Constitucional Law

Derecho Constitucional / Constitucional Law

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Supreme Court allows enforcement of asylum policy

Source: Jurist

September 12, 2019

-United States-

The US Supreme Court on Wednesday allowed enforcement of a policy that would deny asylum to Central American migrants who pass through another country en route to the US and fail to make a claim for protection there.

US District Court Judge Jon Tigar blocked the new rule in July by issuing a nationwide injunction. The Ninth Circuit Court of Appeals subsequently scaled back the order so that it only pertained to Ninth Circuit states which includes California and Arizona.

In response to Judge Tigar’s recent attempt to return his order to its original scope, the Trump Administration requested that the Ninth Circuit temporarily stay the injunctions.

The Supreme Court’s decision to grant the stay on the injunctions authorizes the Trump administration to proceed with nationwide implementation of the policy even though it is still being challenged in the lower courts.

The five justices who voted in favor of the stay were not announced, but Justice Sonia Sotomayor, joined by Justice Ginsburg, dissented, writing:

In sum, granting a stay pending appeal should be an “extraordinary” act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely, now it does so reflexively. Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleague shave not exercised the same restraint here.

The Supreme Court’s order will terminate if the high court declines to hear the case.

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Derecho Constitucional / Constitucional Law

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Germany court upholds rent control regulations

Source: Jurist

August 20, 2019

 The Federal Constitutional Court of Germany ruled unanimously Tuesday that the Tenancy Law Amendment Act (Act) regulations, which regulate the amount of rent a landlord can charge at the beginning of a rental period, are constitutional.

The court held that these regulations “do not violate the guarantee of property, freedom of contract or the general principle of equality,” ruling against a complaint alleging that these regulations were unconstitutional.

The claim was referred to the Constitutional Court by a district court, which asked the Constitutional Court to decide whether the regulations under the Act were “incompatible with the general principle of equality” and with the constitution. The claim was brought by a landlord in Berlin who was seized by her tenant because “the rent agreed at the beginning of the lease exceeded the maximum allowable rent.”

The court ruled that the regulation of rent at the beginning of the lease period does not violate the landlord’s right to the guarantee of ownership, freedom of contract and the general principle of equality. In addition, these regulations are in the public interest as they “counteract the displacement of economically less efficient population groups from highly sough-after neighborhoods.”

Derecho Constitucional / Constitucional Law

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Nepal government prepares legislation to incorporate Geneva Conventions in domestic law

Source: Jurist

August 14, 2019

Nepal’s law ministry has prepared a draft bill to “domesticate the Geneva Conventions with the objective of removing the gap in the domestic legal system,” a ministry official was reported to have said on Monday.

“The new bill proposes imprisonment till death for serious violations of the provisions of Geneva Conventions that deal with the rules of safeguarding humanity during conflict,” the unnamed official claimed. The proposed legislation aims to include penal sanctions for grave breaches. Grave breaches under the four Geneva Conventions include willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war or any protected person of the rights of fair and regular trial, taking of hostages and causing extensive destruction and appropriation of property.

A special court and special investigators are proposed under the draft bill. “The government is of the view that special detectives need to investigate these cases because regular police may not have the capacity to do the job,” the government official said. The proposed bill prohibits the use of sensitive emblems during armed conflict and seeks to provide reparation for victims.

Dhanraj Gyawali, a spokesperson for the ministry, said the government has been trying to finalize the draft Geneva Conventions Act bill. He added, however, that it was unclear when the process will conclude. “Efforts started in 2007, but we have not completed the draft yet so it will depend on our national commitment,” he said.

Nepal, a party to the Geneva Conventions since 1964, has not acceded to the Additional Protocols.

Derecho Constitucional / Constitucional Law

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India parliament amends right to information law, strengthens government control over statutory bodies     

Source: Jurist

July 27, 2019

The upper house of India’s parliament approved a bill on Thursday to amend the Right to Information Act of 2005. The bill has already been passed by the lower house of parliament and will become law once it receives presidential assent.

Amendments to the law proposed in the bill include changes to the fixed term of information commissioners, who are officials appointed under the statute. It renders their pay and service conditions subject to executive rules made by the federal government. Clause 2(a) of the bill proposes to amend section 13(1) of the statute and replace the fixed five-year term of office for the Chief Information Commissioner with “such term as may be prescribed” by the federal government. Information commissioners at the state-level will also be subject to term, pay and service conditions made by the federal government per the amendments proposed by clause 3 of the bill to section 16 of the Right to Information Act (RTI).

Following protests during the voting, the opposition Indian National Congress staged a walkout, saying the government was “undermining democracy.” P Chidambaram, an opposition member of parliament, questioned the bill’s incorporation of provisions that allegedly undermine the powers of state governments. “The state government constitutes Information Commissioners. So, why are you taking the power to prescribe the tenure and terms and conditions of that appointment? Why can’t the state government do that? Can’t you trust the states to prescribe the tenure and terms and conditions of the appointment?” he asked.

Former information commissioner Sridhar Acharyulu has written an open letter to the chief ministers of three states, seeking an explanation for their support to the bill. “Do you know that this kind of the most unjustified and unconstitutional surrender of your sovereignty to powers of Delhi, with specific reference to your powers of appointing an information commissioner will disable you from determining the term and status of your own commissioners?” reads Acharyulu’s letter.

“If they (information commissioners) are beholden to the government for their salary, tenure, and terms of service, they will be under an obligation,” said Wajahat Habibullah, a former information commissioner. “This goes even for those with the most undoubted integrity. … You don’t really have to be corrupt to toe the government line then,” he told reporters, alongside other former colleagues.

Jitendra Singh, the federal minister for personnel, public grievances, and pension, said: “the Information Commission is a statutory body, and it is an anomaly to equate it to a constitutional body like the Election Commission.” The government says the bill was introduced to correct an anomaly that puts the Information Commission at par with the Election Commission. Minister Singh assured parliament that the amendment is an enabling legislation, adding that the government has no ulterior motives. “There is no attempt, motivation or design to curtail the autonomy of RTI,” he said.

Derecho Constitucional / Constitucional Law

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Indonesia lawmakers approve bill allowing jailing of foreign researchers conducting research without permit

Source: Jurist

July 16, 2019

Indonesia’s House of Representatives on Tuesday approved the Science and Technology Bill, which imposes criminal charges on foreign researchers if they are found to violate visa regulations, according to a copy obtained by the Jakarta Post.

In addition to requiring permits for research, the new law also levies criminal charges against researchers who steal biodiversity samples, cause damage to valuable objects, or cause harm or death to persons involved in the research.

Critics of the bill argue that imposing these charges could threaten academic freedom and collaboration on research conducted in Indonesia.

Derecho Constitucional / Constitucional Law

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Guatemala high court blocks agreement to have migrants apply for asylum there rather than in US    

Source: Jurist

July 16, 2019

The Guatemala Constitutional Court granted an injunction Sunday to stop the country’s President, Jimmy Morales, from entering into a proposal with the US that would require migrants from El Salvador and Honduras to apply for asylum in Guatemala instead of in the US.

Morales canceled a trip to Washington, DC, earlier Sunday to let the court rule on the injunction.

The agreement is not popular in Guatemala—the two candidates in the upcoming runoff presidential election and the Catholic Church have both opposed the plan. A lawyer arguing for the injunction stated that the plan is criticized because “Guatemala utterly lacks the institutions able to offer migrants the minimal conditions with respect to human rights.”

Additionally, proponents of the injunction argue that the president does not have the power to sign the agreement. The country’s Constitution, in Article 171, determined that any treaties or international agreements need to be approved by Congress.

Derecho Constitucional / Constitucional Law

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France lawmakers approve tax on large tech firms       

Source: Jurist

July 11, 2019

France’s National Assembly on Thursday approved a digital tax bill known as the GAFA Tax, an acronym for Google, Apple, Facebook and Amazon, that will charge the companies a 3 percent tax on digital revenue earned in France.

The tax has been defended as a targeted approach, only applying to businesses with “global digital revenues of more than 750 million euros and French digital revenues of more than 25 million euros.” The goal of the tax is to enable a reduction on taxation of startups to help encourage their growth, as well as to support public services, schools, nurseries, and hospitals.

This is a national tax, but several ministers including the Minister of Economy and Finance, have expressed the intention to “redefine tax rules at the international level as well,” with the goal of creating an international agreement to eventually replace the national tax.

Once signed by President Emmanuel Macron, the bill will become law and will be retroactively applied from January 2019.

France is the first major economy to adopt a tax on these tech giants. As of April, there were six other EU member countries considering similar approaches.