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Legal news from Monday, August 6, 2012




UK court rejects claims that two work programs amount to slave labor
Dan Taglioli on August 6, 2012 3:44 PM ET

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[JURIST] The UK High Court ruled [judgment] Monday that two government back-to-work schemes do not constitute slave labor, rejecting plaintiffs' arguments that the programs breach human rights laws on slavery. The court's ruling upholds [Guardian report] the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 underlying the Work Academy Scheme and the Community Action Programme, both established by the UK Department for Work and Pensions (DWP) [official website; press release] to provide job seekers with skills and experience to aid their job search through unpaid work experience at participating employers. The court did rule that Cait Reilly, 23, and Jamieson Wilson, 40, were each entitled to a declaration that there had been breaches of the jobseeker's allowance regulations, criticizing the DWP for its lack of clarity over the potential loss of unemployment benefits for those who enroll and then fail to take part in the programs without good reason. Reilly, for example, when she signed up for the Work Academy Scheme on its opening day, did not know that she would have to put in an unpaid two weeks at her local Poundland [corporate website], or risk losing the jobless benefits she had been receiving since graduating from school a year earlier. However, the court ruled that article four [text] of the European Convention on Human Rights [official website], which bans forced labor and slavery, is a long way removed from the present case and is completely inapplicable to the circumstances surrounding the work programs. DWP has revised its literature and forms for the programs for the time being but plans to appeal the court's declarations that there were breaches of the regulations.

Forced labor and slavery are serious issues that seriously affect many people around the world. This week the International Labor Organization (ILO) [official website] Domestic Workers Convention (DWC) [text] was ratified by the Philippines, giving the international treaty its second ratification and paving the way for the convention to enter full force of law. Domestic workers are frequent victims of forced labor, and the ILO created the DWC to set the first global standards for domestic workers worldwide to ensure they receive generally the same protections available to other workers [JURIST report] such as weekly days off, work hour limits, limits on in-kind payment, minimum wage, clear information on terms and conditions of employment, and other benefits. In June the ILO released a report on forced labor, estimating that nearly 21 million people around the world work in forced labor [JURIST report] and noting that women represent 55 percent of forced laborers worldwide. The agency adopted the DWC [JURIST report] at last year's annual meeting of ILO member states, the 100th Session of the International Labor Conference [official website]. The ILO is a specialized agency of the UN.




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Russia feminist activists ask judge to recuse herself in trial
Rebecca DiLeonardo on August 6, 2012 2:51 PM ET

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[JURIST] Three members of a Russian feminist activist group who are facing trial for their performance of a protest song in a Russian Orthodox church asked the judge in their case on Monday to recuse herself, saying her decisions were politically motivated. Judge Marina Syrova declined to hear [AP report] the defense motion for her recusal and moved forward with the trial. The defense had previously moved for the Judge's recusal [RAPSI report] last week. The three women have been charged with "hooliganism" [RAPSI materials] for their performance of a song, which sparked public outrage after a video of the performance was posted online. Some have criticized the trial as being politically motivated, saying it is a strategy by Russian President Vladimir Putin [official website; JURIST news archive] to discredit his opposition.

Rights groups and political activists in Russia have expressed concern over other recently passed laws they say are aimed at restricting civil rights. Last week Putin signed a bill into the law that re-criminalizes slander and libel [JURIST report] in the country. Last month, Putin signed [JURIST report] into law a bill that labels all non-governmental organizations (NGOs) that receive foreign funding as "foreign agents" and requires them to register with the Justice Ministry. Opponents of this new law say that its purpose is to curb free speech [RFE/RL report] and limit information available to the public. Earlier this month, Russian politicians asked [JURIST report] the country's constitutional court to review a recently passed law that increases penalties against protesters who violate regulations. The State Duma also recently approved a bill regulating Internet use that some fear the government will use to oppress speech. In May Russia also for the first time convicted a gay rights activist [JURIST report] under a law prohibiting the spread of "homosexual propaganda" to minors, which caused concern from human rights groups.




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UK chief justice: recent reforms have increased burdens on judiciary
Dan Taglioli on August 6, 2012 2:40 PM ET

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[JURIST] UK top judge Lord Chief Justice of England and Wales Lord Igor Judge [official profile] on Friday released his three-year report detailing how recent reforms to the judicial system have placed an increased burden on the judiciary that will create problems with employing and keeping the best people. "The Lord Chief Justice's Report 2010-12" [report, PDF] covers the period January 2010 to June 2012 when "many different aspects of the administration of justice are under review and reform," showing that "constraints have affected and will continue to affect every aspect of national life, and the administration of justice is not, and has not, been immunised from the economic crisis." The report details the role of the judiciary and how it has been affected by reforms [Telegraph report] in areas of criminal, civil, family and military justice, noting that decreased criminal backlogs are due to the increased daily work of the courts and that falling numbers of total annual civil cases are offset by their increasing complexity. Lord Judge stressed the need to maintain the "morale, recruitment and retention of judges of the highest calibre" against a backdrop of a three-year judicial pay freeze, threats of strike action by criminal barristers due to pay changes, damaging reform to the Legal Aid system and general increases in overall pressure on all parts of the judiciary.

Lord Judge is expected to retire next year after five years as Lord Chief Justice. In October Lord Judge ruled that UK courts are not bound by decisions from the European Court of Human Rights (ECHR) and speaking before the Lords Constitution Committee [official websites] suggested that while UK courts are not required to follow the ECHR [JURIST report], they should consider ECHR decisions when deciding cases. In March 2011 the UK Ministry of Justice [official website] announced the creation of a commission that will consider the implementation of a British Bill of Rights [JURIST report], which former Lord Chief Justice Lord Woolf warned would conflict with the ECHR, in that continued adherence to the convention combined with the creation of a Bill of Rights would create complications for judges in determining which to follow and further the existing conflict between the UK and the ECHR. In January 2010 a UK court began the first non-jury criminal trial in England or Wales in more than 400 years after Lord Judge made the decision to conduct the trial without a jury [JURIST reports] under a Criminal Justice Act 2003 [text] provision that allows a court to hold a judge-only trial if there is "evidence of a real and present danger" that jury tampering may take place and it is determined that other measures to prevent tampering would be ineffective. Lord Judge cited cost concerns regarding the expense of maintaining security for jurors in that particular trial and noted there have already been three aborted attempts to conduct the proceedings.




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Nebraska Supreme Court strikes down campaign finance law
Rebecca DiLeonardo on August 6, 2012 2:19 PM ET

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[JURIST] The Supreme Court of Nebraska [official website] on Friday struck down [opinion, PDF] a state campaign finance law that contributes state money to certain political candidates in order to lessen financial disparity among candidates. Under the law, candidates for certain public offices could voluntarily accept additional oversight in exchange for public financing [Neb Rev Stat § 1604], the levels of which may vary depending on the expenditures of privately-financed opponents. The court found that the law violated the free speech rights of political opponents who opt to spend over the limit and therefore do not receive funding. The Nebraska court noted in its decision that Attorney General Jon Bruning [official website] had issued an advisory opinion [text, PDF; JURIST report] last August drawing marked parallels between the state's campaign finance laws and portions of similar Arizona regulations that had been recently overturned [JURIST report] by the US Supreme Court [official website]. The court agreed with Bruning, finding that the state had not offered any additional compelling interest to distinguish its law from the Arizona law that was struck down by the Supreme Court.

In June 2011 the Supreme Court ruled [opinion, PDF] in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [Cornell LII backgrounder] that an Arizona campaign finance regulation that provided publicly financed candidates with additional government subsidies, triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents, violates the First Amendment [text]. The court held 5-4 that such a system substantially burdens political speech and is not sufficiently justified by a compelling state interest to satisfy the First Amendment. Counsel for the respondent argued that "public funding of elections results in more speech and more electoral competition" and furthers a governmental interest of staving off "real and apparent corruption in politics."




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Federal appeals court denies Illinois ex-governor's appeal for release
Sung Un Kim on August 6, 2012 1:29 PM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Monday upheld [opinion, PDF] a lower court's denial of motion submitted by former Illinois governor George Ryan [JURIST news archive] seeking his release from prison. Ryan argued that he was convicted under pre-Skilling v. United States [Cornell LII backgrounder; JURIST report] jury instructions and thus he should be released from prison and his convictions for mail fraud and for violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] should be thrown out. The court ruled that the jury found Ryan guilty of bribery giving three reasons. First, the jury was instructed that bribes are considered income under the Internal Revenue Code while gifts from friends are not. Based on this instruction, the jury still found that Ryan had received payments for official acts. Second, the court found that the prosecution did not argue that the jury should convict Ryan because he failed to disclose benefits received Lawrence Warner who provided Ryan and his family with extensive benefits which was disapproved in the US District Court for the Northern District of Illinois [official website] stating that:
The jury rejected the good faith motive. Accordingly, the jury could only have convicted him on this count if it believed that his conduct was a response to the stream of benefits. Ryan suggests that the only "private gain" he received for his intervention in this transaction was the approval of his friend. As explained earlier, however, the jurors must have rejected this argument; they were specifically instructed that if the benefits Ryan received from Warner were merely the proceeds of a friendship, they could not be the basis for a conviction. The court concludes that the jury must have found Ryan accepted gifts from Warner with the intent to influence his actions.
Ryan is expected to be released around June 2013.

In April the US Supreme Court [official website] had ordered [JURIST report] the appeals court to reconsider Ryan's appeal in light of Wood v. Milyard [SCOTUS blog backgrounder; JURIST report]. The court in




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New Jersey high court upholds decal law for young drivers
Rebecca DiLeonardo on August 6, 2012 1:24 PM ET

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[JURIST] The Supreme Court of New Jersey [official website] on Monday upheld [opinion, PDF] a law [text, PDF] that requires young drivers to display decals on their license plates in order to enforce driving restrictions. The restrictions are part of New Jersey's graduated driver's license system (GDLS), which temporarily limits the driving privileges of young, first-time drivers. The Supreme Court unanimously upheld the decision of the appeals court below, agreeing that the regulation does not violate young drivers' right to equal protection and is not preempted by federal law. Opponents of the law had argued that the law unfairly singled out young New Jersey residents, since the requirements did not apply to out-of-state drivers. The court determined, however, that all GDLS programs are limited by state residency, and that the state had a rational interest in better enforcing these regulations.

Striking a balance between government interests and the privacy of drivers has been a subject of legal controversy in recent years. The American Civil Liberties Union (ACLU) announced last month that its affiliates in 38 states had sent letters to local and state police departments asking them to clarify [JURIST report] how they use information obtained fromcameras mounted near roads and highways that photograph and record license plate numbers. The ACLU expressed concern that some police departments were gathering and saving information about the traffic patterns of law-abiding citizens. The US Supreme Court [official website] ruled [JURIST report] in January that the government's attachment of a global positioning system (GPS) device to a vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment [text].




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States passing fewer immigration laws than last year: report
Sung Un Kim on August 6, 2012 12:15 PM ET

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[JURIST] A study [text, PDF] that was released [press release] on Monday revealed that US state legislatures have passed fewer laws related to immigrants and refugees than last year. The National Conference of State Legislatures [organization website] documented that 41 states passed 114 bills and adopted 92 resolution concerning the area in the first six months of this year, 20 percent lower compared to last year. The cause for this trend is believed to be the shift in legislators' priorities toward state budget gaps and redistricting maps. It was also noted that pending litigation related to states' authority to enforce immigration laws contributed to the lower number. One of the cases documented in the study was Arizona v. United States [SCOTUSblog backgrounder]. In June the US Supreme Court [official website] upheld [JURIST report] only one of the four sections of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive]. The upheld section 2(b) requires police officers to check the immigration status of anyone whom they arrest and allows police to stop and arrest anyone whom they believe to be an illegal immigrant.

Various immigration laws are currently facing judicial review in courts across the country. In early July Georgia argued [JURIST report] before the US Court of Appeals for the Eleventh Circuit [official website] that its immigration law is constitutional based on the ruling in Arizona v. United States. The Eleventh Circuit court had deferred [JURIST report] the ruling on Alabama [HB 56, PDF; JURIST report] and Georgia [HB 87 text; JURIST report] immigration laws until a decision was made by the Supreme Court in the Arizona immigration law case. Similar legislation has passed in Utah, South Carolina and Indiana [JURIST reports].




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Turkish prosecutor calls for verdict against military officers in 2003 coup
Sung Un Kim on August 6, 2012 11:30 AM ET

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[JURIST] The Turkish state prosecutor on Monday urged the court to move to a verdict in the case of hundreds of Turkish military officers accused of plotting a coup against the government in 2003. The prosecution has demanded 15 to 20 years of imprisonment [Reuters report] for the 364 officers, currently in office or already retired. Prosecutor Huseyin Kaplan said that the prosecution office does not want the case to be transferred but rather that the court should proceed to the ruling stage because such a transfer would lengthen the pre-trial detention of the accused. The issue of transfer arose out of the boycott of the defense lawyers [JURIST report] in June because of the judge's refusal to allow testimony from an expert witness who could refute the prosecution's evidence allegedly taken from confiscated computer files. Kaplan had argued that the defense lawyers took such a measure only to delay the verdict because it would be unfavorable to them. The trial stems from the Balyoz Security Operation Plan [Taraf report, in Turkish; Al Jazeera backgrounder], or "Sledgehammer" plot [JURIST news archive], which included plans to bomb Istanbul mosques and provoke Greece into shooting down a Turkish plane in order to undermine the government. The trial was opened [JURIST report] in December 2010.

Turkey had faced numerous military coups in the past before the 2003 plot. Trials against the perpetrators in the coups are still ongoing. However, the judge's decision to refer the 2003 case to the prosecution had raised uncertainty related to the other conspiracy trials involving military coups. In May, Turkish police arrested [JURIST report] six former military officials for their involvement in the 1997 coup which led Turkey's Islamist-led government to resign. The six officials were among the 10 suspects prosecutors included in their arrest warrants charging them with participating in forcing the resignation of Necmettin Erbakan [NYT profile], an Islamist prime minister. In April the Ankara 12th High Criminal Court began its trial [JURIST report] of the last two surviving leaders of Turkey's 1980 coup, former general Kenan Evren [official profile], who may face possible life sentence [JURIST report], and former air force commander Tahsin Sahinkaya. The coup led to three years of military rule, during which 50 people were hanged and half a million arrested. The trial came after the court accepted the indictment against the two officials in January based on charges pressed [JURIST reports] by the prosecution a week earlier. In 2010 a Turkish court also began the trial [JURIST report] of 33 retired and active naval officers who allegedly planned to overthrow the government and implement military rule.




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Spain authorities charge Russian nationals with terrorism
Rebecca DiLeonardo on August 6, 2012 11:30 AM ET

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[JURIST] A judge in Spain on Sunday charged two Russian nationals with possession of explosives and membership in a terrorist organization, after they were arrested last week on suspicion of plotting an attack. Spanish authorities reportedly suspect [BBC report] that the two are members of al Qaeda [JURIST news archive]. They were arrested in Spain last week along with a Turkish national, and Spanish authorities have said they believed the three men were plotting an attack in Spain or another part of Europe. The Turkish suspect was charged on Friday with possession of explosives, and Spanish police last week were given an additional 48 hours to present evidence against the two Russian nationals. The two men will remain in custody until the proceedings begin.

Authorities around the world have been tracking down members and supporters of the al Qaeda and other terrorists groups. Last month, French authorities announced [JURIST report] that they arrested a suspected terrorist who was born in Tunisia in 1977 and resided in the French city of Toulon and allegedly has ties to al Qaeda. In June a New York native and terrorism suspect pleaded guilty [JURIST report] to charges that he provided the al Qaeda with money and computer assistance. In February Egyptian authorities reportedly arrested [JURIST report] a former al Qaeda military commander at an airport in Cairo. Saif al-Adel was detained upon his arrival after noticing that his name appeared on the passenger list on a flight from Pakistan. During the same month, a judge for the US District Court for the Western District of Kentucky allowed [JURIST report] certain secret evidence to be used against a suspect who was charged with attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer weapons to terrorist organizations, specifically al Qaeda.




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Philippines ratifies international treaty for domestic workers rights
Dan Taglioli on August 6, 2012 11:22 AM ET

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[JURIST] The Domestic Workers Convention (DWC) [text] was ratified by the Philippines on Monday, giving the international treaty its second ratification and paving the way for the convention to enter full force of law. The International Labor Organization (ILO) [official website] created the DWC to set the first global standards for domestic workers worldwide to ensure they receive the same protections available to other workers [HRW report] such as weekly days off, work hour limits, limits on in-kind payment, minimum wage, clear information on terms and conditions of employment, and other benefits. "Considering that domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights," the DWC seeks to curb a wide range of abuses and exploitations, such as excessive work hours, non-payment of wages, forced confinement, physical and sexual abuse, forced labor and trafficking, and also obliges government to prevent both violence against domestic workers and child labor in domestic work. There are an estimated 50 to 100 million domestic workers worldwide. The treaty takes effect one year after its second ratification, which was completed by the Philippine Senate on Monday after President Benigno Aquino III [official websites] signed it on May 18. Uruguay ratified the convention in April.

In June the ILO released a report on forced labor, estimating that nearly 21 million people around the world work in forced labor [JURIST report] and noting that women represent 55 percent of forced laborers worldwide. The ILO is a specialized agency of the UN. The agency adopted the DWC [JURIST report] at last year's annual meeting of ILO member states, the 100th Session of the International Labor Conference [official website]. That same month Megan McKee, University of Pittsburgh School of Law Class of 2012 and a legal researcher for the Centre for International Sustainable Development Law, wrote about the need for greater rights for migrant workers [JURIST comment], especially for those employed as domestic workers, and marked DWC's adoption as a "remarkable" passage of a "historic" international treaty.




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Kenya tribunal recommends dismissal of high court judge
Rebecca DiLeonardo on August 6, 2012 10:54 AM ET

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[JURIST] A tribunal of judges in Kenya on Monday recommended the dismissal of the country's Deputy Chief Justice Nancy Baraza, who has been accused of threatening a security guard with a gun. Baraza was suspended by Kenyan President Mwai Kibaki [official profile; JURIST news archive] last January while the tribunal investigated the allegations [Reuters report]. A female security guard accused Baraza of brandishing a pistol at a public shopping center after refusing to submit to a mandatory security check. The tribunal on Monday accepted the allegations of the security guard and recommended the dismissal of Baraza for violating the constitution. They found that Baraza's explanation of events was "misleading" and failed to adequately address the allegations. The recommendation of the tribunal will be passed along to the president, who will decide whether to dismiss Baraza.

Last week, the Court of Appeals in Kenya upheld a lower court's decision to set the date [JURIST report] of the upcoming presidential and parliamentary elections for March 4, 2013. Kenya's upcoming election has attracted international attention because it will be the first since the violence that followed the 2007 elections [JURIST news archive]. Four individuals are currently facing trial before the International Criminal Court (ICC) [official website; JURIST backgrounder] for fomenting the violence. Earlier this month, the ICC set the trial dates [JURIST report] for the two Kenyan post-election violence cases for next April. Last month the Chief Prosecutor of the ICC expressed his desire to start the two trials simultaneously [JURIST report] to avoid any appearance of bias in the March 2013 presidential election.




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Pakistan government to appeal decision nullifying contempt law
Sung Un Kim on August 6, 2012 10:41 AM ET

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[JURIST] The government of Pakistan announced Monday that it will petition the Supreme Court of Pakistan [official website] to review its decision nullifying the Contempt of Court Bill 2012 which was passed to shield the country's new prime minister from contempt charges. Rather than taking the route of reinstating the law through the legislature or the executive, the Pakistan Peoples' Party (PPP) [party website] decided [News Pakistan report] to take it before the judiciary. The PPP also announced that it will challenge the court's order demanding Prime Minister Raja Pervez Ashraf [BBC profile] reopen the investigation into the corruption allegations against President Asif Ali Zardari [official website]. The Supreme Court had nullified [JURIST report] the newly enacted law last Friday holding that it violates the basic principles of equality among Pakistan's citizens. The bill was passed by the upper [AFP report] and lower houses of the national parliament and signed [JURIST reports] by Zardari last month. It is still unclear when the government is going to file the review petition.

The country's judiciary has been in conflict with the executive branch since political leaders have rejected the court's order to investigate into the president's alleged corruption. The legislature and the president approved the law in order to protect the new PM from possible contempt of court proceedings for failure to reopen the investigation against Zardari. His predecessor Yousuf Raza Gilani [BBC profile; JURIST news archive] was disqualified from being a member of Parliament after an April contempt conviction [JURIST reports] and removed from office. The court had granted [JURIST report] an additional two weeks for Ashraf to comply with its order last week. The court had ordered [JURIST report] the new prime minister in late June to investigate the corruption allegations against the president. Ashraf, like his predecessor, has argued that the president is immune from prosecution under the country's constitution. The court in response claimed that no one is above the law and thus, the investigation against the president should proceed. During the same month, a Pakistani court ordered [JURIST report] the arrest of Makhdoom Shahabuddin [BBC profile], a former health minister from Punjab Province and the nominee for the country's then-vacant prime minister position for allegations that he was involved in irregularities in the amount of the controlled drug Ephedrine circulating within the country during his tenure as health minister. The arrest order was issued the same day the president nominated Shahabuddin to fill the position of former prime minister Gilani.




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HRW urges Tunisia lawmakers to ensure judicial independence
Rebecca DiLeonardo on August 6, 2012 10:11 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday urged [press release] Tunisian lawmakers to revise a draft law that would limit judicial independence in the country. According to HRW, the new bill sets up a temporary council for judicial supervision that has the authority to appoint, promote and dismiss judges. The rights group expressed concern that, while the new law is less restrictive than prior judicial regulations, it leaves open the possibility for arbitrary dismissal of judges. Eric Goldstein, deputy Middle East and North Africa director at HRW, urged the lawmakers to revise the law and reduce judicial restrictions before its passage:
The draft law for a Temporary Judicial Council lacks protection against the arbitrary removal or transfer of judges. The National Constituent Assembly should address this shortcoming before passing a law that it defines as temporary but could have lasting impact. ... An independent judiciary is a key pillar of a democratic governmen. The assembly should adopt strong safeguards for judicial independence.
The rights group also expressed concern that the proposed law did not adequately define offenses that can lead to disciplinary action, leaving further possibility of arbitrary dismissal or disciplinary measures.

Tunisia has faced political turmoil since former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] left office amid nationwide protests. A Tunisian military court last month sentenced Ben Ali in absentia to life in prison [JURIST report] for his involvement in the killing of 43 protesters during last year's Tunisian revolution which resulted in the death of more than 200 protesters. Ben Ali was already sentenced to life in prison [JURIST report] for his involvement in the killing of 22 protesters. He has also been sentenced to 20 years [JURIST report] on charges of inciting violence and murder in connection with the death of four protesters. The two sentences were added to previous sentences amounting to 55 years in prison including 15 years for drug and gun charges and 35 years [JURIST reports] on charges of theft and unlawful possession of money and jewelry. In April the country's military appeals court upheld [JURIST report] the convictions against the former president for torturing military officers over an alleged coup plot in 1991. In January a military court started its trial against Ben Ali focusing on who ordered snipers to kill 41 protesters during last year's revolution. Ben Ali had denied [JURIST report] all charges brought against him.




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