[JURIST] An Egyptian court on Tuesday upheld the in absentia death sentences of seven Coptic Christians and an American preacher on charges stemming from the amateur anti-Muslim film Innocence of Muslims [BBC backgrounder], which sparked violent protests in the Middle East last year. A criminal court in Cairo sentenced [JURIST report] the convicted defendants in November, pending the final verdict just announced [Bloomberg report]. The death sentences are primarily symbolic, as all of the defendants live outside of Egypt. The eight defendants include Mark Basseley Youssef, the California man who produced the film, as well as Florida pastor Terry Jones [JURIST news archive], who aroused controversy last year by publicly burning a Koran. The film depicts the Prophet Muhammad as a fraud and a womanizer. The court found the defendants guilty of subverting national unity, spreading false information and insulting Islam, charges that carry the death penalty in Egypt.
Innocence of Muslims has generated a great deal of political, religious and legal controversy. In September an actress who claims she was duped into appearing in the film filed suit [JURIST report] in the US District Court for the Northern District of California [official website] requesting that the film be removed from YouTube. Earlier in September UN Special Rapporteur Maina Kiai [official website] condemned the violence [JURIST report] that erupted after the film's release. Kiai stated that protests and rallies must be peaceful to be protected by international human rights law and urged the Middle East states to prosecute those responsible for the violence. UN High Commissioner for Human Rights Navi Pillay [official profile] urged religious and political leaders [JURIST report] to encourage an end to the violence that followed the release of the film.
[JURIST] Michigan Governor Rick Snyder [official website] sent a letter [text, PDF] to the Chief Justice of the Michigan Supreme Court [official website] on Monday requesting an advisory opinion on the constitutionality of the state's right to work law. Under Article 3, Section 8 of the Michigan Constitution [text], the governor can request an advisory opinion from the supreme court as to the constitutionality of legislation once it has been enacted, provided that it is prior to the effective date of the legislation. Specifically, Snyder has requested that the supreme court determine 1) whether the law is constitutional as applied to the classified state civil service, 2) if the law does not apply to classified to state civil service, whether it violates equal protection of the law, 3) whether the law violates equal protection of the law because the legislation does not apply to all employees in the public or private bargaining units, and 4) whether the law represents a change in purpose as enacted under the Michigan constitution. In his letter, Snyder noted the time sensitive nature of his request given that collective bargaining agreements with state workers expire at the end of the year.
The request by Snyder is the latest development in the ongoing battle over collective bargaining rights in Michigan. The right to work law has been controversial since its passage [JURIST report] in December, over unanimous Democratic opposition. In addition to the governor's request for an advisory opinion, two lawsuits have been filed [Detroit News report] challenging the law's passage as a violation of the Open Meetings Act. JURIST guest columnist Susan Bitensky of the Michigan State University College of Law criticized [JURIST op-ed] Michigan's right to work law as a bill that will "weaken the people and families who depend upon the benefits and protections negotiated by labor unions." Measures to strengthen collective bargaining rights in Michigan have also been controversial. In September the Michigan supreme court ordered [JURIST report], a union-backed measure to amend the state constitution to include a right to labor unionization and collective bargaining to appear on the November ballot. The measure was ultimately defeated [AP report] 57-43 percent.
[JURIST] Myanmar's state-run newspaper Myanma Ahlin reported Tuesday that President Thein Sein [BBC profile] abolished Order No. 2/88, which banned gathering and delivering speeches in public by a group of five or more people. The order, which was established in 1988 when the the military government came into power, has been criticized [BBC report] by the international community as a tool to suppress dissent. Though enforcement of the order has been softened over the past several years, the government decided to completely abolish under Article 447 of the Myanmar Constitution [text, PDF], which provides that rules and regulations that predate the 2008 constitution "shall remain in operation in so far as they are not contrary to this Constitution until and unless they are repealed or amended by the Union Government." The government found the order incompatible with the constitutional protection of freedom of expression and passed Order No. 3/2013 reversing the ban.
Tuesday's announcement is the latest in a series of reform efforts under Sein. Earlier this month Myanmar repealed [JURIST report] a 1996 law enacted under which dissidents could be sentenced for up to 20 years for delivering speeches that threatened peace and stability. In December Myanmar announced [BBC report] that it would permit privately owned newspapers for the first time in 50 years beginning in April. In conjunction with a visit by US President Barack Obama [JURIST news archive] in November Myanmar announced that it would be releasing a number of political prisoners [JURIST report]. In September Myanmar announcedamnesty for 514 prisoners [JURIST report], identified by activists to include several political detainees and foreigners.
[JURIST] The UK Court of Appeal [official website] ruled [judgment, PDF] Tuesday that a Criminal Records Bureau [official website] law requiring individuals to divulge all previous convictions to certain groups of employers is a breach of human rights. The court held that the disclosure provisions of three legislative acts that required certain job applicants to disclose all minor crimes, including those committed as a juvenile, were incompatible with Article 8 of the European Convention on Human Rights [text]. The case was brought to the appeals court by the UK rights group Liberty [advocacy website], which intervened on behalf of a 21-year-old man who was forced to disclose in applications that he received a warning from police when he was 11 years old in connection with two stolen bicycles. The requirement was also heavily criticized by other civil rights groups, including the Equality and Human Rights Commission (EHRC) [advocacy website], another intervener in the case. In response to the ruling the EHRC's chief legal officer praised the decision [press release]:
Many of us have been in minor trouble with the law as children, which we regret at the time but we would not expect that to affect our ability to get a job later in life. However, if the police and other bodies can pass on this information without our knowledge it will have serious implications for our lives and careers.This is an important ruling to establish how the authorities deal with confidential information they hold which could have a negative impact on people's lives. ... The fact that the Court has made a declaration of incompatibility indicates the seriousness of the contravention of human rights obligations in this case, which Parliament must now correct without delay.
The UK government, however, was "disappointed" in the decision, claiming that the it compromises the "protection of children and vulnerable groups," and it plans to appeal [BBC report] to the Supreme Court.
Civil rights remain an important and controversial issue in the UK. Last week, the UK government introduced a bill [JURIST report] that would extend marriage rights to same sex couples, and it is expected that the bill will pass next month. Earlier that week, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association Maina Kiai urged [JURIST report] the UK to review certain legal and policing policies that negatively affect the right to peaceably assemble. Earlier this month, the UK took on the prosecution of a human rights case when it arrested a Nepal Army colonel [JURIST report] on charges of torture during Nepal's 2005 civil war. The UK will be investigating these allegations against him, and the UN has urged Nepal to work with it.
[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Fatou Bensouda [official profile] on Monday warned the Malian government [press release] over reports of human rights abuses by Malian forces. In the statement, Bensouda urged Malian authorities to put an immediate stop to the alleged abuses and to investigate and prosecute those responsible. Bensouda announced [JURIST report] last week that her office has launched an investigation [press release] into possible war crimes committed in Mali. Bensouda said, "I remind all parties to the on-going conflict in Mali that my Office has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable."
Mali has drawn increased international scrutiny recently regarding political violence and alleged human rights abuses. On Friday the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] issued a report saying that the tumultuous situation in Mali has led to human rights violations [JURIST report]. Last week the interim president declared a state of emergency [JURIST report]. The prime minister of Mali, Cheick Modibo Diarra, was forced to resign [JURIST report] in December on state television after junta soldiers arrested him for attempting to leave the country in light of the ongoing humanitarian crisis threatening the nation. In September Human Rights Watch reported that three armed Islamist groups in northern Mali are abusing the local population and recruiting child soldiers [JURIST report]. Earlier that month UN High Commissioner for Human Rights Navi Pillay [official profile] condemned [JURIST report] human rights violations in Mali and called for international action to address the problems. In August officials from the ICC were in Mali investigating [JURIST report] whether the same two Islamic groups had committed war crimes in Mali.
[JURIST] A Guatemalan judge on Monday ordered former dictator Efrain Rios Montt [JURIST news archive] to stand trial on charges of genocide and crimes against humanity stemming from the killing of more than 1,700 villagers of Mayan ancestry. Judge Miguel Angel Galvez announced [BBC report] that Montt, along with one of his former generals Jose Rodriguez Sanchez, must answer for the alleged crimes committed during Montt's reign as de facto head of state in the early 1980s. Human Rights Watch Americas Director Jose Miguel Vivanco called [HRW press release] the order "a remarkable development in a country where impunity for past atrocities has long been the norm," and welcomed this step toward greater accountability in Guatemala. Montt is the first ex-head of state to be charged with genocide by a Latin American court.
This is not the first time Montt has been ordered to stand trial for alleged genocide and crimes against humanity. In May Judge Carol Patricia Flores issued the second order [JURIST report] demanding Montt stand trial after ruling that a sufficient amount of evidence had been mounted against him, necessitating his testimony before a court of law. Montt was protected [JURIST report] from prosecution until last January because he was serving as a member of congress, an immunity that had been lifted due to his departure from the legislature. The 36-year Guatemalan civil war [BBC backgrounder] resulted in more than 200,000 deaths, mostly among Guatemala's large indigenous Mayan population. According to a UN report [text, in Spanish] released in 1999, the military was responsible for 95 percent of those deaths.
[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday refused to reinstate [opinion, PDF] a lawsuit against the US Securities and Exchange Commission (SEC) [official website] by investment fraud victims of disgraced financier Bernard Madoff [JURIST news archive]. The investors had sued the SEC under the waiver of sovereign immunity in the Federal Tort Claims Act [28 USC § 2680] that allows a claim based on the performance of or failure to perform a discretionary function of a federal agency. The three-judge panel affirmed the April 2010 decision of the US District Court for the Central District of California [official website], which dismissed the lawsuit for lack of subject matter jurisdiction [Cornell LII backgrounder]. The original complaint contained more than 50 pages of allegations summarizing the SEC's failure to uncover Madoff's Ponzi scheme, many of them based on the SEC Office of Inspector General's 450-page report [text, PDF] entitled "Investigation of Failure of the SEC to Uncover Bernard Madoff's Ponzi Scheme - Public Version" and released [JURIST report] in August 2009. The court rejected claims that negligence on the part of the SEC "caused Madoff's scheme to continue, perpetuate, and expand" because the SEC retains discretion to decide how to conduct its investigations, meaning there are no mandatory obligations requiring the SEC to bring an enforcement action in any particular situation:
Many of Plaintiffs' allegations (including the factual averments contained in the Report) identify decisions that, in hindsight, could have and should have been made differently. Other allegations reveal the SEC's sheer incompetence in regulating Madoff's broker-dealer, market-making, and investment-management operations. What is lacking in the present Complaint, however, is any plausible allegation revealing that the SEC violated its clear, non-discretionary duties, or otherwise undertook a course of action that is not potentially susceptible to policy analysis.
The Ninth Circuit's three-paragraph opinion affirmed the district court's "reasoned finding" in brief fashion, disposing of the appeal by adopting verbatim nearly 80 pages of the lower court's original order.
Madoff's scheme is believed to have defrauded investors of over $65 billion. Last July the US District Court for the Southern District of New York (SDNY) [official website] approved the first payouts [JURIST report] to Madoff's victims. Madoff trustee Irving Picard filed almost 60 lawsuits [JURIST report] for victims of Madoff's fraud in December 2010, including suits against large banks like JPMorgan Chase and HSBC. Judge Louis Stanton made Picard the trustee of Bernard L Madoff Securities, LLC in December 2008. Madoff was sentenced [JURIST report] in June 2009 to 150 years in prison for securities fraud stemming from his Ponzi scheme. He pleaded guilty [JURIST report] to 11 counts of securities fraud in March 2009.
[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday voiced concern [press release] over the growing violence and rising death toll in Egypt stemming from ongoing protests throughout the country. At least 50 people have been killed since protesters took to the streets to commemorate the second anniversary of the start of the Egyptian Revolution [JURIST backgrounder] that toppled former president Hosni Mubarak [Al Jazeera profile; JURIST news archive]. In addition to the numerous deaths and injuries, Pillay brought attention to the dozens of women who have been sexually assaulted in Cairo over the past week. Pillay expressed concern over the current instability in the country:
As the tragic events over the past few days have shown, Egypt remains extremely fragile and unstable, and I urge the Government to make a much stronger effort to accommodate opposing points of view, and take concrete actions to address public concerns. This is necessary to increase nationwide participation and ownership of the constitutional, institutional, economic and legal reforms. Each missed opportunity to reach national consensus, and each example of excessive use of force by security forces, is aggravating an already frighteningly tense and volatile situation.
The High Commissioner specifically urged President Mohamed Morsi [BBC profile; JURIST news archive] to listen to and communicate with opposition groups, emphasizing a need for solutions to issues surrounding the country's newly adopted constitution and concerns over the judiciary system
Egypt has been plagued by continuing protests and violence since the beginning of the revolution. Earlier this week, Morsi declared a state of emergency [JURIST report] in an attempt to quell growing unrest and violent political protests in cities along the Suez Canal, including Port Said, Ismailia and Suez. This came a day after nationwide unrest compounded following an Egyptian court ruling handing down 21 death penalties [JURIST report] on Saturday for a 2012 soccer riot that resulted in 74 deaths and thousands of injuries. Last week an Egyptian rights group reported [JURIST report] that police abuse and torture continue to be ongoing issues and that police conduct has not improved since the abuses faced under the old regime. Egypt's Supreme Constitutional Court was forced to indefinitely halt operations [JURIST report] in December amid pressure from protesters attempting to block judges from entering the court. The protesters, supporters of Morsi, flooded the court and blocked the judges to prevent them from hearing a case challenging the validity of the new constitution. Protests in the country have been increasing since Morsi signed the new constitution [JURIST report] into law earlier that month. Many individuals and rights groups have questioned the validity of the constitution, as only 32.9 percent of Egypt's total of 52 million voters actually participated in the referendum to approve it.
[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Monday reinstated a lawsuit [opinion, PDF] by a Virginia prison inmate seeking gender reassignment surgery. The court ruled that Ophelia Azriel De'lonta, an inmate suffering from gender identity disorder (GID) [NIH backgrounder], has sufficiently stated a claim that the Virginia Department of Correction (VDOC) [official website] may have been deliberately indifferent to her serious medical need by refusing to evaluate her for surgery. Previously, the Fourth Circuit held [opinion] that the VDOC had wrongfully prevented De'lonta from receiving any GID treatment in violation of the Eighth Amendment [LII backgrounder]. In Monday's ruling, the court clarified its holding:
We hold only that De'lonta's Eighth Amendment claim is sufficiently plausible to survive screening pursuant to 28 USC § 1915A. We do not decide today the merits of De'lonta's claim. Nor, for that matter, do we mean to suggest what remedy De'lonta would be entitled to should she prevail. In our view, the answers to those questions have no bearing on whether De'lonta has stated a claim that Appellees have been deliberately indifferent to her serious medical need by refusing to evaluate her for surgery, consistent with the [Benjamin] Standards of Care.
Following De'lonta's first suit, the VDOC provided De'lonta with GID treatment consisting of regular psychological counseling and hormone therapy. De'lonta has also been permitted to dress and live like a woman to the full extent permitted by the VDOC. However, she has not been allowed to seek evaluation for gender reassignment surgery. The case has been remanded for further proceedings consistent with the court's findings.
Although an increasing number of prisons recognize GID as a compelling medical ailment that requires treatment, sometimes to the extent of gender reassignment surgery, the issue is still contentious. In September the US District Court for the District of Massachusetts [official website] ruled [JURIST report] that an inmate serving life without parole must be granted gender reassignment surgery as it is the only possible treatment for her GID. In March the US Supreme Court [official website] declined to rule [JURIST report] on a similar case, letting stand a lower court decision that found hormone therapy for transgender inmates to be medically necessary. The standing decision from the Seventh Circuit was analyzed [JURIST comment] by JURIST contributor John Knight [professional profile], who suggested that laws and regulations against transgender therapy are "blatantly discriminatory" due to "popular biases being put ahead of medical research, singling out a small group of inmates, and blocking medical treatments necessary only for them."
[JURIST] A group of eight senators from both parties released a framework [text, PDF] Monday of comprehensive immigration [JURIST backgrounder] reform legislation that they plan to introduce by March. The framework focuses on four "pillars" that the legislation will include: creating a path to citizenship for current unauthorized immigrants, contingent upon securing the borders; reforming the immigration system to ease the way for immigrants who will bolster the US economy or are a part of an existing US family and have been waiting for citizenship; creating a new employment verification system to check immigration status; and allowing immigrants to legally imigrate to the US for low-skilled labor, only if it is available and American workers have refused the work. Senators Chuck Schumer, John McCain, Dick Durbin, Robert Menendez and Marco Rubio [official websites] revealed the outline in a press conference.
White House Press Secretary Jay Carney stated in his press briefing [transcript] Monday that "[T]he President welcomes the efforts by the bipartisan group in the Senate to put forward principles on the need for comprehensive immigration reform—principles that mirror the President's blueprint." President Barack Obama is expected to make a statement on immigration reform on Tuesday.
The individual senators involved in building the framework released several statements on what the eventual legislation will include. McCain focused on border security [press release], "Greater focus needs to be paid to drug traffickers and criminals that cross the border. ... To combat this, we need to continue to invest in UAVs, radar, and other proven surveillance systems that will give Border Patrol the ability to detect and apprehend all illegal entries into the United States." He also compared the framework to failed legislation [FAQ text] that was put forward in 2007, and issued more details about the plan, including that funding for some aspects of the program will come from "fees collected from immigrant workers—both new guest workers and the previously undocumented." These funds will be used for "registering the undocumented, processing visas and other applications, enhancing enforcement and providing English and civics education to immigrants." Senator Lindsey Graham [official website], who was not available for the press conference, also released a statement [press release] and said, "We're a long way from having legislative language but I do believe 2013 presents us the best chance to pass immigration reform in many years."
[JURIST] Lawyers for Guantanamo Bay [JURIST backgrounder] detainee Abu Zubaydah on Monday asked the European Court of Human Rights (ECHR) [official website] to rule on whether Poland violated their client's rights [Reuters report] by aiding the US in detaining and allegedly torturing Zubaydah in a secret CIA prison [JURIST news archives]. Zubaydah, a top al Qaeda suspect, alleges that he was transferred to Poland and subjected to enhanced interrogation techniques. An investigation into the prison has been ongoing in Poland [JURIST report] since 2008, but Zubaydah's lawyers argued that it has made no noticeable effort to bring any perpetrators to justice. The letter is notice that there will be an application for a formal hearing filed soon.
The ECHR has already agreed to take the case of accused USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri who also alleges that he has been tortured [JURIST report] in a secret CIA prison in Poland. In August, the Open Society Justice Initiative (OSJI) urged the ECHR to review allegations that Romania was involved [JURIST report] in the torture and other ill-treatment of al-Nashiri as well. The application alleged that al-Nashiri was subject to torture and mistreatment while in the secret CIA detention facility "Bright Light" located in Romania's capital.
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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible, ad-free format.
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Legal news from Tuesday, January 29, 2013
