[JURIST] The UN on Monday expressed concern [press release] over violence in Syria and urged the Syrian government to stop using force against protesters. Nearly 1,200 people have been killed and 10,000 displaced since protests erupted in February. UN Under-Secretary-General and Emergency Relief Coordinator Valerie Amos [official profile] urged [statement] the Syrian government to investigate the killings and praised border nations for their assistance:
I call on the Government to respect and protect civilians, and to refrain from the use of force against peaceful demonstrators. It is important that we find out exactly what is happening in Syria so that we can provide help if required. I hope that the Government of Syria will allow an independent assessment to be conducted. I commend the neighbouring states for keeping their borders open and appreciate the assistance they have given. I underscore the readiness of the United Nations to help with this in any way necessary, particularly in light of the recent increase in the numbers of new arrivals.
Thousands of Syrians gathered at the Turkish border [NPR report] on Monday seeking refuge from Syrian military forces that continue to use violence against peaceful protestors.
There has been a major struggle to put an end to Syrian violence since the protests began earlier this year. In June, Syrian and international human rights groups urged the International Criminal Court (ICC) [official website] to investigate the hundreds of civilian deaths during protests against Syrian President Bashar al-Assad [Al Jazeera profile]. The UN Human Rights Council (UNHRC) [official website], in an emergency special session in April, publicly condemned [text, PDF; JURIST report] the violence used by Syrian authorities against peaceful protesters. UN High Commissioner for Human Rights Navi Pillay [official profile] called for Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters. Also in April, al-Assad ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued. Earlier in the same month, Human Rights Watch (HRW) [advocacy website] reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." Pillay urged the Syrian government [JURIST report] in March to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.
[JURIST] The US Supreme Court [official website, JURIST news archive] Monday ruled [opinion, PDF] in Nevada Commission on Ethics v. Carrigan [Cornell LII backgrounder] that a Nevada ethics law that requiring government officials to recuse themselves from votes where they have a conflict of interest is constitutional. The Nevada Ethics in Government Law [text] requires government officials to recuse themselves from a vote where the person in the situation would be "materially affected" by "[t]he public officer's commitment in a private capacity to the interests of others." The opinion of the court by Justice Antonin Scalia said public officials' votes are not protected by the First Amendment protection of freedom of speech:
The answer is that a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. ... the legislator casts his vote as trustee for his constituents, not as a prerogative of personal power. In this respect, voting by a legislator is different from voting by a citizen. While a voter's franchise is a personal right, the procedures for voting in legislative assemblies ... pertain to legislators not as individuals but as political representatives executing the legislative process.
The court also reasoned that since there were similar recusal rules at the time the Constitution was written that it was never intended to be a protected form of speech. The court rejected the argument that the Nevada law was overbroad because it also prevented the official from advocating for other officials to vote a certain way where that official had a conflict of interest reasoning that if the voting is not constitutionally protected speech, then preventing advocating was a reasonable time, place, and manner restriction. Justice Samuel Alito concurred in part and in the judgment arguing that a public official's vote was a form of speech but agreed it was not meant to be protected because such rules were accepted at the Constitution's inception.
The Supreme Court ruling overturns the decision of the Nevada Supreme Court which, citing Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], held [opinion, PDF] that preventing an official from casting such a vote violates the First Amendment because voting by an elected public officer on public issues is protected speech. City Councilman Michael Carrigan, an elected local official in Nevada, voted to approve a hotel and casino project that had used his campaign manager and friend as a paid consultant.
[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Janus Capital Group v. First Derivative Traders [Cornell LII backgrounder; JURIST report] that a service provider cannot be held primarily liable in a private securities fraud suit for aiding and participating in another company's misstatements. Section 10(b) of the Securities and Exchange Act [materials] prohibits any manipulation or deception in connection with the purchase or sale of securities. The liability associated with the act, according to the court, does not extend to service providers that aided in the selling of securities where misinformation was involved. Janus Investment Fund, a separate legal entity from Janus Capital Group (JCG), issued prospectuses containing misleading statements about measures to curb market timing. First Derivative Traders investors owning JCG stocks sued JCG for reliance damages. The district court dismissed the complaint for failure to state a claim, pointing out that JCG had not "made" any misleading statements. Justice Clarence Thomas, writing for the majority, agreed with the district court:
For purposes of Rule 10b-5, the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it. Without control, a person or entity can merely suggest what to say, not "make" a statement in its own right. One who prepares or publishes a statement on behalf of another is not its maker.
Justice Stephen Breyer filed a dissent expressing his disagreement with the majority's interpretation of the word "make." Breyer argued that the majority restricted liability for "making" misrepresentations to those individuals with "ultimate authority" over the statement, or in this case, the board members. He indicated that "[n]othing in the English language prevents one from saying that several different individuals, separately or together, 'make' a statement that each has a hand in producing." Furthermore, Breyer argues, the relationship between JCG and Janus Investment Fund is so close that Janus Investment Fund's involvement in making the statements "could hardly have been greater."
[JURIST] The US Supreme Court [official website, JURIST news archive] Monday ruled [opinion, PDF] in United States v. Jicarilla Apache Nation [Cornell LII backgrounder] that in a trust relationship between the government and a Native American tribe the government does not have to release confidential communications with its attorney under the "fiduciary exception" to attorney-client privilege. The Jicarilla Apache Nation [official website] attempted to compel through discovery certain documents to prove its breach of trust action against the government, but the government argued that some of the documents were protected by attorney-client privilege. The Supreme Court ruled 7-1, overturning the lower
appeals court, that the government was entitled to protection under attorney-client privilege despite is position as trustee for the benefit of the tribe. The tribe argued that the common-law "fiduciary exception" should apply, which makes communications between the trustee and the attorney over management of the trust corpus discoverable by the beneficiaries. The opinion of the court by Justice Samuel Alito reasoned that the government acting as a trustee is unlike a trustee in a private trust created at common law because the government is acting within statutory authority granted to it by Congress. The fiduciary exception is based on the idea that the trustee is acting on behalf of the "real client" the beneficiaries. The communication between the government and its attorneys over management of this trust however, is based on the government's sovereign interest to carry out federal law, and not solely for the benefit of the tribe. Justice Sonia Sotomayor was the lone dissent arguing that the government is fulfilling the traditional fiduciary role as a trustee for the benefit of the tribe. Further she argued that the exception should exist since Rule 501 of the Federal Rules of Evidence [text] says that the government's privilege is to be informed by the common law. Justice Elena Kagan did not take part in the decision.
The Jicarilla Apache Nation reservation contains natural resources that are developed by the Department of the Interior [official website] with the proceeds held by the US in trust for the tribe. The tribe brought a claim against the government for breach of trust seeking monetary damages for mismanagement of trust funds. The tribe had argued [JURIST report] that no trustee in such a situation should be entitled to hide behind the privilege, that the beneficiary of a trustee should be entitled to see the communications of the trustee with an attorney over the management of the trust to see if the trustee actually followed that advice. The Supreme Court overturned the US Court of Appeals for the Federal Circuit, which held [opinion, PDF] that the government cannot deny the tribe's request to discover such communications, adopting a fiduciary exception in tribal trust cases.
[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday affirmed [opinion, PDF] a lower court decision in Flores-Villar v. United States [Cornell LII backgrounder; JURIST report] upholding a gender-based distinction in two former sections of the Immigration and Nationality Act (INA). Justice Elena Kagan took no part in the decision, and the court split 4-4, resulting in the decision [opinion, PDF] by the US Court of Appeals for the Ninth Circuit [official website] being upheld. Petitioner Ruben Flores-Villar had raised a Fifth Amendment equal protection challenge of the two INA provisions, 8 USC § 1401(a)(7) and 8 USC § 1409 [texts], which impose a five-year residence requirement, after the age of 14, on US citizen fathers, but not on US citizen mothers, before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen. The court affirmed Flores-Villar's conviction for being a deported alien found in the US.
The Supreme Court also granted certiorari [order list, PDF] Monday in four cases. In Hall v. United States [docket], the petitioners filed for bankruptcy under Chapter 12 of the Bankruptcy Code [11 USC §§ 1201-1231] and subsequently sold their farm for $960,000, incurring a $29,000 capital gains federal income tax. The Ninth Circuit held [opinion, PDF] that petitioners had to pay federal income tax on the gain from the sale of their farm during bankruptcy proceedings. Petitioners argue that the tax should be discharged pursuant to § 1222 of the Bankruptcy Code as a post-petition expense of the bankruptcy estate.
The court granted a limited petition in Gonzalez v. Thaler [docket; cert. petition, PDF] to determine whether there was jurisdiction to issue a certificate of appealability under 28 USC § 2253(c) [text] and adjudicate the petitioner's appeal, and whether the application for a writ of habeas corpus was out of time under 28 USC § 2244(d)(1) [text] due to "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] that Gonzalez's petition was time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) [materials], which establishes a one-year statute of limitations for a state prisoner to file a federal habeas corpus petition. The court will determine whether state or federal definitions apply to Gonzalez's appeal.
The court will also determine whether an appeals court properly upheld [opinion, PDF] a prison sentence imposed by a district court in Setser v. United States [docket; cert. petition, PDF]. The US Court of Appeals for the Fifth Circuit held that the district court did not err in imposing a consecutive sentence to be added to the sentence the appellant was already serving for a state drug possession conviction. Setser argues that the district court's sentence was illegal since 18 USC § 3584 [text] does not grant the district court the authority to impose a federal sentence consecutively to an undischarged state sentence.
[JURIST] Myanmar pro-democracy leader Aung San Suu Kyi [JURIST news archive] called Monday on the international community to help improve workers' rights [transcript], during an address to the International Labor Organization (ILO) [official website] at its annual conference. She said that the creation of the people's network [AP report] in Myanmar to address social justice and humanitarian rights shows that the desire of the people of Myanmar to live in a society where these rights are secured. She spoke via video conference as she refuses to leave the country for fear she will not be able to return.
Myanmar underwent a transfer of power [BBC report] from a military regime to a civil system after holding its first elections in 20 years. But many critics argue the new regime is a sham since a party close to the military regime won with 80 percent of the vote.
Last month, Myanmar began releasing as many as 15,000 prisoners as part of an amnesty program after a visit by the UN secretary-general's envoy to Myanmar, Vijay Nambiar [official profile], who called on the country to release its political prisoners. But few of the prisoners being released by the government are political prisoners. Human Rights Watch [advocacy website] called the move a "pathetic response" to calls from the international community. Last December, a UN Human Rights Council (UNHRC) [official website] expert Tomas Ojea Quintana [official profile; JURIST news archive], a UN Special Rapporteur, urged Myanmar's military government [JURIST report] to release 2,202 political prisoners. Quintana called for the release of the "prisoners of conscience," many of whom, he says, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy. Last November, Myanmar's government released Suu Kyi, ending her almost eight years under house arrest. UN Secretary-General Ban Ki-moon [official website] hailed her release and encouraged the country to release all political prisoners [press release]. Suu Kyi's release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest.
[JURIST] The Pakistan Supreme Court [official website] on Monday ordered the Anti-Terrorism Court of Pakistan to try six paramilitary forces in the shooting death of an unarmed man under the Pakistan Anti-Terrorism Ordinance of 1999 [text]. On Friday, several paramilitary soldiers opened fire [JURIST report] on an unarmed, 17-year-old man in Benazir Park, then stood by as he died. The incident was caught on tape and disseminated by television and Internet media sources. Chairwoman of the Pakistan Human Rights Commission (PHRC) [advocacy website] Zohra Yusuf said the video footage clearly shows that Sarfraz Shah was unarmed [CNN report]. Pakistani Interior Minister Rehman Malik [official website] acknowledged that the killing was unjust, but pointed out that Shah had been trying to rob two women in the park. Malik further noted that the proceedings would be transparent and neutral. Anti-Terrorist Courts in Pakistan facilitate expedited hearings and decisions.
Human rights groups have expressed concern over Pakistan's human rights record. In April, the PHRC harshly criticized [JURIST report] the Pakistani government for its poor human rights record and called on government officials to fix the human rights abuses occurring in the country. In its 2010 Annual Report [text, PDF], the group chronicled the repeated human rights violations that have taken place in the country over the past year, citing growing intolerance and extremism in the country. The government was also blamed for its inability to reform blasphemy laws and abolish the death penalty [JURIST news archives]. Also in April, the US Department of State (DOS) [official website] released [JURIST report] the 2010 Country Reports on Human Rights Practices [materials], criticizing the governments of Afghanistan and Pakistan [materials] for their conduct in the war against the Taliban and al Qaeda. However, the 2008 Pakistani elections [JURIST report] were deemed "competitive and reflective of the people's will," restoring democratic rule and leading to some human rights progress. UN High Commissioner for Human Rights Navi Pillay [official profile] in March condemned [JURIST report] the assassination of Pakistani Minister for Minority Affairs Shahbaz Bhatti and expressed her opposition to Pakistan's controversial blasphemy law. Controversy surrounding Pakistan's blasphemy law has recently been reignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. Bhatti had spoken out in favor of reforming the law.
[JURIST] The World Justice Project [official website] on Monday released its second annual report [text, PDF] ranking countries by their adherence to the rule of law. The Rule of Law Index (RLI) [report backgrounder] is a tool by which the international legal community evaluates whether government officials are held accountable under the law, whether the laws are clear and protect fundamental rights, whether the laws afford due process to citizens, and whether adjudicators and representatives have the resources to adequately administer justice. Countries in Western Europe and North America received the highest ranks in most categories, but showed weakness with respect to discrimination and accessibility of the civil justice system, especially for marginalized groups. Several Latin American and Caribbean nations displayed strength in government accountability and openness, but crime remains rampant and governments inefficient. Similarly, Eastern European countries are dichotomized, with some countries leading in accountability and transparency and others trailing with respect to treatment of prisoners and enforcement of the rule of law. New Zealand ranked highest out of the East Asian and Pacific nations category; Cambodia ranked lowest. African nations generally had the lowest rankings in most categories.
A survey released by the Mo Ibrahim Foundation [advocacy website] in October 2010 detailed a decline in the rule of law [JURIST report] and democratic rights amongst African nations. In November 2010, Mexican President Felipe Calderon [official website, in Spanish] called for greater adherence to the rule of law, stressing [JURIST report] its importance for a flourishing economy and orderly social life. US Attorney General Eric Holder [official profile; JURIST news archive], in an October 2009 speech, reiterated [JURIST report] the need for authorities to abide by the rule of law when conducting investigations into potential terrorist activities as a means of "leading by example." The RLI was initially presented [JURIST report] at the World Justice Forum [official website] in Vienna in 2008.
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