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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.

Germany: Parliament Debates Burqa and Niqab Ban for Civil Servants and Soldiers

(Mar. 22, 2017) On March 9, 2017, the German Bundestag (parliament) debated a draft act that would prohibit federal civil servants performing official duties and soldiers in general from wearing full body and face veils (burqas) and face veils (niqab).  Exceptions would be allowed for medical reasons (protection against infections) or for official purposes.  The ban would also apply to officials coordinating the federal elections.  (Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zu bereichsspezifischen Regelungen der Gesichtsverhüllung [Draft Act of the Federal Government, Draft Act to Regulate Certain Aspects of Face Veils], DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-Drs.] 18/11180 (Feb. 15, 2017), arts. 1-4.)

Furthermore, the draft act would allow denying a voter the right to vote if the face veil prevents the proper identification of the person.  In addition, the draft act states that it must be possible for the police and other officials to compare the face of any German or foreigner to their ID picture or passport for identification purposes.  (Id. arts. 5-8.)

Reactions to the Proposed Ban

Tim Ostermann, a member of the Christian Democratic Union party and a proponent of the ban, remarked that all people who live in Germany must adhere to the national laws and rules.  He stated that, in his view, “the rule to show your face is one of the central rules in this country. Covering your face or wearing a veil violates one of the fundamental values of an open society.” (Deutscher Bundestag [German Parliament], Plenarprotokoll 18/221 [Plenary Protocol 18/221], Mar. 9, 2017, at 22265, Bundestag website.)

Lars Castellucci, a member of the Social Democratic Party, and Ulla Jelpke from the Left Party both pointed out that the draft act seemed to regulate a non-existent problem.  They stated that they had never encountered a civil servant who was wearing a burqa or a niqab and that only a small minority of women in general wears them in public.  (Id. at 22267.)

Proposed State Ban

The state government of Bavaria recently introduced a similar draft act that would ban face veils for civil servants; for people working in public services; for those on elections boards; for those working in universities, schools, and kindergartens; and for students.  Furthermore, the draft act would allow the prohibition of face veils as a condition for a public gathering and would allow denying a voter the right to vote if the face veil prevents the proper identification of the person.  It would also authorize the police to request a person to remove her face veil for identification purposes.  (Entwurf eines Gesetzes über Verbote der Gesichtsverhüllung in Bayern [Draft Act to Prohibit Face Veils in Bavaria], Bavarian State Ministry of the Interior website (last visited Mar. 21, 2017).)

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Bahrain: Constitutional Amendment Allows Military Trials of Civilians

(Mar. 22, 2017) On March 6, 2017, the Bahraini Parliament (Shura Council) approved an amendment to article 105(b) of the Bahraini Constitution of 2002.  (Bahrain: Constitution of February 14 in English (2002) (Constitution), ACE Electoral Knowledge Network website.)  Members of the Council approved the constitutional amendment two weeks after it was passed by the National Assembly, the lower chamber of the Parliament.  (Constitutional Amendment in Bahrain Permits Civilian to Be Tried Before Military Courts, BBC NEWS (Mar. 5, 2016) (in Arabic).)

The newly amended provision authorizes military courts to have jurisdiction over civilians charged with terrorism offenses.  Bahrain’s Constitution formerly limited the jurisdiction of military courts to offenses committed by security forces, stating “[t]he law regulates the military judiciary and shows its competencies with regard to the Bahrain Defense Force, the National Guard and the Public Security Forces.”  (Explanatory Note on the Draft Amendment to Clause (b) of Article 105 of the Constitution of the Kingdom of Bahrain (first circulated Feb. 2, 2017) (English translation), Americans for Democracy & Human Rights in Bahrain website.)

The explanatory note related to the approved amendment recommended the replacement of the text of article 105(b) with a new paragraph that extends the mandate of the military justice system to include certain crimes that are defined by law, including offenses committed against the security apparatus.  The explanatory note also calls also for a flexible and speedy military justice system to be established.  (Id.)

Reactions to the Provision

International human rights organizations such as Human Rights Watch opposed the amendment.  In a report issued on February 23, 2017, Human Rights Watch stated “that trials of civilians before military tribunals violate the right to be tried by a competent, independent, and impartial tribunal.”  (Bahrain: Proposed Military Trials of Civilians, Human Rights Watch website (Feb 23, 2017).)

Similarly, local activists such as Sayed Alwadaei, the director of advocacy at the Bahrain Institute for Rights and Democracy, criticized the new amendment.  He called it a “defacto martial law.”  (Bahrain Parliament Approves Military Trials for Civilians, DAWN (Mar. 6, 2017).)

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New Zealand: Bill Establishing River as Having Own Legal Personality Passed

(Mar. 22, 2017) On March 14, 2017, the New Zealand Parliament voted to pass the Te Awa Tupua (Whanganui River) Claims Settlement Bill (the Bill). (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, as reported by the Māori Affairs Committee, New Zealand Legislation website.) The Bill “gives effect to the Whanganui River Deed of Settlement signed on 5 August 2014, which settles the historical claims of Whanganui Iwi [tribes] as they relate to the Whanganui River.”  (Te Awa Tupua (Whanganui River) Claims Settlement Bill, PARLIAMENT OF NEW ZEALAND (last visited Mar. 16, 2017); Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016).)

Background

The Minister for Treaty of Waitangi Negotiations, Christopher Finlayson, noted that the passage of the Bill “brings the longest running litigation in New Zealand’s history to an end,” and that “[t]he Whanganui Iwi has fought for recognition of its relationship with the Whanganui River since the 1870’s.”  (Press Release, Christopher Finlayson, Whanganui River Settlement Passes Third Reading (Mar. 15, 2017), BEEHIVE.GOVT.NZ.)

The Whanganui River, situated in the country’s North Island, is New Zealand’s longest navigable river. (“Background,” Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014supra.) In 1840, when the Treaty of Waitangi between the British Crown and various Māori chiefs throughout the country was signed, “the iwi and hapu [subtribes] of Whanganui (Whanganui Iwi) possessed, and exercised rights and responsibilities in relation to, the Whanganui River in accordance with their tikanga [customary norms]. A substantial Māori population was dispersed along the River and its major tributaries.” (Id.) Over the subsequent decades, various government actions, omissions, and legislation substantially affected the ability of the Whanganui Iwi to be involved in the management of the river and to exercise other rights with respect to it. (Id.) Its claims to ownership of the river were heard by the courts between 1938 and 1962, when the Court of Appeal ruled that “Māori customary ownership of the riverbed had been extinguished by the granting of Crown titles to riparian blocks.”(Id.Re the Bed of the Whanganui River [1962] NZLR 600.)

The Whanganui River Māori Trust Board was established by statute in 1988 “to negotiate for the settlement of all outstanding Whanganui Iwi claims over the Whanganui River.” (“Background,” Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014, supra; Whanganui River Trust Board Act 1988, New Zealand Legislation website.) In 1990, the Trust Board lodged a claim regarding the river with the Waitangi Tribunal, which inquires into claims of breaches of the Treaty of Waitangi by the Crown. (Id.; About the Waitangi Tribunal, WAITANGI TRIBUNAL (last updated Sept. 19, 2016).) The Tribunal completed its report on the claim in 1999, finding that the Treaty of Waitangi had guaranteed Whanganui Iwi rights to ownership, management, and control of the river and that they have never “freely and willingly” relinquished those rights. (Waitangi Tribunal, The Whanganui River Report xiii (Wai 167, 1999), Ministry of Justice website.)

In 2003, Whanganui Iwi, again represented by the Whanganui River Māori Trust Board, and the Crown, represented by the New Zealand government, agreed to terms of negotiation for the settlement of the historical claims with respect to the Whanganui River. (He Kaupapa Kotahi – He Ara Whakamua: Whanganui River Claims – Terms of Negotiation (Mar. 6, 2003), New Zealand Government website; additional supporting documents related to the negotiations and settlement available at Whanganui Iwi, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016).) As a result of the negotiations, a deed of settlement was signed by the Iwi in 2014. (Press Release, Chris Finlayson, Whanganui River Deed of Settlement Signed (Aug. 4, 2014), BEEHIVE.GOVT.NZ.) The legislation to give effect to the deed of settlement was subsequently introduced in May 2016.

Aspects of the Bill’s Legal Framework for the Whanganui River 

One part of the Whanganui River Deed of Settlement (Ruruku Whakatupua—Te Mana o Te Awa Tupua) “is primarily directed towards the establishment of Te Pā Auroa, a new legal framework, which is centred on the legal recognition of Te Awa Tupua, comprising the River from the mountains to the sea, its tributaries, and all its physical and metaphysical elements, as an indivisible and living whole.” (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-1, Explanatory Note, New Zealand Legislation website.) Clause 14 of the Bill states that

(1) Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.

(2) The rights, powers, and duties of Te Awa Tupua must be exercised or performed, and responsibility for its liabilities must be taken, by Te Pou Tupua on behalf of, and in the name of, Te Awa Tupua, in the manner provided for in this Part and in Ruruku Whakatupua—Te Mana o Te Awa Tupua. (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, cl 14.)

“Te Pou Tupua” is an office created by the Bill “to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua.” (Id. cl 18(2).) It comprises two people, one nominated by the Iwi and one nominated by a government minister. (Id. cl 20.) Clause 19 of the Bill lists various functions for the office, including

  • “to act and speak for and on behalf of Te Awa Tupua”;
  • “to promote and protect the health and well-being of Te Awa Tupua”;
  • to perform landowner functions with respect land vested in Te Awa Tupua under the legislation;
  • to maintain the Te Awa Tupua register, which is a register of hearing commissioners “qualified to hear and determine applications under the Resource Management Act 1991 for resource consents—(a) relating to the Whanganui River: (b) for activities in the Whanganui River catchment that affect the Whanganui River” (id. cl 61; Resource Management Act 1991, New Zealand Legislation website); and
  • to administer a contestable trust fund established to “support the health and well-being of Te Awa Tupua.” (Te Awa Tupua (Whanganui River) Claims Settlement Bill, cl 57.)

In exercising its functions, Te Pou Tupua must, in addition to other requirements, “act in the interests of Te Awa Tupua and consistently with Tupua te Kawa.” (Id. cl 19(2)(a).) “Tupua te Kawa” is defined as comprising “the intrinsic values that represent the essence of Te Awa Tupua” including, among others, that “[t]he iwi and hapu of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.” (Id. cl 13.)

The government will make an initial payment of NZ$30 million (about US$21 million) to establish Te Korotete (the trust fund), and will also make payments of NZ$200,000 (about US$140,000) per year for 20 years “as a contribution to the costs associated with the exercise of its functions by Te Pou Tupua.”  (Explanatory Note, supra.)

In addition, a River Strategy Group will be established to develop the River Strategy (Te Heke Ngahuru ki Te Awa Tupua), which must be taken into account by those exercising functions or powers under certain other legislation. (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, cls 29-38.)

Other Redress

The second part of the Deed of Settlement (Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui) “is primarily directed towards Whanganui Iwi and the recognition and further development of the relationship between Whanganui Iwi and the Whanganui River through both cultural and financial redress.” (Explanatory Note, supra.) Cultural redress includes the Crown’s acknowledgments of and apology for past wrongs, the strengthened relationship between Whanganui Iwi and the Crown, authority for Whanganui Iwi to carry out certain customary activities, “the assignment of official geographic names to certain places,” and “agreement to progress a social services project with relevant agencies.” (Id.)

The financial redress component involves a payment of NZ$80 million (about US$56.1 million) and “an additional payment of $1 million for transitional and implementation matters relating to the establishment of Te Pā Auroa.” (Id.)

Other Settlements of Historical Claims

The Office of Treaty Settlements within the Ministry of Justice is responsible for negotiating the settlement of historical Treaty of Waitangi claims. (Office of Treaty Settlements, NEW ZEALAND GOVERNMENT (last updated Mar. 15, 2017).) Since the early 1990s, the government, on behalf of the Crown, has reached multiple settlements with various iwi in different parts of the country. In 2014, as part of the settlement of claims by the Tuhoe iwi, land within a national park in the central North Island was vested in an entity, Te Urewera, with its own legal identity.  Just as the Whanganui River  is administered by an iwi nominee and a government nominee, Te Urewera is governed by Tuhoe and Crown nominees who must act in the best interests of Te Urewera. (“Redress,” Ngāi Tuhoe Deed of Settlement Summary 4 Jun 2013, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016); Te Urewera Act 2014, New Zealand Legislation website.)

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Great Britain: Technology Bill Introduced to Regulate Driverless Cars, Increase Penalties for Misuse of Lasers

(Mar. 21, 2017) The Vehicle Technology and Aviation Bill 2017 was recently introduced in the British Parliament. The aim of the bill is to modernize transportation policies and laws in the United Kingdom.  The bill addresses the misuse of lasers, the liability of insurers of automated vehicles, the infrastructure to support electric vehicles, and air traffic control regulations.  The bill will also open up the market for road-vehicle testing, which the vehicle owner is responsible for having an authorized tester perform annually, and implement a cap on the cost of these services.  (Vehicle Technology and Aviation Bill 2017, Bill No. 143, United Kingdom Parliament website.)

Penalties for Misuse of Lasers

One of the more publicized parts of the bill is the increase in the penalties for the offense of shining a laser at the operator of any mode of transportation. The current law only applies to lasers being pointed at aircraft pilots; there were 1,258 reported incidents in Great Britain of lasers being directed into the cockpits of planes during 2016.  The current offense requires the police to prove that the alleged culprit endangered an aircraft, which has been difficult for the police to do.  The new law will create a strict liability offense, meaning that police only have to prove that the alleged offender directed or shone a laser beam at a vehicle in a manner that dazzled or distracted the person in control of the vehicle.  The bill will also extend the offense to cover all types of vehicles and vessels, is broadly defined in the Bill as “any thing used for travel by land, water or air.”  (Id. section 22(8); Laser Incidents Reported to the UK CAA 2016, Civil Aviation Authority website (last visited Mar. 1, 2016).)

Automated Vehicle Insurance

To keep the law up to date with technological developments, part 1 of the bill extends compulsory motor insurance to cover automated vehicles when they are operated in automated mode.  This means that the victims of an accident that is caused by a vehicle in automated mode are covered by the compulsory insurance, which will obligate the insurer to pay compensation to the victim of the accident, as well as to cover the driver who activated the automation.  The insurer may then recover costs from the liable party under the existing common law and product law provisions.  Exemptions to this rule would apply if the driver using the automated system made any changes to the system or failed to install any required updates.  Whether a car is considered to fall within the provisions of this bill will be determined by the Department of Transportation.  (Vehicle Technology and Aviation Bill 2017, supra; Explanatory Notes, Vehicle Technology and Aviation Bill, ¶ 14, United Kingdom Parliament website (last visited Feb. 28, 2017); New Measures Set Out Autonomous Vehicle Insurance and Electric Vehicle Infrastructure (Feb. 22, 2017), GOV.UK.)

Other Measures

To help the government achieve the target of zero emission vehicles by 2050, the bill requires gas stations and large retailers to provide electric power charging points that meet certain specifications to ensure compatibility and protection from hackers and to publish the details of the location, prices, and hours.  (Vehicle Technology and Aviation Bill 2017, Part 2.)

The bill will also update the licensing framework for air traffic control regulations to take into account the demand on the UK’s airports, increase resilience and aim to improve safety, and extend insolvency protection for package vacations to cover the newer ways that these vacations are purchased. (Id. Part 3.)

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Japan: Supreme Court Rules GPS-Based Investigation Requires Warrant

(Mar. 21, 2017) On March 15, 2017, the Supreme Court of Japan issued a judgment in a theft case that involved a police investigation using global positioning system (GPS) terminals they attached to the suspects’ cars; the investigation was conducted without warrants.  (Heisei 28 (a) 442 (S. Ct., Mar. 15, 2017), Courts of Japan (in Japanese).)  The Court stated that collecting global positioning data from a car may invade the privacy of a targeted person.  In addition, the Court stated that secretly attaching a GPS terminal to a private person’s belonging is an invasion of private space by the government.  (Id.)

Article 35 of the Constitution of Japan states, “[t]he right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized … .”  (Constitution of Japan (1946), Prime Minister of Japan and His Cabinet website.)  The Court cited a precedent according to which the phrase “homes, papers and effects” is not limited but includes other private spaces.  The Court found that the investigation of the movements of a person by using GPS requires a warrant under article 35 of the Constitution.  Therefore, the Court stated that it was illegal for the police to collect global positioning data without a warrant in investigating the appellant.  (Heisei 28 (a) 442, supra.)

The Supreme Court did not change the sentence, however, because the defendant’s guilt was proven by his confession, which was not affected by the investigation using GPS.  (Id.)

Lower Courts’ Handling of the Case

Lower courts were divided about the legality of the utilization of GPS without a warrant.  According to one expert, Yasuo Sawai, two patterns can be seen in law enforcement investigations that use GPS: one is its supplementary use for tailing a suspect, and the other is for surveillance of a suspect’s activities for a longer term.  Sawai’s analysis showed that in the former cases, lower courts tended to approve the use of GPS without a warrant, because tailing does not require a warrant.  However, in the latter cases, the courts tended not to approve the use of GPS without a warrant.  (Is the ‘Investigation Method’ of Attaching a ‘GPS Terminal’ to a Car Legal? Former Police Official Analyzed Intricate Cases, BENGO4.COM (July 9, 2016) (in Japanese).)

In the case at hand, the police installed 16 GPS terminals in vehicles belonging to the appellant and his accomplices over a period of roughly six months.  (Heisei 28 (a) 442, supra.)  The Osaka District Court decided the investigative use of GPS was illegal, but the Osaka High Court decided it was not illegal.  (Top Court Rules Investigation Using GPS Without Warrant Illegal, MAINICHI (Mar. 15, 2017).)

Supreme Court Views on Warrants

The Court also examined the use of warrants under current law (Criminal Procedure Code, Act No. 131 of 1948, art. 218) for investigations using GPS.  The Court found no existing type of warrant fit for this type of investigation.  Reading GPS devices may be considered to be a “verification of a device,” therefore a verification warrant may be utilized.  However, if an investigation involves a GPS terminal that is put on the car of a suspect and moves as the car moves, the Court stated, the investigation goes beyond verification of reading of a device.  While a search warrant may supplement the verification warrant, a GPS reveals the movements of a car’s driver, including movements that are irrelevant to the suspected crime, and so it is difficult in cases involving such use of a GPS for a judge to limit the investigation to the appropriate investigation of a specific crime by a warrant.  (Id.)

Further, the Court pointed out that, in principle, a warrant must be presented in advance of the investigation, but advance notice makes investigation using GPS meaningless.  Therefore, a system to replace advance presentation of a warrant must be created.  The Court called for the Diet (Japan’s legislature) to enact new legislation to create an appropriate warrant for investigations that use global positioning data.  (Id.)

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