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Legal news from Wednesday, July 7, 2010

Turkish court annuls parts of constitutional reforms
Hillary Stemple on July 7, 2010 3:46 PM ET

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[JURIST] The Turkish Constitutional Court [official website, in Turkish] on Wednesday annulled portions of the government-approved [JURIST report] constitutional amendments [text, in Turkish] aimed at limiting the power of the judiciary and bringing the traditionally-secular military and judiciary under government control. The court declined to annul the entire package of amendments, as requested [JURIST report] by Turkey's opposition Republican People's Party (CHP) [party website, in Turkish], and indicated that the remaining changes can be put to a referendum. The referendum is required because the reform package did not receive the two-thirds majority support in parliament, which was required to enact the law immediately. The remaining amendments will allow civil courts to try military officers [Bloomberg report], and expand labor union rights as well as consumer protections. Proponents of the reforms have insisted they are necessary in order for Turkey to meet the democratic and human rights standards required for admission to the EU. Opponents, however, have argued the reforms are meant to consolidate power [ANSAmed report] and to bring the traditionally secular judiciary and military under control of the government. A spokesperson for the ruling Justice and Development Party (AKP) [party website, in Turkish] expressed frustration with the ruling, stating that the court had exceeded its authority by performing a legislative function. The referendum on the remaining constitutional changes is scheduled for September 12.

Turkey has faced several obstacles as it works toward membership in the EU, including opposition to the constitutional reforms, its human rights record, its stance towards political parties and tension [JURIST news archive] between the AKP and the military. In April, the AKP submitted a revised version [JURIST report] of their proposed amendments, including a proposal to alter Article 157 of the Constitution [text, in Turkish] so that judges of the Military Supreme Administrative Court would have judicial immunity and be shielded from spurious claims. Many of the proposed revisions were criticized [JURIST report] in April by the president of Turkey's Supreme Court [official website, in Turkish], Hasan Gerceker [official profile, in Turkish]. Last year, the Constitutional Court of Turkey voted to ban [JURIST report] the Democratic Society Party (DTP) after finding the party had contacts with the Kurdish Workers Party (PKK) [GlobalSecurity backgrounder], a separatist, designated terrorist group. Turkish Prime Minister Recep Tayyip Erdogan [official profile; in Turkish] has sought to end Turkey's 25-year conflict [BBC report] with the PKK, which has been a major impediment to Turkey's bid to join the EU.

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Obama administration asks appeals court to reinstate oil drilling ban
Drew Singer on July 7, 2010 2:38 PM ET

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[JURIST] The Obama administration filed a brief [text, PDF] Tuesday asking a federal appeals court to reinstate the offshore drilling ban ordered after the BP oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. The filing in the US Court of Appeals for the Fifth Circuit [official website] argues that the court should allow for the six-month offshore drilling moratorium to be reinstated because the government will likely win its appeal of the lower court's ruling. The lower court, the brief says, "misperceived Interior's authority, the rationale for the suspensions, and the relative harms present in the Gulf. Plaintiffs and amici rely on those same misperceptions in opposing the motion." Those against the moratorium argue that it will hurt the gulf economy [PBS report, video], but the federal government argues in the brief that the temporary ban is necessary:
The stakes are even higher now that it is hurricane season. The suspension orders give Interior time to further implement 22 already-identified new safety measures and to develop others as it gathers more information. Therefore, that decision was a rational exercise, under emergency circumstances, of Interior's substantial discretionary authority under the Outer Continental Shelf Lands Act and its own regulations for suspending lease operations. The district court was wrong to substitute its judgment for Interior's and enjoin those suspensions.
The district judge issued a preliminary injunction against the moratorium [opinion, PDF; JURIST report] last month, saying it was necessary because the ban caused irreparable harm to both the plaintiffs—small oil companies affected by the ban—and the public.

Last week, the US House of Representatives [official website] approved a bill [HR 5503 materials] that would increase compensation [JURIST report] for injured workers and victims' families that have filed claims against BP as a result of the oil spill. Calls for criminal and civil actions have been mounting against BP as evidence of the oil company's lack of proper compliance with regulations has come out. Two lawsuits were recently filed [JURIST report] against BP alleging violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.]. Last month, US President Barack Obama [official website] announced the government's latest plan of action for tackling the oil spill, which includes a $20 billion compensation fund [JURIST reports] subsidized by BP. The escrow fund [government backgrounder] will be used to indemnify the workers and business owners harmed as a result of the oil spill. The announcement also included a long-term restoration plan and prevention of future disasters [JURIST report] through stronger regulation. More than 120 million gallons of oil have leaked already from the rig's broken pipe and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history.

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Srebrenica victims file complaint against Dutch peacekeepers
Hillary Stemple on July 7, 2010 2:33 PM ET

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[JURIST] A complaint was filed with the Dutch prosecutor's office on Tuesday alleging that three Dutch soldiers, operating as UN peacekeepers, were complicit in the commission of war crimes and genocide during the 1995 Srebrenica massacre [BBC timeline; JURIST news archive], which resulted in the death of 8,000 Bosnian Muslim men and boys. The complaint was filed by the relatives of two of the victims and contends that the soldiers knew the victims would be killed if they were handed over to Serbian troops led by Serbian general Ratko Mladic [JURIST news archive]. According to the complaint, the soldiers forced the victims from a UN-designated "safe area" [resolution materials], resulting in their deaths. The complaint also states that the men knew about the Serbian hatred of Muslims [Dutch News report] and about the previous execution of Muslims, making the soldiers complicit in the deaths of the victims. The lawyer representing the families has stated that evidence against the peacekeepers includes the fact that they expressed concern about the possibility of mass execution [RNW report] but still evicted the men from the base that was being protected by Dutch troops. The Dutch prosecutor will now consider whether to investigate the charges. If the men were to be convicted, they could face a sentence of life in prison.

Relatives of the victims of the Srebrenica massacre have previously sought justice for the actions of Dutch peacekeeping forces, which they say led to the massacre. In March, the Hague Appeals Court [official website, in Dutch] upheld [judgment, in Dutch; press release] the UN's immunity from prosecution by rejecting claims [JURIST report] brought by relatives of victims of the massacre. The relatives, known as the Mothers of Srebrenica, alleged that the Netherlands should be liable for the deaths because Dutch soldiers operating under the UN flag negligently failed to protect civilians by forcing the victims out of "safe area" and turning them over to Bosnian Serbs. The court found that immunity is essential to the UN's ability to carry out its duties and that the Dutch acting as UN peacekeepers could not be held responsible [RNW report]. The decision upheld the district court's 2008 decision to dismiss the claims [JURIST report]. The Mothers of Srebrenica have vowed to appeal the case to the Netherlands Supreme Court and the European Court of Justice if necessary.

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Citizens file suit against Chicago gun control ordinance
Sarah Miley on July 7, 2010 2:10 PM ET

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[JURIST] A group of Chicago citizens on Tuesday filed suit [complaint, PDF] against the city and Mayor Richard Daly [official website] claiming the the city's new gun control ordinance infringes on their constitutional rights. The new ordinance bans gun shops in Chicago and prohibits gun owners from stepping outside their homes, including porches and garages, with a handgun. The complaint, filed in the US District Court for the Northern District of Illinois [official website], states that the ordinance violates the gunowners' Second Amendment [text] right to bear arms and should therefore be considered "null and void." The lawsuit is supported by both the National Rifle Association and the National Association of Firearm Retailers [advocacy websites]. The ordinance, scheduled to take effect July 12, was unanimously approved [JURIST report] by the Chicago City Council [official website] on Friday, four days after the US Supreme Court [official website] ruled [opinion, PDF] in McDonald v. Chicago [Cornell LII backgrounder; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government.

The court's ruling in McDonald cited the holding in District of Columbia v. Heller [opinion, PDF; JURIST report] where the court held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. The District of Columbia enacted a new series of firearm regulations following the court's ruling in Heller. The regulations were recently upheld [opinion, PDF; JURIST report] by a federal judge who cited Heller, holding that the Second Amendment does not prohibit regulation of firearms where that regulation will "effectuate the goal of promoting public safety."

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Germany agrees to accept 2 Guantanamo detainees
Hillary Stemple on July 7, 2010 1:09 PM ET

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[JURIST] German Interior Minister Thomas de Maiziere [official website, in German] announced Wednesday that Germany would accept two detainees from the Guantanamo Bay [JURIST news archive] detention facility. The announcement came after months of negotiations with the Obama administration, which originally asked Germany to take up to 10 detainees [JURIST report] from the facility. The German government indicated in April that it was considering accepting three detainees [JURIST report], but de Maiziere stated the country is only accepting two of the prisoners because it could not guarantee the third prisoner would not be a threat to German security. De Maiziere also emphasized that Germany had informed the US it would not consider any further requests [DW report] to accept detainees. German critics of the plan to accept detainees have expressed concern that their presence could radicalize the Muslim population within the country. De Maiziere, however, has noted that Germany has an ethical obligation in helping to close the facility. Hamburg and the German state of Rhineland-Palatinate have each agreed to accept one detainee [Reuters report], who are expected to be settled in Germany within the next two months. There are currently 181 detainees remaining at the Guantanamo facility.

The Obama administration continues its push to close the Guantanamo Bay facility, despite missing its self-imposed one-year deadline [JURIST report] in January. The administration has run into several hurdles in closing the prison, including opposition from members of Congress and the suspension of detainee transfers to Yemen [JURIST report]. In May, the US House Armed Services Committee [official website] approved a bill [JURIST report] prohibiting the Obama administration from modifying or building a facility in the US to hold detainees currently held at Guantanamo. The bill requires [summary, PDF] that any plan to construct or modify US facilities to accommodate Guantanamo transfers be "accompanied by a thorough and comprehensive plan that outlines the merits, costs and risks associated with utilizing such a facility." As the Obama administration has not presented such a plan to Congress, the bill prohibits the use of any funds for the purpose of preparing a US facility for Guantanamo transfers. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Algeria, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].

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China executes top judicial official for corruption, rape
Sarah Miley on July 7, 2010 11:14 AM ET

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[JURIST] Former Chongqing deputy police chief and high-ranking judicial official Wen Qiang was executed [press release, in Chinese] in China on Wednesday after an appeal of his corruption charges was rejected [press release] by the Chongqing Intermediate People's Court [official website] in May. Wen was convicted [JURIST report] in April of accepting bribes, protecting criminal gangs, rape and being unable to justify his large amount of personal assets. The court's verdict stated that from 1996 to 2009 Wen accepted 12 million yuan in bribes, or approximately USD $1.76 million. Wen was also found guilty of protecting five organized crime gangs in Chongqing and raping a university student in 2007. Wen is the highest-ranking official to be charged in the corruption probe [AFP report] in Chongqing. Wen's wife, Zhou Xiaoya, was also convicted in April of taking advantage of her husband's position and accepting bribes of 4.49 million yuan and faces eight years in jail.

Wen's execution comes amid China's continuing attempt to eradicate government corruption [JURIST news archive]. In March, the Hebei Province People's High Court upheld a life sentence for former vice president of China's Supreme People's Court (SPC), Huang Songyou, who had been convicted [JURIST reports] of bribery and embezzlement. Earlier that month, SPC president Wang Shengjun [official profile, in Chinese] called for increased efforts to fight corruption [JURIST report] in the country's court system. In January, the SPC announced new anti-corruption rules [JURIST report] in an effort to increase public confidence in the rule of law. In October, two Chongqing courts sentenced [JURIST report] six individuals to death for their connections with organized crime gangs.

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Shipping companies, captain to stand trial for Australia oil spill
Hillary Stemple on July 7, 2010 11:09 AM ET

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[JURIST] An Australian court on Wednesday ordered four companies and the captain of a cargo ship to stand trial over a 2009 oil spill [BBC backgrounder] that resulted in more than 53,000 gallons of oil being spilled into the coastal waters surrounding Australia. The captain of the cargo ship was charged with disposal of oil in coastal waters and of not reporting the spill [AFP report] to the proper authorities. The companies, including co-owners of the cargo ship, UK firm Swire Navigation [corporate website] and Hong Kong firm Bluewind Shipping, were also charged with disposal of oil in coastal waters. The charges stem from an incident on the cargo ship Pacific Adventurer [AMSA backgrounder], where containers on the ship fell overboard during a storm, piercing the side of the ship and resulting in the oil being spilled. Prosecutors contend that the containers were improperly stored on the ship [CP report] and that the ship's captain acted recklessly when setting a particular course, despite reports of severe weather. Swire Navigation agreed last August to pay more than USD $21 million into a fund to compensate those affected by the spill. If convicted, the companies face fines of up to USD $1.48 million each, while the captain could face fines of USD $297,000.

The Australian court is not the first to apply criminal liability to oil spill cases. In March, a French court upheld [JURIST report] a lower court's 2008 decision finding French oil company Total [corporate website] and several other defendants criminally liable for an oil spill that occurred of the coast of Brittany in 1999. In April 2008, US federal prosecutors filed felony charges [indictment, PDF; press release] against Capt. John Joseph Cota, the California maritime pilot accused [JURIST report] in the November 2007 spill of approximately 58,000 gallons of heavy fuel oil in the San Francisco Bay. The US Department of Justice (DOJ) [official website] is also currently reviewing [JURIST report] whether any criminal or civil laws were violated by BP resulting in the recent Gulf of Mexico oil spill [BBC backgrounder; JURIST news archive].

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Japan court convicts anti-whaling activist of assault, obstruction
Sarah Miley on July 7, 2010 9:46 AM ET

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[JURIST] The Tokyo District Court [official website] on Wednesday convicted [Sea Shepherd press release] New Zealand anti-whaling activist Peter Bethune on five criminal charges in connection with boarding a Japanese whaling vessel as part of a protest in the Antarctic. Bethune was convicted of assault, trespass, destruction of property, illegal possession of a weapon and obstruction of business. He had previously made an admission of guilt [JURIST report] to all charges except assault when his trial began in May. The assault conviction stemmed from allegations that Bethune threw cartons of rancid butter at the vessel and injured a Japanese crewman in the process. Bethune was sentenced to two years, but the court suspended the sentence for five years, meaning that Bethune will not serve jail time unless he returns to Japan. He will be deported to New Zealand on July 9.

Bethune's charges [JURIST report] stem from boarding the Shanon Maru II, a Japanese whaling vessel, in response to a January 6 collision with the anti-whaling vessel, the Ady Gil, which he captained. As a result of the collision, the bow of the Ady Gil was sheared off, and the crew was rescued by another ship. On February 15, Bethune allegedly approached the Shanon Maru II ship on a jet ski, cut through anti-boarding netting surrounding the ship, boarded the ship and then presented its captain with a bill for $3 million in damage done to his ship. He was taken into custody and sent to Tokyo where he was arrested by the Japanese Coast Guard. Commercial whaling [JURIST news archive] was banned by the International Whaling Commission [official website] in 1986, but Japanese whalers defend their whaling as scientific research because they collect data on the whale's age, diet, and birthing rate, before packaging and selling the meat. In May, the Australian government initiated proceedings [JURIST report] against Japan in the International Court of Justice (ICJ) [official website], claiming Japan has breached its obligations under the International Convention for the Regulation of Whaling [text, PDF].

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Hawaii governor vetoes same-sex civil unions bill
Hillary Stemple on July 7, 2010 9:12 AM ET

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[JURIST] Hawaii Governor Linda Lingle (R) [official website] on Tuesday vetoed [statement of veto, PDF] a bill [HB 444 text, PDF] that would have allowed same-sex civil unions [JURIST news archive]. The bill, which would have conferred upon homosexual and heterosexual couples rights and benefits equal to those afforded married couples in the state, was approved by the House in April after the vote was initially postponed [JURIST reports] in January. The state Senate approved the bill [JURIST report] in January. Tuesday was the last day Lingle could veto the bill before it would have become law without her signature. In the statement announcing her veto [text, PDF] Lingle said that she felt that the bill was "essentially marriage by another name." She also indicated that the issue should be voted on in a public referendum, stating:
I am vetoing this bill because I have become convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii. The subject of this legislation has touched the hearts and minds of our citizens as no other social issue of our day. It would be a mistake to allow a decision of this magnitude to be made by one individual or a small group of elected officials. And while ours is a system of representative government it also is one that recognizes that, from time to time, there are issues that require the reflection, collective wisdom and consent of the people and reserves to them the right to directly decide those matters. This is one such issue.
Rights groups, including the American Civil Liberties Union-Hawaii (ACLU-HI) [advocacy website], have indicated they will be filing a lawsuit [press release] challenging the state's ban on same-sex civil unions as a violation of the Hawaiian Constitution's [materials] prohibition against discrimination based on sexual orientation.

The state of Hawaii has been at the forefront of the gay rights movement since the 1990s [timeline]. In 1993, the Hawaii Supreme Court [official website] ruled [case backgrounder] that the state must show a compelling reason to deny same-sex marriage, but, in 1998, Hawaiian voters approved an amendment to the state constitution to reserve for the state legislature the authority to define marriage. Several jurisdictions in the US have legalized same-sex marriage [JURIST news archive] or recognize same-sex civil unions. In March, the US Supreme Court [official website; JURIST news archive] denied an emergency appeal to prevent Washington DC's same-sex marriage law from taking effect. Chief Justice John Roberts, acting as circuit justice for the DC area, denied [JURIST report] an application [text, PDF] requesting a stay pending further review of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [text, PDF]. With that, DC became the sixth US jurisdiction to allow for same-sex marriages, joining Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports]. Same-sex civil unions are currently recognized in Washington, New Jersey, Oregon and Nevada [JURIST reports].

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France court sentences Noriega to 7 years for money laundering
Sarah Miley on July 7, 2010 9:06 AM ET

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[JURIST] A Paris criminal court on Wednesday sentenced former Panamanian dictator Manuel Noriega [BBC backgrounder; JURIST news archive] to seven years in jail for money laundering. Noriega, whose trial began last week [JURIST report], was convicted of laundering $3 million in drug profits by purchasing property in Paris. A lawyer for Noriega stated that the former dictator would receive credit for the 32 months he served in a US prison while fighting his extradition to France and will also be eligible for parole [CNN report] halfway through his sentence. Noriega was extradited [JURIST report] to France in April by the US, where he had served a 17-year sentence on drug charges. Noriega was already sentenced in absentia [Reuters report] to 10 years in jail by a French court in 1999, but was entitled to a new trial under French law.

Last month, the Paris Court of Appeals [official website, in French] denied a request [JURIST report] by Noriega to be released from jail while awaiting his trial. Noriega claimed that he is too well-known to be a flight risk and that because of his partial paralysis and poor health, he was not receiving adequate care in Paris's La Sante prison. The court rejected his appeal, remanding him to custody. In April, the French Justice Ministry denied [JURIST report] Noriega's request to be treated as a prisoner of war (POW). Justice Ministry spokesperson Guillaume Didier said that Noriega would not be treated as a POW [AFP report] because the charges are based on breaches of common law not related to military service. Earlier that week, Panamanian President Ricardo Martinelli [official profile, in Spanish] said that his government would seek Noriega's extradition [JURIST report] to face charges of human rights violations in Panama. Noriega had fought extradition [JURIST report] from the US since 2007. In March, the US Supreme Court declined to reconsider [JURIST report] Noriega's petition to stop the extradition process.

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EPA proposes new rule to combat air pollution
Erin Bock on July 7, 2010 8:17 AM ET

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[JURIST] The US Environmental Protection Agency (EPA) [official website] on Tuesday announced a proposed rule [text, PDF; materials] that will reduce air pollution [JURIST news archive] transported across state lines and bring delinquent areas into compliance with federal and state air quality requirements. The Transport Rule targets power plants specifically as a cost-effective way to reduce sulfur dioxide and nitrogen oxide emissions—gases that react to form pollution and smog. The EPA is focusing on reducing these emissions in 31 states, mainly located in the eastern part of the country, and anticipates this approach will reduce interstate transport of air pollution in compliance with the Clean Air Act [materials; JURIST news archive]. The agency estimates the rule could provide more than $120 billion in health care benefits by 2014 and avoid thousands of cases of premature deaths, heart attacks, aggravated asthma and acute bronchitis. EPA Administrator Lisa Jackson said that the Transport Rule is meant to be preemptive:
This rule is designed to cut pollution that spreads hundreds of miles and has enormous negative impacts on millions of Americans. We're working to limit pollution at its source, rather than waiting for it to move across the country. The reductions we're proposing will save billions in health costs, help increase American educational and economic productivity and -- most importantly -- save lives.
The EPA estimates the proposed rule will have a minimal impact on the cost of electricity and will reduce emissions by more than 50 percent of the 2005 levels. The Transport Rule will replace the 2005 Clean Air Interstate Rule (CAIR) [materials; JURIST report], which the EPA was directed to replace [JURIST report] in 2008. Senator Tom Carper (D-DE) [official website] concluded that the new rule will produce cleaner air [press release], but found it to be "complicated and open to further lawsuits." He called on Congress to pass legislation to address clean air issues.

The CAIR was rejected by the US Court of Appeals for the District of Columbia Circuit [official website] in 2008. The court found the rule's proposal to permanently cap emissions of sulfur dioxide and nitrogen oxides to be "fundamentally flawed." The EPA's announcement comes just weeks after the Senate defeated a resolution [JURIST report] to limit the EPA's ability to regulate greenhouse gas emissions under the Clean Air Act. Supporters of the resolution contended that Congress should have the power to regulate emissions and that EPA regulations could potentially harm the economy.

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France parliament begins debate on bill to ban burqa
Patrice Collins on July 7, 2010 7:28 AM ET

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[JURIST] The French National Assembly [official website, in French] on Tuesday began debate on a bill that would make it illegal to wear the Islamic burqa [JURIST news archive] or other full face veils in public. Under the bill, women who wear the veil can be required by police to show their face, and, if they refuse, they can be forced to attend citizenship classes or be charged a USD $185 fine. The proposed legislation would also make it a crime to force a woman to cover her face, with a penalty of one year in prison and a fine of USD $18,555. French Justice Minister Michele Alliot-Marie [official profile, in French] defended the legislation [Liberation report, in French] as modeling the spirit of republicanism, stating that the Koran's prescription of community dress is exemplified in the legislation. The National Assembly is scheduled to vote on the bill next Tuesday. If the bill passes in the lower house it will proceed to a vote in the Senate [official website, in French] in September.

Many jurisdictions are currently debating legislation that would ban the burqa. Last month, the Spanish Senate [official website, in Spanish] approved a motion [JURIST report] calling on the government to ban the use of full face veils in public places. In May, the Quebec legislature began hearings [CBC report] on a bill that would ban full face veils for public servants, while Australian lawmakers voted to end further discussion [JURIST report] on a bill that would have banned wearing the burqa. Also in May, European Parliament [official website] Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide burqa ban [JURIST report]. In April, the Belgian House of Representatives voted 136-0 to approve [JURIST report] a bill that would ban the burqa and other full face veils in public.

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