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European Union: Response to Factory Collapse in Bangladesh

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(May 20, 2013)

In a statement issued on April 30, 2013, Catherine Ashton, the European Union's High Representative for Foreign Affairs and Security Policy, and Karel De Gucht,the Commissioner for Trade, expressed the EU's commitment to assisting Bangladeshi authorities in any possible manner in the wake of the April 2013 factory collapse in Bangladesh. (Joint Statement by EU High Representative Catherine Ashton and EU Trade Commissioner Karel De Gucht Following the Recent Building Collapse in Bangladesh (hereinafter Joint Statement), CONSILIUM (Apr. 30, 2013).)

The accident, which was the worst of its kind in Bangladesh, killed 1,127 garment workers out of the 3,000 in the building. As of May 13, 2013, the authorities have discontinued their search for survivors. (Bangladesh Ends Search for Collapse Victims; Final Toll 1127, USA TODAY (May 13, 2013).)

The EU officials urged Bangladesh "toact immediately to ensure that factories across the country comply with international labour standards including International Labor Organization (ILO) conventions." (Joint Statement, supra.) In the Joint Statement, the EU also warned the Bangladeshi authorities that it is contemplating appropriate action, through the Generalized System of Preferences by which Bangladesh receives free quota? quota-free. and duty-free access to EU markets under the "everything but arms" program, "to incentivise responsible management of supply chains involving developing countries." (Id.)

The EU adopted the policy of "everything but arms" in 2001, to assist the least developed countries by granting them free access to the EU market for all their exports, except arms and armaments. Bangladesh is among the 49 current beneficiaries of this policy. (European Commission, Everything but Arms (EBA) - Who Benefits, EUROPA (Apr. 30, 2013).) The EU initiated its trade relationship with Bangladesh in 1973. Trade relations culminated in the signing of a cooperation agreement on partnership and development in 2001. Since then, the EU has been Bangladesh's largest trading partner. (Cooperation Agreement Between the European Community and the People's Republic of Bangladesh on Partnership and Development (Apr. 27, 2001), 2001 O.J. (L188) 48.)

In addition, the EU urged European and international companies doing business in Bangladesh "to promote better health and safety standards in garment factories in Bangladesh in line with internationally recognized Corporate Social Responsibility (CSR) guidelines." (Joint Statement, supra; see also Shameema Rahman, Bangladesh: High Court Orders Property of Collapsed Building Owner Confiscated, GLOBAL LEGAL MONITOR (May 13, 2013).)

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Chad: Journalist Imprisoned

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(May 20, 2013) On May 6, 2013, Eric Topona, the General Secretary of Chad's Union of Journalists, was arrested after being invited to the Justice Palace that morning. Topona's father is a political opponent of the current government and head of the National Union for Development and Renewal, an opposition political party. The charge on which he is being held is causing "trouble to the constitutional order." (Daniel N'Doh Nadjitan & Franz Wild, Chad Arrests Journalist over Government Criticism, Union Says, BLOOMBERG (May 6, 2013).)

Topona is being held in a prison on the outskirts of the capital city, N'Djamena. His lawyer, Sobdibe Zoua, said of the situation, "[t]he arrest in itself does not surprise me. … It is the charge itself that surprises. When you talk of attempt at constitutional order, you see that the intention is there to deal ruthlessly. It is a very very very serious offense." (Chad: General Secretary of the Chadian Union of Journalists Locked Up, RFI ONLINE (May 8, 2013), World News Connection online subscription database, Doc. No. 201305081477.1_23ed0025a2446e4f.)

Under Chad's Penal Code,attacks, plots,and other abuses against the constitutional order and the integrity and securityof the country can be punished, depending on circumstances, with confiscation of property, fines, lifetime or limited time forced labor, or the death penalty. (Code Pénal, arts. 81-91, CODE PÉNAL (N'Djaména, Jan. 2010).)

The arrest occurred in a time of tension in Chad, due to the arrest on May 1 of four officials who are accused of having planned a coup d'etat. Two generals and two legislators were arrested; it was alleged that they had been plotting the coup for four months.(Dany Padire, 4 Chad Officials Accused of Failed Coup Attempt, AP (May 2, 2013).)

The organizationReporters Sans Frontières (Reporters Without Borders) has expressed concern about Topona on several occasions, including upon this recent arrest. (Chad: General Secretary of the Chadian Union of Journalists Locked Up, supra.) In a statement published the day of his arrest, the organization noted that Topona's arrest follows that of a blogger detained since March 22 and said, "[t]he arrest and charging of Topona, who has been harassed several times in the past in connection with his journalistic activities, are unacceptable and constitute a flagrant violation of freedom of information. … We call for his immediate and unconditional release." (Journalist Arrested After Being Summoned to Law Courts, REPORTERS WITHOUT BORDERS (May 6, 2013).)

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Thailand: Move by Parliament to Amend the Constitution

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(May 20, 2013) On April 7, 2013, the Thai Parliament voted to approve three bills in furtherance of the government's plan to amend the Constitution. The bills were submitted separately, because there are three very different subjects addressed by the amendments: the authority to conclude treaties, the senators, and the "overthrow of the democratic regime."

The bill that has received the most public attention is the one that proposes amending section 68 of the Constitution on the overthrow of the government. The bill was proposed by Somsak Kiartsuranon, the President of the Parliament, along with 311 coalition MPs. (Enacting a Bill to Amend Article 68, Political Divisions Heating Up [in Thai], DAILY NEWS (Apr.7, 2013).)

Proposed Changes to Section 68

Section 68 of the Constitution currently states in paragraphs 1 and 2:

No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of the State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.

In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person. (Constitution of the Kingdom of Thailand B.E. 2550 (2007), Senate of Thailand website.)

The bill on the proposed amendment of section 68 includes the following two changes.

The first change is to replace "in the Constitution" in section 68, paragraph 1, with "under Chapter 3 (Rights and Liberties of the Thai People) of the Constitution." The government has said that they want this section to be clearer. The change would mean that a person would be penalized for an act to overthrow the democratic regime only if the act falls under the categories of proscribed acts set forth in Chapter 3, rather than if the act violates any part of the whole Constitution, as is currently the case. (Section 68 [in Thai], DAILY NEWS (Apr.15, 2013).)

The second proposed amendment would make it clear that the Prosecutor General has the sole authority to decide whether to move a motion to the Constitutional Court. The underlined part would be added to paragraph 2 of section 68:

… have the right to request the Prosecutor General to investigate its facts. After the Prosecutor General examines and agrees that the act is designed to overthrow the democratic regime or acquire the power to rule the country by any means not in accordance with the modes provided in this Constitution, then the Prosecutor General can submit a motion to the Constitutional Court for ordering cessation of such act…" (Id.; underlining added by author.)

However, the People's Alliance for Democracy, an alliance of protesters against Thaksin Shinawatra, the former Prime Minister of Thailand, has taken issue with the government proposal. The group states that the politicians who support the bill are intentionally narrowing the rights of the people by preventing direct submission of a motion by an individual citizen to the Constitutional Court under section 68, by requiring that such a motion can only be made if it concerns the individual person's rights and liberties (under Chapter 3 of the Constitution). The Alliance believes that the provision does not need to be changed. (The People's Alliance for Democracy (PAD) Makes a Statement Against the Changes to the Constitution [ in Thai], MANAGER ONLINE (Apr. 4, 2013.)

Reasons Behind Amendment of Article 68

The currently effective Constitution originated from a coup d'etat in 2006 led by the Council for Democratic Reform. The Council had been established by the former military regime headed by Army Commander General Sonthi Boonyaratglin, which had governed Thailand after ousting Prime Minister Thaksin Shinawatra.

Due to the coup d'etat withdrawal of the previous 1997 Constitution, the current Constitution of Thailand was established by the military junta. The Constitution thus did not come from the people, which the current government, elected in 2011, views as unjust. (Enacting a Bill to Amend Article 68, Political Divisions Heating Up, supra.)

The government is purportedly trying to amend section 68 because this section had been used against the government when it had tried to amend section 291, on amendment of the Constitution itself. The opposition party had claimed that the government's plan to amend section 291 could be viewed as an attempt to overthrow the democratic regime and should be stopped by virtue of section 68. (Constitutional Court Dismissed the Motion on Overthrowing the Democratic Regime [in Thai], DAILY NEWS (July 13, 2012).) The government claimed that under section 68, paragraph 2, the Court does not have the power to accept an opposition party motion before the motion has been submitted to the Prosecutor General. (Constitution Amendment [in Thai], DAILY NEWS (Mar.28, 2013).)

Therefore the arguments on the amendment of section 291 had brought into play the applicability of article 68, and particularly whether the Prosecutor General or the Constitutional Court has the authority to accept a motion for the Court to issue an order to stay acts to overthrow the regime or unconstitutionally acquire power, and whether the Court can accept the motion directly or must go through the Prosecutor General first. (Amendment of Section 68 a Game of Confiscation of the Power of the Constitutional Court [in Thai], DAILY NEWS (Mar.19 2013).)

The Stance of the Constitutional Court

The Constitutional Court ruled on July 13, 2012, that it has the authority under section 68, paragraph 2, to directly accept motions and that the Prosecutor General's authority is only to check the facts and file a motion with the Court. The Court also ruled that, after the opposition party has proposed the motion to the Prosecutor General, the party had the right to file a petition with the Constitutional Court directly. (Constitutional Court Decision No. 18-22/2555 [in Thai], Constitutional Court of the Kingdom of Thailand website (last visited Apr. 25, 2013).)

On May 8, 2013, the committee responsible for the current bill reached the conclusion to include in a third paragraph the following phrasing:

the Prosecutor General has to check all the facts as set forth in the second paragraph within 30 days from the day of receipt of the motion. If the Prosecutor General cannot do it in that period of time, the person who proposed the motion can directly submit it to the Constitutional Court, but must do so within 30 days from the day the Prosecutor General fails to submit the report. (Committee Responsible for the Amendment of Section 68 Concluded That the Motion Has to Be Submitted Through the Prosecutor General Only, DAILYNEWS (May 8, 2013).)

The amendments have not yet become law. After the committee meeting the proposed amendments were sent back to the Parliament for a second and third reading. (Constitution of the Kingdom of Thailand B.E. 2550, § 291.)

Written by Nichaya Soothipan, Intern, Law Library of Congress, under the guidance of Sayuri Umeda, Senior Foreign Law Specialist.

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United Kingdom: Queen's Speech for 2013

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(May 20, 2013) The Queen of the United Kingdom of Great Britain and Northern Ireland recently laid her annual speech before Parliament for 2013. The speech sets out the government' legislative agenda for the upcoming year. There are many items included this year, with the focus being on continued measures to improve and strengthen the UK's economy, to ensure that it is globally competitive, and on immigration reform, to ensure that that people who contribute to the UK's economy can enter the country and those who abuse the system or enter illegally are identified and removed. (Oral Statement to Parliament: The Queen's Speech 2013, GOV.UK (May 8, 2013) [the text of the speech].)

Specific legislative measures that will be put before Parliament include:

  • an immigration bill to attract people who contribute to the country, combined with measures to tackle the problem of illegal immigration by denying illegal migrants access to the services to which they are not entitled, making the removal of the immigrants easier; increasing fines for employers who hire illegal immigrants; regulating access to the National Health Service by migrants; requiring landlords to verify the immigration status of their tenants; and prohibiting illegal immigrants from obtaining driving licenses;
  • a bill to reform how offenders are rehabilitated and to reform the police;
  • proposals to assist the investigation of online crimes, including consideration of a single-user Internet Protocol address to ensure that Internet phone calls can be properly traced;
  • new measures on how defense equipment is procured;
  • measures to tackle dogs that are dangerously out of control;
  • a bill to tackle anti-social behaviour, such as vandalism and loitering;
  • a bill to provide payments for individuals suffering from asbestos-related cancer if no liable party can be determined; and
  • a bill to improve the political institutions of Northern Ireland with the intent of promoting long-term peace and stability. (Id.; At a Glance - Queen's Speech Sets Out Government Agenda for Next Year. Plus What's Not on It, THE INDEPENDENT (London) (May 8, 2013).)

The Queen's speech has attracted attention this year more for the subjects not included than those included. Missing from the agenda are:

  • a referendum to determine whether the UK should remain part of the European Union;
  • legislation to ensure that the UK spends 0.7% of its gross domestic product on foreign aid;
  • the requirement of plain packaging for cigarettes;
  • more restrictions for political lobbyists; and
  • the ability to remove mid-term Members of Parliament who have behaved improperly, through a by-election. (At a Glance - Queen's Speech Sets Out Government Agenda for Next Year. Plus What's Not on It, supra.)

There have been reports that the Labour party, currently the opposition party, is offering its assistance to the Prime Minister to push some of these dropped policies through Parliament. Even though these items are not contained in the Queen's speech, they can still be introduced, and some of the more high-profile items will likely be introduced in the form of Private Member's bills. (Rowena Mason, Queen's Speech: Labour Offers David Cameron Help Passing Laws Blocked by Backbench Tories, THE TELEGRAPH (London) (May 8, 2013).)

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Lesotho: Constitutional Court Denies Women the Right to Inherit Customary Titles

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(May 20, 2013) On May 16, 2013, Lesotho's High Court (Constitutional Division) upheld a provision in the Chieftainship Act giving the exclusive right to inherit the customary title of Chief to the firstborn male offspring, denying female children the same rights on the basis of gender. (Press Release, Southern Africa Litigation Centre, Lesotho Court Fails Women by Denying Them the Right to Succeed to Chieftainship (May 16, 2013).) The judgment may be appealed to the highest court in the country, the Court of Appeal. (Id.)

Case Background

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief, David Masupha, who died in 1996. (Id.) Upon his death, because there were no firstborn males in his immediate family, Masenate Gabashane Masupha, who was the late Chief's wife and the petitioner's mother, was appointed as a caretaker Chief in accordance with the Chieftainship Act. (Id.; Chieftainship Act 22 of 1968, §10(4), XIII THE LAWS OF LESOTHO (1968).) Following the death of the late Chief's wife in 2008, his younger brother instituted a claim for inheritance of the chieftainship before a magistrate's court, and his claim was challenged by the late Chief's son from a second wife and that son's mother. (Lesotho Constitutional Court to Hear Chieftainship Case Tomorrow, Southern Africa Litigation Centre website (Aug. 26, 2012).)

Senate Masupha, who had not been included in the proceedings before the lower court, then intervened and petitioned for a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was excluded from laying claim to her father's seat. (Id.)

Legal Arguments

Masupha argued that the Chieftainship Act does not necessarily exclude her from inheriting the chieftainship. (Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others: A Case Summary, Southern Africa Litigation Centre website (last visited May17, 2013).) The provision in question stated that "[w]hen an office of Chief becomes vacant, the firstborn or only son of the first or only marriage of the Chief succeeds to that office … ." (Chieftainship Act, §10(2).)

This appeared to be a compelling argument, given that the Chieftainship Act softened the language on eligibility from what was used in the previously applicable laws, the Laws of Lerotholi. This superseded law did not leave any doubt that women were to be excluded from consideration to inherit chieftainships, stating "[t]he succession of chieftainship shall be by right of birth: that is the first born male child of the first wife married: if the first wife has no male issue then the first born male child of the second wife married in succession shall be the chief." (I THE LAWS OF LEROTHOLI IN BASUTHOLAND [Lesotho's name until independence in 1966]) (Witwatersrand University Press, 1953); PATRICK DUNCAN, SOTHO LAWS AND CUSTOMS: A HANDBOOK BASED ON DECIDED CASES IN BASUTHOLAND TOGETHER WITH THE LAWS OF LEROTHOLI (Oxford University Press, 1960).) The Chieftainship Act repealed this language and replaced it with the phrase "the firstborn or only son." (Chieftainship Act, § 40.)

Masupha alternatively argued that if the above provision of the Chieftainship Act in fact excludes her from eligibility to inherit her father's office, it should be struck down because it violates multiple provisions of the Constitution. These are section 2 (on the supremacy of the Constitution), section 4 (on fundamental rights and freedoms), section 18 (on freedom from discrimination), and section 19 (on the right to equality before the law and the equal protection of the law). (Southern Africa Litigation Centre as Amicus Curiae, Senate Gabasheane Masupha v. His Worship, Senior Resident Magistrate for the Subordinate Court of Berea & Others, Constitutional Case No. 5/2010, at 8 (Jan. 12, 2012); Constitution of Lesotho (Apr. 2, 1993, as amended in 2001), World Intellectual Property Organization website.)

In their rebuttal, the respondents argued that the language in the Chieftainship Act clearly excludes women, but it does not violate the Constitution because the office is a customary institution and the Constitution makes an exception for discriminatory customary laws. (Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others: A Case Summary, supra.) The Constitution states that the constitutional provision on freedom from discriminatory laws "shall not apply to any law to the extent that that law makes provision …for the application of the customary law of Lesotho with respect to any matter in the case of persons who, under that law, are subject to that law … ." (Constitution of Lesotho, § 18.)

Court Decision

The Court dismissed Masupha's petition that the Chieftainship Act provision preventing female offspring from inhering chieftainships, section 10(2), is discriminatory and therefore unconstitutional. (Court Rules Lesotho Princesses Can't Be Chief, AFP (May 16, 2013).) The Court did not base its decision on the respondents' argument that the constitutional clause of discrimination was inapplicable; instead it found that the Chieftainship Act was not discriminatory.

The Court used the provision in the Chieftainship Act that allows the senior wife to inherit the title as a caretaker if there are no living first-born males from any of the deceased's marriages as a reason why the Act is not discriminatory toward women. (Chieftainship Act, § 10(4).) The Court stated, "[o]nly a male first born of the chief may take up the chieftainship failing which if the chief has no other son the wife of the chief may take over the chieftainship … . This shows that women are not discriminated against but have to be in a certain position to take over the vacant position." (Court Rules Lesotho Princesses Can't Be Chief, supra.)

When a wife succeeds her husband as a caretaker, as in this case in which Masupha's mother became a chieftain following the death of her husband in 1996, the right to inherit reverts back to the male line of the family upon the death of the female chief. (Chieftainship Act, § 10(4).) In this instance, "the eldest legitimate surviving brother of the male Chief who held the office last before the woman, succeeds to that office or failing such an eldest brother, the eldest surviving uncle of that male Chief …" takes the office. (Id.)

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