has previously expressed concern [JURIST report] over acts of ethnic violence by Boko Haram. Specifically, the Office called the group's August bombing of a UN building in Nigeria [VO report] "cowardly." At least 18 people were killed in the attack.




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UK intelligence agents will not face trial for alleged torture involvement
Rebecca DiLeonardo on January 13, 2012 7:53 AM ET

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[JURIST] The Director of Public Prosecutions (DPP) and the Metropolitan Police Service (MPS) [official websites] in the UK said [joint statement] Thursday that there was not enough evidence to try British intelligence agents for alleged complicity in the torture of two detainees. Both cases involve individuals detained by the US with the knowledge of British agents. Neither of the detainees has alleged that British agents were directly involved in the mistreatment. The statement reported that there was not sufficient evidence to legally establish complicity to torture. Binyam Mohamed [BBC profile; JURIST news archive], a British citizen and one of the alleged victims in this case, claimed in 2009 that the British government was aware of and involved in his mistreatment [JURIST report] by US officials. The DPP and MPS stressed that their decision applies only to the two cases at hand, and other allegations of complicity by British agents in the torture of detainees will continue to be investigated:
[These cases] involve specific allegations about specific conduct. The question that has therefore been addressed in these cases is whether there is sufficient evidence to provide a realistic prospect of a criminal conviction against an identified individual in relation to these specific matters. The investigations have not examined wider allegations of ill-treatment, which, it is anticipated, will be examined by the Detainee Inquiry, chaired by Sir Peter Gibson. Nor have the investigations covered other specific allegations of ill-treatment beyond those raised in [these cases]. Should further evidence in relation to the matters raised...become available as a result of the Detainee Inquiry, the MPS would consider re-opening these operations.
Last week, the MPS decided to immediately begin the investigation of two similar cases in Libya, and will investigate other allegations "in due course."

Last August, 10 human rights groups said they would boycott the UK government inquiry [JURIST report] into allegations of torture complicity after receiving information on the protocol and transparency of the inquiry. They argued the inquiry would not comply with the European Convention on Human Rights [text, PDF]. In March former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] said in a BBC documentary that the UK gave "tacit approval" for torture [JURIST report] of terror suspects. In July 2010 UK Prime Minister David Cameron [official website] said that he will create a panel to investigate claims [JURIST report] that British government agents were complicit in the torture of terrorism suspects held overseas, after Human Rights Watch [advocacy website] urged [JURIST report] the UK government to investigate torture allegations and reaffirm its support for human rights.




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