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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.

Kyrgyzstan: Court Denies Ballot Petition of Opposition Leader

(Sept. 12, 2017) On August 31, 2017, the Supreme Court of Kyrgyzstan upheld a lower court’s rejection of a petition to list opposition leader Omurbek Tekebaev on the presidential election ballot this October. (Elizabeth Lowman, Kyrgyzstan Supreme Court Rejects Petition to Put Imprisoned Opposition Leader on Ballot, PAPER CHASE (Aug. 31, 2017).)  Although a petition was  submitted with about 39,000 signatures in support of Tekebaev’s nomination, well over the  30,000 required, the Central Election Commission had contended that the signatures were not valid because his election fund did not cover the expenses of collecting the signatures.  (Id.)

Background

Tekebaev was placed in pre-trial detention in February 2017, with his detention confirmed by the Supreme Court in March, on charges of bribery, charges his supporters say are politically motivated. (Kyrgyz Supreme Court Upholds Detention of Opposition Leader, RADIO FREE EUROPE/RADIO LIBERTY (Mar. 29, 2017).) He was subsequently convicted and is now serving an eight-year term of imprisonment. (Lowman, supra.)

Relevant Law

Under Kyrgyzstan’s Constitution, the Supreme Court is “the highest body of judicial power in respect of civil, criminal, administrative as well as other cases; it shall revise the court rulings of local courts upon appeals of the participants in the judicial process in accordance with procedures established by the law.” (Kyrgyzstan’s Constitution of 2010, art. 96(1), CONSTITUTE PROJECT.) Its decisions are final and cannot be appealed.  (Id. art. 96(3).)

The law that governs presidential elections specifies that candidates for the presidency must have 30,000 signatures and that these signatures must be collected by authorized representatives of the candidate. (The Constitutional Law of the Kyrgyz Republic on Presidential and Jogorku Kenesh Elections in the Kyrgyz Republic (2011, as amended in 2017), art. 52 ¶¶ 1 & 2, LEGISLATION LINE (click on link embedded in the title of the law).)  The same law specifies that registration of a candidate will be canceled if a criminal court sentence for that candidate has entered into force.  (Id. art. 46 ¶ 2(8).)

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Japan: Basel Act Amended

(Sept. 12, 2017) The Act on Control of Export, Import, etc. of Specified Hazardous Wastes and Other Wastes (Basel Convention Act, Act No. 108 of 1992, E-GOV (in Japanese) is a Japanese domestic law corresponding to the Basel Convention to protect human health and the environment against the adverse effects of hazardous wastes.  (Overview, Basel Convention website (last visited Sept. 1, 2017).)  The Diet (Japan’s parliament) recently amended the Act and the amendment Act was promulgated on June 16, 2017.  (Act No. 62 of 2017, KANPO, Extra Ed. No.128, at 33 (June 16, 2017) (in Japanese).)  The amendment will be effective within one and a half years from the date of promulgation. (Id. Supp. Provisions, art. 1.)

The Basel Convention Act requires that people involved in the import and export of specified hazardous wastes for disposal or recycling obtain approval from the Ministry of Economy, Trade and Industry (METI) under the Foreign Exchange and Foreign Trade Act (Act No. 228 of 1949). (Basel Convention Act, art. 4 ¶ 1 & art. 8 ¶ 1.) The amended Act aims to enhance export regulations to achieve the purpose of the Convention.  (METI & Ministry of the Environment, Regarding a Bill to Partially Amend the Act on Control of Export, Import etc. of Specified Hazardous Wastes and Other Wastes (Basel Convention Act), METI website (Mar. 2017), (in Japanese).)

In order to effectively regulate mixed wastes that include specified hazardous wastes, the amendment clarifies the scope of the specified hazardous wastes, specifying them in a Ministry of the Environment ordinance. (Basel Convention Act, art. 2 ¶ 1 item 1(a).)  The amended Act also adds wastes that are designated as hazardous wastes by the domestic legislation of another country and that are to be exported to that country to the definition of specified hazardous wastes under the Basel Act.  (Id. new art. 2 ¶ 1 item 1(e).)  In addition, the amended Act clarifies what the Minister of Environment considers to be necessary pollution prevention measures of countries to which specified hazardous waste are exported.  (Id. new art. 4 ¶ 3.)  The METI Minister needs the Minister of Environment’s notification confirming that the necessary measures have been taken in the given country before the METI Minister can approve the export of the specified hazardous wastes.  (Id. art. 4 ¶ 4.)

Further, the amended Act aims to enhance the competitiveness of the domestic recycling business. It removes imports of relatively less hazardous wastes, such as electronic substrate materials when imported for recycling purposes, from regulation under the Act.  (Id. new art. 4 ¶ 3.)

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United Kingdom: Sentences for Terrorism-Related Offenses May Be Lengthened


With almost half a century of legislative experience, the United Kingdom is renowned for its robust anti-terrorism laws. The operation of these laws is reviewed on an annual basis by the Independent Reviewer of Terrorism Legislation. (The Independent Reviewer’s Role, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION (last visited Sept. 6, 2017).)

In a recent interview with the Press Association, the Independent Reviewer, Max Hill, was reported as stating that given the number and severity of recent attacks in the UK the current maximum sentence for certain offenses may be too lenient. He stated that “[w]ith the benefit of experience and hindsight it may be the case that some offences have insufficient discretionary maximum sentences, which should be reviewed.” (Maximum Terror Prison Sentences ‘May Be Too Low,’ BBC NEWS (Sept. 2, 2017).)

Of particular concern, according to Hill, are the offenses of failing to provide information to the police if a person knows or believes the information might be of material assistance to:

  • prevent the commission of an act of terrorism or
  • secure the arrest, prosecution, or conviction of a person in the UK for a terrorism offense. (Terrorism Act 2000, c. 11, § 38B, LEGISLATION.GOV.UK.)

The current maximum penalty upon conviction for this offense is up to five years of imprisonment and a fine. Hill has stated that this penalty should be reviewed to assess whether it is sufficient. (Maximum Terror Prison Sentences ‘May Be Too Low’, supra.)

Review of ‘Unduly Lenient’ Sentences

While Hill has suggested the need for an increased penalty, the laws of England and Wales allow the Attorney General independently, as well as upon referral from members of the public, to challenge punishments for a number of criminal and terrorism offenses under the Unduly Lenient Sentence Scheme. Under this plan, members of the public can request that the Attorney General review a case to see if the sentence is “unduly lenient.” If the Attorney General believes that the sentence is unduly lenient, he   may refer the case within 28 days of the original sentencing to the Court of Appeal for review. (Powers of Criminal Courts (Sentencing) Act 2000, c. 6, § 155, LEGISLATION.GOV.UK.)

The reasons the Attorney General may consider a sentence as unduly lenient are if that sentence:   

  • blunts the deterrent effect of the criminal law;
  • causes outrage to the victim;
  • is demoralizing to the police;
  • causes injustice to those who were appropriately sentenced;
  • undermines public confidence in the administration of justice and the authority of the courts;
  • may cause public danger; or
  • hinders development of a rational sentencing policy by the Court of Appeal. (House of Commons Library, Review of Unduly Lenient Sentences, Briefing Paper No. 00512 (June 30, 2017), at 4, Parliament website.)

Recently, in the wake of some individuals convicted of terrorism offenses receiving sentences that were considered by many to be too lenient and facing the inability to review them, the Justice Minister, Dominic Raab, added a number of additional terrorism offenses to the Scheme to enable the Court of Appeal to review additional cases, noting that the aim was to “reinforce our focus on deterring people who help radicalise terrorists, and punishing those who willfully turn a blind eye to terrorist activity.” (Owen Bowcott, Law to Be Changed so Terror Offenders’ Jail Terms Can Be Lengthened, GUARDIAN (London) (July 14, 2017).)

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Israel: High Court Rejects Petition to Recognize Same-Sex Marriages

(Sept. 11, 2017) On August 31, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, unanimously rejected a petition by Israel’s LGBT (lesbian, gay, bisexual and transgender) Task Force and individual petitioners. Petitioners had requested that the Court  recognize same-sex marriages and declare that sections 1-2 of the Rabbinical Court Jurisdiction Law, 5713-1953, which submit Jewish Israelis to the jurisdiction of rabbinical courts that adjudicate under Jewish law, do not apply to LGBT Israelis.  In the alternative, petitioners requested to declare that these provisions were void for allegedly conflicting with their rights to have a family and to enjoy equal treatment under the law, based on Basic Law: Human Dignity and Liberty.  (HCJ 7339/15 Israel Organization for Protection of Individual Rights v. Ministry of Interior (decision rendered Aug. 31, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY; Rabbinical Court Jurisdiction Law, 5713-1953 (as amended), SEFER HAHUKIM [OFFICIAL GAZETTE, SH] 5713 No. 134 p. 165; Basic Law: Human Dignity and Liberty 5752-1992 (as amended), SH 5752 No. 1391 p. 150 (all in Hebrew).)

According to Justice Elyakim Rubinstein, with Justices Neal Hendel and Anat Baron concurring:

Essentially, the petitioners are asking from the court to recognize same-sex marriage via legislation, despite the fact that they are not recognized by Israeli law… .  On the matter of recognizing marriage that was not conducted in accordance to the religious law – including same-sex marriage – it was ruled [by the court] in the past that it is better that the issue be determined by the legislative branch.  (HCJ 7339/15, ¶ 28, translated in Udi Shaham, Supreme Court Rejects Petition to Recognize Same-Sex Marriage, JERUSALEM POST (Aug. 31, 2017).)

Recognition of a new legal status of marriage for same-sex relationships, according to Rubinstein, is a “heavy and charged subject” with religious implications in “a Jewish and democratic state.” (HCJ 7339/15, ¶ 28, translations by author R.L.)  It therefore requires a legislative determination and cannot be achieved through judicial decisions. This conclusion, Rubinstein emphasized, “does not diminish LGBT rights in other areas,” referring to social and economic rights.  (Id.)

Noting that a number of countries, including the United States, have recognized same-sex marriage, Rubinstein concluded that in most countries such recognition was done through legislation.  (Id. ¶ 29.)

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Canada: Senate Passes Landmark Transgender Rights Bill

(Sept. 11, 2017) On June 15, 2017, the Transgender Rights Bill C-16 passed the third reading in the Senate of Canada, with a 67-11 vote.  (Phil Heidenreich, Senate Passes Bill C-16 Which Defends Transgender Rights, GLOBAL NEWS (June 16 2017).)  The bill officially became law on June 19, when royal assent to it was granted. (Bill C-16, Parliament of Canada website (June 19, 2017).)  Bill C-16 aims to prevent violence and discrimination against individuals on the basis of their gender identity or their gender expression “within the sphere of federal jurisdiction.”  (Julian Walker Legislative Summary of Bill C-16: An Act to Amend the Canadian Human Rights Act and the Criminal Code, Parliament of Canada website (Oct. 21, 2016).)

According to the Ontario Human Rights Commission (OHRC), gender identity is defined as a person’s “sense of being a woman, a man, both, neither, or anywhere along the gender spectrum.”  The OHRC explains that gender identity can be expressed through “behaviour and outward appearances such as dress, hair, make-up, body language and voice.  A person’s chosen name and pronoun are also common ways of expressing gender.” (Gender Identity and Gender Expression (Brochure), OHCR (last visited Aug. 21, 2017).)

Background

The past few years have led to a better understanding of transgender individuals in Canada. This increase of respect is due to human rights campaigning, activism, education and government lobbying. Canada, however, lacks explicit legal protections for transgender individuals, which makes them the targets of institutionalized and societal discrimination and prejudice.  (Matthew P. Ponsford, The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians, 38 WINDSOR REVIEW OF LEGAL & SOCIAL ISSUES 20, 37 (2017), p. 21.)

In the past, two other, similar bills were presented in Parliament and both died without even coming to a vote. The first was introduced in 2005 and the second, Bill C-279, in 2015; thus, June 15, 2017, represents the end of a decade-long battle for legal protection of transgender persons.  (Julie Moreau, Canadian Lawmakers Pass Bill Extending Transgender Protections, NBC NEWS (June 16, 2017).)

With a view to remedying the lack of a legal framework, Justice Minister Jody Wilson-Raybould introduced Bill C-16 on the International Day Against Homophobia, Transphobia and Biphobia, May 17, 2016. (Susana Mas, Transgender Canadians Should ‘Feel Free and Safe’ to Be Themselves Under New Liberal Bill, CBC NEWS (May 17, 2016).)

Bill C-16

Bill C-16 amends the Canadian Human Rights Act as well as the Criminal Code (Canadian Human Rights Act, R.S.C. (1985), ch. H-6; Criminal Code, R.S.C. (1985), c. C-46 (both JUSTICE LAWS WEBSITE.)  The Canadian Human Rights Act “prohibits discrimination by federally regulated employers or service providers, including federal departments, agencies and Crown corporations, First Nations governments and private, federally regulated companies, such as banks, trucking companies, broadcasters and telecommunications companies.”  (Walker, supra.)

The amending legislation adds gender identity and gender expression to the list of prohibited grounds of discrimination under the Canadian Human Rights Act:

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. (Bill C-16, § 2, amending § 3(1) of the Canadian Human Rights Act.)

By doing so, the Canadian legislation acknowledges their marginalization and the unique social challenges that trans- and gender diverse persons face in their everyday life which is a big step toward, since historically, transgender individuals were “socially erased.” The new law explicitly identifies trans- and gender-diverse persons as an oppressed and vulnerable minority and grants them equality in federally regulated workplaces and services.  (Matthew P. Ponsford, The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians, WINDSOR REVIEW OF LEGAL AND SOCIAL ISSUES 23 (last revised May 10, 2017).)  For example, Bill C-16 could push institutions such as penitentiaries to change their policies on the placement of trans- and gender-diverse inmates in gendered facilities.  (Moreau, supra.)

The amendment of the Criminal Code also identifies trans- and gender-diverse persons as a distinct group. Moreover, when a trans- or gender-diverse person is a victim of a crime, Bill C-16 allows the judge, in his sentencing, to take into consideration whether or not the crime was motivated by hatred against gender diversity or expression, that is, to consider “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.”  (Bill C-16, § 4, amending § 718.2(2)(I) of the Criminal Code.)

The new legislation, as the above amendments indicate, offers better protections against hate speech, hate propaganda, and hate crimes directed against transgender individuals. In the view of René Basque, President of the Canadian Bar Association, while the bill will not in itself stop the violence against this group of persons,  to  ”[i]t will send an important signal to the transgender community that Canadians are committed to building a safer society for all.” (Letter from René Basque, President of the Canadian Bar Association (CBA),  to the Honourable Bob Runciman, Chair, Standing Senate Committee on Legal and Constitutional Affairs, Senate of Canada, at 2, CBA website (May 10, 2017).)

Reactions

Bill C-16 has been controversial, raising many concerns among its opponents and giving rise to heated debate.  Jordan Peterson, psychology professor at the University of Toronto, was one of the main opponents of the legislation.  Peterson says that gender neutral pronouns are  “constructions of people that have a political ideology.”  (Genders, Rights and Freedom of Speech, The Agenda with Steve Paikin, TVO (Oct. 26, 2016).)   He also believes that the new law will compel the use of gender neutral pronouns in private speech, an argument that the Canadian Bar Association strongly rejected.  (Sarah Reid, Everything You Need to Know About the Transgender Rights Bill, TVO (May 30, 2017); Justin Ling, Canada’s Transgender Rights Bill Could Become Law Before the Summer, Despite Some Controversial Opponents, VICE (May 17 2017).)

Conservative Senator Don Plett was also a strong opponent of Bill C-16.  He argued that “gender expression” is a vague term and that including such a non-“immutable characteristic” as a ground for discrimination could lead to constitutional challenges.  (Reid, supra.)

Finally, some opponents were concerned that Bill C-16 would represent a step backward for the feminist cause. They argued, for example, that it would potentially endanger women by allowing men who identify as women to go into women-only spaces such as bathrooms or shelters.  (John Paul Tasker, Canada Enacts Protections for Transgender Community, CBC NEWS (June 16 2017).) Marni Panas, an outspoken transgender advocate, reacted to these concerns by saying they were mostly the result of “common myths” and “misunderstanding about trans people.” (Moreau, supra.)

However, many reactions to Bill C-16 were positive. Randy Boissonault, special adviser to the Prime Minister, characterized the legislation as “a critical extension of human rights” that “saves lives.”  (Moreau, supra.) The majority of Canadian lawyers and members of the Canadian Bar Association endorsed the legislation, and the 67-11 vote indicates that although the opponents were loud, they were a small minority.  (Reid, supra; Moreau, supra.)

Prepared by Marie-Philippe Lavoie, Law Library Intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.

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