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Legal news from Thursday, October 30, 2008

Indonesia parliament passes broad anti-pornography law
Leslie Schulman on October 30, 2008 4:02 PM ET

[JURIST] The Indonesian parliament [official website] on Thursday passed a controversial anti-pornography law [press release, in Bahasa] criminalizing all "obscene" works and "bodily movements" that could violate public morality. Proponents of the law include President Susilo Bambang Yudhoyono [official website; BBC profile] and his administration, who claim that the law will protect Islam and cultural art while eradicating pornography. Critics of the measure counter that the law is too broad and could hinder cultural art such as temple statues, and some were quoted Thursday as saying they would pursue legal challenges to it. The law was revised several times before being passed by parliament. AFP has more. Xinhua has additional coverage.

Approximately ninety percent of the population in Indonesia [JURIST news archive] is Muslim, though the country also has large Christian, Hindu, and Buddhist groups. The law is designed to protect younger generations from pornographic and lewd materials. It does not, however, prohibit tourists from wearing bikinis in Bali, a primarily tourist island.

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Sixth Circuit rules against Michigan voter removals
Leslie Schulman on October 30, 2008 3:15 PM ET

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Wednesday upheld [opinion, PDF; ACLU press release] an injunction granted by a federal judge earlier this month ordering Michigan voting officials to reinstate on voter rolls the names of newly-registered voters whose voter registration cards were returned to the post office as undeliverable. The ACLU of Michigan [advocacy website] had challenged [complaint, PDF] the new Michigan state law, which permitted nullification of such voter registrations, on the grounds that it violated the 1993 National Voter Registration Act (NVRA) [official backgrounder], which sets forth conditions that must be met before an individual can be removed from voting rolls. In a 2-1 opinion, the Sixth Circuit agreed, holding:

[T]here has never been a determination [here] that the [removed] voters are ineligible....[T]he preliminary injunction is necessary to protect the individual voters of Michigan affected by the undeliverable-voter-ID-card practice....[It] ensures that each individual who has properly registered to vote but was removed due to an error that is out of his or her control will be able to case a ballot on election day.
The NVRA allows registered voters to remain on voter rolls for at least two federal elections after registration cards have been returned as undeliverable. AP has more.

There have been a growing number of controversies over voting laws and procedures in the run-up to November 2008 voting. Earlier this month, the New York Times released a report [text; JURIST report] alleging that thousands of eligible voters in at least six swing states, including Michigan, have been removed from voter rolls against federal voting law. The report examined the actions of election officials in Colorado, Indiana, Ohio, Michigan, Nevada, and North Carolina, and found that the removal of a number of registered voters violated the Help America Vote Act (HAVA) [text]. The campaigns of both Senator Barack Obama and Senator John McCain [campaign websites] are recruiting thousands of volunteer lawyers [JURIST report] to help protect voters' rights on election day.

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Myanmar court sentences nine activists for disrupting prison trial
Benjamin Klein on October 30, 2008 10:57 AM ET

[JURIST] A court in military-ruled Myanmar [BBC backgrounder; JURIST news archive] on Wednesday sentenced nine activists to six months in prison after they complained that their trials were being held in secret, according to a statement by one of their lawyers speaking to Reuters. The presiding judge at the trial in Yangon's Insein Prison [BBC backgrounder] ruled that the activists had interrupted a public servant at a judicial proceeding by repeatedly asking for an open trial that relatives could attend. The judge asked the lawyers to leave the courtroom and then sentenced the activists to six months in prison. The activists continue to face several charges, including the violation of a law banning demonstrations, speeches, or written statements that could undermine stability. It is punishable by up to 20 years in prison. Reuters has more.

Most of the nine activists are leading members of the Burmese opposition 88 Generation Students movement [BBC backgrounder], a group of pro-democracy dissidents who were active during the country’s uprising in 1988. Nearly all of them were arrested in August 2007 during large anti-government street rallies led by Buddhist monks which were violently suppressed [JURIST report] by the military government. The UN Human Rights Council [official website] passed a resolution [press release] last March condemning Myanmar for ongoing systematic violations of human rights and people's fundamental freedoms. The European Union (EU) has also expressed concern over human rights violations in the country and the lack of investigations in the aftermath of last year's violent government suppression of pro-democracy demonstrations. According to Amnesty International [advocacy website], more than 2,100 people are imprisoned [Amnesty report] in Myanmar on account of their political or religious beliefs.

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Croatia justice minister proposes special courts to try organized crime cases
Andrew Morgan on October 30, 2008 10:55 AM ET

[JURIST] Croatia's recently appointed Justice Minister Ivan Simonovic [official profile, in Croatian] on Wednesday proposed [text, DOC, in Croatian] a set of legal reforms intended to combat the country's organized crime problem. In an address to the Croatian parliament [official website], Simonovic suggested establishing special courts to try organized crime and corruption suspects in the cities of Zagreb, Split, Rijeka and Osijek. Other proposed measures included improving witness protection methods, expanding property seizure rules, and restricting the communication access of incarcerated organized criminals. BBC News has more.

Combating organized crime is a major requirement for the former Yugoslav republic's accession to the European Union (EU) [government website]. While improvements were noted in a 2007 progress report [text, PDF], a recent rise in violence could cast a shadow on the 2008 report due out next month. Last week Ivo Pukanic, the founder and editor-in-chief of the outspoken newsmagazine Nacional [media website] was killed in a car explosion [AP report] blamed on criminal elements. Simonovic took over as justice minister in early October after Ivana Hodak, the daughter of a prominent Zagreb lawyer who is defending retired Croatian General Vladimir Zagorec against corruption charges, was shot to death [Sky report] outside her home, prompting Croatian Prime Minister Ivo Sanader to fire the then-incumbent.

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South Korea court upholds adultery ban
Benjamin Klein on October 30, 2008 10:09 AM ET

[JURIST] The Constitutional Court of South Korea [official website] upheld a law criminalizing adultery on Thursday, rejecting complaints that the 55-year-old law is outdated and constitutes an invasion of privacy. The challenge was brought by the lawyers of popular South Korean actress Ok So Ri, who was charged under the law [JoongAng Daily backgrounder] when her husband filed a criminal complaint against her for having an extramarital affair with an opera singer. Although only four of the nine judges supported the ban, the law remains valid; South Korean law requires a minimum of six judges oppose a statute in order to abolish it. Reuters has more. The Korea Times has local coverage.

Although it is rare for people to be jailed in South Korea [JURIST news archive] under the adultery law – in 2007, only 47 people were jailed while 592 were given suspended sentences – thousands of spouses continue to file criminal complaints. In 2005, a group of South Korean lawmakers introduced a parliamentary proposal to scrap the law, but backlash from conservative voters caused the effort to stall. Ri's challenge marks the fourth such challenge since 1989, with previous challenges brought in 1990, 1993 and 2001 [BBC report].

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Federal judge sides with DOD on FOIA exemptions for Guantanamo transcripts
David Weber on October 30, 2008 10:05 AM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] granted summary judgment [opinion, PDF] Wednesday for the Department of Defense (DOD) [official website], holding that unredacted transcripts allegedly containing evidence of torture used against fourteen "high-value" detainees [DNI biographies] being held at Guantanamo Bay [JURIST news archive] could be validly withheld from the American Civil Liberties Union (ACLU) [advocacy website] in response to a Freedom of Information Act (FOIA) [text] request that had already been addressed. According to the court:

Affording defendants’ declaration the appropriate presumption of good faith, the Court concludes that the withheld information was properly withheld under Exemptions 1 and 3 [of the FOIA].
Exemption 1 protects from disclosure national security information concerning national defense or foreign policy, provided it has been properly classified. Exemption 3 prohibits agencies from releasing any materials that are specifically exempted from disclosure by statute, provided there are particular criteria. The court found that the Defense Department had not waived these exemptions because the records had not been officially disclosed and plaintiffs' First Amendment rights had not been violated. The ACLU condemned the decision [press release]. AFP has more.

DOD published eight unredacted transcripts and six redacted transcripts [texts] on its website, and the ACLU filed a FOIA request to have the full documents released. After DOD refused, the ACLU filed suit [complaint, PDF; JURIST report] in March, 2008. In FOIA cases, judges have broad discretion to hold in camera review of classified materials.

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DOJ antitrust division approves Delta-Northwest merger
Devin Montgomery on October 30, 2008 9:41 AM ET

[JURIST] The US Department of Justice Antitrust Division [official website] on Wednesday approved [press release] a merger of Delta Airlines and Northwest Airlines [corporate websites] after determining the deal would not significantly decrease competition. The department said the merger would likely decrease operational costs for the carriers that would benefit customers, and was not likely to harm the industry:

The two airlines currently compete with a number of other legacy and low cost airlines in the provision of scheduled air passenger service on the vast majority of nonstop and connecting routes where they compete with each other. In addition, the merger likely will result in efficiencies such as cost savings in airport operations, information technology, supply chain economics, and fleet optimization that will benefit consumers. Consumers are also likely to benefit from improved service made possible by combining under single ownership the complementary aspects of the airlines' networks.
Northwest will now be a subsidiary of Delta and will form the world's largest airline. In a statement on the merger [press release], Delta said it expected annual savings of more than $2 billion because of the deal. AFP has more.

Delta and Northwest had previously faced financial trouble, and in 2005 both filed [JURIST report] for Chapter 11 bankruptcy protection [SEC backgrounder]. Because of its bankruptcy, Delta was able to settle a lawsuit [JURIST report] brought by pilots after it announced that it would be ending its pension plan. Northwest also successfully gained concessions from both flight attendants and pilots [JURIST reports] after its filing.

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Chaudhry still 'constitutional' chief justice of Pakistan: new bar president
Andrew Gilmore on October 30, 2008 8:44 AM ET

[JURIST] Ali Ahmad Kurd, the newly-elected president [Daily Times report] of the Pakistan Supreme Court Bar Association (SCBA), called [IANS report] ousted Pakistan Chief Justice Iftikhar Mohammed Chaudhry [JURIST news archive] the "constitutional" chief justice of Pakistan Wednesday, and said Chaudhry would "soon be restored" to his former post. Chaudhry was removed from his position as Chief Justice of the Supreme Court of Pakistan [official website] by former Pakistan president Pervez Musharraf following Musharraf's November 3, 2007 declaration of emergency rule [JURIST report]. Kurd, a prominent leader of the Pakistan lawyers' movement [New York Times backgrounder], takes over from Aitzaz Ahsan [JURIST news archive], who also supported Chaudhry's return to office. From Pakistan, Dawn has more. Geo TV has additional coverage.

Although Pakistani officials have now reinstated most of the over 60 judges ousted by Musharraf under the emergency, the Law Minister of the ruling Pakistan People's Party (PPP) has repeatedly insisted that Chaudhry will not be reinstated [JURIST report] because current chief justice Abdul Hameed Dogar was, according to him, legitimately appointed [JURIST report] and the Pakistani Constitution [text] does not permit the appointment of two chief justices. Chaudhry was the prime mover in the Pakistan Supreme Court's pre-emergency bid to constrain the country's executive, a role which brought about his initial suspension [JURIST report] by Musharraf in March 2007. He was subsequently reinstated [JURIST report] after months of agitation by Pakistani lawyers.

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UN General Assembly adopts resolution urging US to drop Cuba embargo
Ximena Marinero on October 30, 2008 8:22 AM ET

[JURIST] The UN General Assembly (UNGA) [official website] on Wednesday adopted [UNGA press release] by 185-3 a resolution [text, PDF] urging the US to lift its longstanding embargo on Cuba [US Treasury materials]. Only the US, Israel, and Palau voted No; Micronesia and the Marshall Islands abstained. This is the seventeenth consecutive year the Assembly has approved such a non-binding measure, with this year registering the highest number of votes in favor. The draft resolution proposed by Cuban Foreign Minister Felipe Perez Roque [official website] called for:

all states to refrain from promulgating and applying laws and measures...[that]...affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation...[and to conform with]...their obligations under the Charter of the United Nations and international law.
Member envoys supporting the resolution said the economic blockade violated Cuba's sovereignty and the human rights of its people [recorded video] contrary to the UN Charter [text]. US envoy Ronald Godard [official profile] said the US not only has the right to impose economic sanctions, but is also justified to "limit the ability of Cuba's repressive government to benefit and consolidate power through its authoritarian control over the Cuban economy." Reuters has more.

Relations between Cuba and the US [BBC timeline] have been dominated by the US economic blockade against Cuba for the past 46 years. The US has continued to impose increasingly stricter sanctions on the communist island. The most recent were enacted during the Bush and Clinton administrations, and include the Helms-Burton Act [text] and restrictions on travel and aid between families. Cuba has faced accusations of human rights violations [HRW report; JURIST report] from the international community. In February, Cuba signed two key human rights treaties [JURIST report], becoming party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.

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Top FDA officials opposed rule limiting tort claims against drug companies: report
Jake Oresick on October 30, 2008 7:57 AM ET

[JURIST] The US House Committee on Oversight and Government Reform [official website] on Wednesday issued a report [text, PDF] revealing that top Food and Drug Administration (FDA) [official website] officials opposed FDA regulations that preempt consumers’ ability to bring tort claims against drug manufacturers. The report said that career FDA officials objected to a 2006 regulation [text, PDF] revising the so-called Physician Labeling Rule because under it the agency’s approval of labeling preempted conflicting state law, significantly limiting the liability of drug makers. Prominent FDA staffers had maintained that state lawsuits complement the agency’s regulatory function by discovering risks that it cannot. The regulation also made it more difficult for pharmaceutical companies to add new warnings to existing drug labels. The report shows that Jane Axelrad, an FDA research director, expressed reservations about the rationale for lowering label content requirements:

[T]here are continued references to sponsors 'disclosing too much' risk information and its adverse impact.…We rarely find ourselves in situations where sponsors want to disclose more risk information than we think is necessary. To the contrary, we usually find ourselves dealing with situations where sponsors want to minimize the risk information.
AP has more.

The initial Physician Labeling Rule, as proposed in 2000, did not preempt state law. The FDA bolstered labeling restrictions with an August 2008 regulation [text, PDF] stating that manufacturers may not strengthen warnings except when there is "sufficient evidence of causal association with the drug."

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Ecuador selects new high court judges by lottery
Safiya Boucaud on October 30, 2008 7:52 AM ET

[JURIST] Ecuador selected a new temporary Supreme Court on Wednesday via lottery, but the judges picked plan to reject their appointments. The previous Supreme Court was abolished under a new constitution [text, in Spanish] that took effect last week. The temporary court that has now been set up in its place has designated 21 out of 31 former judges as members by lot and will operate until a permanent court takes over in 2009. Last week the judges of the previous Supreme Court released a statement [AP report] indicating their refusal to fill seats that have been selected by a process that they deemed degrading. AP has more.

The new constitution, approved in September by a referendum [JURIST, report], establishes a transitional regime that will govern until general elections in 2009. Last week the old Supreme Court took the first steps toward creating a new oral argument system [JURIST report], as required by the new charter. Critics continue to fear the 444-article document gives the president too much control over the economy and the judiciary.

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Torture prevention provisions in US-Iraq security agreement needed: HRW
Tarah Park on October 30, 2008 7:39 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday called for the addition of a clause to the pending US-Iraqi security agreement [released excerpts, text] that would shield detainees from transfer to Iraqi custody [press release] in order to avoid risk of torture. The group wants a provision that would allow prisoners a "legitimate chance" to contest their transfer, along with provisions that would permit the US to inspect Iraqi detention facilities before final transfers take place. If approved, the security agreement would require that the US receive permission before making all future arrests and that all new suspects be turned over to Iraqi control within 24 hours. The terms of the transfer of about 17,000 detainees currently being held by the US in Iraq are not specified. Iraqi authorities admit that they are not prepared to take on the prisoners until they build more prisons and train guards. HRW also urged the US to ensure that the eventual transfers comply with the UN Convention Against Torture [text] and that those who remain in US custody be guaranteed treatment that complies with the International Covenant on Civil and Political Rights (ICCPR) [text]. The New York Times has more.

The proposed security agreement, along with the Status of Forces Agreement (SOFA) [CFA Materials, JURIST report], would extend US forces' involvement in Iraq until 2011. Strong political opposition to the proposed agreement has caused both sides to consider asking the the UN for an extension of its current mandate [UN press release], which authorizes US troops to remain in Iraq only until the end of the year.

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Nebraska governor calls special legislative session to amend 'safe haven' law
Eric Firkel on October 30, 2008 6:21 AM ET

[JURIST] Nebraska Governor Dave Heineman [official website] announced Wednesday he is calling a special session of the state legislature on November 14 to amend Nebraska's so-called 'safe haven' law [LB 157 text, PDF]. The law, which went into effect in July, was intended to protect infants and prohibits prosecution of parents when a child is left in a licensed hospital. Under broad interpretation of the term "child," however, parents have legally abandoned several children in their late teens. Since July, nearly two dozen children have been dropped off in hospitals, and Nebraska lawmakers have said that the law is too broad [JURIST report]. In a press release [text], the governor said:

This law needs to be changed to focus on its original intent, which is to protect infants...A proposed three day safe haven law that the legislature has agreed to will be introduced by Speaker Flood on my behalf.
The new law will only permit parents to drop off children up to three days old. The New York Times has more. The Omaha Newsstand has local coverage.

Nebraska was the last of the fifty US states to enact its infant safe haven law [Child Welfare Information Gateway backgrounder], but all of the others apply strictly to children under one year old. Nationwide, there are different requirements for what constitutes a "safe haven:" in some states, like Nebraska, infants may only be relinquished to a hospital; in others, licensed personnel at emergency medical services, police stations, and fire stations can accept infants. In most states, once the safe haven provider has informed the local child services department that an infant has been abandoned, the department takes responsibility for the child and petitions the court for termination of the parent's parental rights.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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