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Italy: New Legislation Creates Center to Monitor State-Regional Financial Agreements on Indebtedness

Tue, 17/07/2018 - 14:30

(July 17, 2018) On June 28, 2018, new legislation came into effect in Italy creating the Center for the Monitoring of Regional Agreements to provide oversight related to the indebtedness of the regions and local entities. (Decree No. 67 of the President of the Council of Ministers of April 23, 2018, Regulations on the Amendments to Decree No. 21 of the President of the Council of Ministers of February 21, 2017, on the Criteria and Modalities for the Implementation of Article 10, Paragraph 5 of Law No. 243 of December 24, 2012, on Recourse to Indebtedness by the Regions and Local Entities, Including the Implementation Modalities of the Substitutive Power of the State, in Case of Inertia or Delay, by the Regions and the Autonomous Provinces of Trent and Bolzano (Decree No. 67), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] No. 135, June 13, 2018 (in Italian), G.U. website.)

Motivation for the New Legislation

Decree No. 67 was issued by the President of the Council of Ministers as a response to the constitutional issues debated during a constitutional legitimacy case held at the Italian Constitutional Court concerning the impact of certain budgetary commitments by the Italian state, the regions, and other local entities. (Decision No. 247/2017 of October 11, 2017, of the Italian Constitutional Court in a Constitutional Legitimacy Case Lodged by the Autonomous Provinces of Bozano and Trent, and the Autonomous Regions of Trentino-Alto Adige/Südtirol and Friuli-Venezia Giulia, and the Veneto Region, G.U. No. 49, Dec. 6, 2017 (in Italian), Conference of the Regions and Autonomous Provinces website.)

New Oversight Mechanism

The new legislation creates the “Center for the Monitoring of Regional Agreements” as a mechanism to verify compliance with the financial agreements executed between the state and the regions. (Decree No. 67, art. 1(1)(e).) The Monitoring Center is located at the Ministry of the Economy and Finances’ Department of General Accounting of the State (id.) and is composed of high-level officials from the Ministry of Economy and Finance and the Ministry of the Interior, as well as representatives from numerous government unions (id. art. 1(3)).

In order to monitor compliance with regional agreements and verify the full use of the financial allocations approved for the implementation of investments, the Monitoring Center must use available data and information in accordance with several criteria listed in the new legislation and other indicators that the Center may select on its own initiative. (Id. art. 1(19) & (20).) The Center is also empowered to prepare general principles and strategies for the full use of financial allocations and investments by local authorities. (Id. art. 1(22).)

European Union: 5th Anti-Money Laundering Directive Enters into Force

Mon, 16/07/2018 - 17:30

(July 16, 2018) On July 9, 2018, the amendment of the European Union (EU) Anti-Money Laundering Directive (5th AMLD) entered into force. The AMLD obligates certain entities to fulfill customer due diligence requirements when they conduct business transactions and have in place policies and procedures to detect, prevent, and report money laundering and terrorist financing. The amendment

  • brings custodian wallet providers and virtual-currency exchange platforms within the scope of the AMLD,
  • interconnects the national central beneficial ownership registers,
  • enhances access to these registers,
  • lowers thresholds for the use of anonymous prepaid cards,
  • establishes centralized mechanisms to identify holders of payment or bank accounts, and
  • sets stricter standards for financial transactions with high-risk third countries.

Member States must implement the new rules into national law by January 10, 2020. (Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 Amending Directive (EU) 2015/849 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, and Amending Directives 2009/138/EC and 2013/36/EU (5th AMLD), 2018 O.J. (L 156) 43, EUR-Lex website; Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and Repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (4th AMLD), 2015 O.J. (L 141) 73, EUR-Lex website).

Definition of Virtual Currencies and Custodian Wallet Providers

The amendment defines “virtual currencies” as “a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of currency or money, but is accepted by natural or legal persons as a means of exchange and which can be transferred, stored and traded electronically.” A “custodian wallet provider” is defined as “an entity that provides services to safeguard private cryptographic keys on behalf of its customers, to hold, store and transfer virtual currencies.” (5th AMLD art. 1, para. 2(d).) As previously mentioned, the new rules extend the customer due diligence requirements to custodian wallet providers and virtual-currency exchange platforms.

Central Beneficial Ownership Registers

Another change to improve transparency concerns the national central beneficial ownership registers in the EU Member States. Beneficial owners are defined as “any natural person(s) who ultimately owns or controls the customer, and/or natural person(s) on whose behalf a transaction or activity is conducted.” (4th AMLD art. 3, para. 6.) The amendment requires that the central beneficial ownership registers for corporate or other legal entities are available to any member of the general public. (5th AMLD art. 1, para. 15(c).) The previous version of the AMLD made access for members of the general public dependent on demonstrating a legitimate interest. (4th AMLD art. 30, para. 5.) Information on beneficial owners of trusts will for the first time be available to the general public, but only to those who show a legitimate interest. (5th AMLD art. 1, para.16(d).) Previously, only competent authorities, Financial Intelligence Units, and entities subject to the customer due diligence rules were granted access to beneficial ownership information on trusts. (4th AMLD art. 31, para. 4.) When a trust is the beneficial owner of an entity, information will be accessible to persons that file a written request. (5th AMLD art. 1, para.16(d).)

Furthermore, in order to facilitate cooperation and information exchange between the Member States, the amendment requires Member States to connect their central registers via the “European Central Platform.” (5th AMLD art. 1, para.15 (g).) The interconnection of the central registers via the European Central Platform must be completed by March 10, 2021. (Id. art. 1, para. 42.) Beneficial ownership information must be available through the national registers and the interconnected European Central Platform for at least five years and no more than ten years after the entity has been removed from the register. (Id. art. 1, para.15 (g).)

Use of Anonymous Prepaid Cards

Furthermore, the amendment of the AMLD lowers the monetary thresholds for identifying the holders of prepaid cards to address risks linked to their use in financing terrorist activities. Payments carried out with anonymous prepaid cards online will be allowed only when the transaction amount does not exceed €50 (about US$59). (5th AMLD recital 14; art. 1, para. 17(b).) In-store use of an anonymous prepaid card must not exceed an amount of €150 (about US$176). (Id. art. 1, para. 7(a).)

Centralized Automated Mechanisms for Payment and Bank Accounts

The amendment obligates EU Member States to establish centralized registries or electronic data retrieval systems to identify natural or legal persons holding or controlling payment accounts, bank accounts, and safe-deposit boxes. (Id. art. 1, para. 19.) The national Financial Intelligence Units (FIUs) must be allowed direct, immediate, and unfiltered access to that information. Technical aspects of the interconnection of the centralized registries is to be worked out by the European Commission by June 26, 2020. (Id.)

High-Risk Third Countries

Finally, the amendment sets stricter standards for financial transactions with high-risk third countries, meaning non-EU countries that have been identified by the European Commission as having strategic deficiencies in their anti-money laundering or counterterrorism regimes. If a country is on that list, enhanced due diligence requirements must be performed by the companies conducting business with such a country. The AMLD harmonizes the enhanced due diligence obligations across the EU, but Member States may require companies to perform one or more additional mitigating measures. (Id. recital 12; art. 1, para. 11.)

Australia: New South Wales Enacts Bill to Amend Relationship References in Legislation

Fri, 13/07/2018 - 14:30

(July 13, 2018) On June 15, 2018, the governor of New South Wales in Australia gave assent to the Miscellaneous Acts Amendment (Marriages) Bill 2018 (NSW). (Miscellaneous Acts Amendment (Marriages) Bill 2018, PARLIAMENT OF NEW SOUTH WALES (last visited July 12, 2018); Miscellaneous Acts Amendment (Marriages) Act 2018 No 28 (NSW), New South Wales Government website.) The Bill makes amendments to several statutes and other instruments in order to update terms and definitions related to marriage, parentage, and change of sex. The changes follow the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) by the Commonwealth (federal) Parliament, which legalized same-sex marriage in Australia. (Kelly Buchanan, Australia: Same-Sex Marriage Bill Passes, GLOBAL LEGAL MONITOR (Dec. 13, 2017).)

For example, the Bill changed the definitions of “spouse” in several statutes by inserting the following wording: “the person to whom a person is legally married (including the husband or wife of a person).” (Miscellaneous Acts Amendment (Marriages) Act No 28 (NSW) sch 1.) Other amendments removed redundant references to spouses and de facto partners being of either the same or opposite sex. (Parliament of New South Wales, Miscellaneous Acts Amendment (Marriages) Bill 2018: Explanatory Note, at 3.) Amendments related to parentage were made to statutes such as the Adoption Act 2000 (NSW) and the Guardianship of Infants Act 1916 (NSW), including clarifying “that parents who are in a same sex marriage are not considered step parents of their children for the purposes of the definition of step parent in the [Adoption] Act.” (Id.)

The Bill also removed restrictions from the Births, Deaths and Marriages Registration Act 1995 (NSW) “so that persons who change their sex and are married may have that change of sex recorded on the Births, Deaths and Marriages Register.” (Id. at 4.) Previously, a person could not record a change of sex unless they were not married, since a same-sex marriage was not legal. (See Change of Sex, NSW Registry of Births, Deaths and Marriages (last updated June 22, 2018).)

China: Government Indicates All Virtual Currency Platforms Have Withdrawn from Market

Thu, 12/07/2018 - 20:45

(July 12, 2018) On July 6, 2018, the People’s Bank of China indicated that the platforms trading virtual currencies, such as Bitcoin, and dealing with initial coin offerings (ICOs) in China have “basically all safely withdrawn from the market.” Chinese authorities had identified 88 virtual currency trading platforms and 85 ICO platforms since September 2017 when they started to crack down on ICOs and trading of virtual currencies on exchanges. (Woguo Xuni Huobi Jiaoyi Pingtai Jiben Shixian Wu Fengxian Tuichu [Chinese Virtual Currency Platforms Basically Achieve Risk-Free Withdrawal], XINHUA (July 6, 2018).)

In September 2017, Chinese authorities issued an order to completely ban the practice of raising funds through ICOs—the equivalent of initial public offerings for new virtual currencies—and imposed restrictions on the primary business of virtual currency trading platforms. Since then, such platforms have essentially been shutting down their trading business in China. (LAW LIBRARY OF CONGRESS, GLOBAL LEGAL RESEARCH CENTER, REGULATION OF CRYPTOCURRENCY IN SELECTED JURISDICTIONS 30–31 (June 2018).)

Recently, the government has taken more measures to combat “new varieties of illegal financial activities” that arose after the domestic transactions were shut down. Platforms “going overseas,” for example, would allow Chinese investors to participate in overseas transactions. Up until May 2018, the authorities blocked 110 websites dealing with virtual currencies or ICOs, according to the Xinhua report. (Woguo Xuni Huobi Jiaoyi Pingtai Jiben Shixian Wu Fengxian Tuichu, supra.)

Furthermore, the authorities have pressed payment institutions to strictly implement the requirement of not providing services related to virtual currencies. As a result, Alipay, a big third-party mobile- and online-payment platform, closed approximately 3,000 accounts found to be dealing with virtual currencies. In addition, the public security authority has reportedly investigated over 300 offenses related to virtual currencies. (Id.)

China was once the most active market for Bitcoin trading on exchanges, and Bitcoin traded with Chinese yuan used to account for over 90% of the global trading in Bitcoin. In the wake of the regulatory measures the government has instituted since September 2017, Bitcoin traded with Chinese yuan has dropped to under 1% of global Bitcoin trading, according to the Xinhua report. (Id.)

Brazil: State of Rio de Janeiro Enacts New Law for the Support of Victims of Rape

Wed, 11/07/2018 - 20:30

(July 11, 2018) The State of Rio de Janeiro, Brazil, has enacted a Law to create a program for the support of victims of rape in the state. According to article 2(§ 1) of Law No. 8,007 of June 26, 2018, the testimony of the female victim and the information collected in the health unit that provides initial care are sufficient to initiate a police investigation. (Lei No. 8.007, de 26 de Junho de 2018, Legislative Assembly of Rio de Janeiro website.) From now on, the investigation of a case will start from the moment of the victim’s complaint. (Felipe Rebouças, Vítimas de Estupro Terão Programa de Atenção, O DIA (July 3, 2018).)

The program must be implemented in all police stations, including the Specialized Police Stations for the Care of Women (Delegacias Especializadas de Atendimento à Mulher, DEAM), the Police Station for the Protection of the Adolescent (Delegacia de Proteção do Adolescente, DPCA), the Police Station for Child and Adolescent Victims (Delegacia da Criança e do Adolescente Vítima, DCAV), and the Legal Medical Institute (Instituto Médico Legal, IML), in a joint action with the Integrated Centers for Assistance to Women (Centros Integrados de Atendimento à Mulher, CIAM) and with the Reference Centers for Assistance to Women in the State of Rio de Janeiro (Centros de Referência de Atendimento à Mulher do Estado do Rio de Janeiro). (Lei No. 8,007, art. 1(§ 1).)

Whenever possible, the female victim is to be examined by a female doctor (legista), except in the case of a minor who is female, who must be examined by a female doctor. (Id. art. 1(§ 3).) Every step must be preceded by an interview during which the female victim must be heard and oriented regarding police procedures, what will be done at each stage of care, and the importance of multiprofessional medical care. The victim’s decision regarding the performance of any procedure must be respected. (Id. art. 2(§ 2).) In all stages of care, the principles of respect for the dignity of the person, nondiscrimination, confidentiality, and privacy must be observed. (Id. art. 2(§ 3).)

In the case of violence against children or adolescents, the guidelines set forth in the Statute of Children and Adolescents (Estatuto da Criança e do Adolescente, Lei No. 8.069, de 13 de Julho de 1990, Presidency of the Republic website) must also be observed. (Id. art. 3.)

Brazil: National Supervisory of Justice Authorizes Transgender Persons to Change Name and Gender at Civil Registries Without Judicial Approval

Wed, 11/07/2018 - 17:30

(July 11, 2018) On June 28, 2018, the National Supervisory of Justice (Corregedoria Nacional de Justiça) issued Administrative Act No. 73 (Provimento CNJ No. 73, de 28 de Junho de 2018, National Supervisory of Justice website), which provides in article 1 for registering the change of name and gender in the birth and marriage records of a transgender person in the Civil Registry of Natural Persons (Registro Civil das Pessoas Naturais). (Corregedoria Normatiza Troca de Nome e Gênero em Cartório, CNJ NOTÍCIAS (June 29, 2018).)

Pursuant to article 2 of the Act, legally competent persons over 18 years of age may request the Civil Registry to change and register their name and gender in order to adapt the name and gender to the persons’ self-perceived identity. Change of family name, however, is not allowed. (Id. art. 2 (§ 2).)

The request may be submitted to the Civil Registry regardless of prior judicial authorization or proof of sexual reassignment surgery and/or hormonal or other medical treatment. The presentation of a medical or psychological report is also not required. (Id. art. 4 (§ 1).)

According to the abovementioned CNJ (National Council of Justice) article, the legislation is in line with the decision recently issued by the Federal Supreme Court (Supremo Tribunal Federal, STF) in the Direct Action of Unconstitutionality No. 4275-DF (Ação Direta de Incosntitucionalidade No. 4275, Federal Supreme Court website (last visited July 10, 2018)), which recognized the possibility of transgender persons changing their civil registry without gender change or even judicial authorization. Furthermore, international human rights laws, in particular the Pact of San José, Costa Rica (Decreto No. 678, de 6 de Novembro de 1992, Presidency of the Republic website), requires respect for the right to a name; recognition of legal personality; personal freedom, honor and dignity; and domestically, respect for the Brazilian Public Records Law (Lei de Registros Públicos, Lei No. 6.015 de 31 de Dezembro de 1973, Presidency of the Republic website). (CNJ NOTÍCIAS, supra.)

National Supervisory of Justice

The National Supervisory of Justice is an organ of the CNJ that acts “to orient, coordinate, and execute public policies focused on the correctional activity and good performance of the judicial activity of the courts and judges of the country.” (Cadastro Nacional de Adoção, CORREGEDORIA NACIONAL DE JUSTIÇA (last visited July 10, 2018) (translation by author).) The Supervisory aims to achieve improved effectiveness in the jurisdictional rendering of decisions in accordance with the principles of legality, impersonality, morality, publicity, and efficiency listed in article 37 of the Federal Constitution. (Id.)

Brazil: National Council of Justice and Federal Council of Psychology Sign Protocol of Intentions to Help Victims of Violence

Wed, 11/07/2018 - 14:30

(July 11, 2018) On July 4, 2018, the President of the National Council of Justice (Conselho Nacional de Justiça, CNJ) and the president of the Federal Council of Psychology (Conselho Federal de Psicologia, CFP) signed a protocol of intentions to give psychological assistance to women who have been subjected to domestic and family violence, as well as to their dependents. (CNJ Firma Protocolo com Conselho de Psicologia para Atender Vítimas de Violência, CNJ NOTÍCIAS (July 5, 2018).)

The protocol will enable the full implementation of Administrative Act 15 of March 8, 2017 (Portaria CNJ No. 15 de 8 de Março de 2017, CNJ website), which created the National Judicial Policy to Combat Violence Against Women (Política Judiciária Nacional de Enfrentamento à Violência Contra as Mulheres) through partnerships between the judiciary and psychology service schools. (Id.)

The protocol encourages the work of multidisciplinary teams from the domestic and family violence-against-women courts and intends to strengthen the treatment assistance offered to the victims of aggression. (Id.)  According to the protocol, the psychology services fulfill the dual function of offering psychological services to the population at large and creating conditions for the training of professionals and students of psychology. (Id.)

In addition to the partnerships established under the National Judicial Policy to Combat Violence Against Women in 2017, partnerships to enable comprehensive and multidisciplinary care for victims of domestic violence were also foreseen in Law 11.340 of August 7, 2006 (Lei Maria da Penha, Lei No. 11.340, de 7 de Agosto de 2006, Presidency of the Republic website), which, among other measures, provides for the possibility of a judge referring a victim to specialized professional care.

Brazil: City of Rio de Janeiro Bans Plastic Straws

Tue, 10/07/2018 - 14:40

(July 10, 2018) On July 4, 2018, the mayor of the city of Rio de Janeiro sanctioned Law No 6,384, which bans plastic straws in the city. (Lei No. 6.384, de 4 de Julho de 2018, DIÁRIO OFICIAL ELETRÔNICO DO MUNICÍPIO DO RIO DE JANEIRO, No. 73, July 5, 2018, at 3.) Article 1 of the Law requires restaurants, snack bars (lanchonete), bars and similar places, beach barracks, and street vendors in the municipality of Rio de Janeiro to use and provide their customers with straws made only of biodegradable and/or recyclable paper. The straws must also be individually and hermetically packed with similar material. (Law No. 6,384, art. 1). Noncompliance is punishable by a fine of R$3.000,00 (about US$773.80). (Id. art. 2.) Recidivists are subject to a fine of R$6.000.00 (about US$1,547.60). (Id. art. 3.)

China: Supervision Law Enacted Establishing a New State Supervisory Organ

Mon, 09/07/2018 - 14:30

(July 9, 2018) On March 20, 2018, the National People’s Congress (NPC) of the People’s Republic of China (PRC or China) adopted the PRC Supervision Law.  Effective on the same day, the Law repealed the existing PRC Administrative Supervision Law and established a new supervisory organ of the state. (Zhonghua Renmin Gongheguo Jiancha Fa [PRC Supervision Law] (adopted by the NPC on Mar. 20, 2018), Chinese Government Legal Information Network, English translation available on the Westlaw China website (by subscription).)

According to the Law, the new National Supervision Commission (NSC) is the supreme supervisory organ of the state. Supervision commissions are also to be established at subnational levels, including provinces, autonomous regions, municipalities directly under the central government, autonomous prefectures, counties, autonomous counties, cities, and districts of cities. (Id. art. 7.)

The supervision commissions are tasked with supervising all public functionaries who exercise public power. The commissions will investigate occupation-related wrongdoings and criminal activities in order to build a clean government and combat corruption. (Id. art. 3.) The Law provides that the commissions are to exercise supervisory power independently and free of any interference by the administrative organ, any social organizations, or any individuals. (Id. art 4.)

The Law grants supervision commissions the power of retention in custody (liu zhi) in investigating serious corruption cases. (Id. art. 22.) The period of retention in custody must not exceed three months, but the period may be extended by another three months. (Id. art. 43.) The Law provides a few procedural requirements in protection of the detainees, such as notifying the detainee’s family within 24 hours unless such notification may obstruct the investigation, and guaranteeing the detainee food, rest, and safety. (Id. art. 44.)

The Supervision Law, in particular the provisions of retention in custody, has been criticized by Amnesty International as a systematic threat to human rights.  According to Amnesty, the Law “by-passes judicial institutions by establishing a parallel system solely run by the Chinese Communist Party with no outside checks and balances.” (China: New Supervision Law A Systemic Threat to Human Rights, AMNESTY INTERNATIONAL (Mar. 20, 2018).)

Austria: Court Allows Intersex Individuals to Register Third Gender Other Than Male or Female

Fri, 06/07/2018 - 14:30

(July 6, 2018) On June 15, 2018, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) held that intersex individuals have a right to register in the civil status register a gender other than male or female that conforms to their gender identity. It stated that forcing intersex persons to register a male or female gender but not offering an additional option violated their right to respect for private life as protected by article 8 of the European Convention on Human Rights (ECHR), which has constitutional status in Austria. It held that the interpretation of the term “gender” in the Austrian Personal Status Act must not be restricted to binary gender and the provision in question may therefore remain in force. (VfGH, June 15, 2018, Docket No. G 77/2018 (VfGH G 77/2018), VfGH website (in German); Personenstandsgesetz 2013 [PStG 2013] [Personal Status Act 2013], Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I No. 16/2013, as amended, § 2, para. 2, no. 3, Rechtsinformationssystem (RIS) [Legal Information System]; Convention for the Protection of Fundamental Rights and Freedoms [European Convention on Human Rights, ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, art. 8, ECtHR website.)

Facts of the Case and Decision

The reason for the VfGH’s examination of the provision of the Personal Status Act was the application of an intersex individual to change the current male gender entry in the central civil status register to “inter,” “other,” “X,” “undefined,” or a similar term, or to strike the gender entry in its entirety. (VfGH G 77/2018, at 1.) The request was denied by the registrar in charge and the State Administrative Court of Upper Austria on the grounds that there was no right allowing one to register a gender different from male or female. (Id.) When the applicant filed a complaint with the Constitutional Court, the VfGH decided to examine the constitutionality of the provision of the Personal Status Act on its own initiative (ex officio), because it would have had to apply the law in addressing the pending complaint by the applicant. (Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Law], BGBl. No. 1/1930, as amended, art. 140, RIS; VfGH, Prüfungsbeschluss [Examination Order], Mar. 14, 2018, Docket No. E 2918/2016-29, VfGH website.)

The VfGH in its decision stated that article 8 of the ECHR awards everyone the right to respect for private and family life. It protects the human personality in its identity, individuality, and integrity as well as all its different expressions. Gender identity and a right to self-determination fall within the personal sphere protected by article 8 of the ECHR. (VfGH G 77/2018, at 17.) The Court concluded that the right to respect for individual gender identity includes that an individuals must only accept a gender description that conforms to their gender identity or be free to not declare a gender at all. (Id. at 18 & 23.) The VfGH cited examples of other terms that could be used, such as “diverse,” “inter,” or “open,” but ultimately left open which term may be used. (Id. at 37 & 38.) It stated that public authorities are allowed to examine whether a chosen term adequately expresses what it intends to convey. In the opinion of the Court, article 8 of the ECHR does not require an arbitrary choice of terms to describe one’s gender. (Id. at 39.)

In November 2017, the German Constitutional Court had ruled on a similar issue and held that the provisions of the German Personal Status Act at issue in the case violated the complainant’s general right to personality, which includes gender identity, as they only allowed the registration of a female or male gender at birth or no gender at all. It concluded that the Personal Status Act must allow a third gender option for intersex people that conforms to their gender identity. (Jenny Gesley, Germany: Personal Status Act Must Allow Third Gender Option for Intersex People, IN CUSTODIA LEGIS (Nov. 20, 2017).) The Austrian Constitutional Court referenced that decision and stated that it was of particular importance as pointed out by the German court that “gender assignment … typically plays a key role both in a person’s self-perception and in the way this person is perceived by others.” (VfGH G 77/2018, at 31, citing BVerfG, Oct. 10, 2017, Docket No. 1 BvR 2019/16, BVerfG website.)

Brazil: State of Rio de Janeiro Bans Plastic Bags

Thu, 05/07/2018 - 17:30

(July 5, 2018) On June 25, 2018, the governor of the state of Rio de Janeiro promulgated Law No. 8,006 (Lei No. 8.006, de 25 de Junho de 2018, State of Rio de Janeiro Legislative Assembly website) banning the use, distribution, and even sale of plastic bags all over the state. (Gilberto Porcidonio, Pezão Sanciona Lei que Proíbe Sacolas Plásticas em Supermercados do Rio, O GLOBO (June 25, 2018).)

Law No. 8,006 amends Law No. 5,502 of July 15, 2009 (Lei No. 5.502, de 15 de Julho de 2009, State of Rio de Janeiro Legislative Assembly website), which provides for the replacement and collection of plastic bags in commercial companies located in the state of Rio de Janeiro.

According to amended article 2 of Law No. 5,502, commercial companies, entrepreneurs, and owners of commercial establishments located in the State of Rio de Janeiro are prohibited from distributing (for free or through sales) disposable plastic bags or bags composed of polyethylene, polypropylene, and/or similar materials, and must replace them within eighteen months from the date of publication of Law No. 8,006 with reusable/returnable bags, as specified in article 2(§ 1) of Law No. 5,502. This Law determines that the reusable/returnable plastic or other bags mentioned above must have a resistance of at least 4, 7, or 10 kilos (8.8, 15.4, and 22 pounds, respectively) and be made with more than 51% percent materials from renewable sources. Bags for recyclable waste should be the color green, and bags for refuse should be gray to assist consumers in separating waste and facilitating identification during garbage collection. Article 2(§ 2) of Law No. 5,502 also determines that the abovementioned reusable/returnable bags may be sold for no more than their cost price.

The Law does not apply to the original packaging of goods, but is applicable to plastic and other bags provided by a company or enterprise for weighing and packaging perishable or nonperishable products. (Law No. 5,502, art 2-A(§ 2.)

Brazil: Registrar Offices Not Allowed to Record Affective Relationships Between Multiple Persons as Stable Unions

Thu, 05/07/2018 - 14:30

(July 5, 2018) The National Council of Justice (Conselho Nacional de Justiça, CNJ) decided by a majority of votes that registrar offices (cartórios) cannot register affective relationships between multiple persons as stable unions. The decision was made on June 26, 2018, in response to a request made in 2016 by the Association of Family Law and Succession (Associação de Direito de Família e das Sucessões, ADFAS) seeking a prohibition on recognizing and recording such relationships. The request argued that two registrar offices in the state of São Paulo had recorded deeds of multiaffective stable unions, which is not allowed by the legislation. (Cartórios Não Podem Registrar Relações Poliafetivas como União Estável, diz CNJ, ISTO É (June 26, 2018).)

In delivering the result, the president of the CNJ, Justice Carmen Lúcia, highlighted that it is not the Council’s duty to authorize or prohibit multiunions, but to judge whether registrar offices can record relationships between three or more people. “Here we are not dealing with the relationship between people, but the power of an office to receive the deed,” said Carmen Lucia. (Id. (translation by author).)

Stable Unions

For the purpose of state protection, article 226(§ 3) of the Brazilian Constitution (CONSTITUIÇÃO FEDERAL [C.F.], Presidency of the Republic website) recognizes a stable union between a man and a woman as a family entity and further establishes that the law must facilitate the conversion of such a relationship into a marriage.

Law No. 9,278 of May 19, 1996 (Lei No. 9.278 de 10 de Maio de 1996, art. 1, Presidency of the Republic website) implements article 226(§ 3) of the Constitution by recognizing as a family entity a durable, public, and continuous relationship between a man and a woman that was established with the purpose of constituting a family. The Law also sets forth, inter alia, the rights and duties of the companions (art. 2), property division (art. 5), alimony (art. 7), and court jurisdiction (art. 9). Additionally, article 8 of Law No. 9,278 states that the partners in a stable union may, by mutual agreement and at any time, request that the civil registrar’s office to convert their stable union into a marriage.

Federal Supreme Court Decision

On May 5, 2011, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) held that same-sex couples are included within the definition of “stable union” found in article 226(§3) of the Brazilian Constitution. (STF, ADI 4.277STF, ADPF 132, Supreme Federal Court website.)

Same-Sex Marriage

Although there is no law expressly allowing same-sex marriage in the country, on May 14, 2013, the CNJ approved Resolution No. 175 (Resolução CNJ No. 175, de 14 de Maio de 2013, CNJ website), which prohibits the competent authorities from refusing to license or celebrate the civil marriages of persons of the same sex, or to convert stable unions of persons of the same sex into marriage. If a registrar’s office fails to comply with the Resolution, the couple concerned may bring the case to the magistrate judge for the district (juiz corregedor da comarca) so that the judge can order the registrar’s office to comply with the measure. In addition, administrative proceedings may be initiated against the officer who refused to celebrate the marriage or convert the stable union into a marriage.

National Council of Justice

The National Council of Justice (Conselho Nacional de Justiça) was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004. (Emenda Constitucional No. 45, de 30 de Dezembro de 2004, Presidency of the Republic website.) It is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges. (C.F. art. 103-B(§ 4); Quem Somos, CONSELHO NACIONAL DE JUSTIÇA (last visited July 2, 2018).)

Composition of the CNJ

According to article 103-B of the Constitution, the CNJ is composed of fifteen members who serve for a term of two years, with one continuation allowed. The members include one justice each from the Federal Supreme Court, the Superior Tribunal of Justice, the Superior Tribunal of Labor, and a State Tribunal of Justice; one state judge; one judge from a Federal Regional Tribunal; one federal judge; one judge from a Regional Labor Tribunal; one labor law judge; one member from the federal Public Prosecutor’s Office; one member from the state Public Prosecutor’s Office; two lawyers appointed by the Federal Council of the Brazilian Bar Association; and two citizens of notable juridical learning and spotless reputation, one appointed by the Chamber of Deputies and the other appointed by the Federal Senate. (Composição atual, CONSELHO NACIONAL DE JUSTIÇA (last visited June 29, 2018).)

Jurisdiction of the CNJ

In addition to the powers conferred upon the CNJ by the Statute of the Magistracy (Lei Orgânica da Magistratura Nacional, Lei Complementar No. 35, de 14 de Março de 1979, Presidency of the Republic website), the Council has responsibility for

  1. preserving the autonomy of the judiciary, enforcing the Statute of the Magistracy, and issuing regulations within the ambit of its jurisdiction, or recommending measures;
  2. enforcing article 37 of the Constitution and hearing, ex officio or upon demand, cases involving the legality of administrative acts performed by members or organs of the judiciary, vacating or revising such acts, or setting a period in which to adopt necessary measures for the exact compliance with the law, without prejudice to the jurisdiction of the Audit Tribunal of the Union;
  3. receiving and hearing complaints against members or bodies of the judiciary, including complaints against their auxiliary services, employees, and agencies rendering notarial and registry services that act by delegation of public or official powers, without prejudice to the disciplinary and correctional jurisdiction of the tribunals. The Council may assume jurisdiction over ongoing disciplinary proceedings and determine removal, availability, or retirement with compensation or benefits proportional to the time of service and apply other administrative sanctions, assuring a full right of defense;
  4. filing complaints [representar] with the Public Prosecutor’s Office, in case of crimes against the public administration or abuse of authority;
  5. revising, ex officio or upon demand, disciplinary proceedings of judges and members of tribunals decided less than one year ago;
  6. preparing a statistical report each semester on the cases and decisions entered, by unit of the Federation, which have been issued by the different organs of the judiciary; and
  7. preparing an annual report that proposes the measures it deems necessary with respect to the situation of the judiciary in the country and the activities of the Council. This report should be part of the message of the President of the Federal Supreme Court sent to the National Congress on the occasion of the opening of the legislative session. (C.F. article 103-B(§ 4) (translation by author).)

Sweden: Parliament Makes Lack of Consent the Basis for Rape Charges, Introduces Criminal Liability for Negligent Sexual Assault

Tue, 03/07/2018 - 14:30

(July 3, 2018) On May 23, 2018, the Swedish Parliament passed legislation that changes the definition of rape under Swedish law. The law currently considers a person to be guilty of rape “who, by assault or otherwise by force or threat of a criminal act forces another person to have sexual intercourse.” (6 kap 1 § Brottsbalken [BrB](Svensk författningssamling [SFS] 1962:700) (all translations by author).) Under the new law a person is guilty of rape “who, with a person who is not participating freely, has sexual intercourse.” (Justitieutskottets betänkande 2017/18:JuU29 En ny sexualbrottslagstiftning byggd på frivillighet [201/18:JuU29] at 36; Proposition [Prop.] 2017/18:117: En ny sexualbrottslagstiftning byggd på frivillighet [New Sexual Crime Legislation Based on Volition].) The law will enter into force on July 1, 2018. (Prop. 2017/18:117 at 1.)

The government has justified the legislation by arguing that it will set an example and clarify that every human has an unconditional right to personal and sexual integrity and sexual self-determination. (2017/18:JuU29 at 1.)

New Provisions

The new provisions also specify the situations in which intercourse must never be considered voluntary. Thus, acts of intercourse that result from physical assault, threats of a crime, or spreading of negative information about someone are always rape. In addition, “improper exploitation” (otillbörligt utnyttjande) of a person who is unconscious, sleeping, seriously afraid, intoxicated, or otherwise under the influence of alcohol or drugs cannot be consensual. Nor can consent be deemed given in situations where the perpetrator is seriously taking advantage of a person who is dependent on him or her. (2017/18:JuU29 at 12.)

Silent Consent

Under the new provisions, intercourse stemming from silent consent is not automatically rape. However, silent consent needs to be corroborated by additional evidence. (See Lagrådet [Council on Legislation Referral], En ny sexualbrottslagstiftning byggd på frivillighet [A New Sexual Offense Based on Volition] 4 (Jan. 23, 2018); Prop. 2017/18:117 at 34 & 80.) The situation must be viewed in its totality to determine whether silent consent was given. (LAGRÅDET, supra, at 4.)

Negligent Rape (oaktsam våldtäkt)

Judges argue that the difficult part in adjudicating sexual crimes is determining the intent of the accused, which, according to the new law, means whether the accused was aware that he or she lacked consent. (Svea Hovrätt [Svea Court of Appeals] (Referral Response) (Yttrande Diarie No. 2016/1009, Jan. 31, 2017) at 4.) In response to this difficulty, the new law provides for liability and prison sentences for perpetrators convicted of being grossly negligent (grovt oaktsam) in obtaining the needed consent. (6 kap. 1a § of the amended BrB.) Under Swedish law gross negligence has been described as “conscious negligence or more serious forms of unconscious negligence.” (Statens Offentliga Utredningar [SOU] 2016:60 Ett starkare skydd för den sexuella integriteten [Stronger Protection for Sexual Integrity], at 269.) The test as described in the final bill is whether the person could and did do all the things necessary to determine whether consent was actually received. (Prop. 2017/18:177 at 48.)

Criticism of the Proposal

Although there has been overwhelming agreement that the new law makes clear that everyone has undeniable sexual integrity and freedom, some stakeholders argued during the consultation phase when stakeholders are asked to respond to law proposals (remissstadiet) that the law will be difficult to enforce. (See, e.g., Svea Court of Appeals Referral Response, supra, at 1; Referral Response from Anne Ramberg, President of the Swedish Bar Association [Sveriges Advokatsamfund], to Swedish Department of Justice (R-2016-2094, Jan. 27, 2017).) The criticism centers around two issues: it will be difficult to prove whether consent has been given (word against word) and, because it is unclear from the legal text, difficult to determine what specific acts would be punishable. Notably, a number of courts responding to the request for review are worried that the law will create a gap between the expectations and the results of the law, resulting in more reported cases of rape (allegations of sexual intercourse without the required consent), but fewer cases that are brought to trial, and even fewer convictions. (Domstolsverket [Swedish National Courts Administration] Referral Response (Jan. 31, 2017), at 2; Svea Court of Appeals Referral Response, supra, at 4.)

Other stakeholders, such as the Police Authority, have found that the law was well written and sufficiently clear on what constitutes criminal behavior. (Referral Response, Police Authority, to Swedish Justice Department (Diarie No. A486.049/2016, Jan. 20, 2017), at 1.)

Response from Council on Legislation

The Swedish Council on Legislation, an independent body made up of current and former Justices from the Supreme Court and Supreme Administrative Court that tests the constitutionality of proposed legislation, has criticized the law for not being predictable, arguing that predetermining what actions will be punishable cannot be done with sufficient accuracy. The Council on Legislation therefore advised against the proposed changes (Lagrådet, supra, at 5.)

Nordic Laws

Sweden is the second Nordic country to adopt legislation making lack of consent the basis for charges of rape. Iceland passed a similar law on March 23, 2018. (Lög um breytingu á almennum hegningarlögum, nr. 19/1940, með síðari breytingum (kynferðisbrot) (in Danish).) Other Nordic countries have also considered similar laws, with both the Finnish and Norwegian Parliaments recently rejecting similar proposals. (Antti Häkkänen, Expertgrupp ska diskutera behovet av en samtyckesmodell vid våldtäktsbrott [Group of Experts to Discuss Need for Consent Model in Rape Cases], OIKEUSMINISTERIO/JUSTITIEMINISTERIET (Mar. 14, 2018); Stortinget, Representantforslag om endringer i straffeloven med sikte på at voldtekt blir definert som seksuell omgang uten oppriktig samtykke [Representatives’ Proposal on Amendments to the Penal Code with a View to Rape Being Defined as Sexual Intercourse Without Sincere Consent] (Dokument 8:96S (Apr. 5, 2017).) A new Finnish citizen’s initiative was brought forward earlier this year but has not yet been brought to a vote. (Raiskauksen määritelmä suostumusperustaiseksi – Suostumus2018 [Defintion of Rape Based on Consent – Consent2018], MEDBORGARINITIATIV (June 5, 2018) (in Finnish).)

Creation of a New App

One Swedish lawyer has developed a smartphone app that persons could use to log in and with their national Bank-ID confirm that they are engaging in voluntary sexual relations. She argues that the use of the app will make sexual partners more careful in considering whether they want to engage in sexual relations with the specific person. (Stefan Wahlberg, Nu kan du signera digitalt innan du har sex – advokaten har tagit fram en samtyckesapp [Now You Can Sign Digitally Before You Have Sex – Lawyer Produces Consent Application], DAGENS JURIDIK (June 26, 2018).) What bearing the app would have on proving consent in court is unclear.

Japan: Climate Change Adaptation Act Enacted

Tue, 26/06/2018 - 20:30

(June 26, 2018) The Japanese Diet enacted the Climate Change Adaptation Act in June 2018. (Act No. 50 of 2018, Kanpou Extra Ed. No. 126, at 41 (June 13, 2018) (in Japanese).)

Before this legislation was passed, measures to reduce greenhouse gases were adopted on the basis of the Act on Promotion of Warming Countermeasures (Act No. 117 of 1990). However, there was no specific law to take measures against climate change. (Press Release, Ministry of the Environment, Concerning the Cabinet Decision on the Climate Change Adaptation Bill (Feb. 20, 2013).)

The Climate Change Adaptation Act obligates the national government to formulate a global-warming countermeasure plan and take measures to promote the suppression of greenhouse gas emissions. (Climate Change Adaptation Act art. 1.)  Local governments must promote measures to control emissions of greenhouse gases in accordance with the natural and social conditions of the area. (Id. art. 4.) Business operators must endeavor to take measures to suppress the emission of greenhouse gases in their business activities and cooperate with national and local governments in their directives regarding greenhouse gas emissions. (Id. art. 5.)

Japan: Three Holidays to Be Moved to Ease 2020 Olympic Ceremony Traffic

Tue, 26/06/2018 - 17:30

(June 26, 2018) The Tokyo Olympic and Paralympic Special Measures Act (Act No. 33 of 2015) was amended on June 20, 2018. (Act to Amend the Tokyo Olympic and Paralympic Special Measures Act, Act No. of 2018, Kanpou Special Ed. No. 132, at 5 (June 20, 2018) (in Japanese).)

Under the new Act, the dates of three national holidays will be moved to reduce traffic congestion and promote security at the Olympic ceremonies in 2020. (Tokyo Olympic and Paralympic Special Measures Act, new art. 29.) The three holidays are Physical Fitness Day, usually the second Monday of October; Marine Day, normally the third Monday of July; and Mountain Day, which falls every year on August 11.

According to the new Act, Physical Fitness Day will be moved to the day of the Tokyo Olympic opening ceremony—Friday, July 24, 2020. Marine Day will be changed to the day prior to the opening ceremony, July 23. Finally, Mountain Day will be shifted to August 10, 2020, the day after the closing ceremony. (Japan Enacts Law to Move Holidays to Ease Traffic for 2020 Olympics, MAINICHI JAPAN (June 13, 2018).)

Brazil: Supreme Court Allows Satire of Political Candidates

Tue, 26/06/2018 - 14:30

(June 26, 2018) On June 21, 2018, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) ruled as unconstitutional provisions of the Elections Law that prevented radio and television broadcasters from running humorous programs ridiculing or lampooning candidates, political parties, and coalitions in the three months prior to an election. (Lei das Eleições, Lei No. 9.504, de 30 de Setembro de 1997; STF Declara Inconstitucionais Dispositivos da Lei das Eleições que Vedavam Sátira a Candidatos, NOTÍCIAS STF (June 21, 2018).)

The ruling was the final decision on a Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade (ADI) 4451) proposed by the Brazilian Association of Radio and Television Broadcasters (Associação Brasileira de Emissoras de Rádio e Televisão, ABERT) arguing that sections II and III (in part) of article 45 of the Elections Law were unconstitutional. ABERT maintained that the ban violated freedom of expression, freedom of the press, and the right to information—institutional guarantees truly constitutive of Brazilian democracy—producing “a serious silencing effect on radio and television stations, forced to avoid spreading controversial political issues so as not to be accused of ‘disseminating a favorable or negative opinion’ of a particular candidate, party, coalition, or its organs or representatives.” (Id.)

Writing for the Court, whose decision was unanimous, Justice Alexandre de Moraes stressed that the provisions of Law No. 9,504 violated freedom of expression, freedom of the press, and the right to information under the pretext of ensuring smoothness and equality in elections. (Id.) According to Moraes, the provisions are unconstitutional because they subordinate and forcefully subject freedom of expression to restrictive norms during the electoral period, with the clear purpose of reducing freedom of opinion, artistic creation, and the free exchange of ideas. (Id.)

Brazil: Supreme Court Rules Federal Police Plea Bargains Are Constitutional

Mon, 25/06/2018 - 17:30

(June 25, 2018) On June 21, 2018, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) ruled on a Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade (ADI) 5508) proposed by the Public Prosecutor’s Office (Procuradoria Geral da República), holding that agents of the Federal Police (Delegados) could not make plea bargain agreements (acordos de colaboração premiada). (STF Decide que Delegados de Polícia Podem Firmar Acordos de Colaboração Premiada, Notícias STF (June 20, 2018).)

Writing for the majority, Justice Marco Aurélio determined that the formulation of a plea bargain agreement by the police authority as a means of obtaining evidence does not interfere with the constitutional duty of the Public Prosecutor’s Office to file criminal charges. Aurélio emphasized that even if the police authority offers a reduction of a criminal sentence to a person, the materialization of this benefit can only occur judicially because it is a prerogative of the judiciary to approve it or not. (Id.)

According to the decision, although the participation of the Public Prosecutor’s Office is not mandatory at all stages of the drafting of plea bargain agreements between the police authority and the person who decides to enter into it, the Public Prosecutor’s Office must state its opinion about the agreement. However, it is solely for the court to decide whether or not to approve the agreement, after evaluating the proposal and revising any clauses that may be disproportionate, abusive, or illegal. (Id.)

The dissenting justices argued that, although the police authority can formulate a plea bargain agreement, the opinion of the Public Prosecutor’s Office on the terms of the agreement must be final and binding. They also argued that the police authority could submit to the judge the agreement signed with the person provided that the proposal generates only the sanctions provided for in article 4 and article 4, paragraph 5 of Law No. 12,850 of August 2, 2013 (Lei No. 12.850 de 2 de Agosto de 2013), in conjunction with a nonbinding opinion of the Public Prosecutor’s Office (id.).

Direct Action of Unconstitutionality

According to article 102(I)(a) of the Federal Constitution (CONSTITUIÇÃO FEDERAL [C.F.], art. 102(I), the STF also has original jurisdiction to try and decide direct actions of unconstitutionality (Ação Direta de Inconstitucionalidade) of a federal or state law or normative act, or declaratory actions of constitutionality (Ação Declaratória de Constitucionalidade) of a federal law or normative act. This incumbency somewhat resembles the issuance of advisory opinions, a situation not allowed in the Supreme Court of the United States, which requires the existence of an actual case or controversy to hear a case. (U.S. CONST. ART. III, § 2, amended by U.S. CONST. AMEND. XI.)

A direct action of unconstitutionality is the route by which, without injury to an individual right, a procedure is established that enables the determination of whether rules (laws or federal and state normative acts) are contrary to the constitutional command and therefore invalid. (1 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 57, 58 (São Paulo, SP: Editora Saraiva 2005).)

A declaratory action of constitutionality aims to obtain a declaration, in theory, of the constitutionality of a norm because it conforms to the Constitution. (Id. at 45.)

Article 103 of the Constitution provides that the President of the Republic, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of a Legislature or the Legislative Chamber of the Federal District, the Governor of a State or the Federal District, the Attorney General of the Republic, the Federal Council of the Brazilian Bar Association, a political party represented in the National Congress, a union confederation, or a national class entity can bring direct actions of unconstitutionality and declaratory actions of constitutionality. Law No. 9,868 of November 10, 1999, provides the procedures for the trial of these types of actions. (Lei No. 9.868, de 10 de Novembro de 1999.)

France: Bill to Amend Constitution Submitted

Tue, 19/06/2018 - 17:30

(June 19, 2018) On May 9, 2018, the French Prime Minister submitted a bill to the National Assembly (one of the two houses of the French Parliament) that aims to amend several provisions of the Constitution. (Projet de loi constitutionnelle pour une démocratie plus représentative, responsable et efficace [Constitutional Bill for a More Representative, Responsible, and Efficient Democracy], ASSEMBLEE NATIONALE [NATIONAL ASSEMBLY], No. 911, May 9, 2018.)  This bill addresses a fairly wide range of constitutional issues, the principal ones being discussed below.

Elimination of the Cour de justice de la république [Court of Justice of the Republic]

The proposed constitutional reform would eliminate the Cour de justice de la république, which was created in 1993 to try government cabinet members for criminal offenses committed during their time in office. (CONSTITUTION art. 68-1.) Instead of being tried by this special court, cabinet members would be tried according to normal rules of criminal procedure for offenses committed during their time in office but not related to their office, or by the Court of Appeals of Paris for offenses committed in their capacity as cabinet members. (Projet de loi constitutionnelle art. 13.)

Former Presidents Would No Longer Automatically Have a Seat on the Constitutional Council

The Conseil constitutionnel (Constitutional Council) is the only French court with jurisdiction over the constitutional validity of French laws. (CONST. arts. 61, 61-1, 62.) It also is responsible for monitoring the lawfulness of presidential elections and referendums, and has jurisdiction over litigations regarding legislative elections. (Id. arts. 58–60.) Ever since the current French Constitution was adopted in 1958, former presidents have automatically had a seat on the Constitutional Council, along with nine judges appointed by the president, the National Assembly, and the Senate. (Id. art. 56.) With this proposed reform, former presidents would no longer automatically have a seat on the Constitutional Council. (Projet de loi constitutionnelle art. 10.)

Consent of the National Council of Magistrates Would Be Necessary for the Appointment of Prosecutors and Investigative Judges

Currently, the executive branch must seek the advice of the Conseil national de la magistrature (National Council of Magistrates) before appointing prosecutors and investigative judges, but it does not need its consent. (CONST. art. 65, ¶ 5.) Under the proposed reform, the National Council of Magistrates’ consent would be required as well. (Projet de loi constitutionnelle art. 12.)

Economic, Social and Environmental Council Would Become the Civil Society Chamber

The Conseil économique, social et environnemental (Economic, Social and Environmental Council), an advisory body to be consulted for economic, social and/or environmental issues, would be replaced by Chambre de la société civile (Civil Society Chamber). (Id. art. 14.) This new body would have essentially the same role as its predecessor, but the bill aims to make its members more representative of civil society and to reinforce the Chamber’s advisory role. (Id. exposé des motifs [Explanatory Statement].)

Special Status for Corsica and Increased Autonomy to Overseas Regions and Départements

The constitutional bill, if adopted, would give Corsica the status of collectivités à statut particulier (Special Status Community), which would constitutionally enshrine a certain degree of autonomy for the island. (Id. art. 16.) Furthermore, the bill aims to increase the autonomy of French overseas regions and départements (the territorial subdivision of France between the region and the municipality) by providing procedures for them to request the authority to legislate for themselves on certain issues. (Id. art. 17.)

Streamlining the Legislative Process

The constitutional bill contains provisions to limit the back-and-forth between the two chambers of Parliament (the National Assembly and the Senate) that can occur when they cannot agree on a bill. (Id. art. 5.) If adopted, the reform would also bar members from submitting amendments that do not change the substance of the bill and amendments that are not directly related to the bill’s subject matter. (Id. art. 3.) Parliamentary commissions would handle a larger proportion of the legislative work, as only bills important enough to justify “a solemn debate” would be discussed in plenary sessions of the National Assembly. (Id. art. 4.) Furthermore, appropriations bills would be subject to an accelerated procedure, and the government would have the ability to prioritize bills that it deems important regarding economic, social, or environmental matters. (Id. arts. 6–8.)

Timeline and Reception

This constitutional bill is expected to be voted on by the National Assembly during this summer and then to be considered by the Senate in the fall. (Projet de loi : réforme des institutions, acte 1 [Bill: Institutional Reforms, Act 1], LA DEPECHE (May 8, 2018).) Overall, most of the proposed provisions appear to be considered uncontroversial by the general public. (Id.) However, certain voices—particularly from the left-wing La France Insoumise (France Unbowed) party and from the center-right Les Républicains (The Republicans) party—have expressed concern that some of these reforms would weaken the French Parliament. (Des élus s’inquiètent de la réforme constitutionnelle [Some Elected Officials Worry About the Constitutional Reform], L’EXPRESS (May 9, 2018).)

China: Constitution Amended to Require State Functionaries to Take Constitutional Oath

Fri, 15/06/2018 - 14:30

(June 15, 2018) On March 11, 2018, the National People’s Congress (NPC) of the People’s Republic of China (PRC or China) adopted an amendment to the PRC Constitution. In addition to removing term limits for the President and Vice President of the PRC, the 21-article amendment made other changes to the Constitution, including requiring state functionaries to take a constitutional oath when assuming office. (Zhonghua Renmin Gongheguo Xianfa Xiuzheng An [PRC Constitutional Amendment] (adopted by the NPC on Mar. 11, 2018) (2018 Amendment), NPC website; Changhao Wei, Translation: 2018 Amendment to the P.R.C. Constitution, NPC OBSERVER (Mar. 11, 2018); Laney Zhang, China: 2018 Constitutional Amendment Adopted, GLOBAL LEGAL MONITOR (May 18, 2018).)

The newly added paragraph 3 of article 27 of the Constitution states that “[s]tate functionaries shall take a public oath of allegiance to the Constitution when assuming office.” “State functionaries” subject to this requirement include state leaders and other government officials, judges, and prosecutors at both national and subnational levels, according to a decision adopted by the NPC Standing Committee (NPCSC) specifically on the constitutional oath. The decision defines “state functionaries” to include those elected or appointed by the people’s congresses at the national and subnational levels, and those appointed by the governments, courts, and procuratorates at all levels. (Quanguo Renmin Dabiao Dahui Changwu Weiyuanhui Guanyu Shixing Xianfa Xuanshi Zhidu de Jueding [Decision of the NPCSC on Implementing the Constitutional Oath System] (Feb. 24, 2018, effective Mar. 12, 2018) (2018 NPCSC Decision) art. 1, NPC website (translation by author).)

The President and Vice-President, Chairperson and Vice-Chairperson of the NPC, Premier, Vice-Premiers, State Councilors, Ministers and Commissioners, President of the Supreme People’s Court, President of the Supreme People’s Procuratorate, and other high-level officials elected or appointed by the NPC take the oath in ceremonies organized by the NPC Presidium. (Id.) President Xi Jinping, who took the oath on March 17, 2018, to begin his second term, became the first Chinese president to take such an oath, according the official Xinhua news agency. (Xinhua Headlines: Chinese President Takes Oath of Allegiance to Constitution for First Time, XINHUA (Mar. 17, 2018).)

State functionaries have been required to take the constitutional oath by an earlier decision adopted by the NPCSC in 2015, which went into effect on January 1, 2016. (Laney Zhang, China: Government Officials to Take Constitutional Oath, GLOBAL LEGAL MONITOR (July 27, 2015).) The NPCSC revised the decision in February 2018, to expand the scope of state functionaries subject to the requirement to include those appointed by the new supervision organ (supervisory commissions). (2018 NPCSC Decision art. 1.) The 2018 Decision also includes the director of the new National Supervisory Commission in the swearing-in ceremonies organized by the NPC Presidium. (Id. art. 3.)

In addition, the 2018 NPCSC Decision requires that the national anthem be played and sung at all swearing-in ceremonies. (Id. art. 8.) The Decision also slightly revised the oath, which now reads as follows:

I pledge to be loyal to the PRC Constitution, to safeguard the authority of the Constitution, to perform obligations imposed by law, to be loyal to the country and to the people, to be fully committed in performing my official duties, to have integrity and always work in the interest of the public, to accept the supervision of the people, and to work hard for the great cause of building a prosperous, democratic, civilized, harmonious, and beautiful strong modern socialist country! (Id. art. 2.)

Saudi Arabia: Shura Council Approves Anti-harassment Bill

Thu, 14/06/2018 - 14:30

(June 14, 2018) The 150-member Saudi Parliament in its 40th ordinary session of May 28, 2018, approved a new anti-harassment law by an 84-vote majority. (Royal Decree No. 96/M of May 31, 2018, government weekly newspaper Umm al-Qura website (in Arabic); Shura Holds Its 40th Ordinary Session, SAUDI PRESS AGENCY (May 28, 2018); Habib Toumi, Saudi Shura Approves Anti-harassment Draft Law, GULF NEWS (May 29, 2018).) The new law aims to combat the crime of harassment, punish the perpetrators, and protect the victims in order to preserve their privacy, dignity, and personal freedom, as guaranteed by Islamic law. (Toumi, supra.)

Provisions of the Law

The new law defines the term “harassment” as any word, act, or sign with a sexual connotation by a person to any other person that harms their body or modesty by any means, including through modern technology. The law imposes on violators the penalty of imprisonment for up to two years and a fine of up to 100,000 Saudi Riyals (about US$26,666). The penalty is enhanced to five years of imprisonment and a fine of 300,000 Saudi Riyals (about US$80,000) if the individual repeats the crime of harassment. Provisions of the law also punish incidents of harassment at work places. Additionally, the law provides that anyone who incites others or assists them in any way to commit the offense of harassment are punishable by the same penalty prescribed for the offenders. Finally, anyone who attempts to harass another person is punishable by one year of imprisonment and a fine of 50,000 Saudi Riyals (US$13,333). (Id.)

Reactions to the Law

  1. Members of Parliament

Female members of the Saudi Shura Council have endorsed the law. Hoda Al-Helaissi, a female member of the Council, announced that the new law is extremely important, adding that the law not only protects both genders but also protects women while driving. (Aisha Fareed, Saudi Shura Council Approves New Law Against Harassment, ARAB NEWS News (May 29, 2018).) (The ban on women driving in Saudi Arabia expires on June 24, 2018. (Hams Saleh, Saudi Women Drivers Begin Countdown to Big Day, GULF NEWS (June 13, 2018).)) Al-Helaissi further stated that there would be more modifications to the law in the near future. (Fareed, supra.)

Another female member of the Shura Council, Latifah Al-Shaalan, said that the new anti-harassment law is an important addition to the Kingdom’s legal history because it fills a legislative vacuum. Al-Shaalan added that she had proposed more articles to the anti-harassment law concerning protecting victims reporting incidents of harassment and witnesses to such incidents. (Id.)

  1. Legal Counselors

In addition to members of the Shura Council, Saudi legal counselors, such as Dimah Al-Ashraf, have declared their support for the new law. Al-Asharf said that the law is a “qualitative leap” in the field of fighting sexual harassment in the Kingdom. (Id.) Faisal Al Mashouh, another Saudi attorney, also said that the law would “be a road map to control existing relations in society and protect the rights of women.” He added that the new law would grant women more self-confidence and encourage them to pursue their goals and be active participants in nation building, as envisioned in Vision 2030 of the Kingdom. (Rodolfo C. Estimo Jr. & Aisha Fareed, Saudi Society Welcomes New Law Criminalizing Sexual Harassment, ARAB NEWS (Sept. 30, 2017).)

  1. Saudi Citizens

Saudi citizens have also endorsed the new law. Rawan Al-Jabri, a Saudi woman, said that what the new law provides “is not a privilege as much as a basic right for all women,” and punishing those who harass either women or men would lower the harassment rate. (Fareed, supra.) Farah Al-Jabr tweeted that she finally felt “like a human being,” while Maha Al-Fahad tweeted, “OK … If this is a dream, don’t wake me up.” (Estimo Jr. & Fareed, supra.)