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Indonesia: Beer Sales Ban for Small Vendors

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(Apr 23, 2015) In January 2015, Indonesia's Ministry of Trade issued Regulation 6/M-Dag/PER/1/2015, which bans the sale by small shops of drinks with an alcohol content of 1% to 5%. (Perubahan Kedua Atas Peraturan Perdagangan No. 20/M-DAG/PER/4/2014 Tentang Pengendalian Dan Pengawasan Terhadap Pengadaan, Peredaran, dan Penjualan Minuman Beralkohol [Second Amendment to Regulation No. 20/M-DAG/PER/4/2014 on the Control and Supervision of Procurement, Distribution, and Sale of Alcoholic Beverages] (Jan. 16, 2015), JARINGAN DOKUMENTASI DAN INFORMASI HUKUM [NETWORK DOCUMENTATION AND LEGAL INFORMATION], Ministry of Trade website.)

Rules are already in place forbidding these vendors from selling drinks with higher alcohol content. This regulation thus covers beer and mixed beverages containing a combination of alcohol and soft drinks; it will not apply to supermarkets or to sales by hotels, restaurants, and bars. (Indonesia Bans Sale of Beer in Small Shops, GUARDIAN (Apr. 16, 2015); Alcohol in Indonesia: Sale of Alcohol in Minimarkets Banned, INDONESIA-INVESTMENTS (Apr. 10, 2015); Kementerian Perdagangan Larang Bir di Minimarket [Ministry of Trade Bans Beer in Minimarkets], BBC INDONESIA (Jan. 29, 2015).)

The regulation allowed a three-month period for vendors to sell off their existing stocks. On April 16, 2015, the ban came into full effect. (Alcohol in Indonesia: Sale of Alcohol in Minimarkets Banned, supra.)

Possible Exceptions to the Ban

There has been considerable concern about the effect of the ban on businesses in popular tourist areas, such as Bali. While the majority of people in Indonesia are followers of Islam, which forbids the consumption of alcoholic beverages, Bali is a Hindu-majority island. Rachmat Gobel, the Minister of Trade, who met a hostile reception at a meeting on the issue in Bali, promised that an exception would be made for the tourist-dependent area, so that beach vendors would still be able to sell beer. (Indonesia Bans Sale of Beer in Small Shops, supra.)

According to Sinar Pohan, a legal affairs official of the Ministry of Trade, a ministerial guideline stipulates that local elected officials can designate particular places in which alcoholic beverages may be sold by small stores. "These areas or places should be declared as tourism areas or tourism sites through a bylaw," Pohan said. (Ni Komang Erviani, Bali Tourist Areas Exempt from Beer Ban, JAKARTA POST (Apr. 17, 2015).)

Responses to the Ban

While Indonesia has a lower rate of alcohol consumption than other countries in Southeast Asia, concern was expressed by the Ministry about the effects of drinking. The founder of the National Anti-Alcohol Movement, Fahira Idris, who favors the new restriction, described alcohol as a "machine killing our youth." (Indonesia Bans Sale of Beer in Small Shops, supra.)

The Association of Indonesian Retailers has taken a different view, stating that regional administrations should have full authority over sales of beverages with low alcohol content. (Ni Koman Erviani, supra.) Beer brewers and distributors are also unhappy with the regulation. The Indonesian Brewers Association has said that the new rules essentially ban sales of beer in small towns that do not have supermarkets. (Indonesia Bans Sale of Beer in Small Shops, supra.) The retailers' association noted that while nationally only 1-2% of beer sales occur in minimarkets, in some tourist areas those vendors sell 10-20% of the beer consumed. (Ni Koman Erviani, supra.)

Author: Constance Johnson More by this author
Topic: Alcoholic beverages More on this topic
 Small business More on this topic
 Tourism More on this topic
Jurisdiction: Indonesia More about this jurisdiction

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Canada: Supreme Court Strikes Down Mandatory Minimum Sentences for Gun Crimes

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(Apr 22, 2015) On April 14, 2015, the Supreme Court of Canada, in a majority decision, struck down as unconstitutional those sections of the Criminal Code (RSC 1985, c C-46) that establish minimum mandatory sentences of three years for a first offense and five years for a second or subsequent offense for certain gun crimes. (Id. 95(1)) The Court was reviewing the punishments for section 95(1), which prohibits possession without a license and registration certificate of a loaded prohibited or restricted firearm or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition. (Id. 95(2) (a)(i)-(a)(ii).) The holding upheld the decision of the Ontario Court of Appeal, which had declared the provisions unconstitutional. (R. v. Nur, 2015 S.C.C. 15, ¶ 65.)

The Court found that the provisions violate section 12 of the Canadian Charter of Rights and Freedoms, which protects the "right not to be subjected to any cruel and unusual treatment or punishment." (Part I of the Constitution Act, 1982, Being Schedule B to the Canada Act, 1982, c. 11(U.K.), § 12.) The Court held that although the provisions did not impose a grossly disproportionate sentence on the offenders in the case, the application of the sentences could impose cruel and unusual punishment "on other persons in reasonably foreseeable situations." (R. v. Nur, 2015 S.C.C. 15, ¶ 65.)

The Court noted that foreseeable licensing offenses "which involve little or no moral fault and little or no danger to the public" could have resulted in a three-year sentence under the Code as it existed. (Id. ¶ 83.) The Court observed:

At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. (Id. ¶ 82.)

The Court also found that although a five-year minimum sentence for a subsequent offense was appropriate for one of the offenders in the case, there are situations where for less serious offenders it would be grossly disproportionate. The Court noted that this sentence "could be imposed on an individual who breached a prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a licence together with usable ammunition that he stored nearby and which was readily accessible." (Id. ¶103.) The Court found that a five-year sentence "for offenders such as these would be draconian." (Id. ¶ 104.)

The Court concludes its analysis by assessing whether the infringement can be justified under section 1 of the Charter, which stipulates that rights and freedoms are only subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (Constitution Act, Schedule B, § 1.) The Court applied the "Oakes Test" to show that although the law was rationally connected to the legislative goals of denunciation and retribution (id. ¶115; R. v. Oakes, 1986 S.C.C. 103), there were less harmful or drastic means of fulfilling Parliament's aim, such as drafting an offense which takes into account the degree of blameworthiness of the person's conduct. (R. v. Nur, 2015 S.C.C. 15, ¶ 117.) Moreover, since the punishments can be grossly disproportionate, the Court found the limits are not a proportionate justification under section 1. (Id. ¶ 118.)

Author: Tariq Ahmad More by this author
Topic: Criminal code More on this topic
 Sentencing More on this topic
 Weapons More on this topic
Jurisdiction: Canada More about this jurisdiction

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Jordan: Fatwa Against Joining ISIS

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(Apr 16, 2015) On April 13, 2015, the General Iftaa Department of the Kingdom of Jordan issued a legal opinion, or fatwa, based on Sharia law prohibiting Jordanians from joining the Islamic State of Iraq and al-Sham (ISIS). The Iftaa Department is a part of the government that is tasked with issuing legal opinions related to Sharia law.

The fatwa declares ISIS to be a terrorist group, making it unlawful for individuals in Jordan to join the group. Individuals are also prohibited from joining other terrorist groups that shed blood, proclaim Muslims as infidels, and violate people's honor and property, because these acts violate the teachings of Islam. The fatwa asserts that Islam promotes tolerance and forgiveness, calls for mercy and love, and rejects terror and extremism, and it declares whoever joins such terrorist organizations has disobeyed God and his Messenger and strayed from the straight path and is manifestly and clearly in error. (Fatwa No. 3065, Jordanian Government website (in Arabic).)

The fatwa cites in support of its ruling a number of verses of the Koran and pronouncements of the Prophet Mohammad as reported by the most trusted chroniclers of his traditions. For example, it cites the pronouncement in which the Prophet Mohammed said "[d]o not kill an old man, an infant, a child, or a woman …" (3 SUNAN ABU DAWOUD, No. 2614, at 61 (in Arabic)) and the pronouncement in which the Prophet Mohammed said the killing of a person is among the most grievous of sins (5 SAHIH AL-BUKHARI, No. 5632, at 2230, (in Arabic)).

Author: Issam Saliba More by this author
Topic: Terrorism More on this topic
Jurisdiction: Jordan More about this jurisdiction

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Kenya: Proposal to Forcibly Repatriate Somali Refugees

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(Apr 16, 2015) Following the April 2, 2015, deadly attacks at Kenya's Garissa University carried out by members of the Somalia-based terrorist organization known as Al-Shabaab, which resulted in the killing of 147 students, Kenya announced that it wants the Dadaab refugee complex closed immediately and its residents, who are all Somalis, moved to Somalia. On April 11, 2015, Kenya's Deputy President William Ruto declared that the United Nations High Commissioner for Refugees (UNHCR) must close the Dadaab refugee complex within three months or "we shall relocate them ourselves." (Mark Hanrahan, Kenya Tells UN to Close Dadaab Refugee Camp After Garissa University Attack, INTERNATIONAL BUSINESS TIMES (Apr. 12, 2015).)

In response to this announcement, UNHCR released a statement expressing its concern that "abruptly closing the Dadaab camps and forcing refugees back to Somalia would have extreme humanitarian and practical consequences, and would be a breach of Kenya's international obligations." (Press Briefing Summary, UNHCR, UNHCR Statement on the Future of Kenya's Dadaab Refugee Camps (Apr. 14, 2015).)

Background

There are currently about 463,000 Somali refugees in Kenya. (2015 UNHCR Country Operations Profile – Kenya, UNHCR (last visited Apr. 14, 2015).)

The Dadaab complex, which was established in 1991, consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios. (Dadaab Refugee Camps, Kenya: Kenya Support to the Spontaneous Voluntary Return of Somali Refugees from Kenya (Jan. 27, 2015), UNHCR, at 1.) Hosted by Garissa County, Dadaab is located 59 miles from Garissa town, the county's capital. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, UNHCR (Apr. 3, 2015).) While Dadaab currently has 351,446 residents, at its peak in 2011 it hosted 486,913 refugees and asylum seekers. (Id.; UNHCR & IOM [INTERNATIONAL ORGANIZATION FOR MIGRANTS], JOINT RETURN INTENTION SURVEY REPORT 2014 13 (updated Feb. 25, 2015).) All of the refugees and asylum seekers in Dadaab are Somali citizens. (Kenya: Dadaab, UNHCR (last updated Feb. 28, 2015).)

According to Human Rights Watch, despite the Kenyan government's insistence that Somali refugees in Kenya are responsible for the threats to the country's security, no evidence has been established linking Somali refugees to the recent string of terrorist attacks in Kenya. (Gerry Simpson, Dispatches: After Garissa Carnage, Kenya's Backlash Begins, HUMAN RIGHTS WATCH (Apr. 13, 2015).)

The Refugees Act

Refugee issues in Kenya are governed by the 2006 Refugees Act, which incorporates international instruments that the country has signed. (UNHCR & IOM, supra at 21.) The Act prohibits refoulement of refugees and asylum seekers, stating:

No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or [be] subjected [to] any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where –
(a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the person's life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country. (Refugee Act No. 13 of 2006, § 18, Cap. 173 (Dec. 30, 2006), Kenya Law website.)

Tripartite Agreement and Voluntary Repatriation

UNHCR, in collaboration with the governments of Kenya and Somalia, is in the midst of implementing a pilot voluntary return program; in 2013, Kenya signed an agreement with the government of Somalia and UNHCR on voluntary repatriation of Somali refugees in Kenya. (Tripartite Agreement Between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees in Kenya, 2013 (Nov. 10, 2013), REFWORLD.) This agreement provides that the return of refugees to Somalia "shall take place in conformity with international law pertaining to voluntary repatriation." (Id. § 10.)

However, according to a 2014 survey, only 2.6 % (9,627 persons/2,228 households) of the refugees in the Dadaab complex expressed interest in returning to Somalia in the near term, i.e., within two years. (UNHCR & IOM, supra at 9.) In December 2014, UNHCR launched a pilot repatriation program to three locations in Somalia: Luuq, Baidoa, and Kismayo. (UNHCR Statement on the Future of Kenya's Dadaab Refugee Camps, supra.) UNHCR chose these locations in large part for their relative safety and had planned to repatriate about 10,000 refugees as part of the pilot program. (Mark Yarnell & Alice Thomas, Between a Rock and a Hard Place: Somali Refugees in Kenya, REFUGEES INTERNATIONAL (Sept. 9, 2014), at 6.) Thus far, UNHCR has repatriated 442 households (2,048 individuals), with the largest group going to Kismayo. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, supra.)

Previous Attempt at Forced Repatriation

In December 2014, Kenya enacted a law aimed at forcing out of Kenya tens of thousands of Somali refugees and asylum seekers. It sought to accomplish this by amending the Refugees Act and putting a ceiling on the number of refugees that may be present in the country at a time. The law stated that "… [t]he number of refugees and asylum seekers permitted to stay in Kenya shall not exceed [150,000] persons." (The Security Laws (Amendment) Act, 2014, § 48 (Dec. 19, 2014), The Presidency website.) Although this law did not expressly target Somali refugees, given that the 463,000 Somali refugees in Kenya account for some 71% of the total number of refugees in the country, the application of this law would have greatly impacted their status. (2015 UNHCR Country Operations Profile – Kenya, supra.)

However, in response to multiple legal challenges to the constitutionality of the law, on February 23, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found the provision unconstitutional. (Coalition for Reform and Democracy (CORD) & Others v. Republic of Kenya & Others (Feb. 23, 2015), ¶ 427, REFWORLD.) The Court noted that placing a cap on the number of refugees and asylum seekers that may be present in Kenya would invariably result in the expulsion of hundreds of thousands of refugees. (Id.) The Court held that this would "violate the principle of non refoulement, which is a part of the law of Kenya and is underpinned by the Constitution." (Id.)

Author: Hanibal Goitom More by this author
Topic: Human rights More on this topic
 International affairs More on this topic
 Refugees More on this topic
 Terrorism More on this topic
Jurisdiction: Kenya More about this jurisdiction

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South Korea: Controversial Anti-Corruption Law Promulgated

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(Apr 16, 2015) On March 26, 2015, President Park Geun-hye of South Korea promulgated the Anti-Corruption Law (Act No. 13278 (Mar. 27, 2015), Korea Ministry of Government Legislation website (in Korean)). The Law won bi-partisan approval in the National Assembly on March 3, 2015, despite controversy over its possible violations of the country's Constitution. (Park Sanctions Controversial Antigraft Bill, KOREA HERALD (Mar. 26, 2015).)

The Anti-Corruption Law is applicable to journalists and educators in public and private schools, in addition to public officials. It imposes a punishment of imprisonment not to exceed three years, or a fine of up to five times the amount accepted, on persons convicted of accepting money or monetary equivalent valued at more than one million won (about US$900) from one person in one installment, regardless of whether such compensation was in exchange for favors or related to the person's work. (Anti-Corruption Law, art.8.) For gifts worth one million won or less, a fine of up to five times the gift's value will be imposed. (Anti-Corruption Law, arts. 8 & 23.)

The passage of the Law generated strong criticism on many counts. On March 5, 2015, the Korean Bar Association, on behalf of Korea's Official Gazette, the Korean Bar Association Newspaper, and the Korean Journalists Association, filed a petition with the Constitutional Court to contest the Law. (Jong-min Kim, Korean Bar Association Filed a Constitutional Petition for Kim Young-ran Law, DAILY HANKOOK (Mar. 5, 2015) (in Korean).) The petition alleges, among other complaints, that article 2 of the Law, which makes the Law applicable to journalists, restricts the freedom of the press and the right to equal treatment that are protected under the Constitution. (Id.)

The suit further alleges that article 5 of the Law, which defines what constitutes illegal solicitation of favors, is unconstitutional because the clause is too vague for ordinary citizens to understand. The Korean Bar Association explained in the complaint that "this law may have a chilling effect on the ordinary contact between a journalist and his source, reinforce journalists' self-censorship, and be misused by the government as a means of controlling the press." (Id.) The petition also points out that "the law violates journalists' right to equal treatment by defining public officials to include journalists, a group that is completely different in character." (Id.)

In addition, the complaint argues that the Law's requirement for public officials to report the spouse's receipt of illegal graft and to be subject to the related criminal penalty for failure to report such favors violates the principles of freedom of conscience and of liability with fault. (Anti-Corruption Law, arts. 9, 22, & 23.)

The Law is called the Kim Young-ran Law because Kim Young-ran had initially proposed the legislation. Kim is a former Supreme Court Justice and Chairwoman of the Anti-Corruption and Civil Rights Commission. (Park Sanctions Controversial Antigraft Bill, supra.) Amid the controversy, Kim declared that she did not find the inclusion of journalists and teachers in the Law "unconstitutional" because their work is largely public in nature. (Opinion: Originator Speaks Up, KOREA TIMES (Mar. 10, 2015).) She also stated that the controversy and the confusion created by the Law, which she translated as "resistance" to it, reflects "the 'sentiment of corruption' within us." (Id.)

Prepared by Kyewon Noh, Intern, Law Library of Congress, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist.

Author: Sayuri Umeda More by this author
Topic: Corruption More on this topic
Jurisdiction: South Korea More about this jurisdiction

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