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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.

Burkina Faso: Parliament Amends Penal Code

(Sept. 20, 2019) On June 20, 2019, Burkina Faso’s Parliament amended the country’s Penal Code to introduce a series of new offenses that aim to fight terrorism and organized crime, fight the spread of “fake news,” and suppress efforts to “demoralize” the Burkinabe armed forces. Many journalists and NGOs have denounced the newly created offenses, particularly those that restrict the activities of the media, as serious infringements on freedom.

The new law, which was deemed to be consistent with the Burkinabe Constitution by the Constitutional Council (the high court tasked with evaluating the constitutionality of legislation), was signed by Burkina Faso’s President on July 31, 2019, and officially published on August 1.

Most of the new provisions are under Title I of Book III of the Penal Code of 2018, which deals with “Crimes and Minor Offenses against the Security of the State.” Article 312-13, ostensibly aimed at “fake news,” makes it a criminal offense to “intentionally communicate, divulge, publish, or relay, by any means, false information of a kind to suggest that a destruction of property or an attack against persons has been committed or will be committed.” Article 312-14 criminalizes the act of publishing information about the “movement, geographic position, weaponry, and strength” of Burkinabé security forces, and article 312-15 criminalizes the publication of “information, images, or sounds” of a kind to “compromise an operation or an intervention” of the security forces against acts of terrorism. Lastly, article 312-16 criminalizes the “unauthorized publication, by any means, of the images or sounds of the scene of a terrorist offense.” Each of these offences carries a prison sentence of between one and five years, as well as a maximum fine of 10 million CFA francs (about US$17,000).

Under Chapter 1, Title VI, Book III, of the Penal Code, which deals with “Offenses Involving Terrorism,” the new law introduces article 361-23, targeting those who “illicitly and deliberately” furnish, accumulate, or manage funds with the intention of using them to commit acts of terrorism. The penalty is a prison sentence of between five and ten years along with a fine of up to 10 million CFA francs.

Finally, in the section of the Code dealing with “Offenses against the Honor, Reputation, and Privacy of Persons,” the new law amends article 524-6 to sanction the act of publicly insulting persons through “speeches, yelling, or threats,” with two to six months of prison time and a fine of up to 1 million CFA francs (about US$1,700). The same article specifies that insults directed against deceased persons with the intent of tarnishing the “honor and reputation” of their spouses and heirs are also prohibited. The new law makes insults punishable by a sentence of up to five years’ imprisonment and a fine of 2 million CFA francs (about US$3,400) if they are made “via an electronic means of communication.”

These amendments to the Penal Code have given rise to concerns that they would muzzle the Burkinabé press. Numerous professional media organizations have condemned the law for the severity of the penalties it imposes and the vagueness of the offenses it creates. The law will “grant to the state much greater control over information,” according to the director of the West African Bureau of Reporters Without Borders, and will “introduce extremely grave restrictions on the freedom to inform in a country that, until now, was considered exemplary.” Amnesty International has also expressed its opposition  to the new Penal Code, writing that articles 312-14 and 312-15 “jeopardize the legitimate exercise of the right to freedom of information protected by the Constitution of Burkina Faso and the African Charter on Human and Peoples’ Rights.”

Prepared by Henri Barbeau, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

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Canada: Higher Standards Set for Workplace Diversity

(Sept. 19, 2019) Effective January 1, 2020, all publicly traded companies regulated by the Canada Business Corporations Act (CBCA) must provide shareholders with details regarding the companies’ corporate policies on diversity among the board of directors and among senior management. In accordance with the passing of Bill C-25, An Act to Amend the Canada Business Competition Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, which received assent on May 1, 2018, federally incorporated companies must provide shareholders with information about their practices relating to workplace diversity. This includes showcasing the percentage of board members and senior management who are women, aboriginal people, people of color, and people with disabilities. The amendment to the CBCA fall within a “comply or explain” model—that is, affected companies that have not adopted policies regarding workplace diversity at the senior level must justify their decision. This arguably makes Canada the world’s first jurisdiction to require diversity disclosure beyond gender.

Background

Research has shown that, in Canada, women constitute 48% of the workforce, yet hold only an estimated 14% of all board seats and roughly 22% of the board seats at Financial Post 500 companies. In the Greater Toronto Area, over 50% of the population in 2015 were visible minorities. However, visible minority members accounted for only 12% of leadership roles and approximately 4.5% of senior leadership positions. When Navdeep Bains, minister of Innovation, Science and Economic Development, introduced Bill C-25 in 2016, he expressed the belief that it is the government’s moral duty to promote diversity and inclusion, stating that “[i]n the boardroom, as in life, taking into consideration viewpoints from a variety of perspectives can lead to innovative thinking and better performance. Innovation requires fresh ideas, new ideas, and the best ideas can come from anyone, anywhere.”

Provisions of the Bill

Bill C-25 must be read alongside the Regulations Amending the Canada Business Corporations Regulations, 2001, registered on June 25, 2019. The objective of the Regulations is to bring into force the diversity disclosure provisions of Bill C-25.

Section 24 of Bill C-25 adds section 172.1 to the CBCA. Section 172.1 reads as follows:

Diversity in corporations

172.1  (1)  The directors of a prescribed corporation shall place before the shareholders, at every annual meeting, the prescribed information respecting diversity among the directors and among the members of senior management as defined by regulation.

Information to shareholders and Director

(2)  The corporation shall provide the information referred to in subsection (1) to each shareholder, except to a shareholder who has informed the corporation in writing that they do not want to receive that information, by sending the information along with the notice referred to in subsection 135(1) or by making the information available along with a proxy circular referred to in subsection 150(1).

Information to Director

(3)  The corporation shall concurrently send the information referred to in subsection (1) to the Director.

Amendments to the Regulations Amending the Canada Business Corporations Regulations, 2001 provide further clarification about the upcoming changes regarding CBCA companies. The addition of part 8.2 to the Regulations provides specifications about corporate disclosure relating to diversity. Part 8.2 clarifies the definitions of terms such as “designated groups,” “major subsidiary,” and “members of senior management.” Interestingly, the definition of “designated groups”—“women, Aboriginal peoples, persons with disabilities and members of visible minorities”—is taken directly from section 3 of the Employment Equity Act.

Regulatory amendments also specify the need for companies to divulge detailed information regarding corporate practices to shareholders. For instance, affected corporations will be expected to provide shareholders with the following:

  • Written policy about the identification and nomination of directors from designated groups.
  • Details on whether the level of representation of designated groups is considered when nominating individuals for director roles.
  • Quantitative objectives for representation on the board.
  • The number of directors, presented in percentages, from each group listed in the definition of “designated groups.”
  • Reasons justifying the lack of a diversity policy if a company doesn’t have one in place.

Reactions to the Bill

Both the Liberal Party and the Conservative Party support the legislation. Members of the New Democratic Party (NDP), however, are of the belief that the bill is ineffectual because it does not address appointments by the federal crown. For this reason, after the introduction of Bill C-25 in September 2016, NDP MP Sheila Malcolmson subsequently introduced Bill C-220, An Act to Amend the Financial Administration Act (Balanced Representation).

Prepared by Haviva Yesgat, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.

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Brazil: Brazilian President Signs Decree Authorizing Use of Armed Forces in Amazon Region

(Sept. 19, 2019) On August 23, 2019, Brazilian President Jair Bolsonaro signed Decree No. 9,985 (Decreto No. 9,985, de 24 de Agosto de 2019) authorizing the use of the armed forces to assist in fighting fires in the Amazon forest.

Article 1 of Decree No. 9,985 authorizes the use of the armed forces to guarantee law and order (Garantia da Lei e da Ordem) and for subsidiary actions from August 24 to September 24, 2019, in the border areas, indigenous lands, federal protected areas, and other areas of the Legal Amazon (Amazônia Legal) states that require preventive and suppressive actions against environmental crimes, and surveying and combating fire outbreaks.

Article 2 of the Decree provides for the use of the armed forces in other areas of the Legal Amazon if the governor of the respective state requests the president of the republic to authorize their use, subject to the provisions of article 15(3) of Supplementary Law No. 97 of June 9, 1999 (Lei Complementar [L.C.] No. 97, de 9 de Junho de 1999)—namely, when the respective head of the federal or state executive branch formally recognizes that the instruments listed in article 144 of the Federal Constitution (Constituição Federal [C.F.])—the federal police, federal highway police, federal railway police, civil police, military police, and military fire brigades—are considered unavailable, nonexistent, or insufficient to the regular performance of their constitutional mission.

Article 3 of Decree No. 9,985 determines that the minister of defense is to define the allocation of available resources and the commands responsible for the operation, while article 4 states that the armed forces are to be used in conjunction with the public security organs, coordinated by the commands referred to in article 3, as well as with public environmental protection agencies and entities.

Law and Order Guarantee

The law and order guarantee is derived from article 142 of the Constitution, which states that the armed forces (the navy, army, and air force) are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the president, and are intended to defend the homeland, the guarantee of “the constitutional powers” (the executive, legislative, and judicial) and, at the initiative of either of them, law and order.

According to article 15 of L.C. No. 97, the use of the armed forces in defense of the homeland and in the guarantee of the constitutional powers, law and order, and participation in peace operations is the responsibility of the president, who must direct the minister of defense to deploy those forces. Section 2 of this article requires that the use of the armed forces to guarantee law and order, at the initiative of any of the constitutional powers, must take place in accordance with the directives issued by the president subsequent to the use of the instruments intended for the preservation of public order and safety and the security of persons and assets listed in article 144 of the Federal Constitution.

Section 4 of article 15 provides that preventive and suppressive measures by the armed forces to guarantee law and order are to be initiated at the direction of the president, in a previously established area and for a limited time, under the conditions provided for in section 3 of article 15.

Article 1 of Decree 3,897 of August 24, 2001 (Decreto No. 3,897, de 24 de Agosto de 2001) sets the guidelines for the planning, coordination, and execution of the actions of the armed forces and federal government agencies in order to guarantee law and order.

Legal Amazon

The Legal Amazon encompasses eight states—Acre, Amapá, Amazonas, Mato Grosso, Pará, Rondonia, Roraima, and Tocantins. It was created on January 6, 1953, by Law No. 1,806 (Lei No. 1.806, de 6 de Janeiro de 1953) and later redefined by Law No. 5,173 of October 27, 1966 (Lei No. 5,173, de 27 de Outubro de 1966) for the purpose of economic and development planning for the region.

According to Brazil’s Institute of Applied Economic Research (IPEA), 56% of the Brazilian indigenous population resides in the Legal Amazon.

Updated September 19, 2019.

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Denmark: Supreme Court Upholds Conviction of Danish Citizen for Illegal Presence in Syria

(Sept. 18, 2019) On August 27, 2019, the Danish Supreme Court sentenced a Danish citizen for unlawful presence in al-Raqqa, Syria, while fighting against the Islamic State (ISIS). The Court thereby affirmed the appellate court decision, finding that the citizen’s presence violated section 114 j of the Danish Criminal Code. (Supreme Court Case No. 27/2019, Aug. 27, 2019.) The fact that he was fighting against ISIS was not considered extenuating circumstances.

Prohibition on Travel to and Presence in Conflict Areas

Section 114 j of the Criminal Code prohibits Danish citizens and residents from being present in conflict areas without the express prior authorization from Danish authorities, punishing offenders with monetary fines or imprisonment of up to six years. (Para. 1.)

Ministry of Justice Regulations Prohibiting Presence in Syria

On September 28, 2016, the Danish Ministry of Justice issued regulation BEK nr 1200 af 28/09/2016, which provided that certain areas of Syria and Iraq were designated as conflict areas, and traveling there would constitute a violation of section 114 j of the Criminal Code. Specifically, the 2016 regulation prohibited travel to and presence in (1) Syria’s al-Bab District of Aleppo Province, al-Thawrah and al-Raqqa Districts in al-Raqqa Province, and Dayr al-Zawr Province, and (2) Iraq’s Mosul District in Ninawa Province. Only those exercising “Danish, foreign, or international public service or duties” were exempted. (BEK nr 1200, § 1, stk. 1, 2.)

On July 11, 2019, a new regulation, BEK nr. 708 af 06/07/2019, took effect, repealing BEK nr 1200 of 2016 and removing al-Raqqa from the updated list of prohibited places, consisting of Dayr al-Zawr and Idlib Provinces in Syria. The removal of al-Raqqa from the list does not exculpate any previous violations, however.

Background of the Court Case

“T” travelled to al-Raqqa on up to 25 occasions to fight for the Kurdish YPG militia against ISIS between 2016 and 2017. Following the publication of a newspaper article about T’s presence in al-Raqqa, T was questioned by the Danish authorities and prosecuted under § 114 j of the Criminal Code. The district court convicted him and sentenced him to six months’ imprisonment. The court of appeals affirmed the lower court’s verdict, specifically noting that T’s involvement with the YPG was not an extenuating but an aggravating factor, as he had participated in armed conflict in a designated conflict zone. After the appeals court’s verdict had been issued, the Danish authorities repealed the 2016 regulation that prohibited staying in al-Raqqa because ISIS had been defeated and the security situation in the area had improved.

Supreme Court Verdict and Reasoning

The question before the Supreme Court was whether T could still be sentenced under the original regulation even though it was no longer in force. Evidentiary issues such as the GPS positioning of his cellphone and whether T legitimately thought he was covered by the exemption in section 114 j, paragraph 2, were not part of the Supreme Court’s review. (Supreme Court Case No. 27/2019.)

Instead the Court had to determine whether the section 114 j provision violated the right to freedom of movement as guaranteed in article 2 of Protocol No. 4 of the European Convention on Human Rights, and whether the repeal of the 2016 regulation constituted a violation of article 7 of the Convention, which provides as follows:

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

The Court found that the repeal of the 2016 regulation did not preempt the conviction of T, and that his conviction did not violate article 7 of the Convention, as paragraph 2 specifically provides that the protection does not preempt a person from being sentenced for an action that was a crime when it was carried out. The Court thus reaffirmed the court of appeals decision and sentenced T to six months’ imprisonment. (Supr. Ct. Case at 31.)

Supreme Court Sentencing

A minority of the Supreme Court argued that T should be sentenced to three months’ imprisonment conditioned on a one-year probation period in recognition of the importance of the YPG’s efforts in defeating ISIS. (Id. at 30.)

The majority found, however, that the legislative history of section 114 j of the Criminal Code provided no legal basis for such leniency, noting that the provision had been purposefully drafted to make it easier to prosecute (and deter) terrorists by requiring only that the prosecutor prove that the person was in the prohibited area. (Id. at 29.)

T has stated that he will bring the case before the European Court of Human Rights, arguing that not only does the law violate both article 7 of the Convention and article 2 of Protocol No. 4 on “Freedom of Movement,” but it merits challenging for political reasons in that the law is “absurd.” So far, T is the only person to be prosecuted under section 114 j.

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United States: The Constitution, Annotated: The Constitution Explained in Plain English

(Sept. 17, 2019) To celebrate this year’s Constitution Day, the Library of Congress is launching the Constitution Annotated, a website that provides online access to a massive Senate document that has served for more than a century as the official record of the US Constitution.

Previously, the Constitution Annotated—full name, “Constitution of the United States of America: Analysis and Interpretation”—has primarily existed as a 3,000-page hardbound volume provided to Congressional members. It explains in layman’s terms the Constitution’s origins, how the nation’s most important law was crafted and ratified, and how every provision in the Constitution has been interpreted. It has also been available on congress.gov.

But the new website, with advanced search tools, makes this important resource more accessible to an online audience. The Constitution Annotated is prepared by attorneys at the American Law Division of the Library’s Congressional Research Service. It conforms to the CRS standard of objective, authoritative, and nonpartisan analysis.

“To be successful, collections must be used. That’s why I’m excited about the Constitution Annotated getting a new website. It’s a great example of what we mean when we say we’re putting our users first,” said Librarian of Congress Carla Hayden. “We’ve taken some of the most comprehensive analysis of our Constitution—the laws that make America what it is—and we’re making them easier for everyone to use.”

The website is the latest step in the volume’s evolution. Congressional manuals in the 19th century included the earliest version of the Constitution Annotated—an indexed Constitution, the provisions of which were later annotated with lists of judicial decisions. When these lists became unwieldy, subsequent editions provided analysis of judicial interpretations of the Constitution, resulting in the volume’s current 3,000-page length.

The website brings the Constitution Annotated into the 21st century with Boolean search capabilities, case law links, browse navigation, and related resources. Reflecting that the Constitution Annotated is not only a historical record but also an analysis of current constitutional understandings, the new website enables CRS attorneys to apprise Congress and the public of legal developments quickly.

By making the document fully searchable and readily accessible online, the new website allows the public to study the Constitution easily, providing a key resource for legal scholars, lawyers, journalists, high school teachers, and anyone interested in the foundational law of the nation. The website will also be an important educational resource for students.

Prepared with the assistance of the Congressional Research Service staff.

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