Friday, June 29, 2007
Ryan Olden, Pitt Law '10, files from Prishtina:
The former Yugoslavia was a federal country comprised of many different ethnicities - Slovenes, Bosnians, Serbs, and Albanians and others. After the death of strongman Josip Tito in 1980, the federation began to break down as new leader Slobodan Milosevic tried to assert Serbian dominance. The inevitable result was the rampant civil war that rocked the rapidly-disintegrating country throughout the 1990s.
During this tumultuous time, the region of Kosovo was stripped of its autonomy and the rights of the ethic-Albanian majority several curtailed. Albanian nationalism and corresponding resistance was met with a Serbian effort to drive Kosovar-Albanians from the region entirely in 1999. Lead by the United States, the West responded with a bombing campaign to force Serbian withdrawal and the creation of a United Nations protectorate in Kosovo, known as the UN Interim Administration in Kosovo (UNMIK).
Having learned first-hand how quickly discrimination can dissolve into bloodshed and chaos, the Assembly of Kosovo passed one of Europe's most progressive anti-discrimination laws in February of 2004. It precludes both private and public actors from discriminating on the basis of everything from race to political affiliation to sexual orientation. It also protects those with both physical and mental disabilities. The law applies not only to direct, but to indirect discrimination, segregation, and various forms of harassment.
Among other groups, the law was designed to protect the region's ethnic minorities. Kosovo is roughly 92% ethnic Albanian. The rest is comprised of ethnic Serbs, Turks, Roma, and other groups such as the Ashkali and Gorani. Kosovar-Serbs continue to suffer reprisals not only from the 1999 conflict but also from centuries of mistrust between Albanians and Serbs throughout the Balkans. With the exception of the Turks, most other minorities in Kosovo have also suffered historical discrimination in Kosovo regardless of whether ethnic Albanians or Serbs have been in control.
A few months ago, the Kosovar Assembly voted 100-1 in favor of independence. The vote does not carry international authority without approval of the UN Security Council, but, at the very least, some form of autonomy seems inevitable in the very near future as Western powers continue to press for an independent Kosovo. Additionally, the UN Interim Administration in Kosovo is starting to demobilize and dismantle, sending officers and staff home or to missions in other areas. UNMIK is also ceding consistently more of its authority and responsibilities to the native Kosovar government and European Union offices in the region.
Because of the relative newness of the Law Against Discrimination, the local legal community is still familiarizing itself with the law's application procedures and many potential complaints remain unaware of their rights or that the law even exists. Due to the host of new tasks and challenges that independence would present, the Kosovar government and its UNMIK partners hope to move forward on this law as much as possible before greater autonomy becomes a reality.
Thursday, June 28, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
While Pakistani Prime Minister Musharraf sacks Chief Justices who disagree with him, and while Bangladesh continues under emergency military rule, India's judiciary remains steadfastly independent. So steadfastly, in fact, the Indian Supreme Court has a history of making the Indian government very mad. Through India's 60 year history, the government has often found its agenda frustrated by the court's decisions, and almost just as often Parliament has amended the Constitution to overturn these decisions. There is no separation of powers doctrine in India.
The fundamental right to property was unsurprisingly the impetus for much of the back and forth. The Indian Constitution as originally implemented in 1949 guaranteed Indians the fundamental right to own and dispose of property, and the Constitution is vested with original jurisdiction to enforce the fundamental rights. In 1950 the government sought to abolish a type of landlord system accidentally implemented by the British in 1793. As payment to these landlords, the government promised deferred compensation out of future profits. The landlords argued this wasn't just compensation. The high courts in multiple states agreed, and they ruled the government was infringing the landlords' right to property. The government responded by adding a list, called the Ninth Schedule, to the Constitution containing certain land reform laws that would not be reviewable by the courts. The Supreme Court, in turn, held that Parliament could amend the Constitution like this, so long as it had a two-thirds majority.
Parliament continued adding amendments with provisions forbidding judicial review, and the Supreme Court interpreted them narrowly. Other battles between the courts and government similarly ensued regarding affirmative action and nationalization projects. The landlords were back in 1967, arguing, inter alia, that it was unconstitutional for Parliament to create amendments that were beyond judicial review. The Court held, in Golak Nath v. State of Punjab, that from here on out no amendments could render fundamental rights unenforceable. This means no more could Parliament put land reform acts into schedules beyond judicial review. That is, until Parliament overruled the Golak Nath doctrine with a new amendment.
Finally in 1973 today's prevailing doctrine was created. In Kesavananda Barathi v. State of Kerala, the Court held that Parliament had passed laws contravening the "basic structure" of the Constitution by seeking to remove the judiciary as the guardian of fundamental rights. Structural changes to the Constitution would from henceforth require a new constitutional assembly. Parliament responded by virtually writing the judiciary out of the Constitution with the 42nd Amendment. A new Parliament passed the 44th Amendment, which repealed the 42nd.
The Basic Structure Doctrine prevails today because Parliament has been unable to amend it. It also helps, I'm sure, that the 44th Amendment demoted the fundamental right to property to an ordinary right, meaning the Supreme Court no longer has original jurisdiction in cases where the right is infringed.
Friday, June 22, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
If you've seen Mission Impossible 2 you remember Tom Cruise hanging from the cliff by one arm. Chances are you've never seen the Telugu-language version of the same film, where a fat, middle-age hero, Balayya, finds himself in the same predicament. Climbing the sheer mountain was going fine for Balayya until he risked his life to save a bunny stuck on the rock face. Slipping while saving the bunny, he ended up holding the bunny in one arm and hanging from the cliff by the other.
Copyright infringement of U.S. films seems to be rife in Indian cinema, but a successful prosecution has never been made. The bunny could make all the difference. Balayya's scene is obviously a direct rip-off of Tom Cruise's, but Tom Cruise, as I remember, did not save any bunnies. The addition of the bunny could keep the film from being a copyright infringer.
Much more famous than the Telugu-language films of "Tollywood" are the Hindi-language films of "Bollywood" (a forced conjunction of Hollywood with Bombay, now Mumbai, where I am), and copyright infringement would seem to be just as flagrant in them. "Indianized" versions of Hollywood hits are a common occurrence in Bollywood. A director starts with a U.S. film script, pays low wages to a writer to scatter singing and dancing numbers throughout the movie, and an Indianized film is born. My Best Friend's Wedding, Some Like it Hot, and Reservoir Dogs have all been Indianized like this. It has been reported that eight of ten Bollywood scripts are "inspired by" Hollywood scripts.
While Indian cinema is more star-driven and less script-driven, U.S. cinema is converse to this. Indian directors say they'd rather use a proven a script and add the stars than to spend money to create a script from scratch that audiences might dislike.
India's Copyright Act of 1957, as amended in 1994, is thoroughly modern and in complete compliance with the TRIPS agreement, the part of the WTO protecting copyright. Yet there have been no successful prosecutions in Indian courts so far, and it is unlikely that future prosecutions would be either. Indian courts have held in the past that a work "inspired by" a copyrighted work is not necessarily an infringement. Adding bunnies and songs and dances could likely be enough to make the Indian film an original work of art in the eyes of the Indian courts.
The alternative to the Indian courts would be dispute resolution through the WTO. Through this mechanism the U.S. could impose punitive sanctions on India, but only if the U.S. can prove infringement has been allowed to take place.
Thursday, June 14, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
Outbursts of communal violence are common in India. There are Maoist insurgents in the jungles. There are 23 different separatist militias in the eastern hill states. And as I reported in prior weeks, agitated Sikhs have been violently protesting in the northwest and rural dwellers in West Bengal have been beaten by police. And most recently, demonstrations left 23 dead in the northwest as mobs encroached the suburbs of the capital Delhi. Demonstrating are the Gujjars, and what they want is better access to affirmative action.
Angry people fighting violently is such regular news here in India it barely warrants discussion by the water cooler at work. This fighting in the Delhi suburbs, which has since ceased, was the exception. The mob stopped trains, vandalized trains, cars and busses, and blocked major highways. Armed police sought to hold them off. More than the violence, what warranted the water cooler discussion was that the highways and railways from Mumbai to Delhi were closed.
The Gujjars are a traditional class of shepards in the north and west of the country. They wish to be listed as an officially recognized tribal people, which would give them better access to affirmative action benefits. A rival tribe called the Meena is fiercely opposed to the Gujjars' demands, and complicating this mini-war, the Meenas were fighting the Gujjars, even as police fought to keep the violence from Delhi. The protests chilled and faded even further from water cooler discussion after the national government in Delhi agreed to formally look into the Gujjars' demands.
Among the fundamental rights listed in the Indian Constitution are prohibitions against discrimination that read a lot like the Civil Rights Act of 1964 in the United States. To paraphrase, the State shall not discriminate against any citizen, and no citizen shall be denied access to public places. There shall be equal opportunity for employment, public and private. However, nothing in these constitutional articles (Articles 15 and 16) shall prevent the State from taking measures to benefit traditionally underprivileged groups. In other words, affirmative action is written into the Constitution of India.
There are three different classifications for groups that have traditionally been deficient educationally and economically. Each of these three classes is allotted a certain quota in government employment, at state-funded schools and colleges, and in state and central legislatures. There are the Scheduled Castes (SCs), who are essentially the Dalits, formerly known as the Untouchables. There are the Scheduled Tribes (STs), who are physically isolated indigenous people living in forests and hills. And then there are the Other Backward Classes (OBCs) usually people in the middle of the Hindu caste hierarchy who are not necessarily isolated but are educationally and economically backward.
The Gujjars are currently listed as an OBC but would prefer to be listed as an ST. There would be more reservations in the quota system for Gujjars if they were listed as an ST instead of an OBC. The rival Meenas currently occupy most of the ST quota reservations for the northwestern state of Rajasthan. The Meenas have been successful during their 53 years listed as an ST, and the Gujjars hope to achieve comparable success. Of course the Meenas are against the Gujjars being listed as an ST because then the Gujjars would be taking reservations away from the Meenas.
Getting listed in a schedule or switching from one list to another is not a transparent process, and the power lies in the central government. In theory it would be possible for the Gujjars to switch lists, but this being India, the Meenas have vowed to protest if this happens. Nevertheless, the central government says it will report back to the Gujjars in three months.
In the meantime, the tribal leader of the Gujjars has been charged with the murder of a police officer during the demonstrations.
Wednesday, June 13, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
Settling in Mumbai after having spent my first quarter century in the U.S., I have quickly developed a new personal pricing index. What I mean is, a $4 lunch is now a rather expensive lunch. A one hour ride in an auto rickshaw for $3 wow, that's a lot. And now that India's cheap prices have made me so stingy, the price of a Western lawyer's favorite drinks can really sting. A bottle of beer can easily double the cost of an average meal.
Import tariffs for alcoholic beverages range from 150% to 550%, on top of local taxes. A bottle of domestic Scotch here goes for $5 but the real whisky (not whiskey) from Scotland starts at around $40. The U.S. and E.U. feel the pain of their expats, and have filed complaints in the W.T.O., asking for a legal review of India's spirit tariffs. Tariffs are not per se illegal under the W.T.O. agreements, but the W.T.O. Dispute Settlement Body could rule that India's spirit tariffs are illegally excessive.
So maybe us snooty expat lawyers in India should go native and drink domestic? Drinking domestic is cheaper but still expensive by my Indian personal pricing index. The taxes levied on domestically produced beverages are around 100%. Kingfisher far and away dominates the domestic beer market, and a price of about $2.75 is usual at an average restaurant. Imported beers at the same restaurant will be nearly double this. One time I paid $7 for a Kingfisher at a nightclub. Because there is a brewery in India, Foster's as in, "Australian for beer" is not subject to the import duties and is always the same price as Kingfisher. Foster's is the second most-likely beer to be found a drink menu after Kingfisher.
Still, by U.S. standards, $7 for a beer at a nightclub is not that bad, and neither is $2.75 at a restaurant. When I'm saving so much money on food, I can't complain. Plus, it's so hot in my apartment, it's like getting a free sauna every night. And speaking of hot, unless you know the right shop or restaurant, your heavily-taxed red wine will be served at Mumbai room temperature, which is usually 90def F. Warm red wine, however, tastes better than I thought it would.
Sunday, June 10, 2007
Eric Sutton, Pitt Law '09, files from Prishtina:
When discussing independence, the property rights of Serbian internally-displaced people are an understated cause of conflict between Kosovo and Serbia. As the war raged on, many Serbians understandably fled north to escape the crossfire. They left behind a great deal of real property, and they have had great difficulty in returning to reclaim their land since the United Nations and NATO stepped in to resolve the situation. I talked to a member of the UN team that has worked extensively on minority issues in Kosovo. They estimate that at the onset of the 1998 conflict, Serbians owned 70-80% of the land in Kosovo. Today, that number is estimated at 50-60%. The number of Serbs that actually live on and utilize the land is assumed to be disproportionate to how much property they possess.
The Serbian government has set up a website that provides a comprehensive view of the grievances the Kostunica regime seeks to address. The website states, "The FRY-UNMIK Common Document of November 5, 2001 confirmed the priority to âensure a safe and unimpeded return of displaced persons to their homes in Kosovo' (UNSCR 1244: 11k)." The ability of Serbs to return to their homes has been hampered by various processes: slow turnaround time for title claims in Kosovo courts, Albanian hostility, and the simple fact that they have made an investment of several years in Serbia that they may find hard to let go.
Upon its arrival, the United Nations mission here set up a service that allowed displaced citizens to assert their legal claim to the property. Many Serbs have taken advantage of this service. For example, a case presented to the court was in regards to a deed of sale between a Serb and an Albanian. The complaint asserted that the sale was fraudulent; the Serb that allegedly sold the property had in fact been deceased for three years. However, even seven years after the cessation of hostilities, some claims are still hung up in the courts. Given the ongoing media reports of corruption in the courts, and the anger that many Albanians still have toward Serbians, these claims may not be resolved for a long while hence.
Destruction of property has also been an ongoing problem. In May 2004, Albanians took to the streets for two days of anti-Serbian (and probably anti-minority generally) violence. Serbian Orthodox churches were destroyed and houses were burned. The Kosovo Forces (KFOR) did not have the mandate to intervene on internal matters, and retreated to their bases. There has been a great deal of effort to curb reprisals against minority populations, and great efforts to include Serbians and other minorities in the new government, but it does not take long to realize that very few offices have minority staff.
The Serbians are not blind to what is occurring. They continue to leave rather than face what they perceive as the inevitable: second-class status. For the same reason, Serbians are not returning. The inability to reintegrate Kosovo will be one of the larger failures of the United Nations Mission in Kosovo. However, right now it appears to be unstoppable.
Friday, June 01, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
When the Indian Constitution was adopted in 1949, Indians had the fundamental right to property. Since then, this right has pestered the government. It was chipped away and chipped away until it was officially downgraded from a fundamental right to merely a statutory right in 1978. Primarily the right was chipped away because the government wanted to seize property and not compensate fairly for it. When the Indian Supreme Court would tell the government it could not do this, Parliament would amend the Constitution so that it could. Which brings us to the present day, where Article 300A of the Constitution reads, "no person's property shall be deprived of his property save by authority of law." And that's it a person's property can be deprived him, with little or no compensation, so long as Parliament has passed a law allowing for the deprivation.
Yet even in this downgraded form the right to property still pesters the government. India's feisty democracy makes it difficult to just up and seize land owned by a private citizen. On television numerous times this year Indians have seen just how difficult it can be. Two weeks ago television newscasts included looped footage of riot-armed policemen chasing unarmed people across green fields in West Bengal. The people were protesting the taking of their land for a Tata Motors plant. The right to peaceably assemble, after all, is a fundamental right guaranteed by the Constitution.
Central to the problems now being caused by Indians' pesky right to property are the new-to-India concept of Special Economic Zones (SEZ). India seeks to acquire and demarcate SEZs to encourage heavy industry. An SEZ offers tax breaks, relaxed labor rules and expedited business licenses for large industrial operations. Usually it is farmers' land being taken. The agriculture sector is already struggling, and the farmers are incredulous that selling their land for a song will really give them a better life. Things climaxed in West Bengal in March with fourteen being killed while protesting a new SEZ that was to harbor a chemical plant. These plans have since been halted.
China's SEZs, on the other hand, had an easier course toward industrial development. There is no personal right to property in China, and China was able to swiftly create entire SEZ cities, like Shenzhen.
Yet though Indians' right to property has been degraded, people still have a right to own land. Trouble is, the government can easily seize it, and there's no constitutional guarantee this seized land will be justly compensated.
Dateline publishes accounts of law students' first-hand experience with law and law-related events. Dateline contributors come from all over the world, sharing personal stories on legal matters ranging from the G-20 summit protests in the US to the plight of migrant workers in Taiwan.
Dateline seeks contributors from US or international law schools who have served interesting legal internships, participated in noteworthy clinical programs, worked or studied in foreign legal systems or have some other personal experience with law or legal developments. If you'd like to contribute, please review the submission guidelines [PDF] and send your article as an attachment to firstname.lastname@example.org. Make sure to include "Submission" in your subject line.
|Get JURIST legal news delivered daily to your e-mail or RSS reader!|
Dateline welcomes comments and reaction from readers. E-mail us at: email@example.com