Tuesday, July 17, 2007
Mary E. Gibson, Pitt Law '08, files from Prishtina:
Independence for Kosovo is nothing new independence fervor did not begin in 1998 when conflicts escalated from Slobodan MiloÅ¡eviÄ's ethnic cleansing of Albanians. Rather, it's been fermenting since before the Ottoman Empire's victory at the Battle of Kosovo in 1389. Kosovar-Albanians believed independence could have been achieved this summer but those hopes sank after the latest G8 Summit, a UN Security Council meeting, George W. Bush's visit to Albania, and Vladimir Putin's visit to Washington. It now seems that despite a new UN draft on Kosovo's status, which eliminated definite plans for independence, Russia, a veto-carrying member of the UN Security Council, still may not be satisfied with the situation.
In the meantime, Kosovo - a Serbian province comprised of over 90% Albanians - will continue to be administered by the United Nations. But how long can this arrangement be sustained? In terms of local grassroots politics, there are groups representing both sides of the independence issue and at the end of June, both sides were heard through their public demonstrations. June 28th, the anniversary of the Battle of Kosovo a battle celebrated by the Serbians and an anniversary date used by leaders, such as MiloÅ¡eviÄ in 1989, to rally people in favor of a greater Serbia, provided a backdrop for the anti-independence movement. The ancient battlefield was papered with posters stating that Kosovo is a part of Serbia and Kosovo will return to Serbia. Two days later, the Vetevendosje, a group advocating self determination for Kosovo, countered the June 28th anniversary with a protest of their own through the streets of Pristina, Kosovo's capital city. The group performed skits that critiqued the status talks and presented symbolic acts, such as raising the Albanian flag that confirmed their ethnic heritage.
While independence for Kosovo is a contentious issue within the region and the world, Kosovo's provisional self-government continues to look toward independence, as evident by their vote of 100-1 in support of an independent Kosovar state. Members of the Assembly of Kosovo are hard at work laying legal foundations through laws ranging from the economy to social welfare. Despite the preparation and some initial implementation, people and businesses hesitate to rely on the Assembly's progress because of Kosovo's uncertain status. If the international community could agreed to a definite plan for Kosovo's future, people in the region would be encouraged to further build their economy.
For almost all Albanians, Kosovo rejoining Serbia is no longer an option. MiloÅ¡eviÄ's endorsement of ethnic cleansing in the 1990s and the Serbian Radical Party's current support for suppressing the Albanians in Kosovo would not provide an environment where democracy would flourish. Even though there have been pockets of Albanian retaliation against the Serbians after the 1999 conflict, none of those actions were government sponsored. While actions by a group of angry people are not excusable, the provisional self-government has been working to end the violence through government sponsored programs and anti-discrimination acts.
Other countries were carved from the former Yugoslavia, and Kosovo could be seen as following in that pre-established path to independence. However, Croatia, Slovenia, Macedonia, and Bosnia-Herzegovina were all considered republics under Yugoslavia, while Kosovo was only considered a province. Kosovo's province status did provide for greater powers, which included a seat at the Federal Presidency, and that autonomy could be seen as a stepping stone for an independent state.
Today, many Albanians in Kosovo try to focus on the future and not on the past, despite the recent atrocities. Time may heal all wounds, but without news from the international community concerning Kosovo's status, the general population and the provisional self-government may press harder for answers.
Saturday, July 14, 2007
Andrew Wood, Pitt Law '08, files from Manila:
As governments around the world work hard to implement legislation to aid in fighting terrorism, some common effects of such legislation are predictable and even inevitable; it is the nature of any anti-terrorism measure to both empower the executive branch and detract from civil rights. People are often willing to sacrifice some of their freedoms if they believe that it is necessary to achieve peace. But for many Filipinos, the Human Security Act of 2007 shares a concern common to much of the country's legislation: the threat of abuse by the executive power. The Catholic Bishops' Conference of the Philippines (CBCP) and civil rights groups have called for the government to revisit the legislation, and address potential areas of abuse.
The Philippine government has responded to the criticism by preparing to launch public campaigns supporting the anti-terrorism measure to raise awareness of the benefits it will yield. The Arroyo administration has chosen to forego the calls of civil rights groups, and is urging people to accept the potential flaws of the Act and just trust them. As Secretary Ignacio Bunye said in an official statement, "Rather than criticizing government for lapses in a law that has yet to be implemented, let us join hands in fighting terror." But isn't this the point of legislative debate in a democracy? To be sure that enacted legislation will best serve the people?
It would be hard to argue that some form of anti-terrorism legislation is not needed in the Philippines. Terrorism is very real here; the presence of extremist groups such as the Abu Sayyaf is the prime example. Daily updates in the newspapers follow developments in the recent kidnapping of an Italian Priest in the south of the country. Most recently 14 Filipino marines who attempted to rescue him were killed. Also recently, last month the US ambassador paid $10 million USD to four members of the Abu Sayyaf who provided information leading to the death of two terrorist leaders.
Opponents of the anti-terrorism law do not deny that terrorism exists and should be combated, but they suggest that the scope of the law should be limited so that references to ethnic and political minorities are eliminated. For example, the Communist Party of the Philippines and its guerilla wing, the New Peoples' Army, would be at high risk of being added to the terror list, and depending on who you talk to, this is arguably a good thing. But what about the individuals that are merely suspected of being affiliated with such groups? And what about political opponents that fear the law will be misused to persecute them for voicing dissenting political views? In a country where many feel helpless and lack faith and trust in their President, the civil rights implications are huge. As a local human rights lawyer recently told me when comparing the US to the Philippines, "Even if one disagrees with the Bush administration, I would trust Bush a hundred times more than Arroyo or any other developing country's leader when it comes to enforcement of the law and the potential abuse of power." With the Act set to be implemented this Sunday, the near future should be very telling for human rights and the rule of law in the Philippines.
Wednesday, July 11, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
One year ago today, July 11, 2006, a day Indians call 7/11 (or 11/7), seven coordinated blasts within fifteen minutes tore through rail cars on Mumbai's suburban railway killing 187 people. Nineteen suspects are to stand trial for the blasts at the end of this month.
Today there were small, solemn memorials at train stations on which people laid thousands of red flowers. There was extra gun-wielding security in the stations. There were no anniversary explosions. Rather, the trains appeared crowded as ever, and life on the suburban railroad continued normal.
Not that the suburban railway could ever be "normal" for an American lawyer. Even the Indian lawyers at my company refuse to ride the trains. When we go to court we take taxis that take an hour and a half through the grind of Mumbai traffic. A train would take only a half hour, but riding the train means having to struggle through the mean crush of people. It was never enjoyable, but I have ridden the train tens of times each time without an Indian lawyer.
Mumbai's suburban railroad is the most densely packed train network in the world, and it requires a certain willingness to trample people in order to get into or out of the cars where people are literally packed tighter than sardines. To avoid this crushing crowd, people hang out the doors, stand in window sills, and sit on the roofs dangerously close to the wires of the overhead power supply.
Within days of last year's blasts, over three hundred suspects were rounded up, and 30 were charged. Nineteen are to be tried.
Justice moves slowly in India, and there is a huge backlog of court cases. Twenty-four million civil cases in the backlog is one estimate I've heard. So the bombing suspects' cases have been put into special fast-track courts. JURIST originally reported the trials would start last November, but even fast-track courts get delayed in India. The new estimate is that the trials will begin by the end of this month. The Mumbai police believe the bombings were orchestrated by a Pakistani militant group, Lashkar-e-Toiba (LeT).
-- Christine Chen, Singapore Management University '08, contributed to this report
Tuesday, July 10, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
The directives and writs of PILs and the hearings of PILs in court are regular news in India today. The PIL movement was begun by the Supreme Court in 1978. The '70s were a troubled time in the history of India, but the judiciary emerged from this period with new strength and legitimacy. PILs were a contributing factor. The public and the politicians began holding the courts in higher regard and even today continue to hold them so.
The back and forth bickering between the government and the Court that defined the Court's early existence (see "India: Judicially Independent" entry below) effectively came to an end once it was clear that the Kesavanand Bharati basic structure doctrine, handed down by the Court in 1973, would not be overturned.
The Prime Minister at the time, Indira Gandhi, placed the government under emergency rule two different times, and during the second emergency now known as the Emergency civil rights were trampled. Indira Gandhi's government emerged from the Emergency very unpopular.
The government was never able to muster the strength to pass legislation to erase the basic structure doctrine. The Supreme Court with its new strength and legitimacy even upheld a lower court's ruling setting aside Ms. Gandhi's election during the Emergency.
Perhaps surprising, especially when considering the fights that formerly took place between the government and the Court, India's activist judiciary currently receives little criticism or complaint about the legislative powers it exercises through PILs. Early this summer, the Indian Supreme Court issued a directive outlawing the hazing called "ragging" in India that senior students inflict upon junior students in Indian universities. Nothing more than murmurs uttered in hidden corners of editorial pages were heard about this legislative action.
At least one commentator, S.P. Sathe, 6 Wash. U. J.L. & Pol'y 29, claims that the Indian people and even state and central governments and other governmental bodies believe that the courts are better arbiters between competing interests than are politicians. In a country infected by political corruption all the way from the central government down to village councils, this sounds like a fair claim. All in all, PILs are highly regarded and well accepted as part of Indian life, even if PILs provide the ways and means for the judiciary to usurp power from the legislature and even the executive.
Monday, July 09, 2007
Eric Linge, Pitt law '09, files from Mumbai:
The Indian Supreme Court has made itself into possibly the most powerful apex court in the world. As addressed in "India: Judicially Independent," below on this page, the Indian Supreme Court held in Kesavanand Bharati v. Kerala that the Court can strike down any constitutional amendment that alters the basic structure of the Constitution. Neither the House of Lords in England, nor the highest courts in Canada and Australia, nor the Supreme Court of the United States have this power.
And with its huge competence, the Indian Supreme Court often legislates, directing society the way it sees fit through the so-called public interest litigations, or PILs. The Constitution makes the Supreme Court the guarantor of the fundamental rights of the people of India. However, the majority of Indians could be called ignorant and poor, and this majority population tends to not know their rights or even how to bring suits in court. PILs developed as a means for this majority population to also have access to the judiciary to receive redress for the violations of their rights.
The key to the PILs is the relaxation of standing requirements. Nearly anyone can bring a PIL, even if the person bringing the suit wasn't personally wronged. In 1982 the Court declared that the judiciary does not exist to serve only the rich, and with PILs "The portals of the Court are being thrown open to the poor and downtrodden." P.U.D.R. v. India. Social action groups such as Peoples Union for Civil Liberties and Peoples Union for Democratic Rights bring suits on behalf of underprivileged portions of society. Lawyers have initiated suits upon merely reading about incidents in the newspaper.
Another key is that all formal pleading requirements are waived for PILs. The court famously began initiating suits upon receiving letters detailing abuses of rights. And the court has even allowed suits that complain of violations of basic human rights, in addition to the fundamental rights that are positively listed in the Constitution.
With PILs the scope of mandamus was broadened. In one PIL mandamus was issued ordering the State to educate the children of prostitutes. In another PIL mandamus banned judges from taking post-retirement jobs in government agencies.
The Court also issues directives in the course of PILs for appointing committees or requesting the government to carry out schemes. For instance, the Court directed a national bank to grant loans to rickshaw pullers and even created a whole scheme for the repayment of these loans. Directions issued in another case detailed how blood should be collected, stored, given for transfusion, and how blood transfusions could be made safe.
Writs of mandamus and directives don't necessarily have to be legislative, but they often are. The legislation appears in court dicta, and the Court has held that the government and lower courts are bound by dicta.
Wednesday, July 04, 2007
Andrew Wood, Pitt Law '08, files from Manila:
The Philippines is a fascinating place to spend the summer. The country is confronted with a constant and complex problem of migration, an issue that the government is struggling to solve. Well-educated Filipinos are flocking out of the country to seek better wages than they can find at home, with around 10% of the nation's population living and working abroad. People find more lucrative work in Dubai, Singapore, Taiwan, and a number of other countries (which, in turn, adds fuel to the fire of human trafficking...but that's a different story). But if asked their destination of choice, most would pick the USA if they could obtain a visa. The lines to get to the U.S. Embassy don't file down the street, as I am told they used to...but only because a change of policy now requires making an appointment in advance. The trend of migration for temporary work is nothing new in the Philippines; during the Marcos era the Philippines sent large numbers of workers to the middle east amidst the oil boom in the 1970s. The post-Marcos era saw high unemployment rates continue, and the government worked to both facilitate overseas work contracts that were safe for its citizens while at the same time trying to address the unemployment problems at home. No easy task, by any means.
The impact of migration/labor export in the Philippines, however, is not just economic. It seems like every family you talk to has someone living abroad. The advantage for them is of course that those individuals almost always send money home. But this type of system, when it occurs on such a large scale, also can breed dependence, and a sense of hopelessness prevails with relation to the future and any effort to improve one's own country. Resentment, frustration, and despair are surprisingly evident, especially concerning a nation known for its happy, relaxed people. This is not to say that people aren't happy in the Philippines; rather, it is just to note that the effect of migration is a double edged sword.
So what to do to improve the effects of migration? Like the issue of immigration in the U.S., there are no easy answers. The national government has made the migration issue a priority, and organizations abound that attempt to empower the locals to live, work, and prosper in their native country. Corporate social responsibility (CSR) initiatives play a huge role in corporations instituting micro-finance and other development programs. For example, I recently met a 30-something-year-old woman and recipient of a CSR micro-finance loan which allowed her to start a small restaurant (food stall) business where she earns a significantly higher salary than when she worked as a maid in Singapore. Plus, she is happier because she is able to be home and raise her children. In a country where only a handful of families own an overwhelming majority of the country, this type of program is promising. Still, a long road lies ahead to address the issue of migration on a large scale.
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