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Indonesia: Law Amended to Give Lawmakers Added Protection

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(July 16, 2014) The Indonesian House of Representatives (DPR), on July 8, 2014, adopted an amendment to the 2009 Legislative Institution Law, also called the MD3 Law. (Law No. 27, 2009 [in Indonesian], DPR website; Margareth S. Aritonang, New Law Shields House Members from Corruption Investigations, JAKARTA POST (July 14, 2014).) This Law sets rules for the operations of the People's Consultative Assembly and the Regional Representatives Council, in addition to the DPR, the main legislative body.

Among the changes adopted in the amended Law is a revision to the method of selecting the Chair of the House. Whereas previously the Chair came from the party that won the most seats in the legislative election, the amended legislation calls for the entire House to elect a Chair. (Basten Gokkon, Joko Reaffirms Plans to Reform Civil Service, JAKARTA GLOBE (July 14, 2014); Ryan Dagur, Indonesian Activists Claim New Law Will Hamper Graft Probes: Groups Call for Judicial Review of Amendment That "Protects Lawmakers," UCA NEWS (July 15, 2014).)

Additionally, the new Law shields members of the House from investigations into their behavior. It determines that before law enforcement agents can summon legislators to answer questions, they must obtain approval from the House Honor Tribunal. The Tribunal will have 17 lawmakers from each political faction in the legislature; summonses by law enforcement would become invalid if not approved by the Tribunal within 30 days. Further, under article 245, the Law prevents questioning of House Members of what they do, whether inside or outside the House. (Aritonang, supra.)

Criticisms of the Amended Law

The provisions on investigation of legislators were criticized by Indonesian Corruption Watch (ICW, a non-profit organization), whose Abdullah Dahlan noted on July 13, 2014, that it "will allow lawmakers implicated in criminal cases to buy time [and perhaps] avoid the legal process." (Id.) He added that his organization is concerned that during the 30-day period, suspects might destroy evidence or even escape. (Dagur, supra.) ICW and other groups are planning a judicial challenge to the amended legislation. (Id.)

The Law will also allow lawmakers to have closed-door meetings, without public disclosure of the proceedings. This aspect caught the attention of Hendrik Rosdinar from the Indonesian organization Civil Society Alliance for Democracy. He said, "[t]he new law reflects lawmakers' poor commitment to accountability and transparency." (Aritonang, supra.)

The Corruption Eradication Commission and the Amended Law

Indonesia's anti-corruption authority, the Corruption Eradication Commission (KPK), has stated that prosecutions of House Members could continue despite the recent enactment by the legislature. KPK's chair, Abraham Samad, said that the KPK would follow its own rules in dealing with corruption and would still be able to summon House Members in graft cases, without considering the House Honor Tribunal. (Id.)

He clarified that the National Police and the Attorney General's Office could be impacted by the new legislation, but that the KPK, in his view, does not have to "abide by the MD3 Law. Even if the law is implemented, the KPK only follows the Corruption Law and the KPK Law." (Id.; Law on Eradication of the Criminal Act of Corruption, Law No. 31/1999, as amended by Law No. 20/2001; Law on the Commission to Eradicate Criminal Acts of Corruption [the KPK], Law No. 30, 2002, all available at Asset Recovery Knowledge Centre website.)

Furthermore, according to KPK Deputy Chairman Busyro Muqoddas, the new Law violates the principle of equality before the law. He said, "[t]he position of lawmakers is equal to other state officials. The House has tried to violate the principle of equality before the law by protecting its lawmakers' law enforcement institutions." (Aritonang, supra.)

Defense of the Amendment

The changes included in the new Law were defended by Marzuli Alie of the House of Representatives, who argued that corrupt legislators will not be protected and that "[w]ritten approval from the Honorary Council [before investigations] is needed so that law enforcement officers … can't conduct an investigation just when they feel like it against members of the DPR." (Dagur, supra.)

Author: Constance Johnson More by this author
Topic: Government ethics and transparency More on this topic
 Legislative bodies More on this topic
Jurisdiction: Indonesia More about this jurisdiction

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Israel: Precedent-Setting Decision on Rabbinical Court

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(July 16, 2014) Israel's High Court of Justice, with an extended bench of seven justices, recently voided a decision by the Supreme Rabbinical Court instructing a mother to enable the circumcision of her infant son against her will. (HCJ 8533/13 Anonymous v. Supreme Rabbinical Court [in Hebrew], State of Israel: The Judicial Authority website (June 29, 2014).)

Facts of the Case

The mother argued that she and her son's father had previously agreed not to circumcise their son, and that the father introduced the demand to circumcise their son only at the first hearing of their divorce proceedings. The Netanya regional rabbinical court, where the proceedings took place, accepted the father's request. The court ordered the mother to enable her son's circumcision within seven days following its decision or face a significant fine that would be increased for every day of delay. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 3, id.)

The mother had appealed the regional court's decision to the Supreme Rabbinical Court, which rejected her arguments and determined that because the origin of the circumcision ceremony is in Halacha (Jewish law), "it is inconceivable… that this subject will be given to the discretion of a civilian court, which is not familiar with the substance of Halacha." (Id. ¶ 6.) The mother petitioned the Supreme Court, sitting as a High Court of Justice, to quash the rabbinical courts' decisions based on their allegedly being rendered without authority (For information on the High Court's jurisdiction to void rabbinical court decisions, see Basic Law: The Judiciary, § 15(d)(4), Knesset website.)

Ruling

Circumcision as a Matter Relating to Guardianship

Accepting the mother's petition, Justice Naor, in a majority opinion, determined that under the Capacity and Guardianship Law 5722-1962, both parents are the natural guardians of their minor children. Accordingly, they have "the duty and the right to take care of the needs of the minor … ." (Capacity and Guardianship Law 5722-1962, §§ 14-15, 16 LAWS OF THE STATE OF ISRAEL [LSI] 106 (5722-1961/62, as amended.)

Previous Supreme Court precedent decisions interpreted the term "needs of the minor" as including material, emotional, and medical needs. Circumcision, according to Justice Naor, is included in the "needs of a minor" because

[i]t is well known that the vast majority of the Jewish population, and especially in Israel, views circumcision as an important and meaningful ceremony, which symbolizes the national-Jewish affiliation of an individual, with no necessary connection to religious beliefs. This is one of the most important commandments in Judaism, for the existence of which many fought throughout Jewish history and also died. … The majority of the Jewish public in Israel, both religious and secular, circumcise their sons; this does not need proof In view of this background, it appears that circumcision is acceptable to the public in Israel and may respond to various needs of the minor, including social needs. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 17, supra.)

As such, according to Naor, circumcision is a matter that should be decided by the parents based on the presumption that they act for the benefit of the minor. In the absence of mutual consent, a parent may seek judicial determination of the issue in accordance with section 25 of the Capacity and Guardianship Law, which applies to matters related to guardianship when the parents do not reach consensus. In determining matters related to needs of a minor, the court concerned must reach decisions based on the best interest of the child. (Id. ¶ 18.)

Jurisdiction over Judicial Determination of Circumcision of Minors

According to Naor, as a matter that relates to the "needs of the minor," circumcisionis within the jurisdiction of the family court and not the rabbinical court. In accordance with section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (7 LSI 139 (5713-1952/53)), the rabbinical court has the authority to adjudicate matters of marriage and divorce of Jews in Israel who are nationals or residents of the state. Under section 3, however, "where a suit for divorce between Jews has been filed in a rabbinical court… [it] shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple." (Id.)

According to Naor, unlike in matters related to custody of children, child support, and division of marital property, determination of which is required by the changing circumstances created by the divorce, the circumcision of a child is not a matter that arises because of the dissolution of marriage and therefore is not connected to a suit for divorce. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 29, supra.)

Other Considerations Related to the Circumcision Decision

Additionally, Naor held, the right to consent to a child's circumcision is connected to the parent's general right to guardianship and not to the child's physical custody. Moreover, both parents have a right to express their opinions on the subject of circumcision, regardless of whether or not they are married, divorced, or cohabiting. This reasoning also supported the view that the determination of whether or not to circumcise a child is not required for an effective dissolution of a marriage or for resolution of matters that need to be resolved because of the divorce. (Id. ¶ 30.)

Naor added that a decision on circumcision is a complex and sensitive one. It involves a physical irreversible act on the body of a child who is not a party to the divorce proceedings. It also involves "questions related to basic rights such as freedom of religion or freedom from religion as well as social and cultural considerations." (Id.) She concluded,

… in a conflict between parents on this issue, which is subject to [application of] the principle of the benefit of the child, the determination [of whether to circumcise the child] should not be made in connection with the divorce proceedings between the child's parents. This is especially true in this case, where [due to delay] the circumcision would require an unusual medical procedure of anesthesia or sedation. (Id.)

The Final Determination of the High Court of Justice

Accordingly, the High Court of Justice determined that the rabbinical court did not have jurisdiction to adjudicate the matter; all decisions to force the mother to comply with the requirement to circumcise her son were therefore voided. The High Court held, however, that the father had a right to file a suit on this matter at the family court. (HCJ 8533/13, p. 50.)

Author: Ruth Levush More by this author
Topic: Health More on this topic
 Judiciary More on this topic
Jurisdiction: Israel More about this jurisdiction

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Norway: Begging to Become Illegal Again

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(July 16, 2014) As of July 1, 2014, Norwegian municipalities have the right to make begging illegal. Members of the governing parties of the Stortinget (the country's legislature) made a compromise with the Center Party (Senterpartiet) to acknowledge the right of self-governance of municipalities; specifically, their right to regulate begging locally. As part of the compromise plan, begging will become illegal nationally in Norway next summer by decision of the Storting. Responsible parliament members defend the decision to delay action by saying that national criminalization of begging requires due legislative research, including investigation of the issue by a legislative committee. (Kommunalt förbud mot tiggeri i Norge, SVD (June 10, 2014).)

Critics of the new prohibition are especially outraged by the circumvention of the Stortinget by the municipalities, which allows for the prohibition to take effect much sooner than had a thorough investigation into the matter been made by the parliament. (Id.) Begging was previously illegal in Norway until 2005, but the prohibition was not enforced. (Tigging, LOVDATA (Feb. 4, 2013).)

The decision comes in the wake of increased migration of beggars from Romania and Bulgaria to other European nations under the European Union principle of right of free movement of people. (Deal Opens Way to National Begging Ban, LOCAL (June 11, 2014).) During 2013, the Norwegian state spent NOK10 million (about US$1.7 million) on humanitarian efforts to assist EU migrant beggars. (Tilskudd i 2013 til humanitære tiltak rettet mot EØS borgere som kommer til Norge for åtigge, Justis- og Beredskapsdepartementet [Ministry of Justice and Public Security] website (Mar. 17, 2014).)

Commentators argue that the Romani beggars will be hit hardest by the local prohibition. (Ørstavik -Romfolk rammes hardt av tiggeforbud, AFTENPOSTEN (June 11, 2014).) Others argue that the prohibition of begging will lead to an increase in crime, as poor individuals will have to steal necessities such as food. (Rune Jensen, Linn Marie Hammernes, & Hanna Seferowicz, Frykter tiggeforbud vil føre til mer kriminalitet, NRK (June 11, 2014).) A better alternative, according to some, is to only prohibit non-Norwegians from begging on Norwegian streets. (Id.)

Street performances and sales for monetary gain would remain legal under the proposed national legislation. Street musicians will not be treated as beggars and will continue to be allowed to perform even after the criminalization of begging. (Id.)

Municipal Actions

Thus far, no municipality has publicly declared that it will make begging illegal. (Tvilsomt om noen byer vil forby tigging i sommer, NRK (June 11, 2014).) It is therefore unlikely that any begging bans in municipalities will take effect until the fall, as most municipal boards will not convene again until September. (Id.)

Some municipalities have already taken measures to control begging, such as requiring that beggars register with the municipality or prohibiting begging in certain areas like bus stops. (Id.) Prolonged camping in parks and similar areas has also been prohibited, to stem the influx of European migrants who may become beggars. (BjørnGrimen, Eirin Larsen, & Marianne Terjesen, Politidirektoratet har forberedt sig - men innforing av tiggerforbud tar tid, NRK (June 11, 2014).) The municipality of Arendal is expected to make a decision on begging soon; according to the chairman of the municipal board it is expected that a prohibition will be agreed upon. (Svein Sundsdal, Likevel tiggeforbud i Arendal, NRK (June 11, 2014).)

To aid municipalities that wish to prohibit begging, the Norwegian national police department has issued guidelines that can be used to word the prohibition and speed up the process. (Politiet formulerer tiggeforbud for kommunene, DAGBLADET (June 12, 2014); Regulering av tigging [Guidelines on Regulating Begging], Politiet [the Norwegian Police] website (June 12, 2014).)

Prepared by Elin Hofverberg, Foreign Law Research Consultant, under the supervision of Peter Roudik, Director of Legal Research.

Author: Peter Roudik More by this author
Topic: Crime and law enforcement More on this topic
 Immigration More on this topic
 State and local government More on this topic
Jurisdiction: Norway More about this jurisdiction

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Denmark: Recent Bank and Tax Statements on Bitcoin

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(July 16, 2014) On March 18, 2014, the Danish Central Bank issued a statement declaring that Bitcoin is not a currency. The Bank went on to explain, "Bitcoin does not have any real trading value compared to gold and silver, and thus is more similar to glass beads." (Press Release, Bitcoin er ikke penge, Danish Central Bank [Nationalbanken] website (Mar. 18, 2104).) The Danish Central Bank went on to point out that Bitcoins are not protected by any national laws or guarantees, such as a deposit guarantee. (Id.)

The use of Bitcoins as a payment method is still very limited, according to Central Bank Director Hugo Frey Jensen. Nevertheless, the European agencies are currently investigating whether the use of Bitcoins should be regulated in the future. (Id.)

The Bank's declaration came months before a Bitcoin trading platform was scheduled to open in Denmark. (Ray Weaver, Bitcoin Exchange Set to Open, COPENHAGEN POST (May 26, 2014).) The platform founder is using Denmark as a selling point in trying to attract customers, declaring that "clients will know where we are, that the jurisdiction is Danish and that there is complete transparency" and that he will operate the business as if he were regulated by a "financial watchdog." (Id.)

The Danish Tax Authority (SKAT) has also had to deal with Bitcoin issues recently. On April 1 2014, the Tax Authority published a binding reply in which it declared that an invoice cannot be issued in Bitcoins, but must instead be issued in Danish Kroner or another recognized currency. (Bitcoins, ikke erhvervsmæssig begrundet, anset for særkilt virksomhed, SKAT (Apr. 1, 2014).) The Authority went on to state that any losses in Bitcoins cannot be deducted as a cost of doing business. (Id.)

Prepared by Elin Hofverberg, Foreign Law Research Consultant, under the supervision of Peter Roudik, Director of Legal Research.

Author: Peter Roudik More by this author
Topic: Banks and financial institutions More on this topic
 Currency More on this topic
 Foreign exchange More on this topic
 Taxation More on this topic
Jurisdiction: Denmark More about this jurisdiction

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Sweden: Child in Protective Care Following Excessive Online Gaming

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(July 16, 2014) On April 11, 2014, the District Administrative Court in Linköping, Sweden, granted a petition by the Socialnämnd (Social Welfare Committee) to take a 14 year-old youth into protective care based on his excessive gaming. (14-åring tvångsvårdas för datorspelande – "socialt nedbrytande situation," DAGENS JURIDIK (Apr. 16, 2014).)

The child had not attended school since September 2013 and spent all his waking hours playing games on his computer. Although the court did not find that the parents had necessarily been at fault for deficient care for their son, it held that the child needed to be put in protective care to provide him neuropsychological treatment and protect him from his socially destructive behavior. (Id.) The parents did not oppose the proposed treatment targeting the socially destructive behavior. (Förvaltningsrätten i Linköping, Unit 2, Decision No. 2042-14 (Apr. 11, 2014), copy on file with author.)

Under Swedish law, a child will be treated against his or her (or the child's parents') will if:

• 2 § […] based on physical or psychological abuse or other forms of abuse [otillbörligt utnyttjande], defects in care, or any other circumstance in the home there is a considerable risk that the youth's health or development will be harmed.

• 3 § ¶ 1. […] the youth exposes his health or development to considerable risk of harm by the abuse of dependency-creating substances, criminal activity, or any other socially destructive behavior. (Lag med särskilda bestämmelser om vård av unga [Act on Special Regulations on Care of Young] (Svensk Författningssamling [SFS] 1990:52.)

Prepared by Elin Hofverberg, Foreign Law Research Consultant, under the supervision of Peter Roudik, Director of Legal Research.

Author: Peter Roudik More by this author
Topic: Child health More on this topic
 Gambling More on this topic
 Internet More on this topic
Jurisdiction: Sweden More about this jurisdiction

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