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Updated: 2 hours 8 min ago

Morocco: New Law Establishes Processes for Individuals to Challenge Constitutionality of Laws

5 hours 25 min ago

(Apr. 25, 2018) On February 6, 2018, Morocco’s Parliament approved, in accordance with article 133 of the 2011 Moroccan Constitution, Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law. (Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law, website of the Ministry in Charge of Relations with the Parliament (in Arabic).)

According to article 133 of the 2011 Moroccan Constitution,

[t]he Constitutional Court is competent to take cognizance of a pleading of unconstitutionality raised in the course of a process, when it is maintained by one of the parties that the law on which the issue of the litigation depends, infringes the rights and freedoms guaranteed by the Constitution.

An organic law establishes the conditions and modalities of application of this Article. (MOROCCO’S CONSTITUTION OF 2011, art. 133, Constitute Project website; CONSTITUTION OF THE KINGDOM  OF MOROCCO, 29 July 2011 (2011 CONSTITUTION), art. 133, Supreme Judicial Institute website (in Arabic).)

Article 134 of the Constitution states that “[a] provision declared unconstitutional on the foundation of Article 133 is abrogated counting from the date specified by the Constitutional Court in its decision.” (2011 CONSTITUTION, art. 134.)

Under Law No. 15.86, private litigants are allowed to raise the issue of constitutionality before any courts, including for the first time the Court of Appeals and the Court of Cassation. (Law No. 15.86, art. 3.)  In other words, even if the litigant did not raise the issue of constitutionality before the lower court, he or she can still bring it up before the higher courts, including the Court of Cassation.

Article 5 of Law No. 15.86 requires that the concerned litigant raise the issue of unconstitutionality in a written memorandum that meets the following conditions:

  • It must be signed by the concerned party or by an attorney duly admitted to any of the bar associations in Morocco.
  • It must be accompanied by the appropriate fee, unless the concerned party has been authorized to proceed in forma pauperis.
  • It must indicate the provisions of the law that are unconstitutional.
  • It must explain the reasons why such provisions are unconstitutional.
  • The raised issue must be one that has been or may be applied in the case.
  • The issue raised must not been have been previously determined. (Id. art. 5.)

If the court before which the issue is raised is satisfied that the memorandum meets all the abovementioned conditions, it must send the memorandum to the Court of Cassation within eight days from the date of its filing. (Id. art 6.)

The  Court of Cassation must issue a reasoned decision within three months from the date it receives the memorandum, either directly or from a lower court, and is then required to send the decision to the Constitutional Court. (Id. art. 11.) If the Court of Cassation fails to issue its decision within the prescribed time limit, the memorandum must be automatically sent to the Constitutional Court. (Id. art. 12.)

The Constitutional Court is composed of twelve members: six are appointed by the King, one of the six having been recommended by the Secretary General of the Superior Council of the Ulema; three are appointed by the Chamber of Representatives; and three are appointed by the Chamber of Councilors (with the appointments by the two Chambers requiring a two-thirds majority). (2011 CONSTITUTION, art. 130.)  The King appoints the President of the Court from among its members. (Id.)

The jurisdiction of the Constitutional Court is to “exercise[] the attributions which are devolved on it by the Articles of the Constitution and the provisions of the organic laws,” and to decide on “the regularity of the election of the members of Parliament and of the operations of referendum.” (2011 CONSTITUTION, art. 132.) An organic law describing the jurisdiction of the Constitutional Court in accordance with article 132 of the Constitution was enacted on August 13, 2014. (Organic Law No. 066.13 of 2014, Chamber of Representatives website (in Arabic).)

Originally, under a previous constitution, the constitutional review function was assigned to a Constitutional Chamber of the Supreme Council. (1962 CONSTITUTION, arts. 100–103, Digithèque de matériaux juridiques et politiques website (in French).) A separate Constitutional Court was established in 1992. (1992 CONSTITUTION, arts. 76–79, ConstitutionNet website (in Arabic).)  In both instances the ability to challenge the constitutionality of any law was not open to private litigants.

The 2011 Constitution is the first of Morocco’s constitutions to allow private litigants to challenge the constitutionality of laws.

Germany: Companies May Exclude Spouses Who Are More than 15 Years Younger than the Deceased from Survivors’ Benefits

8 hours 24 min ago

(Apr. 25, 2018) In a decision published on April 11, 2018, the German Federal Labor Court (Bundesarbeitsgericht, BAG) ruled that a clause in an occupational pension agreement that excludes from survivors’ benefits spouses who are more than 15 years younger than the deceased former employee does not constitute discrimination on the grounds of age. (BAG, Feb. 20, 2018, Docket No. 3 AZR 43/17, BAG website (in German).)

Background

The plaintiff, who was born in 1968, is the widow of a retired employee 18 years her senior who died in 2011 and had been granted a spouse’s pension promise by his former employer. The defendant in this case is an insolvency insurance company, since insolvency proceedings were instituted against the former employer’s assets in 2010. (BAG at 2 et seq.)

The occupational pension agreement in question stated that, upon the death of a beneficiary, the surviving spouse is eligible for a spouse’s pension only if the surviving spouse is not more than 15 years younger than the deceased employee. (Id.) The plaintiff claimed that this age difference clause (Altersabstandsklausel) is inadmissible discrimination on the grounds of age and therefore void. (Id. at 4.)

In principle, according to German law, any discrimination on the grounds of age in relation to employment and working conditions is not allowed. (Allgemeines Gleichbehandlungsgesetz [AGG] [German General Act on Equal Treatment] Aug. 14, 2006, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1897; as amended, § 1, § 2, para. 2, no. 2, § 7, para. 1 (unofficial English translation), German Laws Online website.)  A provision in an agreement which violates the prohibition of discrimination is void. (Id. § 7, para. 2.) However, a difference of treatment on grounds of age does not constitute discrimination if it is objectively and reasonably justified by a legitimate aim. (Id. § 10, para. 1, sentence 1.) Moreover, the means of achieving that aim must be appropriate and necessary. (Id. § 10, para. 1, sentence 2.)

The plaintiff brought an action before the Labor Court of Cologne seeking payment of survivors’ benefits under her husband’s occupational pension plan. While the court of first instance dismissed the claim, the Higher Labor Court of Cologne (Landesarbeitsgericht Köln) essentially ruled in favor of the plaintiff. The defendant appealed the ruling of the second instance to the BAG. (BAG at 5–7.)

Decision

The BAG upheld the ruling by the court of first instance. The Court held that the defendant is not obligated to pay the plaintiff a survivor’s pension. (Id. at 8–10.)

The BAG stated that the exclusion of spouses who are more than 15 years younger than the deceased employee constitutes direct discrimination against the employee on the grounds of age. The BAG explained that the clause referring to the age difference between the beneficiary and his or her spouse can affect only employees who are at least 33 years old. This is because in Germany a person cannot enter into a marriage before he or she reaches the age of 18. (Id. at 19.)

However, the BAG held that the discrimination was justified since the former employer pursued a legitimate aim by using the age difference clause. The BAG stated that the relevant German provisions implement EU Council Directive 2000/78/EC, according to which objectives related to employment policy, the labor market, and vocational training can serve as legitimate aims. The Court found that using age difference clauses to strike a balance between the different interests involved in order to the make occupational pensions available to a broader public is a legitimate aim in this context, as is limiting the financial risks of granting spouses’ pensions. An employer has a legitimate interest in maintaining a manageable and calculable liability for occupational pension benefits. (Id. at 16, 23–28; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation art. 6, para. 1, 2000 O.J. (L 303), 16, EUR-Lex website.)

The Court further stated that the exclusion at issue is also appropriate and necessary. The measure allows the employer to limit the financial risks, and the legitimate interests of the affected employees are not unduly impaired. Where the difference in age between the spouses is more than 15 years, the marriage is a priori designed in a way that the surviving spouse will live a part of his or her life without the beneficiary. As more than 80% of all married couples in Germany have an age difference of less than seven years, it is justified to exclude spouses from survivors’ benefits where the difference in age deviates significantly from the average age gap, according to the BAG. The BAG concluded that no other solution was possible as clauses providing a reduction of the spouse’s pension for exceeding the 15-year age difference on the basis of actuarial methods or the postponement of the commencement date for payments is not as effective as the complete exclusion of the spouses concerned. (BAG at 29–34.)

Prepared by Catharina Schmidt, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Italy: Constitutional Court Annuls Legislation Permitting Continuation of Activities by an Industrial Facility of National Strategic Interest

Mon, 23/04/2018 - 20:30

(Apr. 23, 2018) On February 7, 2018, the Italian Constitutional Court declared the unconstitutionality of several legal provisions that allowed the continuation of activities at industrial facilities considered of national strategic interest in violation of constitutionally protected workers’ rights. (Decision No. 58 of March 23, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] Mar. 28, 2018, G.U. website (in Italian).)

Background of the Case

In 2015 the Public Prosecutor of the city of Taranto ordered the urgent preventive seizure of the blast furnace and industrial plant of a company because it had allegedly violated several legal provisions requiring it to adopt measures to protect its workers from incandescent materials emanating from the furnace that killed a worker. (Decision, considerations of fact, ¶ 1.2.) The defendant company challenged the Public Prosecutor’s seizure order before the Ordinary Tribunal of Taranto.  That court reviewed the dispute under Decree-Law 92 of 2015 which, among others, permitted judicial seizure orders regarding alleged crimes against worker safety in nationally strategic industries, provided for the suspension of company activity for a maximum of 12 months, and mandated that the company adopt a plan for the protection of safety at workplaces referred to in the seizure order within 30 days of its adoption. (Decree-Law No. 92 of July 4, 2015, on Urgent Measures on Waste and Integrated Environmental Authorization, as well as on the Exercise of the Activity of Industrial Companies of a National Strategic Interest art. 3, ¶¶ 1–3, G.U. July 4, 2015, G.U. website (in Italian).)

Arguments on the Constitutionality of the Challenged Legislation

The defendant industry requested that the Public Prosecutor permit the continuation of its economic activities at its facilities in accordance with the requirements established in article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.3.)  The Public Prosecutor opposed the request on various grounds, and requested that the case be sent to the Italian Constitutional Court to decide on the constitutionality of article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.4.)

Ordinary Tribunal of Taranto Raises Constitutional Concerns

The Ordinary Tribunal of Taranto through a judicial decree of July 14, 2015, raised before the Italian Constitutional Court the matter of the constitutionality of article 3 of Decree-Law No. 92 of 2015 and other relevant provisions.  (G.U. Aug. 20, 2015, G.U. website (in Italian) (Decision, holding).  It argued that article 3 of Decree-Law No. 92 of 2015 potentially violated the following principles of the Italian Constitution (COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012 (CONST.), Comparative Constitutions Project website):

  • The fundamental and inviolable rights of the human person (CONST. art. 2), by allowing a company to operate facilities that are dangerous to human life and safety (Decision, considerations of fact, ¶ 1.8).
  • Equality under the law (CONST. art. 3), by creating an unjustified privilege for companies of national strategic interest, which would abide by a lower safety standard than other economic operators, causing workers to be exposed to higher risks (Decision, considerations of fact, ¶ 1.9).
  • The right to health of citizens/workers (CONST. art. 32), endangering their personal safety by failing to exercise a reasonable balance with other constitutional rights (Decision, considerations of fact, ¶ 1.11).
  • Developing private economic activity without causing damage to human safety, freedom, and dignity (CONST. art. 41, ¶ 2) by permitting the operation of a dangerous facility (Decision, considerations of fact, ¶ 1.12).
  • The obligation of the Public Prosecutor to institute criminal proceedings (CONST. art. 112), in particular because the constitutional mandate requires not only the suppression of a crime but also its prevention, which, in this case, would have required the permanency of the seizure measure (Decision, considerations of fact, ¶ 1.13).

Considerations of the Constitutional Court on the Merits of the Case

The Court ruled that in the case under review, the legislature did not respect the constitutional mandate to strike a reasonable and proportional balance of all the relevant constitutional interests converging in the case. (Decision, considerations of law, ¶ 3.2.) The Court held that article 3 of Decree-Law No. 92 of 2015 violated several constitutional guarantees, among other reasons, by requiring an exclusively unilateral plan in case of judicial seizure, by failing to establish immediate and timely actions aimed at swiftly removing the danger to the safety of workers, and by allowing economic activity to continue during the period of the seizure. (Id.)

The Court concluded that article 3 had created an unusual privilege under the Constitution for certain economic activities to the detriment of important constitutionally-protected rights, in particular, with respect to workers’ safety (Decision, considerations of law, ¶ 3.3) and declared the unconstitutionality of article 3 of Decree-Law No. 92 of 2015, and related provisions (Decision, considerations of law, ¶ 4).

Malaysia: Anti-Fake News Act Comes into Force

Thu, 19/04/2018 - 20:30

(Apr. 19, 2018) The Anti-Fake News Act 2018 was published in the Federal Gazette of Malaysia on April 11, 2018, coming into effect that day. (Anti-Fake News Act 2018 (Act 803), Federal Gazette website.) The Act was passed by the Malaysian Parliament on April 4 and received Royal Assent on April 9.

The Act defines “fake news” as including

any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas. (Id. s 2.)

Section 4 of the Act sets out the offense of “creating, offering, publishing, etc., fake news or publication containing fake news,” stating that

[a]ny person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit [about US$128,575] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [about US$771] for every day during which the offence continues after conviction. (Id. s 4.)

During the debate in the Parliament, the word “knowingly” was changed to “maliciously” in this section, and the penalty was reduced from a maximum of ten years of imprisonment to six years. (G. Surach, Its [sic] Official, the Anti-Fake News Act 2018 Comes into Force Today, SUN DAILY (Apr. 11, 2018).)

The Act provides for the extraterritorial application of this offense, stating that where an offense is committed by any person, whether a Malaysian citizen or not, outside of Malaysia, and where the fake news concerns Malaysia or affects a Malaysian citizen, it may be dealt with as if it was committed within Malaysia. (Anti-Fake News Act 2018, s 3.)

The Act also enables people affected by the publication of fake news to apply for a court order requiring the removal of the publication. (Id. s 7.) The government is able to make such an application, and the Act provides that where a person is subject to an order obtained by the government in relation to a publication that is prejudicial, or likely to be prejudicial, to public order or national security, he or she cannot apply for the order to be set aside. (Id. s 8(3).) Where a person does not comply with a removal order, the police can be authorized by the court to “take the necessary measures to remove such publication.” (Id. s 9(1).)

Rationale for the Act

In a set of questions and answers, the minister in the Prime Minister’s Department with responsibility for the bill, Azalina Othman, stated that

[t]he issue of dissemination of fake news is a global problem, following the technological communication revolution, which is happening at a rapid pace. Of late, Malaysia has faced numerous challenges as an effect from fake news which not only confuses the public but can also threaten the safety, economy, prosperity and well-being of the people and the country.

. . . .

We have to understand that although there are relevant laws, but until today, the rapid and complex development of communications technology means the problem still cannot be managed effectively. What [sic] more, these laws, such as the Penal Code, Printing Presses and Publications Act 1984, and Communications and Multimedia Act 1998, were drafted during or before the 1990s, and could not address the nature of increasingly complex offences in line with rapid technological progress. (Nazura Ngah, FAQs: What You Need to Know About the Anti-Fake News Bill 2018, NEW STRAITS TIMES (Mar. 26, 2018).)

She stressed that there were no existing laws directly related to fake news, and that other countries had also realized that “fake news is a global threat to the world of information, and needs to be tackled swiftly and effectively,” with the Philippines also having drafted a bill on the issue. (Id.) She also said that the government had decided to “allow a neutral and fair party, which is the courts, to decide, which is by due process of law. The courts will have the power to rule on the disposal of any publication deemed to contain fake news.” (Id.) In response to criticism of the bill, she said that the claim that it would curtail freedom of speech is “unsubstantiated and politically-motivated” and highlighted other actions of the government that had furthered the right to free speech in the country. (Id.)

Application of the Act

Police in Malaysia have reportedly already started to apply the new Act, with an investigation being initiated in mid-April 2018 in Johor Bahur regarding “a hoax claiming that the Johor Crown Prince Tunku Mahkota Johor Tunku Ismail Sultan Ibrahim would be footing the bill of shoppers at several supermarkets in the state.” (Ibrahim Isa, Hoax Over TMJ’s Cash Giveaway 1st Case Probed Under Anti-Fake News Law, NEW STRAITS TIMES (Apr. 13, 2018).)

Germany / European Court of Human Rights: Caning of Children Justifies Withdrawal of Parental Authority

Thu, 19/04/2018 - 17:30

(Apr. 19, 2018) On March 22, 2018, the European Court of Human Rights (ECtHR) unanimously held in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany that the withdrawal of the applicants’ parental authority did not violate article 8 of the European Convention on Human Rights (ECHR), which grants the right to respect for private and family life. The applicants, members of the Twelve Tribes Church living in communities in Bavaria, had challenged German court decisions that partially withdrew their parental authority and placed their children in foster care because the applicants continuously punished their children by caning. (Tlapak and Others v. Germany, App. Nos. 11308/16 & 11344/16 (Eur. Ct. H.R., 2018), ECtHR website; Wetjen and Others v. Germany, App. Nos. 68125/14 & 72204/14 (Eur. Ct. H.R., 2018), ECtHR website; Convention for the Protection of Fundamental Rights and Freedoms (European Convention on Human Rights) (ECHR), art. 8, Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website).

Background

The Twelve Tribes Church is a Christian religious community centered on the Apostolic Age of Christianity. Among other beliefs, the members of the community maintain that corporal punishment of children by caning is prescribed by their particular faith, relying on several sections of the Bible for evidence. (Ulrike Heidenreich, Abgewiesene Klage der “Zwölf Stämme” – Eine Wohltat für die Rechte von Kindern [Rejected Lawsuit of the “Twelve Tribes” – A Blessing for Children’s Rights], SUEDDEUTSCHE (Mar. 22, 2018).)

For over ten years, the Twelve Tribes communities in Bavaria have clashed with the local authorities many times over issues like homeschooling (which is generally not allowed in Germany) and corporal punishment. Repeatedly, the police have taken children away from their parents and placed them in the care of foster families, and attempts have been made to prosecute the parents and teachers for causing bodily harm to the children entrusted to them. (Christian Rost, Prügelnde Sekte “Zwölf Stämme“ nach Tschechien übergesiedelt [Beating Sect “Twelve Tribes” Relocates to Czech Republic], SUEDDEUTSCHE (Jan. 4, 2017).) In 2013, after video footage of the systematic practice of caning even very small children was brought to the public’s attention, the police raided two communities in Bavaria and separated 40 children from their parents. (Heidenreich, supra.)

According to article 6, paragraph 2 of the German Basic Law—the German Constitution—parents generally have the right and obligation to care for and raise their children as they see fit under the supervision of the state. (Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 6, para. 2.) On the other hand, article 1, paragraph 1 and article 2, paragraph 2 of the Basic Law also guarantee human dignity and children’s right to physical integrity. Moreover, in 2000, the right of children to a nonviolent upbringing was codified in section 1631, paragraph 2 of the German Civil Code. (BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; 2003 BGBl. I at 738, as amended, German Laws Online website). Section 1666, paragraph 1 of the Civil Code provides that courts can order necessary measures if the well-being of children is at risk and the parents are unwilling or unable to avert the risk. (Id.)

Facts of the Case

 The applicants—four families belonging to Twelve Tribes Church communities in Bavaria—challenged German family court decisions that in part withdrew their parental authority and ordered that their children be placed in children’s homes and foster families.

After the widespread caning of children by the members of the Twelve Tribes Church was made public, the local child welfare services initiated interim proceedings before the family courts, which partially withdrew the parental authority and authorized some children to be placed with foster families. In the main proceedings that followed, the family courts came to the conclusion that the caning constituted child abuse and the separation of the families was justified because, as the parents insisted that corporal punishment was a legitimate child-rearing method, the child abuse was expected to continue. The Court of Appeal dismissed the applicants’ appeal and the Federal Constitutional Court refused to hear the applicants’ constitutional complaints. (Tlapak and Others v. Germany, paras. 7–49; Wetjen and Others v. Germany, paras. 7–24.)

The applicants claimed that these decisions violate their right to respect for private and family life (ECHR, supra, art. 8) and that the proceedings before the German family courts were not only excessively long but also unfair, being based only on general perceptions regarding their religious community (id. arts. 6 & 8). Moreover, the applicants invoked articles 9 and 14 in conjunction with article 8 of the ECHR and article 2 of Protocol No. 1, alleging that they were deprived of the opportunity to raise their children in accordance with their religious beliefs and that, as their religion was the reason for the withdrawal of parental authority, their religious community was stigmatized by the courts’ decisions. (Tlapak and Others v. Germany, para. 3; Wetjen and Others v. Germany, para. 3.)

Decision

 The ECtHR rejected the applicants’ claims in Tlapak and Others v. Germany regarding excessively long main proceedings before the family courts because the proceedings took only one year and eleven months and the courts did not cause any particular delays. (Tlapak and Others v. Germany, paras. 65–66.) In the case of Wetjen and Others v. Germany, the German government made a declaration recognizing a violation of article 8 of the ECHR due to the length of the interim proceedings before the family courts, thus removing the issue from the scope of the decision. (Wetjen and Others v. Germany, paras. 42–43, 45–48.)

Furthermore, the ECtHR decided that the risk of inhuman or degrading treatment of children, which is prohibited in absolute terms in article 3 of the ECHR, justified the partial withdrawal of parental authority and the splitting up of the families. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Thus, the Court concluded that the German courts had struck the right balance between the conflicting rights at issue and had not violated the ECHR in their decisions. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Aftermath

In the meantime, the families of the Twelve Tribe Church communities in Bavaria have moved to the Czech Republic, where corporal punishment of children is not prohibited conclusively and comprehensively. (Heidenreich, supra.)

Prepared by Felicia Stephan, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Malaysia: National Human Rights Action Plan Launched

Mon, 16/04/2018 - 14:30

(Apr. 16, 2018) On March 1, 2018, the Prime Minister of Malaysia, Najib Razak, officially launched the National Human Rights Action Plan (NHRAP). (Press Release, Office of the Prime Minister, Action Plan Malaysia’s Commitment on Human Rights – PM (Mar. 1, 2018).) The development of the NHRAP was approved by the Cabinet in 2012 and was subsequently overseen by the Legal Affairs Division (Bahagian Hal Ehwal Undang-undang, BHEUU) of the Prime Minister’s Department, which engaged consultants to seek input from all stakeholders. (See Press Release, Pusat KOMAS, Dialogue with the Consultants of the National Human Rights Action Plan (NHRAP) (May 16, 2016), Hakam website; Seminar on the Development of National Human Rights Action Plan for MalaysiaINSTITUTE OF DIPLOMACY AND FOREIGN RELATIONS (2012); NHRAP, BHEUU (last visited Apr. 13, 2018).)

A copy of the NHRAP in the Malaysian language has subsequently been made available on the BHEUU website: Pelan Tindakan Hak Asasi Manusia Kebangsaan 2018 (National Human Rights Action Plan).

The NHRAP has five “pillars”: political and civil rights, socioeconomic and cultural rights, the rights of the disabled, indigenous rights, and complying with Malaysia’s international commitments. Within these pillars come 294 action plans in 83 priority areas. (NHRAP Falls Short of Addressing Systemic Inequalities in Malaysia — Comango, MALAY MAIL ONLINE (Mar. 6, 2018).) The Prime Minister said that the document “would become a solid foundation in transforming the government efforts to strengthen human rights in the country.” (Press Release, Office of the Prime Minister, supra.)

The government stated that it will launch a smartphone application in April 2018 to gather feedback on the implementation of the NHRAP. It has also agreed to establish a “high-level committee” to monitor implementation of the NHRAP. (Azura Abas, NHRAP Mobile App Will Be Available for All Come April, NEW STRAITS TIMES (Mar. 1, 2018).)

Nongovernmental groups in Malaysia have criticized the government “for allegedly cracking down on dissent and introducing legislation they say erodes freedom of speech.” (Samisha Naidu, PM Najib Launches National Human Rights Plan for a “Kinder Malaysia,” CHANNEL NEWS ASIA (Mar. 1, 2018).) The Coalition of Malaysian NGOs in the Universal Periodic Review (UPR) Process (Comango) commended the government on “finally launching” the NHRAP and found many areas to be “comprehensive and well-explored.” However, it also considered that the NHRAP “falls short in addressing systemic human rights issues, root causes of inequality and the enjoyment of human rights for all in the country, and lacks a gender perspective.” (NHRAP Falls Short of Addressing Systemic Inequalities in Malaysia — ComangoMALAY MAIL ONLINE (Mar. 6, 2018).)

Iran: IMF Evaluates Iran’s Legislative and Institutional Efforts to Combat Money Laundering and Terrorism Financing

Fri, 13/04/2018 - 17:30

(Apr. 13, 2018) In its March 2018 report assessing the economic situation in Iran, the International Monetary Fund (IMF) found that Iran had made progress in reforming its policies on combating money laundering and the financing of terrorism and was taking steps to improve the country’s connections to the international banking and trade system. (IMF, Islamic Republic of Iran: Selected Issues 24–29, IMF Country Report No. 18/94 (Mar. 7, 2018), IMF website; IMF Highlights Iran’s AML/CFT Progress, FINANCIAL TRIBUNE (Apr. 5, 2018) (by subscription).)

Background of Reforms

Iran’s anti-money laundering (AML) law (2008) and bylaw (2010) criminalized money laundering, established a ministerial coordination council and Financial Intelligence Unit, and instituted preventive measures for financial institutions and certain nonfinancial businesses and professions.  Iran also adopted a law on combating the financing of terrorism (CFT) in 2016.

The Financial Action Task Force on Money Laundering (FATF), an intergovernmental organization established to combat international money-laundering and terrorist financing, suspended previously instituted countermeasures against Iran in June 2016 in response to Iran’s high-level political commitment to reform its AML/CFT framework. Iran, however, remains on the list of Non-Cooperative Countries or Territories issued by the FATF. (Mohammad Affianian, Iran Accelerating Reforms Ahead of FATF Deadline, FINANCIAL TRIBUNE (Jan. 28, 2018); Who We Are, FATF (last visited Feb. 1, 2018); Olga Balakina et al., Bank Secrecy in Offshore Centres and Capital Flows: Does Blacklisting Matter? 2 (Baffi Carefin Centre, Working Paper No. 2016-20, May 2016), Research Papers in Economics website. )

Since June 2016, Iran has established a cash declaration regime at its border and introduced draft amendments to its AML and CFT laws in Parliament to make those laws conform to international standards. (IMF Highlights Iran’s AML/CFT Progress, supra.) Other efforts by Iran to strengthen its AML/CFT framework include its ratification on January 24, 2018, of the United Nations Convention Against Transnational Organized Crime (UNTOC), and the Central Bank of Iran’s (CBI’s) recent approval of several preventive measures to be implemented by financial institutions, including customer due diligence and collecting beneficial ownership information. (Iran Takes Initial Step to Join UNTOC, TEHRAN TIMES (Jan. 24, 2018); IMF Highlights Iran’s AML/CFT Progress, supra.) The government had pushed all these reform measures in an effort to have Iran removed from the FATF list of Non-Cooperative Countries or Territories by the FATF’s deadline of January 31, 2018. (Affianian, supra.)

However, several items contained in the FATF Action Plan, including amendments to the current AML/CFT laws and a bill regarding Iran’s accession to the International Convention for the Suppression of the Financing of Terrorism (currently being debated at the powerful Majlis (Parliament) National Security and Foreign Policy Commission), remained incomplete as of the deadline. (Maziar Motamedi, Iran Traces Political Motives in FATF Decision, FINANCIAL TRIBUNE (Feb. 24, 2018).)

Amendment of the Law on Combating the Financing of Terrorism

Two Iranian parliamentary commissions are currently debating bills on reforming the country’s policies on money laundering and the financing of terrorism. (Affianian, supra.) The Parliament passed the Law on Combating the Financing of Terrorism on March 17, 2016 (Islamic Parliament Research Center website (in Persian)), and the Cabinet approved some amendments to this Law for debate in Parliament on October 29, 2017. (Executive Bylaw of the Law on Combating the Financing of Terrorism, Oct. 29, 2017, Laws and Regulations Portal of Iran (in Persian).)

The amended version of the Law on Combating the Financing of Terrorism includes a provision requiring “all natural and legal entities, including non-governmental and charity organizations,” to register identifying information on their clients in their systems and refrain from providing services to those on sanction lists. (Iran Gov’t Notifies CFT Law, FINANCIAL TRIBUNE (Nov. 7, 2017).) In addition, these entities must assess the risk status of their clientele on the basis of “their background, occupation, income and asset sources, original birthplace and current place of residence, [and] services they wish to use,” among other criteria, and refuse to offer services to clients who cannot be screened through “reliable independent data sources.” (Id.) Furthermore, they are required to make increased efforts to identify risky clients on the basis of guidelines provided by the High Council of Anti-Money Laundering and fully identify account beneficiaries. (Id.)

The amended version of the Law also places restrictions on financial institutions, prohibiting them from “establishing correspondent ties with shell banks” and maintaining correspondent ties with banks that work with shell banks. (Id.) Lastly, the amendment directs the High Council of Anti-Money Laundering to institute measures to prevent nongovernmental and charity organizations from engaging in terrorist financing. (Id.)

IMF Recommendations

In its assessment, the IMF made recommendations to Iran aimed at further restoring confidence in the its financial system, improving Iran’s status with the FATF, and accelerating Iran’s reintegration into international financial and trade systems. The most critical recommendation is that Iran adopt and publish before the FATF’s June 2018 plenary meeting the comprehensive legislative and regulatory framework based on the FATF Action Plan agreed to by Iranian authorities. (IMF Highlights Iran’s AML/CFT Progress, supra.)

Other recommendations by the IMF include

  • conducting a National Risk Assessment on money laundering and terrorism financing to enhance authorities’ understanding of risks and development of appropriate policies;
  • improving AML/CFT risk-based supervision of banks and other financial institutions and imposing relevant corrective actions;
  • the issuing by the CBI of guidance to financial institutions to improve compliance in identifying beneficial owners and domestic politically exposed persons (PEPs) and applying effective preventive measures;
  • developing mechanisms (such as a public registry for beneficial ownership) to ensure the transparency of and timely access to accurate and current information of all types of entities established in Iran;
  • improving the system of declaration of assets of senior public officials in line with international best practices;
  • establishing an autonomous anti-corruption agency with law enforcement powers to prioritize the pursuit, prosecution, and adjudication of corruption cases without outside interference; and
  • improved domestic coordination between between AML and anti-corruption frameworks. (Id.)

Italy: New Law on Clinical Trials of Medicines and Reorganization of Health Professions Enters into Force

Thu, 12/04/2018 - 14:30

(Apr. 12, 2018) On February 15, 2018, a new law on clinical trials of medicines came into effect in Italy. (Law No. 3 of January 11, 2018, on the Delegation of Power to the Government over Clinical Trials of Medicines as well as on Provisions for Reorganizing the Health Professions and on the Health Directorate at the Ministry of Health) (Law No. 3), GAZZETTA UFFICIALE (G.U.) (Jan. 31, 2018) (in Italian).) The new Law directs several government ministries to issue regulations for the full implementation of the new provisions. (La legge Lorenzin (n. 3/2018) è in Gazzetta ed è in Vigore dal 15 Febbraio: Nasce Ufficialmente la Fnopi. Ecco Cosa Cambia [The Lorenzin Law (n. 3-2018) Is in the Gazzette and Effective on February 25: The Fnopi is Officially Born: This Is What Changes], FNOPI (Mar. 31, 2018).)

Clinical Trials of Medications for Human Use

The new Law delegates powers to the government to amend the existing legislation on clinical trials of medications for human use, introducing specific references to gender medicine and pediatric patients. (Law No. 3, art. 1(1).) To that effect, the Law creates a national coordinating center of territorial ethics committees for clinical trials of medicines for human use and medical devices. (Id. art. 2(1).)

Application and Dissemination of Gender Medicine Guidelines

The Law directs the Health Ministry to approve a plan for the dissemination and application of gender medicine guidelines throughout the country, focusing on the prevention, diagnosis, and treatment of illnesses taking into account differences arising from gender. (Id. art. 3(1).) The plan must promote biomedical, pharmacological, and psychosocial research. (Id. art. 3(2)(b).)

Reorganization of Healthcare Professionals’ Associations

In addition to regulating clinical trials of medicines, the Law reorganizes healthcare professionals’ associations into geographical districts according to the following professions: surgeons and dentists, veterinarians, pharmacists, biologists, physicists, chemists, nursing professionals, obstetrics, health technicians on medical radiology, and technical health professionals in the areas of rehabilitation and prevention. (Id. art. 4(1).) All health professionals must register in their respective health associations and are bound by the associations’ administrative and ethical rules. (Id. art. 5(1).)

National Federations of Health Administrations

According to the new Law, territorial associations are integrated into national federations based in Rome, which assume the representation of the respective professions with regard to national, European, and international institutions. (Id. art. 7(1).) National federations are composed of a president, national council, central committee, registry commission, and board of auditors. (Id. art. 8(1).)

Creation of the Field of Socio-Health Professions and Other Health Professions

In order to reinforce the protection of health, the Law creates the field of socio-health professions. (Id. art. 5(1).) A decree of the President is to determine the profile of this new health professional order. (Id. art. 5(2).) The Law also recognizes the osteopathic and chiropractic health professions. (Id. art. 7(1).) The Ministry of Health is charged with defining the educational requirements for the granting of college degrees in the areas of osteopathy and chiropractic. (Id. art. 7(2).) The professions of chemist and physicist are also recognized by the new Law, and a national federation of chemists and physicists is established. (Id. art. 8(1).) Likewise, the health professions of biologist and psychologist are recognized, as are their respective national federations. (Id. art. 9(1)–(3).)

Extension of Insurance for Health Professionals

The new Law provides that the existing health insurance fund for damages arising from health liability as established in Law No. 24 of March 8, 2017, on the Safety of Care and of the Assisted Person, and Concerning the Professional Responsibility of Health Professionals (G.U. Mar. 17, 2017 (in Italian)) must now provide access to health professionals who perform their services independently. (La Legge Lorenzin, supra.)

Malpractice in Health Professions

The new Law sets a fine of €10,000–50,000 (about US$12,356–61,777) for malpractice in health professions that require special authorizations issued by the state. (Law No. 3, art. 12(1).) Materials used for the commission of the crime are also to be confiscated. (Id.) Third parties used to commit the crimes are also subject to imprisonment for three to 10 years. (Id. art. 12(2).) Aggravating circumstances include medical malpractice causing injury to persons who are hospitalized in health facilities or in residential or semiresidential social health facilities. (Id. art. 14(1).) Manslaughter caused by medical malpractice is now punishable by imprisonment from three to 20 years. (La Legge Lorenzin, supra.)

Specialized Medical Instruction and Training of Non-EU Physicians

The Ministry of Health is to approve new regulations concerning the insertion of non-EU physicians into the Italian national health structure. (Id. art. 15(1).) A decree of the Ministry of Health may temporarily authorize non-EU physicians to participate in training or professional update initiatives carried out in Italy involving the development of clinical activities at hospital facilities, university hospitals, or institutes for recovery and scientific cures. (Id. art. 15(2).) Authorizations require compliance with specific criteria and may not last longer than two years. (Id.) Existing provisions on professional practice by non-EU physicians in Italy are repealed. (Id.)

New Zealand: Legislation Enabling Wiping of Historical Homosexual Convictions Enacted

Wed, 11/04/2018 - 17:40

(Apr. 11, 2018) On April 3, 2018, the New Zealand Parliament passed the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, and it was signed into law on April 9. (Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, NEW ZEALAND PARLIAMENT (last visited Apr. 11, 2018); Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (“Bill”), New Zealand Legislation website.) The legislation establishes a system that enables “men who were convicted of specific offences that have since been decriminalised to apply to be treated as if they had never been convicted.” (Wiping Historical Homosexual Convictions, MINISTRY OF JUSTICE (last visited Apr. 9, 2018).)

Offenses related to homosexual conduct were removed from the Crimes Act 1961 by the Homosexual Law Reform Act 1986. (Homosexual Law Reform Act 1986, New Zealand Legislation website.) However, convictions before that date remain on a person’s criminal record as “[t]here is no general rule that a person’s conviction is disregarded because the conduct concerned is no longer an offence.” (Wiping Historical Homosexual Convictions: Questions and Answers, MINISTRY OF JUSTICE (last visited Apr. 9, 2018).)

Men who were convicted of the following offenses will be able to submit an application to the Secretary of Justice to have their convictions expunged:

  • Crimes Act 1961, section 141 (indecency between males)
  • Crimes Act 1961, section 142 (sodomy)
  • Crimes Act 1961, section 146 (keeping place of resort for homosexual acts)
  • Crimes Act 1908, section 153 (unnatural offence), but only for offences committed with any other male human being
  • Crimes Act 1908, section 154 (attempt to commit unnatural offence), but only for offences attempted to be committed with or against any other male human being (Id.; Crimes Act 1961 (as enacted), NZLII website; Crimes Act 1908, NZLII website.)

Representatives, such as family members, of people who have since passed away can also apply to have the convictions expunged. (Bill cls 14 & 15.) The Secretary must be satisfied, on the balance of probabilities, that the conduct for which the conviction was entered would not be an offense under current law. (Id. cl 8.)

The introduction of the Bill followed the presentation in the Parliament of a petition, created by Wiremu Demchick and gaining the support of 2,111 others, asking that “in the matter of those who were convicted of consensual homosexual acts prior to the Homosexual Law Reform Act 1986, the House, (a) promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased, in a manner which upholds the mana and dignity of those convicted.” (Petition of Wiremu Demchick and 2,111 Others, NEW ZEALAND PARLIAMENT (last visited Apr. 9, 2018).)

The then-Minister of Justice, Amy Adams, upon introducing the Bill in July 2017, also moved that the Parliament apologize to the men convicted of the offenses, and this motion was passed. (Parliamentary Debates (Hansard), First Reading, Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (Amy Adams), 6 July 2017.)

In a press release following the third reading of the Bill, the current Minister of Justice, Andrew Little, stated,

I would like to apologise again to all the men and members of the Rainbow Community who have been affected by the prejudice, stigma and other negative effects caused by convictions for historical homosexual offences.

This Bill sends a clear signal that discrimination against gay people is no longer acceptable and that we are committed to putting right, wrongs from the past. (Press Release, Hon. Andrew Little, Bill Wipes Historic Homosexual Convictions (Apr. 3, 2018).)

European Union: Regulation on Cross-border Portability of Online Content Services in Effect

Tue, 10/04/2018 - 17:30

(Apr. 10, 2018) On April 1, 2018, the Regulation on Cross-border Portability of Online Content Services (Portability Regulation) became applicable across the European Union (EU). The Portability Regulation aims to accomplish seamless access for consumers throughout the EU to online content services, such as Netflix or Spotify, which they subscribe to in their home Member State. (Regulation (EU) No 2017/1128 of the European Parliament and of the Council of 14 June 2017 on Cross-border Portability of Online Content Services in the Internal Market 2018 O.J. (L 168) 1, EUR-Lex website.) Regulations, as opposed to directives, do not need to be transposed into national law by the EU Member States and are directly applicable. (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) art. 288, 2016 O.J. (C 202) 47, EUR-Lex website.)

The goal of the Portability Regulation is to ensure that consumers who live in the EU can use online content services, such as video-on-demand platforms, online TV services, music streaming services, or game online marketplaces, when they stay temporarily in another Member State for travel, vacation, study, or business purposes. (Portability Regulation recital 1; Cross-border Portability of Online Content Services, EUROPEAN COMMISSION (last updated Mar. 1, 2018).) The portability of online content is also available for consumers who daily commute to another Member State. (MEMO/18/2601, Fact Sheet, European Commission, Digital Single Market – Portability of Online Content Services (Mar. 27, 2018).)

Background

Previously, consumers traveling or staying temporarily in a Member State other than their Member State of residence in many cases could not continue to access the online content services they had lawfully obtained the right to access in their home Member State. (Portability Regulation recital 3.) Providers of online content services hold licenses only for certain territories within the EU and therefore had to take actions such as prohibiting access to their services from IP addresses situated outside the territory concerned. (Id. recital 10.)

The Portability Regulation, however, does not change the territorial licensing model. (Id. recital 12.) In order to ensure that providers of online content services are able to comply with their new duty to provide cross-border portability of their services, the Portability Regulation contains a specific legal mechanism (id. recital 23), namely that providing an online content service and the subscriber’s accessing it are deemed to occur solely in the subscriber’s Member State of residence if he or she is staying only temporarily in another Member State (id. art. 4). The providers can therefore offer cross-border portability of online content without having to obtain licenses for those additional territories. (MEMO/18/2601, supra; Portability Regulation recital 23.)

New Rules

According to the Portability Regulation, the provider is obligated not only to provide access to the same content but to make it available on the same range and number of devices and with the same range of functionalities. (Portability Regulation art. 3, ¶ 1.) However, the provider is not required to meet the same quality requirements as if it were providing that service in the subscriber’s Member State of residence. (Id. art. 3, ¶ 3.) On the other hand, the provider must not take any action to reduce the quality of delivery of the online content service. (Id. art. 3, ¶ 3, subpara. 1.)

The Portability Regulation does not determine a maximum duration for staying abroad. It defines the term “temporarily present in a Member State” as “being present in a Member State other than the Member State of residence for a limited period of time.” (Id. art. 2, ¶ 4.)

The obligation of providers to offer cross-border portability is mandatory law and, consequently, the parties cannot exclude it, derogate from it, or vary its effect. (Id. recital 21.) Providers are also not allowed to impose any extra charges on subscribers for the use of the online content service in another Member State. (Id. art. 3, ¶ 2.) Whether providers additionally offer their subscribers access to local content is at their discretion. (MEMO/18/2601, supra.)

As the Portability Regulation covers only situations in which subscribers stay in another Member State for a limited period of time, the provider is obliged to verify the subscriber’s Member State of residence. The provider is therefore entitled to request that the subscriber provide, for example, an identity card and payment details at the conclusion and renewal of a contract for the provision of an online content service. (Portability Regulation art. 5, ¶¶ 1 & 3.) If the provider has reasonable doubts about the subscriber’s Member State of residence in the course of the duration of the contract, the provider is allowed to repeat the verification of the subscriber’s Member State of residence—for example, by checking the IP address. (Portability Regulation art. 5, ¶ 2.)

The services provided by public broadcasters like the BBC also fall within the scope of the Portability Regulation if the consumer can already access the services on different devices, the provider has verified the subscriber’s Member State of residence, and either the services are offered against payment or the provider has chosen to comply with the new portability rules. (MEMO/18/2601, supra.)

Prepared by Catharina Schmidt, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Switzerland: Abolition of Marriage Tax Penalty Proposed

Thu, 05/04/2018 - 14:30

(Apr. 5, 2018) On March 21, 2018, the Swiss Federal Council (the Swiss government) adopted a legislative proposal to abolish the “marriage tax penalty” (marriage penalty). The proposal is designed to resolve the decades-long controversy surrounding the issue. (Swiss Federal Council, Botschaft zur Änderung des Bundesgesetzes über die direkte Bundessteuer (Ausgewogene Paar- und Familienbesteuerung) [Message Concerning the Amendment of the Federal Act on the Federal Direct Tax (Balanced Tax Burden for Couples and Families)] (Mar. 21, 2018), Federal Council website; Entwurf, Bundesgesetz über die direkte Bundessteuer (DBG) (Ausgewogene Paar- und Familienbesteuerung) [Draft, Federal Act on the Federal Direct Tax (Balanced Tax Burden for Couples and Families)], Federal Council website.) The Federal Council proposes an “alternative taxation” model that would relieve the tax burden imposed by mandatory joint filing on married couples with double incomes and retired married couples with average to high income. (Medienmitteilung, Eidgenössisches Finanzdepartement, Bundesrat verabschiedet Botschaft zur Beseitigung der Heiratsstrafe [Press Release, Federal Department of Finance, Federal Council Adopts Message Concerning the Abolition of the Marriage Penalty] (Mar. 21, 2018).)

Background

As in many countries, the term “marriage penalty” is used in Switzerland to describe the possible disadvantageous discrepancy of the taxation of married couples compared to unmarried couples. (Federal Department of Finance, supra.) According to article 9 of the Federal Act on the Federal Direct Tax, married couples are required to file a joint tax return, and their income is always added together, regardless of their chosen matrimonial property regime. (Bundesgesetz über die direkte Bundessteuer (DBG) [Federal Act on the Federal Direct Tax (DBG)], Dec. 14, 1990, SYSTEMATISCHE SAMMLUNG DES BUNDESRECHTS [SR] [SYSTEMATIC COMPILATION OF FEDERAL LAWS] 642.11, art. 9, Federal Council website.) As a result, approximately 80,000 out of 800,000 married couples with double incomes and approximately 250,000 out of 400,000 retired married couples must pay more taxes than unmarried couples in the same economic situation. (Reform der Ehe- und Familienbesteuerung [Reform of Taxation of Married Couples and Families], FEDERAL DEPARTMENT OF FINANCE (Mar. 2018).)

Various attempts to abolish the marriage penalty over the years have not been successful. In the most recent attempt in February 2016, an initiative and referendum failed because they were combined with a proposal to add a definition of marriage as a “long-term legally regulated union between a man and a woman” to the Constitution, thus excluding homosexual couples. (Jenny Gesley, Switzerland: Rejection of Abolishment of Marriage Tax Penalty and Constitutional Definition of Marriage, GLOBAL LEGAL MONITOR (Mar. 11, 2016).)

Proposed Amendment

The proposal by the Federal Council introduces an “alternative taxation” model. In a first step, the joint tax burden of the married couple would be determined according to the existing regulations. In a second step, the tax burden would be calculated separately, as if the couple were not married. The married couple would have to pay only the lower amount. (Message Concerning the Amendment of the Federal Act on the Federal Direct Tax (Balanced Tax Burden for Couples and Families), supra, at 20.)

Currently, unmarried couples with children receive the same tax reductions as married couples, even though their incomes are not added together. According to the proposed amendment, unmarried couples and single parents would no longer be subject to the married-couple taxation scheme. The amendment would result in a higher tax burden for unmarried couples with children. Single parents, however, would benefit from a new tax deduction in order to offset the additional burden. (Id. at 38.)

Reactions

Opinions on the “marriage penalty” among Swiss political parties diverge considerably. The parties SP (Sozialdemokratische Partei der Schweiz [Social Democratic Party of Switzerland]) and FDP (Fresinnig-Demokratische Partei der Schweiz [Free Democratic Party]) prefer separate taxation also for married couples, whereas the parties CVP (Christlichdemokratische Volkspartei der Schweiz [Christian Democratic People’s Party of Switzerland]) and SVP (Schweizerische Volkspartei [Swiss People’s Party]) want to maintain the joint taxation of families. The Swiss cantons (the states) want the federal tax to match the cantonal family taxation system (income splitting or double tariff). What the majority of people will vote for in the end remains uncertain. (Hansueli Schöchli, Die Jagd auf das Phantom der “Heiratsstrafe” [The Hunt for the Phantom “Marriage Penalty”], NEUE ZÜRCHER ZEITUNG (Feb. 27, 2018).)

Prepared by Felicia Stephan, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Nigeria: President Vetoes Electoral Act (Amendment) Bill

Wed, 04/04/2018 - 20:30

(Apr. 4, 2018) On March 13, 2018, Nigerian President Muhammadu Buhari, citing a number of concerns, vetoed  the Electoral Act (Amendment) Bill, a proposal aimed at making changes to the 2010 Electoral Act. (Taiwo Adisa, Buhari Withholds Assent to Electoral Act Amendment Bill Rearranging Elections Order, NIGERIAN TRIBUNE (Mar. 13, 2018); Electoral Act 6 of 2010 (Aug. 20, 2010), Independent National Electoral Commission (INEC) website.) This comes as the timetable INEC has set for the next election cycle is fast approaching, with Presidential and National Assembly elections slated for February 16, 2019, and gubernatorial and state assembly and area council elections scheduled for March 2 of the same year. (Dennis Udoma, 2019: INEC Releases Time Table for Presidential, N/Assembly, Governorship Election, VANGUARD (Dec. 8, 2017).)

Reasons for Veto

In a letter he sent to the National Assembly, the President outlined some of the reasons that prompted him to veto the legislation. First on his list was the fact that the proposed legislation sought to change the sequence of elections for different federal and state level offices. Under the current Act, elections must be held in the following order: National Assembly elections, presidential election, and state house and gubernatorial elections. (Electoral Act § 25.) Significantly, the 1999 Constitution accords INEC some discretion in setting election dates. (CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, §§ 76, 116, 132 & 178, World Bank website.) On the basis of these authorities, as noted above, the INEC has already scheduled the elections for 2019. The proposed amendment would reorder the election schedule so that the presidential election would follow rather than precede the state houses of assembly and gubernatorial elections. (Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, Policy and Legal Advocacy Centre (PLAC) 4 (Feb. 2018), PLAC website.) The President noted that this change would infringe on the “constitutionally guaranteed discretion of the [INEC] to organize, undertake and supervise elections.” (Victor Buoro, 2018 Electoral Amendment Bill: President Buhari Withholds Assent, FOREFRONT (Mar. 13, 2018).)

Another concern, which reportedly led the President to this decision, has to do with proposed changes to the grounds on which an election may be challenged by a candidate. Under the current law, the following grounds can be used to challenge an election:

(1)      An election may be questioned on any of the following grounds, that Grounds of petition is to say-

(a)    that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b)    that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)    that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)    that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

(2)    An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. (Electoral Act § 138.)

The proposed amendment seeks to expand parts of the provision. For instance, under the proposed amendment, in addition to violation of provisions of the Electoral Act, an election could be challenged for failure to comply with “published INEC manuals, guidelines, regulations, procedures or directives.” (Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, supra, at 19.) However, the proposed amendment seeks to limit another part of the provision—which currently affords blanket permission to challenge an election on the basis of a candidate’s lack of qualification—to qualification requirements listed under the Constitution. (Id.) The President took exception to the latter part, stating that such a change “unduly limits the rights of candidates in elections to a free and fair electoral review process.” (Buoro, supra.)

Another part of the proposed legislation the President found unacceptable concerns the issue of regulating the powers of the State Independent Election Commissions (SIECs). The President found problematic the proposal’s seeking to extend the application of the provisions of the Act to SIECs, noting that such an amendment “may raise Constitutional issues over the competence of the National Assembly to legislate over local government elections.” (Id.Factsheet on the Electoral Act Amendment Bill, 2018 Passed by the National Assembly, supra, at 22.)

Veto Override Vote

According to the country’s 1999 Constitution, the only way for the legislation to be enacted in its current form is if the National Assembly can muster the support of at least a two-thirds majority in each chamber to successfully override the President’s veto. (CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA § 58.)

The Senate has reportedly reintroduced the proposal in an attempt to pass it again with the votes needed to override the presidential veto. (Damilola Oyedele, Senate Initiates Process to Override Veto on Electoral Amendment Bill, THIS DAY (Mar. 28, 2018).) Both the Senate and the House of Representatives are said to be investigating allegations that some of their members are being bribed to withhold their support from the proposals to override the President. (Id.; Yakubu Dogara, House of Reps Members Accused of Receiving $30,000 Bribe Not to Override Buhari’s Veto, INFORMATION NIGERIA (Mar. 29, 2018).)

Italy: New Law on the Protection of Judicial Witnesses Enters into Force

Wed, 04/04/2018 - 17:30

(Apr. 4, 2018) On February 21, 2018, a new law on the protection of judicial witnesses came into effect in Italy. (Law No. 6 of January 11, 2018, Provisions for the Protection of Judicial Witnesses) (Law No. 6), GAZZETTA UFFICIALE (G.U.) (Feb. 6, 2018) (in Italian).) This Law seeks to dismantle the judicial strategies so far pursued by terrorist and mafia suspects through the intimidation or coercion of witnesses. (Alberto Cisterna, In Gazzetta la Legge con le Disposizioni per la Protezione dei Testimoni di Giustizia [New Law with Provisions for the Protection of Judicial Witnesses in Gazette] WOLTERS KLUWER: IL QUOTIDIANO GIURIDICO (Feb. 7, 2018).)  This Law received an exceptionally broad level of support from the Italian Parliament as it was unanimously approved by the Senate. (Monica Rubino, Testimoni di Giustizia, la Riforma è Legge: Più Tutele a Chi Denuncia Crimine e Mafie [Judicial Witnesses, the Reform Is Law: More Protection for Those Who Denounce Crimes and the Mafia] R.IT (Dec. 21, 2017).) The bill leading to the new Law was based on the draft prepared by the Parliamentary Anti-Mafia Commission on October 21, 2014. (Mafia. Ok Definitivo a Legge su Protezione Testimoni di Giustizia. Bindi: Segnale Importante [Mafia. Final OK to Law on the Protection of Judicial Witnesses. Bindi: An Important Signal] R.IT (Dec. 21, 2017).)  This new Law constitutes an update and improvement on the protective measures included in the previous legislation. (Law No. 45 of February 13, 2001, Amendment on the Protection of the Penalty System for Those Who Collaborate with the Judicial System as well as Provisions Benefitting Persons Who Provide Testimony) G.U. (Mar. 10, 2001) (in Italian).)

Special Protective Measures for Judicial Witnesses

The new Law establishes protective measures for persons who are to provide witness testimony at judicial proceedings. Protected witnesses include persons who are exposed to serious, current, and concrete dangers as a result of their stable cohabitation or other relationships with judicial witnesses. (Law No. 6 art. 1(2).)

The legal definition of judicial witnesses includes persons who provide, within a legal procedure, justifiably reliable testimony that is relevant for the investigation or sentencing (id. art. 2(1)(a)); testify in support of the injured party with respect to the facts of the crime or information about other witnesses that are to testify in the case (id. art. 2(1)(b)); have neither been convicted of crimes connected to those under investigation nor benefited from their relationship with the criminal case in which they are providing their testimony (id. art. 2(1)(c)); have not been subject to preventive measures or are not currently being prosecuted under the Anti-Mafia Code on the grounds that they pose a social danger and are reasonably likely to commit a serious crime (id. art. 2(1)(d)); and currently are in concrete, grave danger that ordinary preventative measures adopted by public security authorities will be inadequate to protect against (id. art. 2(1)(e)).

Types of Special Protective Measures

Special protective measures seek to safeguard the personal safety of judicial witnesses and include security measures, measures for economic support, and measures for social and employment reinsertion. (Id. art. 3(1).) Such special protective measures are determined case by case on the basis of several factors, including the dangers to which the judicial witness is exposed and their detrimental effects on his or her personal, family, social, and economic circumstances. (Id. art. 4(1).)

Other protective measures adopted exceptionally in extremely dangerous situations include the transfer of the person to another locality and the use of cover identity documents. (Id. art. 4(2).) Economic support measures include the payment of expenses derived from the application of special protective measures or a permanent stipend when continuing to work is impossible under the circumstances. (Id. art. 6(1)(a) & (b).) Other measures include housing accommodations when judicial witnesses must attend judicial procedures in localities other than those of their usual abode (id. art. 6(1)(c)); health insurance payments (id. art. 6(1)(c)); and legal fees generated by the respective judicial proceedings (id. art. 6(1)(e)). Financial assistance takes the form of lump-sum and all-inclusive compensation as a relief for the injury caused by providing testimony under special protective measures. (Id. art. 6(1)(f).) Additionally, financial assistance includes the acquisition by the state of real property owned by judicial witnesses when their transfer to another location is required because of the judicial procedures and when the normal sale of the real estate is not feasible. (Id. art. 6(1)(h).)

Social and Employment Reinsertion Measures

Social and employment reinsertion measures include the witness retaining his or her job despite absence from work or the transfer of the witness to another employment or office for security reasons (id. art. 7(1)(a)); support for other unpaid work in the new locality to which the witness has been transferred (id. art. 7(1)(b)); support for business activities of judicial witnesses that may be actually harmed by the application of special protective measures (id. art. 7(1)(c)); being provided with the use of assets from the National Agency for the Administration and Destination of Assets Seized and Confiscated from Organized Crime (id. art. 7(1)(d)); access to subsidized loans (id. art. 7(1)(e)); and finding new employment for the witness (id. art. 7(1)(f)).

Duration of Special Protective Measures

Special protective measures may not last more than six years. (Id. art. 8(1).) During this period the authorities must periodically reevaluate the current need for the measures and severity of the danger to which the judicial witness is exposed, as well as the suitability of the protective measures already in place. (Id. art. 8(1).)

Application Procedure for Special Protective Measures

The Law creates a central commission within the Ministry of the Interior in charge of applying special protective measures, which carries out its duties with previous consultation with the National Anti-Mafia and Counter-Terrorism Prosecutor. (Id. art. 11(2).) The commission may adopt, without delay or formalities, provisional protective measures. (Id. art. 12(1).) The commission evaluates all protection programs every six months and may amend or revoke them at any time. (Id. art. 13(3) & (4).)

Urgent Measures

In case of urgent situations of particular gravity that cannot wait for the central commission to meet and deliberate, the provincial authority of public security may approve urgent special protective measures. (Id. art. 18(1)–(2).)

Aggravating Circumstances for the Crime of Slander Related to Protective Measures

The new Law increases by a third to a half the penalty for the crime of slander established in article 368 of the Criminal Code when the perpetrator has committed the crime for the purpose of profiting or continuing to profit from special protective measures established in the new Law; the penalty is increased from half to two-thirds when any of the benefits established by the Law has been obtained through slander. (Id. art. 22(1).)

Argentina: Bill on Gender Parity and Equal Opportunities in the Workplace Proposed

Wed, 04/04/2018 - 14:30

(Apr. 4, 2018) On March 13, 2018, Argentina’s government submitted to the National Congress a bill to amend the Labor Contract Law in order to establish gender parity standards in the workplace. (Proyecto 0038/18, Mar. 13, 2018, Cámara de Diputados website.)

The bill aims at implementing equal pay for equal work, enforcing equality in hiring and promotion criteria, providing safe working conditions, and expanding family leave coverage. (Los detalles del proyecto de equidad de género que enviará el Gobierno al Congreso, INFOBAE (Mar. 8, 2018).)

The bill establishes the obligation of employers to attain gender parity, requiring that workers, regardless of their gender, have equal rights in their access to employment and in their work and career development. (Id.)

Under the bill, the constitutional principle of equal pay for equal work would be guaranteed, not only in setting salaries and wages but also when selecting employees to perform duties outside the workplace. At the same time, employers would be obligated to ensure equal protection against unhealthy or unsafe working conditions. (Id.)

Employers would also be required to adopt behavioral protocols and enforce the ones already in place, complying with gender parity standards as a business practice. Unions would also have to adjust their bylaws to meet the same standards required of employers. (Id.)

The bill also expands family leave categories, including paternity leave for the birth or adoption of a child from two to fifteen days. This period would increase by ten more days if it involves multiple adoptions or the birth. (Id.) For the death of a child, leave is increased from three to ten days. (Id.)

Employees would be granted two days off and ten days a year if needed in case of adoption-procedure demands, five days off annually to undergo assisted reproductive methods, and ten days in cases related to gender-based violence. (Id.)

Finally, the bill provides for a reduced work day for parents with newborns or young children. The provision is aimed only at mothers and indicates that, with prior agreement with the employer, she will be able to go back to work following her maternity leave to a position with a shorter workday, and be paid an amount proportional to the salary she earned before giving birth. (Id.)

Both parents of children up to four years old would be allowed to arrange shorter workdays in order to take care of their children, provided the employer agrees. Their pay would also be proportional to the amount of hours they work. (Id.)

Egypt: British Woman Sentenced for Carrying Painkillers

Mon, 02/04/2018 - 17:30

(Apr. 2, 2018) On December 26, 2017, the Criminal Court of Safaga, a town on the coast of the Red Sea, sentenced a British woman to three years in prison and fined her 100,000 Egyptian pounds (EGP) (about US$5,611) for the possession of the narcotic painkiller Tramadol. (Magdy Samaan & James Masters, British Tourist Gets 3-Year Sentence in Egypt on Drug Smuggling Charge, CNN (Dec. 12, 2017).)

Facts of the Case

On October 9, 2017, Laura Plummer was arrested at the Hurghada International Airport on the Red Sea after law enforcement officials found 290 tablets of Tramadol in her luggage. Plummer claimed that she was bringing the painkiller to her Egyptian husband, who suffers from back pain, and that the drug is legal in the United Kingdom. Plummer asserted that she had no previous knowledge that prescription painkillers such as Tramadol are illegal under Egyptian law, adding that the UK did not issue a warning to its citizens about the illegality of the drug until after her arrest. (Id.)

Trial

In October 2017, the Public Prosecution referred Plummer to the criminal court, charging her with the smuggling and possession of illegal drugs. On December 26, 2017, the Criminal Court of Safaga rendered its decision in Criminal Case No. 12329 of 2017, finding Plummer guilty of articles 2 and 38(1) of Law 182 of 1960 as amended by Law 122 of 1989. (Mohammed Al-Sayyed Suleiman, Reasoning in the Court Decision for Sentencing “Tramadol Tourist” to 3 Years, AL-MASRY AL-YOUM (Feb. 9, 2018).)

Article 2 prohibits any individual from smuggling, producing, exporting, possessing, owning, purchasing, or selling illegal narcotics or acting as a mediator in those transactions, except in the circumstances and conditions determined by Law 182. Article 38(1) stipulates that anyone who possesses, acquires, buys, delivers, transports, cultivates, produces, extracts, separates, or manufactures any narcotic substances without the intention of trading in them or taking or personally using them in any circumstances other than those authorized by law is punishable by 3 to 10 years of imprisonment with hard labor and a fine of 50,000 to 200,000 pounds. (Law 122 of 1989 Amending Law 182 of 1960, AL-JARIDAH AL-RASMIYAH [OFFICIAL GAZETTE], vol. 36, 4 July 1989 (in Arabic).)

Court Decision

The court acknowledged that the accused had never been previously arrested for carrying illegal drugs while entering the country. It also stated that it had not found any evidence of a relationship between the accused and drug clients inside the country and believed that the accused had brought the tablets without an intention to smuggle or sell them inside the country. Accordingly, the court decided to convict the accused only for the offense of illegal possession of narcotics and dismiss the smuggling charge. Furthermore, the court declared that it believed Plummer’s claim of being ignorant of the legal prohibition on those tablets but stated that such ignorance did not exempt her from legal liability for possessing the illegal drugs. (Reasoning in the Court Decision for Sentencing “Tramadol Tourist” to 3 years, supra.)

Appeals Process

The decision was issued by the court of first instance and is not final. A defendant can file an appeal before the court of appeal under article 402 of the Law of Criminal Procedure, which grants the right of appeal to a defendant imprisoned in a misdemeanor case. According to article 406, the appeal must be filed within 10 days from the date the first instance court rendered its decision. (Law of Criminal Procedure No. 150 of 1950 and Its Amendments (in Arabic).) Media reports indicate that Plummer’s lawyers have lodged an appeal. (See, e.g. British Woman Convicted of Smuggling Painkillers in Egypt, CBS NEWS (Dec. 26, 2017).)

Tajikistan: Law Prescribes Observation of National Traditions

Mon, 02/04/2018 - 14:30

(Apr. 2, 2018) On March 12, 2018, members of the Tajikistani legislature approved amendments to the Law of Tajikistan on Regulating Traditions, Celebrations, and Rituals in the Republic of Tajikistan. (Law of the Republic of Tajikistan No. 272 of June 8, 2007, Spinform website (in Russian) (by subscription).) Provisions of this Law, which allow government, military, and law-enforcement employees to be dismissed from service if they or their family members violate this Law, were extended to include those who serve in the Tajik Internal Troops, a special military detachment similar to the US National Guard. (Avaz Yuldashev, Amendments Concerning Internal Troops Added to Law on Regulating Traditions, ASIA-PLUS NEWS AGENCY (Mar. 12, 2018) (in Russian).)

This new provision is the most recent addition to the Law, which was significantly changed last summer. The Law was originally passed in 2007. As was officially explained, the purpose of this Law was to limit funds and resources Tajiks spend on celebrating religious rites and family festivities. In the opinion of the president, who introduced this Law originally, spending too much on celebrations undermines the economic welfare of the population and leaves many families in destitute. (Office of the Tajikistani President, Commentaries on the Changes and Amendments to the Law on Regulating Traditions (Aug. 11, 2017) (in Russian), Office of the Tajikistani President’s website.)

In order to prevent excessive spending on family celebrations and festivities, the revised Law established new rules for conducting weddings, funerals, and celebrations of child births, specifically the circumcision procedure. (Law of the Republic of Tajikistan No. 1461 of August 28, 2017 (in Russian), Spinform website (by subscription).)

Concerning conduct at weddings, the Law limits the number of guests to 200 people and states that the wedding celebration cannot be longer than three hours. Weddings must be held between 6 p.m. and 10 p.m. during working days and from 8 a.m. through 10 p.m. on weekends. Responsibility for following the rules was extended to include the owners and administrators of the places where celebrations are conducted (e.g., restaurants, club houses) in addition to the organizers of the wedding. The Law prohibits celebrating engagements and performing some specific ethnic rites, such as the revealing of the bride’s face (betashar) or placing barriers on the way of the wedding procession in order to get ransom. The Law recommends replacing the rehearsal dinner with spending money equal to the cost of the dinner for the welfare of the marrying couple. (Id. art. 10.)

Funerals, according to the new Law, should be conducted without offering food to the attendees and without slaughtering animals. Similar rules apply to remembrance celebrations of departed persons, usually conducted on the third and fortieth days after the death and again on the first death anniversary. Families conducting these events should inform local authorities charged with the duty to monitor the implementation of the Law. (Id. art. 11.)

Regarding the celebration of a child’s birth, the Law states that circumcisions must be performed within twenty days after the birth in certified medical establishments free of charge and celebrations should be kept to the nuclear family members without inviting professional performers. This and other traditional child-related celebrations (e.g., first placing in the crib, first haircut) should be conducted without animal slaughter. If a family does not have means for celebrating, another person or a legal entity may provide support as an act of charity. (Id. art. 8.)

Violations of this Law are recognized as misdemeanors and prosecuted by heavy fines.

All events should be conducted in the state language, which is Tajik, and people should “demonstrate respect for the national dress,” a provision which some observers believe was introduced to restrict the use of Islamic religious attire. (Commentaries on the Changes and Amendments to the Law on Regulating Traditions; State Women’s Committee Clarifies What Makes Tajik Traditional Dress, SPUTNIK (July 20, 2017) (in Russian).)

Philippines/FAO: Agreement on Advice concerning Food Security Legislation

Fri, 30/03/2018 - 20:30

(Mar. 30, 2018) In January 2018, the Philippine government and the Food and Agriculture Organization (FAO) announced the launch of the FAO Legislative Advisory Group-Philippines (FLAG-PH), which will hold discussions on legislative measures concerning food security, agriculture, and nutrition. (FAO, Legislators Launch Pilot Parliamentary Alliance for Food Security and Nutrition in the Philippines, FAO (Jan. 17, 2018).)

According to a release issued by FAO,

[t]his parliamentary alliance, initially composed of 10 legislators from both houses of (the Philippine) Congress, is envisaged to tackle national food security and nutrition issues by taking the necessary legislative actions that would [have an] impact on the agriculture, fisheries, forestry, and environment and natural resources sectors.

….

The launch of FLAG-PH is a pilot initiative by FAO in the Philippines under a larger effort to build a Parliamentary Alliance in the Asia-Pacific region.

….

At the global level, the FAO Parliamentary Alliance started in 2009, recognizing the need for reinforcing constitutional and legislative provisions to ensure that everyone has a right to adequate, safe, sufficient and nutritious food and to freedom from hunger. (Id.)

An initial consultative meeting of FLAG-PH was held January 28. At that meeting, Senator Cynthia Villar, who chairs the Senate Agriculture and Food Committee, announced she would seek to expedite the passage of certain bills to address food security and nutrition, including an act establishing a continuing national program for hybrid and other quality seed production, and a bill reorganizing the National Food Authority. (Hannah Torregaza, Villar Vows to Hasten Approval of Bills to Spur Growth of Agricultural Industry, MANILLA BULLETIN (Jan. 28, 2018).) She also indicated a bill to make irrigation free for small farmers may be approved soon. (Id.)

Norway: Supreme Court: Finnmark Estate Agency Has Right to Regulate Fishery, Hunting and Use of Natural Resources in Finnmark

Fri, 30/03/2018 - 17:30

(Mar. 30, 2018) On March 9, 2018, the Norwegian Supreme Court issued a unanimous judgment in a dispute regarding who may regulate fishing, hunting, and the use of natural resources in the Nesseby municipality in Finnmark (part of the Sápmi region in the northern part of Norway, inhabited by the Sami people).  (Supreme Court Case, HR-2018-456-P, Mar. 9, 2018 (in Norwegian) and English Summary, Lovdata website.)

The case stems from a conflict of who may regulate the use of natural resources in Finnmark, an area where Sami people have been present for thousands of years. Currently the area is managed by the Finnmarkseiendommen FeFo (the Finnmark Estate Agency), which is also considered the owner of 95% of the land in Finnmark but had previously not been determined the owner of the disputed area. (§ 6 Lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (finnmarksloven), Lovdata website.)

The Norwegian government instituted FeFo in 2006 to regulate the use of resources in the Finnmark area, transferring ownership from the national state. (Finnmarkseiendommen, JUSTICE DEPARTMENT (Sept. 14, 2005).) FeFo is made up of six persons, three chosen by the Sameting (Norwegian Sami Parliament) and three chosen by Finnmarks Fylketing (Finnmark City Council). (§ 7 Finnmarksloven.) All must be residents of the Finnmark area and include both men and women chosen by the two bodies. (Id.)

In governing the Finnmark area, FeFo is bound by Finnmarksloven, which among other things mandates universal public access to and respectful use of the land, but also limits the use of motorized vehicles in the mountainous area of Finnmark. (§ 21 Finnmarksloven; see also § 3 Lov om motorferdsel i utmark og vassdrag (motorferdselloven) (LOV-1977-06-10-82).)

The issue in the case was whether “the local population in a special part of the municipality, in addition to having user rights based on immemorial use, also have the right to manage and administer the renewable resources that the user rights are tied to, or if that right belongs to the Finnmarkseiendommen Finnmárkkuopmodat (FeFo) as owner [grunneier]. Among other things this concerns the control of hunting, trapping, and fishing.” (Supreme Court Case, HR-2018-456-P (translation and emphasis by author).)

The Utmarkdomstol for Finnmark (Finnmark Land Tribunal), which had previously heard the case, had found that Unjárgga gilisearvi/Nesseby bygdelag (a local organization that aims to protect the Nesseby population’s interests and is currently led by Sami members) had the right to regulate big game hunting (storvilt) and to disperse the financial gains thereof. (Utmarksdomstolen for Finnmark, Saksnr. [Case No.] 14-164739TVI-UTMA, Jan. 23, 2017, at 5.)

The Norwegian Supreme Court, on the other hand, found that although the Sami group had used the area in a way that constituted “immemorial use,” the determination did not require that the group also be given management rights over the area. The user rights were also determined not to be exclusive. (Case HR-2018-456-P ¶¶ 119, 149.) Because the Sami group is not deemed the owner of the land, the Finnmark Estate Agency should continue to regulate the area’s use, effectively giving FeFo the right to determine who may hunt and fish in the area as well as how much hunting and fishing the area may sustain. (Id. ¶ 149.) It also gives FeFo the right (and duty) to consult with Nesseby bygdelag to determine how Nesseby bygdelag is to use its immemorial rights. (Id. ¶ 195.) The Court determined that the International Labour Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries could not be read to include a right to self-determination or self-regulation in the manner Nesseby bygdelag proposed. (Id. ¶¶ 194, 197; International Labour Organization, Indigenous and Tribal Peoples Convention, June 27, 1989, No. 169, ILO website.)

The case is anticipated to have great effects on how Sami rights are regulated in Finnmark in the future. (Carl-Gøran Larsson & Samuel Frode Grønmo, Bygdelag tapte sak i Høyesterett om naturrettigheter i Finnmark, NRK (Mar. 9, 2018).)

The case touches on issues similar to those in the Girjas case in Sweden, which is expected to be heard by the Swedish Supreme Court later this year.  (See Elin Hofverberg, Sweden: Appellate Court Grants Sami Village “Better Right” to Hunting Rights, but Not Control over Them, GLOBAL LEGAL MONITOR (Mar. 8, 2018).)

Uzbekistan: Rules for Observing Family Events

Fri, 30/03/2018 - 14:30

(Mar. 30, 2018) On March 15, 2018, the Senate (upper chamber) of the Oliy Majlis (Uzbek legislature) adopted the nonbinding Resolution on Regulating Celebrations of Weddings, Funerals, Family Festivities, and Other Events and published it for public comment on the government website. The Resolution is expected to enter into force on March 30, 2018, and even though it is more like a recommendation, it is expected that local government authorities will follow the rules it prescribes. (Resolution of the Uzbekistan Senate of the Oliy Majlis, Mar. 15, 2018 (in Uzbek).) The Resolution states that while the celebration of weddings and other family events is an inalienable part of Uzbek culture and tradition, such celebrations are becoming too lavish and negatively impact the financial well-being of Uzbek families.

With the purpose to “avoid conflicts related to payment of the bills for wedding celebrations,” the Resolution provides for restricting the length of the festivities and number of the invitees. (Id. (translation by author).) For example, weddings cannot be celebrated during the nighttime, all festivities must stop no later than 11 p.m., and the traditional national food plov, a rice-based dish which is a staple of Uzbek cuisine, can be offered only between noon and 3 p.m. Plov can be offered to no more than 200 people, and other wedding-related events should be attended by no more than 150 people. To ensure public security, the Resolution states that it will be illegal to use more than two cars for the wedding procession, and transportation at weddings shall be provided by a government licensed company. Also, the Resolution lists some traditional ethnic rites and rituals which cannot be performed by wedding guests. Only one entertainer or music group should be invited to perform at a wedding. Public control over the implementation of this Resolution will be organized and special commissions created under local government authorities. Members of these commissions will be required to attend the weddings and ensure that they are conducted in accordance with the prescribed rules. (Id.)

Commenting on the adoption of this Resolution, the Chief of Uzbekistan’s Information Agency stated that “if someone has too much money, he should help the state and people instead of conducting unnecessary spending, for example, he can buy books and donate them to a school library.” (Weddings Will Be Placed Under Control, UPL.UZ (Mar. 5, 2018) (in Russian, translation by author).)

Mexico: Bilateral Accords Signed with the United States

Thu, 29/03/2018 - 17:30

(Mar. 29, 2018) Mexico’s Secretary of Foreign Affairs, Luís Videgaray, and US Secretary of Homeland Security, Kerstjen Nielsen, witnessed the signing of three instruments of bilateral cooperation on March 26, 2018. The agreements aim to improve the economy on both sides of the border, especially benefiting workers and companies. (Firman México y EUA Instrumentos de Cooperación en Beneficio de la Economía en Ambos Lados de la Frontera, SECRETARÍA DE RELACIONES EXTERIORES (Mar. 26, 2018).)

First, the Mexican Secretariat of Finance, through its Tax Administration Service (Servicio de Administración Tributaria, SAT), and the US Customs and Border Protection (CBP) signed a Memorandum of Understanding (MOU) to combat commercial and customs fraud, as well as smuggling and other illicit activities in foreign trade operations. The MOU was signed after months of negotiation. (Id.)

Secondly, the Mexican SAT and US CBP signed an MOU in order to integrate the current Cargo Pre-Inspection Program with the Unified Cargo Processing Program into a single program called the Joint Cargo Inspection Program. This will facilitate the process of importing and exporting merchandise, as well as the inspection of shipments and means of transport on both sides of the border. The Mexican Secretariat of Foreign Relations explained that this instrument will increase efficiency by avoiding duplication of processes, specifically by allowing cargo to enter the United States from Mexico and vice versa with a single review. (Id.)

Lastly, the National Service of Health, Safety and Agricultural Quality (an agency under the Mexican Secretariat of Agriculture, Livestock, Rural Development, Fisheries and Food) and the US CBP signed a letter of intent that establishes areas of collaboration on issues of interest related to cross-border trade in agricultural products. (Id.)

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