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Legal news from Wednesday, July 21, 2010

Germany court allows ongoing surveillance of left-wing political party
Hillary Stemple on July 21, 2010 3:32 PM ET

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[JURIST] A German appeals court announced Wednesday that the government's Federal Office for the Protection of the Constitution (OPC) [official website, in German] will be permitted to continue surveillance of members of the country's Left [Spiegel backgrounder] political party. The decision overturned a lower court ruling [The Local report], which prohibited the monitoring of a member of the Left. In its ruling the, court stated that the party has unconstitutional goals [DW report], which makes the government surveillance legitimate. The Left party has some historic ties to the former East German Communist party and has been linked to violent left-wing extremist groups. The suit challenging the surveillance was filed by Left member Bobo Ramelow, who has indicated that he will appeal the court's decision to the Constitutional Court [official website, in German].

The German government continues monitoring the rise of extremist groups and attempting to limit their influence within the country. Last November, the Constitutional Court upheld legislation [JURIST report] prohibiting public support and justification of the Nazi regime. The ruling means that neo-Nazis are forbidden from assembling for the purposes of of approving, glorifying or justifying the Nazi regime. The OPC issued a report in 2006 [JURIST report] showing an increase in neo-Nazi violence. In 2005, the Constitutional Court ruled that despite the failure of past government efforts, the extreme right-wing neo-Nazi party could still be banned [JURIST report] under German law.

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Israel parliament votes to extend citizenship law
Dwyer Arce on July 21, 2010 3:18 PM ET

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[JURIST] The Israeli Knesset [official website] on Wednesday voted 53-13 to extend a law [TO 5763 text] limiting the ability of Arab-Israelis [JVL backgrounder] to bring Palestinian family members into Israel. The Citizenship and Entry into Israel Law, first passed by the Knesset in 2002, allows only Palestinian women 25 years or older and men 35 years or older to join their families in Israel and eventually be eligible for full citizenship. The law, now extended for six months [Ynet report], has been extended every year since it was first passed. In explaining the need for the law, Minister of Religious Services Yakov Margi [official profile] stated that the policy was necessary to increase security because some Palestinian residents have exploited their legal status following reunification proceedings to carry out suicide bombings. Arab-Israeli members of the Knesset described the law as racist and discriminatory [UPI report] and said that it failed to address security concerns.

In May 2006, the Supreme Court of Israel [official website, in Hebrew] ruled 6-5 to uphold the law [JURIST report], holding that it does not infringe upon the constitutional rights of Israelis, and, if it does, that harm is "measured." The dissent wrote that the law violates the Basic Law on Human Dignity and Liberty [text] by infringing on the right to family life. The petitioners challenging the law said it impermissibly interferes with their right to have a Palestinian family in Israel. Critics say the law is motivated by a desire to maintain Israel's Jewish majority. Israel's State Prosecutor said that the state has granted 6,000 of the 22,000 family reunification applications received since a 1993 Oslo Accords [CFR backgrounder] between Israel and the Palestinians. Amnesty International (AI) [advocacy website] called on Israel to repeal the law [JURIST report] in 2004, calling it "explicitly discriminatory," in violation of international humanitarian law.

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Rights group calls for al-Bashir arrest during visit to Chad
Hillary Stemple on July 21, 2010 2:23 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the country of Chad to arrest [press release] Sudanese President Omar al-Bashir [case materials; JURIST news archive] during his visit to the country. Al-Bashir was charged last week by the International Criminal Court (ICC) [official website] with three counts of genocide [warrant, PDF; JURIST report] in relation to the Darfur conflict [BBC backgrounder]. The genocide charges were added to seven counts of war crimes and crimes against humanity that were filed against al-Bashir [JURIST report] in March 2009. Al-Bashir is in Chad to take part in a meeting of the Community of Sahel-Saharan States (CEN-SAD) [official website], and the visit is his first to an ICC member state since the warrants were issued. The government of Chad indicated that al-Bashir would not be arrested [AFP report] during his visit to the country because he is there as an acting member of CEN-SAD. HRW contends that because Chad is a party to the Rome Statute [text, PDF], it has an obligation under the statute to execute outstanding arrest warrants issued by the ICC. A spokesperson for HRW warned about the implication of al-Bashir being allowed in the country without being arrested stating that, "Chad risks the shameful distinction of being the first ICC member state to harbor a suspected war criminal from the court." The spokesperson also noted that, "a political deal between Chad and Sudan is no justification for shielding alleged war criminals."

The recent charges against al-Bashir come after the appeals chamber reversed a prior decision [JURIST report] by the lower chamber denying the prosecutor's request for genocide charges. ICC prosecutors appealed the decision [JURIST report] not to charge al-Bashir with genocide in July 2009. The appeals chamber found that the standard of proof applied by the lower chamber had been too high, and that there only needed to be a showing of reasonable grounds of a genocidal specific intent, a showing that had been met when the first arrest warrant was issued. The warrant issued last week alleges that the Sudanese government, using the national armed forces, police and the Janjaweed militia [BBC backgrounder], targeted ethnic groups for extermination that were believed to be close to armed opposition groups in Darfur as part of a counter-insurgency strategy, and that as commander-in-chief of Sudanese forces, Bashir "played an essential role in [its] coordinati[on]." Al-Bashir has eluded arrest since the issuance of the first warrant. The warrant has been controversial, with Egypt, Sudan, the African Union and others calling for the proceedings against Bashir to be delayed, and African Union leaders agreeing [JURIST reports] not to cooperate with the warrant.

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Nebraska city immigration law challenged
Dwyer Arce on July 21, 2010 1:16 PM ET

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[JURIST] Two lawsuits were filed Wednesday seeking injunctive relief against a Fremont, Nebraska ordinance [No 5165 text, PDF] banning the hiring, harboring or renting property to illegal immigrants [JURIST news archive]. The ordinance, passed by city voters in a referendum [JURIST report] last month, requires all employers in the city to register for the E-Verify program [DHS website] and makes it a crime to rent to illegal immigrants. The ordinance also voids any lease entered into by an illegal immigrant and requires every person seeking to rent residential property to obtain an occupancy permit from the city, which will require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. The American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] filed their lawsuits in the US District Court for the District of Nebraska [official website]. In its lawsuit [complaint, PDF], the ACLU challenges the law based on the Equal Protection and the Supremacy [Cornell LII backgrounder] clauses of the US Constitution [text]. The ACLU alleges that the ordinance was passed with the intent of discriminating against people based on their race or national origin, violating Equal Protection. It argues that the law violates the Supremacy Clause because immigration is a matter solely within federal jurisdiction and Congress has enacted a comprehensive immigration scheme. MALDEF's lawsuit [complaint, PDF] makes nearly identical arguments, adding that the ordinance interferes with a person's right to enter into and enforce contracts under federal law [42 USC § 1981 text] and violates Article 11 of the Nebraska Constitution [text] because the Fremont municipal government has not been empowered by the Nebraska Legislature [official website] to enforce immigration law. Additionally, MALDEF cites five cases of similar local laws that were struck down by federal and state courts, including a nearly identical law struck down [JURIST report] by a federal district court in Texas. The law will become effective July 29.

The ordinance was passed in June, with 57 percent in favor, in response to a wave of immigration to the region due to the availability of jobs in the meatpacking industry. The Nebraska Supreme Court [official website] ruled [opinion, PDF] that the vote could occur, denying the city's request for declaratory relief on the basis that the ordinance would be preempted by federal law. A similar initiative was narrowly voted down [BBC report] by the Fremont City Council [official website] in 2008. Shortly after the ordinance's passage, the American Civil Liberties Union of Nebraska [advocacy website] promised to challenge the ordinance in court [press release], describing the law as "un-American and unconstitutional" and arguing that the ordinance will "cause discrimination and racial profiling against Latinos and others who appear to be foreign born, including U.S. citizens." The ACLU is also challenging [JURIST report] Arizona's new immigration law [SB 1070; JURIST news archive] on similar grounds.

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Obama signs financial reform legislation
Hillary Stemple on July 21, 2010 12:36 PM ET

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[JURIST] US President Barack Obama [official website] on Wednesday signed [statement] the Restoring Financial Stability Act [HR 4173 materials] into law. The legislation, which focuses on increasing regulation in the financial sector following the recent economic crisis [JURIST news archive], received final approval by the Senate last week after being approved by the House of Representatives [JURIST reports] earlier this month. The law will create a new regulatory council to monitor financial institutions in order to prevent the companies from becoming "too big to fail." It also gives the Federal Reserve [official website] the power to supervise the largest financial companies and report to the government any risks the firms may pose to the economy at large. Additionally, a new consumer protection division will be established within the Federal Reserve to enforce rules against certain business practices like abusive mortgage lending and some credit card practices. As a final protection against future bailouts, the government will have the ability to seize and liquidate failing financial institutions before their collapse can have an adverse affect on the entire economy. The so-called "Volcker Rule" is included in the legislation, but instead of prohibiting banks from owning hedge funds, banks will be permitted to invest up to 3 percent of their capital into hedge funds or private equity funds. The legislation also includes regulation of some derivatives, requiring that they be bought and sold through clearinghouses or exchanges. One little-noted provision included in the legislation is a regulation requiring US companies producing electronic equipment like cell phones and laptops, to divulge what steps are being taken to ensure their products do not contain "conflict minerals" from the Democratic Republic of Congo (DRC) [JURIST news archive]. The sale of "conflict minerals" have played a large role in ongoing violence [Washington Post report] in the DRC. When signing the bill, Obama called the reforms "the strongest consumer financial protections in history" and stated that because of financial reform, "the American people will never again be asked to foot the bill for Wall Street's mistakes."

The House and Senate reconciled their versions of the bill [JURIST report] last month but were forced to re-open negotiations, eventually removing a $17.9 billion tax on large financial institutions that was meant to cover the bill's costs. The Senate approved its version of the bill in May, after the House passed its version [JURIST reports] in December. The Senate Banking Committee [official website] proposed a bill [text, PDF; JURIST report] in 2009 that was met with resistance and resulted in the committee's development of the bill ultimately passed by the Senate. One provision in the bill that has been the source of much debate is the creation of a consumer protection agency. The House Financial Services Committee [official website] had approved a bill to create the agency in October, after originally delaying [JURIST reports] it at the behest of financial industry leaders in July 2009. The creation of the agency is a key step in achieving the Obama administration's stated goal of tightening financial industry regulations. Last June, the administration proposed a broad series of regulatory reforms [press release; JURIST report] aimed at restoring confidence in the US financial system.

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Guinea high court announces election results
Dwyer Arce on July 21, 2010 11:42 AM ET

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[JURIST] The Guinea Supreme Court [GlobaLex backgrounder] on Tuesday announced the final election results in last month's presidential election, in which no candidate received enough votes to avoid a runoff. The ruling comes after allegations of fraud [BBC report] in the election, which has been described as Guinea's first free election since attaining independence in 1958. Chief Justice Mamadou Sima Sylla announced that out of the 24 candidates appearing on the ballot, former prime minister Cellou Dalein Diallo received nearly 44 percent of the vote, opposition leader Alpha Conde received 18 percent and Sidya Toure garnered 13 percent. With no candidates claiming a majority, a runoff will be held between Diallo and Conde. The runoff was initially scheduled for July 18 [Reuters report], but was postponed while the court considered 15 complaints of misconduct during the balloting. The votes have divided primarily along ethnic lines, with all candidates running on a similar platform of economic expansion and the rule of law. A date for the runoff has not yet been set, but according to the Constitution, the vote must be held at least 14 days after the court's ruling.

The election comes as the conclusion to 18 months of governance by a military junta, which took power in a 2008 coup. The coup followed the death of Lansana Conte [BBC profile], who had ruled the West African country since 1984. The election was postponed several times and was originally scheduled for December 2009 by the military government. In May, the International Criminal Court (ICC) sent a delegation from the Office of the Prosecutor (OTP) [official websites] to Guinea to further investigate the killing [JURIST report] of more than 150 pro-democracy protesters in Conakry [BBC backgrounder] in September 2009. The protesters had rallied against Guinean military leader Moussa Dadis Camara [BBC profile], who announced in October that he intended to push elections forward three months and stand for election, breaking a promise not to run made shortly after he took power. An assassination attempt on Camara two months later eventually drove him into exile.

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BP facing lawsuit over handling of oil spill cleanup
Hillary Stemple on July 21, 2010 11:21 AM ET

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[JURIST] A lawsuit [complaint, PDF] was filed Tuesday against BP in a Louisiana state court alleging that the company's negligent actions led to the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] and that BP was also negligent in its handling of the cleanup of the oil spill. The plaintiffs contend that BP assumed responsibility for the health and safety of the local cleanup workers hired by the company but failed to provide them with adequate training, protective equipment, decontamination equipment and instructions to help them conduct the cleanup in a safe manner. Plaintiff John Wunstell, a former shrimper, alleges that he was hospitalized after being exposed to the chemical dispersants used to clean the oil, and that he is now at a greater risk of developing lung and esophageal cancer due to his exposure to the chemicals. Plaintiffs also contend that they were required to use their own boats to conduct cleanup efforts and that the boats are now damaged, threatening their future ability to earn a living through commercial fishing. Plaintiffs are seeking damages for current and future medical care, repair and detoxification of the fishing boats as well as damages for loss of earnings capacity. The complaint also includes a class action claim that would cover all workers or volunteers participating in the cleanup efforts who have shown symptoms including nausea, severe headaches, respiratory illness, increased liver enzymes and high blood pressure. The class action is seeking the establishment of a court-supervised medical monitoring program in order to provide early detection of diseases associated with the chemical exposure.

Calls for criminal and civil actions have been mounting against BP, as evidence of the oil giant's lack of proper compliance with regulations has come out. Last month, two lawsuits were filed against BP [JURIST report] alleging violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order increase company profits. Also last month, US Attorney General Eric Holder [official website] announced that the Department of Justice (DOJ) [official website] is reviewing whether any criminal or civil laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers including the Clean Water Act and the Oil Pollution Act of 1990 [materials]. The Clean Water Act includes both civil and criminal penalties, and the Oil Pollution Act can be used to hold parties liable for cleanup costs. In May, DC-based consumer advocacy organization Food and Water Watch (FWW) [advocacy website] filed suit [JURIST report] in a US district court against the US Department of Interior (DOI) and the Minerals Management Service (MMS) [official websites] for an injunction to halt drilling at the BP Atlantis Facility [corporate website], another BP Gulf of Mexico site.

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Federal court maintains stay on Khadr habeas petition
Dwyer Arce on July 21, 2010 9:59 AM ET

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[JURIST] The US District Court for the District of Columbia [official website] on Tuesday allowed [opinion, PDF] Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] to amend his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission. The petition was stayed under a criteria set forth by the US Supreme Court's 1975 decision in Schlesinger v. Councilman [opinion text], staying action on the petition until the resolution of the military commission proceedings because the claims in Khadr's habeas petition can be raised during the commission or in the appeals process. Judge John Bates still allowed Khadr to amend his petition, finding that it was not "futile" as the government alleged, because the stay may be lifted after Khadr concludes his appeals from the commission. Khadr argued that the intent for district courts to hear his habeas petition despite the ongoing commission was demonstrated by the differences in the military commission acts of 2006 and 2009 [texts, PDF], in which § 950j(b) of the 2006 act, providing for district court review only after the conclusion of the military commission, was removed. Bates rejected this. Additionally, the court maintained the stay on the petition despite Khadr's argument that the amended petition fell under one of the exceptions to Councilman, arguing that the military lacked personal jurisdiction [Cornell LII backgrounder] over him because he was a juvenile at the time of his capture and that the military commission system established by Congress was unconstitutional. Bates rejected both arguments, finding that the jurisdictional argument did not fall with the Councilman exceptions, and cited the Supreme Court case of Hamdan v. Rumsfeld [Cornell LII syllabus] in upholding the constitutionality of the military commissions.

A US military lawyer for Khadr announced Saturday that he will vigorously defend Khadr at his US military commission trial scheduled to begin August 10 [JURIST reports]. Khadr fired his US civilian lawyers earlier this month and requested that his US military lawyer be fired as well. Judge Patrick Parrish denied Khadr's request and ordered US Army Lt-Col. Jon Jackson to remain Khadr's lawyer and provide him with a defense at trial. At a pre-trial hearing held last week, Khadr informed the court that he had previously rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr told the court that the agreement was a ploy by the US government to look good in the eyes of the international community and that he would not be used to achieve US goals. Khadr also informed the court that he did not wish to mount a defense at trial because he believed the outcome would be the same regardless of his defense and that he had no hope of obtaining justice through the legal process. Khadr is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injuring another. If he is found guilty, he could face a life sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].

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Rights group urges ICC to probe Zimbabwe pre-election rights violations
Hillary Stemple on July 21, 2010 9:12 AM ET

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[JURIST] Human rights organization AIDS-Free World [advocacy website] on Wednesday renewed calls [press release, PDF] for an International Criminal Court (ICC) [official website] investigation into allegations of rape and torture in Zimbabwe prior to the 2008 presidential elections [JURIST report]. AIDS-Free World released a report [text, PDF; press release] last December, detailing the systematic rape of female supporters of Movement for Democratic Change (MDC) [party website] candidate Morgan Tsvangirai [BBC profile] by supporters of the Zimbabwe African National Union-Patriotic Front (ZANU-PF) party and President Robert Mugabe [BBC profile; JURIST news archive]. According to the report, 70 victims were interviewed, and the group was able to document 380 rapes committed by 241 perpetrators in the weeks leading up to the presidential elections. The documented rapes followed similar patterns, with comparable rhetoric about the MDC being used before and after the rapes and the victims being subjected to similar tortures including arbitrary detentions and repeated beatings. The crimes were allegedly committed by members of the ZANU-PF youth militia, war veterans and security forces under the control of Mugabe. The group also contends that many of the women were threatened with HIV and that 37-percent of the victims interviewed have now tested positive for the virus. AIDS-Free World is urging the ICC to launch proceedings against the perpetrators of the rapes for crimes against humanity, as well as those in a position of power, such as Mugabe, who had the authority to order the rapes. The group expressed concern about the continued impunity for the crimes, stating that if the international community does not take action, similar intimidation tactics could be used in future elections. A new election could be called in Zimbabwe as soon as 2011.

Zimbabwe's 2008 elections [JURIST news archive] were marred by allegations of fraud [JURIST report] and government ballot rigging. Zimbabwe police arrested several members of the MDC prior to the election, allegedly to prevent the MDC party from participating in the election and the UN criticized both parties for rights abuses [JURIST reports] leading up to the election. A period of uncertainty also followed the elections, after the ruling government initially refused to release election results, and then announced that a run-off election was needed [JURIST reports] because Tsvangirai had won a slim majority of the votes, but not enough to claim outright victory. Mugabe ran unopposed in the run-off election after Tsvangirai withdrew his candidacy and sought refuge at the Dutch embassy. The results of the run-off election were condemned by the international community [JURIST report] as being neither transparent nor impartial, and the government of Mugabe has been called illegitimate.

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ICTY appeals chamber reverses acquittal of former Kosovo PM
Dwyer Arce on July 21, 2010 8:47 AM ET

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[JURIST] The appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday reversed the acquittal [press release; judgment summary, PDF] of former Kosovo Albanian military leader Ramush Haradinaj [ICTY materials, PDF; JURIST news archive] and two others. In reversing the acquittal, the appeals chamber ordered a retrial, holding that the trial chamber had erred when it failed to grant the prosecution additional time to secure the testimony of two witnesses. Haradinaj, Idriz Balaj and Lahi Brahimaj, who were all commanders in the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder], will now be tried again for crimes against humanity and violations of the laws of war. In explaining the severity of the trial chamber's error, the appeals court stated:
[I]t is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of certain witnesses. ... [T]he Trial Chamber failed to appreciate the gravity of the threat that witness intimidation posed to the trial's integrity. Some of these failures were in response to specific requests by the Prosecution, while in certain other cases the Trial Chamber should have acted proprio motu to facilitate witness testimony. For the reasons set out in the Judgement, the Appeals Chamber therefore has found that the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial. Given the potential importance of these witnesses to the Prosecution's case, the error undermined the fairness of the proceedings and resulted in a miscarriage of justice.
The appeals chamber went on to reject the other grounds upon which the prosecution had appealed, finding that the trial chamber had not erred in acquitting Balaj of aiding and abetting three murders and for rape, cruel treatment and torture. The date for the retrial has not been set [AP report].

Last July, the appeals chamber affirmed the conviction of Bajrush Morina [JURIST report] for interfering with a witness during the trial. In May 2008, ICTY Chief Prosecutor Serge Brammertz filed an appeal against the acquittals [JURIST report]. Brammertz asked that the case be retried before a different chamber of the tribunal, arguing that prosecution was not allowed the to present enough witnesses. Haradinaj was charged with 37 counts of war crimes [JURIST report], including murder, persecution and rape, but the ICTY acquitted him of all charges [JURIST report] in April 2008, citing a lack of evidence. Haradinaj was a senior commander of the KLA, the ethnic Albanian guerrilla force that opposed Slobodan Milosevic [JURIST news archive] during the 1998-1999 Kosovo war [BBC backgrounder]. Since the acquittal, Serbian Prime Minister Vojislav Kostunica and other top officials have expressed concern that the decision could heighten tensions [JURIST report] in Kosovo and decrease the likelihood that fugitive war crimes suspects Radovan Karadzic and Ratko Mladic [JURIST news archives] would be caught.

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Spain lower house rejects proposal to ban burqa
Ann Riley on July 21, 2010 7:55 AM ET

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[JURIST] Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish], on Tuesday rejected [press release, in Spanish] a proposal [text, in Spanish; PDF] to ban the burqa [JURIST news archive] and other full face veils, by a vote of 183 to 162 with 2 abstaining. In June, the Senate [official website, in Spanish] approved a motion [JURIST report] calling on the Spanish government to ban the use of full face veils in public places. The Spanish opposition Popular Party (PP) [party website, in Spanish], which put forth the non-binding proposition [El Pais report, in Spanish], claimed that it represented a positive step towards equality for women [AFP report]. The leading Socialist Party [party website, in Spanish] opposed the measure out of concern that regulation of the burqa could lead to regulation [El Pais report, in Spanish] of other religious symbols. Justice Minister Francisco Caamano [official profile, in Spanish] indicated that the Spanish government plans to introduce legislation [JURIST report] banning the burqa in government buildings as part of Spain's Religious Freedom Bill, which is to be debated in the fall.

Many international jurisdictions are currently debating legislation that would ban full-face scarves and the burqa. On Sunday, Syrian Minister of Education [official website, in Arabic] Ghiath Barakat issued a directive [JURIST report] forbidding university students and teachers from wearing the niqab. UK Immigration Minister Damian Green [official profile] indicated last week that Britain's coalition government would not seek or support a British law banning [JURIST report] the wearing of the Islamic burqa or other face coverings in public. Last Tuesday, the French National Assembly [official website, in French] voted [JURIST report] to give police the authority to require women wearing the veils to show their face and make it a crime to force a woman to cover her face. Similar legislation is also being considered in Belgium, where, in April, the Belgian House of Representatives voted to approve [JURIST report] a bill that would ban the burqa and other full-face veils in public. In June, the Parliamentary Assembly of the Council of Europe (PACE) [official website] voted unanimously to reject [JURIST report] any general prohibition on the wearing of the burqa or other religious clothing.

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