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Legal writing – one of the skills law students begin to practice as soon as they start a law school – is a skill requiring continuous practice. Check out the Pace Law Library’s collection of resources offering legal composition and legal writing guidance.

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For additional assistance, you may consult the Guide to Legal Writing and Style subject guide compiled by Cynthia Pittson.

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2010 Orientation 40The Pace Law Library has a growing Law in Film Collection. The following are some of the most recent additions to this collection, which is located on the main level of the library in our student lounge. All our patrons with borrowing privileges may check these films out for up to five days at no charge. Check it out yourself!

Environmental Law

Fracknation (directed by Phelim McAleer, Ann McElhinney, Magdalena Segieda; produced by Phelim McAleer, Ann McElhinney) [TD195.G3 F7358 2013 DVD] - Journalist Phelim McAleer searches for the truth about the alleged dangers of fracking, a method of extracting natural gas from shale rock by drilling deep underground, specifically challenging claims made by activist Josh Fox in his film Gasland. Interviewing scientists and individuals directly affected by fracking, McAleer presents a different side to the fracking debate.

Last Call at the Oasis: Art Takes Over (ATO Pictures and Participant Media present a film by Jessica Yu; producer Jessica Yu; produced by Elise Pearlstein; directed by Jessica Yu) [HD1691 .L38 2012 DVD] - Examines threats to the world water supply, such as pollution and shortage, and proposes that measures be taken to protect it.

Trashed (Blenheim Films presents; executive producer Jeremy Irons; produced by Candida Brady & Titus Ogilvy; written & directed by Candida Brady) [TD791 .T73 2013 DVD] - Looks at the risks to the food chain, environment, and health in various parts of the world through pollution of air, land, and water by the production and accumulation of solid waste.

Come Hell or High Water: The Battle for Turkey Creek (a documentary by Leah Mahan) [GE235.M7 C664 2013 DVD] - ”Come Hell or High Water follows the painful but inspiring journey of Derrick Evans, a Boston teacher who moves home to coastal Mississippi when the graves of his ancestors are bulldozed to make way for the sprawling city of Gulfport. Over the course of a decade, Derrick and his neighbors stand up to powerful corporate interests and politicians and face ordeals that include Hurricane Katrina and the BP oil disaster in their struggle for self-determination and environmental justice.”

Criminal Law

Prince of the City (Orion Pictures Company, Warner Bros. present; directed by Sidney Lumet. produced by Burtt Harris; screenplay by Jay Presson Allen and Sidney Lumet; directed by Sidney Lumet; distributed by Warner Bros. Pictures) [PN1997.2 .P77 2007 DVD] - New York cop Daniel Ciello (inspired by real-life undercover narcotics cop Robert Leuci) is involved in some questionable police practices. He is approached by Internal Affairs and in exchange for him potentially being let off the hook, he is instructed to begin to expose the inner workings of police corruption.

The House I Live In (a film by Eugene Jarecki; an Edgewood Way production; Charlotte Street Films presents; a co-production of BBC Storyville/ITVS/ZDF; executive producers, Joslyn Barnes, Nick Fraser, Danny Glover, John Legend, Brad Pitt, Russell Simmons; produced by Eugene Jarecki, Melinda Shopsin; written and directed by Eugene Jarecki; executive producers, Roy Ackerman, David Alcaro; producers, Sam Cullman, Christopher St. John; produced in association with NHK Japan, SBS-TV Australia, Louverture, Al Jazeera Documentary Channel, VPRO) [HV5825 .H68 2013 DVD] - For over 40 years, the War on Drugs has accounted for more than 45 million arrests, made America the world’s largest jailer, and damaged poor communities. Yet for all that, drugs are cheaper, purer, and more available today than ever before. Filmed in more than 20 states, it captures heart-wrenching stories from individuals at all levels, the dealer to grieving mother, the narcotics officer to the senator, the inmate to the federal judge, revealing profound human rights implications. Received Grand Jury Prize in the Documentary category at the 2012 Sundance film Festival.

Malice (Metro Goldwyn Mayer; Columbia; Castle Rock Entertainment in association with New Line Cinema presents; a Harold Becker film; story by Aaron Sorkin and Jonas McCord; screenplay by Aaron Sorkin and Scott Frank; produced by Rachel Pfeffer, Charles Mulvehill and Harold Becker; directed by Harold Becker) [PN1997 .M35 1993 DVD] - When a serial killer begins murdering female students in a New England town, the college dean becomes involved in the investigation while wondering about the surgeon who has taken a room in his house.

Women’s Rights

Anita: Speaking Truth to Power (Chanlim Films; American Film Foundation; in association with Impact Partners and Artemis Rising Foundtion; a film by Freida Mock; director, writer, producer, Freida Mock) [KF374.H55 A55 2013 DVD] - The story of Anita Hill, who has empowered millions to stand up for equality and justice.

International Criminal Law

Nuremberg: Its Lesson for Today (Metropolis Productions & Schulberg Productions present; narrator, Liev Schreiber; restoration created by Josh Waletzky & Sandra Schulberg; commissioned by Pare Lorentz; produced by Pare Lorentz & Stuart Schulberg in cooperation with Eric Pommer; written & directed by Stuart Schulberg) [KZ1176.5 .N869 2014] - ”Shows how the international prosecutors built their case against the top Nazi leaders using their own films – devastating evidence of atrocities that are still shocking today.”

Legislative history research can be a difficult process, but finding historical information on federal rules and regulations can stump even experienced researchers. In Custodia Legis, the blog of the Law Library of Congress, recently published a guide, “How to Trace Federal Regulations,” that describes methods of researching administrative regulations and their history. Administrative rules and regulations are created by federal  agencies, boards, and commissions to implement the procedures for carrying out Congress’s legislative purposes. Congress delegates the authority to agencies to create regulations in enabling statutes. The guide discusses how to find the enabling legislation and an agency’s proposed and final rules. It explains the regulatory process in clear and concise language, for those who need a basic tutorial or a refresher, as well as where to find Authority Notes, which cite relevant sections of enabling statutes, and Source Notes, which often provide extensive information about a particular rule and why it was passed. The Notes also contain citations to regulations as originally drafted and amended and published for public comment in the Federal Register. Links to additional useful information on conducting administrative research are included.

From the ABA Journal we have this challenge. Two paragraphs are proposed. They include no punctuation. How would you punctuate them? Proper punctuation improves the clarity and flow of your writing. Try your skills. Later in the article the paragraphs are shown professionally edited. If you did not do well against the professional, think about how the professional approached the paragraphs and what you might do to use those skills to improve your own writing. The article is here: How are your punctuation skills? Try this comparison exercise to find out.

Post written by Lucia Martinez Maroto, Comparative Law LLM candidate 2015, Pace Law School

A Belgian court last month granted the right to die to a convict who had been imprisoned for over 30 years. The inmate claimed that he was suffering from “unbearable psychological pain” and therefore requested the right to put an end to his life through euthanasia.

Frank Van Den Bleeken was convicted of murder and rape of a 19-year-old student in the late 1980’s and was serving a life sentence for those crimes. Due to his sentence he argued that he had no prospect of being released and found no way to overcome his violent sexual urges. He claimed that he was “a threat to society” and therefore wanted to exercise his right to medically assisted suicide in order to end his life.

The detainee is currently serving in the psychiatric wing of the prison and has undergone numerous treatments in order to ease the mental suffering he was going through. However, it has been proved in several cases that Belgium continuously fails to provide inmates with the needed psychological attention and treatments. The European Court of Human Rights has criticized them for the constant violation of human rights. Van den Bleeken has complained about the lack of therapy for his mental suffering and condition and, after rejecting the possibility of an early parole due to his incapability to overcome his sexual urges, claimed his wish to die rather than live under such intolerable suffering.

This case is just one of the fifteen cases of convicts who wish to put an end to their lives but Van Den Bleeken is the first one to receive legal permission from a court establishing this way a landmark ruling that will open the door to future cases.

Belgium, a predominantly Catholic country, is one of the first countries in the world to allow euthanasia under certain situations. The Belgian Euthanasia Law, passed on May 28, 2002, had a limited scope, restricting the access to the assisted suicide to those who were undergoing a severe physical and mental pain and were under a grave or untreatable situation. Nevertheless the requirements needed for the application of this law have begun to expand over the years, going from 24 patients who underwent this path in 2002 to 1,807 in 2013. The same situation can be found in Holland, the first country to legalize euthanasia, where there has been a tremendous increase of cases and euthanasia now takes up 3% of the total death poll of the country.

This sudden increase of people who are willing to put an end to their lives, and the recent approval of euthanasia on terminally ill children at any age, has opened a very controversial debate on whether people should have a right to decide when their life finishes and have the needed medical assistance to do so. This debate reopens the controversy found in innumerable cases of medical ethics.

On one hand, it has been said that euthanasia is the “ultimate humanitarian gesture”, allowing dignity to a foreseeable death and avoiding the insufferable pain that in many cases accompanies it. In the words of Van Der Bleeken: “I am a human being, and regardless of what I’ve done, I remain a human being. So, yes give me euthanasia,” he said during a documentary for the VRT Flemish Television.

On the other hand, it has been proved, as mentioned above, that the present formulation of the law has expanded its application to some cases where there are still certain opportunities to allow the patient to overcome the unbearable suffering that he finds himself experiencing.

In the case of Frank Van Den Bleeken euthanasia is seen as a solution for the suffering that he alleges to be going through, but when analyzing the situation we find that there are other solutions available for the convict, such as medical treatment that would allow him to overcome the situation that he finds himself in. Moreover, this situation proves to create a debate on whether he should be allowed to “take this way out” as many have put it, or if he should suffer from the decisions he took and therefore should serve out his entire sentence.

In most states of the U.S. euthanasia remains prohibited, except in Oregon and the District of Columbia, however we find that the death penalty is still present in 32 states. Of the 1,348 executions there have occurred since 1976, 11% of them were “volunteers”, inmates on death row who decide not to appeal their case. In Vice, Natasha Lennard wrote:

Belgium’s liberal euthanasia laws, broad enough to encompass mental anguish and the imprisoned, in some ways stand as an illustrative counterpoint to a US system that maintains an archaic enforcement of barbaric death penalties and (for the most part) a refusal to grant an individual’s liberty to end his or her own life, even in cases of terminal disease.

The question of euthanasia and the death penalty continues to be a taboo subject but we have to ask ourselves, if we have the right to life and liberty shouldn’t we have a right to die?

Post written by Oscar Zenteno, Global Environmental Law, LLM candidate 2015,  Pace Law School

BhutanGlobalization has brought great changes to the world. The interconnection of the countries has allowed an ongoing industrialization along with global economic growth, creating more jobs, development of new technologies and has facilitated a cultural immersion. However, boundless development comes at a price – climate change.

Climate change is the alteration of the global climate patterns attributed to the increased levels of carbon dioxide in the atmosphere due to the overuse of fossil fuels. The high levels of carbon dioxide along with others heat-trapped gases in the atmosphere cause the heating of the planet triggering several impacts globally such as the melting of the glaciers and thereby sea level rise, droughts, rainfalls and floods. These consequences stem from the lack of human ability to establish a proper balance between development and environment. Climate change is a “disease” that is killing the planet constantly; a disease caused by us. Just a few paradises remain silent waiting the arriving of industries.

Bhutan, “Land of the Thunder Dragon” is an oasis located in the lap of the Himalayas and between two of the largest CO2 polluters in the world, China and India. Bhutan is a constitutional monarchy with a unitary parliament and the last standing Buddhist Kingdom in the world. The protection of the environment is one of the fundamental foundations of its constitution. This country is unique in that is the only country in the world which has Gross National Happiness instead of a Gross Domestic product as a policy, thus having as one of their fundamental pillars the conservation of nature. Bhutan is considered to be one of the happiest countries in the world along with a great biodiversity. It has 770 species of birds, 5,500 species of plants and 165 species of mammals. Therefore, unlike the rest of the world, economic growth is not a priority.

The environmental policies in Bhutan are remarkable. More than 74% of this country is cover by forests, the largest forest coverage within the Asian nations. In addition, 26% are declared as protected areas. It is the first country to attain the goal of 100% organic agriculture. Furthermore, this environmental paradise launched a Poverty Environment Initiative Program in 2007. It is a plan supported by the United Nations in order to integrate environment, climate and poverty within the government policies. Additionally, the Carbon Neutrality Strategy launched by the government in 2012 makes Bhutan one of the few countries in remaining carbon-neutral and therefore a sink for greenhouse gases.

Bhutan is an example for the world, where humans and nature coexist having a regulated harmonization between development and environment, allowing a perfect balance to reach a green development. Climate change is a real threat that should be taken more seriously. If measures are not undertaken soon, paradises like Bhutan would be just a memory and new generations would have to face a world under water without any remaining paradises.

Post written by Mariana Delgado, LLM candidate 2015, Pace Law School

This year’s twentieth session of the Conference of the Parties (COP 20) to the United Nations Framework Convention on Climate Change (UNFCCC) will be hosted by the Government of Peru in Lima. The UNFCCC entered into force on March 21, 1994 and it recognized (with far less scientific evidence than we have now) the existence of an important problem: climate change. Thus, the UNFCCC’s main objective, as stated in article two, is to stabilize greenhouse gas concentrations

at a level that would prevent dangerous anthropogenic interference with the climate system

In order to address the problem recognized by the UNFCCC, the Kyoto Protocol entered into force on February 16, 2005. The Kyoto Protocol recognized that developed countries were principally responsible for the current high levels of greenhouse gas emissions in the atmosphere as a result of more than 150 years of industrial activity. For this reason, the Kyoto Protocol placed a heavier burden on developed nations under the principle of “common but differentiated responsibilities.” It is worth mentioning that the United States – even though a party to the UNFCCC – signed but did not ratify the Kyoto Protocol.

The first commitment period of the Kyoto Protocol ended on December 31, 2012. However, in COP 18 in Doha, the parties agreed to extend the validity of the Kyoto Protocol until 2020 and also agreed to come up with a successor document on 2015 – in COP 21 in Paris – that should be implemented from 2020.

COP 20 in Lima will be the last stop before COP 21 in Paris. Thus, COP 20 will be the last stop before the parties adopt a new agreement that will replace the Kyoto Protocol and that will shape the commitments for the future of our climate.

Regarding COP 20 in Lima, there are positive signs that suggest that the conference will allow often-suppressed voices to be heard. Peru has a large indigenous population and the COP 20 in Lima will see a large indigenous presence. On July 4, 2014 the Peruvian office of the United Nations Development Programme (UNDP), representatives of COP 20, and the government of Norway all signed an agreement that will help indigenous peoples attend the conference. The UNDP and Norway will provide logistical support for indigenous leaders to have a pavilion during the conference. This will give them the opportunity to voice their specific concerns about climate change and other environmental challenges that affect their people, like deforestation and resource extraction. The participants will represent the Indigenous Organization of the Amazon Basin (COICA), an entity that oversees the indigenous communities that live in the nine nations that share the Amazon Basin. The agreement will make COP 20 the first Conference of the Parties with indigenous participation.

Consequently, COP 20 will not only be important because it will be the last step before COP 21 in Paris – the last step before adopting a new agreement that will replace the Kyoto Protocol – but also because this conference will allow the indigenous and native peoples to participate in the decision-making process. It is important to allow the participation of indigenous peoples in the decision-making process, because they are the most affected by climate change and can provide us with information – obtained through their traditional knowledge – that would help the parties reach the best and most efficient solutions to address climate change.

Post written by Kendra Medina, LLM candidate 2015, Pace Law School.

As the technology evolves, different techniques for assisted reproduction have developed. The possibility of preserving embryos is now a reality that allows infertile or same sex couples, as well as single or ill individuals, to preserve their gametes for years in order to plan for their reproductive needs. In-vitro fertilization (IVF) and cryopreservation (to freeze embryos) have become the most popular techniques for this purpose all over the world, including Mexico.

The average number of viable embryos transferred into a woman’s uterus on an IVF procedure or cycle is generally not more than three. However, usually there are more embryos produced, which, if not used, are frozen (or cryopreserved). There are no data as to the average number of cryopreserved embryos in Mexico, but the increasing infertility (according to the INEGI – National Institute of Statistics and Geography), has caused more couples and individuals to seek this type of assistance. Therefore, the number of embryos that are cryopreserved has increased.

Consequently, the development in Mexico of specific regulations and guidelines for assisted reproduction providers to follow with respect to the treatment of cryopreserved embryos is of great importance. Most important is the development of rules and principles that the courts can apply when resolving a dispute on the use of cryopreserved embryos between the parties involved when circumstances change (usually due to divorce).

The primary source of law in Mexico, as a civil law jurisdiction, is statutes. Judicial resolutions are also a source of law, since they can constitute case law (known in Mexico as jurisprudencia, which is binding only if it comes from certain courts and in accordance with certain rules), as are the international treaties to which Mexico is a party. However, with respect to cryopreserved embryos and any legal rights over them or any legal protection to which they may be entitled; there is no specific legislation; no case law has been developed in Mexico so far; and, no international treaties on this topic have been ratified. Consequently, it could be useful for Mexico to learn from the experience of other jurisdictions, such as the United States of America (“U.S.”), where the practice of IVF and use of embryo cryopreservation is very common and generalized; and, although there is no consensus among state legislation, robust case law has developed on this topic.

In Mexico, as in the U.S., when a dispute over the use and/or disposition of cryopreserved embryos arises it is mostly within the context of family law (marriage dissolution) or contract law (breach of contract), and usually confined within the limits of state or local law. Therefore, it is necessary to understand how the law has developed in each particular state within the U.S. Likewise, in order to explore the most suitable approach for Mexico —should it develop new legislation on this matter?— it is necessary to ask some basic questions. Is a cryopreserved embryo a person even though it has not developed into a born and alive child? Is it a thing that can be treated as property? Or is it a hybrid of these two concepts?

For purposes of this short essay, I will just summarize the different approaches that the U.S. courts have taken to resolve these disputes. Meagan R. Marolda summarizes these approaches in her article “Ice, Ice, Baby! The Division Of Frozen Embryos At The Time Of Divorce,” 25 Hastings Women’s L.J. 179 (2014):

  1. the state statutes (state legislation provides for guidance on how any dispute over frozen embryos should be solved). Just a few jurisdictions have enacted laws on this topic: California, Massachusetts, North Dakota and Louisiana;
  2. the contractual approach (agreements to which the infertile couples/individuals must sign at the time of the in-vitro fertilization procedure with respect to the disposition of embryos that are not transferred);
  3. the contemporaneous mutual consent approach (all parties involved must reach an agreement at the time that the embryos want to be disposed of, either destroyed or implanted, provided that changes in circumstances may have occurred after the in-vitro fertilization procedure took place, holding any agreements dated thereof not binding), and;
  4. the balancing approach (where both, the wishes and the rights of the parties involved are taken into consideration, either to procreate or to not procreate).

Under Mexican law, an individual is recognized to have rights as of the moment of its “conception”. The Mexican Federal Civil Code does not provide more information as to what “conception” should mean and it does not make reference to which specific rights any such individual may be entitled. Moreover, the term “conception” is usually utilized from a religious perspective, but from a mere physiological stand point, it would be as of the moment of “fertilization of an oocyte by a sperm”, that is, the formation of a viable zygote by the union of the male sperm and female ovum. However, the Article 22 of the Mexican Federal Civil Code does provide that an individual is protected under the law, even if unborn, in which case such unborn shall be deemed to have been born for all purposes under the Mexican Federal Civil Code. Although this provision in itself is confusing, it does not make a distinction between a naturally or artificially created embryo for purposes of its entitlement to have rights protected by the law. Furthermore, Article 314 of the Mexican General Health Law, which includes a definition of embryo, does not help making any distinction either. According to this law, an embryo is “the product of the conception as of the time of conception and until the twelfth week”.

The rights to which an embryo may be entitled may vary in the course of time depending on the stage of its development, whether it becomes a viable fetus, a viable born child, a minor, a minor with disabilities, an adult or an adult with disabilities (each of which legal capacities are detailed throughout different provisions of the Mexican Federal Civil Code). The difference among these rights would depend on the legal capacity that such individual may have at any given moment to exercise those rights and, such rights can be identified only on a case by case basis depending on the circumstances, the jurisdiction and the applicable specific legislation.

For example, in half of the States within the Mexican Republic, abortion is not penalized by the local penal codes, regardless of the reason, so long as it is practiced within the first trimester of the pregnancy (which means either the right to live of an embryo outside nor inside the womb and implanted into the uterus, is protected prior such period). Nevertheless, according to Article 1314 of the Mexican Federal Civil Code, any “conceived” individual, even if unborn, has the sufficient capacity to inherit property, so long as it has been conceived (that is, to be an embryo or zygote) at the time of death of the deceased. The contrast of these provisions highlights the potential contradictions that may arise under Mexican law if no specific legislation is available. Additionally, as if the federal law was not confusing enough, Article 337 of the Mexican Federal Civil Code provides that

for legal purposes, a fetus can only be considered to be born if, completely separated from the mother’s womb and if it lives for 24 hours or is presented alive before the Civil Registry. If any of those circumstances are missing, then no one can never claim to have paternity over it.

Does this mean that the provider of the male gamete cannot claim to have any right based on its relationship over a frozen viable embryo because it is not yet a fetus?

In contrast, in the U.S., although there is no federal legislation, there are some relevant state statutes in this regard that have helped the courts to develop case law on this topic. Nevada, for example, provides a definition of an embryo as a

cell or group of cells containing a diploid complement of chromosomes or a group of such cells, not including a gamete, that has the potential to develop into a live born human being if transferred into the body of a woman under conditions in which gestation may be reasonably expected to occur.

That is, there are two kind of embryos: the pre-embryo (the embryo that has not been transferred into a uterus and, therefore, does not yet have the potential to develop into a human being); and, the embryo, which has been transferred and implanted into the uterus of a woman (which has such potential). Interestingly, the State of Louisiana goes further and defines what an in vitro fertilized human ovum is:

A viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person. An in vitro fertilized human ovum that fails to develop further over a thirty-six hour period except when the embryo is in a state of cryopreservation, is considered non-viable and is not considered a juridical person.

I look forward to going into more detail on each of the possible approaches that Mexico should take into consideration when regulating in general the rights over frozen embryos and, in particular, to solve any disputes over them, based on the experience that the U.S. has had so far, which amounts at least forty cases (all of them solved using the different approaches mentioned above) in my academic research paper to be completed in 2015.

POST WRITTEN BY: Bani Kohar Harahap (LL.M Candidate at Pace Law School, May 2015).

Indonesia, which is based on Civil Law, does not use a jury system to decide criminal cases or civil cases. In Indonesia, religion is a major principal in the nation, and the spirit of Pancasila (the symbol of Indonesia) is the belief in God Almighty. The Muslim religion makes up over 90% of the population in Indonesia. The Constitution of Indonesia, UUD 1945, is the basis for the government in Indonesia. It is explicitly stated in the Constitution of the UUD 1945, at § 29(1), that “the State is based upon belief in one God.” § 29(2) reads: “The State guarantees freedom each citizen to profess their own religion and to worship according to his religion and belief.” Thus, freedom of religion is one of the most fundamental human rights, because freedom of religion is directly sourced to the dignity of human beings as God’s creation. Thus, the state must guarantee the freedom for everyone to embrace each religion and to worship according to the religion or their belief.

Guarantees of Freedom of Religion are stated in UU no. 39 Year 1999 on Human Rights, which in § 22(1) states that: “everyone is free to adhere to their religion and to worship according to their religion and belief.” The right to freely embrace religion or belief means any person is entitled to religion according to his own faith, without any coercion from anyone. Section 22(2) states: “The State guarantees freedom of every person to embrace their own religion and to worship according to their religion and belief.” It is obvious that religious freedom is a human right that contains the right to be respected as well as the obligation to respect others. For example, once a year, Ramadhan is the month where Muslim people get many blessings for the Alloh S.W.T (The GOD). The bars and nightclubs must be closed during Ramadhan. If the owner of the bars and night clubs try to stay open, the government can ban them.  Additionally, although it is illegal, people may get angry and try to destroy the bars or nightclubs. This is their way of showing that the owner of the bar is not showing respect to the Ramadhan.

Netherlands was Indonesia’s colonist. Indonesia suffered for more than 200 years before we became independent country. Our Independence Day is August, 17, 1945. For that reason, the Indonesian criminal legal system adopts the laws of the Netherlands, establishing a criminal act or a deplorable act in § 1(1) of the KUHP. The KUHP are the fundamental laws in criminal cases in Indonesia. KUHP is also a tool used by the judges to decide criminal cases. The KUHP § 1(1) is known as the principle of legality, which has prohibited acts and criminal sanctions.

A criminal offense exists when an action is in conformity with the contents of the formulation of the legislation. Religious offenses in the KUHP appear after rising UU No.1/PNPS/1965. Section 4 of the UU states that the provisions of the law governing religious offenses are included in the Section 156 of the KUHP. Section 156 of the KUHP includes the policy measures to provide protection against the legal interests of private religion. The provisions of Section 156 of the KUHP is read as follows:

Whoever publicly expressed hostility, hatred or contempt toward one or several layers of Indonesia may be punishable by a maximum four years imprisonment or a maximum fine of three hundred rupiah.

The severity of the punishment depends on who committed the crime. For instance, if you are a leader in one specific religious community and provoke another religious community, you shall go to prison maximum four years without trial, unless you can provide evidence that you are not a being provocateur. If you can prove that, you can get a trial. Furthermore, the implementation of Section 156 of the KUHP requires the protection of “population group,” or in other words, the protection of “persons.” This concerns people that are included in a “group” that is recognized as valid under the laws of their state, as well as groups according to the “religion.” Protected objects are a “person,” which protects not the physical, but the self-respect of that person. The attack on the self-esteem of people who are included in a group leads to “disruption” to that person, which then leads to the disruption of “public order.”

Thus, a statement that is hostile, hateful or condescending towards religious groups can be criminalized under Section 156 of the KUHP. Therefore, this section is not clear and is confusing as to whether “religion” or “religious people” are protected. Then it becomes deficient in the policy formulation of the provisions.

Indonesia is still working to improve the legal system. Because Indonesia inherited most of its law from the Netherlands, the language is one of the major problems. All criminal cases, civil cases and other cases are only decided by the judges in every province in Indonesia.

POST WRITTEN BY: Mai Kemmochi, LLM Pace Law School (’15) and Doctoral Program of Sophia University (’17).

“Saiban-in” is a special position introduced in 2009 in the Japanese judicial system. It corresponds to the jury in the U.S. For every case, six persons are randomly chosen from citizens who are 20 years of age or more, and they take part in a trial and decide a judgment with three professional judges. Cases which may involve saiban-in are limited to several kinds of criminal cases: for example, murder, manslaughter, arson, abduction, and stimulant smuggling.

This system is expected to encourage citizens to feel familiar with the court, thereby enhancing their reliance on the judicial system. Before the introduction of this system, the court was deemed another world for citizens because trials were too technical and lengthy for them to access and understand. In response to these difficulties, there were many attempts to make trials easy for lay persons to understand, and to shorten the period of trials, such as pretrial conference procedure among the judge, prosecutor and lawyer in order to clarify and narrow the point in dispute. Furthermore, the most important point of the saiban-in system is that general citizens’ “common sense” can be reflected in judgments, because the court had been sometimes criticized that judgments rendered by professional judges differed from citizens’ view on the seriousness of crimes.

There are three major differences between the Japanese saiban-in system and the American jury system. First, the saiban-in system is not applied to civil cases, while in the United States the jury takes part in both criminal and civil cases. When the saiban-in system was developed, some people said that citizens’ common sense was more needed in civil cases. However, the system was introduced only in criminal cases because the application to both cases would have laid a heavy burden on citizens, and criminal cases have larger effects on our society.

Second, the saiban-in should decide not only whether a defendant is guilty or not, but also what the appropriate sentence for the defendant, including the death penalty. A person who is convicted of murder, for instance, “shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years” under Article 199 of the Penal Code. In this instance, the saiban-in should select appropriate penalty from a range of possibilities, considering many factors like the situation, motive and result of the criminal act.

Third, in principal, the sentence is unanimously decided by six saiban-in and three professional judges together. If they don’t reach consensus after sufficient discussion, they then take a vote, but at least one professional judge must agree with the majority when the result is disadvantageous to the defendant. Under the saiban-in system, it seems that professional judges play an indispensable part in explaining law to the saiban-in, who have no legal expertise, as well as keeping general balance with other similar cases, thereby sustaining legal stability.

Five years have passed since the saiban-in system was adopted, and the number of cases which the saiban-in joined amounts to around 7,000. This inexperienced system has not been without some problems. Among these, I briefly present (1) constitutionality of this system, (2) the burden on the saiban-in and (3) a tendency toward a more severe penalty.

The Japanese Constitution has no provision regarding jury, unlike the U.S., so the constitutionality of the saiban-in system had been disputed. However, in 2011, the Supreme Court upheld its constitutionality, thereby settling this argument.

When the saiban-in system was introduced, a matter of public concern was the burden caused by a long-term trial or fear of danger. Relating to the fear of danger, if the life, body or property of the saiban-in could be harmed, such a case may be excluded from those in which the saiban-in take part. However, this exemption clause appears to be construed very strictly, and has been applied to only one case which involved two members of the Japanese mafia. As for the long-term trial, most cases are finished in three or four days. The average length is 5.7 days, but the longest trial reached 95 days. Though the current exemption clause isn’t applied to the long-term trials, there is discussion that this clause should be expanded to cases where the saiban-in would attend a trial for a significantly long term.

In addition, some people have voiced concerns that the saiban-in might feel sympathy for victims, thereby punishing more severely than professional judges. According to statistics, the tendency toward more severe penalties is certainly recognized, but the number of sentences to death is slightly decreasing and the proportion of deferred adjudication probation is increasing. If judgments to which saiban-in related are appealed, higher courts should not reverse them unless they are logically or empirically unreasonable, and the actual number of reversals is very small.

The adoption of the saiban-in system is successful in that it has no remarkable harmful effects, and it narrows the gap between the court and our daily life. In particular, regarding the latter, the saiban-in seems to feel sympathy not only for victims but also defendants, and have the opportunity to consider punishments for crimes and the death penalty itself. This system will be indispensable to provide a forum for discussion of our society’s legal system between citizens and judiciary and among citizens.

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