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Legal news from Wednesday, February 8, 2012




Canada security service authorized to use information obtained through torture
Rebecca DiLeonardo on February 8, 2012 1:21 PM ET

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[JURIST] The Canadian Security Intelligence Service (CSIS) [official website] is authorized to use and pass on information obtained through torture when Canadian lives are at stake, Public Safety Minister Vic Toews [official website] said Tuesday. The statements come in response to a controversial 2010 directive authorizing the use of such information that was obtained earlier this week [Reuters report] by a Canadian news agency through freedom of information laws. The directive allows the CSIS to use information which may have been obtained through torture under extreme circumstances. This order is an expansion of a 2009 ministerial order, which expressly forbids the use of information obtained through torture. The latest directive carves out a narrow exception to the 2009 order, which Toews argued was necessary to protect the lives of Canadian citizens. The directive was criticized [BBC report] by representatives from the Liberal Party and the New Democratic Party [official websites], who argued it may not be legal.

Torture has been at the center of controversy in Canada recently. In January, the Canadian government deported Rwandan war crimes suspect Leon Mugesera [JURIST report], despite claims that he would face torture and possible death [Globe and Mail report] if removed to Rwanda. The Quebec Superior Court [official website] determined that they did not have jurisdiction to rule on immigration cases. In November 2009, a former senior Canadian diplomat, during testimony before the House of Commons Special Committee on the Canadian Mission in Afghanistan [official website], alleged that the Canadian military was complicit in the torture of Afghans [JURIST report] by their own government. Amnesty International Canada and the British Columbia Civil Liberties Association [advocacy websites] filed complaints [JURIST report] in 2007 against the Canadian Forces Provost Marshal [official website], alleging complicity in torture by Canadian personnel serving in Afghanistan. Amnesty accused Canada of violating the Charter of Rights and Freedoms [text] by turning Afghan detainees over to Afghan authorities without any protection against later cruel and unusual punishment.




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UN rights chief calls for protection of Syria civilians
Max Slater on February 8, 2012 1:13 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Wednesday urged the international community [press release] to take action to protect Syrian civilians. Pillay argued that the failure of the UN Security Council [official website] to agree on collective action against Syria has encouraged the Syrian government to attack and kill civilians in order to quash dissent. Pillay declared that the Syrian government's violence against its own people constitutes a "serious international crime" and called on world leaders to honor a 2005 agreement to protect basic human rights:
At their 2005 Summit, World leaders unanimously agreed that each individual State has the responsibility to protect its population from crimes against humanity and other international crimes ... They also agreed that when a State is manifestly failing to protect its population from serious international crimes, the international community as a whole has the responsibility to step in by taking protective action in a collective, timely and decisive manner ... The virtual carte blanche now granted to the Syrian Government betrays the spirit and the word of this unanimous decision. It is depriving the population of the protection they so urgently need.
The statement comes in response to the recent increase in attacks on civilians by the Syrian army, especially in the city of Homs.

Human rights groups have sharply criticized the Syrian government for using violence against its own people. Earlier this week, the UN Children's Fund (UNICEF) [official website] claimed that eleven months of violence in Syria has led to the deaths of hundreds of children [JURIST report]. Last week, Human Rights Watch (HRW) [advocacy website] accused the Syrian army of torturing children [JURIST report]. In January, UN Secretary-General Ban Ki-Moon [official profile] demanded [JURIST report] that Syrian President Bashar al-Assad [BBC backgrounder] end violence against Syrian civilians. In December, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged the UN Security Council [JURIST report] to refer Syrian government officials to the International Criminal Court (ICC) [official website]. In November, HRW declared that Syrian forces were committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters. JURIST contributing editor Chibli Mallat argues that a UN Security Council resolution would not have affected meaningful change [JURIST op-ed].




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Uganda reintroduces legislation criminalizing homosexuality
Rebecca DiLeonardo on February 8, 2012 12:15 PM ET

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[JURIST] The Parliament of Uganda [official website] on Tuesday reintroduced legislation that would criminalize certain homosexual activities. Amnesty International (AI) [advocacy website] has criticized the bill [press release] as "a grave assault on human rights." The proposed legislation is a new version of another bill [Reuters report] first introduced in October 2009. The original bill [text, PDF] contained provisions requiring the death penalty for "repeat offenders." It is not clear whether the new bill has removed some of these provisions, but AI Deputy Africa Programme Director Michelle Kagari urged that the bill is dangerous either way:
The bill introduces draconian provisions on top of Uganda's existing prohibition on consensual same-sex relations, which already violates international norms. It aims to criminalize the "promotion" of homosexuality, compels HIV testing in some circumstances, and imposes life sentences for entering into a same-sex marriage. It would also be an offence for a person who is aware of any violations of the bill's wide-ranging provisions not to report them to the authorities within 24 hours...This deplorable bill would not only violate the rights of Ugandans to life, to non-discrimination, to equality before the law, and to privacy, but would sanction hatred, violence and the persecution of a group of people based on whom they love alone.
AI expressed concern that the revived bill may not need committee review before being passed into law, which could expedite its passage. The original bill was set aside last May, after receiving widespread criticism from the international community.

Uganda faces an ongoing struggle with anti-gay sentiment in the country. In November the Ugandan High Court [official website] sentenced a man to 30 years in prison [JURIST report] for beating to death prominent gay rights activist David Kato. In January 2011 the Ugandan High Court issued a permanent injunction [JURIST report] and awarded damages to three plaintiffs who were among 100 people alleged to be homosexuals by the Ugandan tabloid newspaper, The Rolling Stone. In January 2010 UN High Commissioner for Human Rights Navi Pillay [official profile] criticized the original anti-gay legislation [JURIST report], saying that it could harm Uganda's reputation internationally. In February 2010, US President Barack Obama and Secretary of State Hillary Clinton [official website] publicly denounced the proposed legislation [JURIST report]. Uganda currently criminalizes homosexual behavior [BBC report] with up to 14 years in prison.




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Pakistan PM appeals high court summons in contempt case
Jennie Ryan on February 8, 2012 11:34 AM ET

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[JURIST] Pakistani Prime Minister Yousuf Raza Gilani [BBC profile; JURIST news archive] on Wednesday appealed a summons issued by the Supreme Court of Pakistan [official website] demanding he appear [JURIST report] in a hearing against him for contempt. The contempt charge stems from Gilani's refusal to purse corruption charges against Pakistan President Asif Ali Zardari [profile]. Gilani has maintained that he would not pursue charges against President Zardari because the president has immunity as the head of state [Al Jazeera report]. The conflict between the prime minister and the court stems from an order which struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2009, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. If he is convicted of contempt Gilani could lose his public office and be sent to prison for up to six months. This is only the second time that contempt charges have been filed against a sitting prime minister in Pakistan's history.

These proceedings reflect an ongoing struggle between the government and the courts in Pakistan. In December, the Supreme Court formed a judicial committee to investigate a secret memo [JURIST report] sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Zardari and former Pakistan ambassador to the US Husain Haqqani have been accused of writing or having knowledge of the memo, and both have denied these allegations. In October 2011, the Supreme Court issued a judgment urging political parties to stop financing criminal groups [JURIST report] responsible for increased violence in the city of Karachi. The decision stated that militant groups have gained strength because of support from local political groups and order the Pakistani government to help address the corruption. The court struck down the NRO in 2009, which was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007.




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UN rights expert urges Panama to end clashes with indigenous peoples
Katherine Getty on February 8, 2012 11:16 AM ET

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[JURIST] The UN Special Rapporteur on the rights of indigenous peoples James Anaya [official website] urged the Panamanian government on Tuesday to open a dialogue [press release, in Spanish] with the country's indigenous peoples in an effort to alleviate tension and reduce violence. The request comes after one indigenous group occupied portions of the Pan-American Highway in protest of mining and drilling activities taking place on their lands. As a result of these protests and clashes with the police, one person was killed and many others were detained or injured. Anaya called upon the government to insure that people involved in such protests are protected and asked for an investigation into the death of the protester. Other indigenous groups have announced plans to protest in a show of solidarity and to display their displeasure at the lack of legalization of their lands.

The rights of indigenous peoples have become a pressing issue in recent years. In December 2010, US President Barack Obama announced that the US will support [JURIST report] the UN Declaration on the Rights of Indigenous People [text]. The declaration, adopted [JURIST report] in 2007, is a non-binding treaty outlining the global human rights of approximately 370 million indigenous people and banning discrimination against them. The US was one of four member states that originally opposed adopting the treaty, citing concerns that its text conflicted with their countries' own laws, among other contentions. The US is the last member state of those in opposition to sign the declaration. Earlier in 2010, Canada endorsed [JURIST report] the declaration citing encouragement from community leaders and other countries' experiences in reversing its position on the document. In August 2010, UN Secretary-General Ban Ki-moon called on governments to work to improve the human rights conditions [JURIST report] of the world's indigenous peoples.




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Vatican prosecutor says bishops must uphold laws to protect victims of sexual abuse
Jennie Ryan on February 8, 2012 11:08 AM ET

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[JURIST] The Vatican [official website] sex crimes prosecutor warned bishops on Wednesday that they must follow rules in place for protecting victims of sexual abuse in the church or they risk being sanctioned. Monsignor Charles Scicluna, the church appointed prosecutor in the ongoing clergy sex abuse [JURIST news archive] scandals, issued his warning at a symposium of bishops, the purpose of which was to begin formulating guidelines to keep children safe. In February 2010, the Vatican unveiled church procedures [JURIST report] for dealing with sexual abuse cases, titled the "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations", which set up a multi-tiered system of enforcement, including local bishops and the Pope himself. Church law provides for sanctioning those who cover-up or ignore abuse as negligent or malicious in performing their job duties.

Clergy abuse has become a contentious legal issue in recent years, as the Vatican has come under intense scrutiny related to allegations of sexual abuse of children by local church officials. In November a UK court ruled [JURIST report] that Catholic priests qualify as employees, meaning that the Catholic church could be held liable for sexual abuse by clergy members. In September Amnesty International [advocacy website] claimed [JURIST report] that clergy members' abuse of Irish children amounted to torture. The report, titled In Plain Sight [text, PDF] called special attention to "people in positions of power" who "ignore their responsibility to act." Also in September, the Center for Constitutional Rights (CCR) [advocacy website] filed a complaint [JURIST report] with the International Criminal Court (ICC) [official website] against Vatican officials, including Pope Benedict XVI, for widespread sexual abuse and subsequent concealment of thousands of incidents. Since 2007, the Church has settled over 500 cases [JURIST news archive] of clergy abuse in the U.S. alone, totaling more than $900 million.




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South Carolina sues federal government over blocked voter ID law
Katherine Getty on February 8, 2012 10:17 AM ET

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[JURIST] South Carolina Attorney General Alan Wilson [official website] filed suit [complaint, PDF] Tuesday against the US Department of Justice (DOJ) [official website] over its ruling that barred South Carolina from enforcing its voter identification law [R54 materials]. The DOJ rejected the law [JURIST report] in December on the grounds that it was discriminatory. It has authority to do so under the Voting Rights Act [Cornell LII backgrounder], which allows it to screen new voter laws in states with a history of discriminatory voter practices. In the filing, the attorney general alleges that the photo identification requirement will not disenfranchise voters.
South Carolina's photo identification law only places upon the voter an affirmative responsibility to obtain an approved photo identification card and bring it to the polls. ... Because these photo identification requirements are not a bar to voting but a temporary inconvenience no greater than the inconvenience inherent in voting itself, they do not deny or abridge the right to vote on account of race, color, or membership in a language minority.
The complaint cited a 2008 Supreme Court decision which upheld a similar Indiana law [JURIST report]. The American Civil Liberties Union [advocacy website] has praised [press release] the DOJ for its actions in blocking the law. The advocacy group alleges that the new law would have prevented thousands of eligible voters from exercising their right.

There are now 30 US states that require voters to present some form of ID at the polls, including 14 states that require photo ID, but the issue remains controversial. In Wisconsin, several civil rights groups filed a lawsuit [JURIST report] in December challenging the new voter identification law [2011 Wisconsin Act 23]. In June 2011, Missouri Governor Jay Nixon [official website] vetoed [JURIST report] a law requiring persons to present photo identification at voting booth. In March 2011, the Georgia Supreme Court [official website] upheld [JURIST report] a law requiring voters to present one of six government-issued photo identifications in order to vote. In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of Arizona law requiring proof of citizenship for voter registration in October 2010. In October 2006, the Supreme Court ruled that Arizona could enforce its voter ID law [JURIST report], which requires voters to show government-issued voter ID cards [JURIST news archive] at the polls.




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Berlusconi facing new trial on wiretap charges
Katherine Getty on February 8, 2012 9:46 AM ET

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[JURIST] A judge in Milan ruled Tuesday that former Italian prime minister Silvio Berlusconi [BBC profile; JURIST news archives] will stand trial for publicly releasing a secret wiretap in 2005. The prosecution alleges that Berlusconi published the transcript of a tapped phone conversation [BBC report] in Il Giornale [media website, in Italian], a national newspaper owned by his brother. The conversation in question took place between Berlusconi's biggest political rival at the time, Piero Fassino [official website, in Italian], and the head of Unipol, an insurance company that has since been restructured. The publication broke secrecy rules, as the conversation should have remained private due to the ongoing investigation into possible inappropriate interference in Unipol's attempt to take over Italian banking firm Banca Nazionale del Lavoro (BNL) [official website, in Italian]. The publication was widely viewed as an attempt by Berlusconi to damage Fassino and other center-left opponents. During the hearing Tuesday Berlusconi told the court that he had not listened to the tape at the time, nor had he ordered its release. This will be Berlusconi's fourth pending trial, as he is already facing charges of embezzlement, tax fraud and paying for sex with an underage prostitute [JURIST reports]. The wiretap trial is set to begin March 15.

Berlusconi, who resigned as prime minister in November, has been a defendant in nearly 50 cases. In July an Italian appeals court ordered Fininvest [corporate website], a holding company owned by Berlusconi, to pay €560 million in damages and fees to Compagnie Industriali Riunite (CIR) Group [corporate website]. The complaint stemmed from Fininvest's 1991 acquisition of Italian publishing company Mondadori [corporate website], during which Fininvest bribed a judge in exchange for favorable decisions. In April neither Berlusconi nor the alleged prostitute attended the beginning of the prostitution trial [JURIST report], and the court adjourned after only 10 minutes. Both parties deny having a sexual relationship and Berlusconi has denied any wrongdoing, calling the accusations groundless. In January 2011 the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a immunity law [materials, in Italian] backed by Berlusconi that would have granted the premier and other public officials temporary amnesty from any charges while holding office.




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