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Indonesia / South Korea: Agreement on River Restoration

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(Dec 03, 2012) On December 3, 2012, Indonesia and South Korea concluded an agreement to restore the Ciliwung River, which flows from the mountains down through Jakarta before reaching Jakarta Bay. The agreement commits about US$10 million to clean up the river, which is considered to be heavily polluted. (Indonesia, South Korea Commit to $10m Ciliwung Restoration, THE JAKARATA GLOBE (Dec. 3, 2012).)

Signed in Jakarta by Balthasar Kambuaya and Yoo Young Sook, the Ministers of the Environment for Indonesia and South Korea, respectively, the pact calls for a contribution of about US$1.04 million from Indonesia and of US$9 million in the form of a grant from South Korea. The work is to be done by 2015 and will include the construction of a domestic waste processing facility and an education center for people living along the river. (Id.)

According to a study done by staff of the Indonesian Ministry of the Environment, there are various sources for the river's pollution, including waste from industry and households, plus usage of the land in the upstream area of the riverbed, all of which have "poured copious amount[s] of waste and pollution" into the river. (Maulyani Djadjadilaga, Hermono Sigit, & Aksa Tejalaksana, From Data to Policy (Ciliwung River Water Quality Management), at 1, The 3rd WEPA International Forum on Water Environmental Governance in Asia (Oct. 23-24, 2008),Water Environment Partnership in Asia website.)

Yoo suggested that South Korea is a natural partner in this work, stating, "South Korea's rapid industrialization has resulted in serious river pollution, such as in the case with the Han River. But we did restoration works on the river and have managed to handle the damages." (Indonesia, South Korea Commit to $10m Ciliwung Restoration, supra.)

Kambuaya added that he hoped this project would become a model for the restoration of the health of 13 other rivers in Indonesia that are now polluted. (Id.)

Background

Numerous past programs and policies have failed as yet to clean up the Ciliwung. Firdaus Ali, an environmental engineering lecturer at the University of Indonesia's School of Engineering, cited initiatives of four different ministries, three regional administrations, and various civil society groups. He argued that national leadership was needed to do the job adequately and suggested the establishment of a ministry of water resources, citing nearby nations, such as Papua New Guinea, with similar agencies. Relying on local leaders will not work, Ali argued, because "bureaucracy is expensive. They can invite mayors to attend initiatives on saving rivers, but afterward they just go home and forget about it."(Fidelis E. Satriastanti, Calls for National Leadership on Java's Ciliwung River, THE JAKARTA GLOBE (Apr. 18, 2012).)

Kambuaya commented on Ali's suggestions, agreed that progress had not been made under past programs, but proposed that a new policy of treating the river as six segments that local officials would manage could be effective. (Id.) He said, "[w]e will deal with water quality. … If it's a matter of domestic waste, we'll find ways to address it. Meanwhile, the other ministries will work on different areas, such as the Forestry Ministry, which will be focused on re-greening the riverbanks." (Id.)

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European Union: Annual Growth Survey Adopted

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(Dec 03, 2012) On November 28, 2012, the European Commission adopted the Annual Growth Survey (AGS), which serves to provide guidance to the European Union (EU) Member States to ensure that their budgetary and economic policies are in line with the Stability and Growth Pact. The Pact is designed to assist countries in the euro zone through the coordination of their fiscal policies and to ensure that the national deficit does not exceed 3% of the Gross domestic product, in conformity with the broad European 2020 Strategy. (Communication from the European Commission: Annual Growth Survey 2013 (Nov. 28, 2012), COM(2012) 750 (final), European Commission website.)

Taking into account that there are signs in Europe that the EU Member States are emerging from the deepest level of the economic recession, the AGS establishes five priorities: (a) pursuing growth-friendly fiscal consolidation; (b) restoring normal lending to the economy; (c) promoting growth and competitiveness for the present and future; (d) tackling unemployment and the social consequences of the economic crisis; and (e) modernizing public administration. (Id. at 2.)

In order to achieve the first objective, the Commission made the following recommendations:

  • modernize the social security system, in particular by reforming pension systems to align retirement age with life expectancy and limiting access to early retirement schemes;
  • invest in education, energy, research, and innovation and ensure training for the unemployed;
  • reduce the tax burden on labor, because it inhibits job creation, in countries where personal income taxes have been increased, and focus more on increasing consumption tax, recurrent property tax, and environmental taxes;
  • to increase revenue, broaden the tax base rather than increasing tax rates;
  • reform real estate and housing taxation to prevent the recurrence of financial risks in the housing sector; and
  • review the possibility of eliminating tax relief for mortgages. (Id. at 5.)

In connection with the second objective, to improve normal lending in the economy, because the crisis had a big impact on private and public actors, the Commission is making efforts to assess the risks in the banking sector and to recapitalize the banks. The Commission has also proposed the formation of a banking union, with a "Single Supervisory Mechanism," under the authority of the European Central Bank. (Id. at 6.)

In order to meet the objective of promoting growth and competitiveness, the Commission emphasized that while there is no "one size-fits-all-agenda," the EU Members should follow common goals and objectives. Some of the common objectives are to:

· strengthen and improve the green economy;

· improve the business environment by reducing red tape;

· strengthen innovation and new technologies; and

· improve competition in the retail sector. (Id. at 8-9.)

As for dealing with unemployment and the social consequences of the crisis, the Commission noted that during the previous year, unemployment had increased by two million people, to reach about 25 million. (Id. at 9.) Countries in the euro zone are experiencing higher unemployment rates than European countries outside the euro zone, the Commission pointed out. In order to improve the labor market and assist companies in hiring people, the Commission made the following recommendations to Member states:

· simplify employment legislation and develop flexible working conditions, including short-time working schemes;

· review and monitor unemployment eligibility requirements;

· establish and implement "youth guarantee" schemes, under which young adults below the age of 25 are provided with job opportunities, continued education, and an apprenticeship or a traineeship within four months of leaving formal education or becoming unemployed; and

· improve access to life-long learning, including for older workers. (Id. at 11.)

In regard to modernizing the public sector, the Commission noted that the financial crisis requires fresh ideas on cutting down public expenditures. The public sector represents about 17% of total employment and public expenditures account for almost 50% of Gross Domestic Product. (Id. at 12.) The Commission also noted that several EU Members that are undergoing dire economic crises have already taken measures to reorganize the public sector and improve its efficiency. The Commission advanced the following recommendations:

· institute "full and correct" transposition and implementation of EU law;

· improve the efficiency of the tax system and ensure effective implementation of tax collection and sound management of health care systems;

· simplify the business regulatory framework and reduce the burden on businesses;

· ensure government-wide digitalization of services and interoperability of such services; and

· improve the quality of the judicial systems by ensuring quick and effective settlement of claims and espousing alternate dispute settlement mechanisms. (Id. at 12-13.)

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United Nations: Committee Passes Resolution on the Death Penalty

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(Dec 03, 2012) On November 19, 2012, the United Nations Third Committee – the Social, Humanitarian Cultural Affairs Committee – voted in favor of a resolution for a moratorium on capital punishment. By a vote of 110 for, 39 against, and 36 abstaining, the Committee called on all countries to establish a suspension of executions, with a view to abolishing the death penalty completely. Henry L. Mac-Donald of Suriname chairs the Committee. (Ban Welcomes General Assembly Committee's Record Vote on Death Penalty Moratorium, UN NEWS CENTRE (Nov. 21, 2012); Third Committee, U.N. General Assembly website (Sept. 18, 2012).)

U.N. Secretary-General Ban Ki-moon released a statement praising the resolution. The statement referred to Ban's view, expressed in July 2012, that "the taking of a life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process." (Latest Statements: Statement by the Secretary-General on the Adoption by the General Assembly's Third Committee of the Resolution "Moratorium on the Use of the Death Penalty," Secretary-General Ban Ki-moon website (Nov. 21, 2012).)

Ban's recent statement also referred to the 2007 U.N. General Assembly resolution on capital punishment. (Id.) That resolution had also been recommended by the Third Committee and asked all nations to "progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed." (Press Release, General Assembly, GA 106/78, General Assembly Adopts Landmark Text Calling for Moratorium on Death Penalty (Dec. 18, 2007).)

To date, about 150 countries have ended the death penalty, either by abolishing it as a part of the legal system or by ending its imposition in practice. (Latest Statements, supra.)

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Turkey: Constitutional Court Annuls 2008 Law That Had Lifted Ban on Wearing Headscarves at Universities

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(Dec 03, 2012) It was reported on November 29, 2012, that Turkey's Constitutional Court has annulled a government-backed law, adopted in 2008, that sought to amend the Constitution to lift a ban on the wearing of headscarves at universities. Under the law such apparel could be worn on campuses. The Court has now characterized the law as "an attempt to change nonamendable articles of the Turkish Constitution." (Turkish Top Court Annuls Headscarf Law, HURRIYET DAILY NEWS (Nov. 29, 2012).)

The Court stated that the law's cancellation is based on articles 2, 4, and 148 of the Constitution and that implementation of the law has been halted. The reasoning of the decision, with the details, has not yet been published, but is to be issued "as soon as possible," according to Hasim Kilic, Chairman of the Court, who was one of two justices to vote against the annulment; nine voted in favor of it. (Id.)

Article 2 of the Constitution characterizes Turkey as a "secular and democratic Republic" article 4 states "[t]he provision of Article 1 ... establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed" and article 148 stipulates the Constitutional Court's mandate. (Id.; Constitution of the Republic of Turkey (as amended May 7, 2010), Directorate General of Press and Information, Office of the Prime Minister website; Türkiye Cumhuriyeti Anayasasi (Nov. 7, 1982, as last amended Mar. 17, 2011), Grand National Assembly of Turkey [the Turkish Parliament] website.)

Background on the Ban

According to one study, published in 2005, about 70% of Turkish women use head coverings, "a percentage that varies widely depending on region and class." (Valorie K. Vojdik, Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities, 33 HARVARD JOURNAL OF LAW & GENDER 667 (2010).) The headscarf ban in universities and public offices was imposed in 1982, and in the mid-1980s "became a flashpoint for conflict between secularists and Islamists in Turkey, as protests against the ban increased." (Id. at 668.) The Higher Education Council twice removed restrictions on wearing headscarves, in 1989 and 1991, but the Constitutional Court annulled both repeal attempts. (Id. at 669.)

In its March 7, 1989, ruling the Court concluded:

The headscarf and the particular style of clothing that accompanies it, which lacks a modern appearance, is not an exemption but a tool of segregation. ... This situation, which is the display of a pre-modern image, is increasingly becoming widespread and this is unacceptable in terms of the principles of secularism, reformism and the Republic. Using democratic principles to challenge secularism is the abuse of freedom of religion. (Id., citing to fn. 55, Anayasa Mahkemesi [Constitutional Court], Mar. 7, 1989, Esas No. 1989/1 [Basis Number], Karar No. 1989/12 [Decision Number] (TC Resmi Gazete [Official Gazette of Republic of Turkey], 1989, No. 20216) (Turk.).)

Women and conservative Islamic political parties continued to push for the ban's repeal, and Leyla Sahin, a female medical student, even brought a challenge to the ban before the European Court of Human Rights. (Vojdik, supra, at 669-671.) Subsequently, in 2007, the Justice and Development Party (Adalet ve Kalkinma Partisi, or AKP) won power with 47% of the popular vote and took action to challenge the headscarf ban, "not as a matter of religion but as a violation of basic rights," with the result that in 2008 the Grand National Assembly "voted to amend the Turkish Constitution to repeal the ban on headscarves." (Id. at 671.)

The Text of the 2008 Law

The Law Amending Some Provisions of the Constitution of the Republic of Turkey, Law No. 5735, of February 9, 2008, amended articles 10 and 42 of the Constitution, on equality before law and the right and duty of training and education, respectively. (Id.; Türkiye Cumhuriyeti Anayasasinin Bazi Maddelerinde Degisiklik Yapilmasina Dair Kanun, Law No. 5735 (Feb. 9, 2008), arts. 1 & 2, Grand Assembly of the Republic of Turkey website.) The Law States:

Article 1 – "In all their proceedings" in the fourth paragraph of Article 10 of the Constitution of the Republic of Turkey, No. 2709 of July 11, 1982, is to be followed by "and in the utilization of all kinds of public services." [Article 10(4) stated: "(4) State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings" (Turkey Constitution (as last amended May 10, 2007), ICL [International Constitutional Law].)

[Note: Art. 10(4) became 10(5) when the Constitution was amended in 2010. Constitution of the Republic of Turkey, supra.]

Article 2 - The sixth paragraph of Article 42 of the Constitution of the Republic of Turkey is to be followed by: "No one shall be deprived of their right to higher education for any reason except the ones expressed in Law. Limits on the use of this right are determined by law." [Art. 42(6) stated: "(6) The principles governing the functioning of private primary and secondary schools shall be regulated by law in keeping with the standards set for state schools" (Turkey Constitution, supra.) (Translation of Law No. 5735 provided with the assistance of Luna Barakat, Law Library Intern.)

The 2008 Constitutional Court Response to the Law and Its Aftermath

A Constitutional Court decision of June 5, 2008, had annulled these amendments and instituted a stay of execution of their implementation until a decision was rendered in a lawsuit against their adoption filed with the Court bythe main opposition parties. (Anayasa Mahkemesi Karari [Constitutional Court Decision] (June 5, 2008), No. 2008/116, No. RG [Resmi Gazete, Official Gazette]-27 032 (Oct. 22, 2008); Wendy Zeldin, Turkey: Headscarf Decision Published, GLOBAL LEGAL MONITOR (Oct. 27, 2008).)

In 2010, however, after Prime Minister Recep Tayyip Erdogan won a referendum in September on constitutional reform, and with "more compliant bureaucrats in the Board of Education, the government in effect ended the ban by stealth," BBC News reported in December of that year. (Jonathan Head, Quiet End to Turkey's College Headscarf Ban, BBC NEWS (Dec. 31, 2010); Simon Cameron-Moore, Turkey Referendum Win Boosts Erdogan for 2011 Election, REUTERS (Sept. 13, 2010).)

Reactions to the 2012 Constitutional Court Ruling

While some Turkish officials stated that they needed to see the grounds for the decision before commenting on it, the deputy leader of the ruling party (AKP), Bekir Bozdag, stated, "the court violated the constitution with this ruling," adding that it "opens the way of controlling every constitutional amendment that the parliament would want to make." (Turkish Top Court Annuls Headscarf Law, supra.) He would not speculate, however, on the effect the ruling might have on another case, aimed at closing down the AKP, that was also launched in 2008; Bozdag stated that each of the cases was unique. (Id.; Gareth Jenkins, Relief but No Victory for ASP in Closure Case, 5:146 EURASIA DAILY MONITOR (July 31, 2008).)

Nationalist Movement Party (Milliyetçi Hareket Partisi, or MHP) leader Devlet Bahceli called the Court's decision not a legal one, but politically motivated, and said it might increase the religious divisiveness in Turkey. By contrast, the main opposition Republican People's Party (Cumhuriyet Halk Partisi, or CHP) welcomed the decision; party leader Deniz Baykal stated "the ruling means that constitutional amendments could be analyzed in essence, not just procedurally, if [they threaten] to violate nonamendable articles of the constitution." (Turkish Top Court Annuls Headscarf Law, supra.) In the view of former parliamentary speaker Husamettin Cindoruk, moreover, "[t]his decision reminds the ruling party what it can and cannot do despite gaining 47 percent of the vote (in the July 22 elections)" and "has set the boundaries and reshaped the state." (Id.)

Turkish legal experts are reportedly divided over the ruling. Some maintain that the Turkish Constitution only grants the Constitutional Court the power to examine whether or not the passage of a constitutional amendment is procedurally flawed, not to pass judgment on the content of the amendments. (Id.)

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Israel: Pilot Program for Biometric Identification

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(Dec 03, 2012) On November 28, 2012, the Joint Committee on Science and Technology, Internal Affairs and Environment along with the Constitution Law and Justice Committee (hereinafter the Joint Committee) of the Knesset (Israel's Parliament) approved a decree authorizing the launching of a pilot program to evaluate "the practicality of enforcement of the Biometric Law, problems in its implementation and the dangers in possessing such sensitive data." (Knesset Announcement [in Hebrew] (Nov. 28, 2012).) The program will run from January 1, 2013, to December 31, 2014. (Id.) The step was taken in accordance with the Biometric Law, which has the formal title of the Law for Including Biometric Identifying Means and Data in Documents of Identification and in Databases 5770-2009 (SEFER HAHUKIM [Book of Laws, official gazette], No. 2217, p. 256).)

The decree, entitled the Decree for Including Biometric Identifying Means and Data in Documents of Identification and in Databases (Test Period) 5771-2012, offers Israeli citizens the option of voluntarily providing imprints of their two index fingers in addition to the images of their faces, in order to obtain a "smart" identification card. The Decree introduces a requirement of reports to the Knesset during and at the termination of the pilot program, regarding its implementation. (Knesset Announcement, supra.)

The Joint Committee has reportedly restricted participation of minors younger than 16 years of age, as well as solicitation of such participation except in connection with the issue of a passport, in order to protect minors' privacy rights. (Id.)

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