The crisis continues
Two years have passed since the start of the Rohingya exodus, but has anything changed?
Justice in Afghanistan
One lawyer’s story of hope, violence and courage in the complex Afghan courts
The Kashmir conundrum Was the recent scrapping of Article 370 of India’s Constitution even legal?
A legal black hole
A look at Australia’s controversial policy of offshoring refugees
On the front line Why so many lawyers are paying the ultimate price in the pursuit of justice
2 LAWASIA Human Rights Conference nd
7 – 8 March 2020 | Kathmandu, Nepal For more details visit
www.lawasia.asn.au
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CONTENTS
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CONTENTS
November 2019
Features Photos (from top to bottom): Ace Morandante/PPD; Joel Carillet/iStock
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What Gandhi believed about business
As the world celebrates 150 years since Mahatma Gandhi's birth, Geoffrey Jones and Sudev Sheth take a look at his beliefs and philosophies relating to the role of the corporation.
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ISSUE 05
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Defending the defenders Asian Jurist Managing Editor Claire Chaffey examines the concerning trend of persecution, harassment and even murder of lawyers across the Asia Pacific.
Advocacy in Afghanistan
American lawyer Kimberley Motley shares an extract from her new book, Lawless, which provides a fascinating glimpse into her life as a public defender in Kabul's court system.
40 What now for the Rohingya?
Two years after the plight of the Rohingya in Myanmar first hit international headlines, Dr Melanie O'Brien takes stock and asks whether anything has changed.
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Illumination Ideas, analysis and inspiration from leading legal commentators around the globe
The Singapore Convention
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Anthony Lo Surdo SC examines what the new convention will mean for the future of cross-border commercial disputes.
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Litigation in Japan
Limitless
Professor Frank H. Wu examines why the Japanese culture seems to be less litigious than that of its peers.
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Words of wisdom on careers, professional
A legal black hole
development, wellbeing and lifestyle
Madeline Gleeson and Sangeetha Pillai examine Australia's contentious offshore detention of asylum seekers.
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A not-so-special state
Faizan Mustafa asks whether recent changes to Kashmir's special status were legal under India's constitution.
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Different perspectives
Brian Kim explores the simmering tensions between Korea and Japan when it comes to their troubled history.
Cover design: Michael Nguyen Illustration: Ilbusca/iStock
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Regulars
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06 From the President 08 From the Secretary-General 10
Contributors
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Regional news
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Leadership
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Opinion
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LAWASIA advocacy
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Inspiration
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Reputation vs credibility Understanding the difference.
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Moral anxiety at work
Why you should know your values.
80 Listen to your body
Tricks and tips for better health.
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City guide
The colour and vibrancy of Kolkata.
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Luxury destination
Hiking high in the Himalayas.
Photos (clockwise): Georges Devred/Agce ROL; Travel Wild/iStock; Studio Incendo/Flickr
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FROM THE PRESIDENT
“Are the concepts of the rule of law and equity static, or are they measured by their applicability to the context and circumstances?”
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e live in troubled times. One only has to glance at this edition's cover – and read the cover story – to understand the struggle that we, as legal professionals, are currently enduring across many jurisdictions in Asia and beyond. As lawyers, we are tasked with defending the rule of law. This duty sits at the heart of all that we do. But what of ordinary citizens? What are their rights and responsibilities when it comes to upholding, fighting for, and respecting the rule of law? Never has there been a more stark reminder of the complexities around this question than the current situation in Hong Kong. For months, ordinary citizens, many of them students and young people, have been taking to the streets to protest against perceived injustices and a deep concern about what their future holds. What started out as a protest against the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 has evolved into a massive outpouring from the people with regards to how they view their present circumstances and, more importantly, their future. Many feel they are caught in a trap – a lack of economic means, poor living conditions, rising costs of living, an increasing social and economic gap, and decreasing mobility. These concerns are coupled with calls for universal suffrage – a concept not merely confined to the ability to vote for their leaders and government, but rather reflecting a cry for the right of general self-determination in all aspects. There is a lack of confidence and belief in the rule of law and a future that provides equal opportunity for all. They view their future as bleaker than their present. It is thus a struggle undertaken in the present to safeguard what is to come. So, one must ask: are the concepts of the rule of law and equity static, or are they measured by their applicability to the context and circumstances? Critics say the protestors in Hong Kong are disregarding laws, the rule of law and equity in the protests which are being conducted; that the protestors are not expressing their grievances in the usual manner or channels and are resorting to violence. But could it also be said that the protestors are resorting to these unconventional measures in dire circumstances in the fight for the rule of law and equity? There are many questions and even more complexities. The situation is far from black and white. But whatever your perspective, violence can never be the answer. Freedom must be found through the maintenance of peace.
Christopher Leong President, LAWASIA 6
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FROM THE PRESIDENT
Join the LAWASIA community Uphold the rule of law. Advocate for human rights. Expand business opportunities. Become a LAWASIA member today. Visit lawasia.asn.au/membership
www.lawasia.asn.au/membership
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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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his edition of Asian Jurist coincides with the launch of the LAWASIA Annual Conference in Hong Kong. Asian Jurist seeks to capture the diverse range of developments happening across the ESCAP region, and includes valuable contributions from leading members of the profession across a broad spectrum of issues. Asian Jurist has content as rich as the LAWASIA Annual Conference program. LAWASIA provides a powerful forum for an exciting range of issues that reflect the dynamism of a multilateral association of lawyers, judges, jurists and legal associations who jointly advocate the interests and concerns of the rule of law across an enormous region. The role we play in promoting the cross-jurisdictional exchange of legal knowledge, to act as a voice for the profession, as well as to never lose sight of our fundamental remit of mutually-held principles of the rule of law, professional integrity and the protection of human rights, remains fundamental. Over the past year, LAWASIA has had a formidable workload. LAWASIA conferences have included the Employment Law Forum in Fiji in January; the 1st LAWASIA Human Rights Conference in India in February; the LAWASIA Business Law Forum in The Philippines in March; the LAWASIA Belt and Road Seminar in Kazakhstan in May; the Risk Management and PII Conference in Hong Kong SAR in June; the Foreign Direct Investment in Asia Seminar in Germany in September; and the Constitutional and Rule of Law Conference in Malaysia in October. Furthermore, LAWASIA has issued statements dealing with a range of matters, all of which you can read from page 88. It is apposite that LAWASIA has issued a statement on the ongoing situation in Hong Kong. In issuing this statement, LAWASIA has benefitted from productive dialogue with a range of leaders of the profession in Hong Kong. We are well advanced in preparing for 2020, and the year will begin with the 2nd Human Rights Conference to be held in Kathmandu, Nepal, from 7-8 March 2020. Other events for 2020 include Environmental Law in the Pacific in Fiji from 3-4 April 2020, and the 8th Family Law and Children’s Rights Conference in Singapore from 19-22 July 2020. The LAWASIA Secretariat is honoured to work with the diverse members of the LAWASIA membership. LAWASIA is powered nevertheless by an engine of committed volunteers and experts from a range of practice areas. At the pinnacle of the LAWASIA structure is the President. To this end, I thank Chris Leong for his indefatigable and relentless passion for advancing the rule of law and the principles which underpin the international legal profession.
Michael Tidball Secretary-General, LAWASIA 8
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FACING NE W CHALLENGES
REACHING NEW HEIGHTS
FUTURE OF LAW
Why lawyers need to discard nostalgia and wake up to the global reality of change
TECHNOLOGY
Does solving India’s access to justice crisis mean embracing bold technology?
LABOUR TRENDS
Is China leading a race to the bottom or setting standards for global labour? ISSUE 02
ISSUE 01
DEATH PENALTY
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Why it’s every lawyer’s duty to advocate for an end to the death penalty in the region
Make way for automation
Why lawyers can no longer ignore the growing superiority of artificial intelligence
A portrait of trauma and tragedy
The rainbow in Asia
The state of LGBTQI rights in the region – and why demanding them is heroic
Empowering women lawyers in Nepal
Taking on the big brands
Lessons from the difficult and inspiring journey of Nepal’s female advocates
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PUSHING THE BOUNDARIES
BE YOND THE CLICHÉS
The Khmer Rouge trials
Has justice finally been done for a nation rocked by the violent Pol Pot regime?
Life after the caliphate What now for the legions of foreign ISIS supporters wishing to return home?
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How women in Asia are harnessing the innate power of the #MeToo movement
Environment for change
How a landmark case has placed climate change at the heart of traditional litigation
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Hate speech, disinformation and fake news: can the law save us from the information offensive?
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A HATEFUL NARR ATIVE
An on-the-ground account of daily life in one of Bangladesh’s Rohingya refugee camps
How the push for transparency on the supply chain is shaping business and human rights
The death of democracy How the Philippines’ war on drugs is exploiting legal processes to destroy rights
Saving Cambodia’s kids Conflict and trauma give way to a renewed effort to save the next generation
Tortoise and the hare
Why the delivery of legal services must keep pace with global business giants
STAR POWER Busting the myths around China's social credit system
A very superior lawyer
The bold Chinese law school producing elite graduates ready to take on the world
It’s no fun when there’s a gap in your collection. Contact aj@lawasia.asn.au to get hold of Asian Jurist back issues.
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Contributors RULE OF L AW | HUMAN RIGHTS | BUSINESS
Managing Editor Claire Chaffey Associate Editor Klara Major Designer and Art Director Michael Nguyen Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Secretariat 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 Š 2019 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 and views expressed in this publication are not the official opinions or views of LAWASIA or Asian Jurist unless expressly stated. LAWASIA and Asian Jurist accept no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own
Claire Chaffey
Frank H. Wu
Claire Chaffey is a former lawyer, a journalist and editor, and Asian Jurist's founding managing editor. She began her career as a Sydney-based lawyer practising primarily employment and immigration law. Changing direction to become a journalist, Claire moved to Accra, Ghana, where she reported on human rights and social issues for the Ghanaian Times before returning to Australia to work as a legal affairs reporter. She now edits the Law Society of New South Wales' multi-awardwinning member magazine LSJ, and launched Asian Jurist in 2017. On page 24 of this edition, Claire explores the concerning trend of the persecution of lawyers, and asks those advocating for change how the legal profession can be better protected and supported.
Frank H. Wu is William L. Prosser Distinguished Professor at the University of California Hastings College of Law in San Francisco. He previously served as Chancellor and Dean of the school. He also has been a faculty member at Howard University. He was Dean of Wayne State University Law School and taught in various roles at Michigan, Columbia, Stanford, Johns Hopkins, and Peking University School of Transnational Law. He is the author of Yellow: Race in America Beyond Black and White. His writing has appeared in the New York Times, The Washington Post, The Guardian, National Law Journal, and Inside Higher Ed. On page 52, Frank explores the theory around why Japan's civil litigation rates are so low compared to their peers.
enquiries in making decisions touching their own interest. Asian Jurist is proudly produced in partnership with the Law Society of New South Wales.
Have an idea for Asian Jurist? We are looking for contributors to expand our global network of exceptional writers and legal experts. Contact managing editor Claire Chaffey at claire.chaffey@asianjurist.com to discuss your editorial ideas.
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CONTRIBUTORS
Anthony Lo Surdo SC
Faizan Mustafa
Anthony Lo Surdo SC was called to the New South Wales Bar in 1996 and was appointed Senior Counsel in 2011. He has a broad practice both at trial and appellate level spanning commercial, equity, corporations, insurance law, professional indemnity, property and sports law. He has been named in “Doyle’s Guide to the Australian Legal Profession” in 2011 and again in 2015, 2016, 2017, 2018 and 2019 as one of Australia’s leading insolvency and restructuring barristers. Anthony is also accredited as an arbitrator, expert determiner and advanced mediator. He is certified as a mediator by the International Mediation Institute based in The Hague and by the Singapore International Mediation Institute and is a member of the ACICA and AIAC mediation panels. He has been named by Doyle's Guide to the Australian Legal Profession in 2018 and 2019 as a leading mediator in New South Wales. Anthony has conducted in excess of 250 complex and multi-party mediations since 2009 and is regularly retained as a mediator in complex multi-party disputes. On page 46 of this edition, he examines the new Singapore Convention on Mediation and its likely impact on the growing use of mediation for the settlement of cross-border commercial disputes in the region.
Professor Faizan Mustafa is a senior law teacher and renowned jurist of Indian constitutional law. He is the Vice-Chancellor of NALSAR University of Law, Hyderabad, which is the country’s leading national law university and one of the most soughtafter destinations of legal education in South Asia. He currently holds the post of President of the prestigious Shastri Indo-Canadian Institute, which was incorporated in Canada in 1968 and is a bi-national organisation of Canadian and Indian governments. He is also the President of Consortium of National Law Universities. Faizan is the recipient of both the prestigious Fulbright Scholarship and the Commonwealth Scholarship. He was conferred the SAARC’s Best Law Teacher Award in 2014. He is also a member of the General Council of Association of Indian Universities. Earlier in his career, he was the Founder Vice-Chancellor of the National Law University, Orissa, where he introduced the specialisation of legal journalism – a first in the nation. On page 64 of this edition, he delves into the legal history of Kashmir's special status as an autonomous State within India, and questions the legal basis for the recent scrapping of article 370 of the Constitution.
Madeline Gleeson & Sangeetha Pillai Madeline Gleeson is a lawyer and fellow senior research associate at the Andrew and Renata Kaldor Centre for International Refugee Law. Madeline is also the author of the multi-awardwinning book Offshore: Behind the Wire on Manus and Nauru (NewSouth 2016). Her areas of expertise include offshore processing, state responsibility and regional refugee protection in Asia Pacific. As a John Monash scholar, she completed her Masters in International Law in Geneva, where she worked with the UNHCR. In 2017, she launched the Asia-Pacific Research Group as part of the Kaldor Centre’s Emerging Scholars Network. On page 58, Sangeetha and Madeline examine the legal framework supporting Australia's notorious offshore refugee processing centres. Dr Sangeetha Pillai is is a constitutional lawyer and senior research associate at the Andrew and Renata Kaldor Centre for International Refugee Law. She is an expert on Australian citizenship law, and the constitutional differences in the scope of government power that can be exercised over citizens and non-citizens. Her work on these issues has been published in leading Australian and international journals. She has appeared before and been cited by parliamentary committees on these matters.
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Regional news
↖ Scene from space of Gaibandha district, Bangladesh. The country is prone to flooding during the monsoon season,
REFUGEES
Rohingya relocation plan announced Thousands of displaced Rohingya living in Bangladeshi refugee camps have agreed to relocate to an island within the Bay of Bengal in spite of concerns the site is flood prone. According to Aljazeera, about 740,000 Rohingya have fled Myanmar since August 2017 in response to a military crackdown. They have joined 200,000 refugees already living in tent settlements at Cox's Bazar. The Dhaka administration has long wanted to relocate 100,000 refugees to the islet to relieve overcrowding at border camps, where more than a million Rohingya are said to live. “Approximately 6,000 to 7,000 refugees have already expressed their 12
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willingness to be relocated to Bhashan Char [the island],” Bangladesh official Mahbub Alam told AFP news agency from Cox's Bazar, saying that “the number is rising". It is not known when the refugees will be moved to the site, which is one hour by boat from the mainland. Human rights groups have warned that the island, which emerged from the sea less than 20 years ago, may not withstand storms during the monsoon season. Residents from nearby Hatiya Island have told Human Rights Watch they do not believe the island is habitable. “Part of the island is eroded by the monsoon every year,” said one man.
“In that time, we never dare go to that island, so how will thousands of Rohingya live there?” The island’s safety facilities include a three-metre-high embankment to keep out tidal surges, as well as a warehouse to store rations. A Rohingya father-of-four Nur Hossain told AFP he had agreed to relocate his family to Bhashan Char after he saw video footage of the shelters. “I have agreed to go. The camp here [at Leda] is very overcrowded. There are food and housing problems,” he said. The United Nations is yet to make a statement on the issue, though a delegation is expected to visit the island in early November. Two years ago, Bangladesh and Myanmar signed a repatriation deal. However, very few refugees have returned to Myanmar, with UN investigators saying conditions remain “unsafe, unsustainable and impossible”. A UN report released in September said Rohingya who remain in Rakhine state face a “serious risk of genocide”.
Photos (from lef t to right): Sentinel Hub/Flickr; Kirk Hargreaves/ Christchurch City Council Newsline; Sezer Ozger;iStock
displacing thousands.
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REGIONAL NEWS
GUN LAWS
Kirk Hargreaves/ Christchurch City Council Newsline; Sezer Ozger;iStock
NZ tightens gun laws in wake of mosque massacre The Jakarta Post has reported that New Zealand Prime Minister Jacinda Ardern has introduced a new Bill before Parliament designed to tighten the country’s gun laws following the mosque massacre that occurred on 15 March 2019. In what was labelled the “worst mass shooting in NZ’s modern history”, a gunman open fired on two mosques in Christchurch, killing 51 people while livestreaming the attacks on social media. “Owning a firearm is a privilege, not a right,” said Ardern in her speech introducing the Bill. The proposed legislation builds on the immediate ban on military-style, semi-automatic rifles that was put into place following the attack and seeks to establish a register designed to monitor firearms. The register is predicted to take five years to complete and allows for a six-month amnesty whereby members of the public can hand in their weapons under a buyback scheme. Police will also undertake stricter assessments to determine whether a person is “fit and proper” to hold a licence. Further, the jail time for supplying firearms to an unlicensed individual has increased from three months to two years. Ardern’s gun reforms have sparked opposition from some, including the conservative ACT Party which says the new laws will not be effective in capturing the criminals and gang members who hold firearms. According to the Small Arms Survey, an independent research project based in Switzerland, New Zealand is 17th in the world in terms of civilian firearm ownership, with an estimated 1.5 million firearms among a population of just under five million. Nevertheless, the reforms have generally been embraced by the South Pacific nation.
REGIONAL DIPLOMACY
Solomon Islands severs ties with Taiwan in favour of China
↓ NZ Prime Minister
Jacinda Ardern visits the Muslim community the day af ter the Christchurch mosque shootings.
For 36 years, the Solomon Islands and Taiwan cultivated a relationship of cooperation. Taiwan provided financial assistance and aid to the Solomon Islands, which had remained one of the few allies to recognise Taiwan over Beijing. However, in September this year, the Solomon Islands switched allegiance to recognise China, causing Taiwan to formally terminate diplomatic relations. Just days later, Kiribati also cut ties in favour of China. The news came as a blow for Taiwan, which now has diplomatic ties with just 15 countries, mostly in Latin America and the Pacific, including Nauru, Marshall Islands, Tuvalu and Palau. China asserts Taiwan is its territory and has taken increased action to isolate it diplomatically following the 2016 election of President Tsai Ing-wen, who refutes any notion of “one China". According to ABC news reports, President Tsai condemned the switch and criticised China for engaging in what she termed “dollar diplomacy”. In a press conference announcing the termination of diplomatic relations, Thai said: “This is not how Taiwan approaches its diplomacy, not to mention the fact that China’s promises of financial assistance often come up empty." For its part, the Solomon Islands is steaming ahead in its new relations with China. Reuters reports that it has already signed an agreement to work with China on its Belt and Road initiative as well as other economic and education initiatives. In the lead up to a 9 October meeting with Premier L Keqiang in Beijing, PM Sogavare was quoted as saying: “I am pleased to recognise the one China policy ... We are pleased to be on the right side of history and normalise relations with the People’s Republic of China."
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REGIONAL NEWS
CORRUPTION
ENVIRONMENT
Pacific Island law students fight climate change A group of 27 law students from eight different Pacific Island regions have formed the Pacific Islands Students Fighting Climate Change group, reports Climate Liability News. They have encouraged the Pacific Islands Forum to seek an advisory opinion from the International Court of Justice (ICJ) on climate change. A decision by the ICJ is not binding, however it will make clear what obligations countries have under international law to prevent climate change and protect human rights. Climate change poses a threat to the very existence of several low-lying islands in the South Pacific, including Fiji, Tuvalu and the Marshall Islands. A report by the Intergovernmental Panel on Climate Change revealed that a onemetre rise in sea levels would destroy 15 per cent of the Pacific Islands. The UN Human Rights Council has taken steps to address climate change and the effect on the enjoyment of human rights, most notably by passing a resolution last year, but the student 14
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organisation argues that more needs to be done. They have called out Australia for continuing to use coal despite supporting the UN resolution. They urge all wealthy countries to do more to safeguard the future of younger generations. “It seems like they’re just dancing on our graves, dancing on our demise. We will not stand by and accept this,” said student activist Solomon Yeo. The students argue that an advisory opinion by the ICJ would assist in bringing successful litigation against governments and corporations who have failed to act against the effects of climate change. Founder and faculty director of the Sabin Center for Climate Change Law, Michael Gerrard, highlights the positive effect an ICJ advisory opinion may have on future leaders. “The current leaders of some major emitting countries, such as the U.S and Brazil, may not care much about international law, but hopefully their successors will,” said Gerrard.
The corruption trial of former Malaysian Prime Minister Najib Razak got underway on 28 August. Aljazeera reports that prosecutors have alleged the former PM abused his powers in order to place himself in “sole control of important matters” at the State investments fund 1Malaysia Development Berhard (1MDB) and that he laundered billions in State money. After losing the general election in 2018, Razak was charged with 42 criminal offences relating to money laundering and corruption, allegedly committed while he was at 1MDB. Razak has described the charges as politically motivated and has pleaded not guilty to all counts. The lead prosecutor of the case, Gopal Sri Ram, asserted that Najib exerted “influence over the board of 1MDB to carry out certain abnormal transactions with undue haste”. In an interview wth Aljazeera, the Director of the Asia Institute at the University of Tasmania, James Chin, predicted it will be “a long, drawn-out” trial due to the complexity of the facts and many jurisdictions being involved. Chin said the government faces pressure from the public to find Najib guilty. Chin said the Malaysian government has brought many charges against Razak to ensure he loses his member of parliament status and is unable to run in the next election.
Photos (from lef t to right): Jay Topping/iStock; Kremlin.ru; Instants/iStock; Kremlin.ru
Former Malaysian PM faces court
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REGIONAL NEWS
CITIZENSHIP
Two million people feared stateless in Indian state of Assam According to a report by Aljazeera, 1.9 million people have been left out of the contentious National Register of Citizens in the Indian state of Assam, located along the India-Bangladesh border. The register was published in August with the aim of identifying legal citizens and exposing undocumented immigrants in the state. For many, it has sparked fear they will be left stateless. Critics view the register as a scheme to deport Muslims, who constitute one third of the population. People excluded from the list have 120 days to prove their citizenship at specially constituted tribunals. From this stage, the tribunals will reach a decision within six months. Aljazeera reports that there are currently six detention centres in Assam and the government has plans to build 10 more, in order to detain undocumented citizens. Legal and human rights groups such as Citizens for Justice and Peace and Amnesty International say it is unrealistic to expect some of the poorest people in the commmunity, displaced by violence or natural disasters, to produce the necessary formal records, often dating back half a century. Chief Minister of Assam Sarbananda Sonowal has insisted “there is no need to panic”, saying, “We will provide all the possible assistance … I would appeal to all the people to maintain peace and harmony”.
DEATH PENALTY
↗ President of Sri Lanka Maithripala Sirisena ↓ A worshipper in the north Indian state of Assam.
Sri Lanka reinstates death penalty, appoints executioners Sri Lankan President Maithripala Sirisena has brought about an end to the 43-year moratorium on the death penalty in Sri Lanka. LAWASIA has voiced strong opposition to the move, as have groups from Britain, Canada, the EU and the UN. Prime Minister Ranil Wickremesinghe is at odds with the President. The Tamil Guardian reported that the PM attempted to pass a Bill in August to abolish the death penalty and commute the sentences of those already on death row. According to a report in The Guardian, the last executioner reportedly quit in 2014, citing stress as a factor. An advertisement for the position was posted in March, calling for men aged 18-45 of “excellent moral character and mental strength” to apply. After a lengthy recruitment process, two executioners have been appointed to carry out the death penalty against four prisoners convicted of drugs charges. Requests for details of the four prisoners have been refused by prisons commissioner TMJW Thennakoon. Several human rights organisations have filed public interest law suits against the decision, claiming it is a violation of human rights. The United Nations Office on Drugs and Crime has asserted drug control agreements cannot be used to validate the implementation of the death penalty for standalone drug offences.
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REGIONAL NEWS
TREATY
20 years of independence for Timor-Leste
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↑ Prime Minister of Japan Shinzō Abe
↙ Indonesia
Timor-Leste ↘
Australia ↘
CONSTITUTION
Japan's Prime Minister still set on constitutional reform The Prime Minister of Japan, Shinzō Abe, has announced a new cabinet and declared his intention to change Japan’s Pacifist Constitution, according to The Straits Times. “It has been a goal since the founding of the Liberal Democratic Party to revise the Constitution, and I am determined to make it happen,” said Abe. It is the fifth time he has changed the cabinet since becoming Prime Minister in 2012. This time he has reassigned 13 out of 17 portfolios to firsttime ministers. Article 9 of the Japanese Constitution essentially prohibits any use of armed forces. However, it has subsequently been interpreted to permit military forces for self-defence. According to a report by Reuters, Abe seeks to clarify this self-defence exception in the wording of the article. Though it has a largely symbolic effect, conservatives have long sought this change as they view the Constitution as a reminder of their defeat in World War II. Abe intends to present the proposed amendment to Parliament later this year. The public is said to be divided over the issue. Amendments would require a two-thirds majority of both houses of parliament, and a majority if a referendum is held.
Photos (from lef t to right): Kremlin.ru; Joshua Stevens (LANCE MODIS Rapid Response)/NASA; IMO
August marked 20 years since Timor-Leste broke free of Indonesian occupation and became an independent nation. Indonesia first invaded Timor-Leste in 1975 and remained a militant occupant for 24 years. The Straits Times reported that as many as 250,000 people lost their life during this time due to fighting, disease and starvation. In August 1999, about 80 per cent of the Timor-Leste population voted to become independent from Indonesia in a United Nationsbacked referendum. Following the vote, nearly 1,400 people were killed by Indonesian forces. On the 20th anniversary of Timor-Leste’s independence, Australia signed a treaty with the independent nation over its maritime boundaries. The treaty has the potential to provide billions in revenue from offshore oil and gas to the impoverished country. The treaty has been ratified by both nations. Meanwhile, a secretive trial is underway in an Australian court in relation to whistleblower revelations that Australia bugged Timor-Leste’s government offices back in 2004 during sensitive commercial negotiations over an earlier failed treaty. As reported in The Guardian Australia, ‘Witness K’ – a senior Australian intelligence officer with knowledge of the 2004 bugging operation – felt ethically compelled to speak against it and reportedly gained permission to consult an approved lawyer, barrister Bernard Colleary. Together, they brought a case against Australia in The Hague, alleging the bugging was illegal and that the 2004 treaty was void. Just as the hearing was to begin, the offices of both Witness K and his barrister were raided by the Australian Federal Police and both were charged with conspiring to breach section 39 of the Intelligence Services Act. The case has drawn widespread criticism from the legal community in Australia and from the East Timorese people. Witness K has pleaded guilty to the charges, but his barrister has vowed to fight on, albeit in a closed court and in spite of the fact that many details of the prosecution case are being withheld from him under the guise of national security considerations.
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REGIONAL NEWS
CRIMINAL LAW
Indonesia's Draft Criminal Code postponed after angry protests
ENVIRONMENT
Indonesian Government slow to act on massive forest fires Multiple environmental and human rights groups including Walhi, the Indonesian Legal Aid Foundation, Greenpeace Indonesia and Kontras, have criticised the Indonesian Government for its lack of action against the fires spreading across six different provinces, with the ABC reporting that there have been more than 73,000 fire alerts across Indonesia since the beginning of September alone. The groups have urged both local and national governments to act by dispatching extra medical practitioners and developing a rapid response plan to address fires that occur during the dry season. There have also been calls for the Government to investigate licences held by large companies which have used fire as a mechanism to clear land to produce palm oil. Neighbouring countries have also voiced complaints about the haze that spread into their territory and Malaysia’s Environment Minister, Yeo Bee Yin, has criticised Jakarta’s failure to address the problem. However, The Straits Times reports that 249 people have been named as suspects for starting the fires and prosecutors have already begun investigations for 23 cases, with another 45 expected to be heard in October. According to the Sydney Morning Herald, Policeman Dedi Prasetyo said suspects may be prosecuted per an environmental protection law which caps prison sentencing at 10 years for setting fire to land. The effect of the fires has been immense, causing school closures, flight cancellations, and endangering the lives of tigers, sun bears and orangutans. The haze from the fires even turned the sky red in the province of Jambi. Apocalyptic images have been circulated worldwide.
↑ Af ter several relatively quiet fire seasons in
President Joko Widodo has postponed the passage of a controversial series of criminal law reforms after protests erupted on the streets of Jakarta in September, according to a report from The Guardian. The Draft Criminal Code resulted from a decades-long review of Indonesia’s criminal laws, which date back to the days of Dutch colonial rule. Thousands of young people and students marched on parliament to voice their outrage at the prospect of increased incursions on their civil liberties and the expansion of so-called morality laws. Extra-marital sex and cohabitation outside of marriage would become crimes under the new code, as would insulting the president or vice president – a move which civil society groups fear could roll back hard fought gains for freedom of speech and the press, won since the end of the Suharto era. The promotion of contraception to people under 18 years would also become illegal in most circumstances, as would abortion, which may attract a four-year jail term. Article 2 of the Draft Criminal Code, which recognises “any living law” in Indonesia, has also been viewed with concern. Human Rights Watch says the phrase “any living law” could be interpreted to include hokum adat (customary criminal law) and Sharia (Islamic law). Because there is no defined list of such “living laws”, there is added concern about the way in which religious minorities, women and LGBTQI+ people could be affected. Protesters also demanded the repeal of a new law known as the KPK, which winds back the powers of Indonesia’s anti-corruption agency. In 2018, Indonesia was ranked 89 out of 175 countries in Transparency International’s annual Corruption Perceptions Index.
Indonesia, an abundance of blazes in Kalimantan (part of Borneo) and Sumatra in September 2019 blanketed the region in a pall of thick, noxious smoke. Caption by Adam Voiland. → President of Indonesia Mr Joko Widodo
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LEADERSHIP
BUSINESS
What Gandhi believed about business As the world celebrates 150 years since Gandhi's birth, GEOFFREY JONES and SUDEV SHETH explore his beliefs about the proper role of business in society.
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ahatma Gandhi is celebrated across the globe as an idealist who used civil disobedience to frustrate and overthrow British colonialists in India. The popularity of his nonviolent teachings – which inspired civil rights activists such as Martin Luther King Jr. and Nelson Mandela – has obscured another important facet of his teachings: the proper role of business in society. Gandhi argued that companies should act as trusteeships, valuing social responsibility alongside profits, a view recently echoed by the Business Roundtable. His views on the purpose of a company have inspired generations of Indian CEOs to build more sustainable businesses.
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As scholars of global business history, we believe his message should also resonate with corporate executives and entrepreneurs around the world.
Shaped by globalisation
Born in British-ruled India on 2 October 1869, Mohandas K. Gandhi was the product of an increasingly global age. Our research into Gandhi’s early life and writings suggests his views were radically shaped by the unprecedented opportunities that steamships, railroads and the telegraph provided. The growing ease of travel, the circulation of print media and the increase in trade routes – the hallmark of the first wave of globalisation from 1840 to 1929 – impressed upon Gandhi the myriad of challenges facing society.
These included vast inequality between the rich West and other parts of the world, growing disparities within societies, racial tension and the crippling effects of colonialism and imperialism. It was a world of winners and losers, and Gandhi, although born into an affluent family, dedicated his life to standing up for those without status.
The horrors of industrialisation
Gandhi studied law in London, where he encountered the works of radical European and American philosophers such as Leo Tolstoy, Henry David Thoreau, Ralph Waldo Emerson and John Ruskin – transcendentalists who advocated intuition over logic. Ruskin’s moving discussion of the ecological horrors of industrialisation,
Photos (from lef t to right): Author unknown/Wikimedia Commons; Elliott & Fry/ Wikimedia Commons
↖ Gandhi as a lawyer in South Africa in 1906.
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LEADERSHIP
in particular, caught Gandhi’s attention and led him to translate Ruskin’s book Unto This Last into his native Gujarati. In 1893, Gandhi took up his first job as a barrister in the British colony of South Africa. It was here, not in India, where he forged his radical political and ethical ideas about business. His first public speech ever was to a group of ethnic Indian businesspeople
components of what trusteeship meant for Gandhi: 1. Long-term vision beyond one generation is necessary to build truly sustainable enterprises 2. Companies must build reputations that foster trust across transactions and all sections of society 3. Business enterprise must focus on creating value for communities
“Gandhi took up his first job as a barrister in the British colony of South Africa. It was here, not in India, where he forged his radical political and ethical ideas about business.”
Elliott & Fry/ Wikimedia Commons
in Pretoria. As Gandhi recalls in his candid autobiography The Story of My Experiments with Truth, “I went fairly prepared with my subject, which was about observing truthfulness in business. I had always heard the merchants say that truth was not possible in business. I did not think so then, nor do I now.” Gandhi returned to Britishoccupied India in 1915 and continued to develop his ideas on the role of business in society by talking to prominent business leaders such as Sir Ratanji Tata, G.D. Birla and Jamnalal Bajaj. Today, the children and grandchildren of these early Gandhi disciples continue to lead their family businesses as some of not only India’s but the world’s most recognised conglomerates.
The role of business
Gandhi’s views of what trusteeship really means were expressed in great detail in his widely popular Harijan, a weekly periodical that highlighted social and economic problems across India. Our study of Harijan’s archive from 1933 to 1955 helped us identify four key
4. While Gandhi saw the value of private enterprise, he believed the wealth a company creates belongs to society, not just the owner. Gandhi was murdered in 1948, just after India secured independence. However, his ideas have continued to resonate deeply with some of India’s leading companies. Interviews conducted for Harvard Business School’s oral history archive turned up surprising evidence in recent decades of Gandhi’s role in guiding modern companies in a variety of
countries toward more sustainable business practices. “We have to take care of all stakeholders,” says billionaire Rahul Bajaj, chairman of one of India’s oldest and largest conglomerates, recalling his grandfather’s association with Gandhi. “You can’t produce a badquality and high-cost product and then say, I go to the temple and pray, or that I do charity; that’s no good and that won’t last, because that won’t be a sustainable company.” Anil Jain, vice chairman and CEO of the second largest micro-irrigation company in the world, recalls: “My father was greatly influenced by Mahatma Gandhi who believed in simplicity – he believed that the real India lives in villages, and unless villages are transformed to become much better than how they are, India cannot really move forward as a country.”
What would Gandhi say?
Gandhi’s views were constantly evolving in dialogue with the business community, and this is one reason why they remain so relevant today. Imagine a Gandhian perspective on today’s tech companies. He would perhaps ask proponents of self-driving cars to consider the impact on the lives of hundreds of thousands of cab drivers around the world. He would ask proponents of e-commerce to consider the impact on local communities and climate change. And he would ask shareholders whether closing factories to maximise their dividends was worth making communities unsustainable. Gandhi didn’t have all the answers, but in our opinion he was always asking the right questions. For today’s business leaders and budding entrepreneurs, his wise words on trusteeship are a good place to start. This article was first published on The Conversation on 1 October 2019 Geoffrey Jones is Isidor Straus Professor of Business History, Harvard Business School, and Sudev Sheth is Senior Lecturer, The Lauder Institute, University of Pennsylvania.
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TECHNOLOGY
If Facebook were a country
Social media companies must be held to account, lest out rights be further eroded, writes CYNTHIA M. WONG.
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f Facebook were a country, it would be the largest in the world, with over 2 billion users. It would also be ruled by an opaque, unaccountable, and undemocratic regime. Social media has become the modern public square, which is run by unseen corporate algorithms that can manipulate our access to information and even our mood. Social media firms police our speech and behaviour based on a set of byzantine rules where companies are judge and jury. And they track our every digital move across the Web and
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monetise the insights they glean from our data, often in unforeseen ways. Though the internet has in many ways been a boon to the human rights movement, we have come a long way from the heady days of “Twitter and Facebook revolution” during the 2011 Arab uprising. Trust in Silicon Valley has sunk to an all-time low as the public begins to fully grasp the power we have traded away in exchange for access to seemingly free services. Even more troubling is Facebook’s apparent retaliation against critics. A New York Times report in November 2018 raised questions about how far Facebook would go to undermine prominent critics like George Soros and the Freedom from Facebook coalition, including commissioning others to spread stories to generate public animus or to discredit them. In a statement released in response to the report, Facebook acknowledged that
Illustration: Feodora Chiosea/iStock
OPINION
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it had asked a public relations firm to research the possible motivations of critics but did not ask them to distribute “fake news”. Human Rights Watch, which accepts no funds from any government, has received grants from Soros. The inconvenient truth is that tech business models are often at the heart of the problem. Free, advertising-driven services are specifically designed to capture our attention, collect massive amounts of our data, create detailed profiles about us, and sell insights from those profiles to advertisers and other third parties. And how tech firms design their services can have serious repercussions for human rights. Governments, trolls, and extremists have weaponised social media to manipulate public opinion, spread hatred, harass marginalised communities, and incite violence. For example, United Nations investigators found that social media and hate speech had played a “determining role” in the campaign of ethnic cleansing against Rohingya Muslims in Burma by security forces. Governments in Russia and the Philippines have mobilised troll armies to spread disinformation and harass and target online critics. At the same time, massive data breaches and the Cambridge Analytica scandal, where a political consulting firm improperly gained access to the Facebook data of millions of users, have driven home just how little control we have over our data.
Some nascent efforts have begun to hold tech companies accountable for human rights harm. The European Union in 2016 passed the world’s most comprehensive data protection regulation, which went into effect in 2018. The law gives users more control over their data by regulating how companies collect, use, and share it. Other countries are looking to these rules as a model. More regulation may be needed to protect privacy or address other harms, though we should be careful that law doesn’t undermine freedom of expression or further entrench tech companies as arbiters of the public sphere. To that end, the EU has brought anti-trust actions to address anticompetitive behaviour, and Facebook has faced investigations and fines over its mishandling of data. Advocates in the US are exploring similar tactics to target anti-competitive behaviour. Meanwhile, investors are pressing companies on their privacy practices and Facebook agreed to independent assessments to address racial discrimination and incitement to violence on its service. UN experts have called on companies to submit to other kinds of third-party human rights audits. Even tech workers have begun organising to ensure the products they build aren’t put to harmful use. These efforts are a good start but may not go far enough in challenging underlying business models. Social media algorithms are engineered to
“Trust in Silicon Valley has sunk to an all-time low as the public begins to fully grasp the power we have traded away in exchange for access to seemingly free services.”
maximise “user engagement” – our clicks, likes, and shares – which gets us to provide more data that generates more advertising revenue. But in maximising engagement, companies may also be amplifying societal outrage and polarisation. Algorithms may reward the most inflammatory and partisan content that people are more likely to like and share. Advertising systems enable businesses to micro-target ads on social media to specific demographics, but also allow governments and trolls to manipulate the public. To meet revenue goals, social media firms must also continuously add users. But they have sometimes rushed to capture markets without fully understanding the societies and political environments in which they operate, with devastating effects to already vulnerable groups. The original sin may be the “free” advertising-driven business model that allowed social media, email, search, and other services to grow into huge, dominant networks. That model is also a significant barrier to addressing digitally mediated human rights harm, from unchecked data collection to gaming of social media algorithms. If regulators, investors, and users want true accountability, they should press for a far more radical re-examination of tech sector business models, especially social media and advertising ecosystems. And if tech companies are serious about rebuilding user trust and safeguarding our rights, they need to reckon with the harm their technology and very business models can cause. This article first appeared on Human Rights Watch and is published here under creative commons license: hrw.org/worldreport/2019/essay/social-medias-moralreckoning Cynthia M. Wong is Senior Researcher on the Internet and Human Rights. Before joining Human Rights Watch, Wong worked as an attorney at the Center for Democracy & Technology and as director of their Project on Global Internet Freedom.
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CONFLICT
When “never again” means nothing Atrocities are once again becoming the new normal – and we must put a stop to it, writes PHILIPPE BOLOPION.
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here is no more daunting challenge for the human rights movement than trying to spare civilians from the litany of abuses associated with the raging conflicts of our time, those that are claiming the lives of hundreds of thousands of people and causing millions to flee across international borders. Where there once was outrage and demands for action, complacency has set in. How did it come to this? For a while, the world seemed determined to put an end to the most horrendous crimes facing humanity. Buoyed by the end of the Cold War,
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outraged by the genocide in Rwanda and ethnic cleansing in Bosnia, a global movement was born in the new millennium with a powerful rallying cry, echoing that of Holocaust survivors: never again. Its ideas were radical at the time: no government was to hide behind its sovereignty to massacre its own people and no head of state was to stand above the law. This movement gave itself a conceptual banner – the “responsibility to protect” – which the United Nations General Assembly adopted in 2005. It also embraced efforts to create an international criminal court to
prosecute those most responsible for genocide, crimes against humanity, and war crimes. The activists, diplomats, and scholars who formed the backbone of this movement knew that atrocities would not disappear overnight. But they were confident that the global arc of history could bend toward progress. And for some time, it looked like they were right. When Sudanese forces and allied militias turned Darfur into a scorched earth in 2004, students rose up on campuses across the US to demand action. The UN Security Council referred the situation to the International Criminal Court and the UN deployed a peacekeeping mission. When Col. Muammar Gaddafi’s son in Libya promised “rivers of blood” to suppress protests in 2011, the Security Council swiftly imposed sanctions, and later authorised member states to take all necessary measures to protect civilians, including by imposing a no-fly zone. That same year, Laurent Gbagbo, the all-powerful Ivorian president who tried to cling to power despite losing an election, was pressured by the UN, removed from power, and eventually landed in a cell in The Hague. These robust UN Security Council interventions were not immune from
Photos (from lef t to right): Joel Carillet /iStock; Alena Paulus/iStock
OPINION
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OPINION
← The Rohingya Chakmarkul (Pulonkhli) refugee camp near Cox's Bazar, Bangladesh in 2018. ↑ Auschwitz II-Birkenau concentration and extermination camp in Poland, active during WWII.
controversy, nor were they always successful in their stated aims (Libya, which is still mired in chaos, is a case in point), but they signified a remarkable departure from the passivity of the past. Fast-forward a few years later, and the hopeful arc of history seems to have taken a nose-dive. Atrocities the world had promised to end are the new normal. In Syria, President Bashar alAssad, who for the past seven years has waged arguably the most vicious and bloody war in a generation, bombing and starving civilians, targeting hospitals and using chemical weapons, is winning the war with the help of Russia and consolidating his power. Myanmar’s generals, who have presided over the brutal ethnic cleansing of the Rohingya population, are also getting away with murder, able to count on China’s support in a paralysed Security Council while the rest of the world looks on – never mind that a UN fact-finding mission concluded that those generals should be investigated and prosecuted for genocide. In Yemen, the Saudi-led coalition has unlawfully killed and wounded thousands of civilians and helped bring an entire country to the brink of famine. Countless war crimes have not stopped the US, UK or France
from selling weapons to Saudi Arabia or from unrolling the red carpet for Crown Prince Mohammed Bin Salman, responsible for the coalition’s carnage in Yemen, yet dubbed a reformer by Western politicians and media elites, at least until he became a prime suspect in the murder and dismemberment of a prominent dissident journalist. Are we to conclude that all is lost, and that the anti-atrocity movement was naïve and always bound to fail? Far from it. In the last few years, the US, UK, and France have enabled setbacks by turning their backs on international human rights and their underlying principles. They could, as they sometimes did in the not-so-distant past, return to using their permanent seats on the Security Council to demand action in the face of mass atrocities. Today the US has the clout to put real pressure on Saudi Arabia regarding Yemen. The UK could mobilise the world on behalf of justice for the Rohingya. France can use its leverage to ensure that autocrats in the Democratic Republic of Congo or Cameroon are accountable. Their citizens can demand it. Still, it would be foolish to rely on these countries only. Other largely
rights-respecting democracies, like the Netherlands, Liechtenstein, or Canada, have shown leadership to demand accountability for Syria or Yemen. More should join them, including emerging powers such as India or South Africa who seek a place on the world stage without articulating a positive vision on human rights. Altogether, these countries could confront Russia for the Syrian bloodbath or China for detaining an estimated one million Uighurs in “political education” camps in Xinjiang. The global fight against atrocities is long and hard. Reigniting it requires courageous engagement by activists, diplomats, civil society leaders, and elected officials who believe that genocides and crimes against humanity are not an inevitable human flaw and should be met with more than a collective shrug. This article first appeared on Human Rights Watch (HRW) and is republished here under license: hrw.org/world-report/2019/ essay/atrocities-as-the-new-normal Philippe Bolopion is HRW's Deputy Director for Global Advocacy, a role he assumed in January 2016. He assists in designing and implementing HRW's advocacy strategies worldwide and oversees the organisation's advocacy response to crisis situations.
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COVER STORY
Illustration: Ilbusca/iStock
DEFENDING
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COVER STORY
Lawyers throughout the Asia Pacific and beyond are facing ongoing threats and challenges as democratic values and the rule of law are eroded. They are literally putting their lives on the line in the name of justice, so what can be done? CLAIRE CHAFFEY reports.
THE
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COVER STORY
LAWYERS IN THE PHILIPPINES ARE LIVING IN FEAR. Since President Rodrigo Duterte took office in 2016, at least 39 lawyers have been killed. Many were assassinated in brazen public attacks involving extraordinary levels of violence. Often the killings have resembled professional hits. As a result, lawyers in the capital, Manila, and elsewhere exist in a state of high alert, afraid of paying the ultimate price for defending justice and upholding the rule of law, frightened of dying for their trade. In September this year, 73-year-old lawyer Irineo Cabugoy was shot dead inside a restaurant while enjoying a meal with his family. In July, Anthony Trinidad was on his way home from court when two gunmen shot him and his wife multiple times. He died in hospital. She survived. In March, Rex Jasper Lopoz was executed outside a shopping mall in the southern Philippines. He was representing defendants in drug cases and was known as a “leftist activist”. In November 2018, prominent lawyer and Secretary-General of the National Union of Peoples’ Lawyers (NUPL) Benjamin Ramos was executed in cold blood while enjoying a cigarette on the street. The list of casualties goes on, and a clear message has emerged: if you’re a lawyer in the Philippines, you’ve a target on your back.
A troubling situation
Writing for The Washington Post shortly after Benjamin Ramos’ murder, Edre Olalia, NUPL President and a friend and colleague of Ramos, said: “There was a time in the Philippines when giving one’s business card or wearing a pin with the logo of the scales of justice invariably elicited respect and deference. Police and military officers would step aside lest they get into ‘trouble’. Being a lawyer was a great source of pride – regrettably, even hubris. “Not anymore. Especially when lawyers work in human rights or in advocacy – lawyers whose calling is to serve peasants, laborers, indigenous peoples, migrant workers and activists in a 26
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“AS A RESULT OF PRESIDENT DUTERTE’S SO-CALLED WAR ON DRUGS, IT HAS BECOME COMMON PRACTICE TO ‘LIST’ PEOPLE ACCUSED OF BEING DRUG USERS ... [IT] HAS EXTENDED TO LAWYERS WHO DEFEND THOSE ACCUSED OF DRUG-RELATED CRIMES.”
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Photo: Ace Morandante/PPD
COVER STORY
↑ President Rodrigo Duterte warns corrupt government officials involved in the illegal drug trade in his speech during the celebration of the National Heroes’ Day.
country where the standard of justice is skewed in favour of the tiny political and economic elite.” Olalia grieved the loss of his friend and colleague – a man whom he called a “foot soldier lawyer on the front lines, always ready to fight another day in the courtroom, in the farms, in the streets, online and in conferences”. “Today, being a lawyer for the defenceless makes us a target,” he wrote. “Who will then defend the defenders? And who will defend the defenceless?” In March this year, an international delegation comprising the Day of the Endangered Lawyer Foundation (the Foundation), the Union International des Avocats (UIA), and the International Association of Democratic Lawyers (IADL) conducted a fact-finding mission in the Philippines in an attempt to establish the extent of the threat against the legal profession. A preliminary report published on the Foundation’s website details numerous findings.
As a result of President Duterte’s so-called war on drugs, it has become common practice to “list” people accused of being drug users. There are no criteria or evidence requirements for these lists, which are frequently made public, and the practice has extended to lawyers who defend those accused of drug-related crimes. Often, the consequence of being “listed” is to be discredited and exposed, publicly threatened, harassed, or even killed. The report also revealed a dramatic increase in the practice of “red-tagging”. This term was defined as “the act of labelling, branding, naming and accusing individuals and/or organisations of being left-leaning, subversives, communists or terrorists (used as) a strategy ... by State agents, particularly law enforcement agencies and the military, against those perceived to be ‘threats’ or ‘enemies of the State’.” According to the report, this strategy is often used against lawyers, who are also regularly the subject of fabricated criminal charges used to pressure, harass, discredit and intimidate. The practice is commonly orchestrated by police and armed forces – the very same actors responsible for investigating such crimes. Any pleas and recommendations emerging from the fact-finding mission to cease and desist – or, more specifically, “to refrain from publicly attacking lawyers and instead publicly condemn all attacks against lawyers, prosecutors, and judges at all levels in strong terms” – have fallen on deaf and disinterested ears. According to Hans Gaasbeek, a Dutch lawyer and spokesperson for the Day of the Endangered Lawyer Foundation, more and more evidence is emerging to suggest that the murders are being carried out by professional hitmen, and Filipino lawyers are scared. They are also, says Gaasbeek, incredibly courageous. “All the lawyers we have met with [as part of the fact-finding mission] are very, very brave. The presidents and board members of the Integrated Bar of the Philippines and the president and the board members of the new National Union of People’s Lawyers continue to do the work and their advocacy,” he tells Asian Jurist. “They were all speaking freely and very clearly at our meetings in March. We noticed that all the Filipino lawyer organisations and bar associations work very well together. We also noticed that the circumstances under which these lawyers have to do their professional work are so hard that they started joking a lot, because of the stress. Concerningly, Gaasbeek says officials within
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GLOBAL FRONT LINES Derk Wiersum, The Netherlands Shot dead outside his home in Amsterdam on 18 September 2019. He was representing a crown witness in a gang-related murder trial.
Benjamin Ramos, The Philippines Shot and killed by two unidentified men on 6 November 2018. Known for being a human rights activist and defending society's most disadvantaged.
Mahienour El-Massry, Egypt Arrested on 22 September 2019 in connection with her activities as a lawyer. Facing charges of “joining an illegal group”, “publishing false news”, and “misuse of social media”.
Waleed Abulkhair, Saudi Arabia
Nasrin Sotoudeh, Iran
Sentenced to 15 years in prison by the Specialised Criminal Court. Known as a human rights activist and head of Monitor of Human Rights in Saudi Arabia.
Sentenced in March 2019 to 38 years in prison and 148 lashes for “spying, spreading propaganda and insulting Iran's supreme leader”. Known for being a human rights activist.
the public prosecution department at the Ministry of Justice told the fact-finding delegation that lawyers and prosecutors – eight of whom were killed in three years – simply must accept the current situation and the killings as “a risk of the profession”. “What we were totally shocked about is the fact that the government officials with whom we spoke didn’t see any necessity to organise some support or to create some funding for the victimised families of the killed lawyers, judges and prosecutors,” he says. The situation in the Philippines has attracted global attention, with condemnation coming from many corners. In November 2018, following the murder of Benjamin Ramos, LAWASIA President Christopher Leong issued a statement condemning the ongoing violence against lawyers in the troubled nation. 28
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“LAWASIA considers any assault on members of the legal profession to be a direct affront to the rule of law and to the administration of justice,” reads the statement. “The rights and duties of members of the legal profession to perform their professional functions and work towards protecting and promoting the rule of law, administration of justice and human rights is fundamental to any justice delivery system.” LAWASIA called on the Filipino authorities to take immediate action against the killings of Ramos and others, including “establishing a prompt and impartial investigation to ensure the perpetrators are brought to justice and, above all, to ensure that the security and safety of legal professionals and human rights defenders in the country is safeguarded”. But little has changed, and the killings continue.
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An increasingly global problem
All around the globe, members of the legal profession are facing threats to their personal safety and wellbeing. In September 2019, Dutch lawyer Derk Wiersum, counsel for a crown witness in a case against members of a violent drug gang, was executed outside his home in a case that has shocked the nation. In March, Iranian human rights lawyer and activist Nasrin Sotoudeh was sentenced to 38 years in prison and 148 lashes after being convicted of spying, spreading propaganda and insulting Iran’s supreme leader. One year earlier, Pakistani lawyer Zainullah Khan was killed on his way home from work – the most recent in a growing list of Pakistani lawyers targeted by unidentified assailants. According to Christopher Leong, those who persecute or subjugate lawyers tend to fall into four broad categories: ultra-nationalists, ultrareligious conservatives or religious extremists, racists, and authoritarian states/regimes – some of which, he adds, have a veneer of democracy. “It is unfortunate that in the 21st century, and in the digital and internet age, we find that there are still many people who do not have the ability, capability or capacity to express themselves or advocate their views any better than by way of violence or the threat of violence,” Leong tells Asian Jurist. “History tells us we have always had to fight for the rule of law and fundamental rights, from well before the time of the Magna Carta through the time of the American Civil War, apartheid, to present day. Lawyers have, in the past decade alone, had to put themselves on the line and fight for the independence of the judiciary, administration of justice, fundamental freedoms and the rule of law in Pakistan, Sri Lanka, Fiji, Malaysia, China, Myanmar, Vietnam and Cambodia, to name a few.
“Anything worth fighting for requires sacrifice. Principles have no real meaning if we are only willing to stand by them when it is convenient to do so. Lawyers are, by our training, equipped above all others with the requisite values, knowledge and skills to take the front line.” Throughout 2019, the Day of the Endangered Lawyer Foundation has focussed on the crisis engulfing Turkey’s legal profession. While the situation has arguably rarely been easy for Turkish lawyers, things have been particularly bad since 2011, with mass round-ups and arrests of jurists becoming common practice. Following the attempted coup in 2016, the situation disintegrated again. A report by the Office of the UN High Commissioner for Human Rights found that by the end of 2017, about 570 lawyers had been arrested, 1,480 faced prosecution, and 79 had been sentenced to longterm imprisonment. Earlier this year, numerous prominent organisations including the International Bar Association and the Law Society of England and Wales spoke out against the arrests in Turkey, with then-Law Society President Christina Blacklaws saying, “The intimidation and persecution of lawyers undermines the rule of law. The consequences are an entire society that becomes less safe, less stable and less fair. “Lawyers in Turkey are being persecuted for no reason other than their courageous determination to represent their clients, many of whom are human rights defenders. This is a fundamental breach of Turkey’s international obligations to respect the role and independence of lawyers.” In 2020, the Day of the Endangered Lawyer Foundation will throw a spotlight on the persecution of lawyers in Pakistan, but Gaasbeek says there are plenty of other hotspots on the radar, including Iran, Honduras, Colombia, Cameroon, Uzbekistan, Russia and Syria.
The east-west divide
“A CLEAR MESSAGE HAS EMERGED: IF YOU’RE A LAWYER IN THE PHILIPPINES, YOU’VE A TARGET ON YOUR BACK.”
According to Patrick Henry, Chair of the Human Rights Committee, Council of Bar and Law Societies of Europe (CCBE), many nations in the Asia Pacific region in which the persecution of lawyers is present have heads of state willing to condemn democratic principles as a “western ideal”. “The main challenge for lawyers around the world, and in the Asia Pacific in particular, is the opposition to the civilisation of human rights, which emerged from World War II,” Henry tells Asian Jurist.
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“Today, more and more heads of state criticise these values as being western, capitalist, colonialist values. In the name of alternative models of civilisation, those heads of state claim to depart from democratic values and the rule of law, allowing for the denial of judicial and defence independence. The value of individuals, as such, is denied, as everything and everyone must be subordinated to the state apparatus.” This, says Henry, justifies moral and physical pressure on judges, lawyers and human rights defenders who, in some states, can be refused a licence to practice if they have agreed to take on sensitive cases. “Harassment, incommunicado detention, torture or murder are utilised to target those who do not abide by the national model of civilisation, particularly in Iran, Afghanistan, Pakistan, India, Bengal, Indonesia, and even more so in the Philippines where the murder of lawyers and magistrates seems to have become a political form of government,” he says. There is little question that the Asia Pacific region is experiencing a rise in authoritarianism, which poses a direct threat to human rights and thus economic and social prosperity. While many still argue that Asian values focus more on collective rather than individual rights, this theory 30
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“THERE IS LITTLE QUESTION THAT THE ASIA PACIFIC REGION IS EXPERIENCING A RISE IN AUTHORITARIANISM, WHICH POSES A DIRECT THREAT TO HUMAN RIGHTS.”
↑ The Philippine National Police in Manila. → President Rodrigo Duterte, flanked by Philippine Air Force Commander Lt. Gen. Edgar Fallorina.
grates for those who champion democracy as being the primary political system in which societies and economies can flourish. “Prosperity has never resulted from regimes denying individual freedoms,” says Henry. “Authoritarian regimes that deny human rights not only generate an erosion of individual rights, but also create corruption, fear of arbitrary treatment, and increased social divide.
Photos (from lef t to right): h3k27/iStock; King Rodriguez/PPD
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As a result, these regimes generate a very unfavourable situation for business development. It is accurate and verified to say that the independence of the judiciary and lawyers allows for an environment of legal security and stability. “This represents an important economic value, as companies which feel secure in their rights can take the necessary steps to develop without fear of being deprived of their rights. The wealth of the country in which they are established is ensured.”
How to defend the defenders?
Hans Gaasbeek says while the Filipino profession is banding together, he is unsure whether ordinary Filipino citizens are aware of the extent to which the rule of law is being eroded and the legal profession persecuted. “I’m not sure if the normal people in the Philippines, the citizens, are fully aware of what is happening in their country. The President and his officials use publicity a lot to create popularity,” he says. He also believes support must be forthcoming from other jurisdictions. “Of course, all lawyers in the Philippines have to stand together in this very sad and hard situation, as they do already, but they need a lot of support from abroad in all different ways. In the most serious cases, the lawyers need protection. They will need shelter in countries close to the Philippines. They will need all kinds of help, and
the families and children of killed lawyers need financial support.” Patrick Henry says one of the best ways to protect the legal profession and judiciary is to promote a strong and independent bar and judiciary. “Unity creates strength, and the gathering of defenders in local, regional, national and international bars displays greater power and credibility,” he says. There are, he says, examples of where this action has created positive outcomes. In 1985, the French-speaking European and Canadian Bars, together with their African counterparts, created the Conférence Internationale des Barreaux de Tradition Juridique Commune (CIB), which organises an annual congress in one of its member countries. “It is an opportunity to strengthen the independence of the bar in the host country, enhance its prestige, and develop connections which can be activated as protective measures,” he says. The CCBE is currently working to promote the signing of a European Convention on the Profession of Lawyer by the Council of Europe, which would constitute a legal instrument binding states to ensure the protection of lawyers through positive measures, including obligations with direct effects, which could be invoked before national courts. “If this approach is successful, it will set a fine precedent for the entire profession around the world,” says Henry. “In the same vein, the Indian State of Madhya Pradesh has just adopted specific provisions protecting lawyers in the exercise of their profession.” While there are glimmers of optimism amid the gloom, and there are those taking decisive action to ensure an independent and thriving legal profession and judiciary, it is hard to escape the underlying sentiment of grave concern about the times in which we live. “We live in particularly worrying times. Populists and extremists are beginning to flourish again, shaking up the crowds with fake slogans and hate messages,” says Henry. “If anyone can wage war, let us never forget that it is always lawyers who make peace. Democracy, the rule of law and human rights are not western or colonialist values. These values belong to everyone, especially the weakest of us. It is up to all of us to commit ourselves to defending and promoting them. “Let us continue the struggle.” Claire Chaffey is a former lawyer, journalist and Asian Jurist's managing editor.
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F E AT U R E
Immoral crimes in Afghanistan
I
’m not a traditional human rights lawyer, I’m a litigator. I have a lot of respect for human rights lawyers, and I certainly do not think I’m in any way above them, but the difference between their job and mine is important. There’s a tendency in Afghanistan to label all sorts of legal injustices as “human rights issues”, but I think it’s a mistake to ride on that description because labelling a case as a human rights one can actually diminish its significance and limit the options available to the client. For example, the human rights lawyers I’ve met in Afghanistan don’t litigate and don’t go to court. They mostly focus on treaties and statements adopted within international human rights conventions, they write reports, march and argue behind the scenes. So, as a private lawyer who does litigate often, and often in cases with a human rights element, in Afghanistan at least I’m keen to avoid being labelled as a “human rights lawyer”. Every female client I’ve helped in Afghanistan has been affected by much wider issues than their human rights, so while a human rights
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approach often avoids the nitty-gritty mechanics of a criminal trial, I absolutely focus on specifics as they relate to the local laws. That’s the most effective way to represent and protect my clients. Where possible, I cite from the Holy Quran, I draw from Islamic laws, I quote local Afghan laws, and only then, if I still need to, will I revert to international legal standards from treaties and international conventions. As a litigator in Afghanistan, I’m not arguing my case to the media or to a panel of human rights experts, I’m arguing it to Afghan judges and I must convince those judges that my client is innocent. There were times when my reluctance to jump on the human rights bandwagon brought me into conflict with NGOs and embassies in Kabul. The human rights label can make a case sound more important, and it can certainly attract media attention, but I sometimes suspected that certain ambitious individuals were keen to use that label because it was good for their résumés without always thinking whether it was helping the client or their case.
Photo: Senior Airman Ashley Avecilla/DVIDS Flickr
KIMBERLEY MOTLEY was the first foreign lawyer to practise in the courts of Afghanistan. In this extract from her book, Lawless, she recounts how harnessing the power of the legal system can effect real change – though justice is not always the outcome.
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↗ An Afghan girl attends a female engagement team meeting in Balish Kalay Village, Urgun District, Afghanistan, to help improve the economic, educational and health issues of Afghan women.
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A good example was in the autumn of 2011 when I was asked to represent a sixteen-yearold Afghan girl named Gulnaz. Gulnaz had been sentenced to 12 years in prison for “adultery by force”. She’d received her sentence shortly after giving birth to her daughter, the product of the adultery, while in prison. Gulnaz had been raped. She had been visiting her cousin when the cousin’s 40-year-old husband attacked and raped her. He grabbed Gulnaz, threw her on the cold, dirty living room floor and raped her while his four-year-old son was in the room. Weeks later, Gulnaz and her mother went to a doctor because she was feeling sick—it turned out that she had morning sickness. Then, to add insult to injury, and ignoring all standards of doctor– patient confidentiality, the doctor turned her over to the police. The police immediately locked Gulnaz up on a charge of “adultery by force”, which they labelled as a moral crime. To Westerners, Gulnaz’s ordeal was unthinkable. It represented the epitome of the oppression of Afghan women: a teenage rape victim, turned in to the police by the doctor who examined her, arrested, convicted and jailed for her “moral crime”. In 2011, a UN study revealed that more than half the women locked up in Afghanistan had been convicted of so-called moral crimes. In Afghan society, a moral crime describes any action by a woman perceived as humiliating to a man within her family. In addition to adultery, the other most commonly punishable moral crime for Afghan women is running away. So, women, often very young women, who have run away from a bad, often life-threatening situation in the home, typically end up in court on charges. It’s almost exclusively women who are charged with “moral crimes” and it’s usually in the aftermath of some extreme domestic abuse. It is an effective tool for subjugating women. Gulnaz’s case represented much more than just a violation of her human rights. At its core, it represented extreme domestic violence, child abuse and systemic misogyny— exactly the argument the United States had used as justification for going into Afghanistan in the first place. As I started building Gulnaz’s file, I could see she was an example of how little progress had been made since. Naturally the human rights community in Kabul swarmed over Gulnaz’s case. But what was clear from the outset was that these advocates were failing to recognise that Gulnaz had been charged with a very specific crime. Her freedom wasn’t going to come from any human 34
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rights report; she needed to prove that she was not guilty of the specific charges that had been levelled against her. From a legal standpoint, she would have to demonstrate that the sex was non-consensual and that she had been raped. She needed a criminal defence lawyer, not a human rights lawyer. It’s worth noting that in Afghanistan women are rarely viewed as victims of rape. This interpretation is simply impossible in such a male-centric culture. The logic goes that the woman must have wanted the sex; she must have induced or seduced the man in some fashion, meaning it couldn’t have been the man’s fault. Questions are asked, such as, “Why was she there in the first place?”, “Why didn’t she scream?”, “Why didn’t she tell anybody?”, “Why didn’t she do x, y, z to escape?” Women have no voice, they have no say. Their relationship with men is like a slave’s relationship to the master. The degradation of women by Afghan men is especially pervasive in rural areas, which is most of Afghanistan. Contrary to popular belief, the practice did not start with the Taliban, either; it was a cultural norm long before the Taliban took over in 1996. The widespread abuse of women is one reason why I didn’t feel compelled to wear the headscarf. I’m not trying to be disrespectful, but a part of me sees forcing the wearing of the headscarf as a
↑ Kimberley Motley at work in her office in Kabul, Afghanistan.
Photo: Courtesy of Kimberley Motley
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shackle, a representation of misogyny. Whether a woman chooses or chooses not to wear a headscarf, absent any formally legislated laws to the contrary, I believe that is her choice to make. Of course, I respect that there is a religious connotation, and I cover my head when I go to the mosque. The headscarf and the veil separate men from women; in Afghanistan I intentionally act to separate myself from ever being judged solely by my sex. When I came to Afghanistan and decided to start representing people, I wanted it to be me representing people, not some version of me. Sure, I’m culturally sensitive to an extent, even in public. I don’t wear shorts and I would never wear a short skirt in public. But to represent my clients effectively, I needed to come from a position of strength, which meant behaving as a man would. I shake men by the hand. I look them in the eye. I’ll be in the same room alone with them. How would anything change for Afghan women if Western women simply bow down and accept these absurd rules they wouldn’t dream of adhering to in any other environment. Men in Afghanistan may have been raised in a culture in which women are subjugated, but as
“Stigmatised by the rape, Gulnaz’s family had also disowned her. As far as the wider Afghan community was concerned, she was guilty.”
far as I was concerned that’s no excuse for the international community to follow their lead. Yet the EU was perpetuating the misogyny by overriding the wishes of these women to have their stories told. It was all maddeningly ironic. Meanwhile, Gulnaz and her daughter were serving an eight-year prison sentence after her last trip to court. The judges offered her a lighter sentence, but only if she would marry the man who raped her. They also called her a whore, stated that she had wanted the sex all along, and one judge even stated in the court that it was physically impossible for a woman to get pregnant the first time she had sex.
Of course, Gulnaz refused to marry her rapist and instead appealed the verdict. By that time, she had become a household name in Afghanistan, which didn’t help. The media had reported, long before I got involved, that she had been raped, which is a very dangerous thing to say about an Afghan woman. Many of the women I’ve represented have been raped but I never bring it up. I focus instead on the non-sexual physical abuse, and only bring up the sexual abuse in closed-court hearings when it is absolutely necessary. In Afghanistan, when you say a woman was raped the result can be that they are sentenced to death. Stigmatised by the rape, Gulnaz’s family had also disowned her. As far as the wider Afghan community was concerned, she was guilty. I eventually met with Gulnaz in 2011 in Kabul’s Badam Bagh prison. She was in the cell where she had given birth to her daughter, Muska, on the floor almost two years earlier. I knew I’d have my work cut out gaining her trust. She’d been through an awful lot and had no reason to trust some American woman claiming she was there to help. But because I had a good relationship with other inmates at Badam Bagh, the women there vouched for me. Slowly, Gulnaz began to talk. I really wanted to get an understanding of what had happened that day at her cousin’s house. Did she feel comfortable with her attacker being there? What did the room look like? What did the floor feel like? I got very specific. What else was in the room? What kind of day was it? As far as I could tell, no one had ever asked Gulnaz about the specific details. I made sure during our first meeting that she was aware of how our relationship would work. One of my top priorities is always to educate and empower my clients. I do that by letting them know I work for them. I do what they want me to do and I act as their voice. I also let them know they have the power to fire me at any time for any reason. I’ll walk away with no hard feelings. “You can fire me,” I told her. She didn’t look so sure. I explain this to all my clients during our first meeting and then leave them with my contract. This is part of the process of them making an informed decision to have me represent them, even if I’m working pro bono. Gulnaz couldn’t write her name and instead made her mark on the contract by rolling her inky fingers over the paper. It was the first document she’d ever signed. For many of my female clients, this contract will be the first and only time they sign anything in their entire lives. It’s a very big deal.
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running away then she must have committed a crime, but it’s not written in their law. The lack of these laws had never been mentioned in the media or in anything written by the human rights activists who claimed to have been involved in Gulnaz’s case. Meanwhile, the Afghan lawyer who’d represented Gulnaz during her first two court appearances had only focused on trying to arrange a marriage between her and her rapist. The question remained: what law was Gulnaz charged with breaking? And how could Gulnaz be guilty of doing anything by force? That’s an oxymoron. If she was forced, then she wasn’t compliant. That became a key crux of my argument. That’s what my defence would be focused on. We went back to the Supreme Court, where I began by arguing that adultery by force was not a crime. I argued that according to Afghan and Islamic law, Gulnaz had indeed been forced into this situation, as everyone had agreed at first trial, but that this alone was proof that she hadn’t been compliant and therefore not guilty of adultery. I argued that the sex not being consensual, her being underage and her being a virgin at the time of the attack were all mitigating circumstances to be considered.
“The question remained: what law was Gulnaz charged with breaking? And how could Gulnaz be guilty of doing anything by force? That’s an oxymoron.”
I argued that her daughter was also a victim and that the two-year-old baby was being treated like a criminal too. Finally, I argued that it was illegal under Afghan and Islamic law for a judiciary to try to force her into marrying her attacker. The Supreme Court judges agreed with me and overturned her eight-year sentence, reducing it to three years. They also agreed with our legal arguments that she should not have been forced to marry her attacker. Gulnaz had already served
↗ (Clockwise) Kimberley Motley visits Pul-eCharkhi, Afghanistan's most notorious prison; Discussing Gulnaz's case at the women's prison prior to her hearing; Visiting Darul Aman Palace, Kabul; Exterior shot of the palace.
Photos (clockwise): Henrik Bohn Ipsen; Atia Powell; Henrik Bohn Ipsen; Armin Wenger/Wikicommons
I can see the change that washes over them after they sign. That’s when they start asking me questions. It’s really cool because that’s part of the process. It’s about empowering. Due to the heavy media attention I heard that the Afghan government had begrudgingly arrested the guy who’d raped Gulnaz so I went to speak to him at Pul-e-Charkhi. In many cases of rape of women the men quite often were never questioned let alone arrested. You might assume he wouldn’t want to meet me, but like pretty much every person I had ever met in an Afghan prison he was happy to talk. At first, he denied ever having sex with Gulnaz and said the baby was not his. But the court had ordered a paternity test. That was enough to frighten him into making a confession. The next time I visited him, the 40-year-old man admitted that he had sex with sixteen-yearold Gulnaz, but claimed that he didn’t understand what the big deal was. He was angry that he was in prison and blamed Gulnaz. His anger seemed to be focused on her and how she had selfishly taken him away from his wife and children. I was not surprised at his response as this was the misogyny that I saw Afghan men had against women time and again. While Gulnaz wanted me to represent her, the courts were going to be a bigger problem. There were US diplomats, foreigners working at the UN questioning whether a foreigner could ever represent an Afghan in an Afghan court. It was interesting because not one Afghan questioned my wanting to represent Gulnaz. But the law can be a wonderful thing. Seek and ye shall find. Years before, I had found a section of the Advocates Law that said a foreigner could represent other foreigners if the person is duly licensed. Again, I struck gold. Afghanistan’s Advocates Law Article 2 specifically states that “Every person has the right from the time of arrest to appoint an advocate of his/her choice to defend and represent his/her rights.” Afghan law would permit me to represent Gulnaz, an Afghan, and in the future, I would use that same law to represent other Afghans in court. After my meeting with Gulnaz, I researched more about adultery in Afghanistan. I found that according to Afghan law there isn’t anything related to adultery “by force”. It’s a significant issue from a criminal point of view that neither “adultery by force” nor “running away” are codified as a crime anywhere in Afghan law. It may be culturally accepted that when a woman is raped she must have committed adultery, or that if she’s
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two years and a couple of months when the new sentence was handed down, so she still had time to serve. I felt she should have been acquitted. Gulnaz now had two options. The first was to re-argue the case to the Supreme Court. Based on our first experience with the court and the urgency with which Gulnaz wanted to be freed, this did not seem like the best choice. The second option was to apply for a pardon from President Karzai. Strategically speaking, applying for a pardon seemed like a riskier option. A pardon for a moral crime case had never been granted before in Afghanistan. Also, from a political point of view, the case was so high profile that it probably would be perceived as a test of Karzai and where he stood on women’s rights. If we went for the pardon first and failed, we would still have the option to apply for a review via the Supreme Court. On balance, we decided that it was worth putting pressure on Karzai first and see if he was ready to weigh in on the case. I started writing the presidential pardon petition on Gulnaz’s behalf; the first one I’d ever written. I put those same legal arguments on paper, the whole time conscious that I was writing for President Karzai. Family is very important in Islam, which meant
“Gulnaz couldn't write her name and instead made her mark on the contract by rolling her inky fingers over the paper. It was the first document she'd ever signed. For many of my female clients, this contract will be the first and only time they sign anything in their entire lives.”
it would have been great to include letters from Gulnaz’s family, but unfortunately she did not have that support. Her brothers wanted to kill her and her mother refused to speak to her. Instead I decided to post an online petition. I hoped to find people in support of Gulnaz’s pardon application and banked on getting a couple of hundred signatures. The documentary filmmakers Leslie, Clem and Sam were very involved in this endeavour and together we put out the word that Gulnaz needed signatures. Before we knew it, Gulnaz had over 6,000 signatures of support from all over the world, and I attached these to the pardon petition. Finally, all the international publicity surrounding the case had lent something to Gulnaz’s benefit. Before I submitted the application to Karzai, I went to the prison to visit Gulnaz. It was important for her to agree to everything that was being submitted on her behalf. I read the entire pardon application to her. I showed her the petition with names, and read some of the messages from people all around the world. People had signed from Afghanistan, Denmark, Dubai, France, the United Kingdom, the United States … The list went on and on. She got very emotional, shocked that so many people would care about her.
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On 11 November 2011, Gulnaz signed the second document in her life, making her mark with her thumb on the pardon application that was going to the president. From the women’s prison, I went straight to the presidential palace, determined and inspired. I’d never been there before, and while I had researched the ins and outs to writing a pardon in Afghanistan I had neglected to research the protocol for submitting one. So I just showed up at the Presidential Palace, all five hundred pages in hand, nicely binder clipped, in triplicate. “Ah, can we help you?” The two guards at the gate seemed genuinely confused. “Yes, please. I’ve got to give these documents to President Karzai, please,” I said in my most this-isnot-crazy-I-am-really- supposed-to-be-here voice. “Do you have an appointment?” one of them asked, lowering his AK-47. “Thank you for asking,” I said sidestepping the question. “But these documents are very urgent and need to get to President Karzai today. It’s really important.” I held my poker face. They didn’t know what to say. Eventually one of them blinked. “Who should we call?” “Call the president,” I said. “It’s very urgent. I’m sure he will want to read the documents right away.” Of course, I didn’t want to tell the guards that this was related to Gulnaz. I was concerned that if they knew that the documents would never reach Karzai. I sat on the kerb while they radioed inside. I knew it would make them uncomfortable having a weird foreign woman sitting on the ground outside the presidential palace. Finally, Karzai’s spokesperson appeared. He took the documents from me, gave me his business card and promised to take them to Karzai. The next day, I asked every reporter I knew in Kabul to ask Karzai about the pardon. I was concerned that the application would not reach his desk 38
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despite the assurances I had received from his spokesperson. I figured that the more people who knew about it, the more likely he was to address it. The morning of 1 December I received a text message from the spokesperson informing me that the petition was on Karzai’s desk. Less than 15 minutes later, I received another text informing me that Karzai had granted pardon, entitled “Bestowing Clemency to Gulnaz”. He’d had my application for less than a week. The pardon fully exonerated Gulnaz, and Karzai also acknowledged that the charge of adultery against her was a “misjudgement”. More importantly, it said the cultural norms that led her to be charged in the first place were long overdue for reform. Even before Gulnaz was released, there were countries offering her and her daughter asylum. Of course, I wanted her to leave Afghanistan, but it was not my choice to make. Gulnaz was a young woman, estranged from her family with a two-year-old daughter. I spent hours outlining the pros and cons of each location, all the while making clear to her that she would need to decide quickly. But she surprised me. She didn’t want to go to another country. She wanted to stay in Afghanistan to try to rebuild her relationship with her family. I was actually getting a lot of pressure from other foreigners, the EU, the UN, various embassies, all telling me to convince Gulnaz to leave Afghanistan. I understood their point, but I didn’t like the pressure. We may not agree with her choice, but it was her choice to make. The
↖ The Afghan flag flies over the entrance to the palace of Afghan President Hamid Karzai in Kabul, Afghanistan. ↑ President Karzai pictured with United States President Barack Obama at the Presidential Palace.
Photos (from top to bottom): Cherie Cullen/USDOD; Pete Souza/ White House
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hypocrisy was amazing; the same people meant to be promoting women’s rights were the ones who wanted to stop Gulnaz from exercising her own. Gulnaz had never seen the inside of a school in her life. If she left the country she’d be completely isolated, on her own, with a new language and culture to learn. There would be no option for family reconciliation, which she desperately wanted. There were so many obstacles. Even though I wanted her to go, I knew that I wasn’t really empowering my client if I took those decisions away from her. Ultimately Gulnaz chose to stay at a women’s shelter in Kabul. It was there that I really started to understand how ugly women’s rights can be in Afghanistan. The natural assumption was that women would protect other women, but that’s not how it was for Gulnaz. When she went to the shelter, the other women told her she had lied. Oppression against women in Afghanistan is so ingrained that even other women raised in that culture believed Gulnaz’s persecution was righteous and just. Many Afghan women have been brainwashed all their lives to believe that men are superior so that when they see another woman defying that cultural norm they view it as wrong and have no qualms about expressing it.
“Gulnaz’s case has had historic implications and an enormous impact on women’s rights in Afghanistan. It was the first time that an Afghan president had given a pardon for a moral crime case.”
Gulnaz was stuck in a shelter that was even more oppressive than prison. At least in prison she could go out in the yard, but as per the shelter’s rules, any time she left the shelter she had to wear a burqa. She was stuck in a place with women who hated her, not to mention the tribal issues that were going on between the Pashtuns, the Hazaras and the Tajiks. Gulnaz’s brothers continued to threaten her
and she told me how the Ministry of Women’s Affairs was still pressuring her to marry her rapist. They were telling Gulnaz how much the rapist loved her and how sorry he was. I went back to the countries I’d heard from to see if asylum was still on the table, but unfortunately, without the media spotlight, Gulnaz’s cachet was not as valuable and not one country was willing to revisit that option. After more than a year of being imprisoned in the shelter, and feeling like all her options had been exhausted, Gulnaz married her attacker. I was devastated. A big part of me felt like all that work we’d done had just been flushed down the drain. But I was wrong. Gulnaz’s case has had historic implications and an enormous impact on women’s rights in Afghanistan. It was the first time that an Afghan president had given a pardon for a moral crime case. Gulnaz’s case had gone straight to the heart of Afghan culture and revealed how Afghanistan has structured its legal system to oppress women. Not long after signing Gulnaz’s pardon, President Karzai issued Presidential Decree 107(2)4, which outlawed running away as a crime. This was followed up by a formal directive by the Attorney-General’s office that all prosecutors “should be instructed not to prepare unjustifiable case files regarding running away cases that haven’t been criminalised under Afghanistan laws and can’t be heard by courts and refrain from conducting baseless investigations”. Because of Gulnaz, more women have been emboldened to report to authorities when they have been victims of violence. There was also a newly created Elimination of Violence Against Women Unit within the Afghan Attorney- General’s office for them to report to that women began to take advantage of. Gulnaz now lives a very difficult life, but in a sense her choice to marry her attacker represents an expression of her own rights. Once she was pardoned, Gulnaz had a choice. She could have accepted asylum and left her country; instead she opted to try to mend the relationship with her family. All my clients have a right to make their own decisions. And Gulnaz made a choice that many would not. She decided to stay and fight for a life in her own country rather than risk running away for a better life in a foreign one. I might not have liked her choice, but I did respect it. This is an edited extract from Kimberly Motley’s book, Lawless, (Allen & Unwin, 2019). It is republished here with permission.
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Justice for the Rohingya
Photo: Joel Carillet /iStock
Two years after the persecution and mass exodus of the Rohingya people from Myanmar hit international headlines, international law expert MELANIE O’BRIEN asks whether the crisis amounts to genocide – and whether anyone can be held accountable.
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↗ A Rohingya mother holds her two-month-old daughter outside their shelter at Jamtoli refugee camp near Cox's Bazar, Bangladesh.
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Rohingya are also denied access to education, which in turn restricts their right to development. Their employment options are severely limited, although they may be subject to forced labour by the military. Islamic religious practice has been restricted, with emphasis on the ‘national religion’ of Buddhism. Rohingya’s freedom of movement is restricted; they are herded into detention camps and ghettos and are not permitted to travel around Myanmar without a travel permit, which is usually denied. As such, they are isolated and segregated. Healthcare is difficult or impossible to access, with the government denying provision of healthcare facilities and professionals in the Rakhine region. Food access is also inadequate and, in some cases, impossible after governmentled or sanctioned violence has included burning of crops and the theft or killing of herd animals. All these rights violations have been occurring for decades. In the 1970s, 90s and again since 2017, these violations have escalated into extreme violence. Perpetrators – usually military but also other security forces or local militia – have committed mass and gang rapes of girls and women. One study of women refugees in Bangladesh found that 52 per cent of those interviewed were victims of sexual violence –
↑ Rohingya refugees crossing a bamboo bridge. → Aung San Suu Kyi at her house in Yangon (formerly known as Rangoon), Myanmar.
Photos (from lef t to right): Michał Fiałkowski/iStock; U.S. Department of State
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any people became aware of the Rohingya in late 2017, when news of their mass exodus from Myanmar into neighbouring Bangladesh hit headlines. The Rohingya were fleeing violence committed by the Myanmar authorities. Yet the persecution of the Rohingya began decades ago; it has simply gone unreported by the international media for all those years. Since the 1970s, more than one million Rohingya have fled Myanmar. While close to 800,000 of those have fled since late 2017, there has been a steady stream of Rohingya fleeing Myanmar, including the mass exodus of more than 200,000 in 1978 and more than 250,000 in 1991. In 2017, the Office of the United Nations High Commissioner for Human Rights (OHCHR) declared that “discrimination against the Rohingya [in Myanmar] has been endemic for decades”. Why this persecution and subsequent exodus? Myanmar is a majority Buddhist country, with myriad ethnic groups, led by a military and civilian government. The military, known as the Tatmadaw, controls the government, with the civilian component led by Aung San Suu Kyi lacking any real power. The head of the UN’s International Fact-Finding Mission on Myanmar recently stated that it was still unclear as to what role Suu Kyi has had in the persecution of the Rohingya, although it is certain that since the 2017 crackdown, she has done nothing. The Rohingya are a Muslim minority ethnic group living in Rakhine state in Myanmar. Despite evidence that Rohingya have been living in that area for centuries, the Myanmar government claims the Rohingya are not Burmese but, rather, calls them Bengalis – in this context using the label as a derogatory term. The Rohingya have been denied citizenship since a citizenship law passed in 1982 omitted the Rohingya from a government list of ‘authorised’ minority groups living in Myanmar. As a consequence, the Rohingya are denied many rights associated with citizenship, such as the right to vote, the right to participate in political life, and the right to work as a public servant. Since 1994, the government has refused to issue Rohingya children with birth certificates; a denial of child rights under the Convention on the Rights of the Child, to which Myanmar became a party in 1991. Legal restrictions were placed on reproduction in 2015, with the law specifically intended to restrict the reproductive freedoms of the Rohingya.
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and this is an underestimate. Men have been tortured and killed. Villages are razed or fire bombed. Organised massacres are common, carried out by shooting (random firing and targeted executions), stabbing, burning and beating. Property is also targeted, with buildings, crops and whole villages burned using petrol and rocket launchers. Buildings are sometimes burned with people still inside. For the survivors who end up as refugees in camps across the border, overcrowding leads to hunger and disease. Healthcare provision is limited to what humanitarian organisations can provide. Chronic illnesses such as tuberculosis, diarrhoea and infant malnutrition are widespread. Due to a lack of resources, the Rohingya refugee crisis has resulted in increased exposure to overcrowded conditions and subsequent communicable diseases. Refugees have no access to education or employment, resulting in a longterm stagnation of Rohingya development, and the potential for radicalisation. It has also been reported that Bangladesh is now restricting refugees’ access to internet and mobile phones, cutting them off from the outside world – a move that suggests Bangladesh is tiring of the refugees and trying to push them out.
“[It's] unclear as to what role Suu Kyi has had in the persecution of the Rohingya, although it is certain that since the 2017 crackdown, she has done nothing.”
Is it genocide?
There is always debate over whether a particular situation of mass atrocities amounts to genocide. The reason for this is twofold. First, the definition of genocide is very specific, requiring an intent to destroy, in whole or in part, the targeted group. Second, if atrocities amount to genocide, this triggers the application of the Genocide Convention. Some organisations, such as the International State Crime Initiative and Fortify Rights, have for some time called the atrocities against the Rohingya genocide. Yet it has only been in the past year that the UN has used this term, in the reports issued by the recently-completed Fact-Finding Mission (to be replaced by the Independent Investigative Mechanism for Myanmar). Reports issued by non-governmental organisations and academic researchers, as well as the UN reports, unmistakably demonstrate crimes of genocide being committed, and a clear genocidal intent by the Myanmar authorities. Genocide crimes are killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction of the group, imposing measures intended to prevent births, and forcibly transferring children. Myanmar is committing almost all these crimes against the Rohingya. More difficult to prove is the genocidal intent, but this is clear from the decades of persecution and discrimination, with the government specifically restricting the rights of the Rohingya. It is also evident from statements made by government officials and through the governmentcontrolled media and social media referring to the Rohingya as ‘fleas’ and demonising the minority group as a threat to the security of Burmese ‘race’ identity and nationhood. The reproduction of Rohingya was referred to in a 2013 government report as “an extremely serious threat”. Even monks have contributed to the hate speech, promoting anti-Rohingya sentiment and participating in violence, under the guise of religious purity. Anti-Rohingya hate speech is rife, demonstrating a clear incitement to commit genocide. Facebook has been a particularly effective medium for delivering hate speech, especially as the majority of Burmese now get their ‘news’ from Facebook. Thus, while the atrocities also amount to crimes against humanity (a widespread or systematic attack against any civilian population), they also constitute genocide.
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There are multiple options for accountability for the genocide in Myanmar, but not all are likely. First, there are accountability options for the state as an entity. The UN Security Council is one option. The Security Council could take action, including under UN Charter Chapter VII (peace and security) that could protect the Rohingya and ensure the perpetrators are punished. Action could include global sanctions against the perpetrators and the government, establishing an investigative mechanism, referring the situation to the International Criminal Court (ICC), or authorising humanitarian intervention. Unfortunately, options through the Security Council are essentially dead in the water. This is because China and Russia will veto any resolution brought forward with regards to Myanmar, objecting to interference in state domestic affairs. China, in particular, has interests in Myanmar relating to its economy and resources as part of the Chinese Belt and Road Initiative. Politics and economics are sometimes barriers to the enactment of international law. Myanmar is a state party to very few human rights treaties and has not accepted individual complaints procedures under any of these conventions. The treaty bodies for these human rights treaties could make statements about Myanmar’s actions, but this is soft law – law with no real means of enforcement. The Human Rights Council runs the Universal Periodic Review (UPR), which regularly reviews the human rights record of every country in the world. Myanmar’s UPRs were in 2011 and 2015. There was little mention of the Rohingya in 2011, but significant mention in 2015. Multiple recommendations were made by various countries about the prevention and cessation of violation of Rohingya human rights. Yet all these recommendations “did not enjoy the support of Myanmar”, making it clear that even ‘naming and shaming’ is of no concern to Myanmar. Therefore, this is another avenue without any real means of enforcement or accountability. Myanmar is, since 1956, a state party to the Genocide Convention. Therefore, it is obligated to prevent and punish genocide – obligations it is clearly violating. Any other state party to the Genocide Convention could commence proceedings against Myanmar before the International Court of Justice (ICJ) for violation of treaty obligations. In May 2019, at the Islamic Summit Conference of the Organization of Islamic Cooperation (OIC), Gambia indicated its 44
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commitment to move forward with proceedings against Myanmar in the ICJ. Myanmar is also bound by customary international law: a category of laws that bind all nation states and arise from state practice and opinio juris. Customary law obligations that would apply to the crimes being committed against the Rohingya are the prohibitions of torture and genocide, which are also considered jus cogens peremptory norms i.e. non-derogable rules of international law. Consequently, any state could commence proceedings against Myanmar in the ICJ for violation of these customary international law norms. However, despite multiple options for states to bring proceedings before the ICJ, the ICJ avenue faces challenges. First, the state or states which initiate proceedings are making a decision that may have political consequences. China is a significant world power and supports Myanmar. Initiating a case against Myanmar may antagonise China, straining diplomatic and trade relations. Second, if the ICJ were to rule against Myanmar, Myanmar may not comply. If that occurs, recourse is to be had by the state which initiated the case – to the Security Council. The Security Council is mandated with taking measures against states which do not comply with ICJ rulings, as part of the ICJ’s enforcement mechanism. With regards to Myanmar, as mentioned, Security Council action to enforce an ICJ judgment would be impossible to achieve without the vote of P5 members China and Russia.
Individual accountability options
Individual criminal accountability options need to be assessed. The first option is always to use domestic criminal law. However, in the case of mass atrocities, this is an impossible option. Impossible because the government and its law enforcement agencies are the perpetrators, and they do not want to hold themselves accountable; and because the sheer number of perpetrators would overwhelm the domestic legal system. Hence, this is not a possibility. We turn, then, to the ICC. The ICC has jurisdiction over crimes committed in the territory of state parties or by nationals of state parties. Myanmar, unfortunately, is not a state party to the ICC’s Rome Statute. This leaves the only option for ICC jurisdiction to be through a Security Council referral, which can be done under UN Charter Chapter VII authority. However, China’s and Russia’s interests in and protection of Myanmar
↗ Rohingya refugees, newly arrived from Myanmar, wait to complete the registration process and be assiged a shelter at Kutupalong refugee camp near Cox's Bazar, Bangladesh.
Photo: Joel Carillet/iStock
State accountability options
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ICC has jurisdiction in this case over deportation, also suggesting that other crimes against humanity (persecution and other inhumane acts) would also be within the Court’s jurisdiction. Consequently, in July 2019 the OTP requested authorisation from the Court to open an investigation into the crimes against humanity of deportation, other inhumane acts and persecution committed against Rohingya since 9 October 2016. It can be anticipated that this investigation will be approved, providing the most likely avenue for some kind of accountability and justice for the victims. Of course, whether or not the ICC would actually be able to obtain the perpetrators in ICC custody is another question altogether. The Court’s track record with gaining access to (former) leaders of non-state parties (Sudan) it has under arrest warrants is poor. Without its own police force, the ICC relies on the cooperation of state parties to surrender those it seeks to prosecute, and this is not always forthcoming.
Returning home?
“Unfortunately, options through the Security Council are essentially dead in the water.” will result in a veto of any attempt to pass a Security Council resolution referring the situation in Myanmar to the ICC. Yet all is not lost. The Office of the Prosecutor (OTP) of the ICC has recently taken some extremely creative steps to start a process under which the ICC may be able to prosecute perpetrators of atrocities committed against the Rohingya in Myanmar. As Bangladesh is a state party to the ICC, the OTP requested the ICC’s PreTrial Chamber (PTC) to determine whether the ICC has jurisdiction over the crime against humanity of deportation of Rohingya from Myanmar to Bangladesh. Arguing that the Rohingya have been deported from Myanmar to Bangladesh, the OTP noted that the crime of deportation requires a victim to cross an international border i.e. part of the crime is compelling victims to enter another state. That other state is Bangladesh, where one legal element of the crime occurred, thus giving the ICC jurisdiction. The ICC’s PTC agreed that the
Rohingya refugees in Bangladesh want to return home. However, challenges to repatriation are substantial. First, Myanmar is unwilling to guarantee citizenship to the Rohingya people, and the Rohingya are unwilling to return without citizenship and the rights it entails. Second, the genocidal intent and hate against the Rohingya in Myanmar has not subsided. Third, attacks against the Rohingya in Myanmar are ongoing. Finally, there is often no ‘home’ for Rohingya to return to. Villages have been destroyed – usually burnt down completely. The UN has reported that development companies with direct ties to the Tatmadaw have been developing properties on the sites of former Rohingya villages, preventing the rebuilding of villages. With the exception of the ICC OTP’s creative legal initiative, unless the international community steps up and definitively takes action to support the Rohingya, ensure their human rights are restored, and force state and individual accountability, then the future for the Rohingya looks bleak. Dr Melanie O'Brien is Senior Lecturer in International Law at the University of Western Australia, an awardwinning teacher of International Humanitarian Law, Public International Law, and Legal Research. She has conducted fieldwork and research in Argentina, Armenia, Austria, Bosnia, Cambodia, China, Israel, Germany, the Netherlands, South Africa, Turkey, the UK and the USA.
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I D E A S | A N A LY S I S | I N S P I R AT I O N
Photo: Singapore Ministry of Law
Illumination
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BUSINESS
Settlement, Singapore style
The August signing of a new UN Convention is set to bring greater certainty to the growing use of mediation for the settlement of cross-border commercial disputes, explains ANTHONY LO SURDO SC.
T ← Stephen Mathias, Assistant SecretaryGeneral for Legal Affairs, United Nations and Singapore's First Law Minister K. Shanmugam SC at the Signing Ceremony.
he final draft of the United Nation’s Convention on International Settlement Agreements resulting from Mediation, otherwise known as the Singapore Convention, was approved by the United Nations Commission on International Trade Law (‘UNCITRAL’) on 26 June 2018. A large conference and grand signing ceremony followed in Singapore on 7 August 2019, with some 70 country representatives in attendance and 46 countries signing on to the Convention. The intent of the Singapore Convention is to bring certainty to the international framework on mediation and facilitate the promotion of mediation as an alternative and effective method of resolving international trade disputes. It proposes to do so by enabling parties to the settlement of an international dispute by mediation the ability to enforce the settlement in the same manner that international arbitral awards can be recognised and enforced under the United Nation’s Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’). Under the New York Convention, international arbitral awards,
including consent awards, are recognised and enforceable in any of the 157 member states which are presently signatories to that convention in the same manner as any judgment of the domestic courts of those member states.
Overview
The Singapore Convention is a response to the growing use of mediation both domestically and internationally for the resolution of disputes. A survey by the International Mediation Institute in 2014 disclosed that 93 per cent of respondents would be more likely to mediate a dispute with a party from another country if that country had ratified a convention on the enforcement of mediated settlement agreements (International Mediation Institute, ‘IMI survey results overview: How Users View the Proposal for a UN Convention on the Enforcement of Mediated Settlements’ (16.1.17)). Forty-six countries signed the Singapore Convention: Afghanistan, Belarus, Benin, Brunei, Chile, China, Colombia, Congo, Democratic Republic of Congo, Eswatini, Fiji, Georgia, Grenada, Haiti, Honduras, India, Iran, Israel,
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Jamaica, Jordan, Kazakhstan, Laos, Malaysia, Maldives, Mauritius, Montenegro, Nigeria, North Macedonia, Palau, Paraguay, Philippines, Qatar, Republic of Korea, Samoa, Saudi Arabia, Serbia, Sierra Leone, Singapore, Sri Lanka, Timor-Leste, Turkey, Uganda, Ukraine, USA, Uruguay and Venezuela. Australia, the United Kingdom and the EU are not presently signatories to the Singapore Convention and it is unclear whether they will become signatories and, if so, when.
Key elements of the Convention
The preamble: The preamble to the Singapore Convention commences with a recognition of the value for international trade of mediation as a method for settling commercial disputes, noting that mediation is increasingly used in international and domestic commercial practice as an alternative to litigation. It proceeds to consider that the use of mediation results in significant benefits, such as reducing the instances where a dispute leads to the termination of commercial relationships, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice. It concludes with a statement that the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to states with different legal, social and economic systems would contribute to the development of harmonious international economic relations.
Article 1. Scope of application: Article 1 sets out the types of mediation to which the Singapore Convention applies. Relevantly, it is limited to commercial disputes which are international in character. A dispute is international if at least two parties to the settlement agreement have their places of business in different states, or the state in which the parties to the settlement agreement have their place of business is different from either the state in which a substantial part of the obligations under the settlement agreement is performed or the state with which the subject matter of the settlement agreement is most closely connected. The Singapore Convention does not apply to settlement agreements concerning a dispute arising from transactions engaged in by one of the parties for personal, family or household purposes or relating to family, inheritance or employment law. It also does not apply to settlement agreements that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the state of that court, nor does it apply to settlement agreements that have been recorded or are enforceable as an arbitral award. Article 4. Requirements for reliance on settlement agreements: The requirements for reliance on settlement agreements are: (i) a settlement agreement must be signed by the parties; and (ii) evidence that the settlement agreement resulted from mediation. That evidence includes the mediator’s signature on the settlement agreement, a document signed by the mediator indicating that the mediation was
Afghanistan Belarus Benin Brunei Chile China Colombia Congo DR Congo Eswatini Fiji Georgia
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Grenada Haiti Honduras India Iran Israel Jamaica Jordan Kazakhstan Laos Malaysia Maldives
Mauritius Montenegro Nigeria North Macedonia Palau Paraguay Philippines Qatar Republic of Korea Samoa
Saudi Arabia Serbia Sierra Leone Singapore Sri Lanka Timor-Leste Turkey Uganda Ukraine USA Uruguay Venezuela
Photo: Singapore Ministry of Law
46 countries have signed the Singapore Convention
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“Mediation is increasingly used in international and domestic commercial practice as an alternative to litigation.”
↑ Delegates gather for the official Singapore Convention Signing Ceremony and Conference on 7 August.
carried out, an attestation by the institution that administered the mediation or any other evidence acceptable to the competent authority of the party to the Convention where relief is sought. Article 5. Grounds for refusing to grant relief: The competent authority of the party to the Convention where relief is sought under Article 4 may refuse to grant relief at the request of the party against whom the relief is sought only if that party furnishes to the competent authority proof that: (a) a party to the settlement agreement was under some incapacity; (b) the settlement agreement sought to be relied upon: (i) is null and void, inoperative or incapable of being performed under the law to which the parties have validly subjected it or, failing any indication thereon, under the law deemed applicable by the competent authority of the party to the Convention where relief is sought, under Article 4; (ii) is not binding, or is not final, according to its terms; or (iii) has been subsequently modified; (c) the obligations on the settlement agreement: (i) have been performed; or (ii) are not clear or comprehensible; (d) granting relief would be contrary to the terms of the settlement agreement; (e) there was a serious breach by the mediator of standards
applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement; (f) there was a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence, and such failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the settlement agreement. Article 5.2 provides that the competent authority of the party to the Convention where relief is sought under Article 4 may also refuse to grant relief if it finds that granting relief would be contrary to the public policy of that party or the subject matter of the dispute is not capable of settlement by mediation under the law of that party.
Is the Singapore Convention necessary?
The question as to whether the Singapore Convention is really necessary requires consideration of the objectives identified in the preamble to the Convention. Those objectives, given the globalisation of world trade, are sufficient enough to justify the Convention and would, in large measure, explain why two of the world’s biggest economies – the USA and China – are early signatories. However, the Singapore Convention should not be viewed in isolation, but as part of a response to the harmonisation of measures to facilitate not only the resolution of cross-border disputes but to encourage foreign direct investment in the same way as the New York Convention has done for
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arbitral awards. It should be viewed as an adjunct to arbitration so that a party to an international dispute will be armed with alternate and complementary machinery to resolve that dispute. Early critics of the Singapore Convention suggest that comparisons between the Singapore Convention and the New York Convention expose a fundamental confusion in the distinction between enforcing a settlement agreement and enforcing an award. Arbitrations result in awards drafted by tribunals with authority imposing obligations on parties that can be enforced by their terms. By contrast, it is argued, settlements result in agreements with mutual obligations, whose authority derives from the parties’ consent and often they are incapable on their face of being merely enforced (F. Peter Phillips, “Concerns on the New Singapore Convention”, October 2018, mediate. com/articles/phillips-concerns-singapore.cfm). The Singapore Convention recognises that there will be some settlement agreements that may not be clear or comprehensible and thus incapable of being performed (Article 5.1(c)). The criticism, in this case, should be directed not as a holistic concern against the Singapore Convention, but is more a reflection of the inability of the parties in such a case to record a settlement which is capable of clear expression. Further, commercial settlement agreements will most likely sound in either the payment of money (by way of damages or the repayment of debt) or the supply of goods or services or a combination of the two. These are obligations which should be capable of clear expression and thus able to be enforced under the Singapore Convention much in the same way as either an arbitral award or a judgment of a domestic court. There are two peculiarities of the Singapore Convention which set it apart from the circumstances pertaining to the enforcement of contractual obligations generally. First, Article 4 requires evidence that the settlement agreement resulted from the mediation. One of the means by which that evidence can be adduced is by the mediator’s signature on the settlement agreement. In domestic mediations, mediators do not sign settlement agreements. Apart from any obligations imposed under the rules of court or pursuant to court directions, mediators will not, in the exercise of their obligation of confidentiality, generally comment as to whether a mediation has been carried out. A mediator’s signature on a settlement agreement is but one means of proving that it has 50
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resulted from mediation. Further, a mediator’s concern regarding maintaining the confidentiality of the settlement agreement will be able to be addressed in the mediation agreement itself, which can exempt a mediator from the duty of confidentiality for the limited purpose of complying with Article 4. Second, one of the grounds for refusing to grant relief under Article 4 is if there has been a serious breach by the mediator of standards applicable to the mediator or the mediation, or there was a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence and, in each case, without which failure that party would not have entered into the settlement agreement. There is a very real concern that such a provision could give rise to considerable controversy concerning, among other things, what standards are applicable to the mediator and to the mediation, what conduct constitutes a violation of those standards, and how any of these matters will be established, especially having regard to the confidentiality of the process (F. Peter Phillips, “Concerns on the New Singapore Convention”, October 2018, mediate.com/articles/ phillips-concerns-singapore.cfm). Again, these are matters to which the parties to a mediation agreement would be required to give careful consideration. As to mediator standards, the parties could address this concern by adopting institutional rules which set out the standards expected of the mediator, or agree the applicable standards on an ad hoc basis. As to proof, the mediation agreement would need to exempt the parties from the confidentiality regime to facilitate proof if required.
Conclusion
There is a strong and viable case for Australia and the other 23 countries who are in support to become signatories to the Singapore Convention given the obvious benefits that would flow to people and entities engaged in cross-border trade. It will complement the regime that already exists under the New York Convention for the recognition and enforcement of arbitral awards and provide parties to a dispute with an additional, valuable tool for the resolution of disputes.
↗ Singapore's Prime Minister Lee Hsien Loong, speaking at the
Anthony Lo Surdo SC is a barrister, advanced mediator and independent arbitrator at 12 Wentworth Selborne Chambers in Sydney, Australia.
Singapore Convention Signing Ceremony and Conference on 7 August
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I L L U M I N AT I O N
SPEECH
Open for business
Photo: Singapore Ministry of Law
In his keynote address at the Singapore Convention signing ceremony, Singapore’s Prime Minister LEE HSIEN LOONG extolled the importance of multilateralism, international treaties and the rule of law. Singapore is deeply honoured to have been chosen by fellow UN member states to host the signing and to have this convention named the Singapore Convention on Mediation ... Today, for cross-border disputes, many businesses rely either on arbitration, enforced via the New York Convention, or on litigation. The Singapore Convention on Mediation is the missing third piece in the international dispute resolution enforcement framework. Businesses will benefit from greater flexibility, efficiency and lower costs, while states can enhance access to justice by facilitating the enforcement of mediated agreements. The Singapore Convention is also a powerful statement in support of multilateralism. Multilateralism is under pressure, but the solution is not to abandon it but to improve it. Existing multilateral institutions are not perfect. Many are in need of urgent reform, suffer from a loss of confidence, or have practices and structures that are no longer fit for purpose. But we must recognise that these institutions have collectively brought the world growth and
prosperity, and contributed to the peace and security and international order that we have enjoyed for decades. Abandoning them would upend the rules-based world order that we have so painstakingly built up. Instead, we need to reform them and bring them up to date. We must make sure they reflect current economic and political realities, and ready them to deal with new issues created by the progress of technology and globalisation. The alternative of a world without multilateral institutions and widely accepted international rules, where might is right, disadvantages all countries, big and small. Such a world would be especially challenging for small countries like Singapore. That is why international treaties and the rule of law are especially important to us. Every word makes a difference, and when we sign a treaty, we will rigorously uphold what we have solemnly committed to. The Singapore Convention on Mediation demonstrates that countries are capable of achieving consensus, with effort, creativity, and leadership. Today, a group of states has
come together to recommit ourselves to multilateralism. And to declare that we remain open for business, we are prepared to make binding commitments, and we are committed to preserving our relationships. I also want to acknowledge the role of the United Nations ... The Singapore Convention on Mediation is the latest example of Singapore's commitment to the UN and through it, to the international community we belong to. We may be a small country, with limited manpower and no natural resources, but nevertheless we do our best to contribute our part ... The signing of the Singapore Convention marks the start of a long-term commitment by Singapore to promote the Convention and see to its adoption‌ . Singapore and the UN will sign an MoU ... which will promote the development, understanding and use of international dispute resolution instruments globally. We will also continue our broader efforts to work with friends and partners to advance the cause of justice. Over the years, we have built up a sound and comprehensive system of rules, laws and agreements, and become a trusted Asian base for many businesses. Several other significant initiatives on international dispute settlement are taking place here this week ... INSOL International, a worldwide federation of 44 member associations, comprising restructuring and insolvency professionals, launched its first overseas office outside London, in Singapore, to serve as its Asian hub. The American Arbitration Association – International Centre for Dispute Resolution, a leading provider of alternative dispute resolution services for parties in commercial disputes, will open its Asia Headquarters and Case Management Centre in Singapore. The International Bar Association held its inaugural Asia Pacific Arbitration Conference yesterday, and the Maxwell Chambers suits (an integrated dispute resolution complex) will have a grand reopening. I congratulate the 46 countries on signing the Singapore Convention, and the other 24 countries who have joined us today to support what the Convention stands for. *This is an edited extract of Prime Minister Lee Hsien Loong's speech at the Singapore Convention Signing Ceremony and Conference on 7 August 2019.
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LITIGATION
Why don't the Japanese sue one another?
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mong the more interesting assertions about law and society is the proposition that a nation such as Japan, with racial uniformity rather than diversity, is likely to have less litigation. The argument is that homogeneity reduces conflict. Instead of dismissing it altogether because of implications favouring ethnic nationalism, it can be tested as a hypothesis. Perhaps thinking through the issue is worthwhile, because appearances are not what they seem to be. It may be that “non-litigious” and “non-diverse” are both myths. Or they might be independent. Generalisations about people are dangerous. Simple stereotypes, even about litigiousness, can produce judgments about superiority and inferiority. Yet it is true that Japan has fewer civil suits than its peers. A copious literature has been generated by academics curious to compare civil law Japan and common law United States. Beyond the optimal quantity of lawsuits is the quantity of lawyers and of law itself. In 1983, then-Harvard President Derek Bok, himself a lawyer, pointedly lamented the output of law school graduates
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relative to engineers, and he juxtaposed the United States and Japan to criticise the former and praise the latter. The United States has more than an order of magnitude greater the proportion of members of the bar; Japan has approximately a quarter as many attorneys as the capital of Washington D.C. by itself. Any careful study of litigation rates must take into account how disagreements are defined. There can be disputes without cases, as disputes can take many forms from self-help to administrative complaints to electoral campaigns. A system that emphasises arbitration, mediation and other forms of alternative dispute resolution (ADR), requiring it but not counting the preliminary effort to reach closure as a proper case will show mismatched numbers from a system without such a stage or that adds them to the totals. A system that yields acceptable settlements, approximating verdicts, but without resort to a court filing could be applauded for efficiency. John O. Haley, a retired law professor who has been honoured with the Order of the Rising Sun by Japan, published an empirical analysis
Illustration: Jesadaphorn/iStock
PROFESSOR FRANK H. WU delves into the myth that Japan’s homogeneity is responsible for the low civil litigation rate. Is there something to it? Or is it misinformed speculation?
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of automobile accidents. He documented how Tokyo and Osaka, jurisdictions with a combined population about the same as California, filed half as many lawsuits for crashes resulting in deaths. He and others have demonstrated how individuals who were injured and the families of those killed may avoid resorting to litigation and still be able to gain compensation which is commensurate with damages if there were a trial. Cost-benefit calculation leads away from litigation and toward settlement or ADR. Research has been objective and anecdotal. An article by Mark D. West, dean of the University of Michigan law school, was as painstaking as its subject might be entertaining: it considered how grievances of neighbors about noise pollution from karaoke music were addressed. Eighty thousand such instances per year were handled by a bureaucracy of counsellors assigned the task. West concluded that institutions encouraged this method of compromise, supplemented by “community enforcement�, and the offended parties decided on a forum based on their social capital. Police intervention was widespread and
effective. Its cultural connotations are not the same as in America. Extensive regulations by the prefectures accordingly were complied with. Even adjusting for these discrepancies, Japan does not have the volume of proceedings as the United States or Europe. Litigation has increased in Japan since the turn of the millennium, reaching a plateau in 2010 and then falling off again, with the advent of legal reforms and expansion of the bar. Even so, Japan is not enthusiastic about legal action. Casual commentators have long attributed that to intrinsic features of Japan. They allude to the Japanese people as extraordinary in this respect.
Japanese diversity?
Another difficulty is that Japan, like many places, has more a fiction of racial unity than a reality. Japan follows a strict principle of jus sanguinis, belonging by blood, unlike the United States, which has recognised jus soli, citizenship by birth on the soil. The former by definition restricts who can become a member of the body politic; the latter opens up the opportunities. Japanese and America both have had isolationist attitudes. In Japan, the
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seclusion of “sakoku” took hold; in America, as in Canada and Australia, similar sentiments waned. As elsewhere, minorities have not had the same rights as the majority. Discrimination can be, and still is, practised overtly – it is important to note, to refrain from repeating the error of such bias, that it is not typical. The lack of diversity has been invoked as a strength; an abundance of difference, a weakness. In 1986, Japanese Prime Minister Yasuhiro Nakasone caused international controversy with remarks that: “So high is the level of education in our country ... Our average score is much higher than those of countries like the U.S. There are many blacks, Puerto Ricans, and Mexicans in America. In consequence, the average score over there is exceedingly low.” As he faced negative reactions from U.S. lawmakers, including African Americans and Latinos, he tried to “explain it all” by complimenting America for “great achievements”. He made the mistake of adding, “But there are things the Americans have not been able to do because of multiple nationalities there.” The late Japanese American Congressman Robert Matsui, from Sacramento, California, said the explanation “is almost as outrageous” as the original gaffe. Ironically, all nations imagine themselves as “unique”. In Japan, the “nihonjinron” genre of essays constitute the intellectual discourse about these ideals, and they attract mass readership. These concerns apply to all facets of life. Kakuzo Okakura’s 1906 Book of Tea is a meditation on Japan and the West; it describes a specific ritual as exemplifying Japanese character. The Japanese aesthetic of “wabi sabi”, celebrating imperfection and the transitory nature of life, embodied by designs that are subtle or rustic, has been accused of being a reaction against Chinese ceramics and their sophistication. Japan, and China as well, embraced the racial categories promoted by German and AngloAmerican authors of a century ago. Propagandists could offer the same prophesy about the rise of the East and the decline of the West, with one side cheering what the other side deplored. Japan has company. The virtues of ethnic solidarity have been avowed until they have been disproven: Iceland touted the affinity of its fewer than 350,000 as it prospered, until its economic disaster in the last recession, the most sizable banking catastrophe on a national scale in human history. Yet Japan is not wholly Japanese, and the 54
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conception of “Japanese” can be contested. To begin with, it was only after the Meiji Restoration of 1868 that Hokkaido was incorporated into modern Japan. Before then, the northern territory, vast, wild, sparsely populated, was merely under the influence, not control, of the capitol, named Ezochi, translated variously as land that is remote or disobedient. That geographic area happened to have been already inhabited by indigenous peoples, the Ainu, hunter-gatherers who were perceived by the Wajin (the self-identified “Japanese”) as distinct, and who would have reciprocated in that sense of difference. Their language is endangered, though a modest resurgence of interest has been reported. To the south, Okinawa, inhabited by the Ryukyuans, was ceded to America following the brutal battles of World War II, the last stand for the Japanese high command. In 1972, it was returned to Japan. A group also exists known as the burakumin, whose ancestors were outcasts due to their taboo trades associated with death, such as executioner or butcher. Even though the family stigma dates back to the feudal era, the descendants remain marked by reputation passed down over generations – albeit experts believe their genealogy in a genetic sense is not separate from other Japanese. Other Asians have been present in Japan in substantial numbers throughout history. Chinese,
Illustration: Jesadaphorn/iStock
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“Japan is not enthusiastic about legal action. Casual commentators have long attributed that to intrinsic features of Japan. They allude to the Japanese people as extraordinary in this respect.”
Koreans, Vietnamese, and Filipinos have come with enlargement of empire, and subsequent shrinkage, and as refugees, and they continue to come for education and marriage. Many can “pass;” their dissimilarity is not visible. The Chinese monk Jianzhen (known as Ganjin) popularised Buddhism in Japan circa 754 A.D., and Korean missionaries of the same faith had arrived even earlier. The gates of the Yokohama Chinatown, the most sizable in Japan, were built in 1873. Baseball star Sadaharu Oh, who holds the lifetime home run record, is Chinese-Japanese. Sumo champion Akebono was born Chadwick Rowan in Hawaii, of
Hawaiian heritage. Thousands of “zainichi,” Korean Japanese, most of whose circumstances can be attributed to colonialism in some manner, despite being born in Japan and assimilated to Japanese culture, are technically permanent residents and correspondingly do not enjoy equality. In 1923, following the Kanto earthquake, vigilantes massacred thousands of Koreans on false rumors that the Koreans had committed arson or were planning rebellion. In 1945, a Korean Japanese civic organisation, Chosen Soren, formed, siding with Communist North Korea in the partition of the peninsula, which was not received positively. Even Japanese Brazilians, recruited back to an ancestral homeland with which many were unfamiliar after their grandparents had emigrated to Latin America, occupy an ambiguous position, not regarded as fully Japanese. They have been relegated to manual labor that is dangerous, dirty, or difficult. The diaspora program now has few applicants. Meanwhile, celebrity “hafu” – the Japanese term for persons of mixed ancestry, from the English word “half” – have compelled conversation about Japanese identity. Ariana Miyamoto, half-African American, represented Japan in the 2015 Miss Universe beauty pageant. She faced backlash from those who expressly denied anyone of such background could be properly deemed Japanese. She was succeeded the following year by Priyanka Yoshikawa, half-Indian. The foremost singer of the “enka” repertoire, single-handedly reviving the genre for contemporary audiences, was Jero, born Jerome Charles White, Jr., in Pittsburgh, Pennsylvania, also half African American. He “retired” to a career in computer engineering. Numerous athletes who are “hafu” have achieved professional status internationally, such as baseball pitcher Yu Darvish, basketball recruit Rui Hachimura, and tennis player Naomi Osaka. Foreigners from Europe were present before and after 1853, when American Commodore Matthew Perry “opened” Japan for trade by sailing his four black ships into the bay of Edo (the designation for Tokyo at the time), running a miniature train after constructing a circular track to impress the locals with the latest technology. The Dutch had by then had a trading post in Nagasaki for approximately two centuries. Russian expatriates have had established communities in Japan, as Japanese in Russia, persisting after their war of 1905, notwithstanding disputes over a chain of islands between them which both assert sovereignty over. To an outside observer, it seems those who have been excluded in Japan yearn to be included.
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The “reluctant litigant”?
Japanese substantive law makes many causes of action impossible, but many other nations likewise would not entertain American-style claims, especially in tort or for punitive damages. Japanese procedural law and the range of remedies also renders these suits unappealing, since the transaction costs are high and the potential payoff low. It would confuse cause and effect to suppose these are the reasons for the rates of litigation; these statutes and regulations are designed deliberately, so they are as much cause of the consequence as an effect of an underlying ethos. The dearth of lawyers also can be interpreted as both cause and effect. A plausible rationale is social, but not racial; it is cultural, not biological. That is, scholars have suggested that Japanese society values traits of hierarchy and saving face. The preference, said professor Takeyoshi Kawashima in the initial article all who follow have had to respond to, is for “informal means of settling a controversy.” 56
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“A plausible rationale is social, but not racial; it is cultural, not biological. That is, scholars have suggested that Japanese society values traits of hierarchy and saving face.” His discussion of the so-called “reluctant litigant” and the goal of reconciliation, presented at a Harvard conference in 1963, has been definitive ever since. Disrupting relationships is to be avoided. He drew attention to the cultural significance of the formal apology, distinguishing the cases arising between members of different social groups as not determined by the same conventions. Acquiescence to the status quo is the default. Others have cited Confucianism, brought from China, and an aversion to law, or to the “adversarial legalism” of the United States, as it has been labelled by professor Robert A. Kagan. These habits can be adopted by anyone. They may be expected, and thus enforced. Relationships may be stronger than in America; there is less anonymity even in the dense crowd of Tokyo. In all contexts, “repeat players” who believe
Illustration: Jesadaphorn/iStock
Although the prevailing norm there is summarised in the proverb that “the nail that sticks up is pounded down”, their very attempt to conform represents a challenge. To the contrary, the dramatic breaches of law and order, so severe as to be criminal rather than civil, have been by individuals and movements who, no matter how else they are depicted, are indelibly Japanese. That is consistent with the experience of other nations vis-a-vis their own. The Golden Pavilion in Kyoto was burned down in 1950 by a Buddhist monk, customarily described as deranged, who had been contemplating the beauty of the landmark. In 1970, novelist Mishima led a disastrous coup attempt motivated by rightwing militarism and ethnic patriotism, before committing suicide as the mainstream marveled at the extravagance of his brief uprising. Shortly thereafter, in the Asama Sanso incident, young radicals in the Red Army killed one another, took hostages, and engaged in a standoff against the police at a remote mountain lodge, the siege broadcast on television in an unprecedented marathon. In 1995, metropolitan Tokyo was enveloped in sarin gas attacks carried out by the doomsday cult Aum Shinrikyo, whose members were executed for their domestic terrorism. Then, well-to-do housewife Masumi Hayashi poisoned everyone in her village during a summer festival, putting arsenic into curry, killing four and injuring another five dozen, apparently out of spite.
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they will interact again behave better than those in one-time encounters confident they otherwise will stay strangers. Japan maintained until its “lost decade” of economic stagnation a stronger standard, certainly than in the United States, of employment for life, at least for white-collar professionals. These are networks impracticable to extricate one’s self from. Kawashima referenced a single American, Dan Fenno Henderson, founder of the University of Washington Asian Law centre of high repute. Henderson had published on dispute resolution in the Tokugawa era (synonymous with the Edo period, prior to the Meiji restoration). His gist was that the government basically banned litigation by insisting on preliminary procedures, “kankai”, literally “inviting reconciliation”. A party would have to travel to Tokyo. That by itself was sufficient deterrent. The Tokugawa family limited social mobility in general, as would have been common in many nations at the time. The current scale of lawsuits may be a legacy of the earlier prohibition. The industrialisation of Japan, and its ongoing interaction with the West, not only the United States, might affect the situation. The miraculous reconstruction of Japan following its World War II defeat is a factor. The term “miracle” was used as early as 1962 by British Economist magazine. With urban housing stock having been destroyed by aerial bombing, Hiroshima and Nagasaki devastated, imperial holdings lost, and the very land being threatened by earthquake and tsunami, everyone on the archipelago felt vulnerable. Prime Minister Hayato Ikeda, who served from 1960 to 1964, rallied kith and kin to participate in a campaign to double income in a decade. With the advantage of a fixed exchange rate of 360 yen to one US dollar, imposed by an American banker during the occupation period, Japanese experienced collective upward mobility that became a model for other Asian nations. People were satisfied with the economic development enabled by exports that became more and more luxurious and profitable. From toys to the transistor radio to fuel-efficient automobiles, Japan went from designing and manufacturing goods reputed to be cheap to marketing a lifestyle of technological progress. Ikeda, and by extension Japan, were so much associated with these items that French President Charles de Gaulle insulted Ikeda as “that transistor radio salesman”, in addition to telling him that from De Gaulle’s taller height “one can see things in the distance much better”. Be that was it may, the strategy materially
enhanced the standard of living. (The Japanese have surpassed the French in per capita income anyway.) Litigation is a metric for much more. The conventional comparison is Japan to the United States. By cliché, Japan is homogenous and stable, exhibiting harmony; the United States, heterogeneous and dynamic, even violent. That may be deceptive. Other comparisons could be made. Canada is by various measures more motley and more peaceful than its neighbour. The theme of diversity inducing conflict is perennial. In 2007, social scientist Robert Putnam – who became a celebrity for studying the social isolation of people “bowling alone” – released a survey that seemed to reveal diversity was correlated to decreased cohesion and increased distrust. His findings were seized upon by opponents of mass immigration. Others examined the data. They read it differently: it was prejudice, not diversity, that spawned division. Yet American eagerness to litigate predates any commendations for diversity. The picture of the American propensity toward law that has endured comes from Alexis de Tocqueville. A French magistrate from a family of aristocratic rank, who suffered during the revolution, he visited America in 1831-32. Becoming an admirer of democracy, he penned a multivolume treatise with numerous passages that have come to be quoted, including the pronouncement: “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Kawashima may have had the more accurate insight. He introduced his book chapter with a universal which has been overlooked in light of the particulars that followed: “There is probably no society in which litigation is the normal means of resolving disputes.” Japan is engrossing, wondrous, and it may well be unique in the exact sense of there being nothing identical. The relative lack of litigation could be taken as testament to its qualities. The causes, however, are more complex than the notion that everyone there is the same as their neighbor. Demographics are not the explanation. There is much more to be studied and learned from the Japanese example. The answers to the questions will improve our ability to cooperate. Frank H. Wu is William L. Prosser Distinguished Professor at University of California Hastings College of the Law in San Francisco. He was formerly Chancellor & Dean at the school. He thanks his colleague, Setsuo Miyazawa, for conversations that stimulated this article.
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↓ “Boat People – An oil painting” by Sri Lankan Australian artist Manilal Wijesinghe.
“From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.”
“No-one who travels here illegally by boat will ever be settled in Australia.” – Peter Dutton, Minister for Home Affairs, 4 July 2019
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Painting: Maniart/iStock
– Kevin Rudd, Prime Minister of Australia, 19 July 2013
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REFUGEES
A legal black hole?
MADELINE GLEESON and SANGEETHA PILLAI examine Australia’s controversial practice of ‘offshoring’ refugees and the laws keeping the whole system afloat.
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n a time of increasingly restrictive immigration policies, closed borders, and heightened concern about irregular migration, the ‘Australian model’ of transferring asylum seekers who arrive by boat to foreign countries for processing stands out as a particularly concerning example of what can happen when restrictive border policies are taken to their extreme. Offshore processing has been a feature of Australian refugee policy for the majority of the past 20 years. First introduced in the Pacific by Prime Minister John Howard in 2001, it was discontinued in 2008 following a change in government. This was intended to be permanent, but was ultimately a short-lived pause. In 2010, prompted by a marked increase in the number of asylum seekers trying to reach Australia by boat, and a corresponding increase in the number of deaths at sea, the government announced its intention to establish a regional processing centre for the purpose of receiving and processing irregular entrants to the region. Following divisive political debate, an attempt
to transfer boat arrivals to Malaysia, and a High Court challenge that invalidated this scheme, facilities were eventually reintroduced in 2012, with the support of both major political parties, so that asylum seekers could be processed in Nauru and the Papua New Guinean territory of Manus Island. Prior to their introduction, an expert panel had advised that the asylum seeker processing mechanisms in Manus Island and Nauru should only be a short-term “circuit breaker”, designed to curb the “surge in irregular migration to Australia”. The mechanisms have now been in place for seven years. During this time, more than 4,000 people have been sent offshore for processing, and serious concerns have emerged about risks to their wellbeing. Numerous inquiries have raised human rights concerns. At least 12 people have died. The offshore processing regime has faced a number of legal challenges. Despite this, hundreds of asylum seekers still remain in offshore processing today. Their future is yet to be resolved.
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Nauru ↘ ↙ Manus Island
To whom does offshore processing apply?
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↖ Papua New Guinea ↙ Australia
The administration of offshore processing
Administering offshore processing involves several players and little transparency. The Migration Act 1958 (Cth) creates a broad ministerial power to designate a country as a regional processing country and provides for boat arrivals to be transferred there. But the Act has very little to say about how regional processing actually works. Regional processing is financed and overseen by the Australian government, but administered through several means including MOUs, the Regional Resettlement Arrangement between Australia and PNG, contracts with private service providers, and the laws of PNG and Nauru. The complexity of these arrangements and the number of actors involved weakens accountability: it is not always clear where responsibility lies. Additionally, a lack of mandatory reporting frameworks, the enactment and utilisation of anti-whistleblower criminal laws, and access restrictions on media and external oversight bodies have led to the obfuscation of serious incidents, including medical emergencies, self-harm and abuse. Despite this, reports by parliamentary committees, numerous UN bodies, and NGOs such as Amnesty International and Médecins Sans Frontières, along with leaked incident reports published in the media, have shed light on significant risks to the health, safety and human rights of asylum seekers within offshore processing countries.
Offshore processing and international law
Australia’s offshore processing arrangements raise a number of international law concerns. The first issue relates to the nature of the arrangements themselves, which are established by MOUs between Australia and the regional processing countries, as well as the Regional Resettlement Arrangement between Australia and PNG. Under these agreements, the respective States make various commitments, including to treat people “with dignity and respect and in accordance with relevant human rights standards”. However, the precise legal status of these agreements is unclear, with uncertainty as to whether they create rights
Photo: Department of Immigration and Citizenship/Flickr
The offshore processing regime applies to asylum seekers who arrived in Australia by boat between 2012 and 2014. To best understand how the regime operates, it is helpful to divide these asylum seekers into two cohorts. The first cohort is comprised of people who arrived by boat between August 2012 and July 2013. Under Memoranda of Understanding (MOUs) that the Australian government entered into with PNG and Nauru, some members of this cohort were forcibly transferred offshore to have their asylum claims processed. The processes for determining refugee status needed to be established from scratch in both countries, so these men, women and children experienced lengthy delays in harsh, closed, detention settings. Ultimately, they were brought back to Australia in mid-2013 and subjected to a new processing regime. Some people in this cohort are still awaiting a decision on their asylum claims some six years later. Those who are found to be in need of international protection are only eligible for temporary visas, and are caught in an indefinite cycle of re-establishing their claims for asylum. The second cohort is comprised of asylum seekers who arrived in Australia by boat on or after 19 July 2013, and who were caught by a dramatic change in policy announced on that day. At a press conference, the Prime Ministers of Australia and PNG declared that, going forward, no asylum seeker arriving in Australia by boat would ever be permitted to return and settle in Australia. Instead, the offshore detention centres were emptied (with the people in the first cohort returning to Australia) and refilled with people arriving in the second cohort. This was done on the understanding that any member of the second cohort determined to be in need of international protection would only have the options of integrating locally in the country where they were processed or waiting for resettlement elsewhere. This new policy was reflected in a Regional Resettlement Arrangement between Australia and PNG, and two new MOUs. Since 2013, every successive Australian government has maintained that no asylum seeker who arrives by boat will be settled within Australia. While legislative arrangements to transfer new boat arrivals to PNG and Nauru remain on foot, in practice, since 2014, boats have been intercepted and their passengers returned to their countries of origin or embarkation, rather than transferred for offshore processing.
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“Those who are found to be in need of international protection are only eligible for temporary visas, and are caught in an indefinite cycle of re-establishing their claims for asylum.”
↑ Manus Island regional processing facility.
and obligations under international law for the relevant States, or merely reflect intentions of a political and non-legally binding nature. Perhaps more critically, these agreements leave many important issues unaddressed. Of particular concern is their failure to spell out which States have responsibility under international law for the many serious and systemic violations of human rights of people subject to offshore processing. Australia has consistently taken the position that, since these people are physically located within the sovereign territory of Nauru and PNG, any violation of their rights is wholly and exclusively a matter for those States as a matter of law. This view is contrary to prevailing international authority, which establishes that where a State exercises jurisdiction abroad, its responsibility for internationally wrongful conduct
is not restricted to acts affecting people within its territorial limits. United Nations bodies and mechanisms have repeatedly called on Australia to recognise its responsibility. Despite this, Australia has maintained its refusal to accept that its active and ongoing role in the day-to-day operations offshore brings with it duties to act in accordance with international obligations. There is a further question about how the offshore processing arrangements can be reconciled with the international law obligations of Australia, Nauru and PNG, all of whom are parties to the Refugee Convention and its 1967 Protocol. From the earliest stages in 2012 when the legislation, bilateral agreements and policies giving effect to offshore processing were still being drafted, António Guterres, then UN High Commissioner for Refugees, expressed concern about critical aspects of the emerging regime. In correspondence with the Australian government, he emphasised certain general principles of the international protection regime. Guterres stressed that asylum seekers who arrive at the frontier of a Convention State fall within the responsibility of that State, and are entitled to have their claims for international protection processed within the State itself, via a fair and effective process. He noted that neither Nauru nor PNG had established the capacity to undertake refugee status determinations, and that significant challenges would have to be overcome for a
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The validity of offshore processing under Australian law
The validity of the offshore processing regime has been challenged twice in the Australian courts. Despite its many inconsistencies with international law, these cases have affirmed the regime’s validity as a matter of Australian domestic law. In Australia, international law obligations are not domestically binding unless they have been incorporated into federal legislation. The key statute is the Migration Act 1958, which runs over 1,000 pages and deals with all immigrationrelated matters. This Act has long served the dual purposes of incorporating some of Australia’s obligations under international refugee law while also creating broad executive powers to exclude non-citizens, including refugees, from Australia, in ways that often conflict with international law. In 2011, before the current regime was set up, the government had attempted to establish an arrangement whereby asylum seekers arriving by boat would be sent to Malaysia. Malaysia has not signed the Refugee Convention. Despite this, the ‘Malaysia Solution’ was arguably underpinned by a stronger attempt to comply with international refugee law than the current regime. Malaysia had made (non-binding) commitments to treat transferees with dignity and respect and to refrain from returning them to places where they would face harm. All claims for protection were to be assessed by the United Nations High Commissioner for Refugees. The Malaysia Solution was challenged before the High Court of Australia. The Court found the scheme was invalid because, at the time, the Migration Act reflected a legislative intention to adhere to Australia’s obligations under the Refugee
→ Asylum seekers being processed for offshore detention on Christmas Island.
Photos (from lef t to right): MicroStockHub/iStock; Department of Immigration and Citizenship/Flickr
transfer of responsibilities for asylum seekers from Australia to those countries to be appropriate. The arrangements proposed, in his view, were “a significant exception to the normal practice”. In 2019, these concerns remain relevant, and are exacerbated by the failure of the three States involved to ensure access to appropriate, timely and durable solutions. When the first positive refugee status determinations began to be handed down in Nauru in May 2014, and in PNG in January 2015, no proper arrangements were in place to govern what should happen next. The experience of settling locally in each community, even on a temporary basis, was and remains fraught. In September 2014, Australia signed a MOU and concluded operational guidelines with Cambodia, under which Cambodia agreed to relocate a number of refugees from Nauru. However, by the time that agreement expired in 2018, only seven refugees had volunteered to relocate to Cambodia – four of whom subsequently left. The best hope for many has been a further resettlement agreement between Australia and the United States, but its implementation has been slow since its announcement in 2016, and it will not offer a solution for everyone found to be a refugee in either Nauru or PNG. Meanwhile, Australia continues to insist that no person subject to offshore processing will ever be permitted to settle permanently in Australian territory. This is despite the fact that around half of the people subject to the arrangements and awaiting a durable solution are currently in Australia – having been transferred back for medical treatment or other reasons. For anyone without a guaranteed place in the US resettlement program or another third country, ongoing and indefinite limbo continues. Underlying all these concerns is the issue of sovereignty. Successive Australian governments have invoked sovereignty as a justification for distancing themselves from the abuse and suffering occurring offshore, claiming that Australia’s international obligations do not extend to the conduct of its officials and private contractors acting in the territory of other sovereign States. Besides the inconsistency with international law, this position denies the extent to which Australia is wielding political strength in the region to pursue its own domestic immigration agenda, without due concern for the priorities of its regional partners.
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Convention, except where these obligations were clearly excluded by express words or necessary implication. This meant the Act did not authorise the government to send asylum seekers to be processed in a country that did not extend legal protections to refugees. Parliament’s response to the Malaysia Solution decision was to amend the Migration Act to provide clear authorisation to the government to establish regional processing arrangements even where this would conflict with international law. These changes enabled the implementation of the current regional processing arrangements, and have been instrumental to the High Court’s subsequent findings that these arrangements are valid under Australian law. The Australian Constitution grants the federal Parliament sweeping powers over immigration and aliens. The case law shows that legislative amendment, drawing on these broad powers, is an extremely powerful and flexible strategy for combatting challenges to the validity of the current offshore processing arrangements. For example, until 2015, the government had been funding offshore processing without any direct statutory authority to do so. The validity of this was challenged in Plaintiff M68/2015 v Minister for
“Significant questions remain about the duties of care owed to asylum seekers in offshore processing by the Australian government, its officers and its contractors.”
Immigration and Border Protection. As both major political parties in Australia support offshore processing, Parliament’s response was to amend the Migration Act to provide retrospective support for the financing of offshore processing, as well as other government action in regional processing countries. This amendment was found to be within constitutional power and secured the validity of the scheme.
Duty of care: the new frontier?
While the constitutional validity of the offshore processing regime under Australian law seems all but assured, there are ongoing questions about the extent to which the Australian government owes a duty of care to asylum seekers subject to the regime. In 2017, a class action in negligence and false imprisonment claim against the government and its contractors was initiated in the Victorian Supreme Court on behalf of asylum seekers transferred to Manus Island. The case would have examined the conditions of offshore processing on Manus Island in depth, as well as the Australian government’s involvement. The hearing would have been live-streamed to the public, and would have included evidence from more than 70 witnesses and more than 200,000 documents. Ultimately, a $70 million settlement was reached before trial. On a more individual level, a number of asylum seekers have successfully secured transfers to Australia for medical care by claiming that the Australian government owes them a common law duty of care, which it would breach if it does not transfer them to a place where they can access appropriate medical treatment. Many of these cases are ongoing, but have nonetheless facilitated the transfer of asylum seekers to Australia by interlocutory order. Significant questions remain about the duties of care owed to asylum seekers in offshore processing by the Australian government, its officers and its contractors. As offshore processing continues, it seems likely there will be further litigation in this area. This has the potential to help shed further light on the roles played by the various actors involved, and to provide an avenue for accountability where other doors have closed. Dr Sangeetha Pillai and Madeline Gleeson are both Senior Research Associates at the Andrew & Renata Kaldor Centre for International Refugee Law, within the University of New South Wales (Australia).
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↖ Landscape of snow mountains and mountain road to Nubra valley in Ladakh region, in northern India's Jammu and Kashmir state.
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CONSTITUTIONAL
Not so special anymore
Kashmir’s “special status” as an autonomous state within India has been dealt a decisive blow with the scrapping of Article 370 of the Constitution. But was the move legal? FAIZAN MUSTAFA investigates.
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n 5 August 2019, Indian Prime Minister Narendra Modi created global headlines when he declared that Jammu and Kashmir’s “special status” within the federation of India was effectively over. By scrapping Article 370 of the Constitution – the article that had guaranteed a degree of autonomy to the border state – Modi said he had “rectified a historical mistake”. The often-volatile region was placed in a state of lockdown. The BBC reported that “tens of thousands of additional Indian troops were deployed, a major Hindu pilgrimage was cancelled, schools and colleges were shut, tourists were ordered to leave, telephone and internet services were suspended, and regional political leaders were placed under house arrest”. And when the president and former president of the Jammu and Kashmir Bar Association in Sri Nagar were arrested on charges of “advocating succession”, the Bar Association boycotted the courts. There have been protests both for and against the decision and the debate about federalism in South-Asia has been revived yet again.
Federalism
Federalism is fundamentally the process of bringing together diverse territorial communities that previously had not been directly joined into a new unit of common interest, policy and action. The territorial communities agree to join a union
because the union agrees to guarantee them a certain measure of autonomy. Thus, independent identity is surrendered by the units because substantial autonomy is promised. Federalism is a kind of restraint on the powers of the centre. The most important feature of federalism in the USA was the “compact” between the erstwhile 13 British colonies which constituted themselves first into a confederation and then into a federal polity under the 1791 Constitution of the USA. Justice Salmon Chase in Texas v White (1868) observed: “[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union ... The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Federalism is never the first choice of any framer of the constitution. It has never been adopted on sound theoretical grounds, but because of expediency and compromises. Article 370 of the Constitution of India was, prior to 5 August 2019, an essential facet of federalism. Like the compact in the USA, it governed the centre’s relationship with Jammu and Kashmir. It is therefore necessary to examine the very origin of Article 370, the way it was used or misused by the successive central governments, and the manner in which it came to be diluted and even used to bifurcate the state into union territories.
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Shaksgam Valley (Ceded by Pakistan to China)
Compact between Kashmir and India
At the time of Indian independence from British rule in 1947, there were two kinds of territories in India. One was called British India, which was under the direct administrative control of the British, the other was comprised of some 580 sovereign princely states which had signed subsidiary alliance treaties with the British and had surrendered their suzerainty to the British. The Indian Independence Act 1947 divided British India i.e. the territories under the direct administration of the British, into two countries – India and Pakistan – on 15 August 1947. The Act restored the suzerainty of princely states. They were given three options: to remain as independent states, join the Dominion of India, or join the Dominion of Pakistan. Section 6(a) of the Act said this act of joining one of the two countries was to be through an Instrument of Accession. The Instrument of Accession was supposed to regulate and govern the distribution of powers between the central government and the concerned princely state. All princely states except Kashmir not only signed these Instruments of Accession but also subsequently merged themselves with India. Thus Kashmir’s relationship with the centre was sui generis. Pre 1947, Kashmir was a princely state with a Hindu King (or Maharaja) and a Muslim majority population. Due to its strategic geographical location, Maharaja Hari Singh initially decided to remain independent, but when there was an invasion by the Afridis (tribesmen and army men in plain clothes from Pakistan), Hari Singh sought India’s help and India responded that it could send its army only after Kashmir acceded to India. Hari Singh signed the Instrument of Accession on certain terms on 26 October 1947. He did so in part on the advice of Sheikh Abdullah, the most popular leader at the time, and whose son and grandson, both former chief ministers, are now in detention. Lord Mountbatten, as Governor General of independent India, accepted it on 27 October 1947 on behalf of the Government of India. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir only on defence, external affairs and communications. In Clause 5 of Kashmir’s Instrument of Accession, Hari Singh explicitly mentioned the terms: “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument.” Clause 7 said 66
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CHINA Gilgit
Siachen Glacier, claimed by India and Pakistan
PAKISTAN-ADMINISTERED KASHMIR
Aksai Chin (Chinese-administered)
Baltistan Ladakh ↖ Line of control INDIAN-ADMINISTERED KASHMIR Jammu
PAKISTAN
INDIA
↗ Pakistan and India, which are both nuclear-armed rivals, rule separate parts of the divided Himalayan region but also claim it in full.
“nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.” Clause 8 laid down that “nothing in this instrument affects the continuance of my sovereignty in and over this State.”
Plebiscite promised
It was the Government of India’s stated policy that wherever there was a dispute to an accession, it was to be settled in accordance with the wishes of the people rather than by a unilateral decision of the ruler of the princely state. India took such a stand in a few princely states where the rulers were Muslim, but the majority of subjects were Hindu, while in other states, like Kashmir, the rulers were Hindu but a large majority of people were Muslim. India’s policy was consistent with democratic principles and the people’s right to self-determination. Accordingly, in India’s acceptance of the Instrument of Accession of Kashmir, Mountbatten clearly stated, “It is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”. Thus, India initially regarded accession as purely temporary and provisional. This was also said in the Government of India’s White Paper on Jammu and Kashmir in 1948. In a letter to Sheikh Abdullah dated 17 May
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“All princely states except Kashmir not only signed these Instruments of Accession but also subsequently merged themselves with India. Thus Kashmir’s relationship with the centre was sui generis.”
Photos (from lef t to right): Georges Devred/Agce ROL; Nehru Memorial Museum & Library
Drafting of Article 370
The Instrument of Accession eventually had to be made part of the Constitution of India so the powers of the Government of India and Parliament vis-a-vis Kashmir were clearly delineated. Article 370 is nothing but a constitutional recognition of the conditions mentioned in the Instrument of Accession that the ruler of Kashmir signed with the Government of India in 1948. It reflected the contractual rights and obligations of two parties. The Government of India and the state of Jammu and Kashmir negotiated the draft of Article 370 over five months. Finally, Article 306A (now 370) was passed in the Indian Constituent Assembly on 27 May 1949. India’s commitment to the plebiscite and drafting of a separate Constitution by Kashmir’s Constituent Assembly was repeated by Ayyangar on 17 October 1949 when Article 370 was finally adopted and included in the Constitution by the Constituent Assembly. 1949, Nehru, with the concurrence of Vallabhbhai Patel (Home Minister) and N. Gopalaswami Ayyangar (who drafted Article 370), wrote: “[I]t has been settled policy of [the] Government of India, which on many occasions has been stated both by Sardar Patel and me, that the constitution of Jammu and Kashmir is a matter for determination by the people of the [S]tate represented in a Constituent Assembly convened for the purpose.” Ayyangar, while moving Article 370, had also reiterated that “though accession is complete… we have offered to have [a] plebiscite taken when [the] conditions are created for the holding of a proper, fair and impartial plebiscite.” He also said if accession is not ratified then “we shall not stand in the way of Kashmir separating herself away from India”.
Article 370 – a tunnel between Delhi and Sri Nagar
↑ Maharaja Hari Singh, the last ruling Maharaja of the princely state of Jammu and Kashmir. ↖ Lord Mountbatten, first Governor-General of independent India with Jawaharlal Nehru, the the first Prime Minister of India.
Article 370 has been quite useful for India, as this Article itself mentions Article 1 which includes Jammu and Kashmir in the list of Indian states. Until 5 August 2019, Article 370 was thus a tunnel through which the Constitution of India was applied in Kashmir. It is the first article of Part XXI of the Indian Constitution entitled “Temporary, Transitional and Special Provisions”, which exempted Jammu and Kashmir from the Indian Constitution and permitted it to draft its own Constitution. It also restricted Parliament’s legislative powers in respect of Jammu and Kashmir. To ensure that Delhi did not unilaterally alter the contract between the two States, the concurrence of the Constituent
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Assembly of Kashmir was made a condition precedent to any change in Article 370, and the President was made powerless to make Article 370 non-operational. Under Article 370(4), such a presidential notification could be issued only after a recommendation to that effect had been made by the Constituent Assembly of the State. For matters specified in the Instrument of Accession, mere “consultation” with the state government was necessary, but for those matters not specified in the Instrument, “concurrence” not mere “consultation” of the state government was made mandatory. Finally, for Article 370 to be amended, the prior concurrence of the Constituent Assembly was made essential. Article 370(1)(d) was to be used to apply “other provisions of constitution” to Kashmir – not to modify or repeal Article 370 itself. “Other provisions” here means: other than Article 1 (that lists the names of states), Article 238 (now repealed) and Article 370. Parliament alone can amend Article 370 by following the procedure of Article 368.
Amending Article 370 without amending it
In an unprecedented move on 5 August, the President of India, invoking Article 370 itself, amended Article 367 that deals with constitutional interpretations and ordered that the term “Constituent Assembly of Jammu and Kashmir” in Article 370 shall mean Legislative Assembly of the State. This was a move that goes against the fundamental rules of constitutional interpretation for three reasons. First, one constitutional provision cannot be used to nullify another. Second, an interpretation clause is only to be used when there is ambiguity in the constitution. Here, however, article 370 clearly talked about the Constituent Assembly of Kashmir that was convened on 31 October 1951 and was dissolved on 25 January 1957. This of course begs the question: How can this Constituent Assembly mean the current or future Legislative Assemblies of the State when, after 31 October 2019 (when the Jammu and Kashmir Reorganisation Act 2019 will come into effect) there won’t in fact be any state assembly, but an assembly of a union territory? Third, even when there are two contradictory provisions in the Constitution, the Supreme Court invokes the doctrine of harmonious constructions so that both the provisions are given effect to. Fourth, the Constitution prohibits the colourable exercise of power. In other words, what you cannot do directly you cannot do even indirectly. Since amendment to Article 370 required the 68
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concurrence of Kashmir’s Constituent Assembly, constitutionally speaking, this cannot be done by invoking Article 370 and changing the meaning of Constituent Assembly itself through Article 367. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir was given the final say to modify/delete/retain it. The Constituent Assembly of Kashmir decided in its wisdom, and rightly so, to retain it and therefore this provision became permanent in defining the centre’s relationship with Kashmir. In the 2017 case of Kumari Vijayalaxmi, the Delhi High Court rejected a petition arguing that Article 370 was temporary and its continuation a fraud on the Constitution. The Supreme Court also said in April 2018 that despite the headnote using the word “temporary”, Article 370 was not temporary. The term “temporary” signifies duration. In fact, there are temporary provisions in the Constitution such as the reservation for the Scheduled Castes (SCs)/ Scheduled Tribes (STs) in Parliament and State Assemblies which were initially there just for 10 years. English, for instance, was temporarily permitted as the official language. Article 369 mentions a five-year period giving Parliament the right to pass laws in respect of trade and commerce within the state. Strangely, no such time frame was mentioned in Article 370.
The use and misuse of Article 370
The frequent use of Presidential orders under Article 370 has considerably weakened the autonomy promised to Kashmir. Prime Minister Nehru himself had admitted in Parliament on 27 November 1963 that “Article 370 has eroded”. India has used Article 370 more than 45 times to extend provisions of the Indian Constitution to Jammu and Kashmir. Even First President Rajendra Prasad was not very happy about the frequent use of Article 370 and he wrote a letter to Nehru on 6 September 1952 specifically saying that executive powers should not be used in this manner. As a matter of fact, by the use of Presidential orders, India almost nullified the effect of the special constitutional status of Jammu and Kashmir.
“India initially regarded accession as purely temporary and provisional. ”
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Since almost the entire Constitution of India was already applicable to Kashmir, realistically speaking, the heavens did not fall in on 5 August. Thus, both celebrations in the rest of country and grief and sorrow in Kashmir are unnecessary. Neither has Delhi got something very great nor has Kashmir lost something really substantial with the near abrogation of Article 370. The Indian media have created a false narrative. On 6 August 2019, newspapers carried the front page news that the Comptroller and Auditor General of India (‘CAG’) will now have powers to carry out an audit in Kashmir. CAG already had this power for more than six decades. The Election Commission of India was similarly given such powers from 1959. The right to information was already there as well. Unfortunately, the media created another false narrative that Kashmir became an integral part of India after 5 August 2019. As a matter of fact, Article 3 of the Jammu and Kashmir Constitution itself had declared Kashmir to be an integral part of India.
Photo: Tes/iStock
From autonomy to destruction
↑ Srinagar, the capital city of Jammu and Kashmir.
While Jammu and Kashmir’s special status was largely sentimental, when the Jammu & Kashmir Reorganisation Act commences on 31 October 2019, it won’t exist as a State at all. The constitutional validity of the bifurcation of Jammu and Kashmir into two union territories (the Hindu and Muslim majority territory of Jammu and Kashmir and the largely Buddhist territory of Ladakh on the border with Tibet), is also doubtful because no other State has so far been downgraded to the low status of Union Territory.
Article 3, which empowers Parliament to bifurcate states or change boundaries, as applied to Jammu and Kashmir, had a proviso that required the “concurrence of state assembly”. However, the Union Cabinet effectively suspended the provision in 2018 when it imposed what is known in India as President’s Rule – the suspension of state government and imposition of direct central government rule in a State. In doing so, it also denied people’s representatives a chance to express their views – a move that is certainly indicative of malice. Another move which can be viewed in much the same way was the decision not to hold Assembly elections along with Parliamentary elections. The Parliament of India cannot express views on behalf of a State. During President’s Rule, Parliament has the limited role of performing only those duties of night watchman so that state administration does not come to a standstill. It has to approve budget and payment of salaries etc. It cannot commit legal suicide on behalf of the State Assembly. More than a dozen petitions have been filed in the Indian Supreme Court, questioning the legality of the government’s action. The Court has not shown any keenness in hearing the matters, despite the fact the cases involve serious questions about federalism. The Court has adjourned the cases to 14 November 2019. In the meantime, the world watches on. Professor Faizan Mustafa is an expert in constitutional law and Vice-Chancellor of NALSAR University of Law, Hyderabad. The views expressed here are personal.
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↖ The Statue of Peace, in front of the Embassy of Japan in Seoul, South Korea, is a symbol of the victims of sexual slavery (known as comfort women) by the Korean military during Vietnam War and the Japanese imperial military during World War II. The Statue of Peace was erectedin 2011 to call
Photo: Yun Ho Lee/Flickr
for apology and remembrance.
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TRADE LAW
Korea and Japan clash over history and law
BRIAN KIM explores the current state of relations between two neighbours struggling to move on from the painful legacy of colonialism.
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outh Korea and Japan are tumbling into a dangerous economic-diplomatic war over a South Korean Supreme Court decision that ordered Japanese corporations to compensate Korean forced-labour victims from World War II. At the heart of the dispute is a legal disagreement over a 1965 treaty that triggers centuries of bad blood and spiritual animosity between the two countries. According to Korean estimates, during World War II Imperial Japan conscripted as many as 7.8 million Koreans into forced labour, including military service and sex slavery. The South Korean Supreme Court recently ruled that Nippon Steel and Mitsubishi Heavy Industries, two corporations that exploited Korean labor during Japan’s colonisation of Korea (1910-1945), should pay reparations to their victims. Japan contends that all claims originating from the period, including individual claims, were resolved by the 1965 Treaty on Basic Relations between Japan and the Republic of Korea. This normalisation treaty established diplomatic relations between
the two hostile countries in exchange for $300 million in grants and $200 million in loans from Japan to Korea. Article II stipulates that, as a result, “the problem concerning property, rights, interests ... and claims between [the Republic of Korea and Japan] and their nationals [are] settled completely and finally.” But Seoul has a different take. In a landmark 11-2 verdict against Nippon Steel last October, the South Korean Supreme Court maintained that the 1965 treaty simply resolved state-level claims in order to achieve diplomatic relations on a nation-to-nation basis, without resolving individual claims based on emotional suffering and pain. Earlier this year, a lower South Korean court further allowed the seizure of Nippon Steel assets within Korea to compensate the four forced-labour victims involved. Mitsubishi is next in line to have its assets liquidated, and the writing is on the wall for 70 other Japanese firms currently litigating 547 similar lawsuits involving more than 1,300 plaintiffs across Korean courts.
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must now deny by producing evidence that there were legitimate and sufficient national security reasons for its actions. For this reason, the editorial board of Bloomberg recently called Japan’s sanctions “hopeless” and “foolish.”
A legal war
↗ Korean women are putting comfort articles such as toiletries, dried fruits and canned foods, into comfort bags to be sent to Korean soldiers in the Imperial Japanese Military during WWII.
Already, the Koreans are in the process of launching a legal battle against Japan on the floor of the World Trade Organization (WTO) in Geneva, while the Japanese have hinted at taking Korea to the International Court of Justice (ICJ). Victory in either arena will depend on strategically framing the dispute in a technical vocabulary of law that best corresponds to the thematic undercurrents in international law. Since Japan insists the export sanctions have nothing to do with the Korean Supreme Court decision in the first place, the most immediate legal battle in the current dispute will occur within the strict confines of trade at the WTO. Under the Uruguay Round agreement, any WTO member state can file a complaint and call upon the General Council to appoint a dispute panel, which must then hear both sides and reach a ruling within a year. Legally, the decision of the WTO dispute panel in the current dispute will turn on a technical examination of Japan’s national security claims. The Dispute Settlement Body
Photo: Author unknown/Wikimedia Commons
Citing national security concerns, the Japanese government, in response, seeks to punish Seoul by passing export sanctions designed to hamstring the Korean semiconductor industry. Further escalating the dispute, Tokyo decided to demote South Korea from a “white list” of countries that receive preferential trade treatment from Japan, an explosive move that the Korean ruling party has called “an all-out declaration of economic war”. Though on paper Japan has invoked national security for its export sanctions on South Korea, there is little doubt among pundits that the sanctions amount to a direct rebuke of the Supreme Court decision. Moreover, Japanese economic retaliation exemplifies an alarming trend of trade weaponisation in international relations, in which one nation seeks to exert political influence on another nation by attacking its economy, often hitting the weakest spots. Examples abound: President Trump’s tariffs on Mexico and China over non-trade issues and China’s punitive ban on Norwegian salmon imports over Liu Xiaobo’s Nobel Prize represent just a few. By retaliating against the South Korean court decision with calculated trade sanctions in a strategically chosen industry, Japan has opened itself up to accusations of “invading” the sovereignty of another nation and its independent judiciary – accusations it
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of the WTO has traditionally allowed a so-called national security exception under Article XXI of the 1994 General Agreement on Tariffs and Trade (GATT), giving member states a free pass to violate WTO obligations for purposes of national security. This exception, designed to uphold the sovereignty of member states in their own security decisions, would have enabled Japan to conveniently silence a Korean challenge to its recent export restrictions. But in April, a WTO dispute panel issued a landmark ruling that narrowed the national security exception for the first time with a new standard requiring national security justifications to be “objectively” true. The General Council adopted this panel ruling on 26 April. The United States, with a personal stake in upholding its steel and aluminum tariffs, has vehemently opposed the ruling. As a result, the Korea-Japan dispute sits atop larger legal undercurrents that will pose a litmus test for the WTO’s new precedent, with unexpected repercussions for the Trump administration if the objective standard is enforced. A Korean victory at the WTO depends on forcing Japan to produce “clear evidence”, per the new objective standard, to substantiate the national security allegation that Seoul had allowed technology imports from Japan to flow illegally into North Korea. Meanwhile, a Japanese victory will depend on fighting for an interpretation of the “objective” standard that is favourable to Japan’s national security argument or altogether undermining the authority of the WTO to encroach on national security decisions. In a strategic struggle for institutional legitimacy, the WTO risks becoming toothless if it alienates important members like the United States and Japan; but by the same token, adjudicators will feel pressured to enforce the new legal standard created in April. The result of this battle in Geneva
“This yearning for a ‘Normal Japan’ is ultimately at the heart of Tokyo’s anger with the South Korean court decision, which threatens to excavate the World War II skeletons in Japan’s closet.”
not only will determine the technical legitimacy of Japan’s sanctions but also may serve as a barometer for the future legitimacy of the WTO itself. A battle at the WTO, however, will only scratch the surface of a bigger legal question at the heart of the current dispute regarding the 1965 normalisation treaty. Despite Japanese insistence to the contrary, the more substantive battle is one that has little to do with national security and everything to do with national grievances. Article III of the 1965 normalisation treaty calls for an “arbitration board composed of three arbitrators” to settle the dispute if diplomacy fails. Seoul recently rejected Japan’s arbitration proposal, triggering speculation that Japan will try to take the dispute to the ICJ. Under Article 36 of the ICJ Statute, the ICJ can preside over international legal disputes only if both parties accept its jurisdiction. That said, Japan has contended previously that it may raise the issue with the ICJ unilaterally and pressure Seoul to defend its decision before the international tribunal. South Korea, a military dictatorship at the time of the 1965 treaty, established diplomatic relations with its former coloniser in exchange for financial aid that went toward its economic development but not toward compensating individuals. In 1964, a popular uprising known as the June 3rd Resistance Movement challenged the dictatorship’s rapprochement attempts with Japan, and dictator Park Chung-hee had to declare martial law and arrest thousands of protesters to get the highly unpopular 1965 treaty passed. Ultimately, the legal questions that arise from this dispute question the adequacy of this treaty in reducing the suffering and grievances of a wounded nation. The majority opinion of the South Korean Supreme Court emphasises that Japan had never agreed with Korea on the “illegality of the colonial era”, a prerequisite for assuming legal accountability to its victims. Without this consensus, the Court argues, Japan could not possibly have intended to compensate the forced-labour victims through the 1965 treaty. The opinion also highlights that the 1965 treaty was intended not to settle individual grievances but to resolve property and debt claims in accordance with Article 4 of the Treaty of San Francisco, which Japan signed with the Allied Powers in 1951. A further complication is the 2015 agreement between the two countries on the socalled comfort women – since then abrogated by current Korean President Moon Jae-in – whereby Japan agreed to pay $8.3 million to the surviving
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sex-slave victims. Japan insists that the 2015 agreement was “moral” not legal and, therefore, not a concession on its legal position regarding the finality of the 1965 treaty. Regardless, the concurring opinion adds that even though, under international law, nations can enter into treaties that extinguish the claims of their own citizens, courts should apply higher scrutiny when those rights concern the gross violation of human rights, including emotional suffering and pain. For Japan, by contrast, victory will depend on maintaining that the four corners of the contract must still be respected, regardless of the context. The Japanese Ministry of Foreign Affairs has already released statements in five different languages calling the South Korean ruling a “breach of international law”. South Korea, perhaps sensing Japanese confidence, has not consented to an ICJ duel. After all, the simpler, more straightforward legal argument belongs to Japan. Both Japan and Korea, in the end, are waging a much deeper spiritual battle behind the façade of a legal dispute. Japan’s existential search for a clear postwar national identity is predicated on becoming a “normal nation” and exorcising the phantom of World War II from its future. This yearning for a “Normal Japan” is ultimately at the heart of Tokyo’s anger with the South Korean court decision, which threatens to excavate the World War II skeletons in Japan’s closet. Yet Koreans contend that Tokyo’s alleged postwar pacifism was never extended to its Asian neighbours. It was pacifism under the heel of the American boot, based on a victim mentality earned from the only nuclear attacks in human history. From Seoul’s perspective, Japan’s indignation and legalistic approach in the current dispute exemplify its lack of true “repentance” over World War II atrocities. True repentance, meanwhile, is a spiritual act; earlier this year, the speaker of the South Korean National Assembly called upon Japanese Emperor Akihito himself to personally apologise to the Korean victims, contending that if the emperor “holds the hands of the elderly [victims] and says he’s really sorry, then that one word will resolve matters once and for all”. But the era of Japanese colonisation (19101945) is itself only the most recent in a series of hostilities that date back several centuries. In the Japanese imagination, the Korean Peninsula has long been described as the “dagger pointed 74
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↑ A statue of Admiral Yi Sun-sin, who thwarted Japan's invasion in 1592, at Gwanghwamun Square in Seoul, where thousands of Koreans descended this August to protest against PM Abe.
↑ “Boycott Japan” sticker on shop in Mokpo, South Korea, urging South Koreans to boycott of Japanese goods and services.
Photos (from top to bottom): Katie Haugland Bowen /Flickr; Syced/Wikimedia Commons
Spiritual battle
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at the heart of Japan”. Meanwhile, engraved in the Korean psyche are the Japanese invasion of 1592, when the country’s royal palace was torched, and the murder of a Korean queen inside that same palace by Japanese assassins in 1895. It is no strange coincidence that Gwanghwamun Square, the largest public square in Seoul, where thousands of Koreans descended in protest on 15 August, prominently features a statue of Admiral Yi Sun-sin, the celebrated Korean general who thwarted Japan’s invasion in 1592. Nor does it help that both countries are currently led by nationalist leaders with little interest in pulling the emergency brake. Japanese Prime Minister Shinzo Abe, widely considered a right-wing nationalist, has publicly sought to remilitarise Japan by revising the country’s pacifist postwar constitution. Meanwhile, in Korea, where the political left champions an unbridled ethnic nationalism built on unity with the North and hatred of Japan, the liberal President Moon Jae-in has repeatedly and openly emphasised that Japan is America’s ally, not his. On 5 August, he issued an urgent nationalistic call for economic collaboration with North Korea to destroy Japan’s economic supercity in “one burst”. Moon has publicly vowed “not to be defeated again” in an economic war against Japan and threatened to pull out of a military intelligence-sharing pact with Tokyo that is crucial to the U.S. alliance architecture in Asia. With China’s rise, along with the threat of missiles from Pyongyang and Russian-Chinese incursions into Korean airspace, the infighting between South Korea and Japan significantly compromises the
“Ultimately, the legal questions that rise from this dispute question the adequacy of this treaty in reducing the suffering and grievances of a wounded nation.”
Public opinion reflects the deepening rift between Japan and South Korea
71% of Japanese are in favour of Prime Minister Abe's export restrictions on Korea
74% feel “distrustful” of Koreans
cohesion of the Seoul-Tokyo-Washington triangle and is also a testament to the declining leadership of the U.S. in Asia under Trump. Public opinion reflects this deepening rift: 71 per cent of Japanese are currently in favour of Abe’s export restrictions on Korea, a record 74 per cent feel “distrustful” of Koreans, and 80 per cent think their country has already apologised enough for the past. Reciprocally, a record 77 per cent of South Koreans feel “unfriendly” toward Japan – the highest since polling began in 1991 – and 87 per cent believe Japan still needs to apologise for its colonial-era atrocities. A #BoycottJapan movement is in full swing both on social media and offline, with banners around Seoul calling people “traitors” for travelling to Japan and gas stations refusing to refuel Japanese cars. More than six in 10 South Koreans are reportedly participating in this boycott. Two South Korean men set themselves on fire in front of the Japanese embassy in Seoul in August in apparent protest, and Japan has issued a travel advisory for Korea. With nationalists at the helm in both countries, the two are speeding ahead at full steam in a dangerous game of chicken.
The clock is running down
80% think their country has already apologised enough for the past
77% of South Koreans feel “unfriendly” toward Japan
87% believe Japan still needs to apologise for its colonial-era atrocities
Ultimately, there is no language available to the WTO or ICJ that could possibly capture the pain and spiritual stakes at the heart of this dispute. A supranational arbiter could render a ruling with legal finality, but it may still fail to offer permanent closure. Lost in the technical battles over law are the human grievances of hundreds of thousands of victims, most of them now in their 90s, who are quickly fading from the public consciousness as a political resolution has eluded the two countries for decades. Of the four South Korean victims who brought the case against Nippon Steel back in 2012, only one of them, the 94-year-old Lee Chun-sik, lived to hear the verdict last October. Lee Young-sook, another victim who filed a damage suit against Mitsubishi, died of old age shortly after filing her suit. For others like them, this battle for closure isn’t just spiritual. It is against the clock. This article was first published on 16 August 2019 on the Lawfare Institute’s legal blog, lawfareblog.com. It is republished here with permision. Brian J Kim is a student at Yale Law School. He holds a Bachelor's degree in International Relations from Princeton and a Master's in Politics from Peking University, where he studied as a Yenching Scholar.
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C A R E E R | W E L L N E S S | T R AV E L
LEADERSHIP
Reputation versus credibility
Illustration: Treety/iStock
While reputation is shallow and fragile, credibility can be transformative. Building it, however, requires honesty, authenticity and vulnerability, writes ANGELA HEISE.
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here is a lot of talk about people who, on the surface, seemingly fulfil all the criteria of a successful person, and who are even considered role models, be it in law, business, entertainment, politics or social and religious institutions. When it transpires that these upstanding members of the community have a dark side, it often turns out the people around them were aware of it, but never spoke about it or even aided and abetted. Their dishonest behaviour was simply accepted as the shadowy side of a reputation in need of protection. Which makes me wonder: what is a reputation worth these days? Is there something else more important than a shiny image? The dictionary defines reputation as a widely held opinion or belief about someone’s characteristics. These days, it is often determined by the regularity and positivity with which a person is mentioned in media outlets, by Google ratings, a great social media profile with thousands of followers, and the ability to get lots of “likes”. Reputation can easily be manipulated and often is not much more than a marketing and PR persona, a branding exercise to promote a manufactured product which may have very little to do with the actual person behind the mask. It can be challenging for people to sort out what they should or should not believe. It’s easy to take social media posts or gossip magazines as gospels of truth; it’s much harder to know who actually is the person behind the posts. Younger people especially are starting to believe they have to be
flawless, that they have to live up to the celebrity idol they have put on a pedestal. This can result in dogmatic views and behaviours which, without any informed thinking, simply emulate those of their hero or heroine. So when their idol’s mask slips, when they fall from the pedestal, there is either disappointment and anger or total denial and continued blind adoration. On the flip side, there are the cynics who have decided we live in the Matrix, that nothing is real, and that there is no point even trying to be successful as per the criteria defined by people who then violate them. In either case, low self-esteem prevails. So what is the alternative to reputation, to being your own trumped up facsimile? Credibility is defined as having a quality to be trusted and believed
“What is a reputation worth these days? Is there something else more important than a shiny image?”
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in, which is dependent on observable action. A scientist or expert court witness is only credible when the information they share is evidencebased. Unlike reputation, however, credibility is not about hiding flaws; it is about owning them. It’s simply about not believing your own hype. It’s about being authentic. Here are some ways to build your credibility so that, before other people start believing in you, you can believe in yourself and then act from a place of genuineness and high self-esteem. This creates congruence and physical, mental and emotional health. Define your ethical values. Know what you stand for and then live accordingly without the expectation to be perfect. Don’t impose your standards on others. Be honest. When you find yourself judging someone, check how this judgment relates to you. Realise the hypocrisy of espousing standards you may not fulfil yourself. Have respect for others even if you don’t agree with them. Develop the ability to separate the person from the behaviour. Be vulnerable. This is not about sharing your dramas to elicit sympathy; it’s about owning your imperfections, being able to openly talk about your failures as well as your successes from a place of humility rather than self-promotion. Honour your word. Don’t say one thing and do something else. If you change your mind, be open about it; avoid blaming others for supposedly misunderstanding you. Walk your talk. Know how to get back to integrity when you are in breach of any of the above. Instead of hiding behind self-righteousness and pseudoapologetic regret, show remorse and make amends. Angela Heise is an Emotional Productivity® and Leadership Coach with more than 20 years of experience. She supports people to be the best they can be at work and in life. angelaheise.com
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ETHICS
Fertile ground for moral anxiety Lawyers are especially at risk of facing ethical dilemmas or situations at odds with their moral compass. RACHEL SETTI offers some advice.
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Illustration: Treety/iStock
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oral anxiety in the workplace refers to the distinctive anxiety we feel when faced with a dilemma or conflict as a result of the disparity between our personal moral compass and that of our firm, company or colleagues. The term is rarely used in commercial parlance, though often rears its head when ethical scandals rock the commercial world – think Enron and WorldCom. When we untangle the precursors to these events, they identify blatant ethical transgressions which were bound up in the commercial disasters that ensued. An individual’s decisions are highly influenced by the environment in which they work. Further, moral misconduct is not necessarily the result of a person’s deliberate action, rather it is often
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related to poor self-awareness of the consequences of their behaviour – it is an ethical blind spot. Yuval Feldman, a professor of legal research, focuses on the employer to support individuals to maintain moral appropriateness. Research states that, at a minimum, firms should make their ethical guidelines clear by highlighting and role modelling them, encourage transparent conversations on handling the tension between commercial imperatives and moral obligations, provide employees with timely reminders of the implications of their behaviour, and proactively address unethical behaviours rather than turning a blind eye. Perhaps history would have taken a different turn had such checks and balances been applied at the aforementioned ill-fated corporate empires. Turning our focus to the individual, most commercial ethical meltdowns have involved people acting in a way that did not sit well with their personal moral code. Yet we can assume that they either disregarded their intuition or, if they did present their concerns, were ignored. Legal professionals are unique in that they are bound by their oath as officers of the court, and must uphold ethical standards as part of
their professional obligations which, in theory at least, provide them with unambiguous boundaries. Despite this, lawyers are not always immune to the conflicting demands and interests that can lead to morally inappropriate decisions. This is particularly relevant to multi-stakeholder in-house counsel, but also to external counsel. One factor that may contribute to moral anxiety is that morality is associated with emotion, yet corporate society believes emotional and rational thinking are mutually exclusive, and that rationale trumps emotion in commercial decisions. Despite this prevailing belief, listening to one’s inner voice can actually lead to more robust, well-rounded decisions. In other words, our emotions provide us with important insight into the difference between right and wrong. Because moral anxiety often exists amongst individuals driven to do the right thing, behaving in a way that aligns with their moral compass is important for maintaining wellbeing. Ignoring their moral compass can lead to chronic anxiety and can in turn limit their capacity to deal with complex, multi-faceted decisions. This is because, when feeling anxious, people tend to view issues in simplistic, black-and-
“Lawyers are not always immune to the conflicting demands and interests that can lead to morally inappropriate decisions.”
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white terms, thus perpetuating the tendency to misjudge and overlook thorny ethical considerations. It is therefore important to take action if faced with such conundrums at work. The following pointers may help: Develop an awareness of your moral discomfort by noticing the following symptoms which may indicate anxiety: ongoing agitation and worry, poor sleep, fatigue, difficulty concentrating, muscular tension, and gastroenterological issues. Take action to maintain your own wellbeing. A discrepancy between one’s behavioural standards and those of society can correlate with symptoms of depression as well as anxiety. Decipher which elements of the situation concern you. It may be a specific matter requiring a subtle shift, or the ongoing status quo at your firm or company. If the latter, consider whether you can help shift the prevailing culture or, if not, whether it is really is the right place for you. For complex, multi-layered issues a confidential brainstorm with a mentor or coach may help tease out the issues. Contemplate what you can do differently to align the situation more closely to your moral compass. Encourage conversation within the company. Present your opinions by referencing the moral consequences of the decision or action, ask questions and seek answers. Highlighting such issues can help you reach robust conclusions, and support others to develop better moral self-awareness. Rachel Setti is an organisational psychologist and coach, specialising in effective leadership, interpersonal skills and mental wellbeing.
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HEALTH
Listen to your body
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hen you are working under pressure – which, let’s face it, is most days – listening to your body might be the last thing on your mind. You may, however, want to bump it up your priority list given the latest research into interoceptive awareness – the technical term for listening to your body. Interoception refers to our ability to perceive internal bodily sensations, such as our breathing, heart rate, hunger, pain or muscle tension. It has several dimensions. One is the tendency to
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be focused on internal bodily signals. Another is how accurately we perceive what’s happening in our bodies. You might think we all have a good idea about what’s happening inside our own skins, but research shows some of us have a higher interoceptive accuracy (IA) than others.
Does this superior sense-ability confer any real-life advantages?
A higher IA is related to better decisionmaking, as well as better regulation of our emotions, food and weight, whereas
a low IA is related to lower resilience and certain mental health conditions such as depression, according to Dr André Schulz from the Self-Regulation and Health Research Group, University of Luxembourg, who has been researching interoception for 15 years. Some of these links are easy to understand. If you are good at accurately detecting the physical signs of hunger or fullness, this will help you eat the right amount of food for your body and thereby help you maintain a heathy weight.
Photos (from lef t to right): Filadendron/iStock; Muzon/iStock
Interoception – or the art of listening to your body – has a greater impact on our everyday functioning than many of us realise, writes THEA O’CONNOR.
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But how might interoception influence emotional regulation or decision-making?
There are technical explanations for this, but here’s an easy way to understand the links. The first skill of emotional intelligence is the ability to recognise what you are feeling. All emotions are accompanied by a sensation in the body, so the better you are at noticing your elevated heart rate, or butterflies in your stomach, for example, the better your emotional awareness.
What about decision-making?
Imagine saying ‘yes’ to something when you really needed to say ‘no’. How would you register this discrepancy? You’d feel it in your body as some stress-related symptom, letting you know you are out of alignment. If you listened to this and acted on it, you might make a more congruent decision. A higher IA isn’t always better, though – it’s associated with panic disorders, for example. “We don’t know if interoception plays a causative role in these conditions as most of the studies have been correlational in nature,” says Schulz. “But it’s possible that there is an ideal range of IA, and if one’s IA is outside the normal range, then that’s a risk factor for developing certain disorders.” Professionals who work in highpressure environments are up against some tough barriers to interoception. One can be a work culture that regards employees as being weak, rather than
smart, for paying attention to early warning signs. Stress itself can interfere with interoception. “When we are in a stressful situation our attention is typically shifted towards the challenging stimulus and, therefore, away from the body,” explains Schulz. “That is not problematic in an acute stress situation but may cause trouble if chronic stress disrupts body awareness over time.”
Are there times when we shouldn't trust or act on our body signals? Things can get a little complex in some situations and pain is one of them. Acute pain – that immediate sensation you feel when your appendix bursts or you burn your hand on the stove – is there for our survival and we should definitely listen to it. “It stops us from being silly and prompts us to take care of ourselves,” says Tasha Stanton, Associate Professor in Clinical Pain Neuroscience at the University of South Australia. Chronic pain, loosely defined as pain that lasts beyond about three
“A higher IA is related to better decisionmaking, as well as better regulation of our emotions, food and weight, whereas a low IA is related to lower resilience and certain mental health conditions.”
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months, which is the time expected for healing following surgery or injury, is a different beast. With chronic pain, Stanton explains, the pain system becomes over-protective, meaning you feel pain before your tissues are in danger of injury. This means you don’t necessarily need to stop exercising, for example, when you feel uncomfortable sensations. It’s not so much about ignoring your body, but reframing the sensations as “I’m sore but safe”. “It’s really important to keep pain in perspective in order to keep people moving as physical activity, along with education, is the best treatment for chronic pain,” says Stanton.
Improving your IA
If you know you are low in body awareness and could benefit from getting more in touch with your body, the good news is that you can improve your IA. “Exercise is one of the best ways to increase interoception,” says Schulz. “It helps us tune into our bodies, while regulating any negative sensations and feelings.” Body-based mindfulness techniques also help. They not only focus our attention on body sensations, but they have the added advantage of training us to accept whatever we notice in our bodies, without judgment. “If you hope to be calm at night after a stressful working day, but notice that your heart is beating quite fast, this discrepancy may cause anxiety if you don’t practise non-judgmental observation, which will only further amplify your heart rate,” says Schulz. In our constant search for wellbeing and balance it’s easy to miss the resources right in front of us, such as wisdom of the body. Interoception, which allows us to tap into this intelligence, deserves a place in our work-life toolkit. Thea O'Connor is a wellbeing and productivity advisor, presenter and coach, specializing in shaping healthy and productive work habits. She writes on topics focused on the intersection of health and business. thea.com.au
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↗ Holi is a traditional Hindu festival which celebrates the beginning of spring with the 'festival of colours'.
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Photo: Debashis Biswas/Unsplash
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CITY GUIDE
Kolkata
The name may have changed slightly but Kolkata, formerly known by its British imperialist name Calcutta, remains India’s most inviting city. The former capital of the British Raj does a nice line in colonial grandeur with showstopper monuments such as the Victoria Memorial, but Kolkata’s true charm lies in its low-slung neighbourhoods. There, you will find elegantly decaying mansions rubbing shoulders with Hindu temples, mosques and churches. Throw in a lively cultural scene and delicious food and there are plenty of reasons to fall in love with the City of Joy, writes UTE JUNKER. N O V E M B E R 2 0 19
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Eat
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Drink
They like a touch of tradition in Kolkata, which is why afternoon tea is often a more popular option than knocking back cocktails. The place to go is Flury’s, where they have been dishing up coffee and cakes for more than 90 years. The eclectic menu includes everything from classics such as chocolatey Sacher-Torte to plainer fare including beans on toast. Urban hipsters will feel right at home at Café 4/1, which ticks all the boxes from quirky interiors to tea infusions and cold drinks served in mason jars. The meat-free menu includes a range of treats from Indian classics to wood-fired pizzas. Tropical nights are made for rooftop soirees, which is why cities like Bangkok have developed a lively high-rise scene. Kolkata hasn’t yet embraced the art of rooftop drinking but it does have one fabulous al fresco option, the lovely Blue & Beyond, with its potted palms and its views over bustling New Market.
↖ Customers and traders at the flower market, tucked beneath the Howrah Bridge. ↑ A man weaves through the crowd with marigolds. ↗ Crowd enjoying the Hindu Durga Puja festival. ↘ The sun setting on Victorial Memorial.
See
Kolkata’s most unmissable sight is its sprawling flower market, tucked beneath the Howrah Bridge. Hindu gods look particularly favourably on offerings of flowers, and the market buzzes from early morning until late at night with wholesalers auctioning off huge consignments of roses and lotuses, as well as resellers threading wreaths of marigolds or jasmine at astonishing speeds. You will find something eyecatching in every room of the Marble Palace, the city’s grandest, and most eccentric, mansion. There are intricately laid mosaic floors and Rubens canvases,
Photos (from lef t to right): Travel Wild/iStock; RNMitra/iStock; Aroy Barman/iStock
Kolkata’s most famous eatery has no tablecloths and no fine china, and you will be expected to drink your soft drink from the bottle. Still, a meal at Nizam’s will be a highlight of your stay, especially if you order the egg and chicken kathi roll. This no-frills eatery in New Market has been serving up this street food favourite for almost a hundred years and remains the city’s don’t-miss dining experience. We don’t blame the good folk at 6 Ballygunge Place for using their street address as the name of the restaurant; they couldn’t have foreseen that their take on Bengali classics would become so popular that they would have to open more branches across town, causing just a little locational confusion. Keep it simple and head to the original at 6 Ballygunge Place at 6 Ballygunge Place to enjoy traditional Bengali dishes. The luchi fritters with eggplant and chickpea are incredibly more-ish. Whoever said Indian sweets are an acquired taste has never tried sandesh. This fudge-like sweet is a Bengali classic and the best place to try it is at one of the city’s oldest sweet shops. There is always a queue at Girish Chandra Dey and Nakur Chandra Nandy; while you wait, watch them make the sweets on the premises. I recommend the pistachio and chocolate flavours.
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and Hindu design elements. Don’t just admire it from the outside; if anything, the interiors are even more dazzling.
Neighbourhoods
chandeliers hung in neat rows and lashings of marble – more than 100 different types. The slightly ramshackle air just adds to the experience. Finally, don’t miss the modern counterpart to the Taj Mahal: an elegantly proportioned monument made of white marble that dominates the skyline. Commissioned by Lord Curzon to commemorate the death of Queen Victoria, the extraordinary Victoria Memorial pays tribute to India’s diverse culture, featuring both Islamic
India’s most impressive collection of colonial architecture is found in the streets surrounding Dalhousie Square, where you will find glorious buildings including the General Post Office and the remarkable Writers Building. Keep an eye out for the street food stalls dishing up cheap meals and the clerks setting up shop outside the courthouse, preparing documents for petitioners on their vintage typewriters. Architecture fans will want to take a stroll through the streets of South Kolkata, home to a surprising number of art deco buildings. Almost every house has at least one eye-catching element, from porthole-style windows and semicircular balconies to picturesque grilles and gates. When you have had your fill of browsing the buildings, refresh yourself in one of the hip cafes springing up across the neighbourhood. Elsewhere in India, religious statues
“Throw in a lively cultural scene and delicious food and there are plenty of reasons to fall in love with the City of Joy.”
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are carved of stone. In Kolkata, which is built on marshlands, they have developed a unique alternative: building frames of straw that are covered with clay. A stroll through the potters’ colony of Kumartuli in North Kolkata gives an insight not just into this unusual technique, but also introduces you to some of the many colourful Hindu deities worshipped by locals.
Shop
Love beautiful handicrafts? Then head to one of the Biswa Bengal outlets scattered across town. An initiative of the Bengal government, these shops stock the work of Bengali master craftsmen, including gorgeous fabrics made with traditional Kantha embroidery. Hours of work go into every piece; expect them to be priced accordingly. Books, books, and more books is what you’ll find at College Street. This is the largest second-hand book market in the world, and haggling is encouraged. Some of Kolkata’s oldest bookstores and publishing houses are found in the same neighbourhood. Merchants don’t get any more oldschool than the venerable Mahabodhi Tea House. Wooden chests are filled with tea sourced from carefully-chosen tea gardens across Darjeeling and Assam, including delicate first flush tea. Fancy a custom brew? The in-house tea blenders are masters of their art.
Stay
Tucked discreetly into the top floors of an office building, the nine-room Glenburn Penthouse is a sophisticated haven with one of the best locations in town. Breakfast and afternoon tea are served on the terrace overlooking the Victoria Memorial, while the rooftop pool is an absolute stunner. The hotel’s walking tours are also highly recommended. The Oberoi Grand has been welcoming visitors for more than 130 years and it remains one of the city’s most opulent hotels, with its marble floors and polished brass fittings. Expect superior service and an impressive range of restaurants and bars.
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DREAM DESTINATION
Himalayan high
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lready this morning we have passed rows of brightlycoloured prayer flags fluttering in the breeze, lush fields of cardamom, and ancient Hindu shrines almost hidden in the forest. We have walked through sunlit valleys and soaring forests, accompanied part of the way by a friendly local dog who loped ahead on the steep slopes and waited for us at the top, perhaps wondering what was taking us so long. Nothing that we have seen, however, compares with the view that awaits when we stop for our midday meal. Sonam, who is in charge of lunch, has set up a table and chairs overlooking an exquisite Alpine panorama: a picturesque valley protected by a series of mountain ridges, each one rising slightly higher and darker than the one in front. It’s an image just made for Instagram, but the vista is not the only eye candy on offer here. The spread on the dining table looks pretty good, too. As ever, Sonam has furnished us with a feast, which today includes caramelised onion and beetroot tart, green salad and vegetable rolls. However, my guide Pujan is not happy. Something is missing. He gazes across the hills with a frown on his face. “You should be able to see Kanchenjunga,” he says.
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The snow-clad slopes of the third highest-peak in the world are supposed to provide the most dramatic feature of our lunchtime view. Today, however, an unseasonal haze hides the mountain from view. But I’m not going to let such a little detail spoil what is otherwise turning out to be close to a perfect day. We are on the second day of our Shakti Himalaya hike through Sikkim, a scenic section of the Indian Himalaya wedged in between Nepal and Bhutan. Apart from the spectacular scenery, what makes this hike memorable is how non-strenuous it is. No need for
heavy boots and backpacks; the gentle trails we are following require nothing sturdier than a good quality walking shoe. Shakti Himalaya trips, I have quickly learned, reimagine hiking in remote places as luxury experiences. Founder Jamshyd Sethna says that he wants his clients to experience the idyllic Himalayan landscapes he explored in his youth, while still enjoying all the creature comforts that today’s traveller takes for granted. His most brilliant stroke was to transform typical village houses into cosy guest retreats, complete with ensuite bathrooms, woodfired stoves, and king beds warmed with hot water bottles. You sleep in a different house each night, walking from one village to the next. Each house is all yours; you never have to share your lodging with strangers. Some people travel with their families, the experience is equally popular with couples and even singles. Whether you are travelling in a gang or flying solo, there is a full team looking after your meals, your transfers (should you get tired, the car will meet you and take you to your lodgings) and your accommodation. The walks are tailored to each guest’s abilities and all arrangements are flexible. If you’d rather spend a day doing a cooking class with chef Tika, while your partner goes hiking –
Photos: Shakti Himalaya
Take your creature comforts with you on this stunning hike in the Indian highlands. UTE JUNKER writes.
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no problem. Personally, I’m not going to miss a moment of these walks. I’m loving the fact that there is always something different to look at, from rhododendron trees laden with heavy blossoms to tiny wild orchids, from rushing mountain rivers to tidy villages where every porch is covered with potted flowers. Although every day is different, each one starts the same way: with freshlybrewed coffee delivered to my door. A cooked breakfast follows, before we head out for our walk, knowing that, at the end of the day, a delicious dinner awaits. One of the joys of these hikes is the chance to meet the locals along the way. Shakti’s guides all come from the region. Pujan seems to know everyone that we cross paths with. At one village, Pujan interprets as I chat with a 69-yearold grandmother, who tells me in detail about her eight children and about the magnificent traditional jewellery she is wearing. (Pujan later tells me that, according to tradition, she should have stopped wearing her chunky necklace, a gift from her husband, after he died. This feisty lady scorns that tradition. She’s got it, and she’s flaunting it.) My most unexpected encounter, however, comes one night, when I am woken by the sound of loud singing. Sleepily, I presume that a villager has had a few too many and is making his way home. I’m impressed by the quality of his melodious singing, and a little confused by the fact that he seems to have a horn-playing friend with him, but I soon fall back to sleep. When I ask about it in the morning, I’m told that the late-night visitor was in fact a shaman who works his way through the area by night, blessing each house to keep it safe from evil spirits. Now that’s full-service touring. CHECKLIST: The all-inclusive fivenight Shakti Sikkim Village Walk starts at US$4868 per person, which includes all activities, English-speaking guide, private chef, support guide and porters as well as transfers between Bagdogra Airport or Darjeeling. Available October to late April. See shaktihimalaya.com
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L AWA S I A
↘ The mass street protests in Hong Kong, against the extradition bill, have resulted in vandalism of private and public properties.
LAWASIA advocacy round-up LAWASIA regularly issues statements on subjects of concern within the region. The following is a round-up of recently-issued statements, which are all available at lawasia.asn.au/resources-publications/advocacydocuments. The information contained in these statements is accurate as at the date of issue.
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↘ The mass street protests in Hong Kong, against the extradition bill, has resulted in vandalism of private and public properties.
LAWASIA advocacy round-up LAWASIA regularly issues statements on subjects of concern within the region. The following is a round-up of recently-issued statements, which are all available at lawasia.asn.au/resources-publications/advocacydocuments. The information contained in these statements is accurate as at the date of issue.
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“Continued violence by any party would serve to undermine the rule of law, hijack the voices of peaceful protestors and disenfranchise the rights of the peoples of Hong Kong.�
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Photos: Studio Incendo/Flickr
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STATEMENT
Concern about Hong Kong violence
Statement on the continuing violence and damage to the rule of law and administration of justice.
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AWASIA, the law association for Asia and the Pacific, has as one of its objectives the promotion of the administration of justice, the protection of human rights and the maintenance of the rule of law within Asia and the Pacific region. It is comprised of the peak or predominant bar associations, law societies and law organisations in the various jurisdictions within the region. LAWASIA views with grave concern the recent events in Hong Kong. There have been in the recent weeks mass street protests in Hong Kong against an extradition bill, namely the “Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill” proposed by the government of Hong Kong. The mass protests against the extradition bill resulted in the government suspending and then shelving the tabling of the Bill. With continuing street protests and demands for the government to withdraw the Bill, the government subsequently declared that the extradition Bill is “dead”. It is reported that protestors insist, among other demands, that the extradition bill be withdrawn.* The rights to freedom of expression, speech and peaceful assembly are fundamental human rights, and are foundations of civilised society. Whilst the large majority of protestors are reported to have exercised their rights to peacefully protest and
demonstrate in public, there have been reports of elements in various parts of Hong Kong resorting to violence such as vandalism of private and public properties, as well as the use of rods and projectiles such as bricks and metal objects. It is reported that such violence is escalating and spreading to different parts of Hong Kong. The authorities have a duty to facilitate peaceful public assemblies, demonstrations and protests, and a duty to ensure the safety of peaceful protestors and civilians, as well as to prevent damage to property. In doing so, there have been wide reports or allegations of excessive and gratuitous use of force being employed by the authorities in some instances against protestors, journalists and other civilians. In the most recent incidents over the weekend of 3rd August 2019, it is reported that some quarters of the protestors and the police traded petrol bombs and tear gas. LAWASIA urges all parties to exercise extreme restraint, to respect the rule of law and to cease the cycle of violence. The biggest collateral victims of such violence if it were to continue unabated would be the peaceful people of Hong Kong, the administration of justice and the rule of law in Hong Kong. LAWASIA urges all parties to conduct themselves responsibly and to act immediately to diffuse the situation, de-escalate tensions, avoid further violence, and promote confidence
in and respect for the law through peaceful means. In the interests of the administration of justice and the rule of law, there should be a resolution of the contending allegations of violence by both sides of the divide. In this regard, and with a view to restoring normalcy and peace, and to promoting confidence in the rule of law in Hong Kong, LAWASIA urges the government of Hong Kong to consider the efficacy of immediately establishing an independent inquiry, whether pursuant to the Commissions of Inquiry Ordinance (Cap 86) or other suitable form of inquiry, to inquire into the events, incidences and allegations of violence; identify and address causes, issues and concerns pertaining and giving rise to the current situation and events; reconcile differences, disputes and conflicts; and make appropriate recommendations to the government. Continued violence by any party would serve to undermine the rule of law, hijack the voices of peaceful protestors and disenfranchise the rights of the peoples of Hong Kong. Much could be lost through unabated conflict and violence; much would be gained with good sense, good faith, the ascertainment of truth and re-conciliation, and the maintenance of the primacy of the rule of law. Statement issued on 7 August 2019 * Editor's note: Chief Executive Carrie Lam announced the formal withdrawal of the extradition Bill on 4 September 2019.
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← The 29th Sultan of Brunei-Darussalam Hassanal Bolkiah
STATEMENT
Concern about Brunei laws Statement issued on the Syariah penal code in Brunei.
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AWASIA expresses deep concern over the elements of the Syariah Penal Code introduced by the Government of Brunei Darussalam which are in violation of international human rights standards. LAWASIA’s objectives include the promotion of “the administration of justice, the protection of human rights and the maintenance of the rule of law within the [Asia and the Pacific] Region”. In pursuit of the objectives, LAWASIA Council resolved to “call on governments in the ESCAP region which currently retain the death penalty to review their respective policies on capital punishment.” LAWASIA notes that the Syariah Penal Code, which was introduced in 2013 via the Syariah Penal Code Order, 2013 and being fully implemented as from 3rd April 2019, inter alia stipulates the death penalty for offences of rape, adultery, sodomy, extramarital sexual relations, robbery, insults of the Prophet Muhammad, and amputation as the maximum penalty for the offence of theft, and other offences.
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LAWASIA draws attention to the rights guaranteed by Article 3, Article 5 and Article 9 of the Universal Declaration of Human Rights, 1948 (UDHR) as well as by Article 7 and Article 26 of the International Covenant on Civil and Political Rights, 1966 (ICCPR). LAWASIA also notes that the nation of Brunei Darussalam became a signatory to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984 (CAT) on 22nd September 2015. LAWASIA further notes that Brunei Darussalam has been abolitionist in practice through a de facto moratorium on the execution of the death penalty in cases under the common law. LAWASIA commends the stated intention, expressed in a speech made by His Majesty, the Sultan and Yang Di Pertuan of Brunei Darussalam on 5th May 2019, to ratify the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984, and for the country to apply its de facto moratorium on the death penalty to cases under the
Syariah Penal Code. LAWASIA however expresses deep concern over the potential for the application of some offences and penalties under the Syariah Penal Code which could violate the inherent rights and dignity of the human person, recognised in the Convention. LAWASIA supports and adopts the statement of the UN High Commissioner for Human Rights issued on 1st April 2019 with respect to the Syariah Penal Code, stating: “Human rights and faith are not opposing forces – indeed, it is human interpretation that creates tensions. It is vital that the Government, religious authorities and a wide range of civil society actors work jointly to uphold human dignity and equality for all.” LAWASIA emphasises ‘The Beirut Declaration’ and its 18 commitments on “Faith for Rights” adopted on 28-29 March 2017. LAWASIA reiterates the spirit of the 18 commitments to monitor, revisit and reform interpretations or religious views that manifestly conflict with universal human rights norms and standards. LAWASIA applauds the exemplary courage displayed by rights activists in Brunei and across the globe for voicing their critique of aspects of the Syariah Penal Code. LAWASIA urges the Government of Brunei Darussalam to take concrete steps to ratifying the CAT, to enact the de facto moratorium on the death penalty into law, and to repeal laws providing for amputation of limbs. LAWASIA calls on the authorities in Brunei Darussalam to withdraw the implementation of all laws which violate international human rights standards, including those which promote the discrimination of vulnerable groups. LAWASIA urges the government of Brunei Darussalam to ensure that any action taken by the authorities concerned is in due compliance of the country’s legal obligations under international human rights laws. Statement issued on 7 June 2019
Photos: Kremlin.ru
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STATEMENT
Serious concern over reinstatement of death penalty Statement of concern on the revival of the death penalty by Sri Lanka and the Philippines.
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AWASIA notes with deep concern a recent increase in the use of the death penalty for drug related offences, within the Asia Pacific region, which it considers to be a violation of international human rights law and standards. LAWASIA takes notice of the Government of Sri Lanka’s recent selection of four persons, who were convicted of drug-related crimes, for imminent execution, and recent reports of the President of the Republic of the Philippines indicating, in his annual State of the Nation address, that he would take steps to re-instate the death penalty for drug-related offences. LAWASIA find these developments deeply concerning. Both Sri Lanka, which has been abolitionist in practice for 43 years, and the Philippines, which has been abolitionist for 13 years, are obligated under human rights law not to reinstate the death penalty. Such actions would also run counter to the global trend whereby an increasing number of countries are abolishing the death penalty. LAWASIA’s objectives include the promotion of “the administration of justice, the protection of human rights and the maintenance of the rule of law within the [Asia and the Pacific] Region”. In pursuit of the objectives, in 2018, the LAWASIA Council resolved to “call on governments in the ESCAP region which currently retain the death penalty to review their respective policies on capital punishment.” LAWASIA notes that Sri Lanka has
↑ President of Sri Lanka Maithripala Sirisena
been a signatory to the International Covenant on Civil and Political Rights, 1966 (ICCPR) since 1980, and the Philippines since 1986, and draws attention to Article 6, Article 7 and Article 26 of the ICCPR; as well as the rights guaranteed by Article 3, Article 5, and Article 9 of the Universal Declaration of Human Rights, 1948 (UDHR). LAWASIA notes that the Philippines ratified the Second Optional Protocol to the ICCPR in 2007, under which it is obligated to abolish the death penalty. Under international human rights law, a State that has ratified or acceded to the Second Optional Protocol to the ICCPR, is not permitted to withdraw from it. LAWASIA also notes that Sri Lanka became a signatory to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, 1984 (CAT) in 1992, and has been abolitionist in practice since 1976. The Philippines ratified the CAT in 1986. LAWASIA believes that imposing the death penalty for drug related crimes would violate both countries’ obligations under Article 6(2) of the ICCPR, which holds that the death penalty may only be imposed for the ‘most serious crimes’. In this regard, LAWASIA supports and adopts the interpretation of human rights law by the UN, as seen in U.N. General Comment No. 36, which states that drug offences can never serve as the basis for the imposition of the death penalty, as also the statement of the UN Office on Drugs and Crime, which attests to the unsuitability of imposing the death penalty for drug related crimes. LAWASIA also draws attention to the lack of transparency in the method by which the four Sri Lankan individuals were selected, amidst hundreds who have been convicted for capital offences, 48 of whom have been convicted on drug related charges. This lack of transparency raises concerns of arbitrariness in the imposition of this sentence, and runs counter to Sri Lanka’s obligations to ensure the right to equality before the law, enshrined in Article 14 of the ICCPR, and to only apply the death penalty in a non-arbitrary manner, under Article 6 of the ICCPR. LAWASIA urges the government of Sri Lanka to rescind the recent death penalty orders, and to refrain from taking any further steps to reinstitute the death penalty. LAWASIA also urges the government of the Philippines to desist from taking steps to reinstate the death penalty, whether for drug offences or any other crimes. LAWASIA calls on the governments of Sri Lanka and the Philippines to ensure that any action taken by the authorities concerned is in due compliance of the country’s legal obligations under international human rights laws and principles. Statement issued on 31 July 2019
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STATEMENT
Statement of concern on harsh sentence issued against Iranian human rights lawyer Nasrin Sotoudeh.
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AWASIA, the law association for Asia and the Pacific, expresses deep concern over the unduly harsh sentence of 38 years in prison and 148 lashes handed out earlier this year by the court in Iran to the prominent Iranian human rights lawyer, Ms. Nasrin Sotoudeh, who is recognised for her peaceful work defending women’s rights. LAWASIA notes that Ms. Sotoudeh is an internationally acclaimed human
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rights and women’s rights lawyer. In 2012, she was awarded the Sakharov Prize for Freedom of Thought by the European Parliament, while in custody in another case. LAWASIA also notes that Ms. Sotoudeh, aged 55 years, is reported to have been arrested in June 2018; charged with seven crimes; subsequently subjected to a secret trial, in which she was denied access to a lawyer of her own choosing; and awarded the maximum
sentence for all seven offences she was charged with. She was also sentenced to additional five-years imprisonment for a case in 2016 in which she was convicted in absentia. LAWASIA takes strong issue with the prosecution, trial, and the unduly harsh and disproportionate sentence meted out to Ms. Sotoudeh, as violative of international human rights laws and standards on fair trials and on the prevention of torture. LAWASIA echoes
Photos: Ozbalci/iStock; Arash Ashourinia/Wikimedia Commons
Iranian lawyer convicted
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the concerns raised by UN experts that the sentence awarded to Ms. Sotoudeh is “emblematic of an increase in the harassment, arrest and detention of human rights lawyers in Iran in recent months.” LAWASIA draws attention to the rights guaranteed in the Universal Declaration of Human Rights 1948 (UDHR), which include the right to life, liberty and security under Article 3, the right against torture under Article 5, the right to a fair trial under Article 9, and the right of freedom of expression under Article 10. LAWASIA notes that the Islamic Republic of Iran ratified the International Covenant on Civil and Political Rights 1966 (ICCPR) on 24th June 1975. The rights guaranteed under this Covenant
“Ms. Sotoudeh is ‘emblematic of an increase in the harassment, arrest and detention of human rights lawyers in Iran in recent months.’”
↖ Iranian human rights lawyer Nasrin Sotoudeh
include the right to life under Article 6, the right against torture under Article 7, the right against arbitrary arrest and the right to a fair trial under Article 9, the right to equality before law under Article 14, and the right to freedom from discrimination under Article 26. LAWASIA considers the rights and duties of members of the legal profession to perform their professional functions towards protecting and promoting the rule of law, administration of justice and human rights, as fundamental to any justice delivery system. LAWASIA draws attention to Article 16 of the United Nations Basic Principles on the Role of Lawyers, which states: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference … and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.” LAWASIA also notes the obligations placed on States under the United Nations Declaration on Human Rights Defenders to guarantee the adequate protection of human rights defenders. Namely, States must ensure, “...the protection by competent authorities of human rights defenders against any violence, threats [or] retaliation... as a consequence of his or her legitimate exercise of the rights referred to in the Declaration [on Human Rights Defenders]”. LAWASIA applauds the exemplary courage displayed by the human rights community in Iran and across the globe condemning the arrest, continuous detention and disproportionate sentence awarded to Ms. Sotoudeh. LAWASIA calls on the authorities in the Islamic Republic of Iran to reverse the sentence issued to Ms. Sotoudeh, and to ensure that the security and safety of legal professionals and human rights defenders in the country is safeguarded. Statement issued on 9 May 2019
UPCOMING EVENTS
2nd LAWASIA Human Rights Conference 7 – 8 March 2020 | Kathmandu, Nepal For more details visit lawasia.asn.au/ conferences-events/current-events
LAWASIA Environmental Law Conference 3 – 4 April 2020 | Denarau, Fiji For more details visit lawasiafiji2020.com
8th Family Law & Children's Rights Conference 19–22 July 2020 | Singapore For more details visit wcflcr2020.com
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“An unjust law is itself a species of violence. Arrest for its breach is more so. Now the law of nonviolence says that violence should be resisted not by counter-violence but by nonviolence. This I do by breaking the law and by peacefully submitting to arrest and imprisonment.” – Mahatma Gandhi, Non-violence in Peace and War 1942–49
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Photos (from top to bottom): Author unknown/Wikimedia Commons; Peter Rühe/Phaidon Press
I N S P I R AT I O N
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LAWASIA Environmental Law Conference in the Pacific
3-4 April 2020 | Denarau, Fiji
In association with
For more details visit
www.lawasiafiji2020.com
Coming soon ... A new way to stay informed. Thought-provoking content from Asia Pacific's leaders in law – when and how you want it.
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