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Legal news from Wednesday, December 12, 2012




Ghana opposition party to challenge presidential election
Brandon Gatto on December 12, 2012 4:27 PM ET

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[JURIST] The New Patriotic Party of Ghana (NPP) [party website] on Tuesday announced [press release] its plan to challenge the country's presidential election results after alleging that the victory of incumbent president John Dramani Mahama [BBC profile] was due to fraud. Though Mahama was declared the winner [AP report] of Ghana's December 7 election with 50.7 percent of the valid vote, opposition leaders declared that they have "serious reservations about the validity of what the Chairman of the Electoral Commission has done in declaring results that ... do not reflect the mandate of the required majority of the Ghanaian electorate." Since then, NPP leadership has submitted a two-fold request [text] to the Returning Office of the President Elections. First, NPP has asked for an audit of the verification machines "to establish that it tallies with Constituency Collated signed results," and second, it has asked for an order to re-collate "the presidential ballot at the constituency level to help establish the credibility and accuracy" of the December 7 election. NPP's presidential candidate, Nana Akufo-Addo [campaign website], finished second in the election with 47.74 percent of the electoral vote and has encouraged all NPP members and his supporters to remain calm.

Though Ghana's president elections were held last Friday, Mahama was not declared the winner until Sunday. The delays have been attributed to "technical glitches" with the country's new voting machines, and the problems forced many polling places to extend voting [BBC report]. Despite the issues, voter turnout was particularly high, with roughly 80 percent of 14 million registered voters casting ballots. This is the second presidential defeat for Akufo-Addo, who lost to Mahama in 2008 [BBC backgrounder] by less than 1 percent of the electorate.




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Federal judge lifts injunction on part of Georgia immigration law
Jaclyn Belczyk on December 12, 2012 3:17 PM ET

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[JURIST] A judge for the US District Court for the Northern District of Georgia [official website] on Monday lifted a preliminary injunction [order, PDF] blocking part of a Georgia immigration law that allows law enforcement officers to ask about immigration status when questioning suspects in criminal investigations. Judge Thomas Thrash's order is in line with an August ruling by the US Court of Appeals for the Eleventh Circuit [official website], which upheld [JURIST report] that provision of the law, but it remains to be seen how police will enforce the provision [AJC report]. The Eleventh Circuit also struck down a portion of Georgia's immigration law known as Section 7, which makes it a crime for anyone to harbor an undocumented immigrant or help an undocumented immigrant remain in the US. A full legal challenge to the constitutionality of the law could take several years.

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states have passed laws giving state and local officials more power to crack down on illegal immigration. Last month the Eleventh Circuit refused [JURIST report] Alabama's request to reconsider its ruling partially striking down that state's immigration law. Earlier in November a judge for the US District Court for the District of South Carolina [official website] upheld [JURIST report] part of South Carolina's controversial immigration law [SB 20 materials] that permits law enforcement officials to detain motorists on the side of the road for a "reasonable amount of time" while the officer checks the driver's immigration status. The US Court of Appeals for the Ninth Circuit [official website] in September denied a request for a new injunction against a controversial provision of Arizona's immigration law [SB 1070, PDF] which requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. In August the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them.




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Michigan enacts 'freedom to work' bill
Jerry Votava on December 12, 2012 3:05 PM ET

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[JURIST] The House of Representatives [official website] two bills on Tuesday, known as "Freedom to Work," that makes payment of union dues voluntary and limits workers' rights to strike and picket. The legislation was quickly signed into law [press release] by Michigan Governor Rick Synder [official website]. The bills address employees in both the public [HB 4003 materials] and private [SB 0116 materials] sectors. Pro-labor activists gathered at the State Capitol to protest [Reuters report] the legislation. In his statement, Synder said, "Workers deserve the right to decide for themselves whether union membership benefits them." He also noted that this legislation does not effect workplace health and safety regulations. With this legislation, Michigan has become to the twenty-fourth right to work state.

Attempts to limit collective bargaining rights and the influence of labor unions have been confronted with heavy opposition. In September the Michigan Supreme Court ordered [JURIST report] a union-backed measure to amend the state constitution to include a right to labor unionization and collective bargaining to appear on the November ballot. The measure was defeated 57-43 percent [AP report]. Wisconsin faced a challenge against its legislation which limited the collective bargaining rights of public employee unions. In March a judge for the US District Court for the Western District of Wisconsin [official website] ruled unconstitutional [JURIST report] certain provisions of the state's Budget Repair Bill [text, PDF] reasoning that unions which supported Governor Scott Walker [official website] during his election were apparently given preferential treatment. Last November Ohio voters rejected [JURIST report] a bill which would have impacted Ohio's 400,000 public workers by limiting their ability to strike and collectively bargain for health insurance and pensions.




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US military judge upholds request to censor 9/11 conspirators' testimony
Benjamin Minegar on December 12, 2012 2:46 PM ET

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[JURIST] The chief US military judge for the Guantanamo Bay [JURIST backgrounder] 9/11 military commission trial has approved [order, PDF] the US government's request for a protective order [ruling, PDF]. The order, made public Wednesday, effectively blocks the public's access to accused 9/11 [JURIST backgrounder] conspirators' testimony regarding the alleged use of "enhanced interrogation techniques," imprisonment and torture methods by the Central Intelligence Agency (CIA) [official website]. The decision upholds the continued use of a delayed audio feed of the proceedings, which allows an intelligence officer to censor any reference to "classified" material as it arises during testimony. The American Civil Liberties Union (ACLU) [advocacy website], backed by a host of prominent media organizations, filed a motion [JURIST report] in May and argued in October that this practice violates the First Amendment [transcripts 1 & 2, PDF] and that the public has a constitutional right to access information about the operation of the government. According to the ACLU, Army Col. James Pohl's decision does not adequately address clear First Amendment issues [press release], and the organization is assessing its options. The prosecution is seeking the death penalty for all five accused 9/11 conspirators.

In April Pohl assigned himself [JURIST report] to preside over the tribunals of the five alleged plotters of the 9/11 terror attacks, scheduling a hearing for May 5. Earlier in April the Department of Defense (DOD) referred charges [JURIST report] to Pohl against the five accused 9/11 plotters. The DOD announced last year that it had sworn charges against the five men [JURIST report]. In April 2011 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed and the four others would be tried by a military commission [JURIST report] after the Obama administration abandoned attempts to have the 9/11 suspects tried in civilian courts. Holder had wanted the accused be tried before a federal civilian court but referred the cases to the DOD after Congress imposed a series of restrictions [JURIST reports] barring the transfer of Guantanamo detainees to the US.




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Bosnian Serb sentenced to life for Srebrenica massacre
Jaclyn Belczyk on December 12, 2012 1:46 PM ET

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[JURIST] Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday convicted [judgment, PDF; press release] former Bosnian Serb army commander Zdravko Tolimir [ICTY case materials; BBC profile] of genocide, crimes against humanity and war crimes, sentencing him to life in prison. Tolimir, who served under Ratko Mladic [ICTY case materials; JURIST news archive] during the Bosnian civil war, was accused of involvement in the 1995 Srebrenica massacre [JURIST news archive]. Tolimir was found guilty of genocide; conspiracy to commit genocide; the crimes against humanity of extermination, persecutions and inhumane acts through forcible transfer; and murder, a violation of the laws or customs of war. He was acquitted on charges of deportation. The majority entered no conviction on the charge of murder, a crime against humanity.

Prosecutors delivered their closing arguments in August, asking the ICTY to impose a life sentence. Tolimir's trial, which began in February 2010 [JURIST report], was delayed several times due to his health. Last December, an intelligence officer was convicted by the court for refusing to testify against Tolimir [JURIST report]. Tolimir was arrested [JURIST report] in May 2007 by Bosnian police and was extradited to The Hague [JURIST report] that June. The indictment against him was confirmed in 2005.




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Bangladesh war crimes tribunal judge resigns
Jerry Votava on December 12, 2012 12:25 PM ET

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[JURIST] Justice Mohammed Nizamul Huq, a judge for the International Crimes Tribunal Bangladesh (ICTB) [Facebook page] resigned from his position on Tuesday. Huq was the chairman of the tribunal's three-judge panel, and is a Justice for the High Court Division of the Supreme Court of Bangladesh [official website]. His resignation [AP report] follows recent allegations of impropriety [Economist report]. The report indicated that Huq ordered two journalists to appear before to explain how they obtained e-mails and recorded telephone conversations between an outside lawyer and himself. The journalists obtained the information in a wider investigation into the practices of the tribunal, the results of which they have yet to publish. The ICTB was established in 2010 [JURIST report] to handle war crimes charges stemming from the 1971 Bangladesh Liberation War [GlobalSecurity backgrounder].

The ICTB has arrested and indicted individuals accused of war crimes in connection to Bangladesh's war for independence. In August, police in Bangladesh arrested [JURIST report] a top member of Jamaat-e-Islami (JI) [official website; GlobalSecurity backgrounder] after the ICTB ordered his arrest hours earlier. In July, the ICTB indicted Ali Ahsan Mohammad Mojaheed, secretary general of the JI on seven counts of crimes against humanity [JURIST report] he allegedly committed during the war. Also, Bangladesh police arrested [JURIST report] Mir Kashem Ali for allegedly being an auxiliary to the Pakistani armed forces and running a torture facility at the Dalim Hotel during the war.




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Seventh Circuit strikes down Illinois ban on concealed carry
Brandon Gatto on December 12, 2012 9:10 AM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Tuesday invalidated a ban on carrying concealed weapons in Illinois, ultimately deciding [opinion, PDF] that the law is unconstitutional. Relying on the US Supreme Court [official website] decision in District of Columbia v. Heller [opinion, PDF], Judge Richard Posner opined that the Second Amendment [text] "confers a right to bear arms for self-defense, which is as important outside the home as inside," and that Illinois failed to provide the court with "more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety." Posner also relied on the absence of such a law in all 49 other states, reasoning that, if the Illinois ban were "demonstrably superior," one may "expect at least one or two other states to have emulated it." While the ruling is considered a major victory for gun rights advocates [AP report], the Seventh Circuit did stay its ruling. Specifically, the court will allow 180 days for "the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment ... on the carrying of guns in public."

Illinois lawmakers, particularly those in Chicago, have struggled to limit firearm possession and advance gun control [JURIST news archive] initiatives in the city without violating the Constitution. In June the US District Court for the Northern District of Illinois [official website] struck down [JURIST report] a portion of the Chicago Firearms Ordinance [text, PDF] that prevents firearm purchase by individuals who have "been convicted by a court in any jurisdiction of ... unlawful use of a weapon that is a firearm" because such a standard is unconstitutionally vague. The Ordinance was unanimously approved [JURIST report] by the Chicago City Council in July 2010, and imposes strict regulations on firearm possession. In particular, residents who possess firearms are required to keep them inside their homes, and are not permitted to take their guns into the yard, garage or porch of the home. The legislation was enacted four days after the Supreme Court ruled in McDonald v. Chicago [JURIST report] that the Second Amendment right to bear arms is applicable to the states as well as the federal government. The decision effectively struck down Chicago's former handgun ban, as it prohibited citizens from keeping handguns in their homes under any circumstances.




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UK government to legalize same-sex marriage
Julia Zebley on December 12, 2012 6:55 AM ET

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[JURIST] The UK Minister for Women and Equalities [official website] announced [press release] Tuesday the Conservative [party website] government's intent to legalize same-sex marriage [JURIST backgrounder] in the coming year, with a provision that the state Church of England [religious website] will be barred from performing any marriages. Minister Maria Miller [official profile] made the statement in the House of Commons [official website], detailing [Guardian report] the government's plan as well as the research that went into the decision. Same-sex couples will be granted full access to civil marriage rights and permitted access to any marriage ceremonies available. However, if a religious organization has "opted out" of same-sex marriage, an individual minister in that sect would be unable to defy the group by marrying a couple. The Church of England will not be required to conduct or endorse same-sex marriages. Miller also suggested that the Church of England can advise the government if it changes its position on same-sex marriage.
Marriage is one of the most important institutions we have in this country. It binds us together, brings long-term commitment and stability, and makes society stronger. Our proposals mean that marriage would be available to everyone. I feel strongly that, if a couple wish to show their love and commitment to each other, the State should not stand in their way. These changes will strengthen marriage in our society and ensure that it remains a modern and vibrant tradition. And we are also building a fairer society for all.
A representative for the Labour [party website] party, the shadow minister of Equalities, supported the proposal and urged Miller to back it forcefully. The UK currently offers civil partnerships to same-sex couples, which will be eligible to be converted into marriages. The bill is expected to be presented in January. Miller suggested that 60 percent of Conservative members of parliament currently back the proposal.

The Conservative party's decision was made in response to a government consultation [materials] on the issue. Although the government found 53 percent of citizens who responded in favor of same-sex marriage, it received petitions with over 500,000 signatures opposed to legalizing civil marriage. In response to the government's announcement, a bishop for the Church of England released a statement [text]: "Marriage is not the property of the Government nor is it the property of the Church; and while the forms and legalities around marriage have evolved over time, as the noble lady minister has pointed out, one fundamental feature has remained the same throughout: that marriage is a union of one man and one woman, a social institution that pre-dates both Church and State and has been the glue that has bound countless successive societies together."




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