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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.

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 ¶3.)

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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China: New Supreme Court Interpretations on Enforcement of Civil Judgments

(Apr. 26, 2017) On February 28, 2017, the Supreme People’s Court (SPC) of the People’s Republic of China (PRC) released two judicial interpretations on enforcement of judgments in civil cases.  Both interpretations will come into effect on May 1, 2017.  (Zuigao Renmin Fayuan Guanyu Minshi Zhixing Zhong Caichan Diaocha Ruogan Wenti de Guiding [SPC Provisions on Several Issues Regarding Investigation of Assets in the Enforcement of Civil Judgments] (Investigation Interpretation), SPC website; Zuigao Renmin Fayuan Guanyu Xiugai “Zuigao Renmin Fayuan Guanyu Gongbu Shixin Beizhixingren Mingdan Xinxi de Ruogan Guiding” de Jueding [SPC Decision on Revising the SPC Provisions on Several Issues Regarding Release of Information on the List of Dishonest Judgment Debtors] (List Interpretation), SPC website.)

Courts’ Investigation Methods

The Investigation Interpretation provides that there are three main sources that may be used to locate enforceable assets of a judgment debtor: sources provided by the judgment creditor, reports from the judgment debtor, and online or on-site investigations conducted by the court. (Investigation Interpretation, arts. 1 & 12.)  It was reported that through the online checking and control system, courts have access to deposits, securities, vehicles, and 13 other categories of asset information stored by more than 3,400 commercial banks and government agencies, including the Ministry of Public Security, Ministry of Transport, State Administration of Industry and Commerce, and People’s Bank (the central bank of China) for the purpose of enforcing judgments.  (Luo Sha, Chengzhi “LaoLai” Xian Weili [(Courts) Show Power in Punishing “Deadbeats”], PEOPLE (Feb. 15, 2017).)  In the Investigation Interpretation, the SPC states that investigations conducted through the online checking and control system have the same legal effect as on-site investigations, and electronic legal documents issued by courts carry the same legal weight as paper documents.  (Investigation Interpretation, art. 13.)

In addition, based on an application filed by judgment creditors, courts are allowed to issue announcements of rewards to be given for locating the enforceable assets of judgment debtors.  (Id. art. 21.)  Rewards will be deducted from the total amount of the enforceable assets due to be paid to the judgment creditors, or be paid by the judgment creditors if the rewards are not deductible from that total amount.  (Id. art. 24.)  The announcement letters will be posted on the courts’ online platforms and social media pages or on bulletin boards at the place of residence of the judgment debtors.  (Id. art. 22.)

Self-Reporting Requirement 

The Civil Procedure Law requires judgment debtors to report their current assets and the assets they owned in the past year.  (Zhonghua Renmin Gongheguo Minshi Susong Fa [Civil Procedure Law of the PRC] (adopted on Apr. 9, 1991, revised on Aug. 31, 2012, effective on Jan. 1, 2013), art. 241, National People’s Congress website.)  In 2009, the SPC issued an interpretation stating that courts are entitled to issue an Assets Report Order to judgment debtors.  (Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minshi Susong Fa Ruogan Wenti de Jieshi [SPC Interpretation on Several Problems with the Implementation of the Enforcement Process Under the Civil Procedure Law of the PRC] (adopted on Nov. 3, 2008, effective on Jan. 1. 2009), art. 31, INVEST IN CHINA.)

Reportedly, however, the self-reporting system does not work effectively due to the lack of punishment for noncompliance. (Zuigaofa: Wanshan Zhixing Guifan Tixi, Qieshi Jiejue Zhixing Nan [SPC: Perfect the Enforcement Regulation System, Conscientiously Resolve Enforcement Problems], SINA (Mar. 1, 2017).)  To address this problem, the Investigation Interpretation adds a provision stating that a judgment debtor who refuses to report his or her assets, provides false reports, or delays reporting without reasonable cause will be subject to fines, detention, or criminal liability.  (Investigation Interpretation, art. 9.)  Such a person will also be put on the List of Dishonest Judgment Debtors.  (Id. art. 10.)

List of Dishonest Judgment Debtors

The SPC established the List of Dishonest Judgment Debtors in 2013.  (Zuigao Renmin Fayuan Guanyu Gongbu Shixin Beizhixingren Mingdan Xinxi de Ruogan Guiding [Certain SPC Provisions on Releasing the List of Dishonest Judgment Debtors] (2013 Interpretation) (adopted on July 1, 2013, effective on Oct. 1, 2013), SPC website.)  Once a person is put on the List, he or she will be subject to restraints on consumption.  (Zuigao Renmin Fayuan Guanyu Xianzhi Beizhixingren Gaoxiaofei ji Youguan Xiaofei de Ruogan Guiding [Certain SPC Provisions  on Restraining Judgment Debtors’  High Consumption and Relevant Consumption] (adopted on May 17, 2010, revised on July 6, 2015, effective on July 22, 2015), art. 1, CHINA LAW AND REGULATION.)  He or she will not be allowed to take a plane or a high-speed train, purchase real estate, purchase vehicles unnecessary for doing business, send his or her children to expensive private schools, or purchase expensive insurance products.  (Id. art. 3.)

The new List Interpretation revises several provisions in the 2013 Interpretation.  First, it adds a term for a judgment debtor to remain on the List – two years in general, but extendable for another one to three years if the judgment debtor impedes or refuses enforcement by violence or threat or engages in more than one type of dishonest conduct.  (List Interpretation, art. 2.)  Second, if a judgment debtor provides sufficient guarantees for compliance with the enforcement order, he or she will not be put on the List.  (Id. art. 3.)  Third, the new List Interpretation adds a provision describing the procedures for judgment debtors to file objections and for higher courts to review the denial of such objections.  (Id. art. 12.)

Prepared by Emma Wei, Law Library Intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

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Taiwan: Removal of Statute of Limitations on Homicide Proposed in Major Reform of Criminal Code

(Apr. 26, 2017) On March 21, 2017, Taiwan’s Ministry of Justice, “in a landmark legal reform,” issued a draft text for public comment on recommended amendments to the Criminal Code and to its law of implementation, among them the elimination of the country’s current statute of limitations on homicide to allow the prosecution of murders “indefinitely in the future.” (Judy Lin, New Bill to Remove Statute of Limitations on Homicide, TAIWAN NEWS (Mar. 27, 2017); Press Release, Announcement of Draft Amendments to Some Provisions of the Criminal Code of the Republic of China and of Draft Amendments to Article 8 bis and 10 ter of the Criminal Code Enforcement Act of the Republic of China (Announcement), Ministry of Justice website (Mar. 21, 2017) (in Chinese); Draft Text available from the same website (click on long rectangular window under “Download Attachment” in orange characters to view text of the proposed revisions (in Chinese).)

The 1935 Criminal Code, according to the Taiwan News, “has been heavily criticized for its outdated regulations,” leading the Ministry to recommend more than 20 amendments to it; it is anticipated that removal of the statute of limitations in connection with murder could help the authorities solve cold cases, whose solution was hampered in the past because forensic science was less advanced.  (Lin, supra.)  According to the Ministry, “the recommended amendments to remove the statute of limitations on serious crimes were modeled on legal practices in Japan and Germany, where homicide does not have a statute of limitations.”  (Id.)

Article 80 of the Criminal Code prescribes that “prosecution is barred by limitation if not exercised” within certain periods, e.g., “[t]hirty years for an offense that carries the maximum principal punishment of death or imprisonment for life or for not less than ten years.”  (Criminal Code of the Republic of China (CC) (Jan. 1, 1935, as last amended Nov. 30, 2016), art. 80 ¶ 1(1), Laws & Regulations Database of the Republic of China (toggle to “Ch” for text in Chinese).)  The proposed amendment to this provision would add the sentence, “[h]owever, if it results in homicide, the limit will not apply.”  (Draft Text, art. 80.)  The statutes of limitation of 20, 10, and 5 years, respectively for the various types of less serious crimes would remain the same.  (Id. art. 80 ¶¶ 1(2)-1(4).)  Under article 80, the specified period for a given statute of limitation will begin from the day on which the offense is committed; however, for offenses of a continuing nature, the period for the statute of limitation will begin on the last day on which the offense was committed.  (CC, art. 80 ¶ 2.)

Some Other Proposed Changes

The draft legislation also proposes that the sentence for persons convicted of taking the life of their own kin, under article 272 of the Criminal Code, be the same as that for homicide offenders, except that the term imprisonment that may be applied should be doubled.  (Lin, supra.)  Thus, article 271, on homicide, prescribes that a person who takes another’s life “shall be sentenced to death or life imprisonment or imprisonment for not less than ten years.”  (CC, art. 271 ¶ 1.)  Under the current article 272, persons who murder a family member or relative are subject upon conviction to life imprisonment or the death penalty, an inflexible prescription that “offers no room for judges to base their decision on the circumstances of the murder.”  (Lin, supra; CC, art. 272 ¶ 1.)  According to the explanatory note on the proposed revision, judges should “be able to double the length of prison sentences for those that murder their own family members in cold blood, but should take into consideration the circumstances of the murder,” e.g., handle with more lenient sentencing murderers who had “endured long years of abuse from the victim” but with much heavier sentencing those who had “planned the murder of their family members over trifling issues.”  (Lin, supra; Draft Text, art. 272.)

The current article 274 of the Code prescribes a sentence of imprisonment of between six months and five years for a mother who causes the death of her child at the time of or immediately after its birth; the draft amendment adds the phrase “as a last resort” (or, “because she had no other alternative”).  (Draft Text, art. 274.)  The explanation of the proposed change states that whether the act was done “as a last resort,” should be determined in judicial practice on a case-by-case basis, e.g., because the mother was unable to provide economic support for the child, the infant was born as a result of rape, or the newborn has mental or physical defects that cannot be treated.  (Id.; Lin, supra.)

The draft amendment proposes that the punishment under article 276 for a person who negligently causes the death of another be increased from the possible current two-year maximum sentence to up to five years, and the possible fine of up to TWD2,000 (about US$66) be increased to up to TWD50,000 (about US$1,648); the third possible punishment of short-term imprisonment is not affected by the proposed amendment.  (Draft Text, art. 276.)  The draft amendment would also entirely eliminate the second paragraph of the current article 276, which specifies punishment of persons who commit the above offense in the performance of occupational duties or activities “by neglecting the degree of care required by such occupation.”  (CC, art. 276 ¶ 2.)

Under the current Criminal Code, a person who maltreats a minor under 16 years of age or impairs his or her mental or physical health or development is subject to a sentence of up to five years of imprisonment upon conviction.  The draft amendment adds a minimum sentence of at least six months to this provision.  (Draft Text, art 276 ¶ 1.)  It also adds two new paragraphs prescribing harsher punishments when such maltreatment in itself or as a means of making a profit (punishable under art. 276 ¶ 2) leads to the minor’s death.

The public has 60 days from the date of publication of the draft amendments to comment on them. (Announcement, supra.)

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Israel: Expansion of Rabbinical Courts’ Enforcement Authority over Divorce Refusers

(Apr. 25, 2017) On April 3, 2017, the Knesset (Israel’s parliament) passed the Rabbinical Courts (Enforcement of Divorce Judgements) (Amendment No. 8) Law, 5777-2017 (Amendment Law). (SEFER HAHUKIM [BOOK OF LAWS, official gazette, SH] 5777 No. 2627 p. 593, available at KNESSET NATIONAL LEGISLATION DATABASE (in Hebrew).)  The Amendment Law amends the Rabbinical Courts (Enforcement of Divorce Judgments) Law.  (SH 5758-1998, No. 1507 p. 139, as amended (Enforcement Law) (in Hebrew).)

The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, authorizes rabbinical courts to adjudicate matters of marriage and divorce of Jewish citizens and residents of Israel, in accordance with Jewish law.  (Rabbinical Courts’ Jurisdiction (Marriage and Divorce) 5713-1953, as amended, §§ 1-2, SH 5713 No. 134 p. 165 (in Hebrew).)  While rabbinical courts may decide that the parties to a marriage should obtain a divorce, they do not have the power to dissolve the marriage.  For a divorce to be valid, Jewish law requires the consensual delivery of a get (writ of divorce) by the husband to the wife and her consensual receipt of the get.  (Jewish Divorce 101, CHABAD.ORG (last visited Apr. 24, 2017).) 

The Enforcement Law was designed to address the difficulty faced by persons whose spouses do not comply with a rabbinical court’s divorce judgment on giving or receiving a get.  To encourage compliance, the Enforcement Law provides enforcement authority to the rabbinical courts, including the power to subject non-compliers (get refusers) to imprisonment until they comply.  Imprisonment of a get refuser generally does not exceed a five-year period, which can be periodically extended to up to ten years.  (Enforcement Law § 3.)  The Enforcement Law also authorizes the rabbinical courts to issue “restriction orders” against prisoners already incarcerated either for committing unrelated offenses or for refusing to give a get.   (Explanatory Notes, Amendment Law Draft Bill, Knesset Hatsaot Hok No. 691 p. 117 (in Hebrew).)

According to the explanatory notes for the draft bill of the Amendment Law, “[a] refusal to give a get inflicts serious harm on the rights of the spouse, including his/her right to liberty, respect, and spousal relations, and sometimes even to his/her right to parenting.  That is why there is justification in imposing restrictions on a get refuser to bring him to give a get.”  (Id.)

Among the restrictions authorized by the Enforcement Law to be applied to prisoners who are get refusers are limitations on special leave, sending and receiving mail, visitation rights, paid work, purchases at the prison’s cantina, and early release.  (Enforcement Law § 2(a)(7).)   The Amendment Law provides that the rabbinical courts may also limit get-refusing prisoners from:

(10) participating in any organized educational activities that takes place in prison;

(11) receiving, according to his request, food that complies with special Kashrut (Jewish dietary laws), that is not provided to all the prisoners, as long as the food provided … includes basic items that comply with such requirements;

(12) staying in a special place in prison that is designated for religious prisoners; and

(13) wearing his personal clothes; [if] the rabbinical court so ordered, the prisoner or the detainee will be forced to wear prisoner clothing in public places in or outside of prison. (Amendment Law § 1, adding subsections 10-13 to § 2(a)(7) of the Enforcement Law.)

A prisoner who has been subjected to a restriction decree may be ordered to be held in solitary confinement for a period of 14 days until he complies with the divorce judgment.  This period may be renewed every nine days if the prisoner has not complied.  The placement of a prisoner in solitary confinement, however, cannot last under any circumstances more than seven days consecutively, and there is a break of seven days between each period of solitude.  (Enforcement Law § 3A(a-e).)

The Amendment Law provides that a rabbinical court that has ordered the placement of a person in solitary confinement may also order that the prisoner may not be permitted to have any phone contact or have any writing or reading materials except for a prayer book.  (Amendment Law § 2, adding subsection (f) to §3 A of the Enforcement Law.)

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