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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.

Indonesia: Constitutional Court Opens Way to Recognition of Native Faiths

(Nov. 17, 2017) On November 7, 2017, Indonesia’s Constitutional Court (Mahkamah Konstitusi Republik Indonesia) issued a decision that will allow Indonesians who follow native faiths to list their religions on official forms.  According to Justice Arief Hidayat, several articles in the Law on Population Administration are discriminatory and “contradict the 1945 Constitution and these articles are not legally binding.”  (Marguerite Afra Sapiie, Constitutional Court Rules Indigenous Faiths ‘Acknowledged’ by State, JAKARTA POST (Nov. 7, 2017);  Undang-Undang Republik Indonesia Nomor 23 Tahun 2006 Tentang Administrasi Kependudukan [Law of the Republic of Indonesia No. 23, 2006, on Population Administration] (Dec. 29, 2006),  House of Representatives website; Law 24 of 2013 on Amendment to Law 23 of 2006 on Population Administration (Dec. 24, 2013), REFWORLD.)

The Law had required that followers of religions other than the major faiths leave the line for religion blank on their national ID cards.  The Court decision came as a result of the challenge to the Law filed by four people who follow indigenous religions, whose argument was that the Law violated the ideal of equality before the law.  According to the Ministry of Culture and Education, Indonesia has at least 12 million followers of 1,200 native faith groups.  (Sapiie, supra.)  The explication attached to the Indonesian Law on Blasphemy states that Indonesia officially recognizes six major religions: Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism.  (Penjelasan Penetapan Presiden Republik Indonesia Nomor 1 Tahun 1965 Tentang Pencegahan Penyalahgunaan Dan/Atau Penodaan Agama [Explanation of Presidential Decree No. 1 of 1965 on Prevention of Misuse of Religion and/or Blasphemy] (Jan. 27, 1965), HUKUMONLINE (click on pdf icon); Moses with Ompusunggu, Rights Group Welcomes Landmark Court Ruling on Native Faiths, JAKARTA POST (Nov. 7, 2017).)

Commenting on the issue, Justice Saldi Isra said that the disputed articles of the Law on Population Administration had created trouble for followers of faiths other than the major six, including problems in obtaining e-ID and family registration cards, marriage registration, and access to services provided by the civil administrative offices.  (Sapiie supra.)  Saldi added that now followers of native faiths should, when filing for family registration and e-ID cards, indicate that they are native faith followers (penghayat kepercayaan) and that they do not need to add other details.  (Id.)

Tigor Naipospos of the Setara Institute noted that Indonesians not identified with one of the major religions faced limits in education and employment, as well as marriage registration.  (Tom Allard & Jessica Damiana, Indonesian Court Recognizes Native Religions in Landmark Ruling, REUTERS (Nov. 7, 2017).)  The Setara Institute describes itself as founded by people “dedicated to the ideal that everyone should be treated equal while respecting diversity, giving priority to solidarity and upholding human dignity.”  (Setara Institute Profile, Setara Institute website (last visited Nov. 9, 2017).)

Reactions to the Court Decision

The Setara Institute welcomed the Constitutional Court decision, stating that it could put an end to the discrimination faced by religious minorities and that “[i]deally the state would not discriminate against its citizens when they declare their religious identity on the population administration register.”  (Ompusunggu, supra.)  Tjahjo Kumolo, the Home Minister, said that his ministry would coordinate with other government offices to comply with the Court ruling and compile data on native faiths.  The Home Affairs Ministry, he said, would incorporate information on those faiths in the population administration system.  (Id.)  Nia Sjarifudin of the Unity in Diversity Alliance opined that the ruling would also apply to followers of Baha’i and Judaism, faiths that are not indigenous to Indonesia but are not among the six religions that are formally recognized.  (Allard & Damiana, supra.)

Indonesia’s House of Representatives is planning to revise the Law on Population Administration (also known as the Civil Administration Law).  Zainuddin Amalia, the chair of the House Commission on Home Affairs, said on November 8 that a meeting would be held after the end of the current House recess period on November 15, to discuss a revision.  (House to Revise Civil Administration Law in Wake of Court Ruling, JAKARTA POST (Nov. 8, 2017).)

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Egypt: Cabinet Approves Amendment to Traffic Law

(Nov. 17, 2017) On October 19, 2017, the Egyptian Cabinet approved a new amendment to the Traffic Law, Law No. 66 of 1973.  (Law No. 66 of 1973, 34 AL-JARIDAH AL-RASSMIYAH (Aug. 23, 1973) (in Arabic).) The amendment introduces new penalties for violators of traffic regulations.  According to an official written statement issued by the Cabinet, the amendment aims to enhance traffic safety and reduce the number of road accidents in the country.  (Cabinet Statement No. 93 (Oct. 19, 2017), Cabinet website (in Arabic).)  After the Cabinet approved it, the amendment was referred to the Parliament for further discussion.  (Abdu al Rahman Sayid, An Overview of the New Draft Traffic Law, PARLMANY.COM (Oct. 28, 2017) (in Arabic).)

Points System

The amendment establishes a new system to penalize drivers who commit traffic violations.  Under the new penalty system, a certain number of points are allotted to drivers.  Every time a driver violates a traffic regulation, he/she will lose points.  Loss of all the points will result in suspension of the driver’s license for a given period of time.  In order for the driver to re-obtain the license, he or she must enroll in a driving school.  (Egypt Approves First Major Draft Traffic Law in 40 Years, EGYPT STREETS (Oct. 19, 2017).)

The new penalty system provides for the deduction of the following numbers of points, from the total of 50 points granted each driver, for various driving offenses, including:

  1. the deduction of one point for not maintaining a safe distance between the driver’s car and the car in front;
  2. deduction of three points for holding an expired driving license, exceeding a 30 km/h speed limit, parking the car on the roadside at night, or deliberately parking a trailer or a public transport vehicle in a populated area;
  3. temporary suspension of the driver’s license and the deduction of four points for exceeding a 50 km/h speed limit, teaching driving courses on the road without permission, or refusing to show one’s driver’s license to a police officer upon request; and
  4. suspension of the driver’s license and the deduction of five points for driving in the wrong direction or under the influence, or for violating public morals by committing an act of public indecency while driving.  (Mona Ahamed, The Egyptian Government Passes Points-Based Traffic Law for Safer Roads, EGYPT TODAY (Oct. 22, 2017).)

Other Changes

In addition to the newly created points system, the amendment increases fines for traffic violations.  For instance, if a driver violates the law by driving above the speed limit, he/she will receive a fine of up to 500 Egyptian pounds (about US$28) in addition to losing from two to five points.  (Government Passes New Traffic Law, EGYPT TODAY (Oct 18, 2017).)

The amendment also introduces a ban on transport vehicles manufactured more than five years ago and on passenger vehicles manufactured more than 20 years ago.  (Egypt’s Cabinet Drafts First Major Reforms to Traffic Laws in 44 Years, AHRAM ONLINE (Oct. 18, 2017).)

Finally, the amendment requires individuals to take a drug test in order to obtain a driver’s license.  If the driver fails the test, she/he will be permanently barred from obtaining a driver’s license.  (Government Passes New Traffic Law, supra.)

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Netherlands: Referendum to Be Held on Surveillance Law

(Nov. 17, 2017) On November 1, 2017, the Electoral Council (Kiesraad) of the Netherlands publicly announced that, based on the more than 384,000 valid signatures received requesting it, a referendum on the Act on Intelligence and Security Services will be held within six months. (Press Release, Referendum over Wiv gaat door [Referendum on Wiv Coming Along], Kiesraad website (Nov. 1, 2017); Kenneth Hall, Netherlands to Hold Referendum on Surveillance Law, PAPER CHASE (Nov. 1, 2017).) Reportedly, “the vote is likely to coincide with municipal elections next year on March 21.” (Hall, supra.)

The Consultative Referendum Act sets a threshold of 300,000 signatures as necessary for holding a public vote.  (Wet van 30 september 2014, houdende regels inzake het raadgevend referendum (Wet raadgevend referendum) [Act of 30 September 2014, Concerning Rules for the Consultative Referendum (Consultative Referendum Act] (as last amended effective Apr. 1, 2017), art. 2, OVERHEID.NL.)  Since the Consultative Referendum Act came into force in 2015, it has become possible for almost all parliamentary laws and approved treaties to be put to a referendum. (Referendum over Wiv gaat door, supra.)  According to the Electoral Council, this is the second time that both the introductory phase (with at least 10,000 valid requests) and the final phase (with at least 300,000 valid requests) for holding a referendum has been reached.  The first time was the referendum on a partnership agreement with Ukraine.  (Id.) The outcome of a referendum is only an advisory verdict for rejection of a law, however, if the majority votes in favor of rejection with at least 30% of the total number of eligible voters taking part. (Consultative Referendum Act, art. 3.)

The Dutch Senate adopted the new Act on Intelligence and Security Services (Wet op de inlichtingen- en veiligheidsdiensten, Wiv), in 172 articles, on July 26, 2017, “after years of debate and criticism from both the country’s constitutional courts and online privacy advocates.” (Bart Meijer, Dutch Pass ‘Tapping’ Law, Intelligence Agencies May Gather Data en Masse, REUTERS (July 11, 2017); Wet van 26 juli 2017, houdende regels met betrekking tot de inlichtingen- en veiligheidsdiensten alsmede wijziging van enkele wetten (Wet op de inlichtingen- en veiligheidsdiensten 2017) [Act of 26 July 2017, Containing Rules on Intelligence and Security Services and Amendment of Some Other Laws (Intelligence and Security Services Act 2017)], STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [GOVERNMENT GAZETTE OF THE KINGDOM OF THE NETHERLANDS] (STB.) No. 317 (Aug. 17, 2017).)

The new Act is intended to replace the 2002 Act on Information and Security Services Act, laying down new rules on: “the duties and powers of intelligence and security services in the field of national security, the coordination of the performance of these services, the processing of data by these services, national and international cooperation in these services, [and] the exercise of supervision and treatment of complaints and confidentiality, … .” (Id. Preamble.)  Certain portions of the new Act, including articles 1, 32 paragraph 1, 33, 34, 35, 97 paragraphs 1 and 2, 98, 99, 100, 101, 103, 104, 105, 106, and 170, entered into force on September 1, 2017.  (Besluit van 19 augustus 2017 tot vaststelling van het tijdstip van inwerkingtreding van enkele onderdelen van de Wet op de inlichtingen- en veiligheidsdiensten 2017 [Decision of 19 August 2017 Determining the Date of Entry into Force of Some Parts of the Intelligence and Security Services Act 2017], STB. No. 318 (Aug. 25, 2017).)

Although the 2017 Act was passed “with broad support,” the rights group Bits of Freedom reportedly cautioned that “the Netherlands’ military and civil intelligence agencies will now have the opportunity to tap large quantities of internet data traffic, without needing to give clear reasons and with limited oversight” and expressed opposition to the Act’s “three-year term for storage of data that agencies deem relevant, and the possibility for them [the agencies] to exchange information they cull with foreign counterparts.” (Meijer, supra.)  Government officials contend, however, that the augmented powers “are needed to counter threats to national security in the modern era, and their use can be tested by an oversight panel.”  (Id.)

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France: Administrative Courts Issue Differing Decisions on Legality of Publicly-Financed Nativity Scenes

(Nov. 16, 2017) On October 5 and 6, 2017, two French administrative courts reached different conclusions in separate cases concerning the legality of government-sponsored Christmas nativity scenes.

Background: 2016 Council of State Decisions on Government-Sponsored Nativity Scenes

The two 2017 decisions come on the heels of a pair of 2016 decisions by the Conseil d’Etat (Council of State), which is France’s highest court for administrative cases. In the two decisions rendered on November 9, 2016, the Conseil d’Etat discussed the conditions under which a government body may install or sponsor a Christmas nativity scene without violating France’s constitutional principles of secularism and separation of church and state.  (CE, 9 novembre 2016, Fédération départementale des libres penseurs de Seine-et-Marne [Departmental Federation of Free Thinkers of Seine-et-Marne, CE, Nov. 9, 2016] No. 395122, Conseil d’Etat website; CE, 9 novembre 2016, Fédération de la libre pensée de Vendée [Free Thought Federation of Vendée, CE, Nov. 9, 2016] No. 395223.)

The Conseil d’Etat noted, “Nativity scenes have a variety of meanings: they have a religious meaning but are also a decorative element during the end of the year holidays. Given this plurality of significations, the Conseil d’Etat rules that the display of Nativity scenes by a public authority in a public space is lawful, only if it has a cultural, artistic or festive purpose, but not if it expresses  a public recognition or a preference for a religion.”  (Press Release, Display of Nativity Scenes by Public Authorities, CONSEIL D’ETAT [COUNCIL OF STATE] (Nov. 10, 2016).) Therefore, according to the Conseil d’Etat, a nativity scene must fulfill a “cultural, artistic or festive purpose” rather than demonstrating “a public recognition or preference for a given religion,” and “the display needs to be contextualized, taking into account the particular circumstances in which it is done, the existence or absence of local traditions and the location of the display.”  (Id.)

Nantes and Lyon Decisions in Light of Conseil d’Etat Decisions

The decision of the Administrative Court of Appeals of Nantes was directly related to the Conseil d’Etat’s Fédération de la libre pensée de Vendée decision, in that it was about the very same case, which the Conseil d’Etat had remanded to the Administrative Court of Appeals.  (CAA de Nantes, supra).  In its Decision of that case, the Nantes Court found that the nativity scene displayed by the Vendée General Council did not have any ceremonial elements of a nature to constitute religious proselytism, but rather was a temporary display of a cultural and festive nature.  As such, the nativity scene could legally be displayed by the General Council. (Id.)

By contrast, the Administrative Court of Lyon judged that the nativity scene displayed by the Auvergne-Rhône-Alpes regional authorities was illegal. (Fédération de la libre pensée et d’action sociale du Rhône, supra; Ligue française pour la défense des droits de l’homme et du citoyen, supra.)  The Lyon Court found that the scene, which the regional President had described as a “symbol of our Christian roots,” did not display any element that would mark it as being of a primarily cultural, artistic, or festive nature, and therefore it represented a violation of the French principles of secularism and separation of church and state. (Fédération de la libre pensée et d’action sociale du Rhône, supra; Ligue française pour la défense des droits de l’homme et du citoyen, supra.)

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Austria/European Court of Human Rights: No Discrimination If Heterosexual Couple Is Denied Access to Registered Partnership

(Nov. 16, 2017) On October 26, 2017, the European Court of Human Rights (ECtHR) held in a five to two decision that there is no violation of article 14 (prohibition of discrimination) in conjunction with article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) when registered partnerships  are exclusively reserved for same-sex couples. In the Court’s opinion, the ability of a heterosexual couple to enter into a marriage fulfills the couple’s need for legal recognition of the relationship, in particular because the Court found no substantial differences between the two legal institutions of marriage and legal partnership in Austria. The majority held that the applicants, as a different-sex couple, were not in a comparable position to a same-sex couple with respect to the need for legal recognition of their relationship. (Ratzenböck and Seydl v. Austria, Application No. 28475/12, HUDOC; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.)

Facts of the Case

The applicants are Austrian nationals and have been in a stable heterosexual relationship for many years. (Ratzenböck and Seydl v. Austria, supra, ¶ 5.) In February 2010, they submitted an application to enter into a registered partnership under the Registered Partnership Act. (Id. ¶ 6.) The request was denied on the ground that the Registered Partnership Act provides that only two people of the same sex may enter into a registered partnership. (Id.; Bundesgesetz über die eingetragene Partnerschaft (Eingetragene Partnerschaft-Gesetz – EPG) [Federal Act on the Registered Partnership (Registered Partnership Act – RPA)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 135/2009, § 2, Rechtsinformationssystem (RIS).)

The applicants appealed, alleging a violation of their rights to equal treatment and non-discrimination on the grounds of gender and sexual orientation as guaranteed by the ECHR. The ECHR has constitutional law status in Austria. The Austrian appeals court dismissed the case, holding that because the ECtHR had found in Schalk and Kopf v. Austria that the Council of Europe Member States are allowed to restrict access to marriage to different-sex couples, it would be unreasonable to not allow the reverse situation, i.e., to limit access to registered partnerships to homosexual couples. (Ratzenböck and Seydl v. Austria, supra, ¶ 8; Schalk and Kopf v. Austria, Application No. 30141/04, HUDOC.)

The applicants therefore lodged complaints with the Federal Administrative Court as well as the Constitutional Court claiming that a registered partnership was more modern and “lighter” than a marriage and therefore more suitable for their purposes. As an example, the couple cited different statutory time limits for a divorce versus dissolution of a registered partnership and legal obligations conferred upon the partners, among other points. (Ratzenböck and Seydl v. Austria, supra, ¶ 9.) Both courts dismissed the complaints, agreeing with the arguments of the appeals court.  (Id. at ¶¶ 10 & 11.) The applicants filed an application with the ECtHR on May 11, 2012.  (Id. at ¶ 1.)

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