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Zimbabwe: Constitutional Amendment Bill Gives President Unilateral Power to Appoint Top Judges

(Aug. 22, 2017) On July 25, 2017, the 270-member National Assembly, the lower house of Zimbabwe’s bicameral Parliament, passed a bill that among other measures seeks to amend the Constitution to accord the President unfettered power to unilaterally fill the highest judicial positions in the country: those of Chief Justice, Deputy Chief Justice, and Judge President of the High Court.  (Amendment Bill Passes – Zanu-PF Flexes Majority Muscle – President Set to Appoint Judges, HERALD (July 26, 2017).)  The proposal obtained the support of 182 members, which met the requirement that any constitutional amendment obtain the support of at least a two-thirds majority in both houses of Parliament before it can be sent to the President for signature.  (Id.; Constitution of Zimbabwe (2013), § 328(5), World Intellectual Property Organization website.)  The bill now heads to the 80-member Senate, where it will need a similar level of support.  (Constitution of Zimbabwe, § 328(5).)

Current Law

The Constitution mandates that the nomination and appointment process of judges be conducted in a public and transparent manner.  Under the current system, all judges are appointed by the President from a list of candidates provided by the Judicial Service Commission (JSC).  (Id. § 180.)  The appointments  to be made include, among others, the Chief Justice, who is the “head of the judiciary and … in charge of the Constitutional Court and the Supreme Court,” the Deputy Chief Justice, and the Judge President of the High Court, who is in charge of the High Court.  (Id. § 163.)  Whenever there is a vacancy, the JSC is constitutionally mandated to do the following in order to fill it:

(a) advertise the position;

(b) invite the President and the public to make nominations;

(c) conduct public interviews of prospective candidates;

(d) prepare a list of three qualified persons as nominees for the office; and

(e) submit the list to the President.  (Id. § 180.)

Upon receiving the list, the President “must appoint one of the nominees to the office concerned.”  (Id. ) If the President believes that none of the nominees on the list provided is suitable, he must ask the JSC to provide another list of three candidates for his consideration on the basis of which he must make a selection.  (Id.)

The organization that plays the primary role in the appointment process under the current system, the JSC, represents diverse interests.  Its members include the Chief Justice, who is the chair, the Deputy Chief Justice, the Judge President of the High Court, the Attorney-General, a representative of the Civil Service Commission, three members of the bar, and a representative of the country’s law schools.  (Id. § 189.)

Proposed Changes

If adopted in its current form, the proposed legislation would, among other changes, amend the Constitution to give the President unchecked authority to fill the seats of the three most senior judges in the country.  In making the appointments, while the President would be required to consult the JSC, he would not be required to accept any of the body’s recommendations.  (Constitution of Zimbabwe Amendment Act (No. 1) Bill, 2017, § 6, Parliament of Zimbabwe website.)  Similarly, while the President must inform the Senate if his decision is not consistent with the recommendation of the JSC, the Senate would not have the authority to block or change, or force him to change, his decision.  (Id.)  The proposed legislation makes it unequivocally clear that the President would enjoy absolute authority, stating:

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable:

Provided that, for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final.  (Id.)

The nomination and appointment process to fill all other judicial positions would remain the same.  (Id., Memorandum.)

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Qatar: Anti-Terror Legislation Amended

(Aug. 16, 2017) On July 20, 2017, the Amir of Qatar issued Decree No. 4 of 2017 to amend Law No. 11 of 2004 on combating terrorism. Decree No. 4 of 2017 covers the definition of acts of terrorism.  (Qatar Amir Issues Decree to Amend Provisions of Anti-Terror Law, AL ARABIYA (July 20, 2017).)

Specifically, article 1 of the newly enacted legislation modifies article 333 of Law No. 11 of 2004 on the definition of acts of terrorism. The new article stipulates, “[a]nyone other than those authorized by law who violates the inviolability of the private life of individuals without their consent shall be punished by imprisonment for a period not exceeding two years and by a fine not exceeding 10,000 riyals [about US$2,695].” Under article 333, acts of terrorism include the following:

  1. Destroying a special message or cable addressed to another individual;
  2. Electronically eavesdropping on a phone call or, wiretapping;
  3. Recording or transferring conversations held in a private place, by means of a device of any kind; and
  4. Capturing or transferring pictures or videos of an individual or individuals in a private place, by means of a device of any kind. (Law No. 4 of 2017, Amending Law No.11 of 2004, 4 AL JARIDAH AL-RASMYIAH (Mar. 3, 2017) (in Arabic).)

The recent modification of Law No. 11 of 2004 comes after the signing of a bilateral agreement between the Government of the State of Qatar and the Government of the United States to fight terrorist funding.  (Qatar Amir Issues Decree to Amend Provisions of Anti-Terror Law, supra.)  The agreement lays out a series of steps that each country will take in the coming months and years to interpret and disable terrorist financing and to intensify counter-terrorism activities. (U.S., Qatar Sign Agreement on Combating Terrorism Financing, REUTERS (July 10, 2017).)

Prepared by Abdullah Alkayat Alazemi, Law Library intern, under the supervision of George Sadek,  Legal Research Analyst.

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Afghanistan: Cyber Crime Code Signed into Law

(Aug. 16, 2017) On June 20, 2017, Afghanistan President Mohammad Ashraf Ghani signed into law the Cyber Crime Code, which forms part of the country’s new Penal Code. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry [President Signed the Law of Cybercrimes], PAJHWAK Pashto (June 20, 2017).)  The Penal Code is being drafted by the Law Enforcement and Academic-Legal Research Institute of the Ministry of Justice. (Copy of formal letter from the Institute to the Ministry of Communications and Information Technology [MCIT] (Jawza 24, 1396 [June 14, 2017], received by author from MCIT spokesperson Najeeb Nangial.)

There are 11 different codes and 63 miscellaneous provisions on crime that will be merged into the Penal Code. An advisor to the Ministry of Justice, Mohammad Ashraf Rasoli, says “the new Penal Code of Afghanistan addresses the needs of today’s social and economic environment of Afghanistan, and makes the penalty commensurate with the crime.” (Jazaee Kod Aw Da Afghanistan Par Jazaee Qanon EE Agheeza [The Penal Code for Cybercrimes and Its Impact on Afghanistan’s Penal Code], AZADI RADIO [RADIO LIBERTY] (Sawr 12, 1395 [May 1, 2016]); Tariq Ahmad, Afghanistan: Government Announces New Draft Penal Code, GLOBAL LEGAL MONITOR (July 1, 2016).)

Currently there are more than four million Internet users in Afghanistan, whose population is 34 million. (Afghanistan: Internet Usage, Broadband and Telecommunications Reports, INTERNET WORLD STATS  (last visited July 21, 2017).)  According to Motherboard, a website that reports on advances in information technology, “[t]he telecom sector has substantially grown over the last decade to become one of the largest revenue generating sectors in Afghanistan with annual average revenue of $139.6 million—accounting for more than 12 percent—of total government revenues.” (Ruchi Kumar, As Afghanistan Comes Online, It Grapples with Its First Cybersecurity Law, MOTHERBOARD (Jan. 7, 2017); Javid Hamdard, The State of Telecommunications and Internet in Afghanistan Six Years Later (2006-2012) (Mar. 2012), United States Agency for International Development (USAID).)

Features of the Cyber Crime Code

The hacking of webpages and online defaming of people, especially public figures, are common cyber crimes in Afghanistan and heretofore there has not been a law to regulate Internet use and prosecute cyber criminals. (Da Internete Jarmono Da Makhnewe Qanon Jorrige [A Law Is Enacted to Prevent Cyber-Crimes], SHAMSHAD TV Pashto (Hamal 20, 1396 [Apr. 9, 2017]).)

Section 12 of the Penal Code of Afghanistan comprises provisions on cybercrimes, along with crimes related to health and agriculture. Cyber crimes are defined as crimes that occur in cyberspace through the use of modern technology, information, and electronic communication.  (Letter on Reading the Draft Copy of the Cybercrime Code, Articles 363 and 855- 881, as Part of the New Penal Code of Afghanistan (Draft Cyber Crime Code) (June 21, 2017), art. 855 (author’s copy).)  Crimes of disrupting a computer network,  using of illegal means to access a computer system, programs, and computerized information,  changing or destroying a computer system or the password and security code of the system, or installing viruses in the system may incur a penalty ranging from a fine of AFG600 (about US$9) to short-term , long-term, and even life imprisonment.  (Id. arts. 856, 857, & 858.)  Short-term imprisonment is imprisonment for more than six months up to one year; medium-term imprisonment, one year up to five years; and long-term imprisonment, from five years up to 16 years.  (Penal Code (May 15, 2017), art. 166, Ministry of Justice website (in Pashto & Dari).)  The Penal Code also provides for “continued” imprisonment for a term of 16 years up to 20 years and life imprisonment for from 20 years up to 30 years. (Id.)

The Cyber Crime Code also includes as crimes, punishable with a fine ranging from AFG6,000 to AFG300,000 (about US$89-$4,431) or medium-term imprisonment, the following actions:

  • disclosing the password or security code of an information system (Draft Cyber Crime Code, art. 859);
  • preventing others from having access to an information system (id. art. 860);
  • creating, preparing, and using an information system to commit crimes (id. art. 861);
  • electronic counterfeiting (id. art. 862); and
  • electronic fraud (id. art. 863).

Theft of another person’s Internet service is punishable upon conviction by a fine of twice the amount of the cost of the stolen service.  (Id. art. 865).

Cyber terrorism (id. art. 866), cyber espionage and cyber warfare (id. art. 868), and cyber gambling (id. art. 875) are punishable by the penalties imposed in the other relevant chapters of the Penal Code now being drafted.

Cyber crimes involving personal offenses against individuals include misuse of another person’s identity for committing a crime is punishable with a sentence of medium-term imprisonment (id. art. 869); disclosure of another person’s personal or privacy-related information, punishable with imprisonment for a term of one to three years or a fine of from AFG60,000 to AFG180,000 AFG (id. art. 871); and blackmail, punishable with short-term imprisonment or a fine of AFG30,000 to AFG60,000 (id. art. 872).

For crimes against public morality and chastity, the punishment is a fine of from AFG5,000 to AFG20,000 (about US$74-$295) (id. art. 870), while using cyberspace to broadcast discriminatory remarks and to defame religion are both punishable with a fine of from AFG5,000 to AFG60,000 (id. arts. 873 & 874, respectively). One of the stiffest fines imposed in connection with offenses against social mores is that for disseminating child pornography: medium-term imprisonment of up to two years or a fine of from AFG60,000 toAFG120,000 (id. art. 877).

The new Code protects the online activities of Afghans in general, but has no special provisions to protect the rights of Afghan women, who for the most part cannot use their real names on social media for fear of incurring insulting messages and comments that might harm their own and their family’s reputation.

New Anti-Cyber Attack Unit

To protect official websites and social media pages from cyber attacks by “insurgents” and others, the Ministry of Communications and Information Technology (MCIT) is working on setting up a Cyber Emergency Response Team (CERT) based on consultation with its international counterparts, including U.S. government security agencies. To this end, the Ministry will build a forensics laboratory and provide support to Afghanistan’s Ministry of Information, the National Directorate of Security, and other security agencies. (Kumar, supra.)

Reactions

A former deputy minister of the MCIT, Aimal Marjan, says that, to better enforce the new cybercrime code, the government needs to recruit cyber police and prosecutors and judges who are well-versed in cybercrime law. He added that the government also needs to create a cyber lab equipped with high technology to enhance investigation of the crimes. In Marjan’s view, if the cybercrime code is properly enforced, the misuse of cyber technology, especially social media, would decrease. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry, supra.)

Political activist Naweed Afghan is of the view that the cyber crime law can better protect against harm caused to the national interest by the Internet, especially through the misuse of social media. He stated that the law would ban youths from access to “unethical and non-Islamic websites” and the government would thereby be able to prevent social harm.  (Per Internet the Control and Saar Qanon Somra Mohim Ganny? [How  Important Is the Law on Monitoring and Controlling Use of the Internet?], TATOBAY NEWS (Sawr 3, 1396) [Apr. 4, 2017]).) Rozi Mohammad, a civil society activist in Helmand province, asserts that the new provisions are a highly valuable  addition to the legislation of Afghanistan that frames the use of the Internet.  (Id.)

Prepared by Hijratullah Ekhtyar, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.

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Portugal: New Law Further Regulates Surrogate Pregnancy

(Aug. 14, 2017) On July 31, 2017, the Government of Portugal enacted Regulatory Decree No. 6 to further regulate surrogate pregnancy (gestação de substituição), which is governed by Law No. 32 of 2006.  (Decreto Regulamentar No. 6/2017, de 31 de Julho (Regulatory Decree No. 6), DIÁRIO DA REPÚBLICA ELETRÓNIO; Lei No. 32/2006, de 26 de Julho (Surrogacy Law), Procuradoria-Geral Distrital de Lisboa website.)

Surrogate Pregnancy Under the Surrogacy Law

The Surrogacy Law defines surrogate pregnancy as any situation in which a woman is prepared to bear a pregnancy on behalf of another person and to surrender the child after birth by renouncing maternal rights and duties. (Surrogacy Law, art. 8(1).) The Law also establishes that the business relationship of surrogate pregnancy is only possible in exceptional cases and on a gratuitous basis. The cases include the absence of a uterus, injury, or illness that absolutely and definitively prevents the pregnancy of the woman seeking a surrogate or other clinical situations that justify the surrogacy. (Id. art. 8(2).)

Surrogate pregnancy may only be authorized by means of a medically assisted procreation technique using the gametes of at least one of the respective beneficiaries, and in no case may the surrogate mother be the donor of any oocytes used in the procedure. (Id. art. 8(3).) The surrogate pregnancy must be previously authorized by the National Council for Medically Assisted Procreation (Conselho Nacional de Procriação Medicamente Assistida), which oversees the entire process. In addition, the surrogacy is always preceded by a hearing at the Physicians’ Board (Ordem dos Médicos) and may only be approved in the situations described in article 8(2) of Law No. 32. (Id. art. 8(4).)

Any type of payment or donation of any good or amount by the beneficiaries to the surrogate mother is prohibited, except for the amount corresponding to the expenses resulting from the health care provided, including transportation, provided that these expenses are duly described in an appropriate document. (Id. art. 8(5).) Business relationships of surrogate pregnancy are prohibited when there is a relationship of economic subordination, namely labor or service provision, between the parties involved. (Id. art. 8(6).) A child born through surrogate pregnancy is considered to be the son or daughter of the respective beneficiaries. (Id. art. 8(7).)

The business relationship of surrogate pregnancy is established by means of a written agreement, concluded between the parties and supervised by the National Council for Medically Assisted Procreation, in which the parties must compulsorily state, in accordance with the legislation in force, the provisions to be observed should malformations or fetal diseases or the possible voluntary termination of pregnancy occur. (Id. art. 8(10).) The agreement may not impose behavioral restrictions on the pregnant woman, nor impose norms that violate her rights, freedom, and dignity. (Id. art. 8(11).)

Features of Decree No. 6

Regulatory Decree No. 6 describes the process for submitting the authorization request that must be presented to the National Council for Medically Assisted Procreation and the necessary supporting documentation and also defines the steps involved in the analysis of the request and the period of time for the approval or rejection of the request. (Regulatory Decree No. 6, art. 2.) Article 3 of the Decree provides a detailed description of the elements that the written agreement for the surrogate pregnancy must contain, and article 4 determines that the agreement is freely revocable up until the beginning of the therapeutic processes of medically assisted procreation.

For the purposes of parental leave, the beneficiary couple is granted parental leave within the scope of application of the regime regulating parenthood (id. art. 6(1)), whereas the surrogate mother is entitled to benefits equivalent to those provided for a woman who has an interrupted pregnancy (id. art. 6(2)). The regime of absences and waivers granted under protection of parenthood legislation is applicable to the surrogate mother and to the beneficiary couple as parents of the child. (Id. art. 6(3).)

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