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Updated: 1 hour 37 min ago

Indonesia: Constitutional Court Opens Way to Recognition of Native Faiths

Fri, 17/11/2017 - 20:30

(Nov. 17, 2017) On November 7, 2017, Indonesia’s Constitutional Court (Mahkamah Konstitusi Republik Indonesia) issued a decision that will allow Indonesians who follow native faiths to list their religions on official forms.  According to Justice Arief Hidayat, several articles in the Law on Population Administration are discriminatory and “contradict the 1945 Constitution and these articles are not legally binding.”  (Marguerite Afra Sapiie, Constitutional Court Rules Indigenous Faiths ‘Acknowledged’ by State, JAKARTA POST (Nov. 7, 2017);  Undang-Undang Republik Indonesia Nomor 23 Tahun 2006 Tentang Administrasi Kependudukan [Law of the Republic of Indonesia No. 23, 2006, on Population Administration] (Dec. 29, 2006),  House of Representatives website; Law 24 of 2013 on Amendment to Law 23 of 2006 on Population Administration (Dec. 24, 2013), REFWORLD.)

The Law had required that followers of religions other than the major faiths leave the line for religion blank on their national ID cards.  The Court decision came as a result of the challenge to the Law filed by four people who follow indigenous religions, whose argument was that the Law violated the ideal of equality before the law.  According to the Ministry of Culture and Education, Indonesia has at least 12 million followers of 1,200 native faith groups.  (Sapiie, supra.)  The explication attached to the Indonesian Law on Blasphemy states that Indonesia officially recognizes six major religions: Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism.  (Penjelasan Penetapan Presiden Republik Indonesia Nomor 1 Tahun 1965 Tentang Pencegahan Penyalahgunaan Dan/Atau Penodaan Agama [Explanation of Presidential Decree No. 1 of 1965 on Prevention of Misuse of Religion and/or Blasphemy] (Jan. 27, 1965), HUKUMONLINE (click on pdf icon); Moses with Ompusunggu, Rights Group Welcomes Landmark Court Ruling on Native Faiths, JAKARTA POST (Nov. 7, 2017).)

Commenting on the issue, Justice Saldi Isra said that the disputed articles of the Law on Population Administration had created trouble for followers of faiths other than the major six, including problems in obtaining e-ID and family registration cards, marriage registration, and access to services provided by the civil administrative offices.  (Sapiie supra.)  Saldi added that now followers of native faiths should, when filing for family registration and e-ID cards, indicate that they are native faith followers (penghayat kepercayaan) and that they do not need to add other details.  (Id.)

Tigor Naipospos of the Setara Institute noted that Indonesians not identified with one of the major religions faced limits in education and employment, as well as marriage registration.  (Tom Allard & Jessica Damiana, Indonesian Court Recognizes Native Religions in Landmark Ruling, REUTERS (Nov. 7, 2017).)  The Setara Institute describes itself as founded by people “dedicated to the ideal that everyone should be treated equal while respecting diversity, giving priority to solidarity and upholding human dignity.”  (Setara Institute Profile, Setara Institute website (last visited Nov. 9, 2017).)

Reactions to the Court Decision

The Setara Institute welcomed the Constitutional Court decision, stating that it could put an end to the discrimination faced by religious minorities and that “[i]deally the state would not discriminate against its citizens when they declare their religious identity on the population administration register.”  (Ompusunggu, supra.)  Tjahjo Kumolo, the Home Minister, said that his ministry would coordinate with other government offices to comply with the Court ruling and compile data on native faiths.  The Home Affairs Ministry, he said, would incorporate information on those faiths in the population administration system.  (Id.)  Nia Sjarifudin of the Unity in Diversity Alliance opined that the ruling would also apply to followers of Baha’i and Judaism, faiths that are not indigenous to Indonesia but are not among the six religions that are formally recognized.  (Allard & Damiana, supra.)

Indonesia’s House of Representatives is planning to revise the Law on Population Administration (also known as the Civil Administration Law).  Zainuddin Amalia, the chair of the House Commission on Home Affairs, said on November 8 that a meeting would be held after the end of the current House recess period on November 15, to discuss a revision.  (House to Revise Civil Administration Law in Wake of Court Ruling, JAKARTA POST (Nov. 8, 2017).)

Egypt: Cabinet Approves Amendment to Traffic Law

Fri, 17/11/2017 - 17:30

(Nov. 17, 2017) On October 19, 2017, the Egyptian Cabinet approved a new amendment to the Traffic Law, Law No. 66 of 1973.  (Law No. 66 of 1973, 34 AL-JARIDAH AL-RASSMIYAH (Aug. 23, 1973) (in Arabic).) The amendment introduces new penalties for violators of traffic regulations.  According to an official written statement issued by the Cabinet, the amendment aims to enhance traffic safety and reduce the number of road accidents in the country.  (Cabinet Statement No. 93 (Oct. 19, 2017), Cabinet website (in Arabic).)  After the Cabinet approved it, the amendment was referred to the Parliament for further discussion.  (Abdu al Rahman Sayid, An Overview of the New Draft Traffic Law, PARLMANY.COM (Oct. 28, 2017) (in Arabic).)

Points System

The amendment establishes a new system to penalize drivers who commit traffic violations.  Under the new penalty system, a certain number of points are allotted to drivers.  Every time a driver violates a traffic regulation, he/she will lose points.  Loss of all the points will result in suspension of the driver’s license for a given period of time.  In order for the driver to re-obtain the license, he or she must enroll in a driving school.  (Egypt Approves First Major Draft Traffic Law in 40 Years, EGYPT STREETS (Oct. 19, 2017).)

The new penalty system provides for the deduction of the following numbers of points, from the total of 50 points granted each driver, for various driving offenses, including:

  1. the deduction of one point for not maintaining a safe distance between the driver’s car and the car in front;
  2. deduction of three points for holding an expired driving license, exceeding a 30 km/h speed limit, parking the car on the roadside at night, or deliberately parking a trailer or a public transport vehicle in a populated area;
  3. temporary suspension of the driver’s license and the deduction of four points for exceeding a 50 km/h speed limit, teaching driving courses on the road without permission, or refusing to show one’s driver’s license to a police officer upon request; and
  4. suspension of the driver’s license and the deduction of five points for driving in the wrong direction or under the influence, or for violating public morals by committing an act of public indecency while driving.  (Mona Ahamed, The Egyptian Government Passes Points-Based Traffic Law for Safer Roads, EGYPT TODAY (Oct. 22, 2017).)

Other Changes

In addition to the newly created points system, the amendment increases fines for traffic violations.  For instance, if a driver violates the law by driving above the speed limit, he/she will receive a fine of up to 500 Egyptian pounds (about US$28) in addition to losing from two to five points.  (Government Passes New Traffic Law, EGYPT TODAY (Oct 18, 2017).)

The amendment also introduces a ban on transport vehicles manufactured more than five years ago and on passenger vehicles manufactured more than 20 years ago.  (Egypt’s Cabinet Drafts First Major Reforms to Traffic Laws in 44 Years, AHRAM ONLINE (Oct. 18, 2017).)

Finally, the amendment requires individuals to take a drug test in order to obtain a driver’s license.  If the driver fails the test, she/he will be permanently barred from obtaining a driver’s license.  (Government Passes New Traffic Law, supra.)

Netherlands: Referendum to Be Held on Surveillance Law

Fri, 17/11/2017 - 14:30

(Nov. 17, 2017) On November 1, 2017, the Electoral Council (Kiesraad) of the Netherlands publicly announced that, based on the more than 384,000 valid signatures received requesting it, a referendum on the Act on Intelligence and Security Services will be held within six months. (Press Release, Referendum over Wiv gaat door [Referendum on Wiv Coming Along], Kiesraad website (Nov. 1, 2017); Kenneth Hall, Netherlands to Hold Referendum on Surveillance Law, PAPER CHASE (Nov. 1, 2017).) Reportedly, “the vote is likely to coincide with municipal elections next year on March 21.” (Hall, supra.)

The Consultative Referendum Act sets a threshold of 300,000 signatures as necessary for holding a public vote.  (Wet van 30 september 2014, houdende regels inzake het raadgevend referendum (Wet raadgevend referendum) [Act of 30 September 2014, Concerning Rules for the Consultative Referendum (Consultative Referendum Act] (as last amended effective Apr. 1, 2017), art. 2, OVERHEID.NL.)  Since the Consultative Referendum Act came into force in 2015, it has become possible for almost all parliamentary laws and approved treaties to be put to a referendum. (Referendum over Wiv gaat door, supra.)  According to the Electoral Council, this is the second time that both the introductory phase (with at least 10,000 valid requests) and the final phase (with at least 300,000 valid requests) for holding a referendum has been reached.  The first time was the referendum on a partnership agreement with Ukraine.  (Id.) The outcome of a referendum is only an advisory verdict for rejection of a law, however, if the majority votes in favor of rejection with at least 30% of the total number of eligible voters taking part. (Consultative Referendum Act, art. 3.)

The Dutch Senate adopted the new Act on Intelligence and Security Services (Wet op de inlichtingen- en veiligheidsdiensten, Wiv), in 172 articles, on July 26, 2017, “after years of debate and criticism from both the country’s constitutional courts and online privacy advocates.” (Bart Meijer, Dutch Pass ‘Tapping’ Law, Intelligence Agencies May Gather Data en Masse, REUTERS (July 11, 2017); Wet van 26 juli 2017, houdende regels met betrekking tot de inlichtingen- en veiligheidsdiensten alsmede wijziging van enkele wetten (Wet op de inlichtingen- en veiligheidsdiensten 2017) [Act of 26 July 2017, Containing Rules on Intelligence and Security Services and Amendment of Some Other Laws (Intelligence and Security Services Act 2017)], STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [GOVERNMENT GAZETTE OF THE KINGDOM OF THE NETHERLANDS] (STB.) No. 317 (Aug. 17, 2017).)

The new Act is intended to replace the 2002 Act on Information and Security Services Act, laying down new rules on: “the duties and powers of intelligence and security services in the field of national security, the coordination of the performance of these services, the processing of data by these services, national and international cooperation in these services, [and] the exercise of supervision and treatment of complaints and confidentiality, … .” (Id. Preamble.)  Certain portions of the new Act, including articles 1, 32 paragraph 1, 33, 34, 35, 97 paragraphs 1 and 2, 98, 99, 100, 101, 103, 104, 105, 106, and 170, entered into force on September 1, 2017.  (Besluit van 19 augustus 2017 tot vaststelling van het tijdstip van inwerkingtreding van enkele onderdelen van de Wet op de inlichtingen- en veiligheidsdiensten 2017 [Decision of 19 August 2017 Determining the Date of Entry into Force of Some Parts of the Intelligence and Security Services Act 2017], STB. No. 318 (Aug. 25, 2017).)

Although the 2017 Act was passed “with broad support,” the rights group Bits of Freedom reportedly cautioned that “the Netherlands’ military and civil intelligence agencies will now have the opportunity to tap large quantities of internet data traffic, without needing to give clear reasons and with limited oversight” and expressed opposition to the Act’s “three-year term for storage of data that agencies deem relevant, and the possibility for them [the agencies] to exchange information they cull with foreign counterparts.” (Meijer, supra.)  Government officials contend, however, that the augmented powers “are needed to counter threats to national security in the modern era, and their use can be tested by an oversight panel.”  (Id.)

France: Administrative Courts Issue Differing Decisions on Legality of Publicly-Financed Nativity Scenes

Thu, 16/11/2017 - 20:30

(Nov. 16, 2017) On October 5 and 6, 2017, two French administrative courts reached different conclusions in separate cases concerning the legality of government-sponsored Christmas nativity scenes.

Background: 2016 Council of State Decisions on Government-Sponsored Nativity Scenes

The two 2017 decisions come on the heels of a pair of 2016 decisions by the Conseil d’Etat (Council of State), which is France’s highest court for administrative cases. In the two decisions rendered on November 9, 2016, the Conseil d’Etat discussed the conditions under which a government body may install or sponsor a Christmas nativity scene without violating France’s constitutional principles of secularism and separation of church and state.  (CE, 9 novembre 2016, Fédération départementale des libres penseurs de Seine-et-Marne [Departmental Federation of Free Thinkers of Seine-et-Marne, CE, Nov. 9, 2016] No. 395122, Conseil d’Etat website; CE, 9 novembre 2016, Fédération de la libre pensée de Vendée [Free Thought Federation of Vendée, CE, Nov. 9, 2016] No. 395223.)

The Conseil d’Etat noted, “Nativity scenes have a variety of meanings: they have a religious meaning but are also a decorative element during the end of the year holidays. Given this plurality of significations, the Conseil d’Etat rules that the display of Nativity scenes by a public authority in a public space is lawful, only if it has a cultural, artistic or festive purpose, but not if it expresses  a public recognition or a preference for a religion.”  (Press Release, Display of Nativity Scenes by Public Authorities, CONSEIL D’ETAT [COUNCIL OF STATE] (Nov. 10, 2016).) Therefore, according to the Conseil d’Etat, a nativity scene must fulfill a “cultural, artistic or festive purpose” rather than demonstrating “a public recognition or preference for a given religion,” and “the display needs to be contextualized, taking into account the particular circumstances in which it is done, the existence or absence of local traditions and the location of the display.”  (Id.)

Nantes and Lyon Decisions in Light of Conseil d’Etat Decisions

The decision of the Administrative Court of Appeals of Nantes was directly related to the Conseil d’Etat’s Fédération de la libre pensée de Vendée decision, in that it was about the very same case, which the Conseil d’Etat had remanded to the Administrative Court of Appeals.  (CAA de Nantes, supra).  In its Decision of that case, the Nantes Court found that the nativity scene displayed by the Vendée General Council did not have any ceremonial elements of a nature to constitute religious proselytism, but rather was a temporary display of a cultural and festive nature.  As such, the nativity scene could legally be displayed by the General Council. (Id.)

By contrast, the Administrative Court of Lyon judged that the nativity scene displayed by the Auvergne-Rhône-Alpes regional authorities was illegal. (Fédération de la libre pensée et d’action sociale du Rhône, supra; Ligue française pour la défense des droits de l’homme et du citoyen, supra.)  The Lyon Court found that the scene, which the regional President had described as a “symbol of our Christian roots,” did not display any element that would mark it as being of a primarily cultural, artistic, or festive nature, and therefore it represented a violation of the French principles of secularism and separation of church and state. (Fédération de la libre pensée et d’action sociale du Rhône, supra; Ligue française pour la défense des droits de l’homme et du citoyen, supra.)

Austria/European Court of Human Rights: No Discrimination If Heterosexual Couple Is Denied Access to Registered Partnership

Thu, 16/11/2017 - 17:30

(Nov. 16, 2017) On October 26 10, 2017, the European Court of Human Rights (ECtHR) held in a five to two decision that there is no violation of article 14 (prohibition of discrimination) in conjunction with article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) when registered partnerships  are exclusively reserved for same-sex couples. In the Court’s opinion, the ability of a heterosexual couple to enter into a marriage fulfills the couple’s need for legal recognition of the relationship, in particular because the Court found no substantial differences between the two legal institutions of marriage and legal partnership in Austria. The majority held that the applicants, as a different-sex couple, were not in a comparable position to a same-sex couple with respect to the need for legal recognition of their relationship. (Ratzenböck and Seydl v. Austria, Application No. 28475/12, HUDOC; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.)

Facts of the Case

The applicants are Austrian nationals and have been in a stable heterosexual relationship for many years. (Ratzenböck and Seydl v. Austria, supra, ¶ 5.) In February 2010, they submitted an application to enter into a registered partnership under the Registered Partnership Act. (Id. ¶ 6.) The request was denied on the ground that the Registered Partnership Act provides that only two people of the same sex may enter into a registered partnership. (Id.; Bundesgesetz über die eingetragene Partnerschaft (Eingetragene Partnerschaft-Gesetz – EPG) [Federal Act on the Registered Partnership (Registered Partnership Act – RPA)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 135/2009, § 2, Rechtsinformationssystem (RIS).)

The applicants appealed, alleging a violation of their rights to equal treatment and non-discrimination on the grounds of gender and sexual orientation as guaranteed by the ECHR. The ECHR has constitutional law status in Austria. The Austrian appeals court dismissed the case, holding that because the ECtHR had found in Schalk and Kopf v. Austria that the Council of Europe Member States are allowed to restrict access to marriage to different-sex couples, it would be unreasonable to not allow the reverse situation, i.e., to limit access to registered partnerships to homosexual couples. (Ratzenböck and Seydl v. Austria, supra, ¶ 8; Schalk and Kopf v. Austria, Application No. 30141/04, HUDOC.)

The applicants therefore lodged complaints with the Federal Administrative Court as well as the Constitutional Court claiming that a registered partnership was more modern and “lighter” than a marriage and therefore more suitable for their purposes. As an example, the couple cited different statutory time limits for a divorce versus dissolution of a registered partnership and legal obligations conferred upon the partners, among other points. (Ratzenböck and Seydl v. Austria, supra, ¶ 9.) Both courts dismissed the complaints, agreeing with the arguments of the appeals court.  (Id. at ¶¶ 10 & 11.) The applicants filed an application with the ECtHR on May 11, 2012.  (Id. at ¶ 1.)

Brazil: Domestic Violence Law Amended

Thu, 16/11/2017 - 14:30

(Nov. 16, 2017) On November 8, 2017, Brazil’s Parliament passed a new law to provide for the right of women in situations of domestic and family violence to have specialized, uninterrupted police and expert assistance.  The new provisions are in Law No. 13,505, which added articles 10-A, 12-A, and 12-B to Law No. 11,340 of August 7, 2006, best known as the “Maria da Penha Law.”  (Lei No. 13,505, de 8 de Novembro de 2017, PLANALTO; Lei No. 11,340, de 7 de Agosto de 2006, PLANALTO (with newly amended articles included).)

According to the new article 10-A, a woman in a situation of domestic and family violence has the right to meet with specialized police personnel and police experts in an uninterrupted manner, with that service rendered by officers preferably of the female sex who have been previously trained for this kind of situation. (Law No. 11,340, art. 10-A.) The examination of a woman in this situation or of one who is a witness to domestic violence, when a crime against a woman has been committed, must comply with the following guidelines:

  1. safeguarding of the physical, psychic, and emotional integrity of the person, taking into consideration her particular condition in a situation of domestic and family violence;
  2. guaranteeing that, in no case, will women in situations of domestic and family violence, their relatives, or witnesses have direct contact with persons investigated for or suspected of such violence or with persons related to them; and
  3. avoiding repeated inquiries to the persons about the same facts in regard to the criminal, civil, and administrative aspects of the situation, as well as questions about their private life. (Id. art. 10-A § 1.)

In the examination of a woman in a situation of domestic and family violence or witness to the crimes referred to in Law No. 11,340, the following procedures are preferred:

  1. The interrogation will be carried out in an enclosure specially designed for this purpose, which will contain the proper equipment and which is appropriate to the age of the woman in the situation of domestic and family violence or who is a witness and to the type and severity of the violence suffered;
  2. When applicable, the interview must be mediated (intermediada) by a professional who is a specialist in domestic and family violence designated by the judicial or police authority; and
  3. The testimony will be registered in electronic or magnetic media, and the recording and the media must be integrated into the investigation. (Id. art. 10-A § 2.)

The States and the Federal District, during the preparation of their policies and plans for the care of women in situations of domestic and family violence, must give priority, within the Civil Police, to the creation of Specialized Police Precincts for Women (Delegacias Especializadas de Atendimento à Mulher), of Investigative Centers for Investigation of  Murders of Women (Núcleos Investigativos de Feminicídio), and of specialized teams for the investigation of serious violence against women.  (Id. art. 12-A.)

According to article 12-B, section 3, the police authority may request the necessary public services for the defense of women in situations of domestic and family violence and their dependents.

Law No. 11,340 of 2006

Law No. 11,340 was Brazil’s first law to specifically address domestic and family violence against women. It was nicknamed the Maria da Penha Law, after a women’s rights activist who was left a paraplegic by her violent husband.  (Pablo Uchoa, Maria da Penha: The Woman Who Changed Brazil’s Domestic Violence Laws, BBC News (Sept. 22, 2016).)

China: Eight Laws Amended to Require New, Unified National Legal Profession Qualification Examination

Fri, 10/11/2017 - 14:30

(Nov. 10, 2017) On September 1, 2017, the National People’s Congress Standing Committee (NPCSC) of China passed a decision on amending eight laws to institute a new unified national legal profession qualification exam, officially retiring the current unified national judicial exam established in 2010.  (Quanguo Renmin Daibiao Dahui Changwu Weiyuan Hui Guanyu Xiugai Zhongguo Renmin Gongheguo Faguan Fa Deng Babu Falü de Jueding [The National People’s Congress Standing Committee’s Decision on Amending the Judges Law Among Eight Laws in All] (Sept. 1, 2017), National People’s Congress website.)  The eight laws are the Judges Law, the Procurators Law, the Civil Servants Law, the Lawyers Law, the Notarization Law, the Arbitration Law, the Administrative Reconsideration Law, and the Administrative Penalty Law.  The decision will take effect on January 1, 2018.  (Id.)

The amendments expand the types of legal professionals who need to obtain legal professional qualifications by passing the new unified exam, to include first-time judges; first-time procurators; lawyers; notaries; arbitrators; civil servants in administrative agencies who work for the first time on reviews of administrative penalty decisions, making administrative reconsideration decisions, or making administrative adjudications; and civil servants in administrative agencies who work for the first time as legal advisors.  (Id. items I-VIII.)

According to the Decision, persons already licensed or hired to work in the aforementioned positions are exempt from the new qualification and examination requirement.  The  Decision also authorizes the Ministry of Justice and other relevant government entities to organize and carry out the unified national judicial exams.  (Id. items I-IV.)

Prepared by Yichao Zhang, Law Library Intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

United Arab Emirates: New Law to Support Domestic Workers

Thu, 09/11/2017 - 20:30

(Nov. 9, 2017) On September 26, 2017, Sheikh Khalifa, President of the United Arab Emirates (UAE), issued Federal Law No. 10 of 2017.  The new Law is aimed at strengthening the legal measures for the protection of domestic service workers. (President Issues Law on Support Service Workers, Cabinet of the UAE website (Sept. 26, 2017).) It covers the role of recruitment and employment agencies, standards for labor contracts, employer and employee obligations, inspections, penalties, time off, end of service indemnity, termination of contracts, and settlement of disputes. The Law also requires that labor contracts define the rights and duties of the domestic workers. Finally, the Law asserts that domestic service workers must be treated equally by their employers. It bans employers from discriminating against their domestic service workers on the basis of race, color, sex, religion, political opinion, national origin, or social class. (Law on Support Service Workers, UAE Cabinet website (last visited Nov. 8, 2017) (in Arabic).)

The Law consists of 41 articles. It identifies 19 types of domestic service workers, including: domestic workers qualified to sail ships, guards, parking valets, industrial workers, farmers, gardeners, domestic servants, cooks, nannies, special trainers, nurses, and drivers. The Law gives the right to employers to reject hiring a worker if he or she does not meet the requirements cited in the labor contract. (President Issues Law on Support Service Workers, supra.)

The Recruitment Offices’ Obligations

Article 3 of the Law stipulates that recruitment offices must be: 1) licensed by the authorities of the UAE, 2) owned and managed by a UAE citizen, and 3) comply with the implementing regulation of this Law in order to operate in the UAE. Article 5 requires recruitment offices to return the worker to his/her home country upon the termination of the labor contract. (Law on Support Service Workers, art. 3.)

Wage Protection, Vacation, and Rest-Days

According to article 7 of the Law, the labor contract of a domestic service worker must include the following items: the nature of his/her work, the amount of salary, the method of the payment of the salary, the number of days off, the number of breaks per day, and circumstances leading to termination of services. (Id.) 

Employer’s and Worker’s Obligations

The employer must  provide the domestic service worker with the following: 1) medical insurance; 2) appropriate accommodation and three daily meals; 3) decent clothes suitable for the work environment; 4) a safe work atmosphere; and 5) fair worker’s compensation in cases of work injury. (Id. art. 15.) Domestic service worker have the right not to comply with the employer’s instructions if those instructions violate the UAE laws and traditions. (Id. art. 16.) Domestic service workers, on the other hand, are prohibited from disclosing any confidential work-related information of the employer. (Id.)

In regard to conflict resolution, the Law states that in the event that the employer and worker have a disagreement, the Ministry of Human Resources and Emiratization will adjudicate the dispute. The adjudication process will take two weeks. (Id. art. 21.)

The circumstances under which the services of the domestic service workers will be terminated are: 1) when the contract ends, unless it is renewed in accordance with the Law’s provisions; 2) upon the death of either the employer or the worker; or 3) when the worker is unable to work due to permanent disability. (Id. art. 22.) Both the employer and the service worker have the right to terminate the contract unilaterally if one party fails to fulfill his/her obligations towards the other. (Id. art. 23.)

Other Developments and Reaction to the Law

Saqr Ghobash, the UAE Minister of Human Resources and Emiratization, said that the Law is based on international standards regarding labor issues and provides legal protection for all concerned parties. Ghobash added that his Ministry is about to publish the executive regulations for the Law as well as models of labor contracts that could be used by employers. (President Issues Law on Support Service Workers, supra.)

In addition, as a result of the adoption of the Law, the Dubai Labour Court has designated a new panel called the Labor Judicial Circuit to review and decide cases lodged by domestic service workers. The court is expected to hear approximately 1,500 cases annually pertaining to service worker disputes. (Panel Of Dubai Judges Set Up to Tackle Cases After Domestic Workers Law Change, NATIONAL (Oct. 9, 2017).)

Human Rights Watch (HRW) has praised the new Law as a step forward that will place the UAE in conformity with the international convention on domestic workers of the International Labour Organization. (UAE: Domestic Workers’ Rights Bill A Step Forward, HUMAN RIGHTS WATCH (June 7, 2017).) HRW also opined that the Law will enable an enormous number of employees to be legally protected, which is the most significant improvement in labor issues in the past several years in the UAE. (UAE: Domestic Workers’ Rights Bill A Step Forward, supra.) 

Prepared by Ammar Alsallumi, Law Library Intern, under the supervision of George Sadek, Legal Research Analyst.

Singapore: Bans on Two Clerics and Certain Books

Thu, 09/11/2017 - 17:30

(Nov. 9, 2017) It was reported on October 30, 2017, that Singapore has banned two foreign Islamic religious leaders from preaching during cruises and has prohibited the circulation of four foreign books in the country. The Islamic clerics have been denied permission to enter Singapore for the purpose of joining religiously themed sea cruises scheduled for late November. (Singapore Bans Two Islamic Preachers on Religious Cruises, JAKARTA POST (Oct. 30, 2017).) The two men, Ismail Menk of Zimbabwe and Haslin Baharim of Malaysia, were previously denied permission to preach in Singapore itself. The Ministry of Home Affairs stated that “[t]hey will not be allowed to get around the ban by preaching instead on cruise ships which operate to and from Singapore.” (Id.; 2 Foreign Islamic Preachers Barred from Entering Singapore for Religious Cruise, STRAITS TIMES (Oct. 30, 2017).)

According to the Ministry, Menk “has been known to preach segregationist and divisive teachings” while Baharim “has expressed views that promote disharmony between Muslims and non-Muslims.” (Singapore Bans Two Islamic Preachers on Religious Cruises, supra.) Menk, who has two million Twitter followers, has reportedly said that it is blasphemous for Muslims to extend greetings to non-Muslims during festivals of the others’ faiths. (Singapore Bans Mufti Menk from Entering Country, AL JAZEERA (Oct. 31, 2017).) It was also reported that Bahraim favors having non-Muslims be subservient to Muslims. (2 Foreign Islamic Preachers Barred from Entering Singapore for Religious Cruise, supra.)

The books, published in Indonesia between 2011 and 2016, were banned on October 30, 2017; as of the next day, it became an offense to own, distribute, or fail to surrender the books to the police. The works are considered to have “undesirable and harmful teachings. … [that] can cause social distancing, distrust, hatred and even violence among people of different faiths and religious views.”(Id.)

Background

Singapore has a diverse population, including 74.3% who are of Chinese origin, 13.4% Malay, and 9.1% Indian or Sri Lankan. Among the residents, 33.9% are Buddhist, 14.3% are Muslim, 11.3% are Taoist, 7.1% are Catholic, 5.2% are Hindu, and the remainder either follow a different Christian faith, another religion, or have no religion. (Singapore, WORLD FACTBOOK (last visited Nov. 7, 2017).) The official emphasis on harmony between the various groups, cited by the Ministry of Home Affairs in the case of the banned clerics, is reflected in some legal provisions.

Singapore’s Penal Code includes some infractions based on speech and publication that the city state considers criminal. The Code punishes the making, printing, possession, posting, distribution, or otherwise controlling of any document or electronic record that has “any incitement to violence or counseling disobedience to the law or to any lawful order of a public servant” or that is “likely to lead to any breach of the peace.” The sentence for those convicted of this transgression is up to five years of imprisonment and/or a fine. (Penal Code (Nov. 30, 2008 rev. ed.), art. 267, SINGAPORE STATUTES ONLINE.) In addition, anyone who deliberately utters a statement, makes a gesture, or places an object in the sight of a person designed to wound their “religious or racial feelings” may be subject to a term of imprisonment of three years and/or a fine. (Id. art. 298.) Furthermore, the same punishment can be applied to one who “knowingly promotes or attempts to promote” religious or racial disharmony or “commits any act which he knows is prejudicial to the maintenance of harmony between different groups … .” (Id. art. 298A.)

Under the Newspaper and Printing Presses Act, all publishers are required to register in Singapore and have licenses; granting licenses is at the discretion of the government. (Newspaper and Printing Presses Act (as amended to Oct. 1, 2016), art. 3, SINGAPORE  STATUTES ONLINE.)

China: Revised Regulations on Religious Affairs

Thu, 09/11/2017 - 14:30

(Nov. 9, 2017) On September 7, 2017, China’s State Council released a revised version of the Religious Affairs Regulations (Regulations), which will take effect on February 1, 2018; the Standing Committee of the State Council adopted the Regulations on June 14, 2017. (Zhonghua Renmin Gonghe Guo Guowu Yuan Ling Di 686 Hao: Zongjiao Shiwu Tiaoli [Decree No. 686 of the State Council of the People’s Republic of China: Religious Affairs Regulations] (Aug. 26, 2017), State Council website.) The Regulations are formulated with the stated goals of ensuring citizens’ freedom of religious belief, maintaining religious and social harmony, and regulating the administration of religious affairs. (Religious Affairs Regulations 2017, CHINA LAW TRANSLATE (unofficial translation) (limited access).) Compared to the last version of the Regulations, which were released in November 2004 and took effect in March 2005, the revised version has amended, added, and abridged several provisions on  general principles, religious groups, religious schools, venues for religious activities, religious professionals, religious activities, religious assets, and legal responsibility (Regulations.)

General Principles 

The Regulations specify in Chapter I that citizens are entitled to the right of freedom of religious belief. (Id. art. 2 ¶ 1.) In the revised Regulations, an article is added stating that the management of religious affairs should adhere to the principles of protecting legitimate religious activities, curbing and preventing illegal and extreme practices, resisting infiltration, and fighting crime. (Id. art. 3.) Another new article prohibits individuals and organizations from creating contradictions and conflict between different religions, within a single religion, or between religious and non-religious citizens; from advocating, supporting, or funding religious extremism; and from using religion to undermine ethnic unity, divide the nation, or carry out terrorist activities. (Id. art. 4.)

The Management of Religious Affairs 

(1) Religious Groups and Schools

Under the revised Regulations, a new article asserts that religious groups are authorized to perform several functions, including assisting governments at all levels in the implementation of laws, regulations, rules, and policies; preserving the lawful rights and interests of citizens with religious beliefs; guiding the group’s religious affairs; formulating a system of rules and regulations for the group and supervising their implementation; engaging in religious cultural study; and carrying out religious education and training. (Id. art. 8.)

Article 9 of the revised Regulations states that only national religious groups and those in provinces, autonomous regions, and directly-governed municipalities may establish religious schools, select and send students of religion to study abroad, and receive students of religion from abroad. Other organizations or individuals do not have the right to set up religious schools, select students of religion to study abroad, or accept foreign students of religion. (Id. arts. 9 & 11.)

(2) Venues for Religious Activity

The revised Regulations specify that venues for religious activities include temples, churches, and other fixed places. Other religious gathering places should be determined by the religious affairs departments of province-level governments. (Id. art. 19.) In order to be established, a venue for religious activity must have the necessary funds from “legitimate sources.” The configuration of the venue should also meet the requirements of urban and rural planning. (Id. art. 20.)

Another new provision prohibits the construction of large, outdoor religious statues outside of temple and church grounds. (Id. art. 30.)

(3) Religious Professionals

The revised Regulations prohibit persons who have not obtained or who have lost religious professional credentials from engaging in activities as religious professionals. (Id. art. 36.) The Regulations also now state that religious groups, religious schools, and religious activity sites must handle social insurance registration for religious professionals in accordance with the relevant regulations. (Id. art. 39.)

(4) Religious Activities

The Regulations newly prohibit non-religious groups, non-religious schools, non-religious activity sites, and temporary activity sites not appropriately designated as religious ones from conducting religious activities, accepting religious donations, carrying out religious training, and organizing citizens leaving the country to participate in religious training, meetings, and activities. (Id. art. 41.) The Regulations also prohibit proselytizing, holding religious activities, establishing religious organizations, or setting up religious activity sites in schools or educational bodies other than religious schools.  (Id. article 44.) Several other provisions are added that regulate religious informational publications and online religious services. (Id. arts. 45-48.)

(5) Religious Assets

The revised Regulations provide that religious groups, schools, and venues can manage and use public assets or collectively owned assets in accordance with laws and regulations. They also enjoy ownership or other property rights with regard to other lawful assets. (Id. art. 49.)

Religious groups, schools, and venues may accept overseas or domestic donations for charitable causes in accordance with the law. (Id. art. 57.) In addition, they should adopt the national financial and accounting system and register as taxpayers. (Id. art. 59.)

Legal Responsibility  

The revised Regulations also establish additional provisions on legal responsibilities and punishments for violations of laws and regulations relating to religious affairs. (Id. Ch. VIII.) One of these new provisions provides that, in the case of advocating, supporting, or funding religious extremism, or using religion to harm national security or public safety, undermine ethnic unity, divide the nation and conduct terrorist activities, where a crime is constituted, criminal responsibility is pursued in accordance with law; where no crime is constituted, administrative punishments will be given by relevant departments in accordance with law; and where losses are caused to citizens, legal persons or other organizations, civil liability must be borne in accordance with law. (Id. art. 63 ¶ 1.)

Where religious groups, religious schools, or religious activity sites carry out any of the conduct in the preceding paragraph and “the circumstances are serious,” the relevant departments will employ the necessary measures to rectify it; those refusing rectification are to have their registration certificate or establishment permit revoked. (Id. art. 63 ¶ 2.)

Prepared by Yichao Zhang, Law Library intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

Brazil: Possession or Illegal Carrying of Firearms of Restricted Use Now a Heinous Crime

Wed, 08/11/2017 - 20:30

(Nov. 8, 2017) Last month Brazil enacted a law increasing penalties for firearms violations. On October 26, 2017, Law No. 13,497 amended Law No. 8,072, of July 25, 1990 to include the crime of possession or illegal carrying of firearms of restricted use in the list of “heinous crimes.”  (Lei No. 13497, de 26 de Outubro de 2017, PLANALTO.)

Law No. 8,072 determines which crimes are considered heinous and provides harsher punishments for those crimes. (Lei No. 8.072, de 25 de Julho de 1990 (as amended), PLANALTO.) The punishments include, inter alia, no right to amnesty, clemency (graça), or pardon (indulto) (id. art. 2(I)) and no right to bail (id. art. 2(II)); a longer period of time to be served in prison before eligibility for parole (id. art. 2 §§ 1 & 2); and incarceration in a maximum security facility (id. art. 3).

Restricted Firearms

Decree No. 3,665 of November 20, 2000, defines restricted and permitted firearms, ammunition, and equipment. (Decreto No. 3.665, de 20 de Novembro de 2000, art. 15, PLANALTO.)  According to article 16 of the Decree, the following types of weapons are of restricted use:

  1. weapons, ammunition, equipment, and accessories that have some of the characteristics of the armaments used by the national armed forces with respect to their tactical, strategic, and technical use;
  2. weapons, ammunition, accessories, and equipment that are not identical or similar to the armaments used by the national armed forces but have characteristics that make them suitable only for military or law-enforcement use;
  3. short-range firearms, the common ammunition for which has, on exiting the barrel, an energy level higher than 300 foot-pounds or 407 Joules – ammunition such as that for the .357 Magnum, 9 Luger, .38 Super Auto, .40 S&W, .44 SPL, .44 Magnum, .45 Colt, and .45 Auto;
  4. “long-range, grooved” firearms, the common ammunition for which has, on exiting the barrel, an energy level higher than 1,000 foot-pounds or 1,355 Joules – ammunition such as that for the .22-250, .223 Remington, .243 Winchester, .270 Winchester, 7 Mauser, .30-06, .308 Winchester, 7.62 x 39, .357 Magnum, .375 Winchester and .44 Magnum;
  5. automatic firearms of any caliber;
  6. smooth bore firearms with a caliber of 12 or higher and with a barrel length shorter than 24 inches or 610 millimeters;
  7. smooth bore firearms with a caliber higher than 12 and their ammunition;
  8. air guns operated by compressed gas or spring action, with a caliber higher than six millimeters, which shoot projectiles of any kind;
  9. disguised firearms, which are characterized as devices that look like harmless objects but hide a weapon, such as a pistol-cane, revolver-pen, and the like;
  10. a compressed air gun imitating an Fz 7.62 mm, M964, FAL;
  11. weapons and devices that launch chemical warfare agents or noxious gas (gas agressivo), and their ammunition;
  12. devices that are accessories of weapons and are designed to impede locating the weapon, such as silencers, flash suppressors, and the like, which serve to muffle the explosion or the flash of the shot, as well as devices that modify the conditions of use, such as nozzles, grenade launchers, and the like;
  13. ammunition or pyrotechnic devices or similar devices that can cause fires or explosions;
  14. ammunition with projectiles that contain noxious chemical elements whose effects on the person hit greatly increase the damage done, such as explosive or poisonous projectiles;
  15. swords and rapiers used by the Armed Forces and the Auxiliary Forces;
  16. night vision equipment, such as goggles, periscopes, telescopes, etc.;
  17. optical aiming devices with magnification equal to or greater than six times or a lens diameter that is equal to or greater than 36 millimeters;
  18. aiming devices that use light or other means to mark the target;
  19. ballistic armor for restricted ammunition;
  20. ballistic equipment for protection against restricted portable firearms, such as vests, shields, helmets, etc.; and
  21. armored vehicles for civilian or military use.

Persons Permitted to Carry Firearms

According to article 6 of Law No. 10,826, of December 22, 2003 (Lei No. 10.826, de 22 de Dezembro de 2003, art. 6, PLANALTO), the carrying of firearms is prohibited throughout the national territory, except in the cases provided for in specific legislation and for

  1. members of the Armed Forces;
  2. members of the bodies listed at the beginning of article 144 of the Federal Constitution (which determines that public security is a duty of the State and the right and responsibility of all persons, exercised for the preservation of public order and the security of persons and property, through the federal police, federal highway police, federal railway police, civil police, military police, and military fire brigades) (Constituição Federal, art. 144, PLANALTO);
  3. members of the municipal guard of the capitals of states and municipalities with more than 500,000 people, under the conditions established in the regulation implementing Law No. 10,826 (Decreto No. 5.123, de 1 de Julho de 2004, PLANALTO; Lei No. 10.826, art. 6);
  4. active members of the municipal guard of municipalities with more than 50,000 and less than 500,000 people (Lei No. 10.826, art. 6);
  5. agents of the Brazilian Intelligence Agency and agents of the Department of Homeland Security Office of the Institutional Security of the Presidency (id.);
  6. members of law enforcement agencies referred to in articles 51(IV) and 52(XIII) of the Federal Constitution (id.);
  7. members of the permanent staff of officers and prison guards, prison escort guards, and port guards (id.);
  8. companies involved in private security and transportation of valuables as established in Law No. 10,826 (id.); members of legally constituted bodies of sport, whose sports demand the use of firearms, according to the regulation implementing Law No. 10,826, observing, as applicable, environmental laws (id.);
  9. career members of the Federal Internal Revenue Audit Office (Auditoria da Receita Federal do Brasil) and tAudit Labor Office (Auditoria-Fiscal do Trabalho) and Tax Auditors (Auditor-Fiscal) and Tax Analysts (Analista Tributário) (id.); and
  10. tribunals of the judiciary branch (as described in article 92 of the Federal Constitution) and the Public Prosecutor’s Office of the Union (Ministério Público da União) and the Public Prosecutor’s Office of the States (Ministério Público Estadual), for the exclusive use of its personnel that are effectively exercising security functions, by virtue of  a regulation to be issued by the National Council of Justice (Conselho Nacional de Justiça—CNJ) and the National Council of the Public Prosecutor’s Office (Conselho Nacional do Ministério Público—CNMP) (id.).

China/Hong Kong/Macau: Penalization of Disrespect for National Anthem Under Tenth Criminal Code Amendment

Wed, 08/11/2017 - 17:30

(Nov. 8, 2017) On November 4, 2017, that the Standing Committee of the National People’s Congress (NPCSC) of the People’s Republic of China (PRC) adopted an amendment to the country’s Criminal Code to include criminal sanctions, including up to three years of imprisonment, for disrespecting the national anthem. (Amendment (10) to the Criminal Code of the PRC (Amendment 10) (Nov. 4, 2017), NPC website (in Chinese); Ben Blanchard, China Considers Three-Year Jail Terms for Disrespecting National Anthem, Flag, REUTERS (Oct. 30, 2017).) The President of the PRC promulgated the amendment on the same day, with immediate effect. (Decree of the President of the PRC, No. 80 (Nov. 4, 2017), XINHUA (Nov. 4, 2017) (in Chinese).)

Under the Tenth Amendment of the Criminal Code, an additional paragraph is added to article 299, on desecration of the national flag, to provide that anyone who in a public venue maliciously alters the lyrics or music of the national anthem of the PRC (the “March of the Volunteers,” Yiyongjun jinxingqu), performs it in a distorted or derogatory manner, or otherwise desecrates its solemnity will be subject, “when the circumstances are serious,” to the punishments prescribed under the provision on desecration of the national flag. (Amendment 10, supra; Wei Zhezhe, If Circumstances of Desecration of the National Anthem Are Serious, the Highest Penalty May Be Three Years, PEOPLE’S DAILY (Nov. 1, 2017) (in Chinese).) The amendment does not indicate what constitutes serious circumstances.

At present, under the National Anthem Law, which entered into effect on October 1, 2017, anyone who carries out any of the abovementioned activities will be subject to a warning or to a period of 15 days of detention by the public security organs (police); if the acts constitute a crime, criminal punishment is to be pursued. (National Anthem Law of the PRC (adopted by the NPCSC on Sept. 1, 2017), art. 14 (in Chinese); see also Laney Zhang, China/Hong Kong: National Anthem Law Under Consideration, GLOBAL LEGAL MONITOR (July 18, 2017).) Heretofore, however, a criminal punishment had not been specified in the Criminal Code.

Flag Desecration Provisions

Like the National Anthem Law, the National Flag Law of the PRC provides for 15 days of administrative detention for anyone who desecrates the flag “by publicly and wilfully [sic] burning, mutilating, scrawling on, defiling or trampling upon it,” in accordance with the penalty provisions of the Regulations on Administrative Penalties for Public Security, when the offense is “relatively minor,” and for investigation of criminal responsibility otherwise. (Law of the People’s Republic of China on the National Flag (issued June 28, 1990, effective Oct. 1, 1990), art. 19, National People’s Congress website (in Chinese).)

The penalty provision in article 299 of the Criminal Code states:

Whoever desecrates the National Flag or the National Emblem of the People’s Republic of China by intentionally burning, mutilating, scrawling on, defiling or trampling upon it in a public place shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. (Criminal Law of the People’s Republic of China (adopted on July 1, 1979, and extensively revised as of Mar. 14, 1997, as amended, with links to eight of the nine amendments), art. 299, Congressional-Executive Commission on China website; Zhang, supra;  People’s Republic of China Criminal Law Amendment (9) (Sept. 1, 2015), CHINA LAW TRANSLATE; Criminal Code of the People’s Republic of China (as of Feb. 5, 2017, with links to nine of the amendments) (in Chinese).)

Extension of National Anthem Law to Hong Kong and Macau

On November 4, 2017, the NPCSC formally extended the original National Anthem Law to the Hong Kong Special Administrative Region (HKSAR) of the PRC by including the Law in the Annex III of the HKSAR Basic Law, which is sometimes referred to as Hong Kong’s “mini-constitution.” Annex III is on national laws to be applied in the HKSAR. (Ben Blanchard & Alexandra Harney, China Extends National Anthem ‘Disrespect’ Law to Hong Kong, REUTERS (Nov. 4, 2017); NPCSC Decision on an Addition to the National Laws Listed in Annex 3 of the “PRC HKSAR Basic Law” (Nov. 4, 2017), NPC.PEOPLE.COM (Nov. 5, 2017) (in Chinese).) Hong Kong, formerly ruled by the British, reverted to Chinese control in 1997 under the “one country, two systems” formula, whereby “[t]he National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this [Basic] Law.” (Basic Law Full Text (Apr. 4, 1990, in force on July 1, 1997), art. 2, Basic Law website.)

A spokesman for the NPCSC was quoted as saying at a news conference “that it was up to the Hong Kong government to enact a local law to abide by the amendment in a timely manner.” (Blanchard & Harney, supra.) According to news reports, during World Cup qualifiers and other matches held over the last few years, some Hong Kong football fans have booed the national anthem. (Id.) Zhang Rongshun, deputy director for the NPCSC’s Legislative Affairs Commission, stated that such “incidents of disrespect against the national anthem [challenge] the bottom line of the principle of one country, two systems and social morality, and [trigger] rage among Chinese including most Hong Kong residents.” (Stuart Lau, Kimmy Chung, & Catherine Wong, Country’s Top Legislative Body Formally Inserts Law into City’s Mini-Constitution, But Details of How It Will Be Applied in Hong Kong Yet to Be Thrashed Out, SOUTH CHINA MORNING POST (updated Nov. 5, 2017).) Soon after the issuance of NPCSC decree extending the National Anthem Law to the HKSAR, the Hong Kong government issued a statement indicating it would adopt the national law “‘by way of appropriate local legislation’ consistent with the city’s constitutional and legal regime.” (Id.)

The original Law has also been extended to Macau, which, like Hong Kong, is governed under the “one country, two systems” formula. (Id.; NPCSC Decision on an Addition to the National Laws Listed in Annex 3 of the “PRC Macau Special Administrative Region Basic Law” (Nov. 4, 2017), NPC.PEOPLE.COM (Nov. 5, 2017) (in Chinese).)

The amendment to the criminal law, however, “does not appear to apply to Hong Kong or Macau.” (Blanchard & Harney, supra.)

South Korea: Pilot Program Started for the Well-Dying Law

Wed, 08/11/2017 - 14:30

(Nov. 8, 2017) On October 23, 2017, a pilot program for the Hospice, Palliative Care, and Life-Sustaining Treatment Decision-Making Act, known as the “Well-Dying Law,” was implemented. (Act No. 14013 (Feb. 3, 2016), Korea Ministry of Government Legislation website (in Korean).)  The pilot program ends on January 15, 2018, and the Law will go into full effect in February 2018. (Korea Introduced “Death with Dignity” Law That Has Also Been Discussed in Japan, RECORD CHINA (Oct. 25, 2017) (in Japanese).)

The Law will enable patients to refuse cardiopulmonary resuscitation, hemodialysis, or anticancer treatment or to wear an artificial respirator after being assessed to be near death by their primary doctors and second doctors who are experts in the condition from which the patient is suffering. (Well-Dying Law, art. 2¶ 4 & arts. 15 & 16.)

The Health and Welfare Ministry said the aim of the pilot program is to raise public awareness of the impending Law. The program also serves to uncover any potential problems so that they can be fixed before the Law is implemented. A total of 13 hospitals and foundations nationwide are taking part in the trial implementation. (Trial Implementation of Well-Dying Law Begins, KBS WORLD RADIO (Oct. 29, 2017).)

Situations Permitting Non-Continuation of Life-Extending Treatment 

The Well-Dying Law allows rejection of life-extending treatment when a terminally ill patient:

  • has created a Life-Sustaining Treatment Plan with his/her doctors at a medical institution;
  • has an Advance Medical Directive (AMD) and his/her doctor confirm the contents with him/her;
  • has an AMD, but currently does not have full capacity to confirm the AMD, but his/her primary doctor and another doctor who is an expert in the field confirm that the AMD was properly drawn up;
  • is not in a condition to express his/her will, but his/her primary doctor and another doctor who is an expert in the field confirm that two or more family members of the patient have stated that the patient had consistently expressed his/her will to reject life-extending treatment, and there is no evidence to contradict it;
  • is under 19 years of age and is not in s condition to express his/her will, and the patient’s primary doctor and another doctor who is an expert in the field confirm that the person’s custodian has decided to reject life-extending treatment; or
  • is 19 years of age or older and is not in a condition to express his/her will, and the patient’s primary doctor and another doctor who is an expert in the field confirm that all of the person’s family members agreed to reject life-extending treatment. (Well-Dying Law, arts. 17 & 18.)

Under the pilot program, adults over 19 years of age, regardless of their current health condition, can receive a consultation and create an AMD on rejection of life-extending treatment for when they become terminally ill in the future. In addition, people who are hospitalized can create Life-Sustaining Treatment Plan with their doctors. The AMDs and Treatment Plans that are created during the pilot period are registered in the recordation system that will operate throughout the country from next February. (Trial Implementation of Well-Dying Law Begins, supra.)

Iran: New Copyright Law to Be Submitted to Parliament

Tue, 07/11/2017 - 20:30

(Nov. 7, 2017) Iran’s Ministry of Communications and Information Technology has announced it is working closely with the Parliament Research Center and other relevant agencies to formulate a new copyright bill for submission to Parliament. (Minister of Communications and Information Technology: Copyright Law Is Outdated; New Copyright Law to Be Sent to Parliament, IRANIAN LABOUR NEWS AGENCY (Sept. 16, 2017) (in Persian).)  The newly appointed Information and Communications Technologies Minister, Mohammad-Javad Azari Jahromi, stated that the current copyright law, passed nearly half a century ago and based on the country’s trade law of the time, is outdated and inadequate for providing businesses with the protection they currently require.  (Id.; Qaanoon-e Hemaayat-e Hoqooq-e Mo’alafaan va Mosanafaan va Honar-mandaan [Act for Protection of Authors’, Composers’ and Artists’ Rights] (Jan. 12, 1970), Islamic Parliament Research Center website; Act for Protection of Authors, Composers and Artists Rights (Copyright Law) (Jan. 12, 1970), World International Property Organization (WIPO) website) (in English).)  Details of the law have not yet been released.

Effects of Copyright Infringement in Iran

Copyright infringement has become a significant problem for Iranian firms targeting the international market, with the lack of recognition of international copyright conventions reportedly hampering ties between local businesses and international developers.  (Hamed Jafari, Iran May Soon Modify Its Copyright Law, TECHRASA (Sept. 17, 2017); Rewriting Copyright Law Imperative, FINANCIAL TRIBUNE (Sept. 18, 2017).)  According to Azari Jahromi, “[u]nless the copyright issue is resolved, we cannot achieve our necessary and optimal growth.”  (Minister of Communications and Information Technology: Copyright Law Is Outdated; New Copyright Law to Be Sent to Parliament, supra.)  The head of Iran’s Supreme Council of Cyberspace, Abolhassan Firouzabadi, echoed Jahromi’s concerns, urging the judiciary “to introduce a legal framework for enforcing copyright laws” and “take effective measures to protect original works of developers and put an end to online piracy.”  (Rewriting Copyright Law Imperative, supra.)  According to Firouzabadi, “[u]nless the authorities take necessary measures, and address the legal void, a substantial part of the economy will be hampered.”  (Id.)

Previously, Iran felt no need to become a party to any international copyright agreements, instead allowing the pirating and sale of foreign books, video games, movies, and other software to run rampant for years. Now that Iran has itself become a producer of software, however, the government has become aware of how copyright infringement is actually hurting its own domestic market. (Iran May Soon Modify Its Copyright Law, supra.)

Debate over Joining the Berne Convention

The adoption of the new copyright law would bring Iran a step closer to global intellectual-property-law standards and could pave the way for the country to join the Berne Convention for the Protection of Literary and Artistic Works.  (Id.; Berne Convention for the Protection of Literary and Artistic Works, 331 U.N.T.S. 217, Sept. 9, 1886, as amended Sept. 28, 1979, WIPO website.) Adopting the Berne Convention would be welcomed by those writers and translators who see this as a way of ending what author Hossein Sanapour has called the “chaotic atmosphere” produced by the problem of “multiple translations” of the same work, as well as improving the quality of translations and pay of translators.  (Zahra Alipour, Is It Time to Tame Iran’s Lawless Publishing Sector?, AL-MONITOR (May 24, 2016).)  Sanapour also stated that joining the Convention would “encourage publishers to publish original works authored in Persian.”  (Id.)

Sanapour’s enthusiasm for adopting the Berne Convention is not universally shared, however. Editor and translator Khashayar Deyhimi believes that if the Convention were adopted, publishers would gain control over the translation process, resulting in a decline in quality if they failed to engage the most competent translators.  (Id.)  In spite of his belief in the concept of copyright, Deyhimi maintains that

given the present circumstances [in Iran], joining the Berne Convention will worsen the cultural, ethical and financial problems that already plague Iran’s publishing sector. … The current chaotic situation caused by irresponsibility and immorality—and the inefficiency of the judicial system—will make copyright laws irrelevant.  (Id.)

Deyhimi’s pessimistic view is shared by publishing manager Reza Hasheminejad, who believes that joining the copyright convention, while inevitable, will result in corruption, with the Iranian book market more affected than before “by nepotism and rent-seeking.  The publishers with more influence and connections will benefit more.”

Sweden: Bitcoins Seized During Asset Seizure

Tue, 07/11/2017 - 17:30

(Nov. 7, 2017) On October 12, 2017, the Swedish Kronofogden (Enforcement Authority) announced that it had for the first time seized Bitcoin assets in the course of actions taken against a debtor and that it would auction them off during an online auction. (Press Release, Kronofogden, Nu kan du köpa bitcoin hos Kronofogden [Now You Can Purchase Bitcoins with the Kronofogden] (Oct. 12, 2017), Enforcement Authority website.) The Enforcement Authority estimated that the Bitcoins seized held a market value of approximately SEK23,000 (about US$2,822), and so this was the amount used to initially estimate of the money available to offset the debt owed by the person who owned the Bitcoins. (Information About the Activities of the Swedish Enforcement Authority, KRONOFOGDEN (last visited Oct. 26, 2017).)

Under Swedish law, one of the tasks of the Enforcement Authority is to seize property from indebted persons upon the application of the state, a creditor, or a debtor. (1§ Förordning med instruktion för Kronofogdemyndigheten [Regulation with Instruction for the Enforcement Authority] (Svensk författningssamling [SFS] 2016:1333), RIKSDAGEN; Lag om betalningsföreläggande och handräckning [Act on Payment Orders and Judicial Assistance] (SFS 1990:746), RIKSDAGEN; Skuldsaneringslag [Act on Debt Clearance] (SFS 2016:675), RIKSDAGEN; Information About the Activities of the Swedish Enforcement Authority, supra.) The most common debts that the Enforcement Authority enforce are ones resulting from unpaid “television licenses, maintenance obligations, student loan grants, traffic insurance, debts concerning cellular telephones and internet connections, and quick loans (SMS loans).” (Information About the Activities of the Swedish Enforcement Authority, supra.)

The Bitcoins were auctioned off at Auktionstorget. (F9492. Bitcoin och Bitcoin Cash, AUKTIONSTORGET (last visited Oct. 19, 2017).) Auktionstorget is the Enforcement Authority’s executive auction site where seized property is auctioned off to the highest bidder. (The Swedish Enforcement Authority’s Auction Site, KRONOFOGDEN (last visited Oct. 26, 2017).) The final bid was SEK43,000.00 (about US$5,277), received on October 19, 2017. (Id.) According to the Enforcement Authority, the extra SEK20,000 (aboutUS$2,450) obtained above the estimated value will be applied to further pay off the debtor’s debt. (Nu kan du köpa bitcoin hos Kronofogden, supra.)

Italy: Nuclear Security Legislation Now in Force

Tue, 07/11/2017 - 14:30

(Nov. 7, 2017) On October 10, 2017, legislation implementing a 2014 amendment to the European Union accord on nuclear security entered into effect in Italy. (Legislative Decree No. 137 of September 15, 2017, Implementation of Council Directive 2014/87/Euratom of 8 July 2014 Amending Directive 2009/71/Euratom Establishing a Community Framework for the Nuclear Safety of Nuclear Installations (L.D. No. 137), GAZZETTA UFFICIALE (Sept. 19, 2017), NORMATTIVA (in Italian); Council Directive 2014/87/Euratom of 8 July 2014 Amending Directive 2009/71/Euratom Establishing a Community Framework for the Nuclear Safety of Nuclear Installations, EUR-LEX.)  That amendment, which followed the 2011 nuclear accident in Fukushima, Japan, reinforced a number of provisions pertaining to preventing nuclear accidents.

Some highlights of the Italian legislation implementing Council Directive 2014/87/Euratom of 2014 are as follows.

Authorization for Nuclear Plants and Operational Requirements

  • The Ministry of Economic Development must ensure the effective participation of the public in decision-making processes concerning the issuance of authorizations for the operation of nuclear plants. (L.D. No. 137, art. 1(10)(a).)
  • Applicants for permits to handle regulated nuclear products must submit additional documentation with detailed information on the nuclear safety and health protection features of the products intended for use in nuclear plants. (Id. art. 1(4)(b).)
  • Nuclear plants must be planned, located, built, put into operation, used, and deactivated with the goal of preventing incidents; if incidents take place, they must be handled in a way that allows for prompt and adequate mitigation of the consequences (radioactive releases) through the implementation of emergency measures. (Id. art. 1(5).)
  • Holders of authorizations for the operation of nuclear plants must reevaluate, periodically and systematically, at least every ten years, the safety of their nuclear plants. (Id. art. 1(5).)
  • The scope of emergency measures to be adopted by operators of nuclear plants to prevent and protect workers against harmful radioactive effects is broadened. (Id. art. 1(7).)

Deactivation plans of nuclear plants must be updated every five years and every time the particular circumstances demand amendments to operational procedures. (Id. art. 1(9)(a).)

New Definition of Nuclear Incident

The definition of “incident,” which before the adoption of the amending Decree was “an unforeseen event that causes damage to an installation and disturbs its normal functioning and may involve, for one or more persons, exposure to doses of radiation higher than those established as acceptable in the relevant legislation,” has been changed to refer to “any non-intentional event whose actual or potential consequences are meaningful from the perspective of protection against radioactivity or nuclear safety, or that may lead to exposure to doses of radiation higher than those established as acceptable in the relevant legislation.” (Id. art. 1(a).)

Violation of the Decree, Liability, and Punishment

  • Government units around the country with jurisdiction on nuclear matters must give notice to ISIN (International Securities Identification Number)-Italy about violations of L.D. No. 137 in their respective territories. (Id. art. 1(3).)
  • The liability of contractors and subcontractors whose activities could affect the nuclear safety of a nuclear plant is legally established. (Id. art. 1(13)(a).)
  • Anyone who prevents or disturbs the execution of an inspection of a nuclear plant as established according to the legislation or who does not produce the documentation required by inspectors is also legally liable. (Id. art. 1(17).)
  • Punishments are extended to those who, without the respective permit, put into operation a nuclear plant, continue operations connected to the deactivation of a nuclear plant, or proceed with such operations after the expiration or revocation of the respective deactivation permit. (Id. art. 1(18)(a).)
  • Permit holders who violate orders given by the authorities to stop or suspend the operation of their nuclear plants are also subject to punishment. (Id. art. 1(18)(e).)

Austria: Full-Face Veil Ban Enters Into Force

Fri, 03/11/2017 - 16:30

(Nov. 3, 2017) On October 1, 2017, a ban on full-face veils in public places and buildings entered into force in Austria.  According to section 1 of the Anti-Face Veil Act, the Act aims to “further integration by strengthening participation in society and by promoting peaceful coexistence in Austria.”  (Bundesgesetz über das Verbot der Verhüllung des Gesichts in der Öffentlichkeit (Anti-Gesichtsverhüllungsgesetz – AGesVG) [Act on a Ban to Cover the Face in Public (Anti-Face Veil Act)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 68/2017, RECHTSINFORMATIONSSYSTEM (RIS).) The ban provides that anyone who covers his or her face in public places or public buildings with clothing or other items so that it is no longer recognizable, will be subject to an administrative fine of up to €150 (about US$174). Public places and buildings include bus, rail, air, and maritime transport. (Id.)

Exceptions are allowed if the veiling or covering of the face is provided for in a federal or state law; for artistic, cultural, or traditional festivities; for sports activities; or for health or professional reasons. (Id.)

Decisions of the European Court of Human Rights have held that banning full-face veils does not violate the European Convention on Human Rights, including provisions on freedom of thought, conscience and religion; freedom of expression; and prohibition of discrimination. (SooYun Cho & Nicolas Boring, Belgium/European Court of Human Rights: Ban on Full-Face Veil in Public Does Not Violate European Convention on Human Rights, GLOBAL LEGAL MONITOR (Aug. 30, 2017); Nicolas Boring, European Court of Human Rights; France: Recent Court Decisions on Islamic Veil Bans, GLOBAL LEGAL MONITOR (July 11, 2014).)

Reactions

The ban drew ridicule recently when a man in a shark costume who was advertising a business in Vienna was fined under its provisions. Street musicians wearing animal masks have also been officially warned not to do so or risk being fined. These incidents prompted the Austrian police to call for a clarification of the law. (Man in Shark Head Costume Falls Foul of Austria Anti-Veil Law, BBC News (Oct. 9, 2017).)

Sweden: Court Rules Accommodating Deaf Professor Would Place Disproportional Burden on State Employer

Fri, 03/11/2017 - 13:30

(Nov. 3, 2017) On October 11, 2017, the Swedish Arbetsdomstol (Labor Court) held that a deaf man could be denied a position as lector at a university, even though he was the best qualified applicant, because the cost of translating his lectures from sign language would be too great. (Labor Court, Decision No. 51/17, Case No. A 146/16, ARBETSDOMSTOLEN, Oct. 11, 2017.) The Diskrimineringsombudsmannen (Discrimination Ombudsman [DO]) had brought Södertörn University before the Labor Court, arguing that the man had been discriminated against based on his hearing disability when he was overlooked for a position as lector despite being the most experienced applicant. (Id.) 

Relevant Provisions of Law

Under Swedish law, a person may not be discriminated against based on a disability. Discrimination includes not providing resources that would put the disabled person on an equal footing with a non-disabled person (bristande tillgänglighet). (1 kap. 4 § 3 Diskrimineringslagen [Discrimination Act] (Svensk författningssamling [SFS] 2008:567), NOTISUM.) Applicants for jobs as well as employees are covered by the provisions of the Discrimination Act. (Id. 2 kap. 1 §.)

Sweden is also bound by the United Nations Universal Declaration of Human Rights and the European Union Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Both the Swedish Discrimination Act and EU Directive 200/78/EC only require that the accommodating measures be provided as long as they do not place an unreasonable or disproportional burden on the employer.  (Id. 1 kap. 4 § 3;  Universal Declaration of Human Rights (Dec. 10, 1948) United Nations website; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation,  2000 O.J. (L 303) 16, art. 5, EUR-LEX.)

The Decision

The DO argued that the man, who the university found to be the most competent applicant, had been discriminated against because he was deaf, arguing that the university should have hired a sign-language translator to assist him. The DO noted that the state, as an employer, should set a good example, citing the legislative history of Proposition (Prop.) 1999/2000:79, Från patient till medborgare – en nationell handlingsplan för handikappolitiken (From Patient to Citizen – A National Action Plan for Disability Policy). (Case No. A146/16, at 7-8.)

Södertörn University countered that providing translator services placed an unreasonable financial burden on them and estimated that 450 hours out of the total 1,700 working hours would require translation services, at a cost of a minimum SEK520,000 (about US$62,000) and possibly amounting to SEK900,000 (about US$108,000). (Id. at 3-4.)

The Court, basing its decision on the high cost, found that even though the state-funded university has a large budget and that it acts a state employer, it cannot be required to pay even SEK500,000 (about US$60,000) annually to accommodate the applicant.  The Court unanimously found that this was a disproportional burden on the employer, as the cost of accommodating the person would equal the person’s basic salary The Court  did not determine what a reasonable cost would have been.  (Id. at 12.)   Decisions by the Labor Court are final and cannot be appealed. (2 kap. 4 § Lag om rättegången i arbetstvister [Act on Civil Procedure in Labor Disputes] (SFS 1974:371), NOTISUM.)

Saudi Arabia: Bankruptcy Bill Expected to Be Implemented in 2018

Thu, 02/11/2017 - 16:30

(Nov. 2, 2017) On September 21, 2017, the Saudi Minister of Commerce and Investment, Majid al-Qasabi, announced that the Ministry had referred to the Shura Council (a 150-member legislative advisory body to the King that proposes new legislation and amends existing laws) a bill governing the bankruptcy of corporations. The bill is expected to be implemented by the end of the first quarter of 2018.  The purpose of the bill is to attract foreign investors and encourage small and medium corporations to grow financially.  (Saudi Arabia Grants License to Top Global Firms, AL-ARABIYA (Sept. 21, 2017; Majlis Al-Shura (Consultative Council), Royal Embassy of Saudi Arabia  (Washington, D.C.) website) (last visited Oct. 30, 2017).)

Content of the Bill

The bill consists of 18 chapters and 320 articles. Its main goal is to provide for the operation of indebted corporations while they gradually pay off their debts.  The bill allows creditors and debtors to enter into agreements to schedule the payment of debts, a measure that will enable indebted corporations to achieve a stable financial status.  (Bankruptcy System Bill (last updated Mar. 1, 2017), Ministry of Commerce and Investment website (in Arabic).) 

The bill addresses three vital concepts of the bankruptcy process: preventive settlement proposals; reorganization, and liquidation.  (Id.)  With regard to preventive settlement, article 11 of the bill states that the indebted corporation may request a preventive settlement from the court under two conditions: 1) the corporation has declared bankruptcy or failed to pay its debts; or 2) the corporation expects future financial and economic difficulties that will lead to the default of its debts.  (Id.)  Article 12 stipulates that the indebted corporation is not allowed to request preventive settlement if it has already requested a reorganization or liquidation.  Moreover, under article 39, the court may approve a preventive settlement proposal submitted by the indebted corporation if the proposed settlement was approved by creditors representing more than half of the corporation’s debts.  (Id.)

Concerning reorganization and liquidation, according to article 40, if the majority of the creditors disapprove the proposed preventive settlement, the indebted corporation has the right to request from the court a reorganization or liquidation. (Id.)  Article 57 stipulates that the court has a legal right to review the corporation’s request and decide whether to approve it or dismiss it.  (Id.)  Article 97 indicates that the court is authorized to initiate the liquidation of the indebted corporation in one of two situations: 1) if the corporation has declared bankruptcy by failing to pay its debts; or 2) when the court has rejected the indebted corporation’s request for reorganization.  (Id.)

Reaction to the Bill  

The Ministry of Commerce and Investment has published the bill on the its official website to receive citizens’ feedback.  The Ministry also declared that the bill was written in cooperation with an international expert in the field of bankruptcy and follows the bankruptcy models of an array of countries, such as the the Czech Republic, England, Wales, France, Germany, Japan, Singapore, and the United States.  According to the Ministry of Commerce’s website, those countries are considered by international institutions such as the World Bank and the United Nations Commission on International Trade Law to have the best laws that deal with the process of bankruptcy of corporations while securing the rights of creditors.  (The Commerce and Investment Ministry Proposes the Bankruptcy Bill for Public Opinion After Studying the Best International Practices, Ministry of Commerce and Investment website (last updated Mar. 1, 2017) (in Arabic).)

The International Monetary Fund (IMF) declared that the proposed bill is considered a vital legislative tool for helping private sector corporations attain monetary stability and grow financially at a stable rate.  An IMF representative added that the bill will help new investors to establish small and medium businesses without worrying about the negative impact of bankruptcy.  (Press Release, No. 17/178, International Monetary Fund, IMF Staff Completes 2017 Article IV Mission to Saudi Arabia (May 17, 2017).)

Prepared by Ammar Alsallumi, Law Library Intern, under the supervision of George Sadek, Legal Research Analyst.

Japan: Judges Cannot Engage in Apartment-Leasing Business

Thu, 02/11/2017 - 13:30

(Nov. 2, 2017) Japanese judges cannot engage in for-profit businesses. They may engage in not-for-profit businesses and receive remuneration if they obtain permission from the Supreme Court.  (Court Act, Act No. 59 of 1947, art. 52, Japanese Law Translation website.)  There are similar regulations for civil servants.  (National Public Service Act, Act No. 120 of 1947, arts. 103 & 104, Japanese Law Translation website.)

In regard to the real estate leasing business, however, there have been no guidelines or standards for the approval of leasing arrangements involving judges.  The Supreme Court has approved the leasing of judges’ houses while a judge is temporarily assigned to another area and also the leasing of houses that judges have inherited.  (Leasing an Apartment by a Judge Is NG [No Good], the Supreme Court Stated “Being Incorrupt Required,” Nikkei (Nov. 1, 2017) (in Japanese).)

In a recent case, a judge inherited an apartment building where his parents had lived and leased out other units.  The judge planned to demolish the old building, borrow 130 million yen (about US$1.15 million) from a bank with his wife, rebuild a new 12-unit apartment building, lease it as a whole to a real estate management company, and receive rent from the company.  It was estimated that the couple would obtain five million yen (about US$44,000) in revenue per year from the venture.  (Id.)

However, the Supreme Court did not approve the judge’s planned leasing arrangement.  He appealed the decision, and the case was referred to an outside judicial committee.  The committee upheld the Supreme Court’s decision.  The Supreme Court reaffirmed its prior decision on October 25, 2017, stating “judges are required to be the most fair and incorrupt.”  (Id.)

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