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Legal news from Monday, August 13, 2012




UN envoy: freedom of press must be protected in Somalia
Max Slater on August 13, 2012 3:25 PM ET

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[JURIST] The UN envoy for Somalia on Monday urged [statement, PDF] the east African nation to end a "culture of impunity" that threatens press freedom in the wake of the killings of two journalists. Augustine Mahiga [official profile], the Special Representative of the Secretary-General for Somalia, declared that freedom of the press is crucial for Somalia as it struggles to emerge from two decades without a functioning government. One of the two journalists, Yusuf Ali Osman, a media relations specialist, was shot on Sunday as he walked into his office [UN press release]. The other journalist, Mohamed Ali, a reporter for online publications, was reportedly killed by a stray bullet while watching a soccer match. Mahiga condemned the killings of Osman and Ali and called for an end to violence against the media:
This culture of impunity must end. We must not allow the fundamental freedoms that a free press represents to be compromised by those willing to use violence to serve their personal agendas. This is a decisive time in the political process and the work of media needs to be protected so that the Somali people are fully informed.
In his statement, Mahiga also called on the UN Political Office for Somalia (UNPOS) [official website] to strengthen its investigative policing.

The international community has urged Somalia to ensure that the country's transition to the rule of law is proceeding peacefully. Last week the UN welcomed the signing of Somalia's National Security and Stabilization Plan [JURIST report]. Two weeks ago the Somalia's constituent assembly approved a draft of the new constitution [JURIST report] with over 96 percent of the 645 ballots cast in the special 825-member assembly after eight days of debate. The new constitution also has to be ratified by a national referendum. In June President Sheikh Sharif Sheikh Ahmed [BBC profile] and the Transitional Federal Government (TFG) signed [JURIST report] a decree establishing the legal framework by adopting a new constitution convened by the National Constituent Assembly (NCA). During the same month UN Secretary-General Ban Ki-moon [official profile] told [JURIST report] officials at the Istanbul II Conference on Somalia [materials] that Somalia must take all efforts to smoothly transit into a permanent government with a new constitution. In May Somalia was called on to address the issue of legitimate judicial systems [JURIST report] in Mogadishu and South Central Somalia after the UN Independent Expert on the situation of human rights in Somalia found that there were significant difficulties in harmonizing Sharia law with modern international and human rights law.




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UN rights expert concerned about increasing violence in Syria
Rebecca DiLeonardo on August 13, 2012 1:53 PM ET

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[JURIST] Head of the UN Supervision Mission in Syria (UNSMIS) [official website] on Monday expressed concern [statement, PDF; press release] about the growing number of civilian casualties in violent clashes between government forces and armed opposition groups. UN Military Adviser, Lieutenant General Babacar Gaye, told reporters he was disappointed with conduct on both sides of the conflict, criticizing the government for using excessive heavy weapons, and opposition groups for targeting heavily-populated areas. He urged both sides of the conflict to obey international law and consider negotiating an end to the conflict:
It is clear that violence is increasing in many parts of Syria. The indiscriminate use of heavy weapons by the Government and targeted attacks by the Opposition in urban centres are inflicting a heavy toll on innocent civilians. ... I deeply regret that none of the Parties has prioritized the needs of civilians. The fighting continues and I continue to remind the Parties of their obligations to respect international humanitarian law and to protect civilians. The conflict has gone on too long and far too many people are suffering. ... We will continue to the last minute of our mandate to urge the Parties to move from confrontation to dialogue. I call on the Parties to cease military operations and come to the table.
The UN mandate of the UNSMIS which was extended for 30 days [JURIST report] in July, is scheduled to expire in six days.

The UN Security Council extended the mission in Syria following a call [JURIST report] by Amnesty International and three other rights groups last month. The groups had insisted that human rights violations in Syria are on the rise and urged the UN to continue pressuring the Syrian government to end the violence. In July UN Chief Military Observer in Syria Major-General Robert Mood stated that Syrian authorities were committed to implementing the six-point peace agreement [JURIST reports] that was reached a week earlier. In June a UN commission stated that Syrian forces "may have been responsible" [JURIST report] for the killing of more than 100 civilians in Al-Houla in May. Syrian President Bashar al-Assad [JURIST news archive] had denied [JURIST report] the allegations stating that "not even monsters" would carry out the attacks.




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Supreme court agrees to hear foreign custody dispute
Rebecca DiLeonardo on August 13, 2012 1:27 PM ET

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[JURIST] The US Supreme Court [official website] on Monday agreed to hear [order list, PDF] a case dealing with a parent's ability to sue for custody in the US when a court has determined that the child's normal residence is in another country, and the child has already left the US. In Chafin v. Chafin [docket], US Army sergeant Jeffrey Lee Chafin and his Scottish wife, Lynn Hales Chafin, disputed custody [SCOTUSblog report] of their five-year-old child. Mrs. Chafin obtained a court order declaring Scotland to be the child's normal residence under the Hague Convention on the Civil Aspects of International Child Abduction [text] and has since left the country with the child. Sgt. Chafin appealed the decision to the US Court of Appeals for the Eleventh Circuit [official website], but the court declined to hear the case, saying that once the child left the country, the case was resolved. The Supreme Court will hear Sgt. Chafin's appeal of the court finding that the child's normal residence is in Scotland.

The Hague Convention, which currently has 84 signatories [text], seeks to eliminate difficulties that arise when a court in one country does not recognize custody decisions [DOS backgrounder] of a foreign court. Japan became the most recent country to sign the treaty [JURIST report] in 2011 during the G8 Summit, but it has not yet ratified. Russia remains the only G8 nation to not sign the treaty. China is also not a signatory.




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Kuwait opposition leaders criticize government challenge to election law
Rebecca DiLeonardo on August 13, 2012 12:38 PM ET

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[JURIST] Leaders of political opposition in Kuwait on Sunday criticized the government's efforts to change the country's election law through the Constitutional Court, saying the government is attempting to seize power through the court in violation of the constitution. The government announced last week that they had asked the national Constitutional Court to review the legality of the country's election law. Information Minister Sheikh Mohammad Abdullah Al-Sabah [official website, in Arabic] stated that the decision of referral was made after all constitutional experts agreed that the 2006 election law violates the country's constitution. Opposition leaders told reporters on Sunday that they would fight to reinstate a democratically elected parliament [Reuters report].

In June the Constitutional Court ruled that this year's election for the new parliament was unconstitutional [JURIST report] and the previous parliament of 2009 should be reinstated, thereby removing the opposition-controlled parliament, and restoring a more government-friendly body. Earlier that month, Kuwait's ruler Sheikh Sabah al-Ahmad al-Sabah [BBC profile; JURIST news archive] suspended [NYT report] the parliament for a month in response to escalating tensions between the more liberal, western-backed lawmakers and the Islamist-led lawmakers. The tension grew when two cabinet ministers resigned under the pressure of the Islamist-led lawmakers who tried to gain more seats.




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Bahrain court jails man for insulting wife of Prophet Muhammad
Rebecca DiLeonardo on August 13, 2012 11:47 AM ET

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[JURIST] A Bahrain court has sentenced a man to two years of imprisonment for making defamatory comments about a wife of the Prophet Muhammad [BBC backgrounder]. The 19-year-old man allegedly posted offensive comments [AFP report] on a website that insulted Muhammad's wife Aisha. The Bahrain Information Affairs Authority (IAA) [official website] announced on Sunday that the man had been found guilty of defamation of Aisha, saying his comments were "too dirty and degrading to mention." The man was arrested after a police investigation into the comments. Aisha is revered by the Sunni Muslims [BBC backgrounder], who retain control of the Bahraini government despite the fact that the majority of the population are Shia Muslims.

In June a Kuwait court sentenced a man to 10 years of imprisonment for posting insulting and defaming comments [JURIST report] about the Prophet Muhammad and the Sunni Muslim rulers of Saudi Arabia and Bahrain on Twitter. Judge Hisham Abdullah found 26-year-old Hamad al-Naqi, a Shia Muslim, guilty on all charges of endangering state security and ordered the maximum sentence for him. A similar case arose last year when two men were detained for posting messages on the Internet criticizing Middle East rulers on social media websites Twitter and YouTube. Human Rights Watch called on the government to immediately release them [JURIST report], calling the detention merely an "illegal effort to punish him and intimidate others who might dare be critical about Kuwait's fellow Gulf monarchs."




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UN chief: sex discrimination impeding efforts to end world poverty
Max Slater on August 13, 2012 11:00 AM ET

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[JURIST] Ending discrimination against women [speech] is necessary to fix the problem of global poverty, UN Secretary-General Ban Ki-moon [official profile] said Monday. Speaking before the World Congress of Global Partnership for Young Women [official website] in Seoul, South Korea, Ban declared that while women around the world have made tremendous advances in fields such as business, law and government, laws and policies that discriminate against women hamper not only women's rights but prevent nations from climbing out of poverty:
[A]lthough there has been important progress, women still do not have a strong enough voice in decision-making. Women make up just a fraction of all chief executives of the world's biggest companies. Fewer than one in ten presidents or prime ministers are women. And less than one in five parliamentarians are women. This world statistic is reflected here in the Republic of Korea. The lack of women's representation—of women's empowerment—affects individual women's rights—and it holds back whole countries. One recent UN study showed that limits on women's economic participation cost the Asia-Pacific region nearly $90 billion each year in lost productivity.
In his speech, Ban also stated that the empowerment of women is also crucial to upholding the universal values of peace, opportunity and human dignity.

Women's rights remain a controversial issue around the world. In July the UN Special Rapporteur on violence against women Rashida Manjoo [official profile] urged the governments of Pakistan and Afghanistan to end violence against women [JURIST report] and investigate the recent killings of two women. Earlier in July the Guttmacher Institute [official website] reproductive rights [JURIST report]. Earlier that week Amnesty International [advocacy website] released a report indicating that Mexico is failing to protect women's rights [JURIST report]. Earlier in July Women Under Siege [advocacy website] reported finding 81 instances of sexual assault and rape [JURIST report] by military forces in Syria since anti-government demonstrations began in March 2011. In June Human Rights Watch [advocacy website] reported [JURIST report] that Syrian forces are sexually abusing men, women and children who have been detained during the ongoing conflict.




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Canada chief justice: public access to courts must be increased
Max Slater on August 13, 2012 10:57 AM ET

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[JURIST] The Chief Justice of the Supreme Court of Canada [official website] warned Saturday that the public would lose faith in the Canadian legal system unless access to the courts is made available for everyone. Chief Justice Beverley McLachlin [official profile], speaking at a news conference following an address to the Canadian Bar Association [official website], said that the high cost of litigation and inadequate staffing of the courts are preventing many people [CBC report] with limited financial means from being able to have their legal needs met. McLachlin stated that although there is no quick fix to correct the problem, lawyers, judges and the government should work together to ensure that the legal system works for the public good. McLachlin also emphasized that access to justice is fundamental to the rule of law, and unless public access to legal services is improved, people will lose respect for the courts. In her remarks, McLachlin noted that the issue is under review by the Action Committee on Access to Justice [backgrounder, PDF].

Access to legal services, particularly for low-income individuals and families, has been a contentious issue worldwide. Last week the Supreme Court of India ruled [JURIST report] that defendants are entitled to legal representation at all courts, not just at the trial level. In March JURIST guest columnist Robert Westley argued [JURIST op-ed] that a decision by the US Court of Appeals for the Ninth Circuit [official website] upholding the Washington state's cut to a food aid program for legal immigrants is a prime example of how constitutional formalism justifies leaving some members of the political community without the basic necessities. In February 2011 the Supreme Court of India held [JURIST report] that criminal defendants have a right to counsel under the Indian Constitution, regardless of their ability to pay.




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Karadzic asks ICTY for new war crimes trial
Rebecca DiLeonardo on August 13, 2012 10:07 AM ET

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[JURIST] Former Bosnian Serb leader Radovan Karadzic [ICTY case summary, PDF; JURIST news archive] on Monday asked the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] for a new trial, accusing prosecutors of delaying the disclosure of crucial information. Karadzic is currently representing himself at trial. In his motion, he said that the prosecution failed to disclose crucial information [AFP report] until after the start of the trial. Karadzic currently faces 10 war crimes charges [indictment, PDF], including counts of genocide and murder, for crimes he allegedly committed during the 1992-1995 war in Bosnia and Herzegovina (BiH). He has been accused of participating in the planning of the 1995 Srebrenica Massacre [BBC backgrounder; JURIST news archive], which resulted in the death of more than 8,000 Muslim men. Prosecutors in his case are also seeking to reinstate an additional genocide charge against Karadzic that was dismissed [JURIST reports] in June for lack of evidence.

In early June the judges from the ICTY went on a five-day visit [JURIST report] to locations relevant to the indictment of Karadzic. They visited BiH and Srebrenica and surrounding areas. This visit came just months after the ICTY sentenced [JURIST report] former president of the municipality of Sokolac, BiH, Milan Tupajic to two months in prison for refusing to testify against Karadzic. In February former Commander of the Bosnian Serb Army Ratko Mladic [BBC profile; JURIST news archive] accused [JURIST report] the ICTY of being biased. In January the ICTY accepted a plea deal [JURIST report], in the trial of the former case manager for Bosnian war criminal Milan Lukic, convicting her of five counts of contempt for procuring false witness statements. In December the ICTY convicted [JURIST report] former Yugoslav intelligence officer Dragomir Pecanac of contempt for failing to testify before the tribunal.




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Egypt president grants self total executive and legislative powers
Max Slater on August 13, 2012 9:37 AM ET

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[JURIST] Egyptian President Mohammed Morsi [BBC profile; JURIST news archive] issued a declaration [text] on Sunday that gives the president complete legislative and executive power, abolishing a June declaration that reserved power for the military [JURIST report]. The declaration grants Morsi the power to establish public policy and sign international treaties [El Ahram report]. The declaration also allows Morsi to create a new legislature to draft a constitution if the current legislature fails to do so:
If the Constituent Assembly [tasked with drafting a new constitution] is prevented from doing its duties, the president can draw up a new assembly representing the full spectrum of Egyptian society mandated with drafting a new national charter within three months of the assembly's formation. The new draft constitution is to be put before a nationwide referendum within 30 days after it is written. Parliamentary elections are to be held within two months of the public's approval of the draft constitution.
In addition to granting himself more extensive powers, Morsi also made several other sweeping decisions on Sunday, including retiring several leaders of the Egyptian military and appointing a new vice president [El Ahram report].

Last month Morsi ordered the release [JURIST report] of 572 people convicted in tribunals by the Egyptian military. Earlier in July, a few days after he was sworn in, Morsi issued a decree [JURIST reports] calling the dissolved Egyptian parliament back into session, despite a previous ruling by the country's Supreme Constitutional Court [official website] dissolving it due to its finding that one-third of its members were elected illegally [JURIST report]. The court suspended Morsi's decree two days later, after which Morsi vowed that he would respect the ruling [JURIST reports]. A court struck down [JURIST report] a government decree in June that restored broad arrest powers to Egyptian military officials. Days before its dissolution, the Egyptian parliament elected a new constitutional council after lawmakers finally reached an agreement [JURIST reports] on the political composition of the council. In April the country's Administrative Court effectively suspended [JURIST report] the work of the 100-member council responsible for drafting the country's new constitution after ruling in favor of a lawsuit challenging the constitutionality of the formation of the panel.




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