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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.

Pakistan: Bills Introduced on Increased Representation of Women in the Supreme Court

(May 26, 2016) On May 16, 2016, a member of the Pakistan People’s Party (PPP) and former law minister, Babar Awan, introduced a private member’s bill in the Senate, the upper house of Pakistan’s federal legislature, that would amend the Supreme Court (Number of Judges) Act, 1997, to provide greater “representation of women” in Pakistan’s Supreme Court.  (Bill Seeking Women Representation in Top Judiciary Introduced, DAWN (May 17, 2016).)  Section 2 of the Supreme Court (Number of Judges) Act, 1997 currently reads, “[t]he number of Judges of the Supreme Courts [sic] of Pakistan other than the Chief Justice shall be sixteen.”  (Supreme Court (Number of Judges) Act, 1997, § 2, GAZETTE OF PAKISTAN (Nov. 6, 1997) available at National Assembly of Pakistan website.)

The amending legislation would add the following proviso to the end of section 2:

… Provided that there shall be at least one-third female Judges, one each from four provinces, Islamabad Capital Territory (ICT) and Federally Administrated Tribal Areas (FATA). (Supreme Court (Number of Judges) (Amendment) Act, 2016, § 2, Senate of Pakistan website.)

Senate Chairman Mian Raza Rabbani placed the bill before the Senate for a vote and after it passed referred the bill to the relevant committee.  (Bill Seeking Women Representation in Top Judiciary Introduced, supra.)

A similar bill, introduced in mid-April in the National Assembly (the lower house of Pakistan’s legislature), would amend section 2 of the 1997 Act to read: “[p]rovided that one fourth of the total number of judges of the Supreme Court shall be women.”  (Supreme Court (Number of Judges) (Amendment) Act, 2016, § 2, National Assembly of Pakistan website.)  However, the bill appears to have been rejected by the National Assembly Standing Committee on Law and Justice.  (Naveed Butt, Public Prosecutors: NA Passes Bill Banning Private Practice, BUSINESS RECORDER (May 3, 2016).)

Views on the Bills

The PPP senator who moved the Senate bill is reported to have said that “women had been playing their role in education, health, politics, armed forces and even in the lower judiciary, but he regretted that in the 69-year history of the country, not a single woman had become a judge of the Supreme Court.”  (Bill Seeking Women Representation in Top Judiciary Introduced, supra.)

However, the Senate bill is opposed by the current Law Minister, Zahid Hamid, who was reported in the news as saying, “[t]he law does not bar them (women).  If a woman wants to become a judge, why not … it is crystal clear that it is lack of interest on the part of women, so we don’t feel the need for this bill.”  (Passes Bill to Enhance Number of Women Judges in SC, News INTERNATIONAL (May 17, 2016).)  The Law Minister has also expressed opposition to the National Assembly legislation.  He reportedly stated, “the procedure for the appointment of an SC judge was laid out exhaustively in the Constitution.  …  if a woman judge met the criteria, she would definitely be appointed to the apex court.”  (New Bill Seeks Women Judges in Supreme Court, DAWN (updated Apr. 13, 2016).)

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Turkey: Constitutional Amendment Adopted to Allow Certain Legislators to Be Stripped of Immunity

(May 25, 2016) On May 20, 2016, the Grand National Assembly (parliament, GNA) of Turkey voted in favor of a draft constitutional amendment, sponsored by the 316-seat ruling Justice and Development Party (AKP, Adalet ve Kalkinma Partisi), that would strip almost 140 Members of Parliament of their privilege of immunity from prosecution. (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, HÜRRIYET DAILY NEWS (May 20, 2016).) The temporary clause would remove immunity from deputies who are currently facing investigations on criminal charges, if AKP founder President Recep Tayyip Erdogan signs the legislation into law as expected.  (Turkey Passes Bill to Strip Politicians of Immunity, AL JAZEERA (May 20, 2016).)

The proposed amendment adds a provisional article 20 to the Constitution of the Republic of Turkey. Paragraph 1 of the amending article gives certain authorities, such as the prosecutor general and the courts, permission to conduct an inquiry, investigation, or prosecution based on files of MPs that have been transferred to them; with regard to these files, the first sentence of the second paragraph of article 83 of the Constitution will not apply.  Paragraph 2 of provisional article 20 states that the (amending) act will enter into force on the date of publication if it is not submitted to a referendum.  (Türkiye Cumhuriyeti Anayasasinda Degisiklik Yapilmasina dair Kanun Teklifi [Law Proposal on Amending the Constitution of the Republic of Turkey] (Apr. 14, 2016), No. 2/1028, GNA website (click on Kanun Teklifinin Metni [Text of Proposed Law] to view the proposed provisions).)

Relevant Provisions of the Constitution

The first sentence of paragraph 2 of article 83 of the Constitution, on parliamentary immunity, states: “[a] deputy who is alleged to have committed an offence before or after election shall not be detained, interrogated, arrested or tried unless the Assembly decides otherwise.” (Constitution of the Republic of Turkey (Constitution) (adopted Oct. 18, 1982, as last amended Mar. 29, 2011), art. 83 ¶ 2, GNA website; Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey (adopted Oct. 18, 1982, as last amended Mar. 29, 2011), GNA website.) However, the article further states, this does not apply in cases where an MP is caught in flagrante delicto that merit harsh punishment or where an abuse of basic rights and freedoms (prohibited under the Constitution’s article 14) is involved, provided that an investigation has been initiated before the election.  In such situations, the competent authority must notify the Assembly of the case “immediately and directly.”  (Constitution, supra.)  Execution of a criminal sentence imposed on an MP either before or after election to office will “be suspended until he ceases to be a member; the statute of limitations does not apply during the term of membership.” (Id. art. 83 ¶ 3.)

Article 175 is on amending the Constitution. It stipulates that an amendment should be proposed in writing by at least one-third of the total number of MPs.  The legislation is to be debated twice in the Plenary of the GNA; a three-fifths majority of the total GNA membership, with the vote taken by secret ballot, is required for adoption of a constitutional amendment.   (Id. art. 175 ¶ 1.)  The President has the option of sending back an amendment law for reconsideration; if it is readopted by a two-thirds majority of all MPs, the President may submit the law to referendum (Id. art. 175 ¶ 3).  If the amendment law is adopted by a three-fifths or less than two-thirds majority and is not sent back to the GNA by the President for reconsideration, it will be published in the Official Gazette and submitted to referendum.  (Id. art. 175 ¶ 4.)

The President may also call a referendum if the amendment law was adopted directly by a two-thirds majority of the total GNA membership or was adopted after having been sent back by the President. An amendment law that is not submitted to referendum will be published in the Official Gazette.  (Id. art. 175 ¶ 5.)

Vote on Current Amendment

In the case of the parliamentary immunity amendment law, it was reported that 376 deputies approved the proposal, 140 were against, 5 abstained, 7 votes were declared invalid, and three were “empty” (531 deputies attended the final round). Thus, as the number of seats in the GNA is 550, 330 members constitute a three-fifths majority, and the 367-vote threshold needed in order for a referendum not to be held was surpassed.  (Turkish Parliament Directly Approves Lifting MP Immunities, No Referendum Needed, DAILY SABAH (May 20, 2016).)

Background

As established by article 83 of the Constitution, Turkish MPs have heretofore been immune from prosecution while in office. However, the police have the power to file “dossiers” against politicians deemed to have committed offenses, “which can lead to a legal process once they cease to be sitting members of parliament.”  (After Brawl, Turkish Parliament Committee Votes to Lift Lawmakers’ Immunity, REUTERS (May 3, 2016).)

At present, according to Al Jazeera, “51 opposition Republican People’s Party (CHP [Cumhuriyet Halk Partisi]) members of parliament, 50 HDP [People’s Democratic Party, Halklarin Demokratik Partisi] MPs, 27 AKP MPs, nine Nationalist Movement Party (MHP [Milliyetci Hareket Partisi]) MPs and one independent are facing investigations.”  (Turkey Passes Bill to Strip Politicians of Immunity, supra.)  In addition, three party leaders, one each from the CHP, the HDP, and the MHP, have dossiers against them pending to be sent to prosecutors, which put them at risk of “being banned from politics in the event they are sentenced to more than one year in prison.”  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Erdogan had called for HDP members to be prosecuted; he has charged that they are “an extension of the outlawed militant group, the Kurdistan Workers Party (PKK),” an accusation rejected by the HDP. (After Brawl, Turkish Parliament Committee Votes to Lift Lawmakers’ Immunity, supra.)

In the view of the HDP, the government is using the law as a pretext to “empty parliament of pro-Kurdish voices.” (Turkey Passes Bill to Strip Politicians of Immunity, supra.)  HDP co-leader Selahattin Demirtas has asserted that no HDP MP would go voluntarily to give testimony to prosecutors, and the HDP has also stated that it would bring the issue before the Constitutional Court.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Possible Aftermath

With the passage of the amendment, upon the President’s approval of the legislation and its publication in the official gazette, a legal process will commence for 139 legislators “with 682 different dossiers,” and the total number of dossiers will rise to 787 when another 105 cases involving the lifting of legislative immunity are referred to the GNA.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra; see also Rules of Procedure of the Grand National Assembly of Turkey, arts. 131-134 (on legislative immunity), GNA website (last visited May 25, 2016); Türkiye Büyük Millet Meclisi Ictüzügü [Rules of Procedure of the Grand National Assembly of Turkey] (Mar. 5, 1973, as amended), GNA website.)  Turkey’s Ministry of Justice was quoted as stating that over 200 of the dossiers involve terrorism-related offenses.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Reportedly, according to legal and parliamentary experts, in a process expected to take 15 days, the dossiers pending in the GNA would first be sent to prosecutors through the Office of the Prime Minister and the Ministry of Justice. Then about 200 prosecutors will be assigned to examine the dossiers and classify them based on the nature of the offense.  (Id.)  The lawmakers involved will be asked to give testimony, and prosecutors will determine whether to open a case against a lawmaker after having evaluated the defense made by him or her and the related evidence.  The process will be abandoned if the prosecutor finds that it is not necessary to open a case, but if the prosecutor finds that a case is warranted he or she can seek an arrest warrant from the court based on the charges lodged against the legislator.  (Id.; see also Criminal Procedure Code of the Republic of Turkey (2009), LEGISLATIONLINE,  arts. 157-172 (2009); Ceza Muhakemesi Kanunu (Dec. 4, 2004, as last amended effective July 7, 2013), MEVZUAT.)

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Denmark: Green Card Law Amended

(May 25, 2016) Denmark has reversed a proposed change to the law that covers the country’s “Green Card Scheme” and will now allow current holders of green cards to apply to have their status extended until June 10, 2018. The revision will come into force on June 10, 2016, and will permit current holders of green cards to apply to renew their status for two years. (Christian W.,  Green Card Law Amended Following Demonstration, CPH POST ONLINE (May 20, 2016).) The purpose of the introduction of the program was to attract foreign professionals to work in the country. (Denmark to Overhaul Green Card Scheme, THE LOCAL (June 27, 2014).) The green card program is included in the Aliens (Consolidated) Act. (Consolidation Act No. 785 (Aug. 10, 2009), art. 9a, DANISH LAW IN ENGLISH  (unofficial translation).)

Green Card Scheme

Denmark’s green card program allows immigrants to obtain residence permits in order to look for and accept work in the country. Once a green card is issued, the individual does not need a separate work permit, and the recipient can work for a salary or do unpaid labor, but cannot run his or her own business in Denmark. The Danish Immigration Service reminds applicants that receiving the card is not a promise of employment; the cardholders must look for jobs. (The Greencard Scheme, NEW TO DENMARK.DK (last updated Apr. 5, 2016).)

Each applicant for a green card is evaluated based on a point system, with applicants needing 100 points to qualify for the card. Points are awarded for educational level, language abilities, and adaptability. Applicants must also show that they can be self-supporting for at least one year, defined as earning at least DKK50,000 (about US$7,540). Those who do not earn at least that amount may lose their residence permits. Residents must also have health insurance for themselves and any family members who reside in Denmark with them, until they are covered by the Danish National Health Insurance. (Id.)

Background

Denmark’s Parliament has for several years been considering various revisions to the green card program due to the problem of professionals coming into the country but not being able to find work in their fields and ending up in menial jobs. According to a study done by the University of Copenhagen, almost 80% of highly educated green card holders either hold unskilled jobs, “work under the table,” or are unemployed. (Denmark to Overhaul Green Card Scheme, supra.)

Recently a number of protests against changing the program have taken place, including a 700-person demonstration in City Hall Square in Copenhagen and a campaign by a number of human rights and immigrant support groups. Aage Kramp, the head of a law firm representing a green card advocacy group, noted that the “various green card and cultural organisations have shown a new ability to work together and organize activities across professional, cultural and religious borders.” Kramp added that the “demonstration became a victory celebration … .” (Christian W., supra.)

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Germany: Law Restricting Airbnb and Other Vacation Rentals Takes Effect in Berlin

(May 24, 2016) On May 1, 2016, a law prohibiting the illegal repurposing of residential housing without a permit took effect in Berlin, following the end of a two-year transitional period. The law aims to combat the growing housing shortage in Berlin.  “Illegal repurposing of residential housing” is defined as use of the entire home as a vacation rental, use for commercial or other professional purposes, structural modification or use in a way that renders it unsuitable as a private dwelling, leaving the dwelling vacant for more than six months, or demolishing the dwelling.  (Gesetz über das Verbot der Zweckentfremdung von Wohnraum [Zweckentfremdungsverbot-Gesetz] [ZwVbG] [Act on the Prohibition of Illegal Repurposing of Housing], Nov. 29, 2013, Gesetz- und Verordnungsblatt für Berlin [BLN GVBl.] [Berlin Gazette of Laws and Ordinances] 2013 at 626, Berliner Vorschrifteninformationssystem; Verordnung über das Verbot der Zweckentfremdung von Wohnraum [Zweckentfremdungsverbot-Verordnung] [ZwVbVO] [Regulation on the Prohibition of Illegal Repurposing of Housing], Mar. 4, 2014, BLN GVBl. 2014 at 73, Berliner Vorschrifteninformationssystem.)

The agency in charge has discretion to grant a permit to allow the repurposing in special circumstances. Home owners without a permit will incur a fine of up to €100,000 (about US$112,000).  In addition, Berlin encourages neighbors to report illegally repurposed apartments on its website.  (Act on the Prohibition of Illegal Repurposing of Housing; Regulation on the Prohibition of Illegal Repurposing of Housing.)

Overview

The Act does not ban all vacation rentals or other ways of repurposing residential housing. Renting out a single room without a permit remains possible, if the owner or tenant still occupies 50% or more of the living space, including the kitchen and bath.  (Act on the Prohibition of Illegal Repurposing of Housing § 2, ¶2, no. 5.)  The burden of proof is on the owner or tenant.  (Id. § 2, ¶ 3.)

Special circumstances that justify the issuance of a permit for repurposing of housing include legitimate private interests that outweigh the public interest of combatting the housing shortage or if a suitable replacement property is provided. The city can charge a fee for the issuance of the permit to compensate for the loss of housing.  (Id. § 3, ¶ 1.)  A legitimate private interest exists if the refusal of a permit would jeopardize the economic existence of the owner/tenant or if the property is not worthy of preservation.  (Id. § 3, ¶ 3.)

Related Developments

The online vacation rental portal Airbnb has petitioned the Berlin government to exempt the company from the law. The Parliamentary State Secretary for Construction and Housing in Berlin, Engelbert Lütke Daldrup, refused the request, saying that the prohibition is needed to prevent an exacerbation of the housing shortage in the city.  He added that he expects Airbnb to act in accordance with the law and to remind its users that even short-term rentals require a permit and that there are high fines for a violation of the law.  (Press Release, Senatsverwaltung für Stadtentwicklung und Umwelt [Senate Administration for Urban Development and the Environment], Zweckentfremdungsverbot: Keine Ausnahme für Ferienwohnungsportal Airbnb [Prohibition on Illegal Repurposing: No Exception for Vacation Rental Portal Airbnb] (Mar. 24, 2016), BERLIN.DE.)

As a result of the law’s adoption, after the two-year transitional period ended, Airbnb listings in Berlin dropped by 40% in one month. (Matt Payton, Berlin Stops Airbnb Renting Apartments to Tourists to Protect Affordable Housing, INDEPENDENT (May 1, 2016).)

Wimdu, a competitor of Airbnb, together with the company ApartmentAllianz, has filed a lawsuit against Berlin in the Administrative Court of Berlin, claiming that the law violates article 12 (freedom of occupation) and article 14 (property) of the German Basic Law, the country’s constitution. A decision is expected in the summer.  (Press Release, Wimdu, Wimdu hat gegen Verbot von Ferienwohnungen Klage gegen Stadt Berlin eingereicht – rasche Entscheidung wird erhofft [Wimdu Has Filed a Lawsuit Against the City of Berlin Against the Prohibition to Use Homes as Vacation Rentals – We Hope for a Swift Decision] (Apr. 14, 2016), WIMDU.DE; Basic Law for the Federal Republic of Germany (May 23, 1949, as amended through July 11, 2012), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

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Nepal: Immunization Law Adopted

(May 24, 2016) On January 26, 2016, Nepal’s President, Bidya Devi Bhandari, signed into law legislation on immunization. According to the Sabine Vaccine Institute, the new law is “a landmark piece of legislation that will make the country’s national immunization program more financially sustainable as new, costlier vaccines are introduced.”  (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding (Feb. 3, 2016), Sabin Vaccine Institute website; Bill to Provide Immunization Services, 2071, Constituent Assembly of Nepal website, (in Nepali) (click on PDF for first item on webpage, as last visited May 24, 2016).)

Passage of the law, which took five years, marks the first time in the country’s history that financial independence for the immunization program is attainable. At present, Nepal relies on Gavi, the Vaccine Alliance, to provide financial support for 60-70% of its vaccine purchases, but by 2022 Nepal is expected to attain middle-income status and therefore become ineligible for Gavi support for low-income countries. In the next few years, the country must “establish reliable, domestic financing for immunization.”  (Devendra Gnawali, The Making of Nepal’s Immunization Law, HEALTH AFFAIRS BLOG (Mar. 7, 2016).) Gavi describes itself as “an international organisation – a global Vaccine Alliance, bringing together public and private sectors with the shared goal of creating equal access to new and underused vaccines for children living in the world’s poorest countries.” (About Gavi, the Vaccine Alliance (last visited May 20, 2016).)

The immunization law provides for two domestic, potentially long-term financing methods for the country’s immunization program, one governmental, one private. In selecting the two methods, Nepal studied other countries’ approaches to the problem. Under the first method, the government is mandated to “allocate adequate funding for immunization to the National Immunization Fund,” whose monies will be collected by means of general taxation, with the amount determined by evidence presented to the Ministry of Finance “demonstrating how much money the immunization program needs to sustain current vaccine coverage and associated program operations, and purchase new vaccines.”  (Gnawali, supra.)  Thus far, NPR60 million (about US$550,000) has reportedly been allocated to the Fund; the private sector will manage it. (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding, supra.)

The second financing method set forth in the law, to supplement government funding, is through contributions from domestic private partners to a separate Sustainable Immunization Support Fund, which was created by the Rotary Club of Nepal. However, it has been pointed out, the new law does not address the need to give private partners an incentive, such as a tax credit or exemption, to contribute to the Fund, a problem for which a separate legislative solution is being contemplated.  (Gnawali, supra.)

To ensure the proper allocation of funds, the law also provides for oversight of both funds. A newly established Parliamentary Caucus on the Sustainable Immunization Program will oversee the private fund, and there will also be parliamentary monitoring of the private management of the National Immunization Fund.  (Id.)

There are further steps to be taken, however. It was reported in early March that the government had less than three months to prepare the necessary implementing regulations for the law and to then find the means in addition to taxation to finance the National Immunization Fund.  In addition, the government has to justify to the Ministry of Finance the budget amounts requested.  (Id.)

Reactions to the Legislation

According to Hon. Ranju Kumari Jha, Chairperson of the Nepali Parliamentary Committee on Women, Children, Senior Citizen and Social Welfare, “[t]his legislation is an important milestone for Nepal in protecting children’s rights to getting quality immunization service; increasing country ownership; and sustaining the national immunization program by securing adequate funding.” (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding, supra.) Another commentator averred that the collective action carried out by Nepal’s Parliament, the Ministry of Health, and the Ministry of Finance to develop and pass the law is an experience “all other countries can learn from.”  (Gnawali, supra.)

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