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Legal news from Friday, October 1, 2010




Ukraine constitutional court expands presidential powers
Zach Zagger on October 1, 2010 2:20 PM ET

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[JURIST] The Constitutional Court of Ukraine [official website] ruled Friday that a 2004 law that transferred powers from the presidency to parliament was unconstitutional, ordering the powers be restored to the president. The ruling invalidates the reforms [AP report] passed at the height of the Orange revolution [BBC timeline] and strengthens the presidency now held by pro-Moscow leader Viktor Yanukovych [official website, in Ukrainian; BBC profile], elected in February. The court ordered the country to revert immediately back to the 1996 constitution. The 2004 reforms had placed more a parliamentary republic. The president now will have the right to choose his own government [Reuters report], including having sole power to appoint cabinet members and the prime minister. On his official website, Yanukovych said [statement, in Ukrainian] the court's decision was not surprising and vowed to enforce it:
Ukraine and society tired of living in those conditions that are dictated to us the changes to the Constitution of 2004. Because these changes were made hastily, in general the political moment, the reasons were clear conflicts in authority. ... As guarantor of the constitution, I will take this decision, as would execute any other.
Opposition leader Yulia Tymoshenko criticized the court's decision, calling it a move away from democracy and urging new presidential and parliamentary elections.

In February, Tymoshenko withdrew a lawsuit [JURIST reports] filed in the Supreme Administrative Court of Ukraine claiming that the country's presidential election was corrupt. Tymoshenko dropped the suit claiming she would not receive a fair hearing in the court. The constitutional reforms were originally passed during the protests of 2004, known as the Orange Revolution in which Yanukovych lost to Viktor Yushchenko [BBC profile] in the controversial 2004 presidential election [JURIST report], the results of which were invalidated by the country's Supreme Court [JURIST report] following fraud allegations. Yushchenko was sworn in as president [JURIST report] in January 2005 after winning a re-vote. Yushchenko reluctantly accepted Yanukovych as prime minister last June and the two have since clashed over parliamentary attempts to expand the cabinet's power [JURIST reports] at the expense of the presidency.




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UN releases long-awaited report on human rights violations in DRC
Brian Jackson on October 1, 2010 1:55 PM ET

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[JURIST] The UN on Friday released a report on war crimes [text, PDF] and human rights abuses in the Democratic Republic of Congo (DRC). The report, originally expected to be released in September [JURIST report], lists 617 of the most serious violations of human rights, including violence against children, genocide and mass rape, committed between 1993 and 2003. The report examined the crimes in the context of a number of conflicts within the country, including the two Congo wars that occurred in the late 1990s. The report also devotes a chapter to the link between the crimes committed in the country and the exploitation of natural resources, particularly diamonds and copper. In discussing the report [press release], the UN High Commissioner for Human Rights (OHCHR) [official website] stressed the need for a joint effort by other nations in securing a future for the DRC, and indicated that a report is merely the first step, saying:
The report is intended as a first step towards the sometimes painful but nonetheless essential process of truth-telling after violent conflict. ... [I]t looks to the future by identifying a number of paths that could be pursued by Congolese society to come to terms with its past, to fight impunity, and to face its contemporary challenges in a manner that prevents the re-occurrence of such atrocities.
The report concludes with an assessment of the justice system in the DRC and proposed reforms to strengthen justice in that country, including the foundational suggestion that the DRC pass a bill currently in Parliament which would implement the Rome Statute [text, PDF] in that country.

The release of the long-anticipated report has elicited strong responses [NYT report] from nations and rights organizations. In particular, Rwanda released its own report [text,PDF], calling the UN report, "[a]dangerous and irresponsible attempt . . . to undermine the peace and stability attained in the Great Lakes region." The report alleges that tens of thousands of Hutus were killed by Rwandan troops [JURIST report] during the Congo civil war [GlobalSecurity backgrounder]. Kenneth Roth, director of Human Rights Watch (HRW), said [press release] that the report exposes grave crimes and, "is a powerful reminder of the scale of the crimes committed in Congo and of the shocking absence of justice."




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Senators introduce immigration reform bill
Matt Glenn on October 1, 2010 12:42 PM ET

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[JURIST] US Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) [official profiles] introduced the Comprehensive Immigration Reform Act of 2010 [legislative materials] Wednesday, which, if passed would greatly change US immigration [JURIST news archive] law. The bill incorporates previously proposed legislation [Terra report], including the AgJOBS Act [legislative materials; text], which would allow some undocumented workers to work on US farms, the Uniting American Families Act [legislative materials; text], which would allow same-sex partners of US citizens to reside in the US and the DREAM Act [legislative materials; text], which would provide a path to permanent resident status for some high school graduates who enter the military or enroll in a college degree program. Leahy praised the legislation [press release], claiming the bill "protects the rights and opportunities of American workers, while ensuring that American farmers and employers have the help they need. It promotes jobs to help spur our economy, it supports families, it helps to bring undocumented workers out of the shadows, and it enhances our border security. These are goals we can all share." President Barack Obama said he looked forward to reading the bill [press release], adding he is "pleased that the bill includes important building blocks laid out in the bipartisan framework presented earlier this year addressing the urgent need for reform." Also on Wednesday, Senator Orrin Hatch (R-UT) [official profile] proposed an immigration bill [legislative materials; press release] that would increase cooperation between federal and local enforcement officials, strengthen enforcement of current immigration laws and limit federal benefits to illegal immigrants [JURIST news archive].

Illegal immigration continues to be a concern for local governments, as the federal government has failed to pass comprehensive immigration reform legislation. In September, the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF; JURIST report] that two ordinances passed by the city of Hazleton, Pennsylvania making it more difficult for illegal immigrants to live or work in the town are unconstitutional. Earlier that month, a judge for the US District Court for the District of Arizona granted a motion to dismiss [order, PDF; JURIST report] a police officer's suit [JURIST report] challenging Arizona's controversial immigration law [SB 1070 materials, JURIST news archive]. In August Arizona Governor Jan Brewer (R) [official website] filed the state's opening brief [text, PDF; JURIST report] in the US Court of Appeals for the Ninth Circuit [official website], asking the court to lift the preliminary injunction preventing the law from taking full effect. Also in August, a federal judge ruled [JURIST report] that the Nebraska Supreme Court should be the first forum to address Fremont, Nebraska ordinance [No 5165 text] banning hiring, harboring or renting property to illegal immigrants.




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UN rights panel to appoint expert on freedom of expression, assembly
Megan McKee on October 1, 2010 10:18 AM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] adopted resolutions [press release] Thursday establishing the mandate of a Special Rapporteur for freedom of association and assembly. The Special Rapporteur will be responsible for reporting on how nations promote freedom of association and peaceful assembly during a three-year period. In adopting the resolution, the UNHRC urged all nations to respect the right to assemble, engage in peaceful protest and freely associate. Each year, the Special Rapporteur will submit a report to the UNHRC and the UN General assembly regarding the areas relating to the mandate. US Representative to the UNHRC Eileen Chamberlain Donahoe [profile] underlined the US' strong support for the measure and noted that "peaceful assembly was a basic pillar of functional democracy."

Several countries have recently faced criticism for limiting the rights of expression and assembly. Last week, Amnesty International (AI) [advocacy website] urged [press release] the government of Myanmar to release all political prisoners [JURIST report] ahead of the nation's November elections—the first to be held in 20 years. Detained opposition leader Aung San Suu Kyi [BBC profile; JURIST news archive], whose detention has drawn strong criticism from the UN and other rights groups, is among the most well-known of Myanmar's political prisoners. In April, UN High Commissioner for Human Rights Navi Pillay [official profile] encouraged [JURIST report] the six Gulf Cooperation Council (GCC) [official website, in Arabic; GlobalSecurity backgrounder] states to address continuing rights issues[press release], including women's rights, treatment of migrant workers, statelessness, and freedoms of expression, association, and assembly.




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Dutch lawmaker announces plans to ban burqa
Megan McKee on October 1, 2010 9:09 AM ET

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[JURIST] Dutch politician Geert Wilders [personal website, in Dutch] said Thursday that the Netherlands will ban the burqa [JURIST news archive] and other full Islamic veils as part of the government's plan to form a minority coalition. The Liberals and Christian Democrats (CDA) must make concessions [BBC report] to Wilders' anti-Islamic Freedom Party [party website, in Dutch] in order to gain its backing to form a minority coalition government. The pact was reached after 113 days of deadlock and negotiations between the three parties. However, the deal has angered some members of the CDA who do not wish to be associated with Wilders' anti-Islamic positions, and they will take a final vote [RNW report] on Saturday to determine if they will ratify the pact. The agreement also includes large budget cuts, stricter rules on immigration, tougher measures on the sale of soft drugs and an increase in the number of police officers.

An Amsterdam trial court ruled in February held that it has jurisdiction to try Wilders for anti-Islamic statements. The court rejected [JURIST report] Wilders' claim that he should be tried by the Supreme Court as a member of parliament, finding that his alleged crime was committed outside his capacity as an MP. Wilders had hoped to defend his criticisms of Islam and show its dangers by calling to the stand Islamic extremists including Muhammed Bouyeri [JURIST news archive], who is currently serving a sentence of life imprisonment for murdering Dutch filmmaker Theo Van Gogh. Other countries have also recently taken steps to ban the burqa. Last month, the French Senate [official website, in French] voted 246 to 1 [press release, in French] to approve a bill [materials, in French] that will make it illegal [JURIST report] to wear the burqa or other full face veils in public. The legislation is now pending with the Constitutional Council [official website], which will have one month to confirm the law's legality.




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US government introduces new offshore drilling regulations
Daniel Makosky on October 1, 2010 8:20 AM ET

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[JURIST] US Interior Secretary Ken Salazar [official profile] on Thursday announced new guidelines [press release] intended to increase the safety of offshore drilling. The Drilling Safety Rule addresses specifications for and oversight of flow control mechanisms and well bore integrity, while the Workplace Safety Rule [fact sheets, PDF] mandates the implementation of a Safety and Environmental Management System (SEMS) designed to identify and compensate for potential hazards. The former will become effective upon publication, after which a public comment period of 60 days will follow. The rule will then be either confirmed as final or republished in a revised form. Defenders of Wildlife [advocacy website] described [press release] the measures as a "positive step" toward more comprehensive reform. In his speech introducing the regulations, Salazar also indicated [Reuters report] that he is not yet prepared to rescind the previously issued six-month moratorium [JURIST report] on specific drilling techniques. The American Petroleum Institute [advocacy website] reserved its response to the new rules for the impending comment period, though reiterated its request [press release] that the government lift its ban, which primarily affects technologies used for deepshore drilling.

Last month, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the latest offshore drilling moratorium. The ruling held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana [official website] rejected a request to reinstate [JURIST report] the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit [official website] similarly declined [JURIST report]. The US Department of Justice (DOJ) [official website] originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil leaked from the rig's broken pipe, causing the spill to surpass the Exxon Valdez [JURIST news archive] as the worst oil spill in US history.




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