[JURIST] A Thai court on Tuesday ordered demonstrators to allow limited access to Thailand's seat of government in response to a complaint filed by the Office of Prime Minister Abhisit Vejjajiva [BBC profile]. The Bangkok Civil Court issued an injunction [Bangkok Post report] ordering protesters to remove road blocks which had been erected to block access to Government House. Red-shirted members of the United Front for Democracy against Dictatorship (UDD), a group linked to exiled former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], have been surrounding the compound since last week in a bid to oust Abhisit. A UDD spokesman urged supporters to ignore the order pending an appeal, while Deputy Prime Minister Suthep Thaugsuban warned [Reuters report] on Monday that "the injunction would grant a legal justification for us to enforce entry," suggesting that protesters could be arrested prior to completion of an appeal.

Abhisit took over as prime minister in December, after the Constitutional Court of Thailand [official website, in Thai] ordered the dissolution [JURIST report] of the ruling People's Power Party (PPP) [party website, in Thai], and banned then-prime minister Somchai Wongsawat [Nation profile] from politics for five years as the result of an election fraud investigation. Thaksin, ousted as prime minister [JURIST report] in a 2006 military coup, was convicted on corruption charges [JURIST reports] by the Supreme Court of Thailand in October.

[JURIST] The South African Supreme Court of Appeal (SCA) [official website] on Tuesday held [judgment, PDF; media summary, PDF] that the judges of the Constitutional Court [official website] acted lawfully in filing a grievance against Cape Judge President John Hlophe alleging that Hlophe had tried to influence their decision in a corruption case against African National Congress (ANC) leader Jacob Zuma [BBC profile; JURIST news archive]. The judges appealed a decision by the High Court at Johannesburg finding that Hlophe had a right to be heard before the court submitted its complaint to the country's judicial disciplinary body, the Judicial Service Commission (JSC) [backgrounder, DOC]. The SCA overruled the High Court decision, finding that since the judges were "not performing a judicial function" in filing the complaint, they were not obligated to provide Hlohpe an opportunity to be heard. The SCA further held that the publication of the allegations in the media was not improper in light of the judges' belief that another member of the judiciary was acting unlawfully, saying that:

It will always be distressing for a judge to learn in the media that he or she has been accused of misconduct but that seems to us to be an inevitable hazard of holding public office. ... [W]e do not think that his or her remedy lies in stifling the fact that a complaint has been made.

[JURIST] UN Deputy Secretary for Legal Affairs Pamela O'Brien [official profile] apparently signaled a shift in official UN position by expressing sympathy for Rwanda's desire to try any remaining genocide suspects in Rwanda after the International Criminal Tribunal For Rwanda (ICTR) [official website] is supposed to stop functioning in 2010, according to a Monday report [New Times report]. O'Brien, who was visiting the Rwandan capital Kigali, met last week [press release] with ICTR president Judge Dennis Byron, prosecutor Hassan Bubacar Jallow, as well as Rwandan prosecutor general Martin Ngoga and discussed setting up a "residual mechanism" to deal with future genocide suspects, such as the thirteen fugitives [New Times report] still at large, once the tribunal is expected to shut down [JURIST report] in 2010 as per a UN resolution [text, PDF]. O'Brien also added that the decision would have to be made by the UN Security Council and the ICTR judges.

The UN resolution had called for "all trial activities at first instance" to end by 2008, leaving the status of those suspects who had been arrested but not tried, such as Jean-Baptiste Gatete [TrialWatch profile], in limbo. The ICTR had earlier denied [decision; JURIST report] Rwanda's request to transfer Gatete into its custody because of fears that he would not get a fair trial in Rwanda. There was concern that he might not be able to call on witnesses residing outside Rwanda or that the these witnesses might be afraid to testify for the defense.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Monday in Gross v. FBL Financial Services [oral arguments transcript, PDF; JURIST report], in which the Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII [text] discrimination case. The case involves an executive, Jack Gross, who claims he was passed over for a promotion at FBL Financial Services [corporate website] in favor of a younger employee in violation of the Age Discrimination in Employment Act (ADEA) [text]. In 2003, the Court ruled in Desert Palace v. Costa [opinion text] that direct evidence - evidence linking an adverse employment action to a specific motive - is not required in a mixed-motive case under Title VII, but left open the issue of whether direct evidence would be required outside the Title VII context. The US Court of Appeals for the Eighth Circuit [official website] ruled [opinion, PDF] in May that direct evidence is required under the ADEA. Counsel for Gross argued: "The court of appeals erred in holding that the plaintiff had to have direct evidence in order to obtain the specific instruction at issue in this case. ... [T]his Court had at no time imposed a direct evidence requirement without an affirmative directive from Congress to do so." Counsel for FBL "urge[d] the Court not to evaluate this case strictly on the question of whether direct versus circumstantial evidence is the appropriate way to proceed," saying:

I would hope that the Court would seize upon this as an opportunity to provide some significant clarity in the law, rather than seize this as an opportunity to decide this case on the potentially most narrow ground, which, frankly, as far as I can tell, will not only not decide this case, ultimately, but certainly will not do anything to resolve the mass confusion that seems to exist among the lower courts.

[JURIST] Afghan President Hamid Karzai [BBC profile; JURIST news archive] has signed into law a bill which significantly reduces women's rights, including legalizing rape within a marriage, the Guardian reported [text] Tuesday. Critics allege that Karzai signed this bill, which has not yet been made public, to increase support among Afghan Shia and Hazara [BBC backgrounders] who support the law, ultimately to improve his re-election chances. This very scenario is one Karzai's political opponents feared when the the Afghanistan Supreme Court extended the presidential term [JURIST report] until August amid safety concerns regarding the upcoming election. The Afghan presidential election will take place on August 20th, 2009, with likely challengers including former interior minister Ali Ahmad Jalali, ex-finance ministers Ashraf Ghani Ahmadzai and Anwarul Haq Ahadi, and former foreign minister Abdullah Abdullah.

Karzai has experienced a tumultuous career since his appointment as interim President in 2002. In early March, the UN reported that the human rights situation in Afghanistan is worsening [JURIST report], one week after a similar US report rebuked Afghanistan for, among other problems, continued use of child labor [JURIST report]. In November, the UN urged Afghanistan to discontinue use of the death penalty [JURIST report], which Karzai had reinstated following a four-year moratorium [JURIST report]. In April 2008, the Taliban attempted to assassinate Karzai [Guardian report] during a military parade, the third attempt on his life since 2001.

[JURIST] A judge in the US District for the Middle District of Pennsylvania [official website] issued a temporary restraining order [text, PDF] Monday blocking child pornography charges against three teenage girls who appeared in photographs distributed by cell phone throughout their high school. Wyoming County District Attorney George Skumanick Jr. had told the girls and their parents that unless the girls completed an after-school re-education program, they would be charged [AP report] with distributing child pornography. In Pennsylvania, it is a felony to have or distribute pictures of minors engaged in lewd activity or provocatively exposed. None of the pictures of the girls revealed anything below the waist, and all were taken over a year ago. None of the students responsible for disseminating the photos [Scranton Times report] has been charged. Judge James Munley found that all factors for issuing a temporary restraining order had been met and scheduled a hearing on the merits for June.

The plaintiffs are represented by the American Civil Liberties Union of Pennsylvania (ACLUPA) [advocacy website] and filed suit [complaint, PDF; case materials] against Skumanick last week. ACLUPA lawyer Witold Walczak contends [press release] that the photos are protected by the First Amendment and that requiring the girls to attend a re-education program interferes wit the parents' rights to raise their daughters as they wish. According to the complaint, 20 percent of teens nationwide [survey results; PDF] have participated in the distribution of similar pictures, a phenomenon known as 'sexting.'

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday dismissed as improvidently granted the writ of certiorari in Philip Morris USA v. Williams [Cornell LII backgrounder; JURIST report]. The Court had originally granted certiorari to consider for a third time a $79.5 million punitive damages verdict against tobacco company Philip Morris USA [corporate website]. The Court previously ruled [JURIST report] that the punitive damages award based "in part on [a jury's] desire to punish the defendant for harming persons who are not before the court" amounts to an unconstitutional taking of property without due process. On remand, the Supreme Court of Oregon [official website] again upheld [opinion text] the verdict, finding that it did not need to reach the federal constitutional issue if there was "an independent and adequate" basis in state law for upholding the verdict.

The Court released two other opinions Tuesday. In Hawaii v. Office of Hawaiian Affairs [Cornell LII backgrounder; JURIST report], the Court ruled [opinion, PDF] unanimously that the state of Hawaii is not precluded from transferring 1.2 million acres of land ceded by the former Hawaiian monarchy, pending a political settlement with Native Hawaiians [advocacy website]. The Office of Hawaiian Affairs (OHA) [official website] had won an injunction [opinion, PDF] from the Hawaii Supreme Court barring the state from selling any ceded lands until claims to the land are settled. The state of Hawaii argued that the 1993 Apology Resolution [text] passed by Congress was not intended to limit the state's ability to manage its land. Reversing the lower court ruling, Justice Samuel Alito wrote:

Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and "broader moral and political claims for compensation for the wrongs of the past." But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. [citations omitted]

Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal's composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court's mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law.

In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense.

[JURIST] Former Khmer Rogue [BBC backgrounder] leader Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," on Tuesday formally accepted responsibility and apologized for the torture and murder of an estimated 12,000 Cambodians at the prison he ran for the regime. Kaing made the admission [Phnom Penh Post report] during his trial before the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] where he faces charges [ECCC press release, PDF] of crimes against humanity, torture, and murder for his actions as the overseer of the Tuol Sleng interrogation facility known as S21. Pretrial hearings against Kaing began last month, but the substantive case [JURIST reports] against him began Monday. The trial will continue [court document, PDF] with additional statements on Wednesday of this week, and additional proceedings every Monday through Thursday until early July.

Kaing's trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during their nearly four year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. Earlier this month, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.

[JURIST] A judge for the US District Court for the District of Columbia [official website] granted a joint motion [text, PDF] Monday for a stay of proceedings against Yemeni Guantanamo Bay [JURIST news archive] detainee Ayman Saeed Batarfi, allowing for his eventual transfer. Batarfi, one of the longest held terror suspects at the military prison, had been detained without charges as an enemy combatant [JURIST news archive] since his 2001 capture at the Battle of Tora Bora [BBC report] in Afghanistan. He had been detained for alleged association with al Qaeda forces during the battle, but his lawyers argued that he had been forced to administer medical treatment to al Qaeda forces. After a review of his case, the Department of Justice (DOJ) [official website] agreed that it did not have grounds to hold Batarfi, and joined in the motion to end proceedings against him. The US is currently searching for an appropriate destination country for Batarfi, and his release date has not been set.

The announcement follows a call by Human Rights Watch (HRW) [advocacy website] on Sunday for the US and Yemen [JURIST news archive] to agree on a repatriation plan that provides "meaningful legal process" for the nearly 100 Yemeni detainees still at Guantanamo Bay. The repartiation plan dates back to July 2008, when Yemeni officials met with a visiting US delegation [JURIST report] to discuss the possible transfer of Yemeni detainees held at Guantanamo Bay, with the US voicing concerns that they would be freed upon their return. The stay of proceedings against Batarfi follows a January executive order [text; JURIST report] from US President Barack Obama [official profile] directing the closure of the Guantanamo Bay detention facility within one year and a review and disposition of all individuals held at the facility.

[JURIST] North Korean state media outlet Korean Central News Agency (KCNA) [media website] reported Tuesday that indictments are being prepared against two American journalists detained earlier this month [JURIST report] while allegedly attempting to enter the country illegally from China. Laura Ling [professional website] and Euna Lee were reporting on North Korean refugees in China for Current TV [media website] when they allegedly crossed the border [Yonhap report] two weeks ago. An investigation by North Korean officials allegedly concluded that the journalists had entered the country illegally [AFP report] and that there was enough evidence to charge them. US Secretary of State Hillary Clinton [official profile; JURIST news archive] has reportedly been involved in talks [Chosun Ilbo report] regarding the reporters.

The incident comes at a sensitive time for international relations with North Korea, as the nation prepares for an imminent test missile launch [NYT report] which has heightened an already-tense relationship with the international community. North Korea has been accused of using the captured journalists as pawns [JURIST op-ed] in policy disputes with the US. The North Korean regime has been the subject of considerable international pressure over its refusal to fully disclose [AP report] its past nuclear activity. The US removed North Korea [WP report] from the State Department's list of terror sponsors [text] in October after former president George W. Bush agreed [JURIST report] to the step following the communist state's handover of a report on its nuclear program to China, one of the countries participating in the so-called Six Party Talks [CFR backgrounder] on the North Korean program. In February 2007, North Korea agreed [JURIST report] to end its nuclear weapons program, shut down and seal any reactors, and completely declare the extent of its nuclear activities in exchange for 50,000 tons of heavy fuel. North Korea has ranked [JURIST report] among the countries with the least protection for press freedoms.

[JURIST] Israeli military officials closed an internal investigation Monday into allegations of war crimes committed by Israel Defense Forces (IDF) [official website] personnel against Palestinian civilians, concluding that there was no wrongdoing [press release]. The investigation was launched last week [JURIST report] by the IDF in response to comments made by soldiers concerning reports of civilian killings and vandalism under liberal rules of engagement during a recent operation in the Gaza Strip. Dismissing the soldiers' reports as "hearsay," the IDF investigation concluded that the soldiers' comments were exaggerated, and repetition of rumors that circulated among forces operating in Gaza and not based on the actual observations of the soldiers who made the allegations. Military Advocate General Brigadier Avichai Mendelbilt said:

It is unfortunate that none of the speakers at the conference was careful to be accurate in the depiction of his claims, and even more so that they chose to present various incidents of a severe nature, despite not personally witnessing and knowing much about them. It seems that it will be difficult to evaluate the damage done to the image and morals of the IDF and its soldiers, who had participated in Operation Cast Lead, in Israel and the world.