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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.

Samoa: Citizenship Act Amended to Allow Second Generation Samoans Overseas to Claim Citizenship

(Aug. 24, 2016) On August 23, 2016, the Samoan Legislative Assembly (the unicameral Parliament of Samoa) passed a bill that enables people born outside the country who have at least one grandparent who is or was a Samoan citizen to be granted citizenship.  (Citizenship Amendment Bill 2016 & Citizenship Amendment Bill 2016: Explanatory Memorandum, Parliament of Samoa website; Bills: 1.01 Bills Considered in Detail and Third Read by the Assembly, LEGISLATIVE ASSEMBLY OF SAMOA PROCEDURAL & STATISTICAL DIGEST, No. 23 (Aug. 23, 2016), Parliament of Samoa website.)  The current law, the Citizenship Act 2004, allows only those who, at the time of their birth, have at least one Samoan citizen parent (who must be a citizen otherwise than by descent and have resided in Samoa for at least three years) to claim citizenship by descent.  (Citizenship Act 2004, s 7, Consolidated Acts of Samoa 2015, Pacific Legal Information Institute website.)

The Citizenship Amendment Bill amends the relevant provision in the Citizenship Act to state that a person born outside of Samoa is a citizen by descent provided that, at the time of the person’s birth, “at least 1 parent or grandparent of the person is or was a Samoan citizen.”  (Citizenship Amendment Bill 2016, cl 2.)  The residency requirement is not changed and will apply to either the parent or grandparent.  The bill includes a transitional provision that enables those born before the amendment comes into force to claim citizenship.  (Id. cl 3.)  This means that applications that “are pending with the Ministry [of the Prime Minister and Cabinet] awaiting enactment of the Bill” are covered.  (Citizenship Amendment Bill 2016: Explanatory Memorandum, supra.)

The Prime Minister, Tuilaepa Sailele Malielegaoi, stated that the amendments are “intended to permit non-citizen Samoan descendants to represent Samoa in various sporting events,” and that the current law affected the number of athletes able to represent Samoa at the 2016 Rio Olympics.  (Lanuola Tusani Tupufia, Law Passed with No Objections, SAMOA OBSERVER (Aug. 24, 2016).)  He also noted, “[w]ith the increase of Samoan [rugby] league players taking up contracts in England, there had been an increase in request [sic] for Samoan citizenship by overseas Samoan descendant [sic] to enable them to represent Samoa when possible … that is the whole gist of the amendment is to reach out to Samoans born overseas who want to represent our country to make Samoa known to the world.”  (Id.)

During committee hearings on the bill, one member of Parliament, Olo Fiti Va’ai, raised concerns that the amendments would allow wealthy foreign investors who are granted citizenship to bring their descendants to Samoa and that such citizens could stand in general elections under current laws.  (Id.)  Another member, however, supported the amendments and questioned “why the lineage entitlement was limited to one’s grandparents and not extended to great grandparents.”  (Id.)  The committee chairperson responded that such an extension could lead to unforeseen complications.  (Id.)

Samoa’s immigration website states that “Samoan citizenship entitles individuals to a range of privileges in Samoa.”  (Samoan Citizenship, SAMOA IMMIGRATION, Ministry of the Prime Minister and Cabinet website (last visited Aug. 24, 2016).)  These privileges include:

  • the ability to purchase land;
  • the right to vote in General Elections;
  • the right to obtain Samoan travel documentation;
  • the ability to represent Samoa in sporting events;
  • the right to claim pension;
  • easier access to employment opportunities;
  • the right to apply for educational scholarships; and
  • cheaper health care.  (Id.)

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ICC/Mali: First Guilty Plea in War Crimes Case

(Aug. 24, 2016) On August 22, 2016, Ahmad al-Faqi al-Mahdi, described as a jihadist from Mali, pleaded guilty at the International Criminal Court (ICC) to destroying historical and religious monuments, which is a war crime. He is the first person ever to plead guilty to a charge at that court. (Malian Jihadist Pleads Guilty at ICC to Timbuktu Attacks, AFP (Aug. 22, 2016), Open Source Enterprise online subscription database, No. AFR2016082235965085.) The ruling in his case will be issued on September 27, 2016. (Highlights, ICC website (last visited Aug. 24, 2016).) On September 18, 2015, a warrant of arrest was issued for al-Mahdi; he was surrendered to the ICC on September 26. On March 1, 2016, he expressed his willingness to admit his guilt, and the charges against him were confirmed on March 24, 2016, in ICC Pre-Trial Chamber I. (Press Release, ICC, Al Mahdi Case: Accused Makes an Admission of Guilt at Trial Opening (Aug. 22, 2016).)

The case of The Prosecutor v. Ahmad al-Faqi al-Mahdi is being heard in Trial Chamber VIII of the ICC in The Hague, with Presiding Judge Paul C. Pangalangan, Judge Antoine Kesia-Mbe Mindua, and Judge Bertram Schmitt. The crime to which al-Mahdi pleaded guilty was destruction of historical and religious monuments in the city of Timbuktu, Mali, from June 30 to July 11, 2012. In addition to being the first instance of someone pleading guilty at the ICC, it is the first international case to focus on the demolition of monuments. (Id.)

Specifically, al-Mahdi is accused of directing attacks on nine famous mausoleums and the Sidi Yahia mosque in Timbuktu, Mali. He was a member of Ansar Dine, a movement that together with Al-Qaeda in the Islamic Maghreb took over Timbuktu in 2012. Founded centuries ago by Tuareg tribes, Timbuktu has been called the “city of 333 saints” because it is the burial site of many Muslim sages, and it is well-known as an historical center of Islamic erudition, particularly in the 15th and 16th centuries, considered the golden age of the location. It has been designated a United Nations Educational, Scientific, and Cultural Organization (UNESCO) world heritage site, but jihadist groups considered it “idolatrous.” (Malian Jihadist Pleads Guilty at ICC to Timbuktu Attacks, supra.)

After the charge was read, the accused said, “[y]our honour, regrettably I have to say that what I heard so far is accurate and reflects the events. I plead guilty.” (Id.) Following this statement, the ICC judges questioned al-Mahdi to be sure that he understood the consequences of the plea and that it had been made voluntarily, after consultation with his attorney. The prosecution then began what is expected to be two to three days of presentation of the case against al-Mahdi. The defense will be able to present witnesses, including statements on possible sentences, before the judges make their final ruling. (Press Release, supra.)

Defense attorney Mohamed Aouini earlier stated that the accused seeks a pardon for his actions and that he is “a Muslim who believes in justice. … He wants to be truthful to himself and he wants to admit [to] the acts that he has committed.” (Malian Jihadist Pleads Guilty at ICC to Timbuktu Attacks, supra.) A different view was expressed by ICC Chief Prosecutor Fatou Bensouda, who stated that cultural destruction such as that which occurred in Timbuktu “is tantamount to an assault on people’s history. It robs future generations of their landmarks and their heritage. … No one who destroys that which embodies the very soul and the roots of a people through such crimes should be allowed to escape justice.” (Id.)

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Papua New Guinea: Changes to Marriage Laws to be Introduced

(Aug. 23, 2016) On August 22, 2016, it was reported that the Papua New Guinea government will soon introduce legislation to amend the country’s marriage and divorce laws.  (Nellie Setepano, PNG Marriage Laws to Be Amended as Part of Reform Bundle to Legally Recognize Traditional Marriage and Protect Minors, PNG POST-COURIER (Aug. 22, 2016).)  Two bills, the Marriage (Amendment) Bill 2015 and the Matrimonial (Clauses) Bill 2015, were discussed at a child protection workshop in the capital, Port Moresby, which was attended by Religion, Youth and Community Development Secretary Anna Solomon.  (Id.)  It appears that these bills would amend the Marriage Act 1963 and the Matrimonial Causes Act 1963.  (Marriage Act 1963 & Matrimonial Causes Act 1963, Pacific Legal Information Institute website.)

The news report stated that proposed clauses 2A and 2B of Matrimonial (Clauses) Bill 2015 contain a definition of marriage that would be applicable to both customary and non-customary marriages, with the goal of ensuring that all marriages “meet certain basic requirements regarding consent and marriage age.”  (Setepano, supra.)  Currently, the Marriage Act 1963 recognizes customary marriages as valid and excludes them from certain statutory requirements, including the minimum age requirements.  (Marriage Act 1963, ss 3 & 6(3).)  The amendments would also set a new standard minimum age for all marriages at 18 years; the Marriage Act 1963 currently contains a marriageable age of 18 years for men and 16 years for women, with judges able to allow marriages involving boys aged 16 years and a girls aged 14 years.  (Id. s 7.)

The news report noted that the minimum age of 18 years would make the marriage law consistent with the Lukautim Pikinini Act 2015 (child protection legislation), which included provisions that made marriage of minors under 18 years of age illegal.  (Setepanosupra; Under-Age Marriage Ban in PNG, PNG POST-COURIER (Mar. 12, 2015); Michael Walsh, PNG Anti-Child Marriage Bill Expected to Pass, ABC NEWS (May 31, 2015).)  Under the new marriage law amendments, the penalties for persons who force an underage marriage would include fines between K10,000 and K20,000 (about US$3,200-$6,400) and prison terms of between five and seven years.  (Setepano, supra.)

Other changes discussed at the workshop include greater recognition in the divorce law of the contributions of stay-at-home spouses.  Under the proposals, “a spouse’s indirect contributions as home-maker to the economic stability and security of the family, including in particular the acquisition of the property, will be recognised.  The court is required to take into account any financial and non-financial contribution made by a party to the marriage.”  (Id.)

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Cambodia: Three-Year Visas to Be Launched in September

(Aug. 23, 2016) It was reported on August 19, 2016, that the Cambodian government will allow foreigners to stay in Cambodia on a new, three-year multiple entry visa. (Cambodia to Introduce Three-Year Visas Next Month, BANGKOK POST (Aug. 19, 2016).) According to Minister of Tourism Thong Khon, the visa application will be available from September 1 “to foreigners from all countries, … with different prices according to the length of stay.” (Id.) Information on the pricing was not yet available.

At present, tourists from the ten-member ASEAN (Association of Southeast Asian Nations) countries are granted visas for visits of from 14 days to a month, while tourists from other parts of the world, such as the European Union and the United States, may apply for visas good for a month. Businessmen and women can currently renew a visa for a period of one month, three months, six months, or up to a year. (Id.; ASEAN Member States (last visited Aug. 22, 2016).)

Ho Vandy, Secretary-General of Cambodia’s National Tourism Alliance, a private organization, stated that the visa extension measure is aimed at boosting the country’s tourism sector. “It is a strategy,” he said, “to make the target [of seven million tourists] come true after the private sector and government work together.” (Cambodia to Introduce Three-Year Visas Next Month, supra.) Cambodia is seeking to attract at least 7.5 million foreign tourists by 2020, among them two million Chinese and 300,000 Japanese, based on the Cambodia Tourism Marketing Strategy 2016-2020. (Id.)

According to Khon, the strategy was drafted to draw even more potential Chinese tourists, in particular, to Cambodia, because “[t]he number of Chinese tourists visiting the country is increasing every year.” (New Tourism Strategy to Focus on Chinese Market, KHMER TIMES (Jan. 26, 2016).) To accommodate the anticipated numbers of Chinese tourists and to improve the skills of local tourist operators who handle Chinese clients, Cambodia also recently established the China Ready Center.(Cambodia Establishes Center to Woo Tourists from China, CHINA.ORG.CN (June 30, 2016).) Khon also commented that the strategy “will focus on competitiveness by intensifying promotion and marketing, diversifying tourism products, increasing investment in tourism, training staff, upgrading and expanding facilities, services and destinations, ensuring cleanliness and enhanced environmental protection, expanding connectivity, protecting heritage sites, and ensuring safety and security … .” (New Tourism Strategy to Focus on Chinese Market, KHMER TIMES (Jan. 26, 2016).)

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Australia: State Legislation to Remove Barriers to Changing Sex on Birth Certificate

(Aug. 22, 2016) On August 18, 2016, the Attorney-General of the Australian State of Victoria introduced the Births, Deaths and Marriages Registration Amendment Bill 2016 in the state parliament.  The bill “removes the need for applicants to have undergone sex affirmation surgery before being able to apply for a new birth certificate.”  (Press Release, Martin Pakula, Birth Certificates to Reflect True Identity (Aug. 18, 2016), Premier of Victoria website.)  In addition, couples will no longer be required to divorce if one partner changes the sex on their birth registration.  (Id.)  There is currently a need to divorce to avoid the creation of a same-sex marriage, which is not legal in Australia under federal marriage legislation.  (Nino Bucci, Gender Diverse Win Right to New Birth Certificates, AGE (Aug. 18, 2016); Mary Anne Nielsen, Same-Sex Marriage: Issues for the 44th Parliament, AUSTRALIAN PARLIAMENTARY LIBRARY (Sept. 8, 2015).)

If the bill is passed by the parliament, it will allow adult applicants to “nominate the sex descriptor in their birth registration as male, female or specify a gender diverse or non-binary descriptor.”  (Birth Certificates to Reflect True Identity, supra.)  They will not need a supporting statement from a doctor; instead, according to Pakula, “[a]nyone over the age of 18 will need to make a statutory declaration and obtain a supporting statement from an adult who has known them for at least 12 months to make an application.”  (Karen Barlow, Victoria Moves to Allow Gender Change on Birth Certificates, HUFFINGTON POST AUSTRALIA (Aug. 18, 2016).)

There will also be a new process for parents to apply to alter the sex recorded on their child’s birth registration.  This process will require the consent of the child, along with a “supporting statement from a doctor or registered psychologist confirming the child has capacity to consent, and that the change is in the best interests of the child.”  (Birth Certificates to Reflect True Identity, supra.)  Children over 16 years of age will be assumed to have the capacity to consent to such a change.  (Id.)

Developments in Other Australian Jurisdictions

A similar law, enabling alterations of the record of an adult’s or child’s sex without a surgery requirement, was enacted in the Australian Capital Territory (ACT) in 2014.  (Births, Deaths and Marriage Registration Amendment Act 2014 (ACT), ACT Legislation Register; Press Release, ACT Government, Recognition for Sex and Gender Diverse Community Members (Mar. 20, 2014).)

The ACT parliament passed further legislation in February 2016 that allows parents to choose “mother” and “father” for either parent, as well as “parent 1″ and ”parent 2,” or “mother” and “mother,” or “father” and “father” on their child’s birth certificate.  (Kirsten Lawson, New Gender Non-Specific Birth Certificates for ACT, CANBERRA TIMES (Feb. 16, 2016); Justice Legislation Amendment Act 2016 (ACT), ACT Legislation Register.)

The legislation also created a new identity document (a “recognised details certificate”) for gender diverse people not born in ACT who cannot change their gender on their birth certificates.  Such people can obtain the document, which recognizes their name and the sex they live by, provided they have a statutory declaration from a doctor or psychologist confirming their intersex status or that they have “received appropriate clinical treatment for alteration of” their sex.  (Justice Legislation Amendment Act 2016 (ACT) s 12, inserting new s 29B into the Births, Deaths and Marriages Registration Act 1997 (ACT).)  Parents are also able to apply for the document for their children.  (Id. s 12, inserting new s 29A(2); Lawson, supra.)

The government of the State of South Australia also introduced a bill to remove the reassignment surgery requirement for altering birth certificates on August 4, 2016.  (Births, Deaths and Marriages (Gender Identity) Amendment Bill 2016 (SA), South Australian Legislation website.)

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