Supreme Court

Derecho Constitucional / Constitucional Law

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Brazil Supreme Court approves investigation into President Bolsonaro

Soure: Jurist

April 28, 2020

 Brazil’s Supreme Court on Tuesday approved an investigation into accusations that President Jair Bolsonaro sought to interfere with police investigations for political gain.

Brazilian Attorney General José Levi do Amaral requested the investigation on Monday after the Brazilian Justice Minister Sérgio Moro publicly accused the president last Friday of improper conduct in the appointment of the Brazilian Federal Police chief before he resigned in protest. The former Minister of Justice is one of Brazil’s most prominent champions of the Brazilian anti-corruption movement. He famously ran the 2015 investigation known as Operation Car Wash (Operação Lava Jato), which indicted many prominent Brazilian government officials and business executives on corruption charges.

Moro’s allegations centered around Bolsonaro’s recent decision to replace the head of the Federal Police. Moro accused Bolsonaro of “political interference” in a Justice Ministry concern. Moro also stated, “The President said more than once that he wanted someone he could be in touch with personally, who he could call directly, who he could receive information from, intelligence reports.” He went on to add that the president also cited fears about the outcomes of upcoming supreme court cases as further justification for the transition.

Bolsonaro announced Tuesday that the current head of intelligence, as well as his former campaign security chief, will be filling the role of the chief of the Federal Police. Brazil’s Supreme Federal Court and the Attorney General’s office have yet to clarify the scope of or provide more details on the investigation into the allegations surrounding the appointment.

However, the investigation falls at a precarious moment for the country and the presidential administration. Recent polls suggest there has been a sharp rise in discontent with the president as a result of the recent allegations and his handling of the current public health crisis. With some groups even calling for his impeachment, there is growing speculation that if Moro’s claims are proven true, the investigation may lay the groundwork for an impeachment trial. There are also increasing concerns that Brazil may become another COVID-19 epicenter after several weeks of inaction by Bolsonaro led to an apparent failure to prepare for the outbreak properly.

Derechos Humanos / Human Rights

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India Supreme Court rules women in military can receive permanent commissions

Source: Jurist

February 17, 2020

 The Supreme Court of India ruled Monday that women enlisted in India’s military are permitted to receive permanent commissions, a right previously held only by men.

Women in India were first permitted to enter the army in 1992 under a provision for an initial period of five years. In 1996, the provision limiting the enrollment for a period of five years was removed. Amendments to the 1992 law in 2005 extended the tenure of Women Special Entry Scheme Officers by five years while extending men’s tenure for Short Service Commissions to 14 years.

Women who completed the precommission training would be granted PCs while still being placed lower than other candidates passing from the Indian Military Academy.

According to the Union of India, women are not employed on duties which are hazardous in nature unlike their male counterparts in the same Arm/Service who are liable to be employed in combat duties. For instance, a male officer […] in the engineering branch would undergo a tenure in the Rashtriya Riffle/Assam Rifles while women officers are not employed due to the “inherent risks”.

The court also brought attention to the regular discriminatory claims brought to them in regard to women in the Army, such as the concept that women may not be fit for military service due to “pregnancy, motherhood and domestic obligations towards their children and families.” They stated that claims have also been brought that having women present would require more “moderated” behavior by men, an overall lower standard due to women’s “physiological limitations.” Further, it was said that including women was “inadvisable” due to instances in which military members are subjected to minimal hygiene facilities.

Despite contentions from the Union of India that there are not discriminatory practices in the military, even in light of the aforementioned claims, the Indian Supreme Court rejected their argument:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. … Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women.

The court ordered that compliance with its ruling must be instituted within three months and included a list of directions.

Derechos Humanos / Human Rights

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India Supreme Court orders review of restrictions in Jammu and Kashmir

Source: Jurist

January 13, 2020

The Supreme Court of India on Friday issued an order to the central government and to the administration of the states of Jammu and Kashmir to begin an immediate review of restrictions on movement and landline, mobile phone, and internet access in those states.

Internet access in Jammu and Kashmir has been blocked since August of last year, in what has been called the longest internet clampdown in the history of a democratic nation. The orders cracking down on movement and communication came as the government revoked Jammu and Kashmir’s autonomous status.

The petitioners to the court included editors and journalists whose rights were severely curtailed by lack of internet and phone communication and restrictions on freedom of movement. In its decision, the court formulated a “doctrine of proportionality” that the government must adhere to in the future when deciding whether or not to place such limits. When issuing an order that would restrict a “fundamental right,” any limitation “without appropriate justification will be classified as disproportionate.” The government response to any emergency situation must therefore be proportionate to the circumstances and to the individual rights involved. Such decisions, the court said, are subject to judicial review, and the court gave a list of factors it would consider in determining the legality of any restrictions imposed:

The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.

The court ordered the government to review, using this rule of proportionality, all restrictions that have been placed upon Jammu and Kashmir, and publish the results of the review within one week.

Derechos Humanos / Human Rights

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India Supreme Court orders state government to compensate rape survivor

Fuente: Jurist

October 01, 2019

India’s Supreme Court on Monday directed the state government of Gujarat to pay 5 million Indian rupees (US$ 70,000) in two weeks as compensation to Bilkis Bano, a 40-year-old woman who was raped by a mob during an anti-Muslim pogrom in 2002.

In April the court had ordered the Gujarat government to compensate Bano monetarily. It had also instructed the state to give her government employment and a house in a locality of her choosing. This is the highest compensation ever given to a rape survivor in India.

The Gujarat government had initially promised to follow the apex court’s order but told a three-judge bench on Monday that it intended to file a review petition. The bench, led by Chief Justice Ranjan Gogoi, gave the state two weeks to comply with the decision.

Bilkis Bano was raped and 14 members of her family, including her 3-year-old daughter, were murdered in March 2002 when a lynch mob attacked a Muslim community in Gujarat’s Dahod district. Bano faced an uphill battle for justice as the state police allegedly refused to cooperate with her and suppressed evidence. After police dismissed the case against her assailants, she approached the National Human Rights Commission of India and petitioned the Supreme Court seeking a reinvestigation. The Supreme Court directed a federal agency, the Central Bureau of Investigation (CBI), to carry out an investigation, following which the case was transferred outside of Gujarat.

In 2005 a special court in the state of Maharashtra indicted 19 individuals, including police officers, for rape and suppressing evidence. In January 2008, 11 people were sentenced to life imprisonment on multiple counts of rape and murder, and a policeman was convicted of falsifying evidence. Seven others were acquitted.

In 2017 the Bombay High Court upheld the trial court’s decision partially by affirming terms of life imprisonment given to the 11 individuals convicted. The court also set aside the acquittal of the remaining seven accused in the case, including Gujarat police officers and doctors of a government hospital, who were convicted of suppressing evidence.

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.

Derecho Constitucional / Constitucional Law

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Brazil Supreme Court criminalizes homophobia and transphobia           

Source: Jurist

June 14, 2019

Brazil’s Supreme Federal Tribunal voted on Thursday to criminalize homophobia and transphobia.

In an 8-3 decision, the court approved a three-point thesis holding that LGBTQ discrimination should be understood to fall within the nation’s prohibition against racism until the National Congress can issue a law specifically addressing this matter. Brazil’s legislature outlawed racism in 1989 with prison sentences of up to five years. The court stipulated certain limits to their decision, holding that the criminalization of homophobia cannot restrict the free exercise of religion, as long as it does not constitute hate speech.

Justice Gilmar Mendes, who voted with the majority, believed the court’s decision was necessary because of persistent violence against LGBTQ people in Brazil, noting that Brazil’s constitution protects the fundamental rights and freedoms of minorities. Likewise, Justice Cármen Lúcia noted that given the high number of homicides and hate crimes against LGBTQ people in Brazil, the legislature’s unwillingness to act was unconstitutional, stating that “[t]he protection of fundamental rights must be full, so that the Constitution does not become a mere sheet of paper.”

In a dissenting opinion, Justice Ricardo Lewandowski expressed his unwillingness to effectively legislate on behalf of Congress, noting that, under Brazil’s constitution, only the legislature has the authority to add to the criminal law.

President Jair Bolsonaro, an evangelical Christian, strongly criticized the court’s decision in a speech on Thursday calling for more evangelical Christian representation on the court.

Derecho Constitucional / Constitucional Law

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US Supreme Court allows Virginia Uranium mining ban to stand            

Source: Jurist

June 17, 2019

-United States-

 On Monday, the Supreme Court of the United States decided that the Atomic Energy Act (AEA) does not preempt Virginia Law from prohibiting the mining of Uranium. The Supreme Court, in a 6-to-3 plurality judgment, sidedwith the State of Virginia’s right to regulate the Uranium industry.

“But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review.”

Justice Gorsuch, writing for the plurality with 3 votes, stated that while AEA has provisions for the mining of Uranium on federal land, it is silent on the mining of Uranium on private lands and only triggers after the Uranium has been mined. Justice Gorsuch reinforces the majority view saying that Congress was clearly aware that Uranium might be capable of being mined on private land, and must have purposely left it to the States to resolve. Gorsuch also dismisses any potential need for Uranium by the federal government citing that 90% of US Uranium needs are filled through importation and if there was a need for this specific mine, the federal government could always purchase the land or seize it by eminent domain at that time.

Justice Ginsburg carried the other 3 votes of the plurality and affirmed in the judgment, but would have affirmed only on the rationality that the state law in question does not conflict with the AEA because it regulates only private mining within the boundaries of a particular state. Justice Ginsburg further notes that Virginia’s law conforms to existing Supreme Court precedent regarding federal preemption.

Chief Justice Roberts writes for the dissent and argues that the only question that should have been addressed is whether a state can regulate an industry through non-preempted means as a way of preventing the development of industries which are preempted. Under this question, Chief Justice Roberts would have denied Virginia’s law.

The case came from the rural community of Pittsylvania County that has historically suffered from the collapse of many of it’s industries. Environmentalists have applauded the holding from the Supreme Court.