Monday, August 22, 2011
Getoar Mjeku, Southern Methodist University Dedman School of Law Class of 2014, is a native of Kosovo and a former broadcaster for Voice of America Albanian Service. He writes that the recent conflict with Serbia in Kosovo's northern territory highlights Serbia's role as a persisting roadblock to imposing the rule of law in Kosovo...
Kosovo's government recently came under fire from several actors in the international community, as Prime Minister Hashim Thaçi ordered a police operation to take control of two border checkpoints in the nation's troubled north in July. While focusing on the violence and the tensions that ensued, many international commentators failed to identify the real initiator of the turmoil or acknowledge the new country's commitment to the rule of law and its pro-European orientation. The short-term objective of the police operation was the desire to heighten the effectiveness of Kosovo's customs and border patrol in order to reciprocate Serbia's ban on Kosovar exports, while its long term objective was to extend constitutional order within its territory.
For the sake of peace and stability, and in order to avoid potential violence that could be prompted by Serbian-sponsored organizations, the Kosovo government invested its hopes for law and order in an international police force. Since its 2008 Declaration of Independence, Kosovo's government has relied on the European Union Rule of Law Mission (EULEX) to help establish order in the Serbian-inhabited north, which, in the absence of formal institutions, has turned into a safe haven for organized crime and contraband.
EULEX's failure to act, however, left Kosovar authorities with no choice but to take matters into their own hands. The Prime Minister's decision to establish control over the border checkpoints was in line with the wishes of the Kosovar government and its international partners, which believe that Kosovo's sovereignty and territorial integrity should remain intact. The executive intended to re-station police and customs officers at the two postswhich were burnt down by Serbian mobs in 2008as part of a peaceful and legitimate action of a sovereign state.
To Kosovo's disadvantage, the swift activation of the Serbian state apparatus laid obstacles in its way. As the Kosovo police special unit moved to the north, neighboring Serbia, which claims Kosovo as its southern province, sent senior government officials into the area in order to mobilize the local ethnic Serb population against the operation. Roadblocks and paramilitary attacks on the Kosovo police resulted in the death of an officer and the injury of several others, and in the wounding of an ethnic Serb reporter. While the special forces withdrew after the two border checkpoints became operational, the local Serb extremists continued their armed demonstration, razing one of the posts for a second time and firing at NATO peacekeepers.
By manipulating the ethnic Serbs in northern Kosovo to rise in rebellion against Kosovo's sovereignty and the rule of law, the Serbian government has demonstrated that it will continue its policy of hostility towards its southern neighbor. Unable to maintain or retake Kosovo by force, Serbia hopes to make the new country dysfunctional and to perhaps regain control of northern Kosovo.
In the short term, Serbia may wish to export its products to Kosovo, and non-functioning border checkpoints would allow them to bypass the reciprocal trade ban. However, in the long run, Serbia likely hopes to partition Kosovo and to continue to destabilize the young republic, as it has done for years. As long as organized crime flourishes in the Kosovo's north and the area remains out of government control, Serbia has the ability to play the situation to its advantage, arguing against Kosovo's independence and state-building capacities.
Nevertheless, Kosovo's territory and borders are well definedSerbia has no formal objections to the boundary linesand it is the duty of the Kosovar government to control them. For years, however, Kosovo's government has tried to avoid Serb-instigated violence in the north and has tolerated criminal organizations in the area. The very peace and stability that Kosovo yearns to maintain will be unsustainable without order and effective rule of law.
The country should be commended for its commitment to its democratic constitution and it should be assisted in exercising sovereignty over this undisputed territory. Kosovo can maintain the hope for further European integration only as an indivisible, sovereign, multiethnic and democratic state. Whereas Serbia, the main hurdle to Kosovo's territorial integrity, will not accede to the continental bloc before it has normalized relations with its neighbors.
Getoar Mjeku is a native of Pristina, Kosovo. Before entering law school in the US, he was a broadcaster for the Voice of America Albanian Service in Washington, DC. He has also been a regular contributor for Albanian-language publications, such as Telegrafi.com and Illyria newspaper, as well as German-based GT-Worldwide magazine.
Suggested citation: Getoar Mjeku, Territorial Sovereignty and Establishing the Rule of Law in Kosovo, JURIST - Dateline, August 22, 2011, http://jurist.org/dateline/2011/08/getoar-mjeku-kosovo-serbia.php.
Thursday, August 18, 2011
Megan Crouch, University of Pittsburgh School of Law Class of 2013, spent the summer working at the Malawi Human Rights Resource Centre. She writes on the ability of rural villagers to access the justice system in Malawi and argues that new legislation to address this issue might improve the situation, if implemented properly...
In 1964, Malawi gained independence from the UK and two years later it became a one-party state. The legal system at the time consisted of both a conventional court system and a traditional court system, running parallel to one another. In 1969, the traditional courts were given jurisdiction over criminal cases. Soon after, these courts developed into the primary means of law enforcement. Hastings Banda, the "President for Life," used these traditional courts to prosecute political opponents and accordingly they became exceedingly corrupted.
When the government became a multiparty democracy in 1994, Banda's successor abolished the traditional courts. Only the conventional legal system remained, and to this day it is still the only court system used in Malawi. The Malawian legal system has three different levels of courts: magistrate courts, high courts, and the Supreme Court of Appeal. The magistrate courts are the lowest level of courts and handle both civil and criminal matters within their jurisdiction. They are located at the district and city level, with about one court in each of the nation's twenty-seven districts and one to two in its four cities. The High Courts of Malawi preside over the magistrate courts. These courts have unlimited jurisdiction over criminal and civil matters and also hear appeals from the magistrate courts. They are situated in the four cities of Malawi. The Supreme Court of Appeal is the highest appellate court, and it hears appeals from the high courts and other tribunals.
Despite the variety, none of these courts function at the village level. Even with the magistrate courts situated at the district level, many people still do not have access to the justice system. The lack of any legal structure in the rural areas of Malawi is one of the main reasons why people are not able to access the justice system. For those who live in a village, the closest magistrate court might be 25 to 30 miles away. Most villagers cannot afford a personal vehicle, and public transportation in rural areas is non-existent. The only options available to villagers are walking, biking or hitchhiking to a court. Furthermore, it is necessary to arrive at the courthouse a couple days in advance of the trial starting. This requires one to raise money for food, accommodation and anything else one might need while travelling away from their home. In the event the magistrate court does not have jurisdiction to hear the case, the only other option is to bring the case before the High Court in the closest city, which can be over 200 miles away. All of this puts a huge burden on villagers and makes it nearly impossible for them to access the justice system.
February 2011 brought a potential change to those living in the rural outskirts of Malawi. Parliament passed the local courts legislation in an attempt to address this problem. According to the bill's memorandum, the act "seeks to introduce a new genre of courts ... with the primary function of dispensing familiar and affordable justice for the ordinary Malawian in line with the spirit of the Constitution which aims at enhancing the right of access to justice by all citizens." In 2009, the Special Law Commission was appointed to review the old Traditional Courts Act in light of the current Malawi legal system. The commission concluded that local courts could benefit society by providing a point from which to access justice in rural areas. As a result of this report, a proposal was created for a bill that would reintroduce these courts.
The Local Courts will be subordinate to the High Courts. This is different from how the traditional courts previously functioned. In the past, the traditional courts had no interaction with the High Courts or the Supreme Court of Appeal. According to the new act, two levels of courts will be constructed. At the lower level, there will be the multiple local courts established in each of Malawi's 27 districts. These will be located near, if not in, villages, making it easier for people living in rural areas to access them. Appellate courts, called the District Appeals Local Courts, will be created in each district to hear appeals from the Local Courts.
A chairperson will head both the Local Courts and the District Appeals Local Courts. The chairperson must be at least 35 years old, in possession of a Malawi School Certificate of Education and have adequate knowledge of the customary law of the area in which the court presides over. It is not necessary for the chairperson to hold a degree in law. The chairperson must also have adequate command of the language of the court but also be proficient in English. Furthermore, the Local Courts will have a panel of assessors that will advise the court in civil matters concerning customary law; however the advice will not be binding. The requirements for the assessors are similar to those of the chairperson, but the assessor must be at least 50 years old and does not need to hold a Malawi School Certificate of Education.
The Local Courts will have jurisdiction over criminal matters, in accordance with Malawi Criminal Procedure and Evidence Code, and over most civil matters. Given the history of Malawi, the creators of this bill have been conscious of the past and have specified certain civil matters the courts will not have the authority to hear. The Local Courts will not have jurisdiction over any civil case at customary law: when the title or ownership of customary land is in question, if the case relates to inheritance of deceased property, wherein the guardianship or custody of infants is in question, if the case relates to issues of witchcraft under the Witchcraft Act, or if the case relates to chieftaincy. This is to help limit corruption of the courts.
While the bill has been created to benefit Malawians, many have concerns with the new legal regime. The largest concern is fear that the courts will still be used for political ends and oppression. Looking at the current government, Malawians are not mistaken for fearing the misuse of the local courts. Recently, President Bingu wa Mutharika shut down the main college campus within a moment's notice and kept it closed for 107 days because a teacher was explaining the government's role in Malawi's current economic crisis. Bingu and his party also passed a bill that gives him control over what is published in the newspaper, limiting the freedom of the press despite its guarantee in the Malawi Constitution. Many Malawians fear the courts will once again be used for persecution of dissenting views.
Nonetheless, if the courts are used to further justice, the new act could be a step closer to providing all Malawians access to the legal system. Desmond Kaunda, a Commissioner for the Malawi Human Rights Commission and Director of the Malawi Human Rights Resource Centre, will spend six months researching whether the local courts will help increase access to justice and benefit society. He has his own concerns, but Kaunda believes the best thing Malawians can do to improve their access to justice is support the bill and make sure the traditional authorities presiding over the courts are held accountable.
A major benefit provided by these local courts is their accessibility to the rural population. They can help increase villagers' access to justice, not only through their proximity, but also through the fact that the proceedings will be carried out in the local language of the village. Simple proceedings may not even require the services of a lawyer, and many of the typical delays associated with the formal justice system will likely not be encountered. Hearings should run more smoothly and quickly, allowing more cases to be heard.
Even with all the potential benefits that could result from the new local courts, many Malawians hope the bill will not take effect. It has only been 17 years since the change from an authoritarian regime to a multiparty system. People have not forgotten what they suffered during Banda's presidency and the ends for which the traditional courts were used. The outcome of this new bill is yet to be determined, as it is yet to take effect and the new courts still have not been established. Only time will tell whether it is a benefit or a detriment to society.
In the end, what is important is the fact that the government is attempting to address Malawi's access to justice problem. The Constitution of Malawi guarantees that every person shall have access to justice and have the right to bring their issues before a court. While it is true that many women and men in Malawi are still provided with that constitutional right, there may be hope for the future with the new Local Courts Act.
Megan Crouch recently graduated from Arizona State University with a bachelor's degree in geography with a minor in history. She participated in the Human Rights and Peace Studies Summer Intensive in Cape Town, South Africa, and work as a HEAL International Volunteer in Arusha, Tanzania.
Suggested citation: Megan Crouch, Improving Legal Access for Rural Malawi Villagers, JURIST - Dateline, August 18, 2011, http://jurist.org/dateline/2011/08/megan-crouch-local-courts-malawi.php.
Sunday, August 14, 2011
Johanna Nestor, University of Pittsburgh School of Law Class of 2012, is currently working as a law clerk for the Office of the Attorney General of the State of Florida. She writes on the issue of astroturfing and businesses using false and misleading information to bolster their reputations in online forums, and the role state attorneys general can play in discouraging this behavior...
While this is an excellent tool, when searching out reviews consumers should be cautious in deciding what they believe. Nonetheless, while caution is essential, individuals should not have to deal with misleading or false information. In 2009, the Attorney General of New York settled with the cosmetic surgery company, Lifestyle Lift, over false positive reviews posted on websites. Lifestyle Lift employees posed as consumers on product review message boards, attacked posters with negative reviews and also created at least 9 separate websites that appeared to be created by prior satisfied customers. These websites contained customer testimonials, before and after pictures, diaries of the procedure and a comments section, and they were made to look as if they were unaffiliated with Lifestyle Lift. While the pictures were actual Lifestyle Lift customers, the diaries, customer testimonials and all the comments from "independent users" where in fact created by Lifestyle Lift employees.
Lifestyle Lift also posted false positive information on user generated content websites, such as the review board RealSelf.com, which Lifestyle Lift later settled with. Furthermore, Lifestyle Lift not only posted false reviews, they also created a rival website made to look like a third party review board, called cosmetictoday.com, where Lifestyle Lift employees posted positive reviews. This website also allowed for independent third parties to post, but critical reviews were often removed. Lifestyle Lift also paid for advertisements through search engines that increased the number of customers brought to its review board.
Moreover, government entities like the attorney general can obtain identity information for online postings and website ownership through properly issued subpoenas. For most review boards, whenever a consumer creates a profile or makes a post, his Internet Protocol (IP) address and a related email address are stored. In the terms of service, users are generally advised of this. IP addresses can be traced back to an individual by identifying and subpoenaing the Internet Service Provider (ISP). Email addresses used to create a profile usually have IP logs stored by the email address provider. Additionally, businesses generally have a large enough account to have a static, as opposed to dynamic, IP addresses assigned by their ISP, meaning that a business may have a specific IP address that does not change, making tracing easier. With regard to websites, even though it is easy to restrict the ability to look up their registration information, this information is also discoverable through a subpoena. Therefore, even though the Internet can seem to provide an anonymous forum for false posters to hide behind, information is recorded and posters can be identified.
An interesting and recent development in consumer protection is that the Federal Trade Commission (FTC) has for the first time settled with a consumer for providing a false and misleading customer-testimonial for a company. In FTC v. Dalbey, the FTC alleged that Russell Dalbey and his wife defrauded customers and made misleading claims through his company that provides educational materials on how to earn a substantial income and accumulate wealth in the real estate market by earning commission on seller-financed promissory notes. The FTC alleged that Dalbey aired various versions of an infomercial called Winning in the Cash Flow Business, which offered various materials such as booklets, CDs, and DVDs, with prices ranging from $40-160, promising to teach consumers how to find and make money brokering notes. These infomercials included customer testimonials, which stated that through using Dalbey's system they had made substantial amounts of money. One testimonial claimed to make as much as $1.2 million in 30 days.
Marsha Kellogg gave one such testimonial. She stated that she made $79,975.11 in one deal and $134,573 in total earnings. In reality, Kellogg had earned only $29,975.01 in the deal and her total earnings were $84,573. The complaint alleged that Kellogg made a representation that was false and misleading, and therefore constituted a deceptive practice in violation of the Federal Trade Commission Act, as well as a false representation as to the benefits of goods or services in violation of Colorado law. Kellogg chose to settle [PDF] the complaint with the FTC and entered an order whereby she agreed to be permanently enjoined from misrepresenting the length of time, and ease with which she, and others, can find, broker and make money through promissory notes. She also agreed to have her prior statement withdrawn and to cooperate with the FTC and the Colorado Attorney General's Office in the further investigation of Dalbey's operation.
Without a doubt, a business should be concerned with its reputation online, and it can only be expected that a business would present and promote flattering information to prospective customers whether it be through online customer testimonials or infomercials. Lifestyle Lift acknowledged that negative online reviews and criticisms posed a threat to their business because it painted the company in a negative light. However, when a company deliberately provides false information and has its employees pose as anonymous satisfied customers, it crosses into an impermissible realm. While Lifestyle Lift and Russell Dalbey have completely different business models, they both engaged in providing customer testimonials through various outlets that were either false, misleading or that inadequately disclosed the entities they were created by or affiliated with. The good news is that the FTC and the attorneys general of various states are taking steps to help curb such behavior in the future.
Johanna Nestor, recently graduated from Notre Dame's Mendoza College of Business with a degree in Information Technology Management and a supplementary major in Peace Studies. She is also an Intellectual Property Certificate candidate at the University of Pittsburgh School of Law.
Suggested citation: Johanna Nestor, Federal and State Action Against False Advertising, JURIST - Dateline, Aug. 14, 2011, http://jurist.org/dateline/2011/08/johanna-nestor-consumer-protection.php.
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