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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Canada: Government Drops Appeal to Supreme Court over Niqab Ban During Citizenship Ceremonies

(Nov. 27, 2015) On November 16, 2015, John McCallum, the Minister of Immigration, Refugees and Citizenship, and Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada, issued a joint statement stating that the recently elected Liberal government would discontinue a request for appeal of a recent ruling of the Federal Court of Canada (which was also upheld by the Federal Court of Appeal) holding that a policy requiring women to unveil during the oath of citizenship ceremony was “unlawful on administrative law grounds.” (Government of Canada, Statement from the Minister of Immigration, Refugees and Citizenship and the Minister of Justice (Nov. 16, 2015).)

The policy requirement for women to remove their face veils when taking the oath of citizenship was first included in Citizenship and Immigration Canada (CIC)’s Operational Bulletin number 359, on December 12, 2011 (Kady O’Malley, SourceDocWatch: CIC Operational Bulletin on “Full and Partial Face Coverings” at Citizenship Ceremonies, CBC NEWS (Dec. 12, 2011)), and then was incorporated in CIC’s policy manual. (Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156 (Feb. 6, 2015), ¶ 4.) The legal dispute arose when a Pakistani national, Zunera Ishaq, objected to the requirement on the ground that it interfered with her freedom of religion. (John Mastrangelo, Face-Coverings and the Canadian Citizenship Oath: The Federal Court of Appeal Decides ‘Ishaq v Canada, THE COURT (Sept. 21, 2015).)

While the government argued that the policy was merely a guideline, the Federal Court disagreed and held that the policy was mandatory in nature and that it interfered “with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath …” as enshrined in a provision of the Citizenship Regulations. (Ishaq v. Canada (Citizenship and Immigration), ¶ 68); Citizenship Regulations, SOR/93-246, ¶ 17(1)(b) (May 11, 1993, as amended), Government of Canada website.) The Court found that because the subsidiary policy was in conflict with the enabling regulation, it was invalid. (Ishaq v. Canada (Citizenship and Immigration), ¶¶ 55 & 57.) Since the decision could be made on non-constitutional grounds, the Court declined to decide the case on issues arising from the Canadian Charter of Rights and Freedoms. (Id. ¶ 67.)

On September 15, 2015, the Federal Court of Appeal, though it did not endorse all the findings of the Federal Court, dismissed the appeal on the grounds that there was “no basis to interfere with the Federal Court’s finding as to the mandatory nature of the impugned change in policy as this finding is overwhelmingly supported by the evidence.” (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194,¶ 4 (Sept. 15, 2015).) On October 5, the Federal Court of Appeal also rejected a motion to stay the previous decisions until the Supreme Court has decided on the matter. (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 212 (Oct. 5, 2015).)

The previous, Conservative government had asked the Supreme Court to hear an appeal of the lower court rulings, but the recently elected Liberal Party government followed through with a campaign promise to drop the appeal. (Liberals Drop Controversial Supreme Court of Canada Niqab Appeal, THE STAR (Nov. 16 2015).)

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Indonesia: Limits on Foreign Investment in E-Commerce Proposed

(Nov. 27, 2015) According to a November 23, 2015, report, Indonesia’s Ministry of Trade is developing a new, more restrictive policy for foreign ownership of e-commerce businesses in the country. The new rules, designed to favor domestic online companies, would apply to online shopping and service businesses. (Govt Prepares Foreign Ownership Limits in E-Commerce, JAKARTA POST (Nov. 23, 2015).) The Director General for Domestic Trade, Srie Agustina, said that the government has been working to revise the negative investment list, the itemization of market sectors that are closed to foreign investment. The list is established in a presidential regulation. (Id.; Negative Investment List, Indonesia Investment Coordinating Board website (last visited Nov. 23, 2015); Presidential Regulation of the Republic of Indonesia, No. 39 of 2014, List of Business Fields Closed to Investment and Business Fields Open, with Conditions, to Investment, Indonesia Investment Coordinating Board website.)

Agustina stated, “[i]n the initial phase, foreign entities would be allowed to have a minority ownership in the e-commerce and marketplace [businesses].” (Govt Prepares Foreign Ownership Limits in E-Commerce, supra.) She added that eventually the plan is to have a cap of 30-40% foreign ownership in a business, but that the new rules would not be applied retroactively to companies that currently have a majority of shares held by foreigners. (Id.) Bambang Heru Tjahjono, the Director-General of Informatics Application at the Ministry of Communications and Information, noted that under the new regulation being considered foreigners would be permitted to invest in existing e-commerce companies, but not new domestic enterprises just starting operations. Foreigners could, however, create new e-businesses based in Indonesia. (Id.)

The marketing communications manager of the online business Global Digital Niaga said that the Indonesian e-commerce industry would benefit from the proposed changes; that favorable view was echoed by Gaery Undarsa, managing director of another Indonesian company, Global Tiket Network. Online businesses in Indonesia are projected to generate Rp49 trillion (about US$3.56 billion) in revenue in this year; that amount is expected to increase 26% in 2016. (Id.)

In a separate move concerning the negative investment list, last month the Indonesia Investment Coordinating Board, a government agency that assists foreigners planning to invest in the country, called for public comments on possible revisions to the list. In addition, the Board’s Frank Sibarani said that the Board “will be more open to investment in manufacturing, forestry, etcetera.”  (Hidayat Setiaji & Gayatri Suroyo, Indonesia Seeks Public Submissions for Revised Negative Investment List, REUTERS (Oct. 16, 2015); Our Services, Indonesia Investment Coordinating Board website (last visited Nov. 25, 2015).)

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Japan: Bar Association Guidelines for Defense Counsel in Death Penalty Cases

(Nov. 27, 2015) The Japan Federation of Bar Associations (JFBA) created Guidelines for Defense Counsel in Death Penalty Cases and sent them to local bar associations throughout Japan in October 2015. (Guidelines Exclusively for Capital Defense, JFBA “Special Defense Required,” NIKKEI (Oct. 19, 2015) (in Japanese).) The guidelines are modeled after the American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases of 2003. (Meredith Gallen, Japan Federation of Bar Associations to Create Death Penalty Representation Guidelines Modeled After ABA Guidelines, 8:1 PROJECT PRESS (Winter 2015).)

There has been controversy over the new Guidelines because they recommend that a defense counsel in a capital case should oppose the participation of a victim or a victim’s family in the trial. Because a victim’s statements have a powerful impact, especially on quasi-jurors (citizens serving as lay judges, see Hiroshi Matsubara, Quasi-Jury System Earns Diet Approval, JAPAN TIMES (May 22, 2004)), it is better for the defense to avoid using them, the Guidelines reportedly state. Lawyers who are committed to supporting crime victims criticized this recommendation. They also questioned how the JFBA developed the Guidelines, because publication proceeded without the solicitation of opinions from members of the Bar with different views. (Opposition to Guidelines of “Defense for Capital Cases” by JFBA, Crime Victim Support Lawyers Forum website (Oct. 19, 2015) (in Japanese).)

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Bangladesh: Execution of Two More War Crimes Convicts

(Nov. 25, 2015) On November 22, 2015, two opposition leaders in Bangladesh, Ali Ahsan Mohammad Mujahid and Salauddin Quader Chowdhury, were hanged simultaneously for war crimes after their clemency petitions were denied by the President of Bangladesh. (Bangladesh Executes Two Opposition Leaders for 1971 War Crimes, DAILY STAR (Nov. 21, 2014).)

According to recent news reports, the International Crimes Tribunal of Bangladesh has convicted 24 people, most of whom are leaders of Jamaat-e-Islami (Jamaat), the party that supported the military activities of the Pakistan army during the 1971 war for Bangladesh’s independence. (David Bergman, Bangladesh’s War Crimes Tribunal Under Fire from Human Rights Group for “Flawed” Trials but Government Hits Back, INTERNATIONAL JUSTICE TRIBUNE (Nov. 10, 2015).)

Salauddin was one of the senior-most leaders of the Bangladesh Nationalist Party. He was sentenced to death by a war crimes tribunal in October 2013.  Charges against him included genocide, arson and persecuting people on religious and political grounds.  (For India, Bangladesh Executions Internal Matter, BDNEWS24 (Nov. 11, 2015).)

Mujahid was the Minister of Social Welfare in the Bangladesh National Party-led coalition Cabinet with Jamaat in 2001. The charges against him included the massacre of intellectuals and involvement in the murder and torture of Hindus. (Supreme Court Confirms Pro-Pakistan Militia Commander Mujahid’s Death Penalty for Bangladesh War Crimes, BDNEWS24 (June 16, 2015).)

Both Chowdhury and Mujahid had denied all the charges against them, but the Supreme Court of Bangladesh upheld their sentences earlier this month.  Bangladesh has now executed a total of four war crimes convicts. (Bangladesh Executes Two War Criminals, INDIA.COM (Nov. 22, 2015).)  Abdul Kader Mollah, also a Jamaat leader, was the first war crimes convict to walk to the gallows; he was executed in 2013. (Shameema Rahman, Bangladesh: First Execution of War Criminal Convicted by International Crimes Tribunal, GLOBAL LEGAL MONITOR (Jan. 9, 2014).)

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United Nations: Security Council Resolution on Terrorism in France

(Nov. 24, 2015) On November 20, 2015, in the wake of the recent terrorist attacks in France, the United Nations Security Council (UNSC) unanimously adopted Resolution No. 2249/2015, in which it condemned the terrorist attacks of November 2015 in France committed by ISIL (Islamic State in Iraq and the Levant/Syria (ISIL or ISIS)), also known as Da’esh. (Press Release, United Nations, Security Council “Unequivocally” Condemns ISIL Terrorist Attacks, Unanimously Adopting Text that Determines Extremist Group Poses “Unprecedented” Threat (Nov. 20, 2015).)

The Resolution reiterated that unless a political solution is found for the Syrian conflict, the situation will deteriorate. (Id.)

The Resolution:

  • condemns the November 2015 events in France as well as previous terrorist attacks perpetrated by ISIL that occurred on June 26, 2015, in Sousse (Tunisia), on October 10, in Ankara, on October 31 over Sinaï, on November 12 in Beirut, and all other attacks committed by ISIL, such as hostage-taking and killing, and states that it considers all these terrorist acts a threat to peace and security;
  • states that any action against ISIL must be in compliance with the U.N. Charter, international humanitarian law, and human rights law;
  • reaffirms that those who have committed such terrorist acts, or violations of human rights or humanitarian law, must be held accountable;
  • calls on the U.N. Member States that have the capacity to do so to take all necessary measures to prevent and suppress terrorist attacks committed in the territory under the control of ISIL in Syria and Iraq by ISIL or other terrorist groups or businesses associated with Al Qaeda, or by other terrorist groups included on the U.N. Sanctions List; and
  • urges the Member States to increase their efforts to prevent foreign terrorist fighters from going to Syria and Iraq and to prevent the financing of terrorism. (Id.)

The U.N. Sanctions List includes all the names of individuals and companies that are subject to sanctions imposed by the Security Council. (Consolidated United Nations Security Council Sanctions List (last updated Nov. 12, 2015) U.N. website.)

Following the vote in the UNSC, the representative of France stated that the Security Council, through the adoption of this resolution, “unanimously recognized the exceptional nature of the threat, and had called on all Member States to eradicate Da’esh sanctuaries and push back its ideology.” He also emphasized that any collective action against ISIL would be based on article 51 of the U.N. Charter on the right to self-defense and that France had also requested and obtained the activation of the mutual solidarity clause of the Treaty on the Functioning of the European Union. (Id.)

Article 51 contains the right to self-defense by individual or collective action if an armed attack occurs in the territory of a Member State. (Charter of the United Nations and Statute of the International Court of Justice, art. 51 (1945) UNITED NATIONS TREATY COLLECTION.) The EU mutual solidarity clause states that if a Member State is the victim of a terrorist attack or of a natural or man-made disaster, the EU and its Member States are required to act jointly in a spirit of solidarity to assist that Member State following a request made by its political authorities. In such a case, the EU is required to mobilize all the instruments at its disposal, including the military resources made available by the Member States, for the purpose of : (a) preventing the terrorist threat in the territory of the Member States; and (b) protecting democratic institutions and the civilian population from any terrorist attack. (Consolidated Version of the Treaty on the Functioning of the European Union, art. 222, ¶ 1 (2012) O.J. (C 326) 47, EUR-LEX.)

The Representative of the Russian Federation to the U.N. expressed support for France and added that Russia agrees with the language included in the Resolution to the effect that the basis for the fight against ISIL must be the U.N. Charter. (Id.) The Representative of the United Kingdom, speaking on behalf of his country and not as the President of the Security Council, emphasized that “this resolution is a powerful, international recognition of the threat ISIL poses,” and that “this resolution reminds us that measures must be implemented if the international response is to succeed.” (Security Council “Unequivocally” Condemns ISIL Terrorist Attacks, Unanimously Adopting Text that Determines Extremist Group Poses “Unprecedented” Threat, supra.)


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