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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.

United Nations/World Bank: Updated Partnership Framework to Reduce Human Vulnerability to Violent Conflict

(Apr. 28, 2017) On April 22, 2017, the United Nations and the World Bank signed a partnership framework aimed at “building resilience for the most vulnerable people by reducing poverty, promoting shared prosperity, enhancing food security, and sustaining peace in crisis-affected situations.” (Press Release, U.N. Secretary-General, Joint Statement on Signing of New UN-World Bank Framework to Build Resilience and Sustain Peace in Conflict Areas (Statement), United Nations website (Apr. 22, 2017).)

According to a joint statement issued by the two partners, the framework, which updates one they signed in 2008, builds on their efforts to strengthen collaboration in crisis situations and is a response to global calls for the U.N. and World Bank to cooperate more closely to prevent disasters and reduce human vulnerability in the face of a world-wide spike in violent conflict. (Id.; United Nations-World Bank Partnership Framework for Crisis and Post-Crisis Situations (signed Oct. 24, 2008), The World Bank website.) The statement notes that the costs of violent conflict, in human and economic terms, “are massive, affecting long-term stability and prospects for economic development and poverty reduction,” and the U.N. estimates that in 2017 $22.1 billion will be needed for humanitarian assistance, an increase of over $11 billion over the $9 billion required only five years ago.  (Statement, supra.)

The framework also reflects commitments made in May 2016 at the World Humanitarian Summit calling for a “new way of working” that shifts the focus from “meeting needs” to “reducing needs, risks, and vulnerability.” (Statement, supra; Core Responsibility 4: Changing People’s Lives: From Delivering Aid to Ending Need, COMMITMENTS TO ACTION (World Humanitarian Summit, Istanbul, May 23-24, 2016), at 21 (data confirmed as of Aug. 16, 2016).)

The new framework, like the earlier one, sets forth certain guiding principles, to ensure that the two institutions’ efforts encompass a variety of dimensions (e.g., not only social and economic but developmental and security dimensions) to ensure the application of integrated solutions based on each country’s needs. (Statement, supra.)  The framework also highlights the importance of “aligning and leveraging financial resources” and relying more on “innovative, data-driven” response mechanisms.  (Id.)

Areas of collaboration between the U.N. and the World Bank under the framework include:

  • identification and reduction of risks of crisis and prevention of violent conflict in countries or regions within both partners’ mandates;
  • coordination of support for protracted crisis situations;
  • development of joint analyses and tools; and
  • scaling up of impact “by leveraging existing financing and comparative advantages and ensuring that operational policies, frameworks, and tools used by both organizations facilitate cooperation and improve efficiency and complementarity.” (Id.)

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Brazil: New Document Will Gather All Citizen ID Information in One Place

(Apr. 28, 2017) On April 11, 2107, the Brazilian Federal Senate approved a bill of law that creates the National Identification Document (Documento de Identificação Nacional).  The new ID will gather together in a single document biometric and civil data found in, e.g., the General Register, the driver’s license, the Individual Taxpayers Register, and voter registration records.  (Mariana Jungmann, Senado Aprova Lei que Cria Documento de Identificação Nacional, AGÊNCIA BRASIL (Apr. 11, 2017).)

According to the bill, the National Identification Document will be issued by the national Electoral Court, or by delegation of the Superior Electoral Tribunal (Tribunal Superior Eleitoral, TSE) to other bodies, to take advantage of the national biometric database used in elections.  The document will be printed by the national Mint (Casa da Moeda) and will use the Individual Taxpayers Register as the basis of identification.  (Id.)

The single document will be issued based on the National Civil Identification database created under the bill for the purpose of gathering personal information about citizens.  The new database will be managed by the TSE, which will guarantee access to the Union, the states, the Federal District, municipalities, and the legislative branch.  The bill was forwarded to President Michel Temer for his approval.  (Id.)

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Israel: Supreme Court Prohibits Third Party Appeal over Legitimacy of Divorce

(Apr. 28, 2017) On March 30, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, accepted an appeal against a Rabbinical Court of Appeals decision to review an appeal submitted by an unrelated third party against the legitimacy of a get (Jewish divorce document) recognized by the regional rabbinical court. (HJC 9261/16 Anonymous v. Rabbinical Court of Appeals (Mar. 30, 2017), TAKDIN LEGAL DATABASE (by subscription, in Hebrew).)

In accordance with the Rabbinical Courts Jurisdiction (Marriage and Divorce Law) 5713-1953 “[m]atters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.” (Rabbinical Courts Jurisdiction (Marriage and Divorce Law) 5713-1953, Sefer HaHukim [BOOK OF LAWS, the official gazette, SH] No. 134 p. 165, as amended, § 1.) The Law specifies that marriage and divorce of Jewish residents and citizens of Israel “shall be performed in Israel in accordance with Jewish religious law.” (Id. §§ 2 & 4). While the rabbinical courts enjoy exclusive jurisdiction over matters of marriage and divorce and adjudicate pursuant to Jewish law, they must comply with the laws of the state. Decisions of rabbinical courts have therefore been subjected to judicial review by the Supreme Court not on appeal but as petitions to that Court as a High Court of Justice. The recent decision, summarized below, voided a rabbinical court decision that the Supreme Court found was made in violation of state constitutional principles and legal procedures established by law.

Facts of the Case

The petitioner and her husband married in 2002 under Jewish law and had a baby girl born a year later. In 2007, the husband was involved in a serious traffic accident, and he has been in a coma for seven years with a very poor prognosis of improvement. (Id. Justice Elyakim Rubinstein opinion, ¶ 2.)

In 2012, five years after the accident, the petitioner filed for divorce at the Tsfat regional rabbinical court to allow her to remarry. In consideration of the husband’s condition, the court appointed a guardian for him. The judges visited the husband in the hospital and concluded that he was not competent to give his wife a get. (Id. ¶ 3.)

Regional Rabbinical Court Decision

Judges of the regional court, however, continued to look for a solution that would help the petitioner but would also comply with the requirements for divorce under Jewish law. Based on a comprehensive decision by Rabbi Lavie, who is the president of the regional court, the petitioner was allowed to receive a “get zikui.” (Id. ¶ 7.) Get zikui is a procedure according to which a court may permit the wife to obtain a get on behalf of her husband, even without his expressed consent. Get zikui is said to be based on a well-known Jewish law rule that a legal action conducted by one person on behalf of another person will be deemed valid, even in the absence of knowledge of the action on the part of the person for whom it is conducted, if the implications of the action are good for that person who cannot act. (Id. ¶ 7.)

The get was arranged and delivered to the petitioner by a person appointed by the regional rabbinical court as the comatose husband’s agent, with the husband’s guardian announcing that under the special circumstances of the case he found no reason to object. (Id.) The day after the get was delivered to and accepted by the petitioner, on March 14, 2014, the regional rabbinical court issued a judgment determining that the spouses were divorced and granting official documents making the divorce final. (Id. ¶ 8.)

In its decision allowing the get zikui, the regional court held that had the husband been aware of his condition, he would have wished to give his wife a get and not leave her in a situation where there was no possibility for continuation of their spousal relationship. Recognizing the novelty of its decision, the regional court stressed that the decision was nevertheless grounded in established principles under Jewish law. (Id. ¶ 9.)

On June 24, 2014, a little over three months after the regional court issued its decision, an appeal was filed against the judgment for being “completely erroneous.” The appeal was purportedly registered on behalf of the comatose husband and a third party who had not been previously a party to the proceedings and who had no personal link to the parties (third respondent). (Id. ¶ 10.) Although the regional court had decided not to allow the third respondent to join as a party on appeal, the President of the Rabbinical Court of Appeals was ultimately ordered to conduct a full-day special hearing, by an extended bench that would include all but one of Rabbinical Court of Appeals judges (in order to have an odd number), to review the legitimacy of the appeal. (Id. ¶¶ 11-14.)

The Supreme Court Decision

Justice Elyakim Rubinstein, with Justices Hanan Melcer and Yoram Danziger assenting, rendered the main decision of the Supreme Court on the legitimacy of the Rabbinical Court of Appeals’ reviewing the regional rabbinical court decision.

1. Scope of Supreme Court Judicial Review

According to Rubinstein, the question of releasing the petitioner from her aginut (marriage bondage) is complex and subject to different opinions. Rubinstein noted that in fact, the President of the Rabbinical Court of Appeals had already published a different Halachik (Jewish law) opinion in which he concluded that in the absence of any hint from the comatose husband of his willingness to divorce her, the wife should not receive a get. Instead, the President of the Rabbinical Court of Appeals  proposed other possible grounds that may be examined for  releasing the wife from the aginut, such as a defect in the marriage or nonlegitimacy of the witnesses. (Id. ¶ 24.)

Rubinstein emphasized that the Supreme Court had no intention of intervening and determining if the Halachik doctrine that had been adopted by the regional court was correct or not. The Supreme Court review, Rubinstein determined, would only apply to the procedural aspects, namely, whether the Rabbinical Court of Appeals was authorized to conduct a hearing on the appeal by the third respondent. (Id.)

2. Appeals Procedures

Appeal rights of parties in rabbinical courts are guaranteed under the Rabbinical Court Judges Law; the procedures that apply to appeals are covered under the Regulations of Hearings Procedures in Rabbinical Courts in Israel 5733. (YALKUT HA-PIRSUMIM [OFFICIAL NOTICES] 5753 No. 4102 p. 2299 (as amended). According to the Regulations, the appeal period for any party is 30 days from the date on which the decision was issued. In special circumstances, the Rabbinical Court of Appeals may decide to allow an appeal that was submitted at the expiration of this period, after affording all the parties the right to express their views. (Id. §§ 938-939; Rubinstein opinion, ¶ 31.)

Based on a review of the Regulations and an historical evaluation of the way in which the right to appeal has developed over time, Rubinstein concluded that appeal rights have been reserved for only the original parties. A person who was not a party or had no link to the parties does not have a right of appeal. (Rubinstein opinion, ¶¶ 32-33 & 44.)

3. Decision of the Rabbinical Court of Appeals

Rubinstein recognized that the Rabbinical Court of Appeals had specified that the subject of the appeal before it was the regional court’s decision not to allow the third respondent to be added as a party in the appeal. Nevertheless, Rubinstein held, “the characteristics of the Appeals Court decision are unusual and do not coincide … with the appeal procedure that is common at the Appeals Court. On the subject of the right and the permission to appeal, one judge or three at most could decide, and there is no need for an extended bench.” (Id. ¶ 45.) Furthermore, Rubinstein wondered why the judges of the regional court had been invited by the Rabbinical Court of Appeals to attend the hearing. (Id. ¶ 46.)

Rubinstein also expressed concern regarding the severe implications of enabling any person who is unrelated to the case to appeal a final judgment, particularly in matters of personal status. Such matters, he noted, were especially sensitive, as they may cause great harm to the privacy and other basic rights of the litigants. (Id. ¶ 47.)

4. Constitutional Aspects

Rubinstein determined that enabling the third respondent, who did not have any connection with the case, to appeal would cause harm to the petitioner’s dignity as a person under section 2 of Basic Law: Human Dignity and Liberty. (SH 5752 No. 1391 p. 150.) Although it is permissible for the right to dignity to be violated under a law that meets the requirements of having an appropriate objective and proportionality, Rubinstein doubted if the current case meets these requirements. (Rubinstein opinion, ¶ 50.)

Conclusion

Rubinstein held that the conduct of a hearing on the legitimacy of an appeal filed by the third respondent was in violation of the procedural regulations. Such a hearing further contradicted the principle of finality and harmed the petitioner’s right to rely on the judgment rendered by the regional court. (Id. ¶ 51.)

Rubinstein added that the Supreme Court was presented not only with a question of Jewish law, but also with the very difficult situation of a woman whom the regional court found a way to help. Referring to relevant Jewish legal sources, Rubinstein noted in an obiter dictum that the majority of Jewish law scholars have usually opined that when there is doubt regarding the legitimacy of a get, the get needs to be validated and not voided retroactively. (Id. ¶¶ 54-57.)

The Supreme Court therefore ordered the Rabbinical Court of Appeals to refrain from deliberating the appeal submitted by the third respondent against the regional court decision validating the petitioner’s divorce from her comatose husband. (Id. ¶ 60.)

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India: Law Bans Discrimination Against AIDS Patients

(Apr. 27, 2017) On April 24, 2017, Pranab Mukherjee, the President of India, approved new legislation that bans discrimination against people who are HIV-positive or who have AIDS. (Jonathan Niznansky, India President Approves Law Banning Discrimination Against AIDS Patients, PAPER CHASE (Apr. 25, 2017).)

The law was formally introduced in 2014 as the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill (the Bill) by Ghulam Nabi Azad, then Minister of Health and Family Welfare. (The Bill, No. III, 2014, PRS LEGISLATIVE RESEARCH.) It was approved by the two houses of the legislature earlier this month. (Alexis Wheeler, India Parliament Approves HIV/AIDS Prevention Bill, PAPER CHASE (Apr. 13, 2017); Manveena Suri, India to Ban Discrimination Against People with HIV/AIDS, CNN (Apr. 12, 2017).) The legislation has 50 clauses, arranged in 14 chapters that cover a number of topics, including penalties for violation of its provisions.

According to an explanatory statement by Azad attached to the text of the Bill, the purpose of the legislation is

to address the issue of stigma faced by those infected by HIV and AIDS, to ensure confidentiality and privacy while providing HIV and AIDS related services and to strengthen the existing National AIDS Control Programme by bringing in legal accountability. It is also important that existing establishments, both private and public, recognise the need to safeguard the rights of people infected with HIV/AIDS, particularly, women and children. (Statement of Objects and Reasons, ¶ 3 (Jan. 31, 2014), The Bill, p. 17.)

The Bill’s provisions include prohibitions of specific acts of discrimination in education, housing, and employment; articles specifying that HIV testing, treatment, and status disclosure require informed consent; clauses establishing safe working environments; and measures on the creation of mechanisms to redress grievances and investigate complaints. (Id. ¶ 4; Suri, supra.)

Penalties

The penalties established in the Bill include imprisonment for from three months to two years and/or a fine of up to 100,000 rupees (about US$1,550) for persons convicted of publicly advocating hatred, discrimination, or violence against protected persons or propagating feelings likely to expose them to hatred, discrimination, or violence. (The Bill, arts. 4 & 37.) Disclosing the HIV status of a protected person is also subject to a 100,000 rupee fine.  (Id. art. 39.) The Bill defines protected persons as those who are HIV-positive or who ordinarily live or did live with a person who is HIV-positive. (Id. art. 2 (s).)

The Bill provides that each state must appoint an ombudsman who is empowered to hear complaints related to the provisions of the Bill and to issue relevant orders. (Id. Ch. X.) The penalty for refusing to comply with an order of an ombudsman within the designated time limit is a fine of up to 10,000 rupees (about US$156); if the failure to comply is ongoing, there may be an additional fine of half that amount each day the noncompliance continues. (Id. art. 38.)

The legislation also contains a prohibition of mistreatment of whistleblowers in cases related to the issue of treatment of those with HIV or AIDS. The protection covers people who make complaints, bring proceedings, give information, or serve as witnesses in related proceedings. (Id. art. 40.) Judicial Magistrate First Class Courts have jurisdiction to hear cases of offenses defined in the Bill. (Id. art. 41.)

Background

The United Nations AIDS office estimates that as of 2015, about 2.1 million people were living with HIV in India and that 68,000 had died of the disease. (India: HIV and AIDS Estimates, UNAIDS (last visited Apr. 27, 2017).) As of December 2016, one million people in India were receiving treatment for HIV infection. (Id.) The number cited in Azad’s statement attached to the Bill in 2014 was 2.39 million people infected with HIV. He added that the epidemic was largely confined to high risk individuals, such as female sex workers, men in sexual relationships with other men, and intravenous drug users. He argued that it was important to provide services including treatment for sexually transmitted infections, testing for HIV, condoms, and clean needles to prevent the epidemic from spreading to the general population. (Statement of Objects and Reasons, supra, ¶ 1.)

Reactions

India’s current Minister of Health and Family Welfare, Jagat Prakash Nadda, called the law “historic”; the legislation was also applauded by organizations that advocate for the rights of those with HIV.  Steve Kraus of the U.N. AIDS Regional Support Team for Asia and the Pacific said that the “legislation begins to remove barriers and empowers people to challenge violations of their human rights.” (Suri, supra.) According to Huidrom Rosenara of the India HIV/AIDS Alliance, “there have been many incidents of discrimination in hospitals, schools, and communities,” and even though the rate of such incidents has gone down in recent years, they still occur. She added that the legislation “is a long awaited and positive move. We are very optimistic about it as it speaks volumes about the political commitment.” (Id.)

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Israel: First Female Judge Selected for Muslim Religious Court

(Apr. 27, 2017) On April 25, 2017, the Qadis (Muslim law judges) Appointment Committee in Israel selected Hana Mansour-Khatib, a female jurist, for the position of a Sharia (Islamic law) court judge.  Mansour-Khatib is a lawyer specializing in Sharia family law and a licensed mediator.  (Hur Uriel Nizari, History in the Committee for the Appointment of Qadis: A Woman Appointed to a Senior Position, TAKDIN (last visited Apr. 26, 2017) (in Hebrew).)

A bill that would have mandated the appointment of women to Sharia courts, put forward by MP Issawi Frej, had been submitted to the Knesset (parliament) before the appointment of Mansour-Khatib was announced.  (Judy Maltz, Israel Appoints First Female Judge to Muslim Religious Court, HAARETZ (Apr. 25, 2017).)  The bill was reportedly defeated in the Ministerial Legislative Committee because of opposition from two Jewish ultra-Orthodox members: Health Minister Yaakov Litzman and Religious Affairs Minister David Azoulay.  According to Frej, the opposition to the passage of the bill was based on their fear that the appointment of women to Sharia courts “would set a precedent in the Jewish religious courts.”  (Id.)  Frej noted that after the bill was defeated he “obtained a promise from Justice Minister Ayelet Shaked that she would help him circumvent the Knesset.  Shaked, who heads the Judicial Committee, fulfilled that promise … .” (Id.)

The Oadis Appointment Committee 

The Qadis Appointment Committee is established under the Qadis Law, 5721-1961 (SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] No. 339 p. 118, as amended).  The Committee is composed of nine members, including the President of the Sharia Court of Appeals and an additional Qadi selected by the sitting Qadis; Israel’s Minister of Justice and a Muslim member or deputy member of government selected by the Minister of Justice; three Knesset (parliament) members, at least two of whom are Muslim; and two lawyers, at least one of whom is Muslim, selected by the Israeli Bar Association.  The Minister of Justice serves as chairperson of the committee.  (Id. § 4.)

Sharia Courts

Matters of personal status of Muslims in Israel are within the exclusive jurisdiction of the Sharia courts; Israel recognizes the continued jurisdiction of the Sharia courts and the Sharia Court of Appeals under the King’s Order in Council, 1922-1947.  (Sharia Courts (Appointments) Law, 5714-1953, SH No. 139 p. 43; King’s Order in Council, 1922-1947, § 52, 3 HUKEI ERETZ ISRAEL [LAWS OF THE LAND OF ISRAEL] p. 2738.)  There are eight regional Sharia courts in Israel.  In addition, there is a Sharia Court of Appeals and a Sharia courts administration, located in Jerusalem.  Regional courts adjudicate with one Qadi and the Sharia Court of Appeals with three Quadis. (Nizari, supra.)

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