[JURIST] Voters in 36 US states considered more than 160 initiatives and referenda [MarketWatch report] at the polls Tuesday, including ballot measures dealing with gay rights, abortion, affirmative action and illegal immigration [JURIST news archives]. Probably the most closely watched ballot measure is in California, where voters will decide whether to effectively overturn a decision by that state's Supreme Court striking down [JURIST report] a ban on same-sex marriage as violating the California Constitution. Proposition 8 [text and materials; live unofficial results], which was placed on the ballot [JURIST report] by citizen initiative, would amend the state constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." The measure has generated more than $60 million in contributions [JURIST report] to committees representing both sides of the issue - a figure believed to be a US record. Voters in Arizona [Proposition 102 text, PDF; live unofficial results] and Florida [Proposed Constitutional Amendment 2 text, PDF; live unofficial results] also will consider proposed state constitutional amendments prohibiting same-sex marriage. More than half the states have already adopted similar amendments [NCSL list], while most others have defined marriage by statute. In 2006, Arizona became the first state to defeat [JURIST report] a state constitutional amendment banning same-sex marriage. This year's ballot in Arkansas [Proposed Initiative 1 text, PDF; live unofficial results] will include a measure that would prohibit gays, lesbians and other unmarried cohabiting couples from becoming either foster parents or adoptive parents [JURIST report].

Voters in two states weighed additional restrictions on abortion. In South Dakota, Initiated Measure 11 [PDF text; live unofficial results] would prohibit abortion except in cases of rape, incest and "substantial and irreversible risk" to a woman's health. South Dakota legislators last year rejected [JURIST report] a bill to that effect that was viewed as a vehicle to challenge US Supreme Court decisions in Roe v. Wade and subsequent cases. In California, Proposition 4 [text and materials; live unofficial results] would amend the state constitution to require that a physician notify a parent or legal guardian of an unemancipated minor who has sought an abortion and wait 48 hours before performing the procedure. The amendment contains narrow exceptions, including waiver by a court based on clear and convincing evidence of the minor's maturity or best interests. While not addressing abortion specifically, a Colorado initiative [Amendment 48 text and materials; live unofficial results] would amend the state constitution to define "person" to include "any human being from the moment of fertilization." In Michigan, a proposed constitutional amendment [Proposal 08-2 text, PDF; live unofficial results] would "ensure that Michigan citizens have access to stem cell therapies and cures" by permitting embryonic stem cell research under certain conditions while preserving the state's ban on human cloning. A life-and-death issue will also be on the ballot in Washington, where Initiative Measure 1000 [text and materials; live unofficial results] would allow terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves, their physicians or others to criminal penalties. The measure is modeled on neighboring Oregon's Death with Dignity Act [official materials], enacted in 1997 and upheld [JURIST report] by the US Supreme Court in 2006.

Measures that would prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex appear on the ballot in two states. In Colorado, an initiative [Amendment 46 text and materials; live unofficial results] would amend the state constitution to forbid all state agencies, including public universities and political subdivisions, "from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting," with certain exceptions. A virtually identical proposal [Initiated Measure 424 text, PDF; live unofficial results] is on the ballot in Nebraska. In 2006, Michigan voters approved a similar state constitutional amendment, which in March of this year was upheld [JURIST report] by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.

Voters in two states with large immigrant populations considered measures affecting illegal immigrants. An initiative [Proposition 202 text, PDF; live unofficial results] in Arizona would revoke the business licenses of employers that knowingly hire illegal immigrants and would strengthen penalties for identity theft. A legislative referendum [Proposed Constitutional Amendment 1 text, PDF; live unofficial results] in Florida would amend that state's constitution by deleting a provision allowing lawmakers to regulate or prohibit the ownership of real property by illegal immigrants. Ballot measures in two other states would affect immigrants by requiring the use of the English language in official settings. In Missouri, a legislative referendum [Proposed Constitutional Amendment 1 text; live unofficial results] would establish English as the official state language, to be used at "all governmental meetings at which any public business is discussed, decided, or public policy is formulated." In Oregon, an initiative [Measure 58 materials; live unofficial results] would prohibit public school students from being taught in a language other than English for more than two years, with an exception for the teaching of foreign languages to English speakers.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF] Tuesday in three cases. In FCC v. Fox Television Stations [oral arguments transcript, PDF; merit briefs], the court will consider whether the Federal Communications Commission (FCC) [official website] acted arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. In 2004 the FCC changed its longstanding policy, saying that it would no longer permit the use of isolated expletives on the air. The FCC issued a 2006 order stressing the ban on such one-time violations. Fox Television Stations, along with other broadcasters, brought a petition for review of the FCC order before the US Court of Appeals for the Second Circuit, which ruled [opinion, PDF] that the new policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy, vacating the FCC order.

The Supreme Court also heard arguments in the case of United States v. Eurodif [oral arguments transcript, PDF; merit briefs] and USEC v. Eurodif, in which the Court will consider whether certain imports of enriched uranium are subject to federal anti-dumping laws. Eurodif [corporate website, in French] and USEC [corporate website] both enrich uranium, in France and in the US, respectively. Under 19 U.S.C. § 1673 [text], the Commerce Department [official website] can impose duties on imports of foreign merchandise when that merchandise is being sold in the US at less than its fair value, a practice known as dumping. The key issue is whether uranium enrichment should be regarded as a sale of goods, which is subject to the anti-dumping laws, or a sale of services, which is not. When USEC filed a complaint with the Commerce Department, the department found that there was a sale of goods, subject to anti-dumping laws, and the Court of International Trade (CIT) reversed. The US Court of Appeals for the Federal Circuit affirmed [US v. Eurodif; USEC v. Eurodif] the CIT's decision.

Finally, the Court heard arguments Tuesday in the case of Jimenez v. Quarterman [oral arguments transcript, PDF; merit briefs], in which the Court will consider whether the US Court of Appeals for the Fifth Circuit correctly denied an appeal by an inmate seeking an extension to file a federal habeas corpus challenge, after he had been denied review in state courts. Carlos Jimenez pleaded guilty to felony burglary and habitation charges and was sentenced to 43 years in prison. The US District Court for the Northern District of Texas dismissed his habeas petition with prejudice as barred by the statute of limitations. The circuit court denied [order, PDF] his request for a certificate of appealability, finding that his petition was time barred.

[JURIST] Iraqi Sunni Vice President Tariq al-Hashemi [personal website, in Arabic], one of two Iraqi vice presidents, called Tuesday for a national referendum on a proposed US-Iraqi Status of Forces Agreement (SOFA) [CFR materials]. The agreement, which has been the subject of protracted negotiations between Iraq and the US since May, would extend the role of US forces in Iraq through 2011 and define the ongoing relationship between the US military and Iraqi civilian institutions, including the national police service and the Iraqi justice system. It also gives Iraqi courts limited jurisdiction over American military personnel [JURIST report] for crimes committed off base when the troops are not on an authorized mission. Al-Hashemi characterized a national vote approving the SOFA as an essential requirement for Iraqi acceptance of the agreement. Reuters has more. AP has additional coverage.

The draft agreement has been delayed [JURIST report] by months of negotiation, and must be approved by lawmakers in both countries. The current UN mandate authorizing a US troop presence in Iraq expires in December [UN press release]. In late June, the US agreed to eliminate legal immunity for US contractors [JURIST report] from the proposed agreement, and suggested that it might concede US control of Iraqi airspace. .

[JURIST] The State Council Information Office of China [official site, in Mandarin] announced Tuesday that the country will draft a plan to protect human rights. The panel being formed to draft the plan will receive input from more than 50 groups, including the Chinese Legislature [official site], the Supreme People’s Court [official site, in Mandarin] and the National Development Reform Commission [official site]. The panel will also have an advisory group made up of 10 human rights experts from universities and academic institutions. The Information Office noted that the plan will include a focus on improving government function, expanding democracy, strengthening the rule of law, improving people’s livelihood, boosting public awareness of human rights, and protecting rights of women, children, and ethnic minorities. No information was provided as to when the plan will be released. Reuters has more. Xinhua has additional coverage.

The announcement of the plan comes as China continues to be the object of international criticism over human rights violations. While the country slowly addresses some of the concerns in legislation such as the recent Labor Contract Law [backgrounder], widely hailed as a major advancement [Bloomberg report] in China's protection of workers' rights, critics are quick to point out where the Chinese government is still lagging behind. In September, for instance, Human Rights in China (HRIC) [advocacy website] issued a report highlighting the continued issue of torture on prisoners [JURIST report] despite domestic and international bans.

[JURIST] The Dutch government on Tuesday announced [press release, in Dutch] that it has proposed legislation [text, PDF, in Dutch] that would allow journalists to keep their sources secret from the government. The proposal comes two years after a Dutch trial judge detained two newspaper reporters [RSF press release] for three days after they refused to reveal their sources when called as witnesses in the trial of a former Dutch intelligence officer who was accused of leaking information about a drug trafficker. The proposed law, which would extend the right to bloggers as well as traditional reporters, is expected to be enacted sometime next year. AP has more.

Last November, the European Court of Human Rights [official website] ruled [JURIST report] that journalists' right to protect confidential sources "could not be considered a mere privilege to be granted or taken away" by European states. Earlier this year newspapers in the US pressed for the Senate's passage [JURIST report] of a proposed shield law entitled the Free Flow of Information Act of 2007 [materials], but the bill was eventually tabled without a vote. The US House of Representatives passed a similar bill [JURIST report] in October 2007. The uncertain status of reporters' right to protect sources has been highlighted in the ongoing case of former USA Today reporter Toni Locy [JURIST news archive], who has refused to disclose government sources who provided information about former US Army germ-warfare researcher Dr. Steven J. Hatfill, initially identified as a "person of interest" in the 2001 anthrax attacks [GWU backgrounder].

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Monday reinstated [opinion, PDF] a water pollution lawsuit brought by survivors of the Bhopal disaster [BBC backgrounder] against US chemical producer Union Carbide [corporate website]. The litigation in the case, Sahu v. Union Carbide, concerns water pollution and groundwater contamination resulting from the 1984 disaster in Bhopal, India, in which nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled. Monday's order remanded the case to the US District Court for the Southern District of New York [official website], which the Second Circuit ruled had erred in converting Union Carbide's motion to dismiss the case into a motion for summary judgment. In remanding the case, Judge Robert Sack [official profile] wrote:

We think that the title of the defendants' memorandum in support of its motion as a motion to dismiss or [emphasis in original] for summary judgment similarly failed to provide the plaintiffs with adequate notice. A motion called a motion for summary judgment, whether or not stated as alternatively for dismissal, ordinarily will place a plaintiff on notice that the district court is being asked to look beyond the pleadings to the evidence in order to decide the motion. In this case, however, where the plaintiffs had filed a multi-count complaint and the supporting memoranda and can fairly be read to seek only dismissal under Rule 12(b)(6) on some counts and summary judgment on others, the motion papers provided insufficient notice....We conclude that further notice was required and that consequently it is appropriate to remand for what would appear to be relatively limited further proceedings in connection with consideration of summary judgment.

[JURIST] Chief Justice Allan Lutfy of the Federal Court of Canada [official website] on Monday dismissed a challenge [opinion, PDF] to recent security-related amendments [text] to the country's Immigration and Refugee Protection Act [text], ruling that it was too early to determine whether they would violate immigrant rights. Under the law, the Canadian government can use security certificates [PSC backgrounder] to order the detention and deportation of foreign terrorist suspects in private hearings without the presence of suspects or their lawyers. The amendments give detainees access to a UK-style special advocate [JURIST report] at private hearings empowered to review and challenge materials that detainees themselves cannot see for security reasons. The challenge was filed by one of the special advocates, Toronto lawyer Lorne Waldman [firm website], who had argued disclosure restrictions on the advocates are broader than necessary to protect secret information. Lutfy ruled that because the cases being argued by the advocates are still pending, it was too early to determine what the rights implications of the amendments would be. The Globe and Mail has more. The Toronto Star has additional coverage.

The Canadian House of Commons passed the provisions allowing the use of special advocates in February, after introducing [JURIST reports] the bill in October 2007. The changes came in response to a decision [text] by the Supreme Court of Canada that found the government's prior use of security certificates to indefinitely detain and deport foreigners with suspected ties to terrorism violated the Canadian Charter of Rights and Freedoms [text; CDCH materials]. Three Arab Muslim men, Adil Charkaoui, Hassan Almrei, and Mohamed Harkat, had argued [JURIST report] before the high court that their indefinite detentions were unconstitutional. The court said in its ruling that indefinite detentions under security certificates were permissible as long as evidence that detainees themselves could not see could be challenged.

[JURIST] The Singapore Attorney General's Chambers (AGC) [official website] on Tuesday filed an application [summons, PDF; brief, PDF] accusing the Wall Street Journal Asia (WSJA) [media website] of undermining the independence and integrity of the country's judiciary. Citing two WSJA articles, "Democracy in Singapore" [text] and "Judging Singapore's Judiciary" [text], as well as one letter [text], all published earlier this year, the complaint alleges that the WSJA attacked Singapore's rule of law, undermining the authority of its courts, and thus should be treated as contempt of court rather than libel. The AGC said that the claim was not an unjust restriction of the free speech clause in Singapore's constitution [Section 14(1)(a) text] because under common law, contempt of court is a justifiable restriction on free speech as a matter of public interest. The application for committal for contempt of court was heard by Justice Tay Yong Kwang, who reserved judgment. The AGC seeks to impose a "substantial fine." AFP has more.

In July, Singapore rejected [JURIST report] similar criticisms about its judiciary's independence from the International Bar Association's Human Rights Institute [official website]. In September, a US blogger was sentenced in Singapore to three months of incarceration for insulting a judge [JURIST report].

[JURIST] South Korea will join the European Union and Japan in supporting a UN General Assembly (UNGA) [official website] resolution [Korean Center report] condemning North Korea's human rights practices, according to a South Korean foreign ministry official Tuesday. The resolution will be submitted to the UNGA's Third Committee [official website] this week, and is expected to address issues including public executions [Chosun Ilbo report; JURIST report] and punishment for repatriated refugees [US DOS report]. AP has more.

The UNGA has adopted a resolution concerned with human rights in North Korea annually since 2005. South Korea abstained from voting in 2007 [resolution text, PDF] after joining the resolution in 2006 [resolution text, PDF], the same year that South Korea joined [Chosun Ilbo report] a resolution adopted by the UN Human Rights Council. Prior to the 2006 vote, South Korea had abstained from voting issues concerned with North Korea since 2003. Last month, the UN Special Rapporteur on Human Rights in North Korea called on [UN News Centre report; JURIST report] the country to take urgent action to improve its rights record. In March, the South Korean National Human Rights Commission of Korea [official website, in English] announced an official investigation [JURIST report] into alleged human rights violations by North Korea. North Korea is a party to the International Covenant on Civil and Political Rights [text] and the International Covenant on Economic, Social, and Political Rights [text], among other international treaties.

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Saturday warned [UN News Centre report; press conference transcript] that Colombia faces continued human rights struggles, as she concluded a fact-finding mission [UNHRC report] to the country. Pointing to continued hostage takings, arbitrary arrests, and especially extrajudicial executions by the military as major struggles, Pillay told [IPS report] reporters:

An offense becomes a crime against humanity if it is widespread and systematic against the civilian population. We are observing and keeping a record of the number of extrajudicial killings, and it does appear systematic and widespread in my view.

[JURIST] The Alaskan Personnel Board [official website] on Monday released a report [text, PDF] finding that governor and Republican vice-presidential nominee Sarah Palin [official profile] did not violate state ethics rules when she fired former public safety commissioner Walter Monegan. Monegan had alleged that Palin violated the state's Executive Branch Ethics Act (EBEA) [text, PDF] by using her office to pressure him to fire Palin's former brother-in-law, state trooper Mike Wooten, and that she improperly dismissed Monegan when he refused. In the report, independent counsel Timothy Petumenos concluded that there was "no probable cause to believe" that Palin violated the act in her actions towards either Monegan or Wooten. Petumenos also criticized an earlier investigation into the charges by Stephen Branchflower, saying that it misinterpreted the EBEA and relied too heavily on weak evidence when it found Palin's conduct unethical. The New York Times has more.

Earlier this month, the Alaskan Legislative Council [official website] released Branchflower's report [text, PDF; JURIST report] on the allegations, concluding that Palin and her husband Todd had violated the public trust by using their influence in the Governor's Office to pressure for Wooten's firing. Branchflower found that while Monegan's refusal to fire Wooten was a contributing factor to his dismissal, it was nevertheless a "proper and lawful exercise" of Palin's authority to hire and fire executive branch heads under the Alaskan law.

[JURIST] A US military commission sentenced [DOD press release] Ali Hamza Ahmad Suliman al Bahlul [DOD materials] to life in prison Monday following his Friday conviction [JURIST report] for conspiring with al Qaeda, soliciting murder, and providing material support for terrorism. Al Bahlul, a 39-year old Yemeni citizen, went on trial [JURIST report] at Guantanamo Bay [JURIST news archive] late last month. The verdict in al Bahlul's case remained sealed [JURIST report] until Monday when al Bahlul was present in the courtroom. He had previously boycotted the proceedings. His case will now receive two automatic reviews by military justice bodies, after which al Bahlul may appeal to the Court of Appeals for the District of Columbia and then to the US Supreme Court. Bloomberg has more. AFP has additional coverage.

Al Bahlul, alleged to have been Osama bin Laden's personal assistant and media secretary, was charged [charge sheet, PDF; JURIST report] in February with conspiracy, solicitation to commit murder and attacks on civilians, and providing material support for terrorism. He is accused of researching the financial impact of the 9/11 attacks and releasing the "martyr wills" of 9/11 hijackers Muhammed Atta and Ziad al Jarrah as propaganda videos. Al Bahlul is only the second detainee to go on trial at Guantanamo since the prison there opened in 2002.

[JURIST] Mexico’s National Human Rights Commission (CNDH) [official website, in Spanish] has urged [press release, in Spanish] the Mexican Senate [official website] to change a law requiring those who file criminal complaints to verify their immigration status. CNDH said Sunday that the country's General Law of Population [PDF, in Spanish], which requires the verification, denies undocumented immigrants fundamental protections in violation of the UN Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights [texts], and other rights treaties signed by the country. Despite its criticism, the commission praised a July amendment [text, in Spanish] to the law that decriminalized illegal immigration [JURIST report], reducing penalties from as much as six years in prison to monetary fines between $500 and $2,400. AP has more.

Earlier this month, Mexico and Cuba signed [JURIST report] a memorandum of understanding [text, in Spanish] aimed at combating the rising number of Cuban illegal immigrants [JURIST news archive] attempting to reach the US through Mexico. In recent years the Mexican government has taken various steps to stem the tide of migrants coming into the country from other Central American states on their way to the United States, while at the same time seeking to improve the lives of those already in Mexico.