[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in two cases. In Entergy Corp. v. EPA [oral arguments transcript, PDF], the Court heard arguments on whether Section 316(b) of the Clean Water Act [text, PDF] authorizes the Environmental Protection Agency (EPA) [official website] to use a cost-benefit analysis to determine what is the best technology available for minimizing adverse environmental impact from cooling water intake structures that draw water into power plants to offset the heat created during power generation. This case consolidates issues in two cases - PSEG Fossil v. Riverkeeper (07-589) [docket], and Utility Water Act Group v. Riverkeeper (07-597) [docket]. The US Court of Appeals for the Second Circuit [official website] ruled [text, PDF] that no such balancing test may be used and that companies must adopt the best technology available. Counsel for the petitioners argued that the circuit court decision unlawfully limits EPA authority and that a cost-benefit analysis is required. Counsel for the respondents argued that the "EPA never has the authority, in any context, to weigh costs against benefits" and that no "absurd circumstances" would result from such a ruling.

In Fitzgerald v. Barnstable School Committee [oral arguments transcript, PDF], the Court heard arguments on whether Title IX [text] precludes Section 1983 [text] constitutional claims to remedy sex discrimination in educational settings. The US Court of Appeals for the First Circuit [official website] found [opinion, PDF] that parents could not sue for discrimination against their daughter by another student under Section 1983 and that Title IX provided the only remedy. Counsel for the petitioners argued that "the court of appeals entirely disregarded all of the ordinary indicia of congressional intent: The statutory text, the statutory background structure and evolution, the unquestioned legislative purpose" in finding that Title IX precluded a remedy under Section 1983. Counsel for the respondent argued that "Title IX provides for sex discrimination and provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause," so petitioners are not denied a remedy.

[JURIST] A Norwegian court on Tuesday sentenced [press release, in Norwegian] Bosnian immigrant Mirsad Repak to five years in prison for committing war crimes against 11 Serbian citizens imprisoned during the Bosnian War. Repak, who has lived Norway for more than 10 years, was also ordered to pay damages to the families of eight Serbian victims, but was acquitted on the charges of rape and crimes against humanity. Repak was the first person to be tried on war crimes charges [JURIST report] under the new Norwegian legislation [JURIST report] that was enacted in March that outlawed war crimes and crimes against humanity. He was also the first to be tried on war crimes in Norway since World War II.

The case raised a constitutional question concerning whether the new legislation could be applied retroactively. A provision of the Norwegian Constitution [text] specifically prohibits the retroactive application of any law, unless a similar law could be found to exist prior to the inclusion of a new law. The court reasoned that the new law against war crimes was essentially similar to the older penal provision that prohibited crimes against personal freedom. The Oslo District Court acquitted Repak of crimes against humanity because it could find no prior law to apply.

[JURIST] US President George W. Bush issued an executive order [text] on Monday that defined the primary objective of some 8600 federal agency employees to be national security-related, rendering them ineligible for Federal Labor-Management Relations Program [5 U.S.C. § 7101 et seq. text] coverage such as collective bargaining rights. The order says:

The subdivisions of the Departments of Energy, Homeland Security, Justice, Transportation, and the Treasury set forth in . . . this order are hereby determined to have as a primary function intelligence, counterintelligence, investigative, or national security work. It is further determined that chapter 71 of title 5, United States Code, cannot be applied to these subdivisions in a manner consistent with national security requirements and considerations.

[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] Tuesday sentenced [judgment,PDF; judgment summary, PDF] popular Rwandan singer-songwriter Simon Bikindi [ICTR case materials] to 15 years in prison for his actions during the 1994 Rwanda genocide [HRW backgrounder]. Bikindi had been indicted [indictment, PDF] in 2005 on six amended counts relating to genocide. The prosecution alleged [ICTR press release] that Bikindi "through the lyrical content of his music, consciously and deliberately assisted in executing the plan to exterminate Tutsis." While the court found that five of the six charges had not been proven beyond a reasonable doubt, Bikindi was convicted of direct and public incitement to genocide for a 1994 speech in which he called on Hutus to rise up and exterminate the Tutsis. The court felt that a serious sanction was warranted because Bikindi had "abused [his] stature as a well-known and popular artist perceived to be an influential member of the MRND and an important figure in the Interahamwe movement by using [his] influence to incite genocide." In light of this aggravating factor, the absence of any mitigating factors, and the sentencing practices of the ICTR, the court sentenced Bikindi to 15 years in prison.

Bikindi was first indicted and arrested in 2001. At the time of his arrest, Bikindi was living in the Netherlands. He fought extradition for several months but lost and was turned over to the ICTR in March 2002 where he pleaded not guilty [Hirondelle materials] to charges of genocide. The trial commenced [JURIST report] in September 2006 following numerous delays relating to court ordered amendments to the original indictment [trial minutes, PDF].

[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Monday affirmed [opinion, PDF] in part and vacated in part a ruling against Qualcomm [corporate website], finding its patents unenforceable. The appeals court affirmed the decision [opinion, PDF] of the US District Court of the Southern District of California [official website] in Qualcomm v. Broadcom that held Qualcomm's patents were unenforceable because it breached its duty to report video technology-related patents to the Joint Video Team [official website] standards-setting organization. The court found that by not disclosing the relevant intellectual property rights, Qualcomm was engaging in what is known as "patent hold-up" in an effort to prevent competitors from implementing the technology. The court also affirmed the ruling that Broadcom [corporate website] was entitled to the attorney fees associated with the trial. Judge Sharon Prost [official profile] wrote:

we agree with the district court that Qualcomm had a duty to disclose the asserted patents to the JVT, that it breached its disclosure duty, and that Broadcom was entitled to an award of attorney fees associated with the court’s exceptional case determination.

[JURIST] While general security conditions in Iraq have improved, human rights violations have continued, according to a report released [press release] Tuesday by the UN Assistance Mission for Iraq (UNAMI) [official website]. In its 13th report on the human rights situation in Iraq [text, PDF], UNAMI highlighted its concern for the treatment of detainees in the country. The report, which covered the first half of this year, described the situation of minority groups, the displacement of civilians in the country, and the aspects of detention by the various authorities in Iraq, among other things. In describing the issues of detainee treatment the report said:

The situation of detainees across the country, including in the Region of Kurdistan, remains of great concern to UNAMI, which continues to visit detention facilities and prisons under the authority of the Ministries of Interior, Justice, Defence, and Labour and Social Affairs. Many detainees have been deprived of their liberty for months or even years, often under precarious physical conditions, without access to defence counsel, or without being formally charged with a crime or produced before a judge. Continuing allegations of widespread torture and ill-treatment of inmates are of particular concern. Slow bureaucratic procedures, insufficient resources, degraded infrastructure and lack of effective accountability measures result in inordinate delays in processing detainees’ cases. UNAMI also continues to observe criminal proceedings before the Central Criminal Court of Iraq and criminal courts in the Kurdistan Region.

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] in a per curiam opinion Tuesday in Hedgpeth v. Pulido [Cornell LII backgrounder; JURIST report] that a harmless error standard should be applied when evaluating a conviction based on a general verdict where the jury was given alternate theories, including an invalid one. The US Court of Appeals for the Ninth Circuit [official website] had ruled [opinion, PDF] that it was a "structural error," and overturned the conviction. As the case progressed, both Pulido and the state of California came to agree that it should not have been labeled as "structural error," but Pulido argued that the Ninth Circuit had already engaged in the necessary harmless error analysis required by the 1993 Supreme Court decision in Brecht v. Abrahamson [opinion text]. The Court found that no such analysis had been conducted and remanded the case back to the Ninth Circuit, writing:

Pulido nonetheless maintains we should affirm because the Court of Appeals effectively engaged in the Brecht analysis, despite its clear description of the error as "structural." But despite full briefing on the applicability of Brecht, the Court of Appeals mentioned Brecht only briefly in a footnote and then went on to agree with Pulido's alternative assertion that "the instructional error was structural and therefore not subject to harmless error review." The court also stated that the conviction had to be overturned unless the court was "absolutely certain" that the jury relied on a valid ground. Such a determination would appear to be a finding that no violation had occurred at all, rather than that any error was harmless. [citations omitted]

The Court of Appeals misused the term "structural error" in its opinion affirming the District Court's order granting Pulido's application for a writ of habeas corpus. But the court's misnomer was inconsequential because its decision rested on substantially the same analysis as the District Court's, which correctly applied the standards set forth in Kotteakos v. United States, Brecht v. Abrahamson, and O'Neal v. McAninch. [citations omitted]

[JURIST] The head of Russia's Federal Financial Markets Service (FFMS) [official website], Vladimir Milovidov [official profile], said Monday that next year Russia will create new laws that regulate insider trading [FFMS backgrounder] and establish a compensation fund for victims of investment fraud. The compensation fund is to be modeled after a program of the Russian Deposit Insurance Agency (DIA) [official website], which insures individual bank deposits. Milovidov's comments came as an attempt to clarify statements made earlier by Prime Minister Vladimir Putin [official website, in Russian] to a meeting of the government presidium in which he condemned the effect [Moscow Times report] that foreign markets have on Russia's domestic share prices, but added that Russia did not want to restrict foreign investment. Also on Monday the government approved a set of draft laws that would punish the manipulation of stock prices. The laws must now go before Russia's State Duma [official website, in Russian] for approval.

The FFMS was originally created in 2004 as a successor to the Federal Commission for the Securities Market (FCSM) through a decree by then-president Putin. It was given the duty of controlling and supervising activity in the financial markets, including the activity of exchanges, and issuing relevant regulations. In 2006, the FFMS had proposed laws against insider trading, but the original draft was considered inadequate. Last year Russia created a new division [GAAP-IRFS report] within the FFMS in order to help combat insider trading, but it is unclear whether this has had any effect. Russia has two primary stock exchanges, the RTS and the MICEX [exchange websites].

[JURIST] The Constitutional Court of Thailand [official website, in Thai] on Tuesday ordered the dissolution [Bangkok Post report] of the ruling People's Power Party (PPP) [party website, in Thai], and banned prime minister Somchai Wongsawat [Nation profile] from politics for five years as the result of an election fraud investigation. Former PPP deputy leader Yongyuth Tiyapairat was convicted of organizing a vote-buying scheme [Bangkok Post report] by the court in July, and Thai law allows the court to disband all political parties and bar party officials associated with such fraud, even those not directly involved. The court also disbanded PPP coalition partners Chart Thai [party website, in Thai] and Matchimathipataya and banned more than 100 other officials from participating in politics for five years. Following the ruling, Somchai said that he and the coalition parties would obey [Straits Times report] the court's order. Thai deputy prime minister Chavarat Charnveerakul has been appointed [Bangkok Post report] as interim prime minister until the country's parliament [official website, in Thai] can appoint Somchai's sucessor. Also Tuesday, leaders of opposition People's Alliance for Democracy (PAD) [advocacy website] said it would end protests [Straits Times report] that had taken over [JURIST report] Bangkok's Suvarnabhumi and Don Muang airports in light of the ruling.

The case against the PPP and Somchai was brought before the court [JURIST report] by the country's Office of the Attorney General (OAG) in October following a September recommendation [Bangkok Post report] by the country's Election Commission [official website, in Thai] to break up the party because of the alleged fraud. Thailand's Election Commission had already said it would begin an investigation [JURIST report] into allegations that Somchai illegally holds stocks in companies which operate under government contracts. In September, then-prime minister and PPP founder Samak Sundaravej [BBC profile; JURIST news archive] instituted a controversial state of emergency [JURIST report] to quell demonstrations, but was later removed from office [JURIST report] after receiving illegal compensation for an appearance on a television cooking show. The PPP has also been closely associated with ousted Thai prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who has faced numerous charges of corruption.

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Monday held [opinion, PDF] in Associated Press v. United States Department of Justice that the petition for commuted sentence of charged Taliban supporter John Walker Lindh [CNN profile] falls under invasion-of-privacy exceptions to the Freedom of Information Act (FOIA) [text] and may properly be closed to the public. In January 2006, the Associated Press (AP) [advocacy website] submitted a FOIA request to the Department of Justice (DOJ) [official website] seeking access to Lindh's petition for commuted sentence. Lawyers for AP argued that the public interest in knowing the reasons behind his request for a shorter sentence outweighed any privacy interests he had in his records, but a judge for the US District Court for the Southern District of New York [official website] rejected the argument and granted summary judgment in favor of the DOJ. In affirming the lower court's ruling, the appeals court judges wrote:

AP has failed to demonstrate that disclosure of Lindh’s petition would serve a cognizable public purpose such that it may not be withheld under the privacy exemptions. The DOJ’s Supplemental Declaration states that none of the reasons Lindh poses to justify reduction of his twenty-year sentence "has anything to do with any alleged Government misconduct . . . and do not reveal what the 'government is up to.'" . . . AP has not asserted that the DOJ’s declarations were made in bad faith, and has further failed to show how Lindh’s petition, containing private, personal information, would in any way shed light on the DOJ’s conduct.

[JURIST] Canada took a step towards constitutional crisis Monday as the three federal opposition parties signed a landmark accord [text, PDF] to defeat the Conservative minority government and form a new coalition government without an intervening election. If the Conservative government is defeated in a no-confidence vote in the House of Commons that could come as early as next Monday, Michaëlle Jean [official profile], the country's Governor-General [official website] and the nominal representative of the Queen, could be faced with an awkward choice between granting a likely request by Conservative Party Prime Minister Stephen Harper [official website] to dissolve parliament and send Canadians back to the polls just weeks after the last federal election on October 14, and using her extraordinary reserve power to accept the opposition parties' offer to immediately form a new government under the leadership of Liberal Party leader Stephane Dion [campaign website]. Dion's Liberals were drubbed in the October 14 vote [results], going down from 95 to 77 seats in the House of Commons. In combination with the leftist New Democrats and the separatist Bloc Quebecois [party websites] they would, however, command a total of 163 seats, easily allowing them to outvote the 143 Conservative MPs. The crisis and the coalition deal were triggered by a Conservative economic policy statement [press release] delivered last week that offered no economic stimulus package and outlined plans to cut public funding for political parties and eliminate the right to strike for federal public servants. The Conservatives have since backed away from the latter measures and have pledged to move up the date of the next federal budget. Jean's office said Tuesday that "in light of the current political situation in Canada" she was cutting short a European state visit [press release] and returning to Ottawa to address the crisis. Harper and other Conservative spokesmen are challenging the coalition deal as fundamentally undemocratic and insist that the opposition parties have been given no mandate to govern [press release].

The last time a Canadian government was replaced without an election was in 1926. Now known as the King-Byng affair [backgrounder] the Governor-General of the time, Lord Byng, refused a request by Liberal Prime Minister William Lyon Mackenzie King to call an election after King was defeated in the House, and instead called on Conservative leader Arthur Meighen to form a new government. Meighen, however, was quickly defeated in the House in turn. King won the subsequent election and afterwards pressed for a redefinition of the office of Governor-General which ended its status as agent of the British government, as opposed to the monarch. The last coalition government in Canada was formed during World War I under the leadership of Conservative Party Prime Minister Robert Borden as it struggled to push through national conscription. The so-called Union Government [backgrounder] of Conservatives and some Liberals and independents ended in 1920.

[JURIST] The Supreme Iraqi Criminal Tribunal [governing statute, PDF] on Tuesday sentenced Ali Hassan al-Majid [BBC profile; JURIST news archive], better known in the Western media as "Chemical Ali," to death for his involvement in the repression of Shiites in southern Iraq during the regime of former Iraqi dictator Saddam Hussein. Al-Majid was charged [JURIST report] last year with crimes against humanity for his alleged role in violence against Shiite protesters following the 1991 Persian Gulf War. Al-Majid had denied the charges [JURIST report] and argued that Shiites killed by his troops were insurgents, not civilians. The tribunal sentenced Al-Majid to death by hanging. Abdelghani Abdul Ghafor al-Ani, the head of Saddam's Baath party in southern Iraq at the time of the killings, was also sentenced to death. Several other defendants were sentenced to 15 years in prison.

Last month, Al-Majid was one of 16 former Baath party officials to face trial [JURIST report] for the violent suppression of a riot following the alleged assassination of Shiite cleric Grand Ayatollah Mohammed Sadiq al-Sadr. Al-Majid has already been sentenced to death for the killing of Kurdish Iraqis using chemical weapons during the 1988 Anfal campaign [BBC backgrounder; JURIST news archive]. His death sentence in the Anfal case was upheld on appeal last September, but Iraq's Presidency Council did not approve the execution [JURIST reports] until late February. Iraqi Prime Minister Nouri al-Maliki's government said in early March that al-Majid would not be executed [JURIST report] until the Presidency Council approved the death sentences of al-Majid's two co-defendants in that case.