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Make way for automation
Why lawyers can no longer ignore the growing superiority of artificial intelligence
The rainbow in Asia
The state of LGBTQI rights in the region – and why demanding them is heroic
Taking on the big brands
How the push for transparency on the supply chain is shaping business and human rights
Big brother is watching Can a challenge to India’s surveillance laws salvage citizens’ right to privacy?
A portrait of trauma and tragedy An on-the-ground account of daily life in one of Bangladesh’s Rohingya refugee camps
31st LAWASIA Conference 2018
Siem Reap, Cambodia 2–5 November 2018 For more details visit
lawasia.asn.au
CONTENTS
April 2018
I S S U E 02
Features 18
When should lawyers speak out?
There is a fine line between when lawyers and legal associations should speak up about political issues and when they should stay mum. Chief Justice Tom Bathurst AM explores.
30 The 10 most significant world events of 2017
22 ↑
COVER STORY
A portrait of trauma and tragedy Michelle Sanson, an Australian lawyer on the ground in a Bangladesh refugee camp, gives a first-person account of her experience and addresses the question: what happens when rights and reality collide?
From Trump's foreign policy to climate change and Robert Mugabe's ouster, the Council on Foreign Relations' James Lindsay shares his list of the biggest events to impact the globe in 2017.
36 A.I. is coming
It's not just those in menial jobs who need to be worried about the rise and rise of artificial intelligence. Lawyers need to watch out, too, writes Frank H Wu.
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CONTENTS
52
Illumination Ideas, analysis and inspiration from leading legal commentators around the globe
40 The clothes we wear
Aruna Kashyap examines why clothing labels need to embrace transparency in order to protect workers' rights.
46 The rise of morality laws
Is the trend of implementing moralitybased laws taking hold in south-east Asia? Seppy Jamali Pour explores.
58 Limitless
52 The rainbow in Asia
Michael Kirby AC CMG examines the varied status of LGBTQI rights across the Asia Pacific region.
Words of wisdom on careers, professional development, wellbeing and lifestyle
58 Privacy in India
Tony Blackshield explores the erosion of the right to privacy under India's "big brother" laws.
64 Regulating Bitcoin
How is regulation around the region keeping up with the world's latest "it" currency? Michael Bacina writes.
72
refugee Jaane, 12, who was separated from his mother while fleeing his Myanmar village and whose father is missing, presumed dead. Jaane says he wants to be a teacher when he grows up so he can support his siblings. UNICEF is helping him recover from the trauma. Photograph by Anna Dubuis/DFID
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Regulars 04 From the President
08 Contributors 10 News 16 Leadership 84 LAWASIA 92 Inspiration
Be a better version of you.
72 A very fine line
06 From the Secretary-General Cover image: Rohingya
70 From good to great
73
Can you really have friends at work?
There's something about 9
Why 9-ers are high performers.
74 The power of nutrition
Why good food is brain food.
76 The secret to living longer
Habits of the world's oldest people.
78 Luxury destination
Island dreaming in Koh Samui.
80 City guide
The hustle and bustle of Bangkok.
CONTENTS
Developed in collaboration with the Inter-Pacific Bar Association (IPBA)
INTRODUCING THE
M AST E R O F L AW S ( A P P L I E D L AW )
IN ASEAN6 LEGAL PRACTICE This programme is designed specifically for lawyers engaging in cross-border transactions in the ASEAN+6 region.
Find out more about the ASEAN+6 LLM and download the full handbook at www.collaw.com/llm-asean Call +65 6725 6215 or +61 2 9965 7000
Email colasia@collaw.edu.au or visit www.collaw.com
A P R I L 2 0 18 |
3
FROM THE PRESIDENT
"Often we face closed doors and forces that hinder the processes and transparency required to ensure that the rule of law prevails."
D
efending the rule of law is not easy. Several members of LAWASIA, myself included, discovered this in February when we were denied entry to the Maldives as we attempted to conduct a fact-finding mission in the embattled state. LAWASIA had, due to the reported situation in the Republic of Maldives, established a fact-finding team for the purpose of ascertaining the independence of the judiciary; the independence of the Judicial Services Commission; the transparency of the process for appointing judges and investigations of complaints regarding judicial conduct; the independence of the legal profession; whether lawyers are able to perform their duties unhindered and free of harassment or intimidation; whether there is due process in the administration of justice; and the rule of law and rights-related issues. The fact-finding team included Mr Prashant Kumar, Mr Upul Jayasuriya, Dato’ Mohamad Ariff Md Yusof, Mr Doug Humphreys OAM, Prof Yasushi Higashizawa, Mr Gregory Vijayendran and Ms Kate Hewson. In spite of the fact the Maldives Government had issued an open invitation, via its Foreign Affairs Ministry, to associations such as LAWASIA to assess the country's situtation, we were denied entry. When four members of the fact-finding team arrived at Velana International Airport on the evening of 25 February, we each declared the purpose of our visit. Instead of providing guidance and facilitating the mission with a visa, as would have been consistent with the open invitation issued by
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the government to international organisations, the authorities instead refused entry. We were detained and kept at a closed detention facility under guard and surveillance. Although the actions taken by the authorities were unnecessary and inconsistent with their public statements of invitation, the immediate officials who attended to us were courteous. By such action, the Maldives Government deprived itself of the benefit of an independent and impartial assessment by a fact-finding team not sponsored by any individuals, parties or organisations in the Maldives. Although disappointed, the LAWASIA fact-finding team will nevertheless continue with its mission and carry out its mandate. I remain hopeful that the government and key stakeholders in the country will take meaningful steps to assist and participate with this task. This situation is indicative of the kinds of challenges that those defending the rule of law face each and every day. Often we face closed doors and forces that hinder the processes and transparency required to ensure that the rule of law prevails – a rule of law that is the foundation of an independent and properly functioning justice system, which underpins a thriving democracy. LAWASIA will continue to carry out its important work. We are not easily discouraged.
CHRISTOPHER LEONG President, LAWASIA
FROM THE PRESIDENT
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5
F R O M T H E S E C R E TA R Y- G E N E R A L
"How is it that a child has seen such things? But many Rohingya children have seen such things, and it will likely haunt them forever."
T
he cover of the second edition of Asian Jurist tells a tragic tale. The young boy featured was photographed at Cox's Bazar in Bangladesh, one of the hundreds of thousands of Rohingya refugees to have crossed the Myanmar border – perhaps never to return – in the past few months. The drawing which masks his eyes – and, arguably, his humanity – was done by another child in the camp. It depicts death and destruction, terror and pain – the infliction of brutality by the powerful upon the weak. How is it that a child has seen such things? But many Rohingya children have seen such things, and it will likely haunt them forever. The tragedy that continues to unfold in Myanmar is the very reason LAWASIA has established a Presidential Taskforce to examine how the organisation might play a role in negotiating a safe and peaceful future for the Rohingya people. Effectively, we are looking to review the Kofi Annan Advisory Commission Report on the Rakhine State (published in August 2017) and, from the report's main findings and recommendations, identify ways in which LAWASIA can contribute, outside of existing projects and fact-finding missions. In the coming months we plan to meet with United Nations representatives to establish dimplomatic efforts in respect to Myanmar and identify ways in which the LAWASIA network, collective
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intellect, and legal acumen can be of assistance. On a much brighter note, it was incredibly heartening to see the inaugural edition of Asian Jurist receive such a warm reception at the LAWASIA Annual Conference in Tokyo, Japan, last year. We received lots of positive feedback and are working hard to ensure that Asian Jurist is a publication with which you connect and which covers the topics of interest to you. It is therefore incredibly exciting to announce that later this year LAWASIA will be launching a digital version of Asian Jurist, as well as a new LAWASIA website. This means that all of our content will be more easily accessible across all mobile and desktop devices. Our digital footprint is incredibly important, and will make our members' interactions with LAWASIA far more user-friendly, efficient and enjoyable. Stay tuned for more announcements in this regard.
MICHAEL TIDBALL Secretary-General, LAWASIA
F R O M T H E S E C R E TA R Y- G E N E R A L
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readers across more than 30 countries
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A P R I L 2 0 18 |
7
Contributors RULE OF L AW | HUMAN RIGHTS | BUSINESS
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klara Major Assistant Researcher and Editor Kate Hewson Art Director Michael Nguyen Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Level 11, 170 Phillip Street, Sydney, NSW 2000, Australia P: +61 (02) 9926 0165 F: +61 (02) 9223 9952 E: lawasia@lawasia.asn.au twitter.com/LAWASIA_alerts facebook.com/lawasiaassociation linkedin.com/company/lawasia © 2018 LAWASIA. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of LAWASIA. Opinions are not the official opinions of LAWASIA unless expressly stated. LAWASIA accepts no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own enquiries in making decisions touching their own interest. Asian Jurist is proudly produced in partnership with The Law Society of New South Wales.
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Michelle Sanson
is an international lawyer, author and humanitarian who combines humanitarian protection work with teaching human rights law and writing law texts. She has a PhD in international law, a Master of Adult Education, bachelors degrees in law and business, and certificates in counselling and coaching. Her background includes working as a lawyer with Blake Dawson Waldron and lecturing law at University of Technology Sydney and the University of Western Sydney. She is author or co-author of five books including International Law and Global Governance, Essential International Trade Law, International Commercial Arbitration, Connecting with Law, and Statutory Interpretation. She uses her skills at RedR Australia and the United Nations working in warzones.Most recently, Sanson has been working on the ground in Bangladesh, supporting the safety, dignity and rights of Rohingya refugees fleeing persecution in Myanmar. She shares her first-hand account in our cover story on page 22.
Aruna Kashyap
is a lawyer who works as senior counsel for the women’s rights division of Human Rights Watch. Her work focuses on women’s labour and economic rights, and violence against women. She researched and litigated in India with a legal aid non-profit, India Center for Human Rights and Law. There, she worked on juvenile justice, sexual abuse, and children’s rights to education and food. Kashyap has a law degree from National Law School of India University, Bangalore. She spoke on the topic of supply chain accountability at the LAWASIA Annual Conference in Tokyo in September. In her article on page 40, 'The clothes we wear', Kashyap says arguments against clothing companies adopting transparency measures no longer hold sway. "Some brands that reject transparency invoke the oft-repeated trope of competitive disadvantage. They argue that publishing the names and locations of the factories that produce for them will be detrimental to staying competitive. This thinking is misguided."
CONTRIBUTORS
Frank H. Wu
is a Distinguished Professor at the University of California Hastings College of Law in San Francisco. He previously served as Chancellor and Dean at the school, receiving unanimous renewal after being voted the most influential dean in legal education in a national poll. He was a member of the faculty at Howard University, America’s leading historically black college/university for a decade. He served as Dean of Wayne State University Law School and taught in various roles at Michigan, Columbia, Stanford, and Peking University School of Transnational Law. Wu is the author of Yellow: Race in America Beyond Black and White. His writing has appeared in The New York Times, The Washington Post, National Law Journal, and the Chronicle of Higher Education. He practised law with the firm of Morrison & Foerster. He is Vice Chair of the National Advisory Committee on Institutional Quality and Integrity of the US Education Department. He writes on page 36 about the impact of artificial intelligence on the practice of law.
Michael Kirby AC CMG
retired from the High Court of Australia in February 2009. He was Australia’s longest serving judge. Kirby served as a member of the Eminent Persons Group on the Future of the Commonwealth of Nations from 201112. He was also Commissioner of the UNDP Global Commission on HIV and the Law from 2011-2012. In 2013-2014, he was Chair of the UN Commission of Inquiry on Human Rights Violations in North Korea; Commissioner of the UNAIDS Lancet Commission on AIDS from 2013-2014; on the Global Fund’s Equitable Access Panel (2015-16), the UN Secretary-General’s High Level Panel on Access to Essential Medicines (2015-16), UNAIDS/OHCHR’s panel on overreach of criminal law (2017), and is Co-Chair of the International Bar Association’s Human Rights Institute. He received the Order of the Rising Sun, Gold and Silver Star in Tokyo during an audience with the Emperor of Japan in May 2017. On page 52 of this issue, Kirby examines the status quo for LGBTQI people across the region.
Tony Blackshield AO
is a legal scholar, commentator and teacher who, over many decades, has helped shape some of Australia's greatest legal minds, among them future Justices of the High Court of Australia. His teaching career began in the 1960s at the University of Sydney Law School, and in the 1970s he was one of the founding members of the Faculty of Law at the University of New South Wales. Thereafter he was Professor of Legal Studies at La Trobe University in Melbourne, and Professor of Law at Macquarie University in Sydney. Blackshield has written extensively on jurisprudential and constitutional issues and in 2001 co-edited The Oxford Companion to the High Court of Australia. His interest in constitutional law extends to India, where he is an Honorary Professor of the Indian Law Institute in New Delhi. His 1966 articles on the Fundamental Rights in the Indian Constitution are, to this day, still considered "essential reading". On page 60 of this issue, he examines the current state of India's right to privacy.
A P R I L 2 0 18 |
9
Regional news KOREAN PENINSULA
ASIA PACIFIC
Multilateral efforts secure TPP's survival
For the first time since the outbreak of the Korean War in 1950, the leaders of North and South Korea will meet face-to-face for a summit held south of the Military Demarcation Line (MDL). Although this will be the third interKorean summit to date, Kim Jong-un will break with tradition by joining South Korean President Moon Jae-in at the Peace House in Panmunjom, a border village on the southern side of the Joint Security Area. The previous bilateral meetings in 2000 and 2007 were both held in Pyongyang. North Korea selected the Peace House as its desired venue from a list of options compiled by the South. The three-storey building is generally regarded as a neutral site and was purpose built for hosting inter-Korean talks. The recent Winter Olympics served as an opportunity for Kim’s special envoy, his younger sister Kim Yo-jong, to invite Moon to Pyongyang. As a result, Moon’s special envoy, Chung Eui-yong, met with Kim during a recent two-day trip at which the prospect of an inter-Korean summit was discussed and agreed upon. A hotline has also been established between the two leaders to facilitate conversations prior to the summit. While the location and venue are 10
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confirmed, the date of the summit is yet to be narrowed beyond "late April" – a precarious time frame likely to coincide with the conduct of US-South Korea joint military exercises in the region. It is generally regarded as a positive sign that the North has not raised the drills as a deal-breaker. According to special envoy Chung, Pyongyang has in fact demonstrated an understanding that the joint exercises are routine and primarily defensive in nature. However, others hold the more wary view that South Korea is under pressure from the North to scale back or shorten the duration of the joint exercises, which were already delayed due to the Pyeongchang Olympic Winter Games. What is agreed is that both sides have little time to prepare for the potentially ground-breaking talks. To capitalise on the goodwill generated by the Winter Olympics, Moon is moving quickly to sustain progress made under the recently expired UN Olympic Truce resolution. In this context, it is widely viewed as a statement of confidence that, unlike his predecessor, Kim Jong-un has agreed to travel south of the MDL for talks – with some hoping that the North Korean leader will extend a reciprocal invitation to Moon to visit Pyongyang. g
Against the odds – and without the US – 11 Pacific Rim states have achieved a “streamlined” version of the TPP, called the Comprehensive and Progressive Trans-Pacific Partnership. The revised pact, signed on 8 March, defies recent trends toward protectionism and talk of global ‘trade wars’. Instead, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam have sent a strong message of regional support for continued economic integration. g
SINGAPORE
NGO secures redress for victimised maids Singapore’s Centre for Domestic Employees (CDE) took on 607 cases last year, providing mediation services, advice and free legal clinics in relation to employment law matters. Salary and wage disputes were the most common concern, particularly among domestic maids, comprising roughly 15 per cent of the CDE’s total caseload in 2017. Over the past two years, the CDE has recovered more than $113,668 SGD (US$86,250) in unpaid wages, with $15,000 SGD being the highest amount owed in a single case. CDE Chairperson Yeo Guat Kwang’s advice is to seek assistance early in cases of unpaid entitlements, to minimise difficulties in obtaining compensation. Meanwhile, employers are urged to increase insurance coverage for foreign domestic workers beyond the minimum requirement of $15,000 SGD medical cover. g
REGIONAL NEWS
OCEANIA
Timor-Leste and Australia sign historic maritime treaty After decades of friction and failed negotiation, Timor-Leste and Australia have signed a landmark border agreement demarcating their respective territories in the Timor Sea, including the lucrative Greater Sunrise oil and gas deposit. This is the first permanent maritime boundary between the two nations and the first treaty concluded through the United Nations Convention on the Law of the Sea (UNCLOS) conciliation process. With an estimated value as high as AU$50 billion, negotiating the legal status of Great Sunrise is a difficult task. The treaty has secured a pathway to revenue-sharing and joint development of the fields, but the crucial issue of processing remains in dispute. Timor-Leste wants to process the oil and gas deposits at a plant to be constructed on its southern coastline,
for which it would receive a 70 per cent revenue share and a valuable project for long-term national development. However, with doubts about TimorLeste’s capacity to pursue onshore processing, Australia is instead offering its neighbour an 80 per cent revenue share in return for processing the resources in Darwin. Joint venture companies have expressed similar concern about the economic viability of processing the deposits in TimorLeste, particularly as it would require the pipeline to cross a trench at five kilometres below sea level. Timor-Leste is eager to develop Greater Sunrise as quickly as possible, as its existing oil and gas fields are expected to run dry within a decade. With both parties committed to the development of Greater Sunrise, negotiations are continuing. g
JAPAN
Foreign farmers to offset ageing population What does a nation do when an ageing agricultural labour force and decreasing population's productivity is slowing? This is the dilemma likely to hit many Asia Pacific countries in the decades ahead – but Japan is among those already feeling the strain. In response, the government has adopted a two-pronged approach: encouraging women and seniors to remain in the workforce, and incentivising experienced farmers from other countries to bring their skills to Japan. Special zones in Niigata, Kyoto and Aichi prefectures will accept skilled foreign farmers with at least one year’s experience. Participants will be allowed to work in Japan for three years, divided into periods of their choosing and with the option of working in processing and sales. Working conditions will be monitored to ensure consistency with their Japanese counterparts. Other areas of the labour market may also be deregulated, including manufacturing, care services, fashion and hospitality, as Japan seeks to maintain its workforce. g
Going nowhere fast? You're not the only one in a jam Drivers in the big cities of Asia spend about 13 days of the year stuck in traffic, according to a survey commissioned by Uber.
13 days
per year stuck in traffic
6.5 days
per year looking for parking
40–70%
of private vehicles could be cleared if ride sharing grows in Asia
Data source: Asia Times Staff, 'Asians stuck on roads 13 days a year because of traffic jams', Asia Times (2017) <www.atimes.com/article/asians-stuck-roads-13-days-year-traffic-jams>. A P R I L 2 0 18 |
11
REGIONAL NEWS
THAILAND
With gender equality enshrined in theory, focus turns to success in practice Thailand has made substantial progress since undertaking a formal commitment to women’s rights in 1985, but considerable impediments remain to the full participation of women in all areas of public life. This was the message delivered by leading international human rights expert Professor Vitit Muntarbhorn in a keynote address on International Women’s Day. Concerted reforms and the adoption of targeted legislation have enshrined gender equality and non-discrimination in Thailand at the highest levels. In family law, for example, there are no longer sex-based discrepancies in available grounds for divorce. Similarly, marital rape has been criminalised, witnesses are compelled by law to report cases of domestic violence, and discrimination on the basis of gender or sexual orientation has been outlawed. But despite strong protection
CHINA
China dispatches 60,000 troops for ambitious enviro-mission A large regiment of China’s People’s Liberation Army is downing weapons and picking up shovels in a bid to combat heavy pollution. More than 12
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in theory, women are still excluded from high-level decision-making and governance, are still paid less than men, still face barriers to remediation, and still endure domestic violence. But why? Muntarbhorn argues that theoretical safeguards are weakened by the overuse of exceptions to protective laws – especially in the context of national security. Upholding women’s rights in practice will require a range of measures to not only consolidate Thailand’s progress, but also to gain new ground, including: strong "mechanisms, personnel, monitoring with disaggregated data, education and remedies"; strict application of "necessary and proportionate" tests for emergency laws; and thorough checksand-balances to prevent abuse of public power. Only then can human rights for all, and for women in particular, be protected and advanced. g
60,000 soldiers will join with members of the armed police force, tasked with a new mission: planting some 84,000 square kilometres of new forest. Heavily polluted Hebei province, which encircles Beijing, has pledged to raise its total forest coverage to 35 per cent by the end of 2020. The bulk of troops redeployed from frontline duties will be engaged in afforestation of this area, long seen as the major culprit in producing the smog and fumes that
BANGLADESH
Tech society embraces Digital Island Taking one of the nation’s poorest and most remote areas and introducing it to 21st Century technology has revitalised the future for the 320,000 inhabitants of Bangladesh’s so-called Digital Island. Approximately 23 kilometres of fibre optic cables now connect Moheshkhali with the mainland and the impact has been far reaching and immediate, impacting all areas of island life including education, healthcare, e-commerce and business. Residents are now just a mouse click away from the highly skilled teachers, doctors and professional support that were once only available in the larger cities. This is just the start. The wider vision extends beyond Moheshkhali. Through its Digital Bangladesh initiative, the government seeks to replicate the project in other remote areas across the nation. Bangladeshis are taking to digital technology at rates that far exceed expectations, and are now the second largest suppliers of online labour across the globe. g
Troops redeployed from frontline duties will be engaged in afforestation ... envelope a large part of northern China in the colder months. g
REGIONAL NEWS
NEW ZEALAND
New Zealand sets high bar for rule of law in Asia Pacific New Zealand has established itself as a regional leader in safeguarding the rule of law, achieving an impressive overall score of 0.83/1 in the World Justice Project’s (WJP) 2017-2018 Rule of Law Index. The Index measures adherence to the rule of law in 113 jurisdictions and is widely viewed as the leading independent source of rule of law data. Based on primary data, the performance of each jurisdiction is evaluated against 44 indicators across eight broader ‘factors’, which are scored and ranked at the global, regional and income-based levels. New Zealand’s score earns it the #1 rank in East Asia and the Pacific, and a global rank of 7th – one higher than its position in 2016. This achievement is particularly notable given what WJP founder and CEO, William H Neukom, calls a trending "global deterioration in fundamental aspects of the rule of law". How do they do it? Back in 2015, convenor of the New Zealand Law Society’s (NZLS) Rule of
MALAYSIA
Plans for special court dedicated to human trafficking cases
Law Committee, Austin Forbes QC, emphasised the importance of the legal profession within mechanisms of government, and the codified duty of the NZLS to "uphold the rule of law and facilitate the administration of justice". The latter is a unique statutory requirement which Forbes sees as "a tribute to our system of government and an important safeguard of a concept which had its beginnings 800 years ago [in the Magna Carta]". There is, of course, a clear difference between the theoretical rule of law and its achievement in practice. As Neukom explains, "[N]o country has achieved a perfect realisation of the rule of law. The WJP Rule of Law Index is intended to be a first step in setting benchmarks, informing reforms, stimulating programs, and deepening appreciation and understanding for the foundational importance of the rule of law." In this respect, New Zealand is certainly setting a strong precedent for the region. For more details, see page 15 g
With nearly two million registered migrant workers, Malaysia relies heavily on foreign domestic workers and labourers from countries including Indonesia, Bangladesh and Nepal. Alongside these registered workers are unknown numbers of foreign nationals lured to the country without permits for jobs that fail to materialise or pay far less than was initially promised. Advocacy groups are greatly concerned about the exploitation of these workers and the human trafficking that is taking place. In response, Malaysia has announced that, as early as May 2018, it will establish a special court in the central state of Selangor to tackle human trafficking cases and help deliver justice to victims. If successful, the initiative will be rolled out in other strategic areas across the country. It is hoped that the court will increase public awareness of human trafficking in Malaysia, help expedite cases, and encourage victims to seek redress through the justice system. g
In detail: the factors behind New Zealand's high score
0.85
0.88
Constraints on Absence of government powers corruption
0.81
Open government
0.81
Fundamental rights
0.89
Order and security
0.85
Regulatory enforcement
0.79
Civil justice
0.74
Criminal justice
Data source: World Justice Project, 'New Zealand', WJP Rule of Law Index 2017-2018 (2018) <data.worldjusticeproject.org/#/groups/NZL>. A P R I L 2 0 18 |
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REGIONAL NEWS
113 245
AUSTRALIA
372
NEW ZEALAND
579
lawyer DATA VISUALISATION
802
THAILAND
1,134 1,335
(2017) <www.cia.gov/library/publications/the-world-factbook/ index.html>; Rule of Law Index rankings: World Justice Project, WJP Rule of Law Index 2017–2018 (2018) <worldjusticeproject.org/ our-work/publications/rule-law-index-reports/wjp-rule-law-index2017-2018-report>; and National legal profession data which reflects a compilation of research by the South Pacific Lawyers Association, information from the International Bar Association, advice obtained via direct correspondence with LAWASIA member organisations, and reports by local law societies/bar associations in the region.
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INDIA SINGAPORE FIJI
1,566
MALAYSIA
1,609
PHILIPPINES
1,711
TAIWAN
1,786
NEPAL
1,897
RUSSIAN FEDERATION TONGA
2,173
KOREA, REPUBLIC OF
2,175
SAMOA
2,287
Population data: Central Intelligence Agency, The World Factbook
MONGOLIA HONG KONG SAR
2,009
THE SIZE OF THE ASIA PACIFIC legal profession has grown exponentially over the past decade. So, too, have many national populations. How does the number of lawyers in practice compare with the number of residents in a jurisdiction? And what correlation is there, if any, between rule of law indicators and the people-per-lawyer ratio? We examined 32 regional jurisdictions and found some surprising results. g
UNITED KINGDOM
760
916
per
UNITED STATES
351
476
People
ISRAEL
2,417
PAKISTAN VANUATU
2,618
MALDIVES
2,630
BANGLADESH
3,356
JAPAN
4,033
BRUNEI
4,057
CHINA
5,397
SOLOMON ISLANDS
7,238
INDONESIA
7,243
PAPUA NEW GUINEA
8,811 15,492 28,437
VIETNAM
REGIONAL NEWS
No data 19
↗
10
World Justice Project Rule of Law Index 2017–18
The WJP Rule of Law Index evaluates adherence to the rule of law in 113 jurisdictions, using 44 performance indicators to derive an overall Rule of Law Index score for each state. The scores are subsequently ranked at the global, regional and incomebased levels. The figures shown here represent the relevant jurisdiction’s global ranking out of 113. Denmark then Norway led the rankings.
7 11 51 16 71 62 13 No data 53 88 No data 58 89 No data 20 No data 105 No data No data 102 14 No data 75 No data 63 No data 74 112
CAMBODIA AFGHANISTAN
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111
15
LEADERSHIP
DEATH PENALTY
A plea for humanity Journalist CINDY WOCKNER recounts the final hours of Australian drug traffickers Myuran Sukumaran and Andrew Chan in Indonesia and explains why she is campaigning for the death penalty to be outlawed.
M
yuran Sukumaran and Andrew Chan got what they did not deserve. They did not deserve to be tied up to wooden crosses and shot dead in the early hours of the morning in April 2015. Nor did the six others who were with them in the darkness. Their parents did not deserve the torture they were forced to endure for months and weeks beforehand and the torment of knowing they had just 72 hours left. They did not deserve that final painful farewell, walking away knowing they would never see their sons again. The jail guards and officials who respected and liked Myuran and Andrew did not deserve, through duty, to be forced to police those final hours. The 96 men of the firing squads did not deserve their job of sighting the beating hearts, using red laser beams, and then silencing those hearts. I did not know the six people who were executed with Myuran and
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"The 96 men of the firing squads did not deserve their job of sighting the beating hearts, using red laser beams, and then silencing those hearts."
Andrew that night but I had met some of their relatives and heard some of their stories. I know they all had families who loved them. But I did know Myuran and Andrew. I was in Bali when they were arrested in 2005, all full of swagger and bravado and smart-alec quips, full of everything except contrition. And I was
in that small town in Central Java called Cilacap on the night they were shot dead, 10 years and 11 days after they were arrested. True, Myuran and Andrew had been convicted of heroin trafficking. They had admitted their role in attempting to bring 8.2 kilograms of heroin from Bali to Sydney. They had been found guilty
LEADERSHIP
of a very serious crime and one that would have brought untold misery to those who used that heroin and to their families. They deserved to be punished and severely. They knew that. They never asked to be freed. All they asked for was an acknowledgement that they had been rehabilitated and for their good deeds to matter. When I first met Myuran and Andrew at the Denpasar police headquarters the day after their arrest, they were brash and bold. Andrew suggested that what happened to Schapelle Corby happened to him. Back then, I was ambivalent about them. Certainly there were not many reasons to have sympathy for a group of people caught red-handed with drugs. As a crime reporter for most of my career I had seen plenty of criminals come and go, many refusing to admit guilt in the face of overwhelming evidence, lacking in any kind of contrition. But this story turned out to be different. There was not one moment that I doubted their reformation and rehabilitation was genuine. True, the death penalty provides a powerful incentive to reform or pretend to reform. People would often ask me if I believed the transformation was genuine or an act. As I got to know them better I became more convinced it was real. When their jail projects were in their infancy and before Myuran had even picked up a paintbrush, his enthusiasm was infectious. He was so excited he couldn’t stand still as he showed me around the jail workshop and computer room. He kept telling me how happy he was to have finally found something worthwhile to do in jail and how he was becoming a better person. Andrew was the same as he talked of helping others through his Christian ministry, giving examples of lives that had turned around and of souls that had been saved. As the projects grew, so too did Myuran and Andrew. As a journalist my job dictates objectivity and neutrality. I don’t have
to like or dislike those I write about. I just need to tell the story, accurately and honestly. Of course, it’s human nature to feel compassion. And when you spend 10 years covering a story like this one, it’s difficult not to feel compassion. For the first few years after their arrest and as their legal cases came and went I saw them regularly at various jail events and at court. They were still brash and not very likeable. They tolerated me but they didn’t trust me. I didn’t care too much what they thought. It was in 2010 when I got to know them better. The jail boss had allowed me inside for several days to interview the Bali Nine and see how they were beginning to transform the jail. I was allowed into their cells, in the so-called death tower. Nothing was off limits. They asked me to bring them McDonald’s. Those final 72 hours in Cilacap were excruciating. I will never forget arriving in Cilacap soon after Myuran and Andrew had been read their death warrants. I was directed into the hotel meeting room being used by the legal team and the Australian Government. One of the first people I saw was lawyer Veronica Haccou. I looked at Veronica and collapsed in her arms, sobbing and sobbing. Barrister Julian McMahon stood silently and stoically nearby. I just couldn’t believe, after all these years, Myuran and Andrew were actually going to be killed. It was like we were all in shock. My grief was nothing compared to that of the families.
"I just couldn’t believe, after all these years, Myuran and Andrew were actually going to be killed."
Then there was the dreadful day, the last day of Myuran and Andrew’s lives, when, as the family walked through a media and police throng to get to the port to pay their last visit ever, Myuran’s sister, Brintha, howled and cried. She had to be carried through the crowd. It was agonising to hear and watch. When they did die, I stood silently at the dusty, hot and noisy Cilacap port, looking to the night sky for a few seconds as the generators whirred around me, phones rang and television reporters did live crosses to Australia and Jakarta and the world. I had no words, just disbelief and a deep, overwhelming sadness, a kind of sadness I still can’t adequately put into words. But I can feel it, I can taste it, every time I think about that dreadful night. My Balinese assistant, Komang Erviani, who had been by my side on this journey for so many years, was on the phone to Mary Jane Fiesta Veloso’s lawyers who were over on the island in the waiting area for families and officials. They were telling her how the authorities had cruelly let Mary Jane’s sisters believe, as they heard the shots fired, that she, too, was dead. Myuran’s brother Chinthu called me from the hotel where the Australian families were huddled together, praying and waiting for news. He begged me to tell him, his voice cracking, was it over? Was I sure they were dead? I have to tell Mum, I have to be sure before I tell my family. Is it true that Mary Jane was spared? Maybe Myuran was saved too? They are gone, I told him. There was nothing left to say. It was wrong. The death penalty is abhorrent. Myuran and Andrew were reformed, and killing them was so utterly pointless. By shooting them, Indonesia lost the best anti-drugs ambassadors they could ever have had. g Extracted from The Pastor and the Painter by Cindy Wockner (Hachette).
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OPINION
LAW AND POLITICS
Lawyers and politics: should they mix?
The Chief Justice of Australia’s Supreme Court of NSW, TOM BATHURST AC, considers if and when it is appropriate for lawyers and professional legal bodies to speak out on political issues.
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he narrowest ground on which lawyers might justify political intervention is when members of the legal profession are directly affected. At the International Bar Association (IBA) Conference in Sydney last year, representatives from bar associations and law societies spoke about the attitude of their professional
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bodies to political participation. An example of an approach grounded in purely professional interests can be found in the British profession. The Executive Director of External Affairs for the Law Society of England and Wales used the example of Brexit to illustrate their general policy. He explained that the Law Society did
not take a position on Brexit since it purported to represent up to 160,000 solicitors who held a multiplicity of views on the issue. Rather than “take a full-throated position [on] … an intensely political and controversial issue for the United Kingdom” the Society claimed to support its members on a series of more narrow issues. For instance, the Society supported retention of membership of the single market, since leaving the single market would deprive UK lawyers of the ability to practise in the EU. As regards immigration, the Society claimed not to dictate policy but rather to focus on professional interests, supporting policies which allowed skilled migration so lawyers could come and work in UK law firms. In this way, the Law Society claimed to avoid “taking a big policy decision but nevertheless doing things that we think are in the interests of our members and society”. This reflects what has been described as the “trade union role”, leading to involvement in policy issues which impact directly on lawyers. As law societies and bar associations exist to represent the profession, it is quite appropriate that in that capacity they speak out and seek to influence policies which affect the lawyers they represent. A second possible criterion is in response to perceived threats to the rule of law. In this vein, former High Court of Australia Chief Justice Sir Gerard Brennan has suggested that “the lawyer’s public role … is to advocate the importance of preserving the safeguards of the rule of law unless it is tolerably clear that any proposed abrogation of the traditional laws, practices and procedures is necessary to protect the community, and that the abrogation is proportionate to the apprehended harm and has a substantial prospect of achieving the desired protection”. By addressing thorny issues such as migration and security through the prism of the rule of law, lawyers remain planted within their area of
OPINION
expertise. This was a concern evident in the remarks of representatives at the IBA Conference last year. Many of the represented associations argued that, while they did not have a voice in politics or a right to dictate policy, they had a mandate to ensure that any policy emanating from their government complied with the rule of law. The Vice President of the German Bar Association stated that the German Bar Association was “not in a position to take a political view”, both because it was forbidden by statute and because it was charged with representing lawyers with a wide range of political opinions. Nevertheless, one of its obligations was to scrutinise legislation for compliance with the rule of law. This meant, in particular, a focus on procedural rights. In the context of migration and security, this obligation manifested in the form of ensuring that immigrants had access to legal advice and that those charged with offences were provided a legal defence. Defence of the rule of law has taken on renewed significance in the current international political climate and the rise of populist sentiment. As former High Court of Australia Chief Justice Robert French pointed out in his 2017 Sir Ronald Wilson Lecture, the legal system is often set up as the adversary of populist movements. To define “populism”, the former Chief Justice drew on a report of the General Secretary of the Council of Europe, which described the term not as “a catch-all label for every person or movement which rocks the establishment” but rather as a description of “those who invoke the proclaimed will of ‘the people’ in order to stifle opposition and dismantle checks and balances which stand in their way”. Understood in this sense, French said populism represents a threat to the rule of law. “While politicians, frustrated by judicial decisions, will often blame the law in question and seek legislative reform, the populist response to decisions hindering their
political agenda is to blame the courts themselves,” he said. Thus an inevitable clash is established between populist movements and lawyers who seek to preserve the democratic processes and institutions which underpin our government and legal system. While this may appear to embroil lawyers in politics, who else can be charged with championing the rule of law if not the legal profession? This does not mean courts cannot be criticised, but it is not conducive to the rule of law to criticise judgments or, more particularly, judges who are merely applying a particular law that the critic deems unpalatable. This can be avoided by a clear understanding of the judgment in question. The difficulty with the rule of law as a criterion for intervention is that it is far from being an objective and uncontested concept. Indeed, its authority is invoked in support of both sides of the ideological divide. While conservatives tend to rely on thinner, procedural conceptions of the rule of law, progressives argue that procedural compliance alone is insufficient and that a conception of the rule of law unaccompanied by values of substantive equality is better labelled “rule by law”. Lord Goldsmith, for instance, posited that “the rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society”. In his famous book on the rule of law, former British judge Lord Bingham roundly rejects a thin definition on the basis that “a state which savagely represses or persecutes
"Who else can be charged with championing the rule of law if not the legal profession?"
sections of its people cannot … be regarded as observing the rule of law” no matter how detailed, duly enacted or scrupulously observed are the laws which allow such persecution and repression. Such an example of the insufficiencies of too thin a conception of the rule of law are provided by the case of apartheid South Africa, where the white rulers were “unusually conscientious about securing statutory authority for their abuses” and exercised oppression “not by the random terror of the death squad but by the routine and systematic processes of courts and bureaucrats”. As the Truth and Reconciliation Commission found, it was ultimately “not enough for South African lawyers to parade the sovereignty of Parliament as if that alone explained (and excused) their conduct”. Depending on one’s understanding of the rule of law, it may provide “the framework within which we can enjoy our rights and freedoms”, but not necessarily guarantee them. This brings me to the third basis on which professional legal bodies may claim a mandate to speak in politics: the protection of human rights and civil liberties. It is here that legal bodies meet the strongest ideological opposition. In the UN Basic Principles on the Role of Lawyers, lawyers are obliged to “seek to uphold human rights and fundamental freedoms recognized by national and international law”. The special role of lawyers in defending human rights is justified on a number of grounds, typically along the lines that lawyers are the guardians of individual rights in litigation, that human rights are part of the international legal order, and that lawyers are well-positioned to understand the consequences of an erosion of individual rights. Around the world, we frequently see lawyers taking up the mantle of human rights advocacy. For example, late last year in Pakistan, following Bar Association meetings across several districts, lawyers engaged in demonstrations
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and boycotts to protest the persecution of Rohingya Muslims in Myanmar, demanding their government use diplomatic channels to prevent further breaches of human rights. This more substantive, proactive ground for intervention is evident in the attitude of the American Bar Association (ABA), which frequently takes substantive policy positions on political issues. The ABA is commonly known to submit amicus curiae briefs in support of constitutional rights and is vocal in its advocacy of predominantly liberal causes. This approach, however, does not go uncriticised – take Republican Senator Ben Sasse’s condemnation of the ABA in the Senate in his attempt to discredit the Association’s assessment of judicial candidates: “The ABA cannot make liberal arguments to the nine members of the Supreme Court,” he argued, “and then walk across the street and seriously expect that the hundred members of this body, in the United States Senate, will be treating them like unbiased appraisers.” The difficulty is that human rights occupy “the hinterland between law and politics”. While it would be hard for anyone to argue that legal bodies should not intervene in gross abuses of fundamental human rights, the question of what constitutes those rights worthy of protection, and in what situations those rights are unjustifiably impinged, are more difficult questions. The advantage of using human rights as a ground for lawyers’ intervention is that it invokes a familiar legal language and can in fact abstract the debate from contentious political issues into a more rational legal frame. However, using human rights as “the steer through shark-infested political waters” is not a failsafe. Where is the profession left when rights conflict? Often certain freedoms and civil liberties will lie on both sides of the political equation; where the individual lawyer falls is a matter of personal ideology. A second consideration – one which 20
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"Lawyers' voices can and should be more prominent in correcting and educating the public about the existing state of the law. This is a duty that takes on added significance in the age of 'fake news'." distinguishes the Australian position from the American one, for example – is the constitutional setting. While the ABA may structure its policy positions and curial interventions around civil liberties codified in the US Bill of Rights, the Australian Constitution does not confer rights on individuals, but rather limits government power. Rights discourse primarily draws support from international norms, which are bolstered by political rather than legal arguments. Legal bodies in Australia are thus faced with a flimsier frame on which to hang substantive rights-based interventions. The situation may be different for lawyers in Victoria and the ACT who might use the Charters of Human Rights existing in those jurisdictions as a platform for greater intervention in the protection of rights, as does the introduction of some of the international norms into Australia as a result of the ratification of treaties or international conventions. In taking on this higher level of activism, however, legal bodies in those jurisdictions risk the same partisan labelling seen in the United States. While there is general consensus among legal bodies that breaches of fundamental human rights demand professional action, each association, depending on the unique socio-political conditions of their home country, must
draw the difficult line as to where civil liberties shade into those rights and freedoms that are subject to a more political calculus. At the heart of the lawyer’s public role is an inherent tension. Just as we see a conflict between choosing substantively just causes in the representation of clients and providing procedural justice in the form of universal access to the legal system, the lawyer in social and political debates has a role both conservative and progressive. On the one hand, the lawyer forms part of the governing institution, being a member of the legal system and officer of the court. In this role, they have a duty to protect, and preserve confidence in, legal institutions. We see this role enacted in the defence of democratic structures against populist attack. On the other hand, the lawyer is an independent check on government and custodian of rights and liberties. In this role, they are specially positioned to agitate for social change. It is because of this dual function that lawyers must take their role in public debate seriously. They have the capacity to either confer legitimacy on, or withdraw legitimacy from, the acts of governments. In no image is this better captured than in that of the 3,000 lawyers marching towards Tahrir Square in their black robes during the Egyptian revolution. Through their monopoly on legal knowledge and authority, lawyers speak with enhanced “symbolic capital”. This means they have a greater responsibility in speaking out against injustice yet, equally, they must be careful not to destroy the credibility or authority of governing institutions when it is unwarranted. This brings me to consideration of the responsibilities of the individual lawyer in public debate. As an individual, a lawyer is given much greater freedom to publicly express a personal political opinion. This will, of course, be moderated by their position in the legal community. As a judge who is charged with appearing independent and unbiased, expressions of political
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Planting Democracy in Tahrir Square; 12 February 2011. Author: Carlos Latuff
views are severely limited. By contrast, academics are frequently called upon to contribute a legal perspective on political events and respond to media enquiries. As a lawyer who is also an engaged citizen, contribution to public debate, far from being discouraged, may in fact be considered a duty. But to think a lawyer can ever speak in a purely personal capacity, disassociated from their profession, is probably naïve. This begs the question, should the public contributions of a lawyer be in some way regulated or constrained? There is a spectrum of roles lawyers may take in public debate. On the one end is the traditional lawyer-technician, who puts forward the strictly legal implications of executive or legislative action and considers further comment on social and political consequences as outside their remit. This detached approach has its advantages in heated public debate by employing a rational, almost scientific method of reasoning and a unique lawyerly perspective. At the other end is the social campaigner who forcefully advocates for a particular political point of view, with the assistance of the law, and ventures into topics beyond the strict confines of their lawyerly expertise, largely on the basis that there is in fact no strict division. Of course, lawyers are people
beyond their profession and have opinions worthy of public expression. Using the law to supplement a personal ideological opinion is another way of contributing to thorough debate. Both modes of contribution have their place, so long as the lawyer does not distort or misrepresent the legal situation; nor can it hurt to take a leaf from their legal education and avoid reductionist or absolutist language. Essentially, lawyers in the ‘personal’ sphere should be guided by their own preference for political participation, but be always mindful of the profession they carry with them. One area in which lawyers’ voices can and should become more prominent is in correcting and educating the public about the existing state of the law. This is a duty with which lawyers are charged under the rule of law and takes on added significance in the age of “fake news”. Initiatives taken by bar associations overseas give an idea of
"Lawyers cannot and should not ignore matters which impact on the rule of law."
the type of influence lawyers can have in this space. During the Brexit debate, for instance, the President of the Law Society of England and Wales made multiple media appearances to explain to a non-legal audience the difference between the European Court of Justice and the European Court of Human Rights, a distinction that was often confused in discussions about leaving the European Union. Meanwhile, the ABA has established a legal fact check website which responds to legal misinformation or confusion in the news. As an example, when President Trump, in one of his notorious tweets, suggested that anyone who burned an American flag should have their citizenship revoked, the ABA clarified, through its fact check website and by reference to case law, that according to the present state of constitutional law, such acts were protected under the first amendment. Lawyers cannot and should not ignore matters which impact on the rule of law and matters affecting the ability of all persons to get fair and impartial justice. For them not to do so would, in my view, be an abdication of responsibility. The same may be said for professional associations of lawyers. Beyond that, lawyers, as individual citizens, have a right to express views as politically partisan as they like. Informed debate on issues is fundamental to the successful operation of a democratic system, provided the lawyer’s contribution is not such as to bring the profession or the rule of law into disrepute. By contrast, professional associations should, generally speaking, confine their comments to matters of policy, as distinct from matters of partisan politics. I recognise that the line is not easy to draw. One advantage of being a judge is that, generally speaking, we are consistently advised to keep quiet. g This is an extract of Chief Justice Bathurst's keynote speech delivered at the Opening of Law Term dinner in Sydney, Australia, on 31 January 2018.
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HUMAN RIGHTS
MICHELLE SANSON, a human rights lawyer, has been working on the ground in Bangladesh supporting the safety, dignity and rights of Rohingya refugees fleeing persecution in Myanmar. She tells her story.
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Alongside our cover person, 12-year-old Jaane,
children in a refugee camp in Bangladesh draw pictures of what they witnessed in Myanmar. Inside a UNICEF child-friendly space, supported by UK Aid, art therapy and counselling help Rohingya children recover from the trauma they have experienced. The drawings above depict helicopters bombing people in playgrounds, people hanging from trees, houses burning, and people covered in red crayon. Photo credit: Anna Dubuis /DFID.
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I
n Cox’s Bazar in Bangladesh, known in tourism circles as the longest beach in the world, there’s a flurry of activity. More than 680,000 persecuted Rohingya have crossed over from Myanmar since the early days of atrocities in late August 2017, the fastest en masse human movement since the Rwandan genocide in 1994. In the burgeoning camps it is virtually impossible to find an entire family intact, a family without any member having experienced physical or sexual violence, or having witnessed unspeakable crimes – "textbook ethnic cleansing", according to the UN. Despite coming into one of the poorest parts of Bangladesh, and greatly outnumbering the host population, there are few overt signs of tension. It is difficult to comprehend the situation unless you’re there. There is no doubt that suffering breeds incredible resilience. The Rohingya have been described in many speeches and articles as “the most persecuted people on earth”, a stateless people facing decades of human rights violations including discriminatory local orders, confiscation of land, control of movement, forced labour, forced displacement, arbitrary detention, enforced disappearances, torture, summary executions, and systematic sexual violence at the hands of the military, Rakhine Buddhists and others. One striking feature of the Rohingya people is a sense of resignation to injustice. There have been times when people have missed out – maybe a truck has broken down and humanitarian assistance can’t reach the distribution point, maybe recently self-appointed leaders have influenced who has and has not received assistance, maybe someone has been randomly handing out cash to some and not others, maybe a latrine has been constructed without anything
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BANGLADESH MYANMAR COX'S BAZAR ↗
underneath it, a well has been dug but not deep enough – and yet there is acceptance. If 100 people were stuck in a movie theatre and some were given a free drink and others missed out, there’s no way those others would just shrug and wait in hope for a drink, but if you have repeatedly missed out on access to basic services and rights, maybe you lose your sense of moral outrage. Maybe it’s all you expect.
Making space
For a country with a population of 163 million on a land mass about one-third the size of Malaysia, making space for hundreds of thousands more people is not easy. Despite not being a signatory to the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol, the government of Bangladesh has allocated 121 hectares of land, including precious forest, to accommodate the Rohingya. It is always truly amazing how those with the most compassion are those who have themselves suffered. Many of the local Bangladeshi people struggle from week to week. Life is not easy for them, and yet they recall the suffering of their own people
during the 1971 Bangladesh genocide and they know that, just as they were given refuge, so too must they give refuge to those whose lives depend on it. Day by day, the forest is stripped to make way for shelters, and the massive need for firewood is vastly outstripping supply. Children are spending hours each day in search of firewood, carrying large bundles on their heads through a sea of black plastic and makeshift bamboo shelters. A child goes out and does not return – lost, kidnapped, trafficked – it is all unclear. It’s in situations like these where the fundamental tenets of human rights law – being inherent, universal, inalienable, interrelated, interdependent and indivisible – can grate against reality. The rights remain; there is no doubt about that, but there are highly complex dynamics that determine who enjoys what.
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Advisory Commission on Rakhine State report
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A view of the
sprawling Kutupalong refugee camp near Cox's Bazar, Bangladesh, where more than 680,000 people have arrived since August 2017. Photo: Flickr
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Devastation in a camp
for internally displaced people in Sittwe, the capital of Rakhine State, Myanmar. The camp was built as a temporary measure in 2012.
On 23 August 2017, the Advisory Commission on Rakhine State, led by Kofi Annan, released its final report after a year-long investigation. The report recommended urgent and sustained action to prevent violence, maintain peace, foster reconciliation and offer a sense of hope. Recommendations included citizenship verification, equality before the law, documentation, and freedom of movement, which affects the Muslim population disproportionally. The commission proposed a ministerial-level appointment with the sole function of coordinating policy on Rakhine State and ensuring the effective implementation of the commission’s recommendations.
Photo: Flickr
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"Day by day, the forest is stripped to make way for shelters, and the massive need for firewood is vastly outstripping the supply."
For example, it’s not easy for newborn Rohingya children to enjoy the right to birth registration in the middle of a sprawling camp, or the right to acquire a nationality in circumstances where both parents have been denied this and where their host government’s immense generosity does not extend to citizenship, as it is hoped the displacement will be short lived. It’s not easy to enjoy the right to enter into marriage during adulthood and with free and full consent when parents are already accustomed to seeing it as their decision and, in the refugee camp, the groom’s parents want someone to cook and clean for them, and the bride’s parents want one less responsibility, one less mouth to feed. Worse still are cases where marriage is used as a form of “justice” for a girl who has been sexually assaulted, requiring the perpetrator to marry her. It is not easy for the host community children to enjoy their right to education when their schools are accommodating some of the most vulnerable displaced Rohingya, or for some of the Rohingya children whose only access to a learninglike environment are rapidly established “child-friendly spaces”. And how can you focus on education when what you really need, based on the significant trauma you have suffered, is psychosocial support? 26
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A Rohingya mother and her children in a refugee camp in Bangladesh.
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When so many people have suffered in such tremendous ways, have seen people they know raped and murdered, burned alive, drowned, hacked to death with a machete, and when the sheer need vastly outstrips the capacity of service providers, how do you achieve a right to health? And in an economy where local people often eke out a simple living, performing basic tasks, how can the right to work be afforded to the entire influx without undermining every other right of the host population to a minimum – if not adequate – standard of living? With the immense strain on water and natural resources, and the greatly heightened risks of disease outbreaks (already the World Health Organisation has reported 5,511 cases of suspected diphhtheria, with 38 deaths), how can one even speak of rights and freedoms without sounding like a walking textbook? The World Bank reports that Bangladesh has made “substantial progress in reducing poverty, supported by sustained economic growth”. “Based on the international poverty line of $1.90 per person per day, Bangladesh reduced poverty from 44.2 per cent in 1991 to 18.5 per cent in 2010, and is projected to decrease to 12.9 per cent in 2016,” the World Bank reported. However, it notes that more than 28 million people (in a population of about
"When so many people have suffered in such tremendous ways, have seen people they know raped and murdered ... how do you achieve a right to health?"
160 million) are still living below the poverty line and that the Rohingya refugee crisis in southern Bangladesh is “growing at a rapid pace”. “There is an urgent need to support the host communities to cope with the influx and to help the refugees who are extremely vulnerable,” the World Bank reports. It’s true that the human cost of hosting the influx is being felt on both refugee and host communities. An emergency assessment shows levels of acute malnutrition well over the emergency thresholds of the World Health Organization, at 24.3 per cent global acute malnutrition and 7.5 per cent severe acute malnutrition. Organisations such as the World Food Programme are stepping up to the challenge, providing nutritional supplementary foods for some 27,000 pregnant and breastfeeding mothers and more than 100,000 children under five years of age, as well as food or vouchers for the whole refugee population and livelihood support for the most vulnerable members of the host community. This does not even touch upon other topics, including the environment or the elephants – a glorious endangered species whose forest home has progressively shrunk. Eleaid Trustees, a British NonProfit organisation working for the conservation and welfare of the Asian Elephant, reports that Bangladesh’s elephant population is “possibly the most threatened in Asia”. On the one side, these gentle giants have lost habitat to the refugee camp, and on the other side they have to contend with landmines along the Myanmar border. In the initial weeks of displacement, some unsuspecting Rohingya set up their flimsy shelters on less dense ground, which turned out to be elephant tracks and, despite surviving the Myanmar army and a river crossing, were crushed as they slept. Since then, a human tide has swept away the elephant’s habitat.
The Rohingya: a brief history After Myanmar's independence from the British in 1948, the Union Citizenship Act was passed, defining which ethnicities could gain citizenship. The Rohingya were not included. The Act, however, did allow those whose families had lived in Myanmar for at least two generations to apply for identity cards. Rohingya were initially given such identification or even citizenship under the generational provision. During this time, several Rohingya also served in parliament. After a 1962 military coup, things changed. All citizens were required to obtain national registration cards. The Rohingya were only given foreign identity cards, which limited their jobs and educational opportunities. In 1982, a new citizenship law was passed, effectively rendering the Rohingya stateless. Under the law, Rohingya were not recognised as one of the country's 135 ethnic groups. The law established three levels of citizenship. To obtain the most basic level (naturalised citizenship), proof that the person's family lived in Myanmar before 1948 was needed, as well as fluency in one of the national languages. Many Rohingya lack such paperwork because it was either unavailable or denied to them. As a result, their right to study, work, travel, marry, practise their religion, and access health services have been and continue to be restricted. First published on Aljazeera: aljazeera.com/indepth/features/2017/08/ rohingya-muslims-170831065142812.html
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LAWASIA action on Myanmar Following the release of the Advisory Commission on Rakhine State report in August, LAWASIA established a task force in respect of the Myanmar crisis, chaired by lawyers Shyam Divan and Justin Dowd. On 12 February 2018, the taskforce met with Stefan Preisner, the UN Resident Coordinator for Malaysia, and Tan Sri Razali Bin Ismael, Chairman of the Malaysian Human Rights Commission with whom LAWASIA will collaborate. The taskforce will provide reports and recommendations to LAWASIA on humanitarian and rule of law issues in the region for publication in the coming months. LAWASIA has urged the Myanmar government to study the Commission's report and implement the recommendations therein, or a substantial part thereof.
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A young boy playing at sunset in the camp near Cox's Bazar. Photo: Michelle Sanson
Their tracks are now absorbed into the world’s largest refugee camp housing 585,000 people. Suffice to say, life is not easy for the refugee or host populations and they are both doing an incredible job of making ends meet.
A shared humanity
We are one human family and we share obligations towards one another arising from our shared humanity. Notions of sovereignty and territory bring with them a sense – for those with the good fortune to have been born or accepted into a place with a strong economy and system of law and order – that one is entitled to enjoy a prosperous life. Instead of recognising this unearned opportunity, we hear opinions about
“those people over there” being lazy and dependent, countries near them should take them, it’s not our problem. Sadly, the relative absence of suffering leads to a relative absence of compassion. Keith Suter, a global futurist and media commentator, once said, “Experience shapes perception. If the experience changes, then so will the perception. You don’t think your way through to a new way of living – you live your way through to a new way of thinking.” How can we transfer a real sense of the suffering of the Rohingya into the lives of those who are blessed without suffering, to herald them through to a new way of thinking about the world and about human rights?
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Snapshot: the Rohingya crisis More than 680,000 Rohingya have fled to Bangladesh to escape mass killings, sexual violence and other abuses amounting to crimes against humanity by the security forces. Doctors Without Borders estimates the army killed at least 6,700 civilians, including 730 children, in a single month in 2017. Until August 2017, the Rohingya population
"In Kutupalong camp in Cox’s Bazar, the sun is setting, the humanitarians are departing for the day, the struggle to be in the right line to get the right parcel of assistance is paused, and a sense of calm descends."
in Myanmar was estimated at about one million, though precise figures do not exist as the Rohingya were excluded from the 2014 census. The Myanmar military and government appointed multiple investigative commissions on the 2016-2017 violence, but each engaged in whitewashing, denying any unlawful killings. The government repeatedly
Certainly it cannot be achieved in university halls, and yet, on the other hand there are many who jump to judge the “white saviour” complex of those who rush out and try to help, taking “selfies of suffering” to post on Facebook and Instagram alongside trite motivational quotations. Do those who suffer have the right not to be made a pawn in the social media persona of others? Do they have a right to dignity in their suffering? Or is it necessary to expose them to this further indignity on top of their persecution, displacement and ongoing suffering in order that the lucky people can live their way to a new way of thinking? Back in Kutupalong camp in Cox’s Bazar in southern Bangladesh, the sun is setting, the humanitarians are departing for the day, the struggle to be in the right line to get the right parcel of assistance is paused, and a sense of calm descends. As some men and boys use the last of the light to play a quick ball game, there are women and adolescent girls preparing for nightfall’s reprieve from four black plastic walls, when they can emerge from their shelters to sneak
stated it would not grant access to members of a United Nations Fact-Finding Mission, created by the UN Human Rights Council in March 2017 following attacks on the Rohingya in late 2016. Religious minorities continue to face persecution in a country that is 88 per cent Buddhist. Source: Human Rights Watch, Doctors Without Borders
somewhere to wash or defecate, collect water and resume purdah (the social seclusion of women) before first light. The nights can be difficult for those without a solar torch; they can be risky with unlockable shelters and latrines, particularly for the 14 per cent of households which are headed by females, and the 4 per cent which are headed by children. The nights can also bring back into focus the traumatic experiences from a night not too long back when they awoke to an attack and fled for their lives. Their rights remain the same as ours and everyone else’s, but their opportunity to enjoy them is slight. That is the rhetoric and the reality of rights, particularly in times of crisis and displacement. Fortunately, the right that matters most for the Rohingya – the right to life – is being protected by the humble compassion of the poor people of Bangladesh and the generosity of donations for humanitarian assistance. g MICHELLE SANSON works for RedR Australia and the United Nations in warzones overseas.
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most significant world events in
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Last year, many people were asking if 2016 was the worst year ever. While very few people are making similar claims about 2017, it still produced its fair share of significant world events. JAMES LINDSAY shares his Top 10 list, in descending order.
Robert Mugabe’s ouster Can someone be both a hero and a villain? The career of Robert Mugabe suggests the answer is yes. Like Nelson Mandela in South Africa, Mugabe endured years in prison to lead the movement that ended white minority rule in his country, then known as Rhodesia, but known today as Zimbabwe. That victory for human decency is to his credit. But unlike Mandela, Mugabe never grasped that democracy means letting go of power. He ran Zimbabwe for 37 years and planned to rule for longer, even if that meant running the economy into the ground and becoming increasingly ruthless. His presidency ended only when tanks rolled into Harare in November to force him from power. The trigger was his decision to shove aside his vice president, Emmerson Mnangagwa, in favour of his wife, Grace. The 75-year-old Mnangagwa had been Mugabe’s associate for more than half a century. Rather than go quietly, the man known as “the Crocodile” because of his ruthlessness struck back. Mugabe quickly lost the support of his party, the Zimbabwe African National Union – Patriotic Front (ZANUPF) and, after some hesitation, finally resigned. Zimbabweans rejoiced at the news of his ouster, and Mnangagwa promised to hold new elections in 2018. Based on his early decisions, however, the new boss looks a lot like the old boss.
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Britain triggers Article 50
The Rohingya crisis
The fall of Mosul
The June 2016 “Brexit” vote was merely advisory. Actually initiating divorce proceedings from the European Union (EU) required Britain to invoke Article 50 of the Lisbon Treaty. The move “from which there can be no turning back” finally came on 29 March. Britain now has until 29 March 2019 to negotiate the terms of its departure. Prime Minister Theresa May tried to shore up Britain’s weak negotiating leverage by calling a snap election. The decision backfired; her Conservative Party lost its parliamentary majority and she ended up leading a hung parliament. In early December, Britain and the EU reached an agreement on several critical preliminary issues, including how much Britain has to pay to settle its debts to the EU (somewhere between €40 billion and €60 billion). Assuming that deal holds, the two sides can now focus on the rules that will govern their future economic relationship. Those negotiations will likely be difficult; EU members have yet to agree among themselves on what terms to offer and the British Parliament has asserted its right to vote on the final agreement. Unless a deal is signed, sealed, and delivered by 29 March 2019, or a unanimous EU agrees to an extension, Britain faces a “hard Brexit”. That would maximise how much disruption its divorce from the EU causes. The clock is ticking.
The Rohingya may be the most persecuted minority group in the world. They have lived in Myanmar for centuries. Most of them are Muslims, though some are Hindus, in a country in which nearly nine out of 10 people are Buddhists. The Rohingya have long been discriminated against, often violently so, and the Myanmar government refuses to acknowledge them as citizens. The latest and ugliest surge of violence began in August when Rohingya began fleeing into neighbouring Bangladesh telling stories of mass killings, systematic rape, and torture. At last count, more than 400,000 have fled Myanmar and thousands more have been displaced internally. The Myanmar military denies committing atrocities, insisting that it is combating attacks on police posts and army bases by Rohingya insurgents. But it’s clear, as the US government has charged, that the Myanmar government is engaged in ethnic cleansing. Aung San Suu Kyi, a recipient of the Nobel Peace Prize and Myanmar’s most prominent official, has done little publicly to end the violence. That’s probably because the military still runs the country despite the political opening of the past few years.
ISIS shocked the world in June 2014 when its forces captured Mosul, Iraq’s second largest city. Within a month, ISIS had declared a new caliphate. Although President Obama once dismissed ISIS as “the JV”, it proved to be a stubborn foe. Finally, in October 2016, Iraqi and Kurdish soldiers, backed by Britain, France, and the United States, as well as by Iran, launched an offensive to liberate Mosul. In June 2017, after a three-year-long occupation, the city was finally liberated. The cost was high. Perhaps as many as 40,000 civilians died in the fighting and another million were displaced. The city itself was devastated and will take years to rebuild. Unfortunately, the liberation of Mosul did not resolve the divisions that bedevil Iraq. In September, Iraqi Kurds voted for independence, which triggered clashes between the Iraqi army and Iraqi Kurds. The Iraqi government, with the help of Iran, seized control of the oil-rich province of Kirkuk from the Kurds. By the same token, the loss of Mosul didn’t mean the demise of ISIS. The group has a cyclical history, waxing and waning in strength over time. As its territorial control diminishes, it’s likely to revert to its insurgent roots. All in all, Iraq’s future remains troubled.
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The remaking of Saudi Arabia
Global growth picks up
The globe continues to warm
Saudi Crown Prince Mohammad bin Salman (MBS) is a young man in a hurry. Back in June, his father, Saudi Arabia’s King Salman, made the 32-year-old his heir, after deposing the previous crown prince, the king’s nephew and MBS’s cousin, Mohammed bin Nayef. MBS immediately got to work. His vehicle for remaking the country is Vision 2030, a two-year-old initiative that seeks to modernise Saudi Arabia’s economy and society. The idea is to prepare the country for a post-oil future and to loosen its conservative social strictures. The former goal has Saudi Arabia proposing to take its stateowned oil company, Saudi Aramco, public, while the latter has it allowing women to drive. MBS moved quickly to consolidate power. In November, he had 11 of his cousins arrested on corruption charges. (Their jail cell was a RitzCarlton.) President Trump applauded the move. But MBS isn’t only looking inward. He is moving aggressively to counter Iranian influence in the region. He championed Saudi Arabia’s intervention in Yemen in 2015, which created a humanitarian disaster for Yemenis and a quagmire for the Saudis. He also pushed for a Saudi-led embargo of neighbouring Qatar. Some experts think MBS is Saudi Arabia’s best chance for a moderate and prosperous future. Others worry he is reckless. Much hinges on which side is right.
Ten years after the Great Recession started, global economic growth is accelerating and stock markets around the world are hitting record highs. The International Monetary Fund (IMF) said in October that “The outlook is strengthening, with a notable pickup in investment, trade, and industrial production, together with rising confidence.” The IMF added the caveat that “recovery is not yet complete”. However, even cautious optimism has been in short supply for nearly a decade. The IMF predicts that global economic growth will average 3.6 per cent in 2017. That’s a half percentage point higher than in 2016. The Eurozone has been a particular bright spot – growth there is at a 10-year high and unemployment is at a nine-year low. The US economy grew 3.3 per cent in the third quarter of 2017, a three-year high, and unemployment is the lowest it’s been since 2000. China looks to be beating its target of 6.5 per cent growth in 2017, though it continues to face risks. Even Russia, which has struggled for several years because of low oil prices and sanctions over Ukraine, is seeing modest growth. The big question is whether good economic news will give a political lift to globalisation by tamping down rising protectionist and nationalist impulses around the world.
The news is not good. The earth is getting warmer, whether people believe it or not. In September, the US National Oceanic and Atmospheric Administration (NOAA) announced that 2017 was shaping up as the second warmest year on record. What is the warmest year? 2016. The other eight warmest years on record have all occurred since 1998. Do the devastating hurricanes that struck the Caribbean last summer, causing upward of $290 billion in damage and displacing hundreds of thousands, prove that human activity is changing the climate? No. After all, catastrophic storms aren’t new, and storms may create more havoc today because societies are denser and more dependent on modern amenities. Still, the dramatic melting of the Arctic and Antarctic and of glaciers around the world is something climate scientists have been predicting for decades. And it’s basic physics that warmer ocean temperatures mean bigger storms. But the mounting evidence that the climate is changing hasn’t moved governments to make substantial reductions in the emission of heat-trapping gases, even if only as an insurance policy against the fact that climate scientists might be right. President Trump announced in June that the US would leave the Paris Climate Agreement, and words have been more common than deeds in other foreign capitals. The trend is not our friend.
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North Korea defies the world
Xi Jinping’s elevation
Trump champions America first
Successive US Presidents have insisted they would prevent North Korea from acquiring nuclear weapons. They backed that up by offering carrots, imposing sanctions, and threatening military action. North Korea hasn’t listened. In early September, North Korea conducted its sixth nuclear test. Three months later it tested a ballistic missile that looks capable of hitting any US city. President Trump says he will stop North Korea in its tracks, vowing that North Korea “will be met with fire and fury like the world has never seen”, tweeting that “military solutions are now fully in place, locked and loaded”, and calling North Korean leader Kim Jung-un “Little Rocket Man”. Trump has also pushed China to solve the problem. While Beijing is taking a tougher line on North Korea, it can’t – or won’t – compel Pyongyang to back down. Only military force looks likely to do that. But the cost of military action would likely be steep – possibly even “catastrophic.” On the other hand, allowing North Korea to remain a nuclear power poses big risks as well. Washington, Beijing, Seoul, and Tokyo have tough choices ahead in 2018.
Not even Adele with her five Grammy awards had as good a year as Xi Jinping. Although China blatantly exploits international trade rules, Xi won applause for his January speech championing globalisation and likening protectionism to “locking oneself in a dark room”. In April, US President Donald Trump feted him at a two-day meeting at Mar-a-Lago and noticeably avoided his typical China-bashing rhetoric. In June, Xi won more global accolades for doubling down on his commitment to the Paris Climate Agreement. His biggest success came in October at the 19th Chinese Communist Party Congress. Xi was named to his second five-year term as party general secretary. He was also named a “core leader”, a title denied to his immediate predecessor, Hu Jintao. The Congress also wrote “Xi Jinping Thought” into the party’s constitution, an honour previously bestowed only on Mao Zedong and Deng Xiaoping. Best of all for Xi, the congress ended without naming anyone as his successor. Xi is China’s most powerful leader since Mao, and is likely to be around for a while. If you’re wondering how he might approach foreign policy in the future, consider this: in his 205-minute speech to the party congress he used the terms “great power” and “strong power” 26 times. So don’t expect him to sit on the sidelines while others try to set the agenda or the rules.
Donald Trump campaigned on a pledge to do things differently and to do different things in foreign policy. He has been good to his word since getting to the White House. He has cancelled US participation in the TransPacific Partnership, withdrawn the United States from the Paris Climate Agreement, refused to certify that Iran is in compliance with its nuclear obligations, recognised Jerusalem as the capital of Israel, ramped up the use of drones, and relegated democracy and human rights to the sidelines of US foreign policy. To be sure, Trump hasn’t enacted all of his campaign promises. He beefed up rather than withdrew U.S. troops from Afghanistan, and he hasn’t declared China a currency manipulator or kicked NAFTA to the curb. But his tough campaign trade talk may soon be US policy. Trump is poised to take punitive actions against Chinese trade practices, his demands for a revamped NAFTA look to be unacceptable to Canada and Mexico, and he’s waging a low-level war against the World Trade Organization. Trump’s dismissal of traditional foreign policy practices even has some fellow Republicans questioning whether America First means embracing a “doctrine of retreat”. Many of America’s closest allies are worried. They fear the era of US global leadership is ending. If so, the consequences are epic. g
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(A) In January, António Guterres became the ninth Secretary-General of the United Nations. In February, Israel announced plans for its first new settlement in the West Bank in more than 20 years. (B) The United States began deploying the Terminal High Altitude Area Defense (THAAD) system in South Korea in March. Violent protests wracked Venezuela in April, a critical point in the country’s constitutional crisis. (C) In May, Emmanuel Macron defeated Marine Le Pen to become France’s youngest president. In June, Montenegro became the 29th member of the North Atlantic Treaty Organization (NATO). The G20 met in Hamburg in July and failed to agree on climate action. In August, Britain’s Prince Philip announced he was retiring from making official appearances. Russia and Belarus carried out the Zapad 2017 military exercises in September. Catalonia’s October independence referendum triggered a political crisis in Spain. In November, thousands attended a far-right nationalist rally in Warsaw. (D) The Australian parliament voted in December to legalise same-sex marriage, making Australia the 26th country to do so. This article was first published on www.cfr.org on 15 December 2017. Corey Cooper, Madison Phillips, and Benjamin Shaver contributed to the preparation of this article.
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c o m i n g It’s not just those in menial jobs who should be worried about the rise and rise of artificial intelligence. Lawyers need to watch out, too, writes FRANK H. WU.
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or all the talk about artificial intelligence (AI) putting long-haul truck drivers out of work, there should be a polite warning to those in what were once called “learned professions” that they should not be complacent. People in all walks of life have realised that the convenience provided by AI comes at a cost which is not trivial, namely a threat to their own continued employment at customary wages. Individuals holding jobs that require a high degree of education might be less vulnerable, but they, too, will succumb eventually. And because even computer programmers are, ironically, susceptible to challenge from self-programming AI, lawyers need to adapt. The great American jurist Oliver Wendell Holmes Jr declared famously that “the life of the law has not been logic; it has been experience”. Holmes did not foresee – and could not have – how eloquence would lose its dominant role. The aphorisms by which he commanded respect have given way to code and images. AI is more than logic. It incorporates experience. The advances in AI, such as in-machine
translation, have not been made by a priori logic, loading a set of abstract rules, but through what could be said to be experience, thanks to fuzziness, induction, and statistics. There are no robot lawyers, but there will be. The practice of law will be, and already is, affected by AI, without avatars dispensing advice and counsel on every street corner. A search engine, for example, is a rudimentary form of AI. A search engine deploys elegance, in an algorithm that predicts based on prior instances, and brute force, through the ability to process big data of volumes and at speeds surpassing any natural person. Thanks to a search engine, the task of discovery in civil litigation can be done much faster and more cheaply. By scanning, uploading, and using optical character recognition, then looking through a digital haystack for the needle constituted by a string of characters, reams of documents can be processed – documents that formerly were inspected by a team of associates armed with highlighters, over the course of weeks or even months. The intervention of technology
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accelerates everything. No person, however smart, can maintain the pace. The search engine is an excellent example of the intermediate stage that defines our era. It is understandable that we, aware of only the past, perceive our own instant in history as technologically sophisticated. Those of us who are digital immigrants — born before and recalling experiences pre-dating the internet — will soon enough be reckoned primitives, as we regard quaint those who counted on an abacus or ran mainframes with punch cards. Ours is the interlude before “the singularity” – the point futurists imagine where technology is so sophisticated it produces a profound change in human nature. In the leadup to such transformation, a human remains necessary to supervise the machine. The search engine shows how lawyers can use AI, without being replaced by it. A lawyer has to oversee the searches that are run, because they must be strategic and not random. But we already can see, available to any user, that the search engine itself can suggest searches to us, of popular phrases and synonyms, correcting typographical errors and inferring what it is we want. The internet knows what we want before we know it. Merchandisers offer us goods to purchase they forecast we will desire. The same is true of legal research in databases. Whether in common law or civil law jurisdictions, access to such databases has become common. A generation ago, a competent associate possessed a modicum of Boolean logic (at a minimum understanding the difference between “and” and “or” and the proper use of parentheses in logic). Today, “natural language” suffices for all but the most obsessive who are determined to compile a collection containing every last judicial opinion addressing a subject. An AI engine interprets the request. The average lawyer who depends on these resources daily likely could not describe how the commercial service 38
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"Lawyers will be forced either to develop greater expertise, such as the ability demonstrably to achieve better results, or to lower their fees, or worse, both." has set up the search engine. She assumes it functions with integrity. None of us would be the wiser about manipulation of the results. In other contexts, it is already accepted practice to push the hits to us, at the top of our “feed”, for commercial purposes or worse. AI is present but invisible. That infiltration of the background confirms its power. It is taken for granted. The ease of legal research reveals the real weakness of the legal profession. Like many other professions, lawyers have maintained the ability to charge premium prices by leveraging the monopoly on technical skill. We control a type of secret knowledge. We can predict the outcome of litigation, even influence it legitimately, because what might be perceived as magic — our access to material such as cases and statutes — which others do not have available, and, even if given, would not comprehend.
That should be corrected to past tense. We formerly enjoyed exclusivity. AI enables and levels. A layperson can acquire for herself, without much difficulty at all, at least some of the stuff she must analyse to resolve a legal problem. She may have only an excerpt of the texts, maybe corrupted through hearsay or rendered irrelevant through reversal or superseded by legislation, but she can be diligent in piecing together much of what she should consider. For simple transactions, she can download forms such as contracts, leases, and wills. There is no motive to prevent her doing so, or reducing her costs (and risks due to uncertainty), by hiding these instruments. She lacks true competence, but she has the basics at hand. Thus lawyers will be forced either to develop greater expertise, such as the ability demonstrably to achieve better results, or to lower their fees,
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or worse, both. A lawyer who herself partners with AI can address the policy issues AI presents, such as regulation of autonomous vehicles. Or she can create a higher volume commodity practice. If she does not adapt, she will face the expectation of the “good enough” consumer movement. In many instances, maybe most, people are satisfied with what suffices; it is “good enough”, especially if convenient. The best is not worth the extra charge, if it can even be ascertained what deserves that title. A tenant who would like to sublet her flat to her cousin’s cousin might rely on an oral agreement or might fill in the blanks of a generic template. She will not hire a lawyer unless she is very anxious or the lawyer is very cheap. That was true before AI; nothing has been reordered in those circumstances. But a small businessperson with a series of deals previously might have consulted counsel. She now might well forego the expense. She assumes it will work out just fine. The rise of AI should prompt reflection on the function of law and the legal profession. Law structures society and transactions within it. It also resolves disputes. Ideally, it does so according to commonly accepted norms of justice, and with efficiency. Lawyers serve clients and the court, not themselves. It is in society’s best interest, collectively, if lawyers can be improved upon. The delivery of better services, or the same services at lower cost, is good for clients and the court, if not for lawyers. That is what AI promises. AI can counsel and advocate. AI can counsel because it can foresee the conclusion of a series of events. A human and a machine can be taught what variables, facts about the world, have what significance, analogising and distinguishing precedent from a new scenario. A human will be slower. A machine will make mistakes from which it then will be much more likely to learn than a flesh-and-blood competitor. What is likely to provoke higher
anxiety, however, is that AI can advocate effectively. A lawyer assembles an argument from a set of possibilities, assessing what is persuasive and what is frivolous, and one who excels, acquainted with the local culture, is able to customise an appeal to a judge or the jury. AI can do the same. It is less prone to prejudice, such as being enamoured of a favourite argument. Since the computer has nothing at stake, unlike a human lawyer, it can be objective in selecting and recommending an optimal course of action or line of reasoning. The argument that has become conventional in explaining the safety of autonomous vehicles (also known as self-driving cars) is the modern elevator. There are fewer accidents with a mechanical elevator than with a human operator. AI legal work product will not be perfect – but it might be equal the quality of the average member of the bar. By definition, what separates AI from merely a very sophisticated computer program is that AI can evolve and perceive the world around itself while a program can only do what its instruction set directs within a piece of hardware. We should be prepared for AI, as it teaches itself, as it “iterates”, to display randomness and what could be deemed “discretion”. We already are past a point where we can anticipate without doubts what a machine we have created will do in every situation.
"For the moment, lawyers are ahead of AI. If we augment our own capabilities with AI, we will continue to have a role to play. If we do not, we will be overtaken."
We will witness its intelligence turn into wisdom. The concern we might have, beyond robot lawyers, is robot judges. The dread would be over a formal decision-maker, without mercy, who enforced measures that observers would reject. The same can happen with humans, of course. In the United States, the system of “mandatory minimum” prison sentences, calculated by formula, had such unhappy consequences. Judgment is the advantage we retain – some of us who are entrusted by clients, anyway, over our would-be machine counterparts. That judgment is premised on socialisation. Law is a social activity. There are no hermit lawyers. But a computer, without even provoking a debate over whether it is performing AI, can simulate sociability. A device that mimics a person so exquisitely we cannot be sure it is the former rather than the latter passes the “Turing” test, named for Alan Turing, the English scientist. According to this standard, this is “thinking”. Against that paradigm is the “Chinese room” argument made by John Searle, an American philosopher. A person could be taught to follow a script to “translate” Chinese into English without any understanding of what she was doing and it would be wrong to suppose she was “thinking.” For the moment, lawyers are ahead of AI. If we augment our own capabilities with AI, we will continue to have a role to play. If we do not, we will be overtaken. Law as a system is complex, but the games of Chess and Go were once thought to be beyond the capacity of a computer. Law could be described as an order of magnitude more complex than Chess and Go, but it is not infinitely more complex. While in the long run bets against either human resilience or technological progress have proven ill fated, the combination of human resilience and technological progress is driving society forward. g FRANK WU is Distinguished Professor, University of California Hastings College of the Law, and Chair, Committee of 100.
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INDUSTRIAL RELATIONS
The clothes we wear
While a tragedy in Bangladesh in 2013 shone a spotlight on horrific working conditions in some of Asia’s garment factories, more needs to be done to ensure transparency and enforcement of human rights in the garment industry. ARUNA KASHYAP writes.
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an Indian worker sews clothing in a factory in Dharavi slum.
ne day in April 2013, Shabana went to work in a garment factory on the outskirts of Dhaka, Bangladesh, where she was a seamstress, working hour after hour, day after day in a room filled with hundreds of women. By the end of the day, she lay trapped beneath the rubble of an eight-story building – a victim, albeit alive, of the deadliest garment factory accident in recent history. At least 1,134 workers in the building died, and more than 2,000 were injured. “Sometimes I just can’t sleep without pills. I keep remembering how many people died that day,” she says, years later, frail and hollowed. “Maybe I should have died, too.” Shabana miraculously survived three days buried in the rubble of the Rana Plaza building, a disaster that shook the world and belied the lofty claims of big apparel brands that they were taking sufficient measures to protect the workers who toiled to create their products. Labour advocates wanting to campaign for compensation for victims had to know which
global apparel brands had ordered the clothing produced in the five factories that had been housed in the collapsed building. But, at the time, no one knew. Labour rights activists and others scrambled to find company labels even as bodies of workers were being pried from the rubble, and traumatised survivors struggled to recall anything about the brands for which they had worked – and almost died. As consumers, we do not think much about the “Made in” labels sewn on our clothes or stamped onto the soles of our shoes. But woven invisibly into the fabric of the clothes we wear are stories of individuals – often women – who cut, stitch, and glue the shoes, shirts, and pants we pick from store shelves and hang in our closets. Factory building collapses and fires are not the only problems in the apparel manufacturing world. In the US$2.4 trillion garment industry, which employs millions of workers worldwide, labour rights abuses are rife. Factory owners and managers often fire pregnant workers or deny maternity leave;
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retaliate against workers who join or form unions; force workers to do overtime or risk losing their job; and turn a blind eye when male managers or workers sexually harass female workers.
The role of global apparel brands
The governments of producing countries worldwide are primarily responsible for working conditions and labour law compliance in factories. But according to international standards, though non-binding, global apparel and footwear companies or “brands” that order products manufactured in factories also have a responsibility to ensure that the rights of workers are respected throughout their supply chain. They must take measures to prevent and address human rights abuses. For starters, they should make sure workers and the public know which factories are producing for which brands, and they should be transparent about their supply chains. Too often, brands side-step responsibility by failing to publish key information – such as the names, addresses, and other important information about factories manufacturing their branded products. This kind of disclosure is the foundation on which corporate responsibility is built. More and more apparel companies disclose this information to show where they are producing and the sites they are monitoring. By the end of 2016, these included Adidas, C&A, Columbia Sportswear, Cotton On Group, Disney, Esprit, Forever New, Fruit of the Loom, Gap Inc., G-Star RAW, Hanesbrands, H&M Group, Hudson’s Bay Company, Jeanswest, Levi Strauss, Lindex, Marks and Spencer, Mountain Equipment Co-op, New Balance, Nike, Pacific Brands, PAS Group, Patagonia, Puma, Specialty Fashion Group, Target USA, VF Corporation, Wesfarmers Group (Kmart and Target Australia, and Coles), and Woolworths. This is especially important because in the apparel sector, unauthorised subcontracting is a frequent problem. Some of the worst labour abuses occur in such unauthorised subcontracted sites, farthest from any kind of scrutiny or accountability. Such disclosure not only demonstrates that a company is mapping its supply chain, it also helps identify good and bad subcontractors, and focus additional monitoring efforts where they are most needed. Workers need this information, too, as do those who may advocate on their behalf, including union representatives, local and international non42
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governmental organisations, lawyers, journalists, and academics. The more supply chain data is publicly available, the more likely it is that abusive conditions will be reported – whether publicly or to the brands whose supply chains are implicated – and the more likely it becomes that problems can be solved.
Campaigning for transparency
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Thousands of
garment workers rally on the one-year anniversary of the Rana Plaza collapse that killed more than 1,100 garment workers in Bangladesh.
In 2016, Human Rights Watch joined eight international labour rights groups and global unions advocating for a basic level of transparency in the garment industry. The coalition developed a “Transparency Pledge”; a uniform minimum standard for transparency, drawn from industry good practices. The pledge is a modest starting point for company disclosure. Companies can do far more than what the pledge seeks, for example, by publishing information about where they source cotton and other materials. The coalition reached out to 72 brands to urge them to align their practices with the Transparency Pledge. Seventeen leading global apparel and footwear companies have to date committed to publishing all of the information sought in the pledge. Each company that does so commits to publishing regularly on its website a list of all factories that manufacture its products. The list should specify the full name of all authorised production units and processing facilities, site addresses, parent company information for the
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"Woven invisibly into the fabric of the clothes we wear are stories of individuals – often women – who cut, stitch, and glue the shoes, shirts, and pants we pick from store shelves and hang in our closets." production units, type of products made, and a rough indication of the number of workers at each site. Another 17 companies – though falling short of pledge standards – shifted in a positive direction and committed, for the first time, to publishing their supplier factory information. Disappointingly, however, many apparel companies simply rejected transparency altogether or did not respond to repeated efforts to engage. Transparency is not a silver bullet, but it is a powerful tool for focusing more on-the-ground eyes on labour abuses and factory dangers, and it provides workers and advocates critical information about where to turn with problems. Transparency also builds confidence among consumers who care about the ethical business practices of brands. And it allows workers to at least hope that brands profiting from their labour will hear of their struggles – and intervene.
The global garment industry supply chain
Growing, ginning, trading
Information barriers
In 2016, I met a garment worker from a factory in Burma. The factory management gave workers time off to celebrate Thingyan, the annual Buddhist water festival – also a government holiday. When workers returned, the managers forced them to compensate for lost productivity by working consecutive Sundays, their only day off. Factory managers singled out workers who refused and denied them overtime work for two months, leaving these low-wage workers with even less take-home pay. The factory’s actions were blatantly illegal under Burmese domestic laws. Workers despaired: they wanted to report what was happening to the brands for which they produced, but they had no way of knowing what those were. They suffered silently. In another case, an eight-month pregnant worker from Cambodia told me that a garment factory terminated her contract because she was pregnant. The factory refused to pay her legally required maternity benefits, and told her not to return. So she turned to a local non-governmental
Spinning, knitting or weaving, dyeing
Cutting, sewing, trimming
Embroidery, printing, washing Possibly subcontracted
organisation, which wanted to help her alert the brand. The problem was that no one knew which brand placed orders with that factory. They were at a dead end. Apparel companies know the challenges workers face if they try to collect brand information from their factories. These include a combination of poor literacy and language barriers; lack of awareness about the label parts that need to be collected; not being equipped with smartphones to photograph labels; and fear of retaliation. Garment workers I’ve interviewed in Bangladesh, Cambodia, and Burma have often said they were too afraid of retribution to risk photographing or collecting brand labels in factories, or that the factory did not attach the labels at all.
Creeping towards transparency
In the past, consumers asserted their right to know where their products were made to bring about change in the garment industry. In late 1990s and early 2000s, the United Students Against Sweatshops campaigned at many US universities, demanding that brands producing licensed apparel bearing their college logo must provide factory names and locations. This led companies such as Nike and Adidas to share the names and locations of factories where workers made their products – an important breakthrough in the decades-long struggle for transparency. Since 2005, Nike and Adidas have been publishing their supplier factory information, and more brands have followed. Some brands that closely guarded factory names as “competitive information” have now released this data. In 2013, leading fashion group H&M, which, according to a company representative, used to keep its supplier factories list locked in a safe in Stockholm, became one of the first fashion brands to publish the names and addresses of its supplier factories. Other companies followed suit in 2016, with C&A, Esprit, Marks and Spencer, and Gap Inc. also going transparent.
Warehousing, shipping
Retail and online stores
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being transparent. If it believes its [human rights] practices are strong, they should be disclosing the sites they are monitoring and take credit for that.”
Transparency as a competitive advantage
"Transparency is not a silver bullet, but it is a powerful tool for focusing more eyes on labour abuses."
The pledge In 2016, a coalition contacted 72 companies and asked them to adopt the Transparency Pledge.
Apparel companies committed to ethical business practices will not shy away from their responsibilities under the United Nations Guiding Principles on Business and Human Rights, which say that businesses should “know and show” that they are respecting human rights in their supply chain, including by mapping their supplier factories. Industry leaders have set the standard for such “showing” by putting supplier factory information in the public domain. Reflecting on how critical it is for a company to publish its supply chain information to meaningfully apply the UN Guiding Principles, Professor John Ruggie, former UN special representative for business and human rights, who drafted the principles, told Human Rights Watch, “At the very heart of the guiding principles and corporate responsibility is the notion of ‘knowing and showing’. If a company does not know and cannot show, or will not show, then it raises questions … A company that respects human rights … is in a sense short-changing itself by not 44
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Each company that pledged committed to publishing details of manufacturing sites on its website on a regular basis (twice a year). The list should provide in English: The full name of all authorised production units and processing facilities; the site addresses; the parent company of the business at the site; the type of products made; and the worker numbers at each site.
Some brands that reject transparency invoke the oft-repeated trope of competitive disadvantage. They argue that publishing the names and locations of the factories that produce for them will be detrimental to staying competitive. This thinking is misguided. First, the notion that such a basic degree of transparency puts a company at a competitive disadvantage is contradicted by the fact that leading companies already disclose factory information and have not claimed to suffer any financial harm as a result. Second, most brands already partially share this information on industry platforms such as Sedex and the Fair Factory Clearinghouse. Through these, they exchange information about supplier factories, including reports about working conditions. Some of this supposedly “secret” information about factory names and locations is also accessible to competitors through databases, including Import Genius and Panjiva, which compile US customs data. Publishing supplier factory information would allow brands sourcing from the same factory to exchange key information about working conditions and potentially collaborate to prevent labour abuses or dangerous conditions. Some argue that their membership in initiatives such as the Bangladesh Accord on Fire and Building Safety, a binding agreement between brands and global unions, forged after the Rana Plaza collapse, is proof of their commitment to transparency. The Bangladesh Accord publishes a list of all garment factories covered by the initiative, but does not publicly identify which factory produces for what brand, let alone globally. The initiative has had a positive impact on fire and building safety in Bangladesh, but is not a substitute for a company’s own transparency practices governing its global supplier factories. At least one company, Inditex (which owns Zara and other brands), has refused to publish any supplier factory information, arguing that it privately discloses the data to global unions with whom it has signed a global framework agreement, intended to improve working conditions throughout its supplier factories globally. Publishing supplier factory information would only amplify the effectiveness of such a
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global framework agreement. Other brands such as ASOS, H&M, and Tchibo, which have global framework agreements, also publish their supplier factory information. Their practices demonstrate that the two tools – framework agreements and transparency – can coexist.
Incentivising transparency and the role of investors
Multi-stakeholder initiatives involving different stakeholders from the garment industry, such as brands and NGOs including the Ethical Trading Initiative, the Fair Labor Association, and the Sustainable Apparel Coalition, should play an important role in moving the industry toward basic transparency. Such initiatives should make publishing supplier factory information a condition of membership and seek time-bound plans from existing apparel and footwear member-companies to move toward this goal. At the very least, they should require that brands in prominent leadership roles, such as boards of such initiatives, publish supplier factory information. Primark, for example, is on the board of the Ethical Trading Initiative, making its refusal to go transparent all the more reproachable. Walmart, one of the founders of the Sustainable Apparel Coalition, has yet to publish its global supplier factory information. Investors, including pension funds, can use their role as owners in companies to press for transparency. For instance, investors such as APG and investor groups such as SHARE Canada and the Interfaith Center for Corporate Responsibility regularly engage with companies on supply chain transparency. It is not just a social imperative but can help reduce financial risks by allowing for better preventative measures through collaboration with other brands. The Corporate Human Rights Benchmark – backed by investors including the London-based assessment management company Aviva Investors – also requires apparel companies to map and disclose at least the upper layer of their supply chain. “Soon there won’t be much to hide,” says Professor Ruggie, highlighting the increasing weight investors are giving to economic, social, and governance indicators. “People who are either inside or servicing the investment community will vacuum up everything that’s out there. They are using everything from GPS to Google Earth to collect information. It’s better for companies
Full pledges made As at December 2017, 23.6 per cent of companies contacted made a full pledge. Adidas ASICS ASOS C&A Clarks Cotton On Group Esprit G-Star RAW H&M Group Hanesbrands Levi Strauss Lindex New Look Next Nike Patagonia Pentland Brands
Source: hrw.org/ news/2017/04/20/ more-brands-shouldreveal-where-theirclothes-are-made
to provide this information themselves than have a data provider possibly misconstrue it and sell it as proprietary information to an investment or asset management company, and have it adversely impact the ratings. Companies will realise it’s better to be transparent.”
A call to governments
Governments should compel transparency and other mandatory human rights processes in an apparel company’s supply chain. Only they can impose penalties on non-compliant companies, and only they can set enforceable standards that level the playing field for businesses and workers. Tragically, the combination of reluctance to regulate companies and overall government apathy has meant there have not been strong legislative efforts worldwide to address human rights concerns in the garment industry. Legislation that specifically requires apparel and footwear companies to publish supplier factory information would be an important step. Nevertheless, the increasing attempts by some governments to legislate on company responsibilities towards human rights in their global supply chains may lead to some change. For example, the UK Modern Slavery Act, which, among other things, requires companies to monitor for modern slavery in their supply chains, does not specifically require companies to publish supplier factory information. But it has served as a catalyst for transparency: a number of UK apparel and footwear companies have published supplier factory information as part of their overall risk mitigation strategy on modern slavery in their supply chains. The French law on due diligence by companies is yet another piece of legislation that serves as a good example that can be built on. In the post-Rana Plaza world, no apparel company should think twice about a basic level of transparency. Workers’ rights and lives come first. Meanwhile in Bangladesh, Shabana still struggles to piece her life back together. Nightmares and depression hamper her life and ability to work. “Workers should know about brands so they can tell their true stories,” she says. Setting foot inside a garment factory is unthinkable. g ARUNA KASHYAP is a lawyer who works as senior counsel for the women’s rights division of Human Rights Watch. This article was first published by Human Rights Watch (www.hrw.org) in December 2017 and is republished here with permission.
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LAW AND RELIGION
The rise of morality laws
Malaysia, Indonesia and Thailand are just three Asian jurisdictions experiencing the rise of so-called morality laws, which put power into the hands of the religious right. SEPPY JAMALI POUR writes
I ← The Sultan Salahuddin Abdul Aziz Shah Mosque is the state mosque of Selangor, Malaysia, and the second largest mosque in south-east Asia. Photography: Firdouss Ross.
n April 2016, Malaysian actress Faye Kusairi’s family home was raided by religious officers after allegations of khalwat, the offence of being in close proximity with a non-family member of the opposite sex in an isolated place. In Malaysia, the Sharia law offence – applicable only to Muslims – is punishable by up to two years in prison. The raid, undertaken at 2:30am and without a warrant, was quickly proven to be baseless. Kusairi filed a police report soon after the incident, alleging that she knew the complainant and that the complainant had offered to pay the religious officers for any damages incurred during the raid. The organisation responsible for the raid, the Selangor Islamic Religious Council (JAIS), has since announced that it would conduct an internal investigation to determine whether its officers violated any laws when they broke into Kusairi’s home. Kusairi’s experience is one of several examples of religious groups in Malaysia conducting warrantless raids on private property under the auspices of criminal enforcement.
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Malaysian legal experts have expressed heavy doubts about JAIS’s right to conduct raids for this purpose. The Bar Council Constitutional Law Committee chairman, Firdaus Husni, noted that the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) Enactment 1988 in no way provides JAIS with the power to conduct a search with or without a warrant. Lawyers for Liberty adviser Latheefa Koya argues that even if it did confer such a power, JAIS has no right to enforce a warrant against non-Muslim Malaysian citizens. Whatever the official legal position, morality laws in Malaysia have become more prevalent in recent years, and the reach of hard-line religious authorities is increasing. The religious police seek out not only unmarried partners regarding sex outside of marriage, but also those allegedly committing other offences under Sharia law, including alcohol consumption, failure to attend mosque, not fasting during Ramadan, extramarital affairs, and wearing inappropriate clothing. Shiite Muslims, homosexuals and transgender people are heavily persecuted. These laws affect the 60 per cent of Malaysian citizens who follow Islam. They are subject to a pluralistic legal system, tried by specific Sharia courts independent of the ordinary judicial system. Even renouncing one’s Islamic faith is a criminal offence. Non-Muslims in Malaysia face strict laws of their own. The word “Allah” cannot be spoken by non-Muslims, and Christian Bibles written in Malay may not be possessed anywhere outside the confines of a Church. Laws of this nature are likely to become even stricter should the conservative party of Malaysia, the opposition Pan-Malaysia Islamic Party (PAS), successfully push through its Bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965. Dubbed ‘Hadi’s Bill’ after the president of PAS, Abdul Hadi Awang, the Bill seeks to increase the maximum punishments for such offences from three years’ imprisonment, a RM5,000 fine (AUD$1,625) and six lashes of the cane to 30 years’ imprisonment, a RM100,000 (AUD$3,250) fine and 100 lashes. The Bill was tabled for a seventh time in October 2017 following numerous legal challenges.
A common problem
Morality laws are not unique to Malaysia. In December 2017, Indonesia’s Constitutional Court heard a petition to criminalise all sex outside of marriage. While the Court dismissed the petition, it did so on jurisdictional grounds, 48
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Jakarta, Indonesia,
4 November 2016: A rally to condemn the blasphemy of Islam.
citing its reluctance to involve itself in matters of criminal law, particularly in cases where allowing the petition would result in the creation or amendment of a statute. Accordingly, the Court referred the petition to the Indonesian federal Parliament for deliberation. The petition, originally filed in March 2016 by the conservative Family Love Alliance group, seeks to amend Indonesia’s criminal code to allow a maximum punishment of five years for sexual intercourse outside of marriage. Given that Indonesia does not recognise same-sex marriage or civil unions, the petition would also place a de facto ban on gay sex. Like Malaysia, the LGBTQI community in Indonesia has historically endured harassment, politically motivated arrests, and vigilantism. They are also disproportionately targeted under Indonesia’s pornography laws, which outlaw not only engaging in the production of pornography, but public acts of indecency such as spouses kissing, sunbathing in swimwear, or sending explicit text messages. Indonesian political commentator Kevin O’Rourke suggests that the Court’s referral of
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"Whatever the official legal position, morality laws in Malaysia have become more prevalent in recent years, and the reach of hard-line religious authorities is increasing."
the petition to Parliament has effectively put an end to the issue. O’Rourke argues that while the criminalisation of gay sex may be popular, there is insufficient support for a full ban on sex outside of marriage outside of the most conservative regions of Indonesia. But with the 2019 Indonesian presidential election quickly approaching, it remains to be seen whether the incumbent government will risk being soft on morality issues. Parliamentary member Asrul Sani has told reporters that the 25-member Parliamentary working committee has agreed on nearly all the articles in the Bill. Statements from committee members suggest that total agreement has not been reached, but there is a consensus on the criminalisation of gay sex. Bambang Soesatyo, the speaker of the Parliament and member of a non-Muslim party, commented that same-sex relationships should be criminalised because they could “corrupt the morality of the nation”. This Bill goes beyond this, however. The proposed amendments also make it an offence to share information on contraception or abortion unless authorised as a specialist to do so. It also has the unintended consequence of rape victims being charged under the new extra-marital sex offence should the alleged perpetrator successfully use the defence of consent. The Indonesian province of Aceh already imposes Sharia law, including offences against extra-marital and gay sex. Bylaws added to the Aceh Islamic Criminal Code in 2014 impose offences against extra-marital sex, gay sex, the consumption of alcohol (khamar), gambling (maisir), and accusing a person of adultery without providing four witnesses. Unlike the Acehnese Islamic Criminal Code, the bylaws can be enforced against non-Muslims in Aceh province. Authorities in Aceh imposed lashings against 339 people in 2016, the first full-year of implementation of the bylaws. Lashings are generally undertaken in front of a crowd in a public place. Amnesty International has criticised Aceh’s Penal Code for contravening Indonesia’s
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defamation and the insult of public officials on the internet, punishable by up to six years in prison and a fine of one million Rp (AUD$93,000). The most high-profile case of EIT law involved the prosecution of Prita Mulyasari, a woman who communicated the grievances of her public hospital stay to her doctor and friends via email. While Prita was ultimately acquitted, she spent three years on remand. Thailand’s lese-majeste law, which forbids the insult of the monarchy, imposes a similar restriction on freedom of speech. Under Article 112 of the Thai Criminal Code, anyone who “defames, insults or threatens the king, queen, the heirapparent or the regent” will be punished with a jail term between three and 15 years. Under Thai law, accusations of lese-majeste can be made by anyone and must be investigated by police. Publicised cases include vandalism of monarchical posters to insulting images on Facebook. The social network faced a temporary ban in May 2017 for failing to block content deemed “illegal” by Thai officials. Amnesty International criticised the legislation for silencing peaceful dissent and jailing prisoners of conscience. Trials are often held behind closed doors and in military courts where defendants’ rights are limited. Some 96 per cent of people charged under lese-majeste laws in 2016 were convicted.
Constitution, as well as the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR).
The politicisation of morality
Morality laws in south-east Asian jurisdictions have been on the rise for several years. The UN and Amnesty International have been at the forefront of opposition to this rise, along with civil rights activists and legal experts across the region. The existing morality laws demonstrate a serious disregard for human rights and civil liberties. Currently, the issue is being used to garner votes from hard-line Muslim voters in an election predicted to be vitriolic. Indonesia’s proposed amendments impose an even greater affront to the Indonesian people, conveniently introduced at a time when various political parties are desperate to look tough on crime and perceived immorality. As suggested by a legion of political commentators and LGBTQI activists, the amendments should, at the very least, be set aside and revisited following the result of the 2019 election. g
Morality beyond sexuality
In some south-east Asian jurisdictions, authorities maintain a strong opposition to political criticism in the form of criminal defamation laws. In Indonesia, for example, “insult” laws make it an offence to make statements in relation to public officials if the official in question finds the statements “insulting”. No defence of truth or general interest is provided for statements against public officials. In cases of statements against nonpublic officials, the statement must be proven to be both true and in the general interest of the public to be considered lawful. The laws have historically been used to silence dissidents and those who have made allegations of corruption, fraud, or misconduct against powerful interests or government officials. In 2008, the Indonesian federal Parliament introduced the Law Regarding Electronic Information and Transactions (EIT law). The EIT law contained a provision criminalising 50
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22 October 2016: Unidentified people lift a photo of His Majesty King Bhumibol Adulyadej.
SEPPY POUR is a solicitor based in Sydney, Australia. He is undertaking a Master of Laws at the University of Sydney specialising in Criminal Liability and Judicial Sentencing.
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Family Law:
Realities, Expectations and Hope 6–8 June 2018 | Vientiane, Laos Register now at
lawasia.asn.au/familylaw2018.html
7th LAWASIA Family Law & Children’s Rights Conference
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Photography: Ambreen Hasan
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LGBTQI RIGHTS
The rainbow in Asia
After a long delay and politically divisive process, Australia legalised same-sex marriage in December 2017. Former Justice of the High Court of Australia MICHAEL KIRBY examines the status quo for LGBTQI people across the region.
O
n 15 November 2017, I received a welcome wake-up call at my hotel in Bangkok. It was my partner of 48 years, Johan, phoning to tell me of the outcome of the “postal survey”, just announced, in favour of an Australian law on same-sex marriage. The vote (61.6 per cent yes; 38.4 per cent no) confirmed countless opinion polls. However wasteful and divisive, the flawed process demanded by the Australian Government had a silver lining: it propelled the Federal Parliament to do what 25 other countries had achieved, many of them long ago – to enact marriage for people who happened to be gay. The legislation was finally passed on 7 December 2017 by overwhelming votes in the House and the Senate. It had taken an awfully long time. I was in Bangkok for a conference on a more pressing subject: a meeting convened by the Asia Pacific Coalition on Male Sexual Health (APCOM). They were celebrating their 10th anniversary and invited me to reflect on the struggles faced in Asia and the Pacific Islands to overcome violence and discrimination against the LGBTIQ minority. As I reflected on the arguments that had just
been addressed in Australia, to oppose or delay gay marriages, I had plenty of time to consider the even more heroic struggles of the mostly young, multi-racial, multi-religious participants surrounding me. Their struggles involved matters of life and death. Not all news from their region was uplifting and encouraging. I was touched that they interrupted their program and asked me to tell the story about how marriage equality in Australia was achieved. They hoped to draw from that story a message of encouragement. I had to warn participants of the peculiarities of the Australian scene and the need for caution in translating our delayed achievement of marriage rights in Australia to apply in the much more hostile environment of Asia. In Australia, we had begun, as many of their countries did, with the same English legal heritage. It was biased against gay men. But the process of reform had started with the change of the criminal law in 1974 in South Australia. Until the criminal laws were changed, it was difficult or impossible to secure effective laws prohibiting discrimination, let alone laws providing for marriage.
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In many countries represented at the Bangkok conference (Bangladesh, Brunei, Malaysia, Maldives, Pakistan and Singapore) criminal laws continue to punish gays. Getting rid of those laws was proving extremely difficult because of religious and cultural conservatism. Throughout much of Asia and the Pacific, the victims of stigma did not have the astonishing spectacle of religious opponents solemnly denying homophobia while urging that we should do hostile things. In much of Asia, Islamic, Christian and other religious leaders outdo each other in exposing frank and honest homophobia. In many places, they whip up hostility and promote deadly violence. At the beginning of the Bangkok conference, two days before the announcement in Australia, the opening event had honoured heroes in the struggle in Asia and the Pacific. Awards were given to seven “heroes”. The winners were announced by Dédé Oetomo, a leader of gay and trans equality in Indonesia, who is the President of APCOM. The heroes were gathered from across the countries of Asia and the Pacific. They reduced 350 nominations to seven winners. But, in truth, they were all heroes. From Malaysia, Khartini Slamah was named Transgender Hero. For more than 30 years she has done work for the health and civil rights of transgender people. The Community Hero award went to Chi Chia-Wei. He was the acclaimed campaigner in Taiwan whose successful struggle 54
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New Delhi, India ,
29 November 2015: Delhi Queer Pride
before that country’s highest court secured a clear holding that the denial of marriage equality was contrary to the constitutional obligation of the equal treatment of all citizens. This was a first for Asia, although the issue has been on the political agenda in Nepal and Vietnam for a decade. As happened decades earlier in South Africa, the Taiwan Constitutional Court gave the lawmakers a deadline to enact a law conforming to its holding. The HIV Hero award went to Gautam Yadav for his exceptional work in India as an activist, personally living openly with HIV and as a role model for young people facing that predicament in India and the region. Awards also went to outstanding scientists working in Thailand for their work as community health advocates. From Pakistan, where there is not only the inherited criminal law combined with enormous religious hostility, I had the honour to present the Social Justice Hero award to Qasim Iqbal. He was recognised for his unflinching advocacy of gay and trans health and rights in Pakistan. The award for the most Heroic Community Organisation was probably the most difficult to select. The room was full of activists from civil society bodies standing up and facing down hatred every day of their lives – nowhere more so than in Bangladesh, where the Bandhu Social Welfare Society was named the winner. A longtime advocate from India, Ashok Row Kavi, was honoured with a special prize for extraordinary achievement over 40 years of advocacy on gay and trans rights and HIV needs. With all of these names come stories of unmatched courage, frequently in the face of murderous hostility. Nowadays, in Australia and New Zealand, it does not take any special courage for an adult gay man or woman to stand up and say, “I am gay. I did not choose it any more than you chose your sexual orientation or gender identity and it cannot be changed. So get over it.” But in Asia and the Pacific, it takes super courage. Often, the rewards are tiny and they are slow in coming. No-one enters this space in the hope of a moment of glory at a conference in Bangkok. For most of Asia, this is still a dangerous space. There has been some progress. In Hong Kong, armed with a human rights gift from the departing British colonial power, the Court of Final Appeal upheld the basic right of trans citizens to marry and directed local law-makers to bring the law into line. In India, a strong decision of the Delhi High Court struck down the colonial criminal laws
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against gays, only to be overturned soon after by a two judge bench of the Supreme Court. Now that decision is under further review. Strong recent judicial statements in India appear to make it likely that the Delhi High Court’s orders will be reinstated. Leaders of the Indian legal profession, briefed by an unyielding civil society, have persisted with their challenges in the courts of India. Those courts have earlier upheld trans rights. With a socially conservative government, only the courts will defend the rights of gays with legal equality. Looking to Parliament is hopeless. In Nepal, the old criminal laws copied from British India had been struck down by the courts. The same happened earlier in Fiji. Modern charters of rights have frequently provided legal arguments for gays and trans litigants claiming only to be treated the same way as other citizens. Australia never had an equality clause in its constitution, but in Asia they have it and are using it. In many societies, criminal laws are only part of the problem. In Japan, where there are no criminal laws inherited from the British, bullying of young gay and trans pupils at school for “disturbing the harmony of the class” present an obstacle in some ways more insidious than reforming criminal laws. China repealed the “hooligan” offence previously used to harass gays. It has also prohibited conversion therapy, which used to be the demand of religious groups even in Australia, worthless and damaging though it was. In South Korea, there are no general criminal laws against gays. However, a special law targets gays in the military. As all young men must undergo military service, this exposes a vulnerable group to special pressure. The new President, Moon Jae-in, told an election rally in
"The bedrock of prejudice in most of these countries remains the unreformed criminal law, inherited from Britain, which they retain and nurture for prejudice and stigma, 60 years after the world came to know how irrational and unscientific such prejudice and stigma are."
April 2017 that he was “opposed to and did not like” homosexuality. Subsequently, he backed off these statements and apologised for “hurting feelings” by words said in an election campaign. Meantime, a newly-elected National Assembly in South Korea placed the military rule on the agenda and summoned a conference to address the issue. So things may change. But South Korea has other problems on its mind just now. Throughout the region, agendas for action have been planned. Activists learn from each other. They are increasingly supported by key United Nations agencies. These include the United Nations Development Programme. The High Commissioner for Human Rights, Prince Zeid al-Hussein, has also been forthright in taking up this cause. Like the now-retired UN SecretaryGeneral Ban Ki-Moon, he reminds everyone of the first article of the Universal Declaration of Human Rights 1948: “All persons are born free and equal in dignity and rights”. Like Ban Ki-Moon, Prince Zeid asks the sceptics and the opponents of gay and trans rights, “What is your difficulty with the phrase ‘all persons’? How can you exclude gay and trans persons from their fundamental rights as human beings?” UNAIDS, UNICEF, UNESCO and other UN agencies are becoming increasingly engaged in this struggle. They give strength and reassurance that activists are not alone; that they have the support of the UN human rights treaties, and that, in the end, they will prevail – although the odds may presently seem daunting. For all that, the situation in the region is often fraught and sometimes deadly. When the UN Human Rights Council in 2016 appointed an Independent Expert to report on violence and discrimination on the grounds of sexual orientation and gender identity, there was great opposition to the vote in the Council. Not content, the opponents challenged the Council’s decision in the Third Committee of the General Assembly, to which the Council must report. The vote in that committee was 84 nations in favour of the mandate; 77 against and 17 abstentions. Fifteen countries of the Asia Pacific region voted against. Not satisfied with this outcome, the opponents to the mandate, encouraged by conservative states, the Holy See and the International Conference of Islamic States, took the challenge to the floor of the General Assembly. Having lost there, they repeated the challenge in the Fifth Committee of the General Assembly (Budget). When they lost there, they repeated the challenge in the Plenary of
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Protections against discrimination Constitution Other provisions Employment Hate crime
the General Assembly. Even to the study of violence and discrimination against people on the basis of their sexual orientation and gender identity, it is remarkable that so many countries could happily condone unredressed violence. Yet that is the case in many nations of our region. We had better face up to this reality. While there have been some affirmative changes, there have also been backward steps. Indonesia, which previously had no general criminal law against gays because of its Dutch heritage, had now adopted such laws in Aceh. Two young gay men were recently caned in public, with 100 strokes each, for consensual adult sexual conduct. Islamist politicians are encouraging a change in the previously tolerant approach in Indonesia. This is serious not only for the human rights of those affected, but also for the outreach policies that are essential for successful strategies in that country against the spread of HIV. In Singapore, courts have failed to provide constitutional protection. Modern and progressive it may seem, but Singapore voted against the mandate of the Human Rights Council. Brunei has restored the death penalty for adult consensual same-sex activity. In Bangladesh, two young men who established a gay newsletter were hacked to death in their home. No-one has been brought to justice. Bangladesh is a violent and cruel place for gays and trans people. The bedrock of prejudice in most of these countries remains the unreformed criminal law, inherited from Britain, which they retain and nurture for prejudice and stigma, 60 years after the world came to know how irrational and unscientific such prejudice and stigma are. So what can be done in our region, particularly in the countries of south Asia where the violence is the daily companion in life for gay and trans people? Lawyers and other experts need to step up the demands for reform. Among lawyers there has been a lot of progress since, in 1988, the International Commission of Jurists in Geneva added homosexual rights to the program. Now LAWASIA, the International Bar Association, the Commonwealth Law Association, and Human Rights Watch are all demanding action in bringing the message into the influential judiciary and 56
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Gay, Bisexual, Trans and Intersex Association: Carroll, A. and Mendos, L.R., State-Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation,
Japan Kiribati Mongolia Nepal
New Zealand Philippines Samoa South Korea
Taiwan Thailand Tonga
the legal profession. Embassies of countries that have made great strides can reach out to and support the heroes of civil society beyond the embassy wall. In Bangkok, as has been regularly done, the Australian Embassy invited the leaders of the APCOM conference to a diplomatic reception to show solidarity and friendship. In some countries, the American Embassy has flown the rainbow flag on key dates, so all who pass by will get the message that a universal movement is underway. Transnational corporations increasingly have strong policies of outreach and inclusion for their gay and trans employees. In part they do this because research shows it is good for business. In countries like Japan, South Korea, India and even China, these corporations will be in the vanguard for securing local reform. Gay and trans leaders must themselves reach out to religious groups and enlightened faith leaders to speak up for core values, such as an end to violence and to discover love for one another. If this could be done in Australia it can be done elsewhere in our region. It will take time, but the dialogue must be undertaken. And the leaders of the United Nations and of member states that have seen the light on the irrationality must make the rainbow part of their agenda. Australia, freshly redeemed with the shockingly delayed marriage equality, should now lift its voice as a full member of the Human Rights Council. This should be a cornerstone of the policies for progress in human rights. Just as we earlier made progress against racial stigma, gender inequality, disability discrimination, and Indigenous neglect, Australians should honour the heroes for gay and trans equality in Asia and the Pacific. Their struggle puts our recent achievement of marriage equality in proper focus. Their struggle requires great heroism. We should offer the hand of friendship and support. One day, the violence and discrimination will be finished in Asia and throughout our region. But, in the meantime, there is a need for heroes – and a need for those who are their supporters and friends. g
protection and recognition (Geneva; ILGA, May 2017).
This is an edited extract of a speech given at The Sydney Institute on 14 December 2017.
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PRIVACY
India’s controversial Aadhaar hearings
PROFESSOR TONY BLACKSHIELD reports on the fight for the right to privacy in a surveillance state.
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n 18 October 2012, K S Puttaswamy, a retired judge of the Karnataka High Court, filed a writ petition in the Supreme Court of India challenging the validity of the Indian government’s controversial Aadhaar scheme. Many similar challenges have followed. The latest proceedings, in 2018, involve 27 similar cases that have now been argued together.
The Aadhaar number
India’s Aadhaar scheme involves a biometric identification system intended to be mandatory for all Indian residents (more than 1.2 billion people), and dependent on a 12-digit number (“the Aadhaar number”). The Aadhaar number is linked in digitally accessible PDF format to a set of demographic and biometric data – including facial recognition, fingerprints and iris scans –
and is intended to be used for a widening range of purposes beginning with access to government services (including pensions, welfare benefits, and fuel supplies) and extending to sim cards for mobile phones, permission to drive on public roads, online storage of media files, and access to bank accounts, medical services and workers’ insurance. The scheme has been administered since 2009 by a statutory authority (the Unique Identification Authority of India, or UIDAI), but the lack of any statutory basis for the scheme itself was initially a ground of controversy. The gap was eventually filled by the Aadhaar (Targeted Delivery of Financial and Other Subsidies) Act 2016, but that Act is now under challenge. The principal legal arguments rely on Part III of the Constitution and can only be understood against the background of the Court’s expanding interpretation of those provisions.
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"To insist on a mandatory Aadhaar is to deny the personal freedom to grant or The Court and the Constitution
Perhaps the most striking feature of the Supreme Court of India is its enormous workload. Typically, the Court decides about 55 cases a month. A report for the Vidhi Centre for Legal Policy found in 2015 that the number of new cases filed each year had risen to more than 81,500 and the number of cases pending at the end of the year had reached almost 65,000. When the Court first sat in 1950, it consisted of only eight judges. Now there is provision for 31 judges, though today there are only 25. (The five most recent appointments were made in February 2017.) To cope with the workload, the Court sits in benches typically composed of two judges at a time. When two differently constituted two-judge benches arrive at conflicting results, the conflict must be resolved by a larger bench, and any case involving reconsideration of an earlier precedent must be referred to a bench composed of more judges than that which decided the precedent case. A significant part of the workload involves the fundamental rights set out in Part III of the Constitution, including (in Article 32) a right of direct access to the Supreme Court for enforcement of the guaranteed rights. Initially, the Court took a cautious and conservative approach to Part III: its individual provisions were narrowly construed and conceived of as mutually independent, so that content ascribed to one guaranteed right was thereby excluded from another. Moreover, it was assumed that Part III (like most of the Constitution) was freely amendable by ordinary legislation. However, by the 1960s these assumptions were already beginning to change, and two watershed decisions in the 1970s initiated what is still an expanding course of interpretation. In 1973, the decision in Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461, affirmed that 60
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A citizen
photographed at a biometric data collection camp of the 'Aadhaar' project in Kolkata. His number will be stored in a centralised database and linked to basic demographics and biometric information – a photograph, 10 fingerprints and iris scan of each individual. Photograph: Biswarup Ganguly, 18 March 2015
the whole Constitution, including Part III, is open to legislative amendment – but that such amendments cannot alter the “essential features” or “basic structure” of the Constitution, including most of the fundamental rights. In 1978, the judgment in Maneka Gandhi v Union of India, AIR 1978 SC 597, capped a series of cases developing the notion of “basic structure” by insisting that the provisions of Part III should not be read in isolation, but rather as supporting and enhancing each other – cumulatively weaving a “pattern of guarantees on the basic structure of human rights” – and that the Court’s response to this cumulative pattern should give fuller substantive content both to the rights themselves and to their constitutional safeguards, especially the requirement in Article 21 that incursions on “life or personal liberty” be “according to procedure established by law”. In particular, the protection of “liberty” in Article 21 has since been found to include a wide range of “liberties” including (but not limited to) those specifically guaranteed by other provisions in Part III. The protection of “life” has been said to extend to all the essential conditions or constituents of a meaningful life, including not only the physical needs of safe and healthy survival, but all of the educational and cultural opportunities contributing to personal development. It is only against this interpretive background, now routinely taken for granted, that the challenges to Aadhaar can be understood.
The case against the Aadhaar scheme
The Aadhaar scheme is said to be incompatible with the right to privacy, in part because the systematic compilation and storage of demographic and biographic data is itself an invasion of privacy, but also because the concept of privacy is said to include a need for autonomy
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withhold consent; to require it as a condition of welfare is a coercion of consent." – the right to choose. To insist on a mandatory Aadhaar is to deny the personal freedom to grant or withhold consent; to require it as a condition of welfare benefits is a coercion of consent; and to offer it without full disclosure and adequate counselling is a denial of informed consent. Additional arguments invoke the requirement in Article 21 that any interference with “liberty” or “[meaningful] life” may be effected only “according to procedure established by law”. The Aadhaar scheme is said to fall short of that standard because of the lack of informed consent, of any procedure for “opting out”, of adequate protections for data integrity, and of any effective government control over the agencies controlling the data or providing services on the basis of Aadhaar identification. Other challenges appeal to the emphasis in Kesavananda on the underlying “essential features” and “basic structure” of the Constitution. The Aadhaar scheme is said to be inconsistent with those fundamental commitments because it creates the “architecture” or “infrastructure” of “a surveillance State”, and reverses the constitutional commitment to “limited government” by subjecting the individual entirely to scrutiny and control by the State. All these objections apply to the scheme in its operation both before and after the 2016 legislation. But the legislation is itself the subject of additional challenges. Though section 59 of the Act purports to confer retrospective validity on the operation of the scheme from 2009 to 2016 as an exercise of non-statutory executive power, the challengers argue that retrospective validity cannot be conferred in this way. In the Australian case of Plaintiff M68 v Minister for Immigration and Border Protection (2016) 257 CLR 42, in February 2016, the High Court held that the Commonwealth’s arrangements for offshore processing of asylum
seekers could be retrospectively validated by statute, but the Indian Court may take a different view (partly because of the substantive criteria nowadays read into the words “according to procedure established by law”). Moreover, when the 2016 legislation was enacted, any possible difficulties with its passage were minimised by treating it as “a money bill”. Article 119 of the Indian Constitution roughly parallels section 53 of the Australian Constitution. The upper House (the Rajya Sabha) cannot introduce a money bill; it can recommend amendments, but the lower House (the Lok Sabha) is free to ignore them. “Money bills” are defined to include legislation on matters like taxes, appropriations and payments into or out of consolidated revenue, but also on “any matter incidental to any of the matters [thus] specified”. Whether those words cover the Aadhaar scheme is one of the matters in dispute. Finally, in several cases since 2012, two-judge or three-judge benches of the Supreme Court have issued interim orders insisting that, until the constitutional issues are resolved, any use of the Aadhaar scheme must be entirely voluntary. The most obvious consequence of these directives is that later examples of insistence on mandatory Aadhaar identification have given rise to a series of petitions for contempt of court, thereby adding to the Court’s already extensive Aadhaar workload.
The privacy judgment
In July 2017 the Aadhaar petitions were referred to a five-judge bench, but a preliminary hearing on 18 July identified an initial problem. Two cases in the early years – M P Sharma v Satish Chandra, District Magistrate, Delhi, AIR 1954 SC 300 and Kharak Singh v State of Uttar Pradesh, AIR 1964 SC 1295 – had appeared to decide that the rights enshrined in
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Part III did not include a right to privacy, while since 1978 at least 30 decisions, mostly by twojudge benches, had held that there was such a right. Yet because the case of M P Sharma was decided by an eight-judge bench, it could only be overruled by a nine-judge bench. Accordingly, this preliminary problem was referred to a bench of nine judges. On 24 August 2017, the nine judges gave their decision: Justice K S Puttaswamy (Retired) v Union of India, 2017 (10) SCALE 1. The leading judgment delivered by Justice Chandrachud for himself and three other judges ran to 76,365 words, with 403 footnotes. In separate judgments the other five judges concurred. The apparent contradiction between the earlier and later cases was quickly disposed of. The earlier cases had not decided that Part III conferred no right to privacy. M P Sharma held only that, in the absence of any equivalent to the Fourth Amendment to the United States Constitution, the Indian Constitution did not prohibit “unreasonable searches and seizures”. A comment that there was “[no] recognition of a fundamental right to privacy” was “no more than a passing observation”. The majority judgment in Kharak Singh was contradictory: it first invoked the protection of “liberty” in Article 21 to hold that domiciliary visits at night were unconstitutional, but then went on to find no fault with other aspects of police surveillance. The joint judgment in Puttaswamy construed the first conclusion as affirming a right to privacy, and the second as denying it: thus there was no coherent decision. In any event, both M P Sharma and Kharak Singh were finally overruled. On the other hand, the effect of the later decisions supposedly affirming a right to privacy had also been overstated: most of them had done no more than to find constitutional protection for some limited aspect of privacy. At best, they had “left the evolution of the contours of the right to a case by case determination”. In effect, the Puttaswamy Court was free to approach the issue as one of basic principle. Yet the cases since Maneka Gandhi had also shown that “the object of a Constitutional Court … must be to expand the boundaries of fundamental human freedoms rather than to attenuate their content through a constricted judicial interpretation”. On that basis all nine judges agreed that the right to privacy is enshrined in Part III as a fundamental right – primarily in Article 21, but “enriched by the values incorporated in other rights … enumerated in Part III”. What 62
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"Constitutional arguments were interwoven with ... harrowing tales of deprivation and death resulting from the refusal of benefits by insistence on a mandatory Aadhaar."
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“permeates the core of the rights” guaranteed in Part III is the concept of personal dignity; and “[p]rivacy ensures the fulfilment of dignity”. In addition, the Court assumed (as it commonly does) that, in general, “constitutional provisions must be read and interpreted in a manner which would enhance their conformity
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with the global human rights regime”. Accordingly, the joint judgment not only relied on protections of privacy under international human rights instruments, but devoted almost a quarter of its length to tracing “the evolution of the concept of privacy in other jurisdictions”. The judges were clearly conscious that the significance of their decision would not be confined to the Aadhaar issue. Justice Chelameshwar referred to the problem of voluntary euthanasia, while the joint judgment devoted several paragraphs to section 377 of the Indian Penal Code – adopted in 1861 from the British law of the time; imposing liability to fines (and potentially to life imprisonment) on “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”; and commonly understood (and still applied) to make homosexuality a crime. In 2009 the Delhi High Court had found the provision unconstitutional; but in 2014 a two-judge Supreme Court bench in Suresh Kumar Koushal v NAZ Foundation, AIR 2014 SC 563, had overruled that decision, stressing that “the desirability and propriety” of repealing or amending section 377 was a matter for the legislature. The joint judgment in Puttaswamy singled this out as a “discordant note”. Its reasoning was “inappropriate”, “not … sustainable”, “flawed”, and “cannot be accepted”. But since a challenge was pending in another case, it was left to be decided there. Before closing, the joint judgment made several points of significance for the Aadhaar issue. First, “at the core of the human personality” (and hence of the interlocking values of liberty, privacy and dignity) lies “the autonomy of the individual” – “the ability to make choices”. Second, as the internet “has become all pervasive”, the increasing reliance on metadata and data mining has created what Yvonne McDermott has called “an era of ubiquitous dataveillance, or the systematic monitoring of citizens’ communications or actions through the use of information technology”. The result is an imperative need for effective systems of data protection. Third, the requirement in Article 21 of “procedure established by law” must extend in this context to “a robust regime” that satisfies “a three-fold requirement”: there must be a properly enacted law; it must have a legitimate purpose; and the legislative means adopted must be proportionate to that purpose, since
proportionality is “an essential facet of the guarantee against arbitrary state action”. In the Aadhaar context, these requirements mean that government programs providing “benefits to impoverished and marginalized sections of society” must be “coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes”, and hence with a need for “authentic data”. But they also mean that such data must themselves “be utilized for legitimate purposes of the state and ought not to be utilized unauthorizedly for extraneous purposes”. Finally, the joint judgment noted that on 31 July 2017 the government had established a new committee, headed by a retired Supreme Court judge, to ensure “that a robust regime for the protection of data is put into place”. It would therefore be “appropriate to leave the matter for expert determination”, in the expectation that the government would implement the committee’s recommendations by “all necessary and proper steps”.
The current hearings
On 17 January 2018, a five-judge bench began hearing arguments on the Aadhaar petitions. The hearings continued intermittently through the whole of February and into March. On 8 February, Justice Puttaswamy celebrated his 92nd birthday. Thereafter, as the weeks went on, the constitutional arguments were interwoven with powerful rhetorical appeals to the tradition of Mahatma Gandhi, and with harrowing tales of deprivation and death resulting from the refusal of benefits by insistence on a mandatory Aadhaar. At the time of writing, the Aadhaar hearings are ongoing, apparently with no end in sight. But on Wednesday 7 March, the Court made an interim order that students do not have to give an Aadhaar number in order to be allowed to sit for national examinations. The Central Board of Secondary Education had previously passed an order directing all students to produce their Aadhaar number to register for the National Eligibility-cum-Entrance Test examination. As for section 377 of the Indian Penal Code, it must wait till another day. g PROFESSOR TONY BLACKSHIELD is Emeritus Professor of Law at Macquarie University in Sydney, Visiting Professorial Fellow at the University of New South Wales, and Honorary Professor of the Indian Law Institute in New Delhi.
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BUSINESS
The business of Bitcoin MICHAEL BACINA examines how our region is responding to the currency of the future.
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ever before has the world seen such widespread and fast adoption of a socially agreed medium of exchange not backed by government. Since Bitcoin was introduced in 2008, its popularity has continued to grow. The leading online payment gateway, Bitpay, was on track in December 2017 to process US$1 billion in transactions per year and, at the time of writing, the market capitalisation of Bitcoin was almost US$200 billion, with an estimated 15 million users (coinmarketcap.com). While Bitcoin adoption still has a long way to go before it reaches daily mainstream use, one factor which will directly impact on the speed of that adoption is the degree to which governments either help or hinder those wishing to use Bitcoin. While some media headlines have focused on Bitcoin’s early association with the Dark Web and associated criminal activity, governments in Western countries have come to be broadly supportive of the innovation which distributed ledger technology and Bitcoin can bring to the economy.
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The growth of Bitcoin
18 AUG 2008 Bitcoin name appears and domain name bitcoin.org is registered
3 JAN 2009 Satoshi Nakamoto creates the first Bitcoins
5 OCT 2009 US Bitcoin exchange rate is published; one Bitcoin was worth 7 per cent of $0.01
22 MAY 2010 Laszlo Hanyecz makes first purchase of goods - two pizzas for 10, 000 Bitcoins
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Regulation: distributed ledger technology vs regulation of cryptocurrencies This article is limited to a summary of the key regulatory steps that legislatures and financial services regulators have taken in the Asia Pacific region and the United States in respect of the regulation of Bitcoin and cryptocurrencies. Many of these regulations (or potential regulations) touch upon so-called Initial Coin Offerings (‘ICOs’). ICOs occur when a group or corporate entity create and sell their own cryptographic token (or ‘coin’) as part of raising funds to build a blockchain platform or create a new currency as a means of exchange. Legislatures have generally responded to distributed ledger technology by addressing it together with cryptocurrencies. This is in part due to the large amounts of money being raised during ICOs. The approach of different countries to the regulation and tax treatment of Bitcoin in particular, and cryptocurrencies in general, is marked, ranging from complete bans through to pro-active regulation and encouragement of further development of this new technology.
Regulation of Bitcoin – who’s doing what around the region? Australia – In December 2014, the Australian Taxation Office (‘ATO’) issued a number of public rulings outlining its views on the application of Australia’s domestic taxation laws in respect of transactions involving Bitcoin. Broadly, the ATO proffered its views that: • Bitcoin was a capital gains tax asset and therefore dealings in Bitcoin could result in both capital gains and losses for taxpayers; • Bitcoin held for the purpose of sale or exchange in the ordinary course of a business is subject to the trading stock provisions; • The provision of Bitcoin by an employer to an employee comprises a “property fringe benefit” for which fringe benefits tax is payable; • Bitcoin is not ‘foreign currency’ (if it were foreign currency, gains and losses would have been on income account only); • Where Bitcoin was used for business transactions, a 1992 ruling dealing with barter transactions applies; and • A transfer of Bitcoin from one entity to another is a supply for goods and services tax ('GST') purposes (which potentially led to double GST as both the party supplying and
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a party paying for goods using Bitcoin could each be making taxable supplies on which GST was payable). On 1 July 2017, Australia removed this potential double-taxation of digital currency. However, notwithstanding the advances in relation to the GST treatment of cryptocurrency, the ATO went on to update its views on GST and digital currencies. Broadly, those updated views included a statement that the GST treatment of an ICO depends upon the nature of the underlying token. While ICOs involving traditional cryptocurrencies such as Bitcoin would not attract GST, where the token was exchangeable for goods or services, the sale of the token might be subject to GST. This appears unusual when applied to so called “utility” or “access” tokens, which would be more analogous to vouchers or pre-paid services, and which would normally attract GST at the point of use, not the point of purchase. However, perhaps the biggest issue presently facing ICOs in Australia is the treatment of tokens for income tax purposes as trading stock rather than as a form of security, meaning funds raised on an ICO are potentially subject to taxation. Additionally, where ICOs receive other currencies other than fiat on an ICO, due to the volatility of cryptocurrency, it is prudent for the issuers to convert those currencies to fiat on the day of the ICO. Given that many ICOs are being undertaken for the purpose of funding a related digital business, if taxation of proceeds applies to an ICO this can have a detrimental effect on the amount raised. A number of pending Private Rulings by the ATO should, once released, assist in providing greater certainty around how the ATO will treat certain cryptocurrency transactions. The Australian Securities and Investment Commission ('ASIC') recently released guidance concerning ICOs, indicating that ASIC would consider each ICO's coin or token structure and features when forming a view as to whether any particular ICO would fall into a regulated product category. At this stage, ASIC has invited early engagement by those seeking to operate an ICO, but has not commenced any prosecutions of ICOs. Further guidance from ASIC is expected this year. On 3 April 2018, amendments to the Anti-Money Laundering and Counter Terrorism Financing Act 2006 will take effect. Bitcoin and other cryptocurrencies will come under a definition of “digital currency” and the Act will require the registration of digital currency exchanges with the government’s antimoney laundering agency, AUSTRAC. Those digital
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currency exchanges will be required to comply with and maintain an Anti Money Laundering Policy to report suspicious transactions and maintain records for seven years of trading activity. These changes were needed in part to address a perception of illegitimacy caused by the regulatory gap, but it was also felt that leaving cryptocurrency outside of the Act could stifle further innovation in the space. It is interesting to note that these changes arose in part as a result of cryptocurrency exchanges proactively approaching regulators and asking to be brought in from the cold.
certain features of a coin could cause it to
Japan is be considered a share, debenture or in a collective investment considered one of interest scheme. This position is not the most progressive dissimilar from that taken in jurisdictions regulating Australia by ASIC. cryptocurrency … an Japan – Japan is considered one of the most progressive jurisdictions estimated one million regulating cryptocurrency, and Japanese own the Financial Services Agency of Japan has worked with cryptocurrency Bitcoin. exchanges to regulate them. It is estimated
China – In the past, the Chinese government
took a very hands-off approach to Bitcoin and, between 2014 and 2017, the Chinese market made up approximately 90 per cent of global Bitcoin trading volume. In 2016, the government indicated it was considering a state-issued cryptocurrency, but by September 2017 it changed tack and banned ICOs altogether, resulting in a sharp drop in the the price of Bitcoin. Financial institutions and third-party payment providers are now prohibited from using, accepting or selling virtual currencies, including Bitcoin. Many Bitcoin mining companies are consequently relocating from China to Canada and other jurisdictions which embrace such innovation. China is the largest country to have effectively banned cryptocurrencies and has the most restrictive regulations limiting the use of Bitcoin. While reasons for the ban are not public (other than government statements about protecting people from speculation), the ease with which Bitcoin and other cryptocurrencies enable Chinese citizens to bypass the otherwise very strict capital controls implemented by the Chinese government on movement of currency out of China have likely played a part in the regulator’s decision.
Hong Kong – While ICOs are banned in China, they are permitted in Hong Kong, provided the tokens on issue are purely for access to a platform or product and do not represent ownership of an underlying asset. The regulatory position remains unclear th; the Securities and Futures Commission issued a notice on 5 September 2017 declaring that while “typical” ICOs would be considered “virtual commodities” not subject to specific regulation,
that around one million Japanese own Bitcoin. On 1 April 2017, Japan enacted a law known as the Virtual Currency Act ('VCA'), which authorised the use of digital currency as a method of payment. The VCA defines a virtual currency as a digital token with “asset-like values”. It states that Bitcoin is considered both an asset and a payment method but, importantly, that it is not a financial instrument. The VCA does not, however, go so far as to declare Bitcoin legal tender. In September 2017, the Financial Services Agency of Japan started granting licenses to 11 digital currency exchanges in a further move to regulate cryptocurrency trading. In recognising Bitcoin as a virtual currency and a valid means of payment, Japan’s government has accelerated the acceptance of Bitcoin with an estimated 10,000+ stores in Japan now accepting Bitcoin, including major brands and an airline (See: “Despite Bad Press, Japanese still snapping up cryptocurrencies”, Deustche Welle).
Singapore – The Monetary Authority of Singapore (‘MAS’) and the Singaporean government have been supportive of Bitcoin and cryptocurrencies in general. A large number of ICOs are run from Singapore and regulation of Bitcoin commenced in 2014. In Singapore, ICOs are regulated in a similar fashion to Australia and Hong Kong. If a coin’s features cause it to fall within the definition of traditional financial products, such as a share, derivative or collective investment scheme, it will need to comply with the existing regulatory regime. In November 2016, MAS partnered with the R3 Consortium as one of the earliest government projects to discover uses for blockchain technology. Specifically, Project Ubin is seeking to find ways for financial markets to operate more efficiently. Earlier this year, Singapore made clear that it will
12 APR 2011 Interest continues to grow and one Bitcoin is finally worth US$1.00
14 NOV 2011 A successful hack spreads fear over Bitcoin's security, volatile prices and links to criminality
29 NOV 2013 Chinese investors contribute to a rapid rise in value, reaching US$1,000
11 DEC 2014 Microsoft accepts Bitcoin as payment as it becomes more mainstream
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4 MAR 2016 Japan recognises the legitimacy of virtual currencies
17 DEC 2017 Bitcoin hits its highest ever value of $19,783 but hasn't surpassed it since
treat Bitcoin and cryptocurrency transactions as if they were cash transactions made in fiat for the purposes of antimoney laundering rules and regulations. They have indicated concern over retail investors speculating in cryptocurrency markets and Singapore’s central bank, and MAS has very recently signalled it is considering additional rules to protect investors. Leaders have also made it clear they see no strong case to ban Bitcoin or cryptocurrencies. Singapore is working to finalise and pass the Payment Services Bill, which is expected to bring Bitcoin and cryptocurrency under a registration scheme as "providing virtual currency services", "dealing in virtual currency" and "facilitating the exchange of virtual currency" will be regulated activities if the bill passes in its current form.
South Korea – In 2013, the Korean Financial
22 JAN 2018 South Korea bans anonymous trading amid tax regulation challenges
23 FEB 2018 After a bruising decline in early 2018, Bitcoin regains value Source: 'Bitcoin: charting the life and times of a cryptocurrency', Deutsche Welle. (dw.com/en/bitcoincharting-the-life-andtimes-of-a-cryptocurrency/ a-42470161cryptocurrency /a-42470161 )
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has provided guidance that defines
China is the “virtual currency” as property for purposes and accepts that largest country to taxsome jurisdictions treat virtual have effectively banned currency as “real” currency (i.e. legal tender). cryptocurrencies and likeIndividual states have has the most restrictive taken the lead over the Federal agencies, with Arizona, Hawaii, regulations limiting New Hampshire, Illinois, the use of Bitcoin. Vermont and Florida all passing
Supervisory Service and other agencies announced that “cyber currency” is not “real legal currency” and does not meet the standards required for currency transactions. Despite this, South Korea has always enjoyed a strong position in global trading volumes for Bitcoin. During 2017, regulators in South Korea started introducing further regulations. In June 2017, the Financial Services Commission of Korea issued a complete ban on Bitcoin futures trading, with ICOs banned in the country and mixed messages on whether cryptocurrency exchanges would be permitted to operate. In early 2018, the Blue House announced there would be no ban on cryptocurrency trading in the short term. Even with the mixed messages, local Korean media reported that trading volumes in February 2018 had reached new highs, with US$250 million traded in Bitcoin in 24 hours on 19 February 2018 on one of the most popular cryptocurrency exchanges. South Korea remains a highly active jurisdiction for cryptocurrency trading.
United States of America – The USA has had a
mixed attitude to Bitcoin and cryptocurrencies to date, with the Securities and Exchanges Commission (‘SEC’) taking a hard line towards ICOs, and the Internal Revenue Service (‘IRS’) cracking down on those trading cryptocurrencies but not declaring gains on their taxes. The IRS
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or considering laws that provide for courts to rely on information stored in a blockchain as evidence of a fact, and including a statutory definition of smart contracts. Nevada permits businesses that are required to store records in writing to use the blockchain to do so. Further, the National Conference of Commissioners on Uniform State Laws voted in July 2017 to approve a model act for regulation of digital currency businesses at state level. On 6 February 2018, the American Bar Association approved a Uniform Regulation of VirtualCurrency Businesses Act, which defines “virtual currency” as a digital representation of value that is used as a medium of exchange, unit to account or a store of value and which is not legal tender. The uniform Act also includes consumer protection provisions. This “bottom up” legislative approach may see change at the top as the SEC comes under pressure from states seeking to benefit from the popularity in cryptocurrencies.
What’s next?
The sensational 'boom and bust' style headlines will undoubtedly continue for sometime. It is hard to deny that Bitcoin is a volatile medium of exchange with many uncertainties and challenges associated with it. But given the global nature of cryptocurrency, we hope legislative responses to Bitcoin in particular and cryptocurrencies in general will continue to strike a fair balance by encouraging innovation in this exciting new space while providing protection to potential backers of cryptocurrency projects. g MICHAEL BACINA is a partner in the Sydney office of Australian law firm Piper Alderman. He is an expert in Bitcoin and cryptocurrencies and a member of Blockchain Australia. He wishes to acknowledge WILL FENNELL, a special counsel at Piper Alderman, for is his valuable assistance with the taxtion aspects of this article.
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Limitless
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PROFESSIONAL DEVELOPMENT
How to go from good to great
RACHEL SETTI explores the difference between being a good and a great lawyer.
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ho is the most notable lawyer you have ever worked with? What sets them apart: exceptional knowledge of the law; capacity to secure excellent outcomes for their clients; commitment to the profession; wisdom? Undoubtedly it is all these things and more, although I hazard a guess that their ability to inspire others is also a standout – after all, they inspired you.
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In my experience of working with lawyers, the determining factor separating good from great lies not in the capacity to apply the law well – all good lawyers do this – but in the ability to engage, influence and understand themselves and others. This ability is often referred to as emotional intelligence (EQ). One of the basic elements of EQ is an individual’s ability to monitor their emotional state
and regulate emotional impulsiveness. Inspirational lawyers and leaders have this ability in spades. Though they experience the same negative emotions as others, including anger, sadness and frustration, they regulate their responses appropriately and productively. People with high EQs: • understand what drives their behaviour • possess insights into their • intrinsic motivations • display vulnerability when appropriate • admit to mistakes • seek support and feedback • to learn and grow.
Enhancing your EQ
The good news is that unlike IQ, which is often considered to be relatively fixed and stable, you can improve your EQ. It involves increasing your self-awareness
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and exploring your interpersonal and intrapersonal style. Like many worthwhile endeavours, developing your EQ is a multifaceted and ongoing process. The best way to start is by making an effort to truly listen – both to yourself and to others.
Listening to yourself
Start by noticing your emotions and your response to them. For example, are there certain people or situations you find difficult to navigate? When you encounter them, what happens to you physically and emotionally? Do you get butterflies in your stomach or experience mood shifts? Think about what you say to yourself in such situations. Perhaps you imagine a negative outcome before it has even happened. Now, turn your attention to the impact your self-talk and emotions have on your behaviour. Do you get irritable, evasive or curt? Tracking these observations and noting them is often a useful way to expose patterns. As an example, one of my clients, a successful senior executive, found it difficult to engage in small talk at networking events. Success had come through her sharp intellect and excellent application of her craft. However, her career progress had plateaued, which she realised was related to her interpersonal style. She started to address this by observing her emotions and self-talk, and noticed that in networking and similar situations she felt agitated, frustrated and annoyed. She then sought feedback from others to gain a more rounded view of the way her behaviour was perceived. By examining her thoughts, emotions, behaviours and motivations she was able to shift her default patterns and create a new approach to networking with a more positive set of responses.
Listening to others
A second aspect of developing EQ involves active listening, which refers to processing the words being delivered.
However, this is not the end of the story – most effective listening occurs when you focus on the subtext of the conversation. This is because clues are presented in many ways through tone, body language, posture, repetitions and omissions. The process of piecing together the true meaning behind what people say is often referred to as using your ‘third ear’. It is rather like putting together a puzzle, except there is no fancy picture on a box to guide you. Instead, you need to rely on hunches and intuition, which is tested as you communicate through conversation and questions with another person. You can improve your EQ by developing your third ear. During conversations, avoid offering advice (initially at least) and listen with an open mind. Remain in the moment rather than thinking ahead. Pay attention to what is going on with the other person by being aware of all the messages they present, both verbal and non-verbal. Then follow through with insightful questions and reflections to clarify your understanding of their message. This type of approach indicates to others that you are listening and are genuinely interested in what they have to say. It encourages them to invest in their relationship with you.
A competitive edge
With so many aspects of the legal profession now involving electronic interactions, having the ability to build strong human relationships will give you a competitive edge. Building your EQ can help you get there. The capacity to change and adapt is essential for progress and growth, so remember to recognise your interpersonal challenges. We all have them. Encourage and enhance your development through reading, finding an inspirational mentor, working with coach or other endeavours. g RACHEL SETTI is an organisational psychologist and coach who specialises in teaching effective leadership and interpersonal skills.
Dear Fiona
I love my work but I don’t admire or even like my boss. What strategies can you suggest so I can thrive at work and still get ahead? – Alex Dear Alex, In leadership, there is an age-old debate: is it better to be liked or respected? In my view, being respected, approachable and likeable is a winning combination. After all, it’s often stated that a bad boss is the number one reason people leave their job. However, given you find yourself in a positon where you don’t like or admire your boss, try these strategies to help you thrive despite this.
1. Stand back When you’re caught up in a situation like this, it can be difficult to see things as they really are. Ask yourself how long you have felt like this, has something triggered these feelings, and is the situation genuinely as bad as you think it is.
2. Talk it out Suffering in silence will make things worse, and make you miserable. Talking to your boss about the situation is important, and how you approach that conversation is crucial. Avoid confrontational language – and don’t lay any blame. Use collaborative language such as “we” and “us”, rather than “I” and “you”. Make it clear you want your relationship to be strong, and that you are looking for ideas on how you can both do that.
3. Be active, not passive Taking action on the situation will make you feel better immediately. Don’t be a passive bystander in the success of your career. If you try everything and nothing changes, you have to decide if you stay or go. Find our more at fionacraig.com.au
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PSYCHE
Can you have real friends at work?
Psychotherapist GUY VICARS offers suggestions for understanding and managing friendships with colleagues.
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ne of the things missing from social life is, well, social life. I’m not referring to going to the pub, although that may be part of it. I’m talking about real connections, where you spend time really connecting with people who know you, enjoy you, support you and care about what happens to you – what is sometimes called your “village”. For many professionals, the workplace has become your village. It’s where you spend the bulk of your time and energy. If you are lucky, it can offer an esprit de corps, where people support and enjoy wins and losses together. Yet the workplace can seem and be antithetical to real friendships. Genuine connections that aren’t based on output and productivity, where you feel free to be yourself and let your guard down, are rare. So, where’s the line between an effective, professional, working relationship and a personal friendship? Many of the qualities present in effective work relationships are the same as those in friendships. This is a good thing. Where it’s not so good is
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Friendship is based on equality. Workplaces can’t always support this. lack of clarity on the differentiation between their purpose and place. The point where relationship roles and limits get blurred is usually when they become problematic. There are two basic areas where problems arise: • an imbalance between what two people want from a relationship • a difference in seniority If a colleague wants more time when you are trying to work and their attempts feel disruptive, you need to address the situation. Clarifying work roles and obligations with social needs is a healthy way to respect your colleague, your workplace and yourself. When a colleague becomes more senior to you or vice versa, hierarchical structures in your workplace might
mean that an equal relationship isn’t possible. By definition, a friendship is based on equality and mutuality. Workplaces can’t always support this.
Real workplace friendships
If a working relationship feels like it is growing and becoming more personal, it’s helpful to set some parameters: • Recognise the confines of work and make time for the other person outside of office hours • Talk about non-work things during breaks, lunch or over coffee • It’s likely “work chat” will be part of your socialising, so ensure you set work discussions aside at times, enabling you to actually get to know the other person on a different level. Friendships are worth their weight in gold. They make us more human and approachable and help reduce stress and enhance our work-life as well as our social life. Investing in those around you will pay solid personal dividends. g GUY VICARS is a psychotherapist and trainer. Visit guysdomain.com.au
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PERFORMANCE
There’s something about 9
"First-time marathoners are 48 per cent more likely to be at an age ending in nine."
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eople often start a new decade by undertaking or pursuing out-of-character activities – getting a drastic new hairstyle at age 30, buying a flashy red convertible when they turn 40. But it turns out that the real life-changing events happen the year before. According to researchers, it is the lead up to, rather than entering a new decade, that prompts a new level of
soul-searching. In turn, it can lead to extreme behaviour, whether deciding to run a marathon or have an affair. A team of US-based researchers, led by Adam Alter at New York University’s Stern School of Business, decided to explore chronological ages when people take assessment of their lives (Alter and Hershfield, 2014). They found that people are more likely to embark on a big task or do
something extreme when they are aged in years ending in nine (29, 39, etc). They are also more likely to be successful. First-time marathoners, for example, are 48 per cent more likely to be at an age ending in nine than any other age. They also run faster, which fits into the researchers’ hypothesis that as people search for more meaning in their lives, they look for activities that can magnify their sense of self-worth and purpose. On the downside, intense selfassessment can also leave people believing their life is lacking. The research found that the “9” factor related to extra-martial affairs, which is 18 per cent higher than for non-9ers, and even suicide, which is 2.4 per cent higher. “Across six studies we showed that 9-enders are particularly preoccupied with aging and meaningfulness, which is linked to a rise in behaviours that suggest a search for or crisis of meaning. Although some of these effects were small, they occur in domains with consequential life outcomes,” the authors noted. A subsequent study that looked at the effect of milestone ages on health and emotions (Shatz et al, 2015) also found that focusing on an agerelated milestone, such as turning 40, prompted people to closely examine their lives. It also found that when it comes to assessing their lives, negative emotions, rather than positive ones, had a bigger impact on how people judged their lives. g
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insulin sensitivity, help control blood glucose levels, improve a fatty liver and even reduce the amount of fat you store around your abdomen. It is important to buy extra virgin olive oil, however and not products labelled as “light” or “pure olive oil” are good. These are all refined products and do not contain the health promoting qualities of fresh extra virgin olive oil. Refining the oil removes many of the beneficial antioxidants, phytosterols and polyphenols. It’s a myth that cooking with extra virgin olive oil destroys its benefits. Good quality extra virgin olive oil has a high smoke point of about 200-220°C. It can be used for stir-fries, on the barbecue, roasting foods in the oven and pan-frying. Drizzling extra virgin olive oil over your salad or steamed veg not only adds flavour, it helps you absorb more beneficial plant compounds.
Avocado
NUTRITION
Fats can be your friends
Nutritionist JOANNA MCMILLAN explains why some fats are no longer our enemy.
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emember the days when we all tried to avoid fat of any kind? Thankfully we’ve moved on. We now know that eating the right fats is essential for optimal health. Fats help deliver taste and flavour and are necessary for the absorption of many antioxidants including betacarotene, not to mention the fat-soluble vitamins A, D, E and K. Here are my favourite fats to include in your regular diet.
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Extra virgin olive oil
The Mediterranean diet is one of the healthiest in the world. It has been associated with lower rates of heart disease, blood pressure, stroke, diabetes and many cancers, along with better cognitive health. There are many factors that may contribute to this, but one of the key characteristics is the widespread use of olive oil. Olive oil is rich in monounsaturated fats. It can help you achieve a healthier blood cholesterol profile, improve your
Along with providing a rich source of healthy monounsaturated fats, avocado is good source of fibre. Half an avocado contains 6-7g of fibre – almost one quarter of your daily goal. You may also be surprised to know that avocados are a good source of vitamin C. This makes them a great addition to a vegetarian meal as they will help you to absorb more plant iron. Half an avocado also provides about one fifth of your daily folate needs. Folate protects DNA and cells from damage and therefore plays a key role in anti-aging. Avocados also contain a significant level of vitamin E.
Nuts
Nuts contain many different nutrients that may account for their beneficial effects on health, which may explain why a large US study found that eating a small handful of nuts (30g) on five or more days a week halved the risk of heart disease. Pecans, pistachios, almonds, cashews and hazelnuts provide
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predominately monounsaturated fat – similar to olive oil – while Brazil nuts, walnuts and pine nuts are rich in polyunsaturated fats, which are known to improve blood cholesterol profiles. Nuts also contain vitamin E, antioxidants, folate, arginine and plant sterols, which contribute to heart health. Because they are rich in fibre and protein, eating nuts helps slows stomach emptying and therefore helps you to feel full and keep hunger pangs at bay. They are also hard work for your body to break down – which is a good thing. It means some of the nut makes it through the colon undigested and carries a few kilojoules straight out the other end.
What's in a portion? 30g
Walnuts
30g
Cashews
Nutty stuff
Brazil nuts are a rich source of the antioxidant mineral selenium. Two or three nuts are all you need to meet your daily requirement. Almonds are head and shoulders above other nuts for vitamin E. A handful is pretty much all your need for your daily quota. Walnuts are a standout for plant omega-3 fat alpha-linolenic acid (ALA); 30g of nuts provides 1.9g. Harvard researchers recommend eating 2-3g a day. Pecans have an impressively high antioxidant score. They are especially high in one form of vitamin E that helps protect LDL-cholesterol from damage. Pistachios are different to other nuts as they contain beta-carotene that can be converted to vitamin A, and lutein, which are essential for good eye health. Cashews and pine nuts top the nut charts for iron and zinc. Try consuming with a vitamin-C rich piece of fruit to optimise iron intake, especially if you are a vegetarian.
Seeds
These nutritional powerhouses provide quality protein and all of the essential amino acids, making them an especially good addition to a vegetarian meal.
30g
Hazelnuts
30g
Almonds
30g
Pistachios
Source: www.nutritionaustralia.org
They also offer a wealth of antioxidant and other beneficial plant compounds. Pumpkin seeds (pepitas) are especially rich in iron – one of the most common nutrient deficiencies. A tablespoon of seeds provides about 10 per cent of the daily iron requirement for adult women and more than 20 per cent for men and post-menopausal women. They are also an excellent source of magnesium, which you need for a healthy immune system, blood pressure, normal muscle and nerve function, managing blood glucose levels and to keep your bones strong. Sunflower seeds are one of the richest sources of vitamin E, which plays a crucial role in protecting cells from damage, including sun damage to the skin. A tablespoon provides 22 per cent of the recommended requirements for women and 16 per cent for men. Sesame seeds are particularly rich in manganese and copper and also provide significant levels of calcium, iron, magnesium, phosphorus and zinc. Keep in mind that a few seeds sprinkled on your bread roll aren’t enough to make a difference. Use tahini – sesame seed spread – to really give your body a sesame nutritional boost. Flaxseed is especially rich in fibre. Adding just a tablespoon to your breakfast delivers an extra 3g of fibre. Flaxseed, along with chia, is one of the highest sources of plant omega-3 fats, which play an anti-inflammatory role in the body. Chia is rich in plant omega-3 fats, antioxidants, protein and contain both soluble and insoluble fibre. It slows the digestion of carbohydrates, thereby lowering your GI and helping you manage your blood sugar levels. It also makes you feel fuller. The fibre in chia helps lowers your risk of colon cancer and other gut disorders while boosting your immune function. g JOANNA MCMILLAN is a nutritionist, dietitian and author. Visit drjoanna.com. au for more health advice.
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LONGEVITY
Secrets to living a long and healthy life
JOANNA MCMILLAN uncovers the key habits and traits of people who live exceptionally long, healthy lives.
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hat is it about the island of Sardinia, which has the world’s highest number of men over the age of 100, that makes exceptional longevity possible? Researchers decided to find out and ended up focusing on specific villages with the highest number of elderly men, which they called “Blue Zones”. Interest grew when Dan Buettner and National Geographic extended the project. Buettner and a team of researchers identified four other areas of the world that stood out for longevity and low levels of chronic diseases, such as heart disease and dementia. They came up with five areas of the world that have become known as the Blue Zones, namely: • the Japanese prefecture of Okinawa; • the Greek island Ikaria; • the Nicoya Peninsula in Costa Rica; • Seventh Day Adventists living in Loma Linda, California; and • the Barbagia region of Sardinia. Researchers were keen to find out: what is it that these people are doing that others aren’t?
You might guess that genes play a major role, but this doesn’t seem to be the case. A study of twins in Denmark (published in Human Genetics, March 1997), found that genes accounted for only 26 per cent of the variance in longevity for men and 23 per cent for women. Setting aside infectious diseases and war, diet and lifestyle factors are the primary candidates for explaining the longevity. By studying these five areas, the research team was able to identify common factors that seem to play crucial roles in long lives. So, what are the people of the Blue Zones doing that makes them so special?
A sense of purpose
The Nicoyans call it a “plan de vida” and the Okinawans “ikigai”. In essence, it means having a strong sense of purpose and a reason to get out of bed each morning. Feeling as if you are needed is clearly good for the human spirit; the researchers claims it adds up to seven extra years of life. The Blue Zone communities look after each other, for
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example the elderly often help care for children and continue to play a role in family life.
Strong social connections
The Okinawans have a “moai”, a group of people who come together as a kind of extended family to provide support to each other. The idea originated from farmers forming co-operative groups to share information, ideas and support to each other when crops failed. Today the idea is extended to the greater community. The moai provides everyone with a system of support and help in tough times, including grief and financial troubles. Forming your own moai can be difficult if you live in a bustling city. You can be surrounded by people every day, yet fail to make the close connections we all need. Rural communities seem much better at it. Confiding in people you trust brings them closer and helps them to feel they can confide in you. Make time for family and friends. Your social circle of people of all ages is your moai and time spent with them is good for your health and theirs. Especially when you laugh!
Scheduled downtime
Everyone has some level of stress to deal with. Blue Zoners, however, have specific routines to get rid of their stress: People in Okinawa take a few minutes each day to remember their ancestors, Adventists pray and Ikarians nap.
Eat lots of plants, herbs and spices Although there are big differences in the diets across the zones, one common thread is that they all eat a lot of plant food, especially the Adventists living in Loma Linda. The Okinawans often grow their own veggies and spices, such as mugwort, turmeric and ginger, and consume them regularly with their food. The Ikarians drink lots of herbals teas made with wild rosemary, sage and oregano. The Sardinians and Ikarians use an abundance of herbs in their Mediterranean diets. In Australia, we tend to make the meat or fish the hero on the plate, with veggies served as a side dish. The opposite is true in the Blue Zones. They eat lots of plant foods
accompanied with small servings of animal and seafoods. The Sardinians for example, reserve meat for Sundays and special occasions.
Light eating, especially at night
Most of the people of these regions eat a lighter dinner well before bedtime. This helps to improve sleep quality, which we know from other research is associated with better health and weight control.
Naturally active
The people of the Blue Zones are not hitting the gym or running on treadmills. They are active in their everyday lives. The Okinawans are keen gardeners, even into old age, plus they practice Tai Chi, which also helps to lower stress levels. The Sardinians walk more than 8km a day. The Ikarians live in a rugged, hilly terrain and also walk daily, helping to keep them fit and lean. In fact, walking is common to all regions.
Drink in moderation
The Sardinians and Ikarians follow traditional Mediterranean diets, this includes drinking wine, mostly red, and almost always with a main meal and with company. What they don’t do is binge drink.
Plenty of calcium and sunshine
SEVENTH DAY ADVENTISTS IN CALIFORNIA, USA
BARBAGIA, SARDINIA
OKINAWA, JAPAN
IKARIA, GREECE NICOYA PENINSULA, COSTA RICA
The blue zone
The Sardinians and Ikarians drink goat’s milk. They also make cheese from goat or sheep milk, including pecorino. The Nicoyans drink water high in calcium. The Okinawans eat fish with soft bones. People in all five zones spend good proportions of their time outdoors in the sunshine. Collectively, this means plenty of calcium and vitamin D, contributing to good bone health well into old age. Applying some of these lessons might help us lengthen our own lives. g JOANNA MCMILLAN is a nutritionist, dietitian and author. Visit drjoanna.com.au for more health advice.
Places in the world where people live longer and healthier than anywhere else
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DREAM DESTINATION
Jungle healing
Relax and revive at Kamalaya in Koh Samui, Thailand, named the best spa in the world. By UTE JUNKER.
I
t’s a terrible way to start the day: lying in bed, trying to choose between a wake-me-up yoga session with sea views, or rolling over and getting a little extra sleep. At Kamalaya, they understand your pain. That is why the yoga classes are scheduled for the civilised hour of 8.30am. No need to fret about breakfast either: it is available until 10.30am, so you can break the fast after your yoga session. These small touches are one of the reasons Kamalaya Wellness Sanctuary and Holistic Spa Resort consistently tops the list of the world’s best spas. At this year’s World Spa & Wellness Awards in London, it was named Worldwide Health & Wellness Destination of the Year, having twice been named Resort Destination Spa of the Year – Asia & Australasia. But Kamalaya is about more than massages and facials. Set amid verdant tropical greenery in a secluded spot on the southern tip of Koh Samui, the resort offers a choose-your-ownadventure approach. If all you have time for is a quick recharge, you can stay for a couple of days and book treatments as you go. If you are ready for a more serious dose of wellness, Kamalaya has exactly what you need. The resort offers holistic programs
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It's best to allow at least seven days to slow down and absorb the full effects of the Kamalaya experience. tailored to address a range of issues, from stress and burnout to mental and emotional healing, including coping with change. Someprograms focus just on the physical side, but most include some sort of guidance sessions. Take the seven-day Basic Balance and Revitalise package, designed for
those in serious need of some time out. The package includes no fewer than nine massages – ranging from Indian head massages to Asian foot massages to Chinese stomach massages – as well as one-on-one sessions on stress management, wellness and diet. There is enough time between treatments to enjoy activities around the resort, perhaps a free Pilates or meditation class, relaxing in one of the steam caves, or laps in one of the two pools. Cool off between dips by munching on frozen grapes. Food is another Kamalaya strength – the resort knocks it out of the park. There are two restaurants: one by the beach, the other perched at the top of the property and offering panoramic ocean views. But it’s what’s on the menu that is the real drawcard.
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↑
Enjoy yoga classes
at a very civilised hour.
←
The detox menu is
surprisingly delicious.
There are two parts to each menu: the detox section, and the à la carte section. To my surprise, I found myself ordering from the detox section. (Who knew mung bean risotto could be so delicious?) It’s part of the Kamalaya effect. No one pressures you to do anything, but when you see everyone else downing wheatgrass and gotu kola shots each morning, eventually you decide to give it a try. The wide-ranging meal options include seared scallops, banana flower salad, chicken tikka masala and seafood jambalaya – all of it not just delicious, but also good for you. Dessert fans can finishing their meals with mango sticky rice, soufflé or even chocolate mousse. If you want to wash down your dinner with a glass of wine, that’s fine, too. But chances are you will lean towards something from the extensive juice-based menu, perhaps a Coco Loco (young coconut, banana, tahini, cinnamon and vanilla) or a strawberry mojito – minus the alcohol but still offering plenty of zing. It is best to allow at least seven days to slow down and absorb the full effects of the Kamalaya experience. The resort’s nurturing vibe extends to the camaraderie among diners. Although you are welcome to dine separately, a communal table at dinner encourages guests to mingle. The hottest topic of discussion is usually that day’s treatments, and guests eagerly recommend their favourite therapists and experiences. The only other decision you need to make is which of Kamalaya’s accommodation options you will choose. The newest split-level superior suites have sheltered balconies, expansive bathrooms, outdoor showers and sea views. If you prefer perfect privacy, one of the sprawling villas set amid lush greenery may be a better option. Check in, relax, recharge – that’s the Kamalaya way. g
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Eat
CITY GUIDE
Bangkok
↗
Asia’s City of Angels is more enticing than ever, and the Thai capital keeps evolving at a rate of knots. From high-end restaurants to hipster bars and night markets piled high with vintage treasures, there is always something new to discover, writes UTE JUNKER.
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The hottest table in town is at Gaa, an offshoot of the city’s most acclaimed restaurant, Gaggan. Choose between eight and 12 courses of flavour-packed dishes that combine influences from across Asia, such as pork ribs marinated in split-pea miso served with shallots, spring onion and pomegranate seeds, and grouper wrapped taco-style in caramelised milk skin. You could call The Commons a particularly stylish food court, but that description doesn’t begin to do justice to this little patch of gourmet paradise. The eats come courtesy of some of Bangkok’s hottest food folk: musttrys include the pies at Holy Moly, the southern-style barbecue at Meat and Bones, and just about anything at Soul Food 555, a spin-off of the ever-popular Soul Food Mahanakorn restaurant. The chef’s résumé includes a stint at New York’s esteemed Eleven Madison Park, so it should be no surprise that the sophisticated Le Du restaurant offers Thai done differently. Young gun Chef Ton plays with traditional flavours, serving up delicate dishes such as poached oysters with green mango relish, chilli paste and Thai rice wine sabayon.
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Visit
Drink
There are plenty of inviting bars lining Chinatown’s Soi Nana, but Teens of Thailand may be the pick of the bunch. At this atmospheric bar housed in an old shophouse, everything is about the gin. Try a house-made infusion using local flavours – anything from sundried banana to Thai tea – or one of many gins from around the world. Yes, we know: no one really likes having to reserve a table for dinner, let alone having to book for drinks. But in the case of Q&A, it’s worth the hassle. This intimate bar, all polished wood and flickering candlelight, has one of the most inventive cocktail lists in town. Try the Comte de Monte Cristo: port wine infused with coffee and pecan, with a hit of dark rum. Raw-concrete walls, plush Middle Eastern carpets, a bar topped with black marble, steel staircases – the decor at Rabbit Hole is a mash-up of unexpected elements. The drinks list is pretty much the same. Cocktail connoisseurs love this bar for its wellcrafted drinks, which showcase local ingredients – think lotus and pandan syrup – as well as more decadent delights (truffle martini, anyone?).
↖ A cook preparing food in Chinatown, Bangkok. ↑ Nightshot of Thai people and tourists enjoying Bangkok's nightlife.
↘ The chaos of Bangkok traffic.
Shop
Another Story is the kind of store where you can happily lose yourself, browsing the eclectic range of homewares, clothing and other objects of desire. The range includes imported lines – look for French label ANGARDE’s stylish everyday shoes – as well as cutting-edge local brands, including The Sleeveless Garden’s handbags and Sabu-Sabu toiletries. The welcoming space also includes a café and a gallery. If your idea of decorating goes beyond grabbing fistfuls of Thai silk at a market stall, add one of Alexander Lamont’s stores to your itinerary. This Thai-based designer’s high-end homewares are known for their old-school techniques, featuring everything from intricate marquetry to patinated bronze. Whether you’re after a large statement piece or a bijou item for your sideboard, you will find something here. The Kardashian clan knows something that you may not: Thailand’s fashion scene is hot. Check out the local stars at Qurate in the EmQuartier complex. The wares cover a range of styles, from Palette’s playful prints to Ensemble’s body-conscious designs. The eye-catching pieces by Vatanika – a Kardashian favourite – are a standout. Keep an eye out for handbags by MOS and PELLEVAH.
Who would be foolhardy enough to risk cycling in Bangkok? Only someone who had stumbled across the verdant Bang Krachao area. Located on the far side of the Chao Phraya River, Bang Krachao is known as the city’s “green lung”. Locals enjoy cycling past the fruit orchards and mangrove swamps; you can get in on the action with a half-day cycling tour with SpiceRoads. Dusit’s big attractions are the Grand Palace and Wat Pho, home of the giant reclining Buddha, but the real charms of this area lie well away from the tourist drawcards. This low-rise neighbourhood gives you a glimpse of a vanished Bangkok, a less frenetic place characterised by ancient shophouses, wholesale markets and traditional eateries. Vibrant, chaotic, energising, exhausting: there are a dozen different ways to describe Chinatown. Whichever word you choose, you haven’t been to Bangkok until you’ve been lost down the area’s many alleys. Come during the day to discover colourful temples and traders, or at night to feast on some of Bangkok’s best street food.
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Discover
Perched beneath the Mekhong ferris wheel, Asiatique The Riverfront is an odd yet inviting hybrid of night bazaar and mall. Reached by a free ferry from Saphan Taksin station and open every night of the week, it is easy to work up an appetite browsing the 1500 outlets. Fortunately, there are also plenty of dining options, from highend restaurants to cheap-and-cheerful stalls. From vintage leather jackets to French chandeliers, Srinakarin Train Market (Rot Fai Market in Thai) offers some of the most intriguing shopping in Bangkok and is open Thursday to Sunday. The real finds are on display in the section known as Rod’s Antiques – you can even pick up a classic car here. The price tags reflect the quality, so if you are looking for a bargain, try the Market Zone instead. Just down the road from the sprawling Chatuchak Weekend Market, JJ Green Night Market is hipster heaven, with its mix of quirky collectables and cool retro gear. The bars have become just as much of a draw as the shopping, with watering holes such as Clock Tower and Stair by Me offering live bands. Come from Thursday to Sunday to soak up the vibe. 82
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"The Karsdashian clan knows something that you may not: Thailand's fashion scene is hot. Check out the local stars at Qurate in the EmQuartier complex."
Sleep
Competition is fierce among Bangkok’s luxury hotels, but with a knock-yoursocks-off breakfast, one of the best spas in town, a clutch of fine eateries and a central location overlooking the verdant Royal Sports Club, The St. Regis Bangkok is hard to beat. Its location in the Dusit neighbourhood is not the only thing that sets the boutique hotel The Siam apart. Elegant suites and a riverfront swimming pool are big draws, and the hotel also has its own boat shuttle to take you to the heart of the action. g
T R AV E L | L I M I T L E S S
Inaugural LAWASIA Human Rights Conference Current Human Rights Issues in the Asia Pacific Region 9-10 February 2019 | New Delhi, India For more details visit
lawasia.asn.au
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LAWASIA
Since its inception in 1966, LAWASIA has fought for the rule of law, protected human rights, and expanded business opportunities across the Asia Pacific.
Member Jurisdictions
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Section
Law Management lawmgt.chair@ lawasia.asn.au Family Law & Family Rights family.chair@ lawasia.asn.au Judicial * judicial.chair@ lawasia.asn.au
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Human Rights humanrights.chair@ lawasia.asn.au Business Law business.chair@ lawasia.asn.au Business Law Subcommittees ADR Asia-Europe Banking & Finance Communications, Technology & Data Protection Corporate Securities & Investment Environmental Law Energy & Resources Franchising Intellectual Property Insurance Real Estate & Transactions Taxation UNCITRAL. * Open to members of the judiciary only
Stand-alone Committees
Employment Law emplaw.chair@ lawasia.asn.au Criminal Law crimlaw.chair@ lawasia.asn.au Legal Professional Indemnity Insurance pii.chair@ lawasia.asn.au LAWASIA International Moot moot.chair@ lawasia.asn.au
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2017–2018 Executive Committee
President Mr Christopher Leong MALAYSIA President-Elect Mr Chunghwan Choi KOREA Immediate Past President Mr Prashant Kumar INDIA Vice Presidents Mr Justin Dowd AUSTRALIA Ms Melissa Pang HONG KONG, SAR Mr Yap Teong Liang SINGAPORE Committee Members Dr Gordon Hughes AM AUSTRALIA Mr Yin Baohu CHINA Mr Shyam Divan INDIA Ms Chisako Takaya JAPAN Mr Isomi Suzuki JAPAN Mr Eric Eunyong Yang KOREA Mr Steven Thiru MALAYSIA Mr Upul Jayasuriya SRI LANKA Secretary-General Mr Michael Tidball LAWASIA
Secretariat
Head Office Suite 1101, Level 11 170 Phillip Street Sydney NSW 2050 AUSTRALIA Phone: 61 2 9926 0165 Fax: 61 2 9223 9652 Email: lawasia@ lawasia.asn.au Website: www.lawasia.asn.au Secretary-General Michael Tidball General Manager Magdalena Malota magdalena.malota@ lawasia.asn.au Policy Lawyer Kate Hewson kate.hewson@ lawasia.asn.au Conference & Events Coordinator Magda Imre conference@ lawasia.asn.au Conference & Events Coordinator Misel Burford conference@ lawasia.asn.au Membership & Administration Officer Kim Shazell lawasia@ lawasia.asn.au
L AWA S I A
Upcoming events
7th LAWASIA Family Law & Children’s Rights Conference 6–8 June 2018 Vientiane, Laos
31st LAWASIA Conference 2–5 November 2018 Siem Reap, Cambodia
1st LAWASIA Human Rights Conference 9–10 February 2019 New Delhi, India
Find out about other upcoming events at lawasia.asn.au/events.html
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L AWA S I A
STATEMENT
LAWASIA responds to reports concerning fact-finding team's denied entry to the Maldives Statement issued: 27 February 2018
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LAWASIA is the law association for Asia and the Pacific, and its Council comprises the peak national bar associations and law societies in the United Nations ESCAP Region. Due to the reported situation in the Republic of Maldives, the Council of LAWASIA decided to establish a fact-finding team for the purpose of ascertaining the situation with regard to: 1. The independence of the judiciary in the Maldives 2. The independence of the Judicial Services Commission, and the transparency of the process for appointment of judges and investigations of complaints regarding judicial conduct 3. The independence of the legal profession, and whether members of the legal profession are able to perform their professional duties unhindered and free of harassment or intimidation 4. Due process in the administration of justice in the Republic of Maldives 5. The rule of law and rights-related issues.
and stakeholders seeking meetings relevant for the purpose of the factfinding mission. These persons, parties and stakeholders included lawyers, present and former members of the People’s Majlis (Parliament) from the opposition and government benches, Human Rights Commission of the Republic of Maldives, members of the judiciary, representatives of Government (former and present) including the Attorney-General, and members of civil society organisations. Meetings were to take place between 24 and 28 February 2018. We had received confirmation from several of these persons, parties and stakeholders for the meetings requested. On 11 February 2018 we wrote to the Immigration Department of the Maldives informing them of the fact-finding mission, its objectives and its planned visit and purpose to the Maldives and inquiring as to the
Photography: Adam Azim
he LAWASIA fact-finding team, led by Christopher Leong, President of LAWASIA, is an independent team with an objective mission which is not to be sponsored by any parties, organisations or individuals from the Maldives. In the course of the fact-finding team's organisation and planning of the mission, the Government of Maldives issued a statement on 7 February 2018 via the Ministry of Foreign Affairs that “the Maldives would like to invite its development partners and representatives from international organisations and associations to visit the Maldives to assess the situation in the Maldives and witness the safety and security of Male, for their own citizens as well as to engage with the Government and key stakeholders in the country”. The LAWASIA fact-finding team had written to various persons, parties
L AWA S I A
Key events 7 FEB The Government of Maldives issues an open invitation to assess the situation first hand. The fact-finding team schedules meetings between 24 and 28 February.
11 FEB The team informs immigration of their mission and enquires about visa requirements. No response.
13 FEB Follow up email sent to immigration. No response.
15 FEB relevant requirements for visas. The provisions in this regard found in the Foreign Ministry website were unclear since parts of it were in Dhivehi (the official language of the Republic of Maldives). A reminder email was sent on 13 February 2018. Not having received any reply, we then wrote to the Foreign Ministry on 15 February 2018 providing them with the same information and seeking their guidance and advice as to visa requirements. On the same day, we received a reply from the Foreign Ministry thanking us for the email and informing us that their Asia Division would provide guidance in relation to the visas for the Maldives. The said email was copied to the Asia Division of the Foreign Ministry. Having not heard further from the Foreign Ministry and the Asia Division, we followed up with a reminder on 19 February 2018. There was no response.
Team forwards enquiries to Foreign Ministry and is told the Asia Division will respond. No further response.
19 FEB Follow up email sent to the Ministry. No response.
23 FEB Team informs relevant departments of their impending arrival dates. No response.
25 FEB Four team members arrive in Velana and are refused entry, detained and kept at a closed detention facility under guard and surveillance, and subsequently deported.
On 23 February 2018, we duly informed by email the Immigration Department and the Foreign Ministry, as well as its Asia Division, that “given the impending arrival dates of the delegation and the indeterminateness of response to our requests, we are writing to inform the department that the arriving delegation will be proceeding with its plans on the understanding that the 30day visa issued on arrival is applicable for the purpose of the visit, namely to attend several meetings to ascertain the situation in Male, unless we receive direct advice to the contrary”. We received no response to the contrary. Four members of the fact-finding team arrived at Velana International Airport on the evening of 25 February 2018. Each declared the purpose of the visit upon arrival. Instead of providing guidance and facilitating the mission with a visa, as would have been consistent with the open invitation issued by the Government of Maldives to international organisations, the Maldivian authorities instead refused entry to the members of the team, detained and kept them at a closed detention facility under guard and surveillance, and subsequently deported them. Although the actions taken by the authorities were inconsistent with their public statements of invitation, and unnecessary, the immediate officials who attended to us were courteous. By such action, the Government of Maldives deprived itself of the benefit of an independent and impartial assessment by a fact-finding team not sponsored by any individuals, parties or organisations in the Maldives. Although disappointed, the LAWASIA fact-finding team will nevertheless continue with its mission and carry out its mandate. In this regard, it remains the hope of LAWASIA that the Government of the Maldives and key stakeholders in the country will take meaningful steps to assist and participate with this task. g
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ADVOCACY
LAWASIA statement of concern regarding humanitarian crisis in Rakhine State of Myanmar Statement issued: 3 October 2017
"LAWASIA views the crisis ... as a serious human tragedy."
L ↗ Bangladesh, 28 October 2017: Rohingya Muslims wait in line for a humanitarian aid distribution at Chakmarkul refugee camp.
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AWASIA, the Law Association for Asia and the Pacific, expresses its deep concern over the reported inter-communal strife and conflict, persecution, and displacement of members of the Rohingya community in Myanmar, as well as the reported militant or insurgent attacks on Myanmar police posts and an army base. The reports refer to alleged human rights abuses and the deterioration of the rule of law. The longstanding and recurring cycle of violence and the displacement of people, the latest instance being in August 2017 and particularly in regard to the Rohingya, have created a humanitarian crisis not only in the Rakhine state of Myanmar, but also in the region. LAWASIA views the crisis regarding both the situation in the Rakhine state
and the Rohingya as a serious human tragedy and human rights crisis. As an immediate priority, LAWASIA urges all parties concerned to work cooperatively and without delay toward a just and humanitarian resolution of the crisis. Being cognisant of the ‘Final Report of the Advisory Commission on Rakhine State’ published in August 2017 by the Advisory Commission on Rakhine State, a body which is led by Kofi Annan and comprises a majority of national members of Myanmar, LAWASIA urges the Myanmar government to study the said report with a view to implementing the recommendations therein, or a substantial part thereof. LAWASIA urges its member organisations, where they are able to do so, to assist and provide pro bono legal assistance to the Rohingya refugees. g
L AWA S I A
EVENTS
Tokyo meet the most successful ever
The 30th LAWASIA Conference held in Tokyo, Japan, in September 2017 was the organisation’s largest ever meet and has been hailed a great success.
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L AWA S I A
T
he 30th LAWASIA Conference held in Tokyo, Japan, in September 2017 was the organisation’s largest ever meeting and has been hailed a great success. Held at the Hotel New Otani in Tokyo from 18-21 September, more than 1,600 attendees from around the globe gathered to hear more than 180 speakers share their expertise on a broad range of topics. The official opening ceremony was attended by Japan’s Crown Prince Naruhito and Crown Princess Masako, as well as numerous high-profile judges and government officials. The conference also saw a changeover in the LAWASIA presidency, with outgoing President Prashant Kumar of India passing the baton to Christopher Leong of Malaysia. The Secretary-General of LAWASIA, Michael Tidball, said it was heartening to see a growing interest in the organisation and what it stands for. “The Tokyo conference saw more delegates than ever before, and represents a renewed interest in regional lawyers coming to meet their peers to exchange knowledge, experience, concerns and ideas,” he said. “The calibre of speakers, as well as the depth of collegiality at a conference such as this ensures the continued strengthening of the vast community of lawyers in the Asia Pacific region and beyond. This can only be a good thing for human rights and the rule of law in the region.” This year’s LAWASIA Conference will be held in Siem Reap, Cambodia, from 2-5 November. g
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L AWA S I A
"The calibre of speakers, as well as the depth of collegiality at a conference such as this ensures the continued strengthening of the vast community of lawyers in the Asia Pacific region and beyond." Michael Tidball (above), Secretary-General, LAWASIA
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I N S P I R AT I O N
“To live is to choose. But to choose well, you must know who you are and what you stand for, where you want to go and why you want to get there.” KOFI ANNAN Seventh Secretary-General of the United Nations, 2001 Nobel Peace Prize recipient, and Chair of the Advisory Commission on Rakhine State
Photography: ITU Pictures
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