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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.

Israel: Knesset Passes Additional Provisions on Police Testing of Drivers’ Alcohol and Drug Levels

(Dec. 6, 2018) On November 5, 2018, the Knesset (Israel’s Parliament) passed an amendment law with new provisions regarding the testing of drivers’ blood and alcohol levels by the police. (Transportation Ordinance (Amendment No. 125) Law, 5779-2018 (SEFER HAHUKIM [SH] [BOOK OF LAWS] (official gazette) 5778 No. 2755 p. 40, Ministry of Justice website (in Hebrew; click on issue No. 2755) (Amendment Law); amending the Transportation Ordinance (New Version), DINE  MEDINAT YISRAEL (Nusah Hadash) (DMY) [LAWS OF THE STATE OF ISRAEL (New Version), The Revised and Updated Hebrew Text of Legislation Enacted Before the Establishment of the State] No. 7, p. 173 (1961), as amended (TA).

The Amendment Law establishes a presumption that for the purpose of determining the state of drunkenness, blood alcohol content identified in excess of permitted levels in a driver’s breath, urine, or blood test is presumed to have been present in the driver’s body three hours prior to the test. (Amendment Law § 1(1), amending § 64B(a)(3) of the TA.)

In addition, the Amendment Law authorizes a law enforcement officer to require a driver or a person who controls a vehicle (defined under § 12A(1) of the TA as a driving instructor or a person accompanying a new driver) to provide a saliva sample for testing for the presence of a “dangerous drug,” utilizing a preapproved testing kit. Dangerous drugs are defined under the Dangerous Drugs Ordinance (New Version) 1973-5733, DMY No. 27 p. 526 (1973), as amended. The authority to require submission to a saliva test does not depend on a suspicion that the person committed an offense under the Transportation Ordinance. (Id., adding § 64B(A3)(1) to the TA).

The presence of a dangerous drug in a person’s saliva may constitute a reasonable suspicion that the person was driving under the influence of alcohol or dangerous drugs, creating the grounds for conducting of a blood or urine test on the driver or the controller, even if he or she is unconscious. A saliva test result that does not indicate the presence of a dangerous drug does not diminish the law enforcement officer’s authority to demand a driver or the controller of a vehicle to provide a blood or urine sample as long as a reasonable suspicion arises in the course of the saliva sampling. (Id., adding § 64B(A3)(2–3) to the TA.)

The Amendment Law clarifies that a person cannot be convicted of driving under the influence solely on the basis of results of a saliva test. (Id., adding § 64B(A3)(4) to the TA.)

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Tunisia: Cabinet Approves Bill Requiring Equal Inheritance Shares for Men and Women

(Dec. 4, 2018) On November 25, 2018, the cabinet of Tunisia approved a bill that, for the first time in the nation’s history, would require that male and female heirs receive equal inheritance shares. Tunisia is the first among Arab countries to adopt such a bill. The bill will now be referred to the Tunisian Parliament for debate and voting. (Tunisia Becomes the First Arab Nation to Approve Gender Equality in Inheritance Law, DHAKA TRIBUNE (Nov. 25, 2018).)

Tunisian president Beji Caid Essebsi announced that his cabinet’s approval of the bill was based on article 2 of the Tunisian Constitution, which states that Tunisia is a civil country based on three elements: citizenship, the will of the people, and the supremacy of the law. He added that Tunisian men and women have equal rights and duties and the Tunisian government has an obligation to defend the rights of women. (THE CONSTITUTION OF THE TUNISIAN REPUBLIC, 2014, ConstitutionNet website.)

Reaction to the Bill Inside Tunisia

A 2017 survey by the International Republican Institute showed that 63% of Tunisians, including 52% of women, oppose equal inheritance shares. (Tunisia Cabinet Approves Equal Inheritance Law, MIDDLE EAST MONITOR (Nov. 12, 2018).)

Likewise, Muslim clerics in Tunisia voiced their opposition to the concept of gender-equality inheritance, arguing that the concept violates the Qur’an’s assertion that a woman’s share of an inheritance is half that of men: “God instructs you concerning your children: for the male, what is equal to the share of two females.” (Qur’an 4:11 (translation by author).) Tunisia’s former chief mufti (legal expert) criticized the concept of equal inheritance shares, saying that the Qur’an had clearly regulated inheritance and the proposal to change the concept would end 1400 years of consensus among Islamic scholars on the subject of inheritance. A former Tunisian religious affairs minister, Noureddine Khadmi, likewise declared that the proposal to change the concept of inheritance is “a flagrant violation of the precepts of Islam.” (Tunisia Clerics Oppose Equal Inheritance Rights for Women, NEWS24 (Aug. 17, 2017).)

Finally, the Islamist-oriented Ennahda Party, one of the main political parties in Tunisia, rejected the President’s initiative to propose a modification of the inheritance rule. Ennahda has 68 members in the Tunisian Parliament out of 217 seats. The party claims that the modification of the inheritance shares contradicts the religious teachings, Personal Status Code, and the customs of Tunisian society. (Tunisia: Ennahda Rejects Inheritance Equality, HUMAN RIGHTS WATCH (Sept. 6, 2018).)

Reaction to the Bill Outside Tunisia

In a press release issued by Egypt’s grand mufti, Dr. Shawki Allam, the Egyptian Dar Al-Ifta (Egypt’s main religious organization) expressed its objection to the inheritance bill adopted by the Tunisian cabinet. Dr. Allam stated that definitive (qat‘i) Shari‘ah rulings, such as the rulings on inheritance, are not subject to personal reasoning (ijtihad). (Egypt Mufti Condemns ‘Equal Inheritance’ as Tunisia Forwards Controversial Law, AL-ARABY (Nov. 26, 2018).) He continued by saying that the call for equality in inheritance between genders contradicts the Qur’an and the Sunnah, and this is not a matter subject to personal reasoning or change due to cultural contexts. He similarly added God’s will regarding the shares of each heir in the case of male and female children is expressed in Qur’an 4:11. Finally, he declared that under Islamic Law (Shari’ah), males are entitled to inherit double the females’ shares only in four cases, while both genders inherit equally in more than 30 cases. (The Call for Gender Equality in Inheritance Contradicts Shari’ah Definitive Rulings and Consensus of Scholars, Egypt’s Mufti States, DAR AL-IFTA (Nov. 26, 2018).)

Islamic scholars representing the Egyptian Islamic Institution of Al-Azhar (the oldest Islamic religious institution in the Arab countries), such as Mahmoud Mehanna, also oppose the Tunisian president’s initiative of modifying the inheritance rule. Mehanna stated, “Neither Tunisia, its president nor the whole world can legislate a law or innovate the religion of Allah.” (Al-Azhar Scholar Warns Tunisian President of Enacting Inheritance Law, MIDDLE EAST MONITOR (Aug. 15, 2018).)

Reaction of International Nongovernmental Organizations and Secular Feminist Groups 

Feminist activists in Tunisia supported the concept of equal inheritance shares for women and men. The Tunisian Feminist Association activist, Najet Gharbi, endorsed the concept by saying that “[i]t’s time to have full equality in inheritance and full liberties[.] We want our country to be free and we want people to live freely.” (Thousands Rally in Tunisia to Support Equal Inheritance for Women, THE AFRICA REPORT (Aug. 15, 2018).)

Secular activists supported President Essebsi’s bill in a popular march, known as “a march for inheritance rights.” Nabila Hamza, cofounder of the Tunisian Association for Democratic Women, stated that current inheritance law is a significant barrier for women in that it reduces their economic independence. (Brennan Cusack, Tunisia’s Equal Inheritance Law Could Boost Female Entrepreneurship, FORBES (Aug. 22, 2018).)

International nongovernmental organizations have expressed support for the inheritance equality bill. Human Rights Watch, for example, stated that the Tunisian authorities must enact such a bill because it guards individual freedoms and eradicates discrimination against women. (Tunisia: Landmark Proposals on Gender Bias, Privacy, HUMAN RIGHTS WATCH (July 28, 2018).)

 

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New Zealand: Mandatory Phase Out of Single-Use Plastic Bags to Commence Mid-2019

(Dec. 3, 2018) On November 24, 2018, Associate Minister for the Environment, Eugenie Sage, announced that the New Zealand government had decided that a mandatory phaseout of single-use plastic shopping bags will come into effect in the middle of 2019. (Press Release, Eugenie Sage, Mandatory Phase Out of Single-Use Plastic Bags Confirmed (Nov. 24, 2018).) The government had originally announced the move to phase out such bags in August 2018, after 65,000 members of the public signed a petition calling for an outright ban. (Press Release, Jacinda Ardern & Eugenie Sage, Single-Use Plastic Bags to Be Phased Out (Aug. 10, 2018).)

Following the August announcement, the public was asked to comment on “options for the date the phase-out is to be complete by, what bags should be included, any retailers that should be exempted, and how best to help people with the transition.” (Id.) The Ministry for the Environment received more than 6,000 submissions and more than 3,000 responses to an online survey on waste reduction, with more than 92% of submitters favoring the mandatory phaseout proposal. (Press Release, Eugenie Sage, Thousands of New Zealanders Have Their Say on Plastic Bags (Sept. 6, 2018); Ministry for the Environment, Summary of Submissions: Proposed Mandatory Phase Out of Single-Use Shopping Bags 8–9 (2018).)

The requirement to phase out the bags will apply to all retailers and will cover “bags under 70 microns, with the exception of lightweight bags made of synthetic fabric and designed for multiple use over a long life. Degradable plastic bags will also be included, which covers oxo-degradable, biodegradable and compostable plastic bags.” (Mandatory Phase Out of Single-Use Plastic Bags Confirmed, supra.)

According to the Associate Minister,

[s]ingle-use plastic bags often end up polluting our precious coastal and marine environments and cause serious harm to marine mammals, sea-birds and other marine life.

Many retailers and individuals have already stopped using single-use plastic bags and recent research shows 50 per cent of New Zealanders now say they always bring reusable bags when shopping.

This change will be difficult for some people, and I acknowledge the impact on retailers, as well as local manufacturers and importers of plastic bags. For this reason, and to meet World Trade Organisation requirements, the phase out will have a six month implementation period, despite calls for a shorter timeframe. (Id.)

The new requirements will be included in a regulation made under the Waste Minimisation Act 2008, which enables the government to make regulations controlling or prohibiting the sale, manufacture, or disposal of certain products or materials. (Waste Minimisation Act 2008, s 23.) There is currently one other regulation related to prohibiting certain plastic products—the Waste Minimisation (Microbeads) Regulation 2017—which came into effect on June 7, 2018. (Plastic Microbeads Ban, MINISTRY FOR THE ENVIRONMENT (last visited Nov. 26, 2018).)

The New Zealand government recently signed the New Plastics Economy Global Commitment, which “aims to eradicate plastic waste and pollution at the source and has been signed by 250 organisations including many of the world’s largest packaging producers, brands, retailers and recyclers, as well as governments and NGOs.” (Press Release, Eugenie Sage, New Zealand Signs Global Declaration to Cut Plastic Waste (Oct. 29, 2018). See also Global Commitment, NEW PLASTICS ECONOMY (last visited Nov. 26, 2018).)

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South Africa: National Minimum Wage Bill Enacted

(Nov. 30, 2018) On November 26, 2018, South African President Cyril Ramaphosa signed into law the National Minimum Wage Bill (now the National Minimum Wage Act), which the National Assembly and the National Council of Provinces, the two houses of the country’s Parliament, passed on May 29 and August 21, 2018, respectively. (South Africa’s Ramaphosa Signs Minimum Wage Bill into Law, REUTERS (Nov. 26, 2018); National Minimum Wage Bill (B31-2017): Bill History, PARLIAMENTARY MONITORING GROUP (last visited Nov. 26, 2018); National Minimum Wage Act (NMWA), Act No. 9 of 2018, GOVERNMENT GAZETTE (Nov. 27, 2018).) According to the memorandum accompanying the Bill, the “main object of the Bill is to provide for a national minimum wage in order to advance economic development and social justice by improving the wages of lowest paid workers, protecting workers from unreasonably low wages and promoting collective bargaining and supporting economic policy.” (National Minimum Wage Bill, B 31B—2017, Memorandum on the Objects of the National Minimum Wage Bill, 2017, at 11.)

The NMWA sets a mandatory, national minimum wage at 20 South African rand (ZAR) (about US$1.44) “for each ordinary hour worked.” (NMWA § 4.) Ordinary hours of work are generally defined as “45 hours in any week … and nine hours in any day if the employee works five days or fewer in a week … or … eight hours in any day if the employee works on more than five days in a week.” (Basic Conditions of Employment Act 75 of 1997, § 9 (Dec. 1, 1998), University of Pretoria website.) The NMWA states that all employees are entitled to receive and all employers are required to pay wages no less than the national minimum wage. (NMWA § 4.)  It further states that the national minimum wage “cannot be waived and … takes precedence over any contrary provision in any contract, collective agreement or law, except a law amending this Act.” (Id.)

The national minimum wage is not universal in its application; the NMWA imposes lower minimum wage rates for farm workers, domestic workers, and persons engaged in expanded public works programs. The definition of each role and the applicable hourly wages are reflected below:

Category Definition Hourly wages
Farm worker “a worker who is employed mainly or wholly in connection with farming or forestry activities, and includes a domestic worker employed in a home on a farm or forestry environment and a security guard on a farm or other agricultural premises” ZAR18

(about US$1.3)

Domestic worker “a worker who performs domestic work in a private household and who receives, or is entitled to receive, a wage and includes— (a) a gardener; (b) a person employed by a household as a driver of a motor vehicle; (c) a person who takes care of children, the aged, the sick, the frail or the disabled; and (d) domestic workers employed or supplied by employment services” ZAR15 (about US$1.08)
Persons engaged in expanded public works programs “a programme to provide public or community services through a labour intensive programme determined by the Minister [of Labour]” ZAR11 (about US$0.79)

(NMWA sched. 1.)

In addition, the NMWA permits certain employers to seek and obtain exemptions from the mandatory, national minimum wage. According to the NMWA, “[a]n employer or an employer’s organisation registered in terms of section 96 of the Labour Relations Act, or any other law, acting on behalf of a member, may, in the prescribed form and manner, apply for an exemption from paying the national minimum wage.” (Id. § 5.) However, the NMWA restricts the application of any such exemption to a maximum of one year and requires that the exemption specify the wage that the employer will pay his or her employees during that period. (Id.)

The NMWA makes the national minimum wage rates subject to annual review and adjustment. To this end, it has established the National Minimum Wage Commission, one of whose functions is to “review the national minimum wage and recommend adjustments.” (Id. § 11.)  The NMWA mandates the Commission to review the national minimum wage annually and make recommendations regarding any adjustments it deems necessary to the Minister of Labour, who then determines the changes to the wages. (Id. § 6.)  In making recommendations of minimum wages, the Commission is required to consider the following factors:

(i) inflation, the cost of living and the need to retain the value of the minimum wage;
(ii) wage levels and collective bargaining outcomes;
(iii) gross domestic product;
(iv) productivity;
(v) ability of employers to carry on their businesses successfully;
(vi) the operation of small, medium or micro-enterprises and new enterprises;
(vii) the likely impact of the recommended adjustment on employment or the creation of employment; and
(viii) any other relevant factor. (Id. § 7.) 

The NMWA has yet to take effect; it will do so “on a date fixed by the President by proclamation in the [Government] Gazette.” (Id. § 17.)

The South African government predicts that the implementation of the national minimum wage “will raise the earnings of an estimated six million South Africans – more than half of the labour force – who earn below [minimum wage] at present.” (Press Release, The Presidency, President Cyril Ramaphosa Signs National Minimum Wage Bill into Law (Nov. 26, 2018), South Africa Government website.) A 2016 report issued by the country’s National Minimum Wage Panel found that over 6.7 million people in South Africa earned less than ZAR4,000 (about US$287) per month, below the working poverty line, which was at the time estimated to be ZAR 4,317 (about US$309). (NATIONAL MINIMUM WAGE PANEL, A NATIONAL MINIMUM WAGE FOR SOUTH AFRICA 7 (2016).)  According to the same report, more than half of  the country’s workforce earned below ZAR3,700 (about US$265). (Id.) According to the World Bank, over 55% of the South African population is living in poverty and, with a Gini Index of 63, South Africa has one of the world’s highest levels of inequality. (WORLD BANK, POVERTY & EQUITY BRIEF, SUB-SAHARAN AFRICA: SOUTH AFRICA (Apr. 2018), World Bank website.)

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China: Supreme People’s Court Designated as Appeals Court for Highly Technical IP Cases

(Nov. 29, 2018) On October 26, 2018, China’s National People’s Congress (NPC) Standing Committee issued the Decision on Several Issues Concerning the Litigation Procedures in Patent and Other Intellectual Property Cases (Decision). Effective January 1, 2019, the Decision designates the Supreme People’s Court (SPC), the highest court in China, as the appeals court to hear “highly technical” intellectual property (IP) cases. (Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Zhuanli Deng Zhishi Chanquan Anjian Susong Chengxu Ruogan Wenti de Jueding [Decision of the NPC Standing Committee on Several Issues Concerning the Litigation Procedures in Patent and Other Intellectual Property Cases] (Oct. 26, 2018), NPC website.)

The “highly technical” IP cases appealable to the SPC are those involving invention patents and utility models, new plant varieties, integrated circuit layout designs, technical trade secrets, computer software copyrights, or monopolies. The SPC is expected to report to the NPC Standing Committee on the implementation of the Decision in three years. (Id.)

An IP appeal court will officially be set up within the SPC on January 1, 2019, to hear the IP appeal cases. The creation of the IP appeal court, along with the specialized IP courts previously set up in Beijing, Shanghai, and Guangzhou, is laying the foundation for establishing a national IP appeal court in the near future. (Zuigaofa Zhishi Chanquan Fating Mingnian Yiyue Zhengshi Chengli, Zhuanli Jishu Anjian Zuo Shidian [SPC IP Court to Be Established Next January, Piloting Patent Cases], INTELLECTUAL PROPERTY PROTECTION IN CHINA (Nov. 2, 2018).)

Background: Specialized IP Courts in Beijing, Shanghai, and Guangzhou

In 2014 China set up three IP courts in Beijing, Shanghai, and Guangzhou, respectively, which specialize in hearing IP disputes arising in their areas. (2015 ZHONGGUO FALU NIANJIAN [2015 LAW YEARBOOK OF CHINA] 133 (2015).) Currently, first-instance IP cases heard by a specialized IP court are appealable to the IP tribunal of the higher court where the IP court is located. (Zuigao Renmin Fayuan Guanyu Beijing, Shanghai, Guangzhou Zhishi Chanquan Fayuan Anjian Guanxia de Guiding [Provisions of the Supreme People’s Court on the Jurisdiction of Intellectual Property Courts in Beijing, Shanghai and Guangzhou] (SPC, Oct. 31, 2014, effective Nov. 3, 2014) art. 7, SPC website.)

The specialized IP courts are on the level of intermediate courts and have jurisdiction over first-instance highly technical IP cases involving patents, new plant varieties, integrated circuit layout designs, technical trade secrets, and computer software. They also have jurisdiction over administrative cases involving copyrights, trademarks, and unfair competition, as well as civil cases involving well-known trademarks. (Id. art. 1.) The specialized IP courts also accept appeals of first-instance civil and administrative decisions relating to copyrights, trademarks, technical contracts, and unfair competition tried by the basic-level courts in Beijing, Shanghai, and Guangzhou. (Id. art. 6.)

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