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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: Regulation on Sexual Violence Against Children Issued

(May 27, 2016) On May 25, 2016, Indonesia’s President Joko Widodo issued a regulation in lieu of law (called a perppu in Indonesian) on sexual violence against children; the plan to issue the regulation had been announced about two weeks earlier. (Ayomi Amindoni, Govt Issues Perppu on Sexual Violence Against Children, JAKARTA POST (May 25, 2016); Constance Johnson, Indonesia: Harsher Punishment for Sex Crimes Considered, GLOBAL LEGAL MONITOR (May 16, 2016).)

The new regulation, Perppu No.1/2016, amends the 2002 Child Protection Law. (Amindoni, supra; Undang-Undang Republik Indonesia Nomor 23 Tahun 2002 Tentang Perlindungan Anak, House of Representatives website; Indonesia: Law of the Republic of Indonesia Number 23 of 2002 on Child Protection (Oct. 22, 2002), available at REFWORLD (unofficial translation).) The Law was previously amended not that long ago, in 2014. (Undang-Undang Republik Indonesia Nomor 35 Tahun 2014 Tentang Perubahan Atas Undang-Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak (Oct. 17, 2014), available at NATLEX; for a description of the amendments in English, see Indonesia: Law No. 35 of 2014 Amending Law on Child Protection (No. 23/2002), NATLEX (last visited May 26, 2016).)

As had been announced in the plan, the new regulation sets the maximum sentence upon conviction for sexual violence against children at 20 years of imprisonment, plus, on a case by case basis, the convict may be subject to chemical castration and/or implantation of microchips that track his location. The names of individuals convicted of sexual abuse will be made public. Widodo indicated that he hoped the increased punishment would “provide room for judges to hand down tougher sentences with deterrent effects to reduce sex crimes, especially against children.” (Amindoni, supra.)

Indonesia’s legislature is still planning to consider a broader law on sexual violence, according to Totok Daryanto, a member of the House of Representatives from Yogyakarta. Presumably that new legislation would cover adult as well as child victims. (Erika Anindita Dewi, New Perppu Will Not Overlap with Sexual Violence Bill: Lawmaker, JAKARTA POST (May 25, 2016).) Daryanto added that the draft law is expected to be discussed in committee during the current legislative session, which will run until July 28. (Id.)

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Kenya: Law on Registration of Out-of-Wedlock Children Ruled Unconstitutional

(May 27, 2016) On May 26, 2016, the Kenyan High Court found unconstitutional a provision in the Birth and Death Registration Act banning the inclusion in an out-of-wedlock child’s birth certificate of the name of the child’s putative father without his consent.  (Kids Born Out of Wedlock to Have Father’s Name in Birth Certificate – Court, CAPITAL NEWS (May 26, 2016).)  The provision in question states:

No person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom.  (Birth and Death Registration Act of 1928, § 12, Cap. 149 (rev. ed., 2014).)

The Attorney-General, who represented the state in the matter, had argued that the provision was aimed at protecting men from “unscrupulous women.”  (Maureen Kakah, Court Rules for Inclusion of Father’s Name on Birth Records of Children Born Out of Wedlock, DAILY NATION (May 26, 2016).)

The Court disagreed.  It noted that every child has the right to have the name of his or her father added to the birth certificate, regardless of the marital status of the parents.  (Malauda, Breaking: Children Born Out of Wedlock to Have Father’s Name on Birth Certificate as a Right, KENYA LIVE (May 26, 2016).)  The Court held that the above-cited provision of the Birth and Death Registration Act, which disallows such a right, is a violation of the equality and freedom from discrimination clause of the Kenyan Constitution.  (Id.; Constitution of Kenya, 2010, § 27, World Intellectual Property Organization (WIPO) website.)

The Attorney-General has 45 days to make the necessary changes to implement the ruling.  (Malauda, supra.)

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Vanuatu: Amendments to Reserve Seats in Parliament for Women to Be Introduced

(May 27, 2016) On May 20, 2016, the Vanuatu Minister of Justice, Ronald Warsal, stated in a radio interview that the government would introduce a bill that would reserve a certain number of seats for women in the Parliament.  (Michael Walsh, Vanuatu Paves Way for Women’s Seats in Parliament, ABC NEWS (May 20, 2016).)  The bill would seek to amend the Vanuatu Constitution.  In order to take effect, such an amendment must be “supported by the votes of no less than two-thirds of all the members of Parliament at a special sitting of Parliament at which three-quarters of the members are present.”  (Constitution of the Republic of Vanuatu, s 85, Pacific Islands Legal Information Institute website.)

The announcement follows a national election in January of this year in which none of the nine women who stood as candidates were elected.  The women were among 261 candidates contesting for 52 seats.  (Tess Newton Cain, Vanuatu’s General Election – Some Preliminary Thoughts, DEVPOLICY BLOG (Jan. 25, 2016).)  Warsal noted, “[i]t has been over 10 years since we have had a woman in parliament,” and ”[w]omen have tried over the years [to win office]. In the last election, some women contested for political parties and some stood as independents … but it’s quite difficult.”  (Michael Walsh, Vanuatu to Reserve Seats in Parliament for Women, ABC NEWS (May 21, 2016).)

Warsal  said that the government had not yet determined how many seats would be reserved for women and that he hopes that the details of the bill will be finalized before the Parliament next sits, on June 10, 2016.  (Id.)  Other questions are whether the reserved seats will be in addition to the current 52 seats and whether women will share existing constituencies.  (Vanuatu Plans Reserved Seats for Women in Parliament, RADIO NZ (May 21, 2016); Vanuatu Could Get Reserved Seats for Women in Parliament, RADIO NZ (May 23, 2016).)

Female Parliamentary Representation in the Region

The Pacific region has the lowest proportion of female members of parliament in the world.  (Women in National Parliaments, INTER-PARLIAMENTARY UNION (IPU) (as of Apr. 1, 2016).)  In May 2015, the overall proportion of women in lower houses in the region was 5.7% (excluding Australia and New Zealand).  (Leadership and Decision Making, PACIFIC WOMEN (last visited May 27, 2016).)  Last year, a proposal to introduce a quota for women was presented to the Papua New Guinea Parliament but was not passed. (PNG Considers Female Political Candidates Measure, RADIO NZ (Apr. 22, 2015); Mixed Reaction to PNG Bill on Increasing Female Leaders, RADIO NZ (Apr. 29, 2015).)  An earlier bill was also defeated in 2010.  (See Kelly Buchanan, Papua New Guinea: Bill Seeks to Reserve Seats in Parliament for Women, GLOBAL LEGAL MONITOR (May 25, 2010).)

In June 2013, the Samoan Parliament amended the Constitution to reserve five seats for women in the 49-seat Parliament.  (Constitution of the Independent State of Samoa, s 44, Pacific Islands Legal Information Institute website, amended by Constitution Amendment Act 2013, Parliament of Samoa website.) The first election in which the quota applied was held in March 2016, with a record number of women standing as candidates.  (Mitiana Arbon, Record Number of Female Candidates in the 2016 Samoan General Election, THE MONSOON PROJECT (Mar. 3, 2016).)  Three incumbent female members and one new member won their constituencies outright, and a fifth woman, who came second in her constituency, entered Parliament based on the quota.  The additional member means the total number of seats in the Parliament was increased to 50.  (Samoa: Fono (Legislative Assembly) – Last Elections, IPU (last visited May 27, 2016).)

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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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