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Japan: Other Professionals Expand Practice Areas, Lawyers Displeased

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(Sept 17, 2014) Although the total number of lawyers (bengoshi) who can represent clients in the courts is small in Japan based on its population, there are many other types of legal professionals. Some of the types of legal professionals seem to be unique to Japan. (Colin P.A. Jones, A Guide to Navigating Japan's Exotic Legal-Eagle Menagerie, JAPAN TIMES (Oct. 9, 2012).) The Diet (Japan's legislature), at the end of its 186th session earlier this year, amended an act concerning members of one such legal profession, expanding the role of that profession. The Act to Amend the Gyosei Shoshi Act, Act No. 89 of 2014, was promulgated on June 27. (The text of the amending legislation, which was passed without change, is available on the House of Representatives website [in Japanese].)

The term "gyosei shoshi" has been translated as "administrative scriveners." For their clients, they prepare and submit documents to administrative agencies for approvals, the issuance of licenses, and other administrative procedures such as immigration documents and drafts of certain contracts, including agreements on the division of inheritances. They can represent their clients at interviews and administrative hearings in relation to the applications they prepared and submitted. (Gyosei Shoshi Act, Act No. 4 of 1951, arts. 1-2 & 1-3 [in Japanese] E-GOV.)

When Act No. 89 of 2014 becomes effective at the end of 2014, qualified gyosei shoshi will be able to represent their clients for administrative review procedures and file objections in relation to the applications they prepared and submitted for the clients. (Id. art. 1-3 ¶ 1 item 2.) To be qualified, gyosei shoshi must complete a training course that is offered by the Gyosei Shoshi Association. (Id. art. 1-3 ¶ 2.)

The Gyosei Shoshi Association (GSA) had lobbied to expand their areas of practice; the Japan Federation of Bar Associations (JFBA) had opposed this lobbying effort. According to the GSA, "the amendment confers upon qualified gyosei shoshi who have completed a training course the right to provide representation to clients during objection procedures against administrative actions," which had been a "long-cherished wish" of the Association. (Koji Kitayama, Chairman's Narrative on Promulgation of "Act to Partially Amend Gyosei Shoshi Act" (Act No. 89, June 27, 2014) [in Japanese], Japan Federation of Certified Administrative Procedures Legal Specialists Associations website (June 27, 2014).) By contrast, the JFBA pointed out in detail five specific concerns of the JFBA related to gyosei shoshi representing clients in objection procedures against administrative actions. (Kenji Yamagishi, Chairman's Statement to Oppose Gyosei Shoshi Act Amendment [in Japanese], Japan Federation of Bar Associations website (Aug. 10, 2012).)

Author: Sayuri Umeda More by this author
Topic: Administrative law and regulatory procedures More on this topic
 Lawyers and legal services More on this topic
Jurisdiction: Japan More about this jurisdiction

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Uganda: New Law Criminalizes HIV/AIDS Transmission, Requires Pregnant Women to Undergo HIV Testing

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(Sept 17, 2014) In August 2014, Ugandan President Yoweri Museveni signed into law the HIV and AIDS prevention and control bill, which, among other measures, criminalizes intentional transmission of HIV and requires pregnant women to undergo mandatory HIV testing. (Press Release, Center for Reproductive Rights, Uganda President Yoweri Museveni Signs Callous Law Criminalizing HIV and AIDS Transmission (Aug. 21, 2014).)

Key Provisions

The most notable provisions in the legislation criminalize intentional transmission of HIV or the attempt to do so. The "willful and intentional" transmission of HIV to another person is an offense that is punishable on conviction with up to a ten-year prison term and a fine of up to UGX4.8 million (about US$1,846). (HIV and AIDS Prevention and Control Bill, 2010, CIII (24) BILL SUPPLEMENT TO THE UGANDA GAZETTE (Apr. 30, 2010).) However, a person will not have committed a crime if his/her partner was aware of his/her HIV status and voluntarily accepted the risk and/or the transmission occurred despite the person's use of protective measures; the legislation is unclear as to whether these are two exceptions or two elements of one exception. (Id. § 41.) Attempt to commit the offense is punishable on conviction with up to five years in prison and/or a fine of up to UGX200,000 (about US$92). (Id. § 39.) The legislation does not define what constitutes an attempt.

Another notable provision requires that victims of sexual offenses, pregnant women, and partners of pregnant women undergo mandatory HIV testing "for the purpose of prevention of HIV transmission." (Id. § 14.) Failure to do so may be considered an offense of similar proportion as intentional transmission of HIV and subject to similar penalties. (Id. § 45.)

The legislation requires that the results of an HIV test be kept confidential and that they be released only to the person tested. (Id. § 19.) A breach of confidentiality or unlawful disclosure of information on the HIV status of a person by a health practitioner is an offense for which penalties similar to that of the crime of intentional transmission of HIV apply. (Id. § 40.)

However, there are a number of exceptions to the confidentiality rule. For instance, an HIV test result may be disclosed without consent to any person "with whom an HIV infected person is in close or continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the medical practitioner, poses a clear and present danger of HIV transmission to that person." (Id. § 21.)

Also notable are provisions outlawing discrimination on the basis of HIV status. The legislation prohibits workplace discrimination, including denial of access to employment or promotion and transfer or termination of employment, merely on the basis of actual or suspected HIV status. (Id. § 32.) The legislation imposes similar bans on discrimination against a person on the basis of actual or perceived HIV status with regard to access to education, travel and habitation; access to public services; access to credit and insurance services; and access to health care. (Id. §§ 32-36.) Anyone who violates these bans may be subject to a civil wrong. (Id. § 38.)

Reactions to the New Law

A number of rights groups have criticized the legislation. Human Rights Watch, HEALTH Global Advocacy Project, and the Uganda Network on Law, Ethics & HIV/AIDS (UGANET) called the legislation, especially its provisions on mandatory HIV testing and confidentiality, contrary to international best practices; a violation of fundamental human rights; and a step backward in the fight against AIDS. (Uganda: Deeply Flawed HIV Bill Approved, HUMAN RIGHTS WATCH (May 14, 2014).) The criticism stems, in part, from the fact that Uganda's Parliament by and large excluded the input of advocacy groups and experts from the legislative process. Dorah Kinconco Musinguzi, UGANET's executive director, stated:

Despite years of engagement and labouring to explain the dangers on an HIV-specific criminal law, parliament has refused to be advised. When experts on HIV research and management attempted to speak, [lawmakers] still failed to heed to the key concerns … . (Alarm as Uganda Moves to Criminalize HIV Transmission, IRIN NEWS (May 9, 2014).)

Rights groups have expressed concern that the legislation will make an already rising HIV infection rate worse because it will make people less inclined to get tested for HIV for fear of the implications. (Amy Fallon, Uganda Passes Another Repressive Law -- This Time Criminalising HIV Transmission, INTERPRESS AGENCY (May 15, 2014).) Musinguzi noted that an effective strategy to tackle the HIV/AIDS epidemic in Uganda must be one that treats people living with HIV as partners in the fight and not as criminals that must be excluded from the process. (Mercy Nalugo, Rights Bodies Protest HIV/AIDS Bill, DAILY MONITOR (May 15, 2014).)

Uganda's Ministry of Health found in a 2011 study that the country's general HIV prevalence had risen to 6.7% of the population compared to 6.4% in 2005. (John Masaba, Uganda's HIV Infection Rate Rises to 6.7%, NEW VISION (Mar. 18, 2012); MINISTRY OF HEALTH, SITUATION ANALYSIS OF NEW BORN HEALTH IN UGANDA: CURRENT STATUS ANDOPPORTUNITIES TO IMPROVE CARE AND SURVIVAL 14 (2008).) A further breakdown of the numbers showed a gender gap in the rate of HIV prevalence in which the infection rate among women was 7.7%, while the rate for men was only 5.6%. (Masaba, supra.) Other sources indicate that the general prevalence rate is over 7%. (Alarm as Uganda Moves to Criminalize HIV Transmission, supra; Fallon, supra; Uganda: Statistics, UNITED NATIONS CHILDREN'S FUND (UNICEF) (last visited Sept. 16, 2014).)

Author: Hanibal Goitom More by this author
Topic: Crime and law enforcement More on this topic
 Discrimination More on this topic
 HIV/AIDS More on this topic
 Women's rights More on this topic
Jurisdiction: Uganda More about this jurisdiction

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Taiwan: Taipei Ban on Election Banners and Flags

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(Sept 17, 2014) As of August 29, 2014, Taipei City imposed a ban on the promotional banners and flags typically displayed during election campaigns in Taiwan. The purpose of the ban is to minimize visual pollution and achieve, in the words of a city government official, "a pollution-free campaign environment," during the upcoming landmark "seven-in-one" elections of public officials. (Taipei City Bans Election Banners, Flags, TAIWAN TODAY (Aug. 28, 2014).) The official added, "[w]e hope other parts of Taiwan will also embrace this meaningful measure" and noted that the measure also enhances citizens' safety, because they "will no longer be forced to dodge fallen flags or have their view obstructed by banners while driving." (Id.)

The "seven-in-one" elections (ch'i ho hsüan-chü) are so called because they will combine into one election all seven elections of local officials to be held in the same year, 2014, a plan that was put forward by Taiwan's legislature in 2008 with a view to saving election costs. (Katherine Wei, DPP Announces 2014 Election Nominees, CHINA POST (Nov. 21, 2013).) The offices up for election include mayors of special municipalities, councilors of special municipalities, provincial city and county magistrates, provincial city and county councilors, township chiefs, township councilors, and borough and village chiefs. (What Are the Seven-in-One Elections? [in Chinese], TAIPEI TSUI TA website (last visited Sept. 10, 2014); Taipei City Bans Election Banners, Flags, supra.)

The banner and flag ban in Taipei was instituted when the city councilors voted on August 27 to remove article 7 from the Taipei Municipality Autonomous Regulations on Election Advertising Objects. According to the deleted provision, during lawful campaign periods candidates and parties could display banners and flags at designated public venues without having to apply to do so. (Taipei City Bans Election Banners, Flags, supra.)

The Regulations define election advertising objects as advertising objects that may record, e.g., the candidate's name, picture, election event, or slogans for the purpose of establishing an image, gaining recognition, and competing for votes on the part of a political party or of individuals or groups who intend to participate in or support elections and that also are installed in/on or appended to this city's public facilities, buildings, vehicles, privately or publicly owned vacant land during the election campaign period prior to presidential and vice presidential elections and elections for public officials. (Taipei shih ching-hsüan kuang-kao wu kuan-li tzu-chih t'iao-li [Taipei Municipality Autonomous Regulations on Management of Election Advertising Objects] (as amended on Aug. 27, 2014), art. 2 ¶ 1.)

The seven-in-one elections, the "largest ever nationwide local-level elections," are scheduled to occur on November 29, with "a record 11,130 positions" being contested. (Taipei City Bans Election Banners, Flags, supra; Central Election Commission Discusses Adoption of Schedule for 2014 Local PublicServants Elections Voting Date and Work [in Chinese], Taiwan Central Election Commission website (Jan. 21, 2014).)

Author: Wendy Zeldin More by this author
Topic: Elections and politics More on this topic
 Freedom of speech More on this topic
 Marketing and advertising More on this topic
Jurisdiction: Taiwan More about this jurisdiction

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United Nations: Protection for Manta Rays and Sharks in Effect

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(Sept 16, 2014) United Nations-sponsored restrictions on trade in sharks and manta rays became effective on September 14, 2014. Permits and certificates establishing that sustainable, legal methods have been used to harvest five kinds of sharks and all manta rays now are needed for the sale of meat, gills, and fins. The shark species involved are the oceanic whitetip shark, the scalloped hammerhead shark, the great hammerhead shark, the smooth hammerhead shark, and the porbeagle shark. While other shark species have previously been subject to restrictions, this is the first listing of these particular species that have significant commercial value. (New UN-Backed Protections for Sharks, Manta Rays Enter into Effect, UN NEWS CENTRE (Sept. 12, 2014).)

The shark and ray species are now listed in Appendix II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); species listed in Appendix II are not considered likely to be close to extinction, but "trade in them is controlled to avoid utilization incompatible with their survival." (Sharks and Manta Rays, CITES website (Sept. 14, 2014); CITES (as amended June 22, 1979), CITES website (last visited Sept. 15, 2014).) This listing means that exports and re-exports will not be permitted without authorization from the authorities designated in each of the 180 CITES member nations. Countries that import the species must check that all shipments have the appropriate permits. (Press Release, CITES, Stronger Protection for Five Shark Species and All Manta Rays (Sept. 12, 2014).)

The hope is that global cooperation will prevent over-harvesting. Data about the trade in the listed species will be shared with the CITES Secretariat and be made available to the public, and the Fisheries and Aquaculture Department of the UN Food and Agriculture Organization (FAO) will support the CITES Secretariat in protecting these species. (Id.) The FAO has estimated that the world-wide shark capture from 2000-2009 alone was 750,000-900,000 tons. (Id.)

According to the Secretary-General of CITES, John Scanlon,

Regulating international trade in these shark and manta ray species is critical to their survival and is a very tangible way of helping to protect the biodiversity of our oceans. The practical implementation of these listings will involve issues such as determining sustainable export levels, verifying legality, and identifying the fins, gills and meat that are in trade. (Id.)

Not all countries have totally supported the new restrictions, however. Canada and Guyana entered reservations with respect to all the newly listed species; Japan has done so for all the shark species. Yemen entered a similar reservation for the three hammerhead shark species, and Denmark did so for Greenland regarding the porbeagle shark. By entering a reservation, a CITES party opts out of particular restrictions. (Id.)

Author: Constance Johnson More by this author
Topic: Biodiversity More on this topic
 Endangered species More on this topic
 Environmental protection More on this topic
 Marine resources and fisheries More on this topic
Jurisdiction: United Nations More about this jurisdiction

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Gambia: Parliament Adopts Stringent Anti-Homosexuality Law

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(Sept 16, 2014) On August 25, 2014, The Gambia's 53-member unicameral National Assembly adopted the Criminal Code (Amendment) Act, 2014, aimed at including a new crime of "aggravated homosexuality" in the country's Criminal Code. (Gambia Passes Bill to Introduce Crime of "Aggravated Homosexuality," REUTERS (Sept. 9, 2014).) The legislation must be signed by the President or passed again by the National Assembly with the support of at least two-thirds of all the members before it can become law. (Constitution of the Republic of the Gambia 1997, §§ 7 & 100(3)-(4), ACCESS GAMBIA.)

If the legislation becomes law, a person would be charged with the offense of aggravated homosexuality if he or she commits an act of homosexuality, which is a crime under the current Criminal Code, under the following circumstances:

• the victim is under the age of 18;
• the offender is HIV positive;
• the offender is the victim's parent/guardian;
• the offender exercises authority over the person with whom the act was committed;
• the other party is a disabled person;
• the offender is a recidivist; or
• the offender drugs the victim with the intent to diminish his/her capacity before committing the act. (MPs Approve Life Sentence for "Aggravated Homosexuality," THE POINT (Sept. 10, 2014).)

A person who commits the crime of "aggravated homosexuality" would be punishable by life in prison upon conviction. (Id.)

Homosexuality Under the Current Criminal Code

Homosexual acts are an offense under The Gambia's current Criminal Code. The Code states that a "person who has carnal knowledge of any person against the order of nature … or permits any person to have carnal knowledge of him or her against the order of nature" commits a felony known as an unnatural offense and, on conviction, is punishable by a 14-year prison term. (Criminal Code of 1934, § 144, 3 LAWS OF GAMBIA, Cap. 8:01 (rev. ed. 2009).) An attempt to commit an unnatural offense, also a felony, is punishable by seven years of imprisonment. (Id. § 145.) The act of "carnal knowledge of any person against the order of nature" includes:

• carnal knowledge of the person through the anus or mouth of the person;
• inserting any object or thing into the vulva or anus of the person for the purpose of simulating sex; and
• committing any other homosexual act with the person. (Id. § 144; see also Criminal Code (Amendment) Act, 2005 (July 21, 2005), Supplement C, THE GAMBIA GAZETTE, No. 13 (Aug. 2, 2005), NATLEX.)

The Gambia's current law also criminalizes what it calls "indecent practices." Anyone who "commits an act of gross indecency with another" in public or in private or "procures" or "attempts to procure" another to commit such an act with him/herself or with another person commits a felony and, on conviction, is punishable by a five-year prison term. (Criminal Code of 1934 § 147; see also Criminal Code (Amendment) Act, 2005, supra.) An act of gross indecency includes any homosexual act. (Criminal Code of 1934, § 147.) However, the term "homosexual act" is not defined.

Impact of the New Legislation

If the Amendment Act is approved in its current form, it will make The Gambia the only jurisdiction in Africa whose laws include the offense of "aggravated homosexuality." Although earlier this year Uganda adopted an anti-homosexuality law that included a similar provision, the law was recently invalidated by the country's Constitutional Court on a technicality. (Andrew Harding, Uganda Court Annuls Anti-Homosexuality Law, BBC NEWS (Aug. 1, 2014).) According to a recent Law Library of Congress survey, many African countries criminalize homosexuality in one form or another. (Criminal Laws on Homosexuality in African Nations, LAW LIBRARY OF CONGRESS (Feb. 2014).)

Author: Hanibal Goitom More by this author
Topic: Crime and law enforcement More on this topic
 LGBT rights More on this topic
Jurisdiction: Gambia More about this jurisdiction

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