JURIST - Dateline

Wednesday, July 1, 2009

IRAQ: Should Anti-Smoking Laws be a Priority?
9:03 AM ET

Sara Abdullah Hamoudi, Pitt Law LL.M. '08 and JD '12, writes about an experience in her home country of Iraq...

This summer, I returned to Iraq to intern with the Global Justice Project: Iraq, which is run by the University of Utah. The purpose of the project is to provide the Iraqi Council of Representatives (the legislative branch in Iraq) with legal advice and other legal assistance. While working in the northern Kurdish region, I saw many signs stating “NO SMOKING” in three languages (Kurdish, Arabic, and English). However, I was disappointed by the fact that no one paid any attention to any of the signs.

Later, I found out that a 2007 law [text, PDF] passed by the Kurdish regional parliament prohibits smoking in public places such as restaurants, airports, hospitals, governmental offices, and schools and universities. Under this anti-smoking law a simple violation is punishable by a fine of about $10. At first, I thought that the government would enforce the new law and punish violators accordingly. However, when I went to the regional bar association to renew my bar membership, I saw the “No Smoking” sign again and said to myself that people with legal backgrounds will respect the law and the law will probably be enforced here at the bar association. Surprisingly, however, the employee who took care of my paperwork smoked as he reviewed the necessary documents. I could not keep quiet at this clear affront to the law and asked him, “Have you seen the sign above your head on the wall?” The employee very respectfully answered me and said that this rule applies to visitors and clients, not to employees. Although he said this jokingly, he also meant what he said given his conduct.

A few days later, I was reading the daily newspaper al-Sharq al-Awsat in my office in Baghdad’s Green Zone. I noticed an article about efforts by the Iraqi parliament to enact a law – just like the one in Kurdistan – that would ban smoking in public areas and punish those who violate the law. The article included interviews with local people giving their opinions about the proposed law and its effect on them. Some of the interviewees laughed at the proposal, commenting that there are so many other things to fix and pay attention to in order to keep Iraqis healthy. One interviewee said that Iraqis need access to better health care, and medical equipment and necessities, not a ban on smoking, which no one will pay any attention to anyways.

At first, I was disappointed at how the law was being ignored, but reading the paper and seeing the conditions in Baghdad made me think again. One can see why it might be a good step for the Iraqi government to pass an anti-smoking law and think about the safety of the public, specifically those who do not smoke. Yet as the interviewees made clear, there are other more pressing concerns. Iraqis lack many basic necessities that the government should address — most importantly electricity, water and good health care. Moreover, the government can do much more to clean the streets of Baghdad and the Tigris River, which runs through the middle of the city. In a short walk alongside the Tigris, I was disappointed to see part of the river covered with empty bottles. An anti-littering campaign would do much to improve Iraqis’ quality of life.

Perhaps Iraqis are more in need of effective systems of governance addressing their basic needs than they are of an anti-smoking law that will be totally ignored, upsetting the public even more. The Iraqi people, given the challenges of mere survival that they face every day, have not arrived at the stage where caring for someone else’s right regarding smoke exposure can be important to them. The Iraqi government might want to think about the Iraqi community in a more realistic way, rather than pretend that the community lives in such good conditions that a law banning smoking in public areas is the most pressing concern.

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Friday, June 5, 2009

SERBIA: Towards the Rule of Law
11:02 PM ET

Ana Nikodijevic, visiting scholar from the School of Organizational Sciences, University of Belgrade, comments on the ongoing development of human rights law in Serbia...

Although the ethnic conflicts of the 1990s are a distant memory for much of the world, they had massive consequences for Serbia. After a decade of Milosevic's unscrupulous regime and ideology, the country was left with a ravaged economy and culture.

Serbia and its citizens will require a long time to heal from the numerous scars and wounds caused by wars, unemployment, low wages, international isolation and unprecedented hyperinflation. It has been almost 15 years since the end of the wars in Bosnia and Herzegovina and Croatia, and 10 years since the conflict in Kosovo, but Serbia has not yet provided shelter for all its refugees. According to data from various non-governmental organizations (NGOs), there are still 6,000 people living in collective centers without access to housing or employment. I am among the lucky people who did not actually experience the war, but I have family members who did. One of my uncles came from Croatia and had to start over from scratch. He found a job, got married, bought a house and had a son. Thanks to his parents' efforts, my nephew started taking English and tennis lessons when he was only 3 years old. This gives me hope for all the other people who are not doing well or could not reconnect with their former lives again.

Serbian rule of law must continue to develop so that it can adeptly address the vital human rights issues facing refugees and other minorities. The 2006 Constitution defines Serbia as a country made up of the Serbian people and all of the citizens who live in it. It is founded on the rule of law and social justice principles of civil democracy, human and minority rights and freedoms and based on European principles and values. Furthermore, it says the government's role is to respect ethnic, cultural, linguistic and religious differences among its citizens. However, it is not unusual to find discrepancies between words on paper and real-life practices. The rule of law is still developing and the government continues to make improvements to it. Throughout the previous decade, I also saw several NGOs develop and become active in this field by calling on the new role of civil society in order to solve existing problems.

Although we have seen improvements in Serbian law, I and other citizens living in Serbia today continue to encounter numerous human rights issues on a daily basis including hate speech, discrimination (against refugees, Roma, women, and people with disabilities) and domestic violence. Many of us in Serbia are greatly concerned with the increase in the number of individuals, groups and organizations promoting intolerance, racial hatred and attacks on minorities. There is intolerance towards a number of marginalized social groups based on race, ethnicity, gender or age. The number of neo-Nazi movements and incidents has increased during the last couple of years and some organizations hide their true identities behind the idea of "Serbian Nationalism." Despite the fact that The Ministry for Human and Minority Rights was re-established in 2008, formally increasing the protection afforded disadvantaged social groups, there is little deterrence to discontinue neo-Nazi movements or hate crimes, since legal prosecution is only rarely applied in cases of anti-Semitism.

When discussing discrimination in Serbia, it is unavoidable to discuss the plight of the Roma, 110,000 of whom live in the country. An ethnic minority, Roma are so marginalized and discriminated against that it seems that they can only be seen on the street begging for food in old, torn clothes and usually barefoot, or on public transportation singing and playing musical instruments for money. Most Roma (80%) live in isolated and segregated settlements, and most children (75%) are not enrolled in elementary school.

Without permanent addresses, the Roma people lack the possibility to obtain identity cards and, subsequently, to access health care and social services. In an attempt to solve this problem, Serbia has joined the regional program "Decade of Roma Inclusion 2005-2015" with the objectives of improving the status and social inclusion of the Roma people into Central and Southeastern Europe. The project has thus far succeeded in drafting strategies and action plans in those spheres where Roma are most in jeopardy: education, housing, health care and employment. Hopefully, the implementation of these strategies and plans in Serbia will bring benefits to communities and incite further improvements.

Women, too, continue to face discrimination in Serbia. Although an increasing number of women in our society contribute financially to the family income, their central role is still to run the household and raise children. In most families in Serbia, especially in rural areas, men rarely share domestic responsibilities. Balancing between work and home can be difficult, especially if a woman is a victim of domestic violence. Unfortunately, cases of domestic violence are widespread in the country. Most cases are not reported to the authorities for several reasons: fear of retaliation, distrust of the legal system and inadequate protection for victims. In order for the rule of law to reach its full potential, citizen awareness and demand for equal protection must increase.

Additionally, women are frequently discriminated against in the labor market. Certain jobs are still perceived as men's jobs, and there is an almost visible glass ceiling that keeps women from rising above certain levels in organizations. The Serbian parliament made a positive step towards gender equality with the adoption of a gender quota that at minimum 30% of its members must be female. The quota increased women’s participation in Parliament, but Serbian women will still have to wait for a gender discrimination act or implementation of the U.N. Convention on the Elimination of All Forms of Discrimination against Women.

Furthermore, if a woman has a disability, she easily becomes the victim of double discrimination. Despite passage of the Preventing Discrimination of Persons with Disabilities Act, which went into effect in 2006, individuals with disabilities still have a hard time in Serbia due to poor enforcement of the Act. While studying and then teaching at the School of Organizational Sciences, I noticed that students with disabilities had difficulties when trying to access school premises. Although the school has front access for the disabled, students are very often accompanied by their parents who help them reach inaccessible floors and classrooms to attend lectures and take exams. As a public institution, the school is also obliged by law to employ at least one person with a disability. It has not, however, done so thus far.

Although Serbia still has a lot of work to do in order to fully establish the rule of law, the country has come a long way in the past several years. Even though enforcement must be strengthened, all new acts in the field meet European standards and requirements. Looking at the country today gives me hope that the gap between people's expectations and reality will lessen over time. I also hope that we will succeed in building an unshakable multi-ethnic and multicultural society in which every citizen receives equal treatment and opportunities for achievement.

Sources:

1.Constitution of the Republic of Serbia of 2006: http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.asp?Id=382&t=Z#
2.Report of the Republic of Serbia for the Universal Periodic Review of the UN Council for Human Rights, the Ministry for Human and Minority Rights, Belgrade, 2008: http://www.humanrights.gov.yu/dokumenti/sektor_ljudska/Izvestaj_univerzalni_pregled.pdf
3.Report on the implementation of the European Charter for Regional or Minority Languages, the Ministry for Human and Minority Rights, Belgrade, 2008: http://www.humanrights.gov.yu/dokumenti/Izvestaj-Evropska_povelja%20_3_.pdf

Photo credits: Catherine Picquet

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Friday, May 8, 2009

CAMBODIA: Global Integration Challenges Local Legal Professionals
8:45 AM ET

Guest commentator Vicheka Lay,* a legal consultant in Phnom Penh, Cambodia, reflects on Cambodia's changing legal market...

Cambodian legal practitioners face many new challenges brought on by the nation’s increased participation in regional and global trade, as well as the influx of foreign-owned businesses. Cambodian lawyers must be aware of the latest developments in legal scholarship to understand recent changes in international laws and treaties, whether or not Cambodia is bound by them.

Cambodian lawyers' participation in the global market is limited to some extent by language barriers, but as an attorney in Cambodia, I've observed that Cambodian lawyers are not even able to take advantage of increased global business opportunities in our own country. Although multi-million-dollar joint ventures, corporations, and banking opportunities have been starting up in the Kingdom of Cambodia, their legal services are usually referred to more sophisticated high-profile law firms in Australia, Singapore, Hong Kong, or Malaysia. For example, when Shinhan Bank recently needed assistance on complex legal cases, including a substantial loan for the development and construction of a major mining project, they were referred outside of the Cambodian legal profession to a sophisticated regional firm, Allen Arthur Robinson.

Cambodian law firms and attorneys are viewed as being less-sophisticated and less knowledgeable and are therefore less likely to be trusted. Attorneys often lack a basic understanding of international business, financial operations, and trade, and are therefore unable to address many legal issues and challenges arising in today’s global economy.. Some lawyers struggle with drafting contracts, an area of practice which involves not only legal issues in other nations, but the ability to strategize and assess risks surrounding those legal issues.

There are many skills that have become necessary in today's sophisticated international legal market, and those skills have become necessary in order to fully participate in Cambodian business opportunities as well. To be successful, lawyers have to understand the laws of other jurisdictions and international trade patterns, adapt to a more competitive working environment, and integrate more sophisticated legal tools to more effectively address issues which might arise abroad. In order to make their legal practices sustainable, Cambodian practitioners must continuously enhance their lawyering skills and develop a sophisticated understanding of democratic marketplaces.

It is not an easy task for Cambodian legal professionals to catch up on all these skills. However, to survive in today’s “always-on-the-go” legal market, acquiring sophisticated international lawyering skills is a must.

* The opinions expressed in this article are entirely those of the author and do not reflect the views of any entity with which the author may be affiliated.

Photo credits: Dorothy Miller, University of Wisconsin School of Law, JD 2011

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Friday, April 17, 2009

ISRAEL: A Broad View of Standing
12:50 PM ET

Wendy Doernberg, Pitt Law '11, studied Israeli law at the Hebrew University of Jerusalem and lived in Jerusalem for 6 months...

Symbol of Law flowing from Justice in the Israeli Supreme Court

Unlike the United States, Israel has yet to adopt a formal written constitution. Even some of the laws which form the basis for governmental decisions came into being only relatively recently. I learned while studying in Jerusalem that the lack of a written constitution has had a major impact on judicial decisions, particularly within Israel’s doctrines concerning the right of standing (zchuyat ha’amidah) for petitioners to the Supreme Court. The American right of standing takes into account a limited judiciary, federalism and separation of powers. However, in Israel, this right was expanded to take into account its internal and external pressures.

The Basic Law of Israel concerning the judiciary was not passed until 1984. The Supreme Court can hear issues not within the jurisdiction of other courts that need to be heard for the sake of justice. Even though the Supreme Court has certain enumerated instances of jurisdiction, the Basic Law specifically says that these enumerated instances do not limit the ability to decide other matters.

The Israeli Supreme Court was cautious to expand standing at first. However, even in an early case, Leon v. Gubernik (1949), the Court recognized that the separation of powers “is no longer so rigid and immutable as it was when once formulated by Montesquieu.” In 1988, Ressler v. Minister of Defense represented a departure from a line of conservative case law, and significantly expanded the right of standing. Ressler concerned an attorney’s challenge to Yeshiva students' exemption from mandatory military service. It is particularly interesting because Justice Barak reviewed the difference between the role of the Supreme Court in the United States and that of the Supreme Court in Israel. He explained that while the United States' view of standing grew out of a constitutional provision, Israel’s concept has no statutory anchor. While the US approach aims to maintain governmental legitimacy, Israel's focuses more on individual rights, meaning that petitioners must only show a “reasonable likelihood of prejudice to a legal right.” This right could even include the interest against government corruption that is of “salient constitutional character,” dealing with defects in administrative action or issues directly concerning the rule of law.

This broad view has been applied in a number of Israeli Supreme Court cases which would probably be dismissed for lack of standing in the US Supreme Court. One such case (Shiran) challenged the broadcasting authority because, according to the petitioners, a television special on the history of Zionism did not include enough information about Jews from Arab countries. Another case (Barzilai) raised a direct challenge against the President of Israel’s decision to pardon security officials who had killed suspected terrorists before criminal conviction. In another matter (Shulamit), petitioners argued that they had an interest in the “fortification of the rule of law” and challenged the Minister of Justice’s refusal to extradite a suspected murderer to France in violation of an extradition treaty. Many challenges have been brought against the legality of the security fence and its various sections.

The lack of a formal written constitution has allowed Israel the flexibility to develop a standing doctrine which provides a broad basis for judicial review and intervention. The broad view of standing allows for interference by the judiciary in matters concerning the executive and legislative branches of government and provides a powerful mechanism for Israel to address some of the legal issues that arise from the continuous challenges facing the country. It will be interesting to see if Israel's broad standing doctrine continues to serve it well as it develops over time.

Photo Credits: Wendy Doernberg, Pitt Law '11

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Tuesday, March 31, 2009

PHILIPPINES: Morality and Choice - A Battle for Reproductive Freedoms
9:40 AM ET

JURIST Dateline Editor Kristine Long, Pitt Law '11, lived in the Philippines with her family for 5 years...

Filipino women currently face a reproductive health care battle for the right to obtain contraception. In 2008, a group of legislators drafted House Bill 5043, which is a two-pronged plan to broaden the reproductive rights of Filipinas. First, the bill seeks to inform women about contraception, birth spacing, and safe sexual practices. Secondly, it wants to ensure universal access to reproductive health care and information. The bill has yet to pass, but it represents a serious and significant effort to curtail the government’s attempt to prevent the widespread use of artificial contraception throughout the country.

In February 2000, former mayor of Manila Jose Atienza issued Executive Order 003 (EO), which affirmatively supported natural family planning. The EO sought to establish natural family planning centers to increase support for a pro-life culture. However, in reality this promotion of responsible parenthood as an ideal has become a de facto ban on all forms of artificial contraception.

For almost a decade, most Filipina women in Manila have been unable to obtain contraception. The sweeping effects of the EO are felt by millions of women because Manila is the second most populous city in the Philippines and is bordered by several smaller cities, creating a hub of more than 14 million people. Rural areas are also affected, possibly to an even greater degree.

As a result of the EO, city health centers and hospitals no longer provide contraception in their facilities, and private and nongovernmental organizations (NGOs) have begun shutting down. For those able to purchase condoms or birth control pills, the transactions are done in secret. Health care workers constantly fear being harassed or threatened, and so many of them no longer even attempt to provide information about family planning or safe-sex practices.

The effects of the EO are intensified and perpetuated by the strong conservative sentiment held by most current Filipinos. Almost 81% of the country is Roman Catholic, and morality and politics tend to intertwine. President Gloria Arroyo has utilized the influence of religion to promote her conservate platform, which was also heavily funded by the Catholic Church.

For many Westerners, this state of affairs seems unbelievable. In fact, many Western organizations such as USAID and women’s rights groups vehemently oppose the EO as a violation of human rights. Women’s reproductive rights are still a hotly contested topic in the United States, but contraception has been legally accepted and is considered a normal part of the general culture. Following the decision of Griswold v. Connecticut 44 years ago, the use of contraceptives became a protected fundamental privacy right in the US.

However, even in the West, the concept of choice is often tied to a woman’s ability to pay, and artificial contraception methods are sometimes only available to those with the necessary resources. In fact, relatively recent US legislation has impeded women's reproductive choice by barring the use of Medicaid funds to pay for reproductive health care. Likewise, economic issues certainly adversely impact lower-income Filipina women’s access to birth control, even beyond the EO's influence.

Passing House Bill 5043 or other similar legislation will involve a lengthy struggle. The Catholic Church has openly opposed the bill, stating that it tends to promote abortion and pre-marital sexual relations. Women within the country are torn between their faith and their desire to avoid the negative effects brought on by lack of access to birth control. Advocacy for reproductive choice is stifled because the millions of people who adhere to their Catholic faith feel that such a bold move towards sexual freedom goes against the morality of the country. However, a recent report called “Imposing Misery” portrays the lives of such women, who face economic, health, and personal struggles because of the many children they have been forced to bear.

My mother, the oldest of seven siblings, grew up in an environment where contraception was not widely accepted or even available. Living in a rural suburb of Manila, few knew anything about family planning, and having many children was the norm. It was only by going to college and eventually moving to the US that my mother was able to learn that women had other options.

It is overly simplistic to paint Filipino ways as oppressive, because there is also a strong Western sentiment in the country, enhanced by pop culture. There have long been strong cultural ties between the US and the Philippines, and the Philippines were a US commonwealth until 1946. Growing up half-American and half-Filipina, I experienced how closely the two cultures prize the same ideals. Nonetheless, the Philippines also have a strong Spanish and Catholic cultural heritage left over from colonial times. The Philippines is therefore a country that is progressive in many ways, but there are still millions of people who champion traditional Church values. Such an affinity for religion promotes the country’s ideals of family, morality, and conservatism. However, the same moral concerns keep citizens from fully embracing a more progressive view towards women’s sexuality.

At this time, House Bill 5043 is still being debated in the House of Representatives, but the mere fact that it exists shows how far legislators have come in garnering support for reproductive rights. In order for the bill to be successful, legislators must balance conservative moral ideology while still promoting progressive freedoms. Such a task is daunting. Yet, it is imperative for Filipinas to understand that they are not forsaking their faith by seeking birth control. Filipinas’ pursuit for reproductive equality is similar to the struggle of many other women, and in order for reproductive freedom to become a worldwide reality, the ideology that frames progressive women as going against morality and familial duty must change.

Photo Credits: Thomas Carpenter, Pitt Law '11

Sources:

"Imposing Misery: The Impact of Manila's Contraception Ban on Women and Families," The Center for Reproductive Rights, June 1, 2009. Retrieved from: http://reproductiverights.org/en/document/imposing-misery-the-impact-of-manilas-contraception-ban-on-women-and-families

House Bill No. 5043 (Reproductive Health and Population Development Act of 2008). Retrieved from: http://jlp-law.com/blog/full-text-of-house-bill-no-5043-reproductive-health-and-population-development-act-of-2008/

"Philippines Family Planning Bill Challenges Catholic Influence on Reproductive Health," Medical News Today, Mar 12, 2009. Retrieved from: http://www.medicalnewstoday.com/articles/141973.php

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Wednesday, March 11, 2009

SINGAPORE: Solving Instability with One-Party Democracy
1:10 PM ET

JURIST Staffer Eric Linge, Pitt Law '10, studied for a year in Singapore...

In the Western media, the tiny island nation of Singapore is typecast as conservative. In January, a man and woman attracted the attention of the international news media for taking a stroll through a busy pedestrian street in Singapore wearing nothing but flip-flops. The stroll ended in arrest. Invariably, foreign news sources remarked how shocking such an incident is in a country which has become famous for its strict criminal laws (e.g. it is illegal to sell chewing gum here) and harsh punishments. A common form of punishment is caning, where Singaporean men (and in 1994 an 18 year-old American named Michael Fay) are struck numerous times with a bamboo pole.

Singapore’s supposed conservatism and stern criminal justice system are part of its “soft-authoritarian” constitutional model where some personal and political freedoms are traded for economic growth and a high standard of living. The flip side of Singapore’s stern criminal justice is a country where crime is remarkably low and neighborhoods feel safe. When Singapore makes the foreign news, its transparent business laws, clean streets, rapid economic growth, and modern and high-tech appearance are often mentioned. Various regulations maintain this modern appearance – for example, cars of a certain age will not receive a license to be driven on the roads.

More in-depth Western publications might mention Singapore’s lack of “liberal democracy.” Singapore’s government ministers – always from the People’s Action Party (PAP) – will readily admit that there is no “Western-style” democracy. They explain that Singapore is not a Western nation, but rather an Asian nation, whose residents hold Asian values which may not necessarily align with Western thought. Singapore is a “Neo-Confucian” state, where the parents are the leaders and know what is best for their children, the citizenry. The PAP “manages” democracy with a seemingly permanent and overwhelming parliamentary majority and an emasculated political opposition. This governing style is called soft-authoritarianism.

For a Westerner, soft-authoritarianism may sound distasteful, but an engaged Singaporean will likely reply that outsiders do not know the struggles of that country. Under the rule of the PAP, Singapore evolved from a newly independent nation marred by homelessness and slums to the rich nation of today in four decades. There are more Ferraris and Lamborghinis on the streets than anywhere in the United States, except perhaps Beverly Hills.

Strong, centralized leadership is also supported because tiny Singapore (population 4.5 million) cannot help but perceive its vulnerability. With no agricultural hinterland and negligible natural resources, this densely populated island nation is completely dependent on imports, including water and food. Before World War II, Singapore was a British colony that was supposedly an impenetrable fortress. However, during the war it was quickly and easily overrun and occupied by the Japanese. The nation faced further instability when it won its independence from Britain, along with the other Malay colonies in 1963. Two years later, Singapore was summarily ejected from the unhappy Malay federation and unwillingly forced into independence from Malaysia. The federation was unstable at its base because of ethnic friction: Singapore's population is largely Chinese, while Malaysia's majority is made up of Malay.

The most interesting thing about Singapore’s modern soft-authoritarianism is that it is all done legally within a constitutional framework. Government corruption is near non-existent and it is consistently ranked as one of the top five least-corrupt countries in the world. The government is a meritocracy, and ministers earn salaries that are very high (so high, they don’t need to steal). The judiciary disposes of cases with speed and efficiency, using night courts and information technology to improve accessibility. However, judges are paid handsomely and generally lack tenure, thus relying on the executive for reappointment. There is a notable pro-government bias in the judiciary, and there is only limited judicial review of the decisions made by government ministers. When the maintenance of public order demands, laws authorize the curtailment of individual liberties. Freedom of speech, for instance, is guaranteed in the constitution but is highly restricted through both formal and informal means. Meanwhile, the PAP is almost always able to win elections through favorable electoral laws and gerrymandering. Since independence, the PAP has never held less than a powerful majority in parliament.

Singapore’s older residents still remember the times of poverty and uncertainty. It is possible that younger Singaporeans who have known only a nation of first-world living standards may someday successfully agitate for liberal democracy. For now, however, the consensus remains that portions of freedom can be traded for a comfortable life. And honestly, even for this American, life in Singapore is not so bad at all.

Photo Credits: Christine Chen (photos of the Esplanade and Merlion Fountain), Eric Linge (photo of Raffles Hotel)

Sources:

Li-ann Thio, “Rule of Law Within a Non-Liberal ‘Communitarian Democracy: The Singapore Experience,” in ed. Randall Peerenboom, Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France, and the U.S. 183 (London, 2004).

Li-ann Thio, “Taking Rights Seriously? Human Rights Law in Singapore,” in eds. Randall Peerenboom, Carole Peterson, and Albert H.Y. Chen, Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France, and the United States 158 (New York, 2005).

Naked couple surprises diners in stroll, Reuters, January 28, 2009

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Friday, March 6, 2009

CAMBODIA: Khmer Rouge Trials Set Precedent for Justice
3:13 PM ET

Guest commentator Vicheka Lay, a legal consultant in Phnom Penh, Cambodia, reflects on the Khmer Rouge trials...

In February, the Extraordinary Chambers in the Courts of Cambodia (ECCC) began the trial of one of the Khmer Rouge’s former leaders, Kaing Guek Eav, also known as "Duch". Guek Eav allegedly committed a large number of human rights violations in Cambodia from 1975 to 1979 and is the first Khmer Rouge leader to be tried by the ECCC.

Allegations of corruption and underfunding have plagued the ECCC since it was instituted, causing many people to question whether the ECCC trials will actually bring justice for the Cambodian people. Consequently, two public opinions have arisen. One group endorses the Khmer Rouge trials, because they believe that at least some justice may be served. Another group would like to eliminate the trials, largely due to the belief that the Cambodian people will never actually benefit from them. Since the court is just in its infancy, it is hard to speculate to what extent the Cambodian people will benefit from the trials. However, the process has at least unveiled the faces of leaders accused of committing the atrocities, and will attempt to hold them accountable for any international human rights laws they have violated.

Duch faces numerous charges, including homicide and torture under Cambodian criminal law, crimes against humanity, and breaches of the Geneva Conventions. He will almost certainly face criminal penalties. By punishing violations of international law, the ECCC may achieve several goals. First, enforcing penalties will raise public awareness of those laws. Second, penalties will serve as a deterrent to people who might consider violating those laws in the future. Ultimately, the ECCC will create a trend toward penalizing international law violations, ensuring that justice will prevail in the future.

It is true that the Cambodian people may not receive the justice they desire from the ECCC trials at present. However, perhaps the type of justice people seek is too narrowly defined. Many Cambodians focus on punitive justice in hopes of righting various wrongs committed in the past. These people are dissatisfied by the ECCC trials, which cannot fully redress past injustices allegedly committed by the Khmer Rouge.

Although the ECCC trials are certainly punitive, it is more important that they will also set a precedent. Thus, the major benefit of the ECCC trials to the Cambodian people may not be justice for the past, but rather the establishment of a permanent and timeless justice for the future.

The opinions expressed in this article are entirely those of the author and do not reflect the views of any entity with which the author may be affiliated.

Photo credit: Dorothy Miller, University of Wisconsin School of Law, JD 2011.

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Wednesday, February 25, 2009

GUANTANAMO: Challenge and Change Require EU Response
3:30 PM ET

Guest commentator Mike McNerney, Washington College of Law American University JD '09, is a former US Air Force officer who recently visited the US base at Guantanamo Bay...

European Union (EU) nations have been intensely debating whether to accept convicted and released Guantanamo detainees. Some countries have agreed to do so, while others refuse, and the situation is fraught with legal complexities because people can freely travel among EU nations. The pressure to make a legal determination is mounting as the United States begins the process of closing Guantanamo while struggling with the legal implications of an unstable military commission system.

Recently, the National Institute of Military Justice (NIMJ) sent me to observe the military commissions at Guantanamo Bay. I joined the military in response to 9/11 and the NIMJ felt that my position as a law student and experience as a veteran would give me a unique perspective on the military commissions process.

After seeing the commissions in action, I felt firsthand what I had previously understood on a purely intellectual level. It's a powerful experience to see these commissions in person and sit in the same room with the men who changed so many American lives. Everyone in the courtroom overflows with emotion. Some rage at the unapologetic viciousness of the detainees, while some direct their frustration at the inadequacy of the commissions themselves. The Obama Administration should take care to fix the commissions in order to assuage this anger.

As Obama’s top officials begin the difficult task of closing Guantanamo and reforming the military tribunal system, they should remain cognizant of four competing imperatives, each of which must be given its proper place if America is to regain its standing in the world while providing for the safety of its citizens. The first of these issues is national security, which takes into consideration the protection of Americans at home and abroad. The second is justice, which promises that the guilty will be tried and punished through a reasonable and impartial legal process. The third is expediency, which is a necessity in bringing closure to both the victims and the perpetrators of terrorist acts. The last is a stable legal structure built upon rules understood and adhered to by all parties. The Bush Administration, rather than considering the necessity of each of these four elements, decided to focus almost exclusively on security and expediency. Unfortunately, the Bush Administration's sincere desire to protect has not served us well and seems to have glossed over the imperative elements of justice and legal stability.

In the wake of 9/11, the Bush Administration’s desire to convict detainees quickly at the expense of establishing a durable legal structure yielded a disorganized system that has frequently broken down. Lawyers are forced to argue based on unclear points of law and judges have almost no precedent to guide them in making their decisions. Some of the conspirators in the 9/11 case were captured in 2002 and still aren't even at the point where they can enter pleas.

Additionally, legalistic reasoning that allowed for detainee abuse outraged the nation and undermined the legitimacy of proceedings. Now, in a dramatic overcompensation, military officials are so afraid of allegations of mistreatment that they fret over whether the seats on the detainees' buses have soft enough cushions. Allegations of torture have also harmed our position in the world as a just and humane society. When we lose our moral authority, we lose our ability to prevent atrocities in the rest of the world, which makes us less secure as a nation.

The Guantanamo detainees can see these deficiencies and exploit them. They abuse the translators and make endless requests for irrelevant paperwork. They follow current events and know precisely what to say to get their message into the media. They also refuse to cooperate with their lawyers and know exactly how far to push the judge. This stands in stark contrast to the parallel habeas corpus proceedings underway in federal court, where some have been very cooperative.

The end result is often sad political theater rather than a legitimate legal process. Many of the arguments and decisions rendered under the military tribunals appear geared toward trying cases in the court of public opinion rather than in a court of law. Lawyers on both sides become frustrated and those frustrations can turn into animosity for opposing counsel. Humanitarians who observe the detainees and the military personnel who guard them treat each other with uneasy suspicion because neither group trusts the political agenda of the other.

The system of justice I witnessed at Guantanamo really doesn't work. It also needlessly divides the American people. While I hate to see these proceedings delayed yet again, the Obama Administration needs to re-think the current faulty process and come up with a system that makes sense. This new system must better balance all four competing imperatives and carefully consider public opinion. Additionally, the polarized advocates on both sides need to drop their most unrealistic demands and reach practical compromise. If not, the American people may have to wait another eight years for justice.

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Monday, February 23, 2009

IRAQ: Bribery and the Rule of Law
9:30 AM ET

Guest commentator Sara Hamoudi, Pitt Law LL.M. '08 and JD '12, writes about an experience in her native Iraq...

While living in Iraq, my husband Haider Hamoudi and I began working for the Iraqi Jessup moot court team. We instructed the team to apply for their passports, so that we could work with the American embassy. After the team began the passport application process in early October, I contacted the passport office every once in a while to ensure that everything was going well and that the team would remain on schedule. I called in November to see whether all the passports were ready. I noticed that some of the students had their passports, while others were still waiting, and was surprised by this result. I wondered why, if all the papers were submitted together, were some passports finished sooner than others?

I questioned the students about how they got their passports so quickly. They openly admitted that they had bribed some of the employees at the passport office. Of course, only the wealthy students could afford to pay the money, so they were the only ones to get their passports back quickly. I told the students it was a crime to bribe a government official or employee; but no one paid any attention to what I said.

Iraqi Penal Code Article 307(1) penalizes anyone who gives or accepts bribes in order to complete a job that is already an obligation of a government employee. The penalty for this crime is up to ten years in prison, and may include a fine. This rule of law presents an interesting contradiction when you talk to people from Iraq. On the one hand, they want the law to be upheld, much like Americans and people from other developed countries. On the other hand, although they want the law to be upheld, most people do not actually personally follow the law.

Although Iraq has a legal system and a long history of legal education, the rule of law is seldom enforced and fails to function in everyday life. Some Iraqi laws are not enforced at all and are completely ignored by the judicial system. Furthermore, Iraq lacks sufficient separation of powers between the judicial system and other branches of government. The absence of both law enforcement and independent judicial power have resulted in a general mistrust of the judicial system among the general public.

Everyone expects that corrupt practices such as bribery are necessary in order to process papers or applications quickly at government offices. Thus, people willingly pay bribes to get their work done, even though this means that work for poor people who are unable to afford bribes will be set aside. Of course, a person cannot go to a government office and openly bribe the official to have a passport completed in a week. There are people who indirectly arrange all the preparation for payment and getting papers processed. Practices such as bribery are not only corrupt, but they infringe on the rights of people who cannot afford to pay. Furthermore, corrupt practices threaten the rights of everyone by placing money above the citizens' rights and liberties.

How can we eliminate practices such as bribery and penalize wrongdoers? The answer is not easy. There are more than just a handful of people involved in paying and receiving bribes - the problem is rooted in the entire governmental system. As long as bribery is socially acceptable, it will be difficult to change the system; it might take several generations to eliminate such entrenched corrupt practices.

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