JURIST - Hotline

Wednesday, July 01, 2009

Rhode Island challenges federal ban by authorizing cultivation and sale of cannabis
10:36 AM ET

Allen St. Pierre [Executive Director, National Organization for the Reform of Marijuana Laws (NORML)]: "Despite the glamorization on the hit Showtime series "Weeds," flashy documentaries on CNBC delving into the business side of California's multi-billion dollar annual cannabis industry derived from Californians' unprecedented 13-year old legal access to medical cannabis products - qualifying patients in the state (and there are hundreds of thousands of them currently) can access high-quality medical cannabis via 24/7 vending machines in cities like Los Angeles - is Rhode Island the little state that is saying "yes we cannabis" the loudest via their legislature?

"Californication" Of Cannabis

While California is clearly at the vanguard of implementing major legal and policy changes in seeming conflict with the federal government's 72-year old cannabis prohibition laws, in fact little ol' Rhode Island is on the precipice of effectively breaking the federal government's ban on the cultivation and sale of cannabis by joining New Mexico as the only states favoring medical cannabis laws to have state-sanctioned medical cannabis cultivators and retail outlets for qualifying medical patients.

While there are an estimated 1,800-2,000 medical cannabis dispensaries (or in the new parlance, cannabis wellness centers) in California alone, few of them are genuinely legally sanctioned under state laws to sell cannabis in a retail environment. However, this blooming of cannabis wellness centers in California has happened under the full view of law enforcement, state policy makers and the public health community. Californians have "Main Street" access to cannabis in many parts of the Golden State, which has evolved entirely organically - in other words, the mores and values of most Californians largely accept cannabis use, whether for recreational or medicinal purposes.

A recent Field poll of California voters affirms this with 56% support for outright legalization.

In Rhode Island, there is no highly refined "cannabis culture," or longstanding public cannabis law reform efforts to speak of - unlike Californians that have publicly debated "legalizing" cannabis on numerous statewide ballot initiatives and legislative proposals going back to the early 1970s - yet, Rhode Island's legislators, from both parties and chambers, in opposition to the Governor and numerous federal government anti-drug bureaucracies (i.e., DEA, ONDCP, NIDA, DOJ, FBI, etc.) first passed a "self-preservation" medical cannabis law two years ago [a "self-preservation" medical cannabis model is defined as allowing a qualified patient, for which a severely limited number of medical ailments qualify for cannabis use (i.e., Cancer, AIDS, Glaucoma, Epilepsy and MS), to legally possess or grow a small amount of cannabis; there is no legal retail access to cannabis, seeds or plant cuttings (clones)].

The Little State That Says To Washington: "Yes We Cannabis!"

However, Rhode Island legislators, only two years after passage of the original medical cannabis laws, recognized that a self-preservation model is inadequate to serve the needs of sick, dying or sense-threatened patients who need whole-smoked cannabis and edibles. Again, in full opposition to the Governor and federal agencies, the legislature overrode a second veto to establish Rhode Island as the first bona fide state to legally sanction and license third parties to cultivate and sell cannabis (in the case of Rhode Island, the recent medical cannabis legislation has provided initial approval to three medical cannabis wellness centers for the entire state).

While New Mexico may have officially been the first state to pass legislation in 2007that allows for the state-sanctioned distribution of medical cannabis to qualified patients, the medical cannabis program has been very slow to get off the ground, and to date has issued a single permit, and no medical cannabis is expected to be lawfully sold in New Mexico for at least another 6 months to a year. Rhode Island, at its current breakneck speed of passing pro-medical cannabis law reforms, will very likely be the first state out of the gate to effectively end the federal government's complete prohibition against cannabis distribution by cultivating and harvesting a crop of medical cannabis by early fall.

The Major Legal and Policy Implications Sparked By Rhode Island

If the past serves any indication, under the prior four presidential administrations (Reagan, Bush, Clinton and Bush), their Departments of Justice most certainly would have raced to federal court and sought to have any state law that allowed medical cannabis to be cultivated and distributed to be found in clear violation of the 1970 Controlled Substances Act, The Single Convention Treaty of 1961 (the international treaty that effectively made cannabis illegal throughout the world)[PDF file] and stare decisis.

Even numerous full-throated law reformers would concede the strong position the federal government had attained after eight decades of zealous enforcement of anti-cannabis laws.

However, Rhode Island's challenge to the federal government's cannabis prohibition becomes increasingly interesting to political observers and policy wonks in light of President Obama's decidedly different take on the latitude he is comfortable providing states to craft their own medical cannabis laws.

To wit, 1) Attorney General Holder indicated in February that the DEA is no longer going to target and harass state compliant medical cannabis providers in states that adopt medical cannabis laws, and 2) In May, the executive branch issued a memorandum, interestingly entitled, "Pre-emption" to all federal agency heads, in effect instructing them to no longer oppose states (or their voters) seeking greater autonomy to pass laws that may possibly be in conflict with federal laws (i.e., medical cannabis laws, etc.), and to only oppose them if there is a positive conflict with federal laws resulting in genuine risks to national security.

While it is hard to swing a dead cat in the Los Angeles-area these days without hitting the cued up patrons of medical cannabis wellness centers, Rhode Island looks to be the very first state to officially end cannabis prohibition, and the feds appear ready to stand down.

Now, if you're a cannabis consumer or lover of liberty, this is "change" one can believe in!"

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Tuesday, June 30, 2009

Attorney General's remarks show its time to end disparity in crack vs. powder cocaine sentencing
12:15 PM ET

Bill Piper and Ethan Nadelmann [Director of National Affairs and Executive Director, Drug Policy Alliance]: "US Attorney General Eric Holder's recent call for eliminating the crack/powder cocaine sentencing disparity and reforming mandatory minimum sentencing is a welcome development that reflects the growing momentum for sentencing reform on this issue.

This momentum began last year when then-Senator Joe Biden, running in the Democratic presidential primaries in early 2008, introduced a bill to eliminate the disparity in how crack and powder cocaine offenses are punished under federal law. Sentiment had been building in Congress to reform the law, and Senators Orrin Hatch and Ted Kennedy had co-sponsored a bill to reduce the disparity from 100:1 to 20:1, but Biden's bill leapfrogged them and proposed to reduce the penalties for crack cocaine to the same as those for powder cocaine.

It didn't take long for the bill to collect a handful of impressive co-sponsors, including Senators Barack Obama, Hillary Clinton and Richard Durbin (the assistant majority leader in the Senate). Few other senators signed on, sensing that the bill was unlikely to move during the last year of the Bush administration – but what stood out was the fact that three presidential candidates, including the two leading the pack, were willing to endorse the most far reaching reform of the crack/powder laws. That would have been inconceivable just four years earlier.

Last year's sponsors are now the President, Vice President and Secretary of State, and Sen. Durbin is not just the assistant majority leader but also the Judiciary Committee member who is leading the effort to usher the reform through the Senate. The day after the inauguration in January, the White House website was changed to make clear that the new administration would make good on the commitment of candidate Obama to eliminate the crack/powder disparity. Attorney General Eric Holder and his senior staff have reiterated that commitment numerous times since, both publicly and privately, with the attorney general emphasizing that he views this as a personal commitment as well.

The issue really boils down to three points. The first is the absence of any scientific or other legitimate basis for distinguishing how crack and powder cocaine are treated under federal law. They are, after all, the same drug – and it takes little talent or expertise to transform powder cocaine into crack cocaine, or to smoke the former to achieve the effect of the latter. That is why the US Sentencing Commission recommended, a decade ago, eliminating the disparity; that turned out to be the only one of the commission's recommendations to be rejected by the Clinton administration. The second point is the extraordinary injustice and cruelty of locking up people for five, ten, and more years for possession and sale of remarkably small amounts of drugs. This injustice and cruelty became more and more evident as the drug war hysteria of the 1980s faded and the federal prison population boomed.

The third point is the racial disparities in sentencing and incarceration that flowed from this law, with the crack penalties falling almost entirely on African Americans. This glaring injustice proved pivotal in galvanizing African American communities and leaders, including many elected officials who had voted for the initial law.

Both the White House and the Democratic leadership in both the Senate and the House have made clear three things: (1) that they want to eliminate the crack/powder disparity by reducing the penalty for crack – and not, as some Republicans have recommended, increasing the penalty for powder cocaine; (2) that they want a major reform of these laws signed by President Obama this year; and (3) that they want to pass reform with significant bipartisan support, which could mean settling for less than 1:1 or possibly a modest increase in powder penalties (although advocates oppose both).

Drug policy reformers hoped for this sort of momentum in 2009 but we are pleasantly surprised by the rapid progress in Congress. This progress reflects both widespread recognition of the drug war's excesses and a growing conviction that after decades of failure US drug policy needs to move in a new direction - one that, in President Obama's words, "focus[es] more on a public-health approach." At its heart, crack/powder reform is a racial justice issue, but more broadly it's a human rights issue.

The United States ranks first in the world in per capita incarceration rates, with less than 5 percent of the world's population but almost 25 percent of the world's prisoners. The incarcerated population has grown from 500,000 in 1980 to 2.3 million today, of which roughly a third involves drug law violations or drug-related violations of probation or parole. We incarcerate more of our fellow citizens for drug law violations than all of Western Europe (with a much larger population) incarcerates for all offenses combined.

As Sen. Jim Webb, D-VA, has said, "either we have the most evil people in the world or we are doing something wrong with the way we handle our criminal justice system, and I choose the latter. The central role of drug policy in filling our nation's prisons makes clear that our approach to curbing illegal drug use is broken." Policymakers, legal minds, and voters need to look critically at the social and economic consequences of criminalizing drug use and punishing people for nothing more than what they put into their bodies.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Monday, June 29, 2009

International community must support pro-democracy demonstrations in Iran
9:27 AM ET

Mahmood Amiry-Moghaddam [Spokesperson, Iran Human Rights]: "More than two weeks have passed since Iranians came on the street protesting against what they believed was an election fraud. The protests were cracked down by the pro-regime security forces and Basidj militia. They opened fire on the peaceful demonstrators. We still don't know the exact death toll following the crack down. What is sure is that the actual number is much higher than the 27 announced by the official media. It is believed that as many as 250 people have lost their lives either under the demonstrations or the following days in the hospitals. We have received disturbing reports about people dying at the hospitals as a result of serious infections in the shot wounds at the non vital parts of the body such as the legs.

Unknown number of people have been arrested and taken to undisclosed detention centers. Human rights groups are still trying to identify those arrested and so far more than 500 of them have been identified. However we believe the real number is much higher. Several human rights defenders and lawyers are among those arrested.

We have also received reports about inhumane treatment of those under detention. Many of them are under pressure to appear on the TV screens with false confessions. The confessions will be used as pretext for further crackdown and possible executions. Iranian authorities have started a campaign of spreading fear among the people in order to prevent future uprisings.

There is no doubt that the uprisings in Iran were more than just protests against fraud in a presidential election or for a president that according to the Iranian constitution doesn't have real power. The protestors have challenged the authority of the Iranian supreme leader, Ayatollah Ali Khamenei, and in this way are a direct threat against Kahmene's regime as a whole.

Iranian authorities are apparently about to get the situation under control. But what is sure is that Iran will not be the same as what it was before the protests. The main outcome of these protests is that it is now obvious for everybody that Ayatollah Khamenei has the real power in Iran and real reforms are not possible within the framework of the present constitution which gives the Supreme leader and his Guardian Council unlimited power.

Which way Iran will take depends to a great extent on what will happen in the coming weeks and months. Reactions from the international community will play an important role on the final outcome of these events. Most Iranians, regardless their political view, believe that not recognizing the election results, and thus Ahmadinejad as president, is how the world community could contribute to the democracy movement in Iran. By not recognizing the election results, the world sends the right signals both to the Iranian people and the Iranian regime. It tells the people that their peaceful protests and civil movement give positive results, and is not ignored by the world. By the same token, the Iranian authorities learn that not respecting their people's rights will have consequences for them outside their own borders.

Another thing the world can do is to impose further sanctions on the Iranian revolutionary guard's economy sector and the many foundations (Bonyads) that dominate Iran's non-petroleum economy, and which are answerable directly to the supreme leader Ali Khamenei. The revolutionary guard and Bonyad's incomes are being merely used to strengthen the regime.

If the crack down of pro-democracy demonstrations doesn't lead to significant international consequences, the young Iranians will lose their faith in civil and non-violent protests and we will be facing a radicalization of the pro-democracy movement in Iran.

Many people believe that what we have been seeing on the streets of Tehran and other big Iranian cities, are the beginnings of a democratic change in Iran. A democratic Iran is not only good for its people, but also big step towards peace and stability in the world."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Saturday, June 27, 2009

Support for crack cocaine sentencing reform signals more rational approach to public safety
12:47 PM ET

Marc Mauer [Executive Director, The Sentencing Project]: "Attorney General Eric Holder's call this week for Congress to finally eliminate the sentencing disparity between crack cocaine and powder cocaine "this year" was the most high-profile indication of the Administration's support for fundamental change in this shameful 23-year-old policy, and an indication that a change in these policies may finally be possible. Despite wide critiques of the mandatory penalties for crack offenses from federal judges, civil rights organizations, and many others, efforts to reform the sentencing policies originally enacted in 1986 have previously met with resistance from both the Clinton and George W. Bush administrations.

The renewed prospects for reform build on several developments. First is support from the top. In the previous Congress, then-Senator Biden was the lead sponsor of legislation to equalize the penalties between crack and powder cocaine, and then-Senator Obama was a co-sponsor of the bill. Support for reform has also become increasingly bipartisan in recent years. Key Republican Senators Jeff Sessions (AL) and Orrin Hatch (UT) have each introduced reform bills, and have expressed concern both for the racial disparities produced by the sentencing policies and the excessive disparity between penalties for the two forms of cocaine. There remain important differences among quantity triggers in the legislative proposals being discussed, but nonetheless they demonstrate growing support for change. Finally, the crack cocaine guideline amendments put into effect by the US Sentencing Commission in 2007, and made retroactive for people currently in prison, have been met with broad support and limited partisan backlash.

Despite this growing momentum, several hurdles for reform still exist. First, there is not yet consensus regarding what form the legislation should take. The Department of Justice and the Obama administration are on record as supporting "complete elimination" of the sentencing disparity between crack and powder cocaine (currently a 100:1 drug quantity ratio), but have not yet committed to achieving that by increasing the quantity of crack required to trigger a mandatory penalty, rather than reducing the powder quantity (which would result in more persons convicted of low-level offenses being sentenced to federal prison). There is no informed opinion which suggests that the powder quantities are insufficient to achieve the goals of sentencing and the US Sentencing Commission has warned Congress away from addressing the disparity by lowering the powder thresholds. One hopes that the DOJ will recognize this in its recommendations. Second, partisan wrangling continues regarding the goal of a 1:1 quantity ratio between the two drugs, so there may be political jockeying regarding what type of bill may pass. And finally, advocates for reform are also confronted with a packed legislative agenda this year, so the need to push hard to maintain a focus on crack cocaine reform remains.

Advocates for rational sentencing have been heartened by the newfound support for reform in the DOJ and among political leadership. And in many ways, the evolving climate on crack cocaine opens up broader questions regarding federal sentencing policy, and the excessively harsh mandatory penalties that have been adopted in recent decades. One can hope that if crack reform is successful it may lead to a broader discussion about the need for sentencing reform and a more rational approach to public safety."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Friday, June 26, 2009

Supreme Court's Epinosa decision will not impact vast majority of student loan debtors
3:37 PM ET

Robert Applebaum [Founder & Executive Director of ForgiveStudentLoanDebt.com]: "The US Supreme Court has recently granted certiorari to United Student Funds, Inc. v. Espinosa, agreeing to consider whether student loans may be discharged in bankruptcy under the limited circumstances wherein the creditor fails to object to a discharge plan which includes student debt.

Before anyone gets too excited about this, no matter which way the Court rules, it is unlikely to result in the restoration of consumer protections to those carrying student loan debt.

The question before the Court is rather fact-specific, i.e., whether the Bankruptcy Court erred in granting a final disposition to Espinosa's Chapter 13 restructuring plan that included the student loans at issue. The Court is not being asked to consider the constitutionality of the statutes that preclude student loan debt from being included in Bankruptcy proceedings in the first place.

First off, it is important to understand that there are different types of bankruptcy. This case does not involve Chapter 7, the type of bankruptcy where a debtor essentially gives up and nearly all assets are liquidated to pay off the creditors to whatever extent possible. Nor is this a Chapter 11 case, which usually involves a corporation's restructuring of debt. Rather, the case that the Supreme Court has agreed to hear involves a Chapter 13 proceeding which is generally the section of the Bankruptcy code that applies to individuals seeking a restructuring of debt so that they may eventually get their head above water.

Generally speaking, student loans are exempt from discharge or restructuring under the Bankruptcy code unless the debtor can demonstrate "undue hardship" - a fairly high standard to meet which essentially requires that the debtor have no chance of ever obtaining an income again to pay off his debts. If there's any chance at all of the debtor being in a position to pay his student loan debts again, he'll have a hard time meeting the "undue hardship" standard.

That said, where a debtor does seek to discharge his student loans because of undue hardship, the rules require the filing of a summons and complaint, giving any creditors the advantage of an adversarial structure in which to litigate the claims. Absent any such attempt by the debtor, no such adversarial structure is instituted and, instead, a restructuring plan is crafted and notice is given to all creditors so that they may either accept the terms of the plan, or make an objection to it in a timely fashion.

In Espinosa, United Student Aid Funds, Inc. was given notice of the restructuring plan that included Espinosa's student loans in the amount of $13,250; an amount that differed from United Student Aid Fund's claim in the amount of $17,832.15. Not only did United Student Aid fail to object to the restructuring plan when it was initially given notice of it, it failed to object when the Court specifically informed United that the amount they claimed Espinosa owed was less than the amount United Claimed. Thus, since there was no objection, the restructuring plan was approved.

Three years later, United Student Aid began intercepting Espinosa's income tax refunds to satisfy the unpaid portion of the student loan. Espinosa, in turn, petitioned the Bankruptcy court for a contempt order, claiming that United had violated the terms of the agreed upon restructuring plan.

The 9th Circuit Court of Appeals ruled in favor of Espinosa, reasoning that United had ample time in which to object and that, after 3 years, any objection it might have had to the student loans being included in the restructuring plan in the first place was untimely.

Other Circuit Courts of Appeals have ruled differently, holding that the creditors' statutory and Constitutional Due Process rights were violated by including student loan debt in a restructuring plan without a demonstration of undue hardship. The 9th Circuit rejected the attenuated reasoning behind those decisions and, instead, adhered to its own precedents which renders the statutory and Constitutional claims moot.

If I had to predict which way the Supreme Court will eventually rule, it seems to me that the 9th Circuit's reasoning is more sound and, as such, its finding for Espinosa will be affirmed.

In the simplest terms, United had not one, but two opportunities in which to object to Espinosa's student loan debt's inclusion in the restructuring plan. It could have objected to it when it first received notice of the restructuring plan and claimed it was entitled to service of a summons and complaint and, subsequently, an undue hardship hearing, or; it could have objected when it was specifically given notice that the amount owed to United as claimed in the restructuring plan differed from United's claimed amount.

There are any number of reasons why United may have made a strategic decision not to object at either point in the process. Perhaps United made a decision that it was more likely to recover some money under this restructuring plan and it didn't want to gamble that Espinosa would be able to demonstrate undue hardship. Who knows? The point is, they had their chance to object and they failed to do so. As far as I can tell, game over. The Court need not reach the statutory or Constitutional questions of whether the student loan debt should, or even could have been included in the restructuring plan in the first place because United's rights in those regards were essentially waived by their failure to raise a timely objection.

So, what does this mean for the average student loan debtor? Very little, I'm afraid. The fact is, student loan debt is statutorily prohibited from inclusion in a bankruptcy discharge or restructuring without a showing of undue hardship. This case merely represents a narrow set of circumstances where a mistake was made but the aggrieved party failed to object to that mistake when it should have. Had United made their objections when they had the chance, it's likely they would have prevailed.

The bottom line here is that anyone expecting the Supreme Court's eventual decision in this matter to have any far-reaching implications for the majority of student loan debtors is merely engaged in wishful thinking."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Pakistan's refusal to extradite Mumbai attack suspects for trial is part of long-standing policy
9:26 AM ET

Bahukutumbi Raman [former head of the Counter-Terrorism Division, Research and Analysis Wing (India's external intelligence agency)]: "Even before the Mumbai terrorist attack of November, 2008, India had been repeatedly demanding the arrest and handing over to India by Pakistan of 20 terrorism suspects - Indian as well as Pakistani nationals - wanted for trial in India in terrorism-related cases. According to Indian investigators, they were living in Pakistan. In the case of the suspects who are Indian nationals, Pakistan denied their presence in its territory. In the case of the Pakistani nationals, it rejected the evidence against them produced by India as fabricated.

India has now demanded the arrest and handing over of 22 more suspects living in Pakistan, who are wanted in the trial relating to the Mumbai attack. All of them are Pakistani nationals and belong to the Lashkar-e-Toiba, a Pakistani terrorist organisation which had carried out the terrorist strike. These include Hafiz Mohammad Sayeed, the Amir of the Jamaat-ud-Dawa, the political wing of the LET. An Indian court before which the trial is presently being held has issued non-bailable warrants for their arrest and production before the court.

According to the media, the Pakistani authorities have ruled out the handing over of these persons to India on the ground that they are Pakistani nationals. They have said that if India could produce credible evidence of their involvement in the Mumbai attack they would be arrested and prosecuted before a Pakistani court, but the question of their being tried by an Indian court would not arise. Five of these persons were arrested by the Pakistani police after the Mumbai attack on the basis of the evidence of their involvement in the Mumbai attack produced by Indian and US investigators. The Pakistani authorities say that they are making their own investigation into their involvement to corroborate the evidence collected by the Indian and US investigators and that they will be prosecuted in Pakistan if warranted by the evidence.

Since Pakistan became independent in 1947, it has never handed over to India any Pakistani national wanted for trial in India in respect to any crime. They continue to follow that policy even in respect to the Mumbai attack despite international pressure on them to co-operate with India in the investigation and prosecution of the accused. For them, co-operation does not mean handing over Pakistani nationals for trial by Indian courts."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Tuesday, June 23, 2009

Rhode Island law on safe access to medical marijuana marks national trend in state regulation
11:04 AM ET

Jesse Stout [Board of Directors member, Rhode Island Patient Advocacy Coalition]: "When the Rhode Island Medical Marijuana Act became law in January 2006, seriously ill patients started calling the Rhode Island Patient Advocacy Coalition (RIPAC) to ask, "Where do I get my medicine?" There was no good answer: they could grow it themselves, unless they were too sick; they could appoint a caregiver, unless they couldn't find anyone reliable. This forced some of our most vulnerable citizens to try to buy their medicine on the black market, where some were robbed or even beaten.

To address this supply problem in the Medical Marijuana Program, in June 2009 the Rhode Island General Assembly passed an amendment allowing non-profit compassion centers. Under the new law, non-profit organizations can apply to the Department of Health for a compassion center license. This will authorize them to grow and distribute medical marijuana for an unlimited number of patients. The Department will license a first compassion center in 2010, and two more in 2011, for a statewide total of three.

Supply is a problem in most of the 13 states with medical marijuana laws; New Mexico is the only other state that explicitly licensed medical marijuana distributors. However, given the federal government's inaction on this issue, state regulation of medical marijuana distribution is poised to become a national trend. As of this writing, Delaware, Illinois, Iowa, Pennsylvania, New Hampshire, New Jersey, New York, and North Carolina are all considering new medical marijuana legislation that would regulate distribution, and the New Hampshire bill even calls for "compassion centers" by name. More and more states will recognize pharmacy-like establishments to provide medical marijuana to patients until the federal government steps in to address the issue of safe access."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Sunday, June 21, 2009

In Burma politics rather than law will decide the trial of Daw Aung San Suu Kyi
11:20 AM ET

Awzar Thi [Member, Asian Human Rights Commission, Hong Kong]: "At a meeting of lawyers in Hong Kong this April, Aitzaz Ahsan described how as counsel for the Chief Justice of Pakistan in the petition against his unconstitutional removal from office during 2007, neither the president nor any other senior official had even read the charges brought against the judge, which they had signed. Had they done so, they would have noticed that the charge sheet was full of blank paragraphs with the word "deleted" alongside. And anybody looking more closely should also have found that the petitioner had not even presided over an appeal in which he was accused of having struck a deal with one of the parties; yet a number of the judges trying him had.

Although the charges against the Chief Justice of Pakistan were framed in legal terms, neither their factual accuracy nor formal correctness was supposed to have mattered. Politics and military power, not laws and civilian authority, were meant to have determined the judge's fate. Yet to his credit, as well as to that of his advocate, the Supreme Court bench and the legal community of Pakistan, the court reinstated the judge despite the wishes of a dictator.

The case now running against Burma's democracy icon, Daw Aung San Suu Kyi, is of the same type. United Nations experts and the Asian Human Rights Commission have pointed out that the charges against her and three other persons are baseless. Suu Kyi is accused of violating the terms of her house arrest by admitting an uninvited guest into the property, after the American citizen allegedly swam across an adjacent lake. But this is not an offence either under the order imposed on her personally or under the sweeping law through which it was issued. On top of this, the case is being tried in a court without jurisdiction, outside of the locality where the alleged offence occurred, with judges from two different districts. The holding of the trial inside the central prison too, like hundreds of others since 2007, is patently illegal.

This neglect of substantive and procedural law is a characteristic not only of the Suu Kyi trial but also of tens of thousands of others in Burma over recent decades, most of which have attracted little if any outside interest. That even in a case of global renown the government's functionaries have failed to comply with the minimum standards of their own domestic codes indicates that the only rules which really matter in their country now are those laid down in executive decrees.

The trial of Daw Aung San Suu Kyi is, like that of the Chief Justice of Pakistan before it, being driven by political, not legal, imperatives. As the contents of the charges and formalities of procedure matter not to the final outcome, compliance with the law also matters not. But whereas Pakistan's judiciary has in recent times fiercely demonstrated that the rule of law still carries meaning under its watch, no such thing can be expected in the case of Suu Kyi. For half a century, Burma's courts have served as mere instruments of policy, not law, and it would be foolish for anyone to be too preoccupied with the legal features of a criminal case in which legal features in the end will count for naught."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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