Ligal Education

REFORMING LEGAL EDUCATION IN BANGLADESH

Bangladesh Bar Council, represented by its chairman v A K M Fazlul Karim & Others (Appellate Division of the Supreme Court of Bangladesh)

Judgment dated 17 FEBRUARY 2017

S K Sinha CJ delivered the judgment (excerpts and directives from the judgment as follows)

“It is seen that the Bar Council cannot perform its responsibilities properly. It cannot conduct the enrolment process of advocates properly and accordingly, the Judges of the Supreme Court have been entrusted with the responsibility. It is also not possible on the part of the Judges to undertake such responsibility because they are over burdened with judicial works. It is also not possible on the part of the Judges to inspect the private universities to oversee whether those universities have standard class rooms of law subjects. By compulsion they have undertaken the responsibilities of the enrollment of advocates without taking remuneration/ financial benefits. It hoped that Bar Council shall arrange at least a vehicle for the Chairman of the enrollment committee and the members of the said committee nominated by the Chief Justice for the days of their engagement in the enrolment process. The Bar Council shall consider as to whether a retired Judge of the Appellate Division and three retired Judges of the High Court Division are appointed as Chairman and members of the enrolment committee so that the enrolment process can be expedited. It may also consider as to whether the said Judges may act as advisors of legal and education committee to stream lime the law education. It is reported that the Bar Council cannot complete enrolment process once every year. If the enrolment process is complete every year, the pressure will be minimised.

Though there is provision in article 40(2)(t) that the Bar Council may frame Rules providing “the standard of legal education to be observed by universities in Bangladesh and the inspection of universities for that purpose’ it has remained a silent spectator in this regard. There are allegations that Darul Ihsan University and some other private universities have set up campuses at remote areas and they are involved in selling law graduation certificates in exchange for money. This type of allegation should be taken to task and the violators should be put to justice. Therefore, it is the high time for the Bangladesh Bar Council to frame Rules in accordance with the article 40(2)(t) with prior approval of the government to oversee the standard of the legal education being taught by the universities and colleges. In the absence of Rules, it is not desirable to interfere with the internal management of the universities and colleges. Such conditions may be attached in accordance with article 27(1)(d) of P.O.46 of 1972.

In view of the discussions made above, our conspectus opinion is as under:

• A profession of law being founded on great traditions that it is not a business but a part of a scheme of a welfare State where all segments of public reposed faith in them to protect their fundamental rights, they are answerable to the social conscience of the society and have moderate obligation towards them who are unable to protect their interest.
• Lawyers are duty bound to contribute in building social order so that the fruits of the social economic justice reach to the poor segment of people of the country, and therefore, a lawyer owes a duty to be fair not only to his client but also to the society.
• Bangladesh Bar Council is rendering public utility service and law cast on this Body in the national hope that the members of legal profession will serve society and keep the cannons of ethics defeating an honourable order
• The Bar Council shall frame Rules with approval of the government to monitor the standard of legal education to be observed by universities and law colleges in Bangladesh and the inspection of the universities and colleges for that purpose in accordance with article 40(2)(t) of P.O.46 of 1972.
• The Bar Council shall publish a syllabus to be taught by the universities and law colleges compulsorily which will award LLB honours and pass course degree certificates and that no person shall be allowed to be enrolled as an advocate unless he/she obtains a graduation certificate on law on those subjects in accordance with article 27(1)(i) and (d) of P.O. 46 of 1972.
• The Bar Council has exclusive power to recognize a decree in law obtained by any person from any university or college and it has power to curtail/exonerate the power to practice of any person either in the district courts or in the High Court Division.
• No private university shall issue Bachelor of Law degree unless such person undergoes four years education in law course and this direction shall have prospective effect. No public or private university shall admit students in bachelor of law course more than 50 (fifty) students in a semester.
• The Bar Council has power not to recognize any degree in respect of any student for being enrolled as an advocate who has not studied four years horours course in law along with other subjects in any private university.
• No public or private university or law college shall issue any law degree certificate to a student which does not have sufficient number of teachers to teach the law subject, as may be prescribed by the Bangladesh Bar Council.
• The Bar Council may limit/increase the age limit of a person to be enrolled as an advocate either in the district courts or the High Court Division by framing rules.
• . Rule 65A of the Bangladesh legal practitioners and Bar Council Rules, 1972 intravires the constitution and P.O. 46 of 1972.
• . The Bar Council shall complete the enrolment process of the applicants to be enrolled as advocates in the district courts each calendar year.”

The power of the lawyer is in the uncertainty of the law. (Jeremy Bentham)

BANKERS BE AWARE

There cannot be a remedy against the real owner of the property if any mortgage is made without her/his consent or knowledge

Md. Sekandar and another v Janata Bank Ltd. & others (Appellate Division of the Supreme Court of Bangladesh)

Judgment delivered by S K Sinha CJ (Excerpts from judgment)

“The High Court Division has totally overlooked the applicability of Order 21 rule 103 of Code of Civil Procedure so far as it relates to the right of a third party in the property sold. Sub section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103. We hold the view that a suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit.

Article 42(1) of the constitution provides that subject to any restriction imposed by law, every citizen shall have right to acquire, hold, transfer or otherwise dispose of the property. Right to property is a fundamental right. The expression ‘restriction’ has to be understood as not including ‘prohibition’ or ‘extinction’. In placing a restriction on the right of the property, the Parliament cannot prohibit the exercise of right or extinguish the right. If any restriction imposed by law has the effect or confiscating a property without acquisition or nationalization under the authority of law. The restriction will be violative to article 42. The right to property is also protected by article 31 which mandates that no action detrimental to the property can be taken except in accordance with law. The inclusion of the word ‘in accordance with law’ in article 31 would have subjected to any restriction imposed by law to a stricter scrutiny by the court. A law interfered with the right to property will not be reasonable under article 31 if it does not sub-serve any legitimate governmental interest. The combined effect of articles 31 and 42 is that any acquisition, requisition or nationalization of the property to be valid must be for a public purpose but otherwise not.

Now looking at the plaint it appears that the plaintiffs are claiming title to in the mortgaged property by way of purchase from Md. Abul Kalam Chowdhury and Raja Mia and that the judgment debtors mortgaged the property showing Md. Khurshed Mia, Kashem Mia and Md. Hossain as sons of Lal Mia, Chand Mia and Younus Mia, who had no sons under the name Khurshed Mia, Khashem Mia and Md. Hossain.

Accordingly, they prayed declaration of title in respect of ‘B’ schedule land. However, they also prayed a further declaration that the decree passed in Mortgage Suit No.35 of 1995 is void and not binding upon them. The relief (b) is impliedly barred under section 41 of the Artha Rin Adalat Ain. The trial court on assessment of the evidence on record made clear finding that the judgment debtors collusively mortgaged the ‘B’ schedule property although the plaintiffs have right, title and interest in respect of the said property and that there was no existence of Khurshed Mia, Khashem Mia and Md. Hossain, as heirs Lal Mia, Chand Mia and Younus Mia. Thus, the suit in respect of prayer ‘Ka’ is maintainable

One may pose a question that if the relief in respect of schedule ‘B’ to the plaint is not maintainable even if the plaintiffs get a decree in respect of relief ‘(a)’, they will get ineffective decree in view of the decree passed in Mortgage Suit No.35 of 1995 in favour of Janata Bank, the defendant No.1. The relief (b) cannot be passed by law that will not disentitle the plaintiffs in the enjoyment of the property, if they can establish their title in the court. If the plaintiffs title is declared, naturally the judgment debtors title in respect of the said property would be clouded

Whatever, title the decree holder bank got in respect of the mortgaged property is subject to the right, title and interest of the judgment debtors had in the said property. By reason of the decree, the decree holder bank will not get a better title than what the mortgagors had therein. If the mortgagors had no right, title and interest, the mortgagee will not acquire any right therein which is pure and simple

Therefore, the financial institutions should be cautious at the time of advancing money to the mortgagors by creating equitable mortgage or any other type of mortgage in respect of any immovable property. The real owner’s title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor’s title in the said property.

Fraud vitiates a decree and the real owner can also ignore the decree under section 44 of the Evidence Act.

The appeal, therefore, is allowed without any order as to costs. The judgment of the High Court Division is set aside and the matter is remanded to the High Court Division for fresh hearing of the appeal on merit in the light of observations made above.”

High Court Division rules on simultaneous money loan and cheque default cases

Md. Sirajuddwla v The State and another

Zafar Ahmed, J (AKM Assaduzzaman J agreeing)

The principle of double jeopardy, as argued before us, has been incorporated in Article 35(2) of the Constitution and the concept is firmly established in section 403 of the Cr.P.C. The principle protects a person from trial for the same offence for which he has already been convicted or acquitted (autrefois convict or autrefois acquit). The protection is available only when both the proceedings are for criminal proceedings and both the prosecutions are for the same offence. Here, we are dealing with two proceedings‒ one is criminal and the other is civil. Therefore, the principle of double jeopardy has no manner of application to the issue in hand. ... (Para 17)

The proposition of law, which is no longer a res integra, is that a criminal case and civil suit, though arising out of the same transaction, can proceed simultaneously. ... (Para 18)

Code of Criminal Procedure, 1898, Section 344:

It is not an invariable rule that there cannot be any parallel proceedings on the same facts in Criminal and Civil courts. At the same time, section 344 of the Cr.P.C. vests power upon the Court to postpone or adjourn criminal proceedings ‘for any other reasonable cause’. Thus, proceedings in Criminal Court should be stayed or adjourned where identical issues based on same facts as in criminal cases are involved in suits pending in Civil Court. ... (Para 38)

Negotiable Instruments Act, 1881, Section 138 and Artha Rin Adalat Ain, 2003, Section 41 and Code of Criminal Procedure, 1898, Section 344, 561A:

In the case in hand, a sentence of fine under section 138 of the Act, 1881 may result in a proceeding of execution of decree (section 386(3) of the Cr.P.C.). Again, the same person may face an execution of decree proceeding under the Artha Rin Adalat Ain, 2003 for the same loan transactions which may together exceed the actual claimed amount. If the accused decides to file appeal against the sentence of fine as well as the decree passed in Artha Rin Suit, he has to deposit 50% of the amount of the dishonoured cheque and 50% of the decretal amount which in aggregate would almost cover the claimed amount. This may lead to unjust enrichment and thus, the inconvenience through legal process may lead to absurdity. The ends of justice and fairness demand that the process of law must not be allowed to cause or result in ‘absurd inconvenience’. ... For the reasons discussed above, the case in hand, in our view, falls within the category of rarest of rare cases where an order of stay of the criminal proceedings under the Act, 1881 during pendency of the Artha Rin Suit which are between the same parties and over the same loan transactions, should be passed to give effect to section 344 of the Cr.P.C. in order to prevent abuse of the process of the Court and to secure the ends of justice. ...(Para 41 & 43).

INTERNATIONAL LAW

International Court of Justice delivers order on provisional measures in Ukraine v. Russia (April 19, 2017)

On April 19, 2017, the International Court of Justice (ICJ) delivered its order on Ukraine’s request for provisional measures in the case Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), rejecting Ukraine’s request for provisional measures to halt Russia’s support for rebels in eastern Ukraine and allowing measures requiring Russia to refrain from discrimination against the Crimean Tatar community. According to the press release, Ukraine requested provisional measures under the International Convention for the Suppression of the Financing of Terrorism (ICSFT), arguing that Russia violated the ICSFT by supplying weapons and training “to illegal armed groups that engage in acts of terrorism in Ukraine” and asking the Court order Russia to “immediately and unconditionally cease and desist from all support.” The Court found that although the acts Ukraine refers to have resulted in significant loss of civilian life, Ukraine did not provide sufficient evidence to demonstrate the elements required to prove a violation of the ICSFT are present. Ukraine also requested provisional measures under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), arguing that Russia banned the Mejlis, “the central self-governing institution of Crimean Tatar life,” and restricted the educational rights of ethnic Ukrainians, among other alleged violations. Here the Court found that these acts fulfill the condition of plausibility under the CERD and required Russia to “[r]efrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis” and to “[e]nsure the availability of education in the Ukrainian language.”

https://www.asil.org/blogs/international-court-justicedelivers-order-provisional-measures-ukraine-v-russiaapril-19-2017

European Court holds states may deny student visas due to potential threat to public security (April 4, 2017)

On April 4, 2017, the Grand Chamber of the Court of Justice of the European Union ruled in Fahimian v. Bundesrepublik Deutschland that national authorities may refuse to grant a study visa to a third country national with a degree from a university subject to restrictive measures due to concerns over a potential threat to public security. According to the press release, the case concerned an Iranian student, Sahar Fahimian, who holds a Master of Science from an Iranian university that is the subject of restrictive measures from the EU and was denied a visa to pursue doctoral studies in Germany. Germany “justifies the refusal by the fear that the knowledge Ms Fahimian might acquire during her research could subsequently be misused in Iran (for purposes such as the collection of confidential information in western countries, internal repression, or more generally in connection with human rights violations).” The Court held that “national authorities enjoy a wide discretion in assessing the facts in order to ascertain whether, in the light of all the relevant elements of the situation of the third country national who is applying for a visa for study purposes, that person represents a threat, even if potential, to public security.” The Court noted that states must still ensure the denial of a visa under Directive 2004/114 on the conditions of  admission of third country nationals for study purposes “is based on duly justified grounds and a sufficiently solid factual basis.”

https://www.asil.org/blogs/european-court-holdsstates-may-deny-student-visas-due-potential-threatpublic-security-april

European Court rules workplace regulations banning political, philosophical, or religious signs are not direct discrimination (March 14, 2017)

On March 14, 2017, the Grand Chamber of the Court of Justice of the European Union ruled in Achbita v. G4S Secure Solutions NV and Bougnaoui v. Micropole SA that internal work regulations that prohibit visibly wearing political, philosophical or religious signs do not amount to direct discrimination. According to the press release, in Achbita, Samira Achbita was fired from her position as a receptionist for her refusal to stop wearing an Islamic headscarf at a company with regulations that prohibited employees “from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs.” The Court found that the regulations applied to all belief systems equally and consequently did “not introduce a difference of treatment that is directly based on religion or belief ” for purposes of the EU directive on equal treatment in employment and occupation. The Court also stated that a national  court may find the regulation is indirectly discriminatory if it nevertheless results in a particular religion being put at a specific disadvantage, but “such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.

In Bougnaoui, a French company fired Asma Bougnaoui when she refused their request to stop wearing an Islamic headscarf after a customer complained about it. Here, the question sent from the French Court of Cassation was whether a customer’s wish to not have services provided by someone wearing an Islamic headscarf “may be considered a ‘genuine and determining occupational requirement’ within the meaning of the directive.” The Court noted that “that it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement” and held “that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive.”

https://www.asil.org/blogs/european-court-rulesworkplace-regulations-banning-political-philosophical-orreligious-signs

UNITED STATES SUPREME COURT

The non-frivolous-argument standard is not consistent with the Foreign Sovereign Immunities Act (FSIA)

BOLIVARIAN REPUBLIC OF VENEZUELA ET AL. v. HELMERICH & PAYNE INTERNATIONAL DRILLING CO. ET AL.

No. 15–423. Argued NOVEMBER 2, 2016— Decided MAY 1, 2017

The Foreign Sovereign Immunities Act (FSIA) shields foreign states from suits in United States Courts, 28 U. S. C. §1604, with specified exceptions. The expropriation exception applies to “any case . . . in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency or in¬strumentality of the foreign state . . . engaged in a commercial activi¬ty in the United States.” §1605(a)(3). A wholly owned Venezuelan subsidiary (Subsidiary) of an Ameri¬can company (Parent) has long supplied oil rigs to oil development entities that were part of the Venezuelan Government. The Ameri¬can Parent and its Venezuelan Subsidiary (plaintiffs) filed suit in federal court against those entities (Venezuela), claiming that Vene¬zuela had unlawfully expropriated the Subsidiary’s rigs by national¬izing them. Venezuela moved to dismiss the case on the ground that its sovereign immunity deprived the District Court of jurisdiction. Plaintiffs argued that the case falls within the expropriation excep¬tion, but Venezuela claimed that international law did not cover the expropriation of property belonging to a country’s nationals like the Subsidiary and that the American Parent did not have property rights in the Subsidiary’s assets. The District Court agreed as to the Subsidiary, dismissing its claim on jurisdictional grounds. But it re¬jected the claim that the Parent had no rights in the Subsidiary’s property. The District of Columbia Circuit reversed in part and af¬firmed in part, finding that both claims fell within the exception. With respect to the Subsidiary’s claim, it concluded that a sovereign’s taking of its own nationals’ property would violate international law if the expropriation unreasonably discriminated based on a compa¬ny’s shareholders’ nationality. With respect to the Parent’s claim, it held that the exception applied because the Parent had raised its rights in a nonfrivolous way. The court decided only whether the plaintiffs might have a non-frivolous expropriation claim, making clear that, under its standard, a non-frivolous argument would be suf¬ficient to bring a case within the scope of the exception. Given the factual stipulations, the court concluded, the Subsidiary had satisfied that standard for purposes of surviving a motion to dismiss.

Held: The non-frivolous-argument standard is not consistent with the FSIA. A case falls within the scope of the expropriation exception on¬ly if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” A court should de¬cide the foreign sovereign’s immunity defense “[a]t the threshold” of the action, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493, resolving any factual disputes as near to the outset of the case as is reasonably possible. Pp. 6–16.

• The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a cer¬tain way (in violation of international law). Simply making a non-frivolous argument to that effect is not sufficient. This reading is supported by the provision’s language, which applies in a “case. . . in which rights in property taken in violation of international law are inissue.” Such language would normally foresee a judicial decision about the jurisdictional matter. This interpretation is supported by precedent. See, e.g., Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193, 201–202. It is also supported by a basic objective of the FSIA, which is to follow international law prin¬ciples, namely, that granting foreign sovereigns immunity from suit both recognizes the “absolute independence of every sovereign au¬thority” and helps to “induc[e]” each nation state, as a matter of “in¬ternational comity,” to “respect the independence and dignity of every other,” Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562, 575. Noth¬ing in the FSIA’s history suggests that Congress intended a radical departure from these principles in codifying the mid-20thcentury doctrine of “restrictive” sovereign immunity, which denies immunity in cases “arising out of a foreign state’s strictly commercial acts,” but applies immunity in “suits involving the foreign sovereign’s public acts,” Verlinden, supra, at 487. It is thus not surprising that the ex-propriation exception on its face emphasizes conformity with interna¬tional law, requiring both a commercial connection with the United States and a taking of property “in violation of international law.”   A “nonfrivolous-argument” reading of the exception would under¬mine the objectives embedded in the statute’s language, history, and structure. It could also embroil a foreign sovereign in an American lawsuit for some time by adopting a standard limited only by the bounds of a lawyer’s (nonfrivolous) imagination. And it could cause friction with other nations, leading to reciprocal actions against this country. Pp. 6–12.
• Plaintiffs’ arguments to the contrary are unpersuasive. They suggest that the expropriation exception should be treated similarly to 28 U. S. C. §1331’s “arising under” jurisdiction, which applies if a plaintiff can make a non frivolous argument that a federal law pro¬vides the relief sought—even if, in fact, it does not, Bell v. Hood, 327 U. S. 678 685. But §1331 differs from the exception in language and concerns. Section 1331 often simply determines which court doors—federal or state—are open, and neither it nor related jurisdictional sections seek to provide a sovereign foreign nation with immunity—the FSIA’s basic objective. Nor does the text of §1331 suggest that consistency with international law is of particular importance.   Plaintiffs also claim that the non frivolous-argument approach will work little harm since the matter could be resolved by motion prac¬tice before the sovereign bears the expense of a full trial. But resolv¬ing a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or summary judgment under Rule 56 may impose increased burdens of time and expense upon the foreign nation. And a district court’s de¬cision that there is a “violation of international law” as a matter of jurisdiction may be immediately appealable as a collateral order, while the same decision made pursuant to a Rule 12(b)(6) or Rule 56motion would be a decision on the “merits” not subject to immediate appeal. Moreover, the Circuit would part with its nonfrivolous¬ argument standard where a “violation of international law” is not an element of the claim to be decided on the merits. This bifurcated ap¬proach is difficult to reconcile with the statute’s language, history, or purpose; and it creates needless complexity for judges and lawyers, domestic and foreign. Pp. 12–16.  

784 F. 3d 804, vacated and remanded.”

A MATTER OF JUSTICE

Somali woman’s sad experience under UK law – CARMEL RICKARD 

The Biglaw director who alerted me to the new judgment headlined his message ‘Human Rights Brexit’, and he has a point.

SXH v The Crown Prosecution Service is the most recent decision of the UK’s Supreme Court, delivered with a number of other judgments midApril. It concerns a young woman from Somalia whose life has been almost unbearably blighted by civil war, violence and a lack of respect for her most basic rights as a person. Then, when she arrived in England desperate for a safe place, she met further suspicion, threats and months in prison. And now that country’s highest court has refused compensation for her unwarranted imprisonment.

The woman, known only by the initials SXH, was born on Somalia’s Koyama Island on 26 December 1991. In 2005 members of the majority clan murdered her father. In 2007, they again attacked, this time raping her in front of her disabled mother. The next year they killed her mother and bludgeoned SXH over the head leaving her unconscious.

She fled Somalia with a friend, spending a year in Yemen before going to Holland where an ‘agent’ provided her with a false passport. When she landed at Stansted Airport on 27 December 2009, the day after her 18th birthday, she produced the passport and was challenged by border officials. She immediately gave her real name and details and claimed asylum.

While the prosecution investigated charges against her for using false documents, she waited in prison. Her asylum interview took place on 26 May 2010 and on 10 June she was granted asylum. The next day she appeared in court, was found not guilty and released.

SXH later brought a damages claim against the prosecution service for her nearly six months in prison. During that time in jail her fragile psychological state worsened and she became increasingly depressed. The case made its way up through the legal system to the apex court where five judges have now finally ended any hope she may have had of compensation. And with it ended any hope that her case would ensure officials treated others any better

In the UK, as with most other countries, it is an offence to try to pass someone else’s passport off as your own and you could spend up to 10 years in jail for doing so. But of course people fleeing their own country will usually not have their own, valid, papers. The 1951 Refugee Convention says that signatory states may not punish someone under such circumstances. UK law makes specific provision for just such a situation saying that if you flee your country because your life is at risk, and you claim asylum as soon as you arrive in England, then those circumstances will be a defence to a charge involving false papers. You might think that the convention provisions combined with the UK law would have prevented all those months in jail. Even more so, after a series of cases in which the UK courts have criticised the prosecuting authorities for not applying the law that gives the asylum-seeker a defence to using a false passport. But you would be wrong.

Five judges of the Supreme Court heard her appeal, based on article 8 of the European Convention of Human Rights – the right to respect of one’s privacy and family life. The judges said that this article was not applicable. Even if article 8 was applicable, however, it was not infringed by the action against her.

There was the faintest suggestion that she might have had more success under another article of the convention, but that was it – apart from some weasel words of regret and a barely discernible frown at the investigating authorities. Take these sentences for example: ‘Things could have been done better and it is regrettable that the claimant, a vulnerable young woman, spent the time that she did in custody. Criticism can be made of the (prosecution) for the length of time it took to investigate the position … and to conclude that (she) was likely to succeed in (her) defence.’

One of the judges [Kerr LJ] wrote a separate concurring decision, ending like this: ‘I reach the decision that (she) must fail in her appeal with regret. This woman, in her short life, has had to endure experiences of the most horrific nature. … It is not in the least surprising that she had to resort to the subterfuge of false papers in order to secure the measure of safety that she believed this country would afford her. It is sad that her terrible circumstances were compounded by her incarceration at a time when she was vulnerable and defenceless.’

For someone from South Africa with its strong constitution and an apex court whose members do not hesitate to apply our Bill of Rights, it is something of a shock to realise the difficulties involved in seeking human rights protection in the UK. That this young woman, for example, had to appeal to the European Convention on Human Rights, rather than finding immediate help in domestic rights legislation appears unbelievable. What happens post Brexit, I wonder, when not even the European Convention is available against human rights abuse?

Her case prompted me to ask whether SXH would have fared any better if she had flown in to South Africa on a false passport. Lawyers specialising in refugee work said while the legal protections may in theory be better, the reality is different.

‘You could make a good argument that you cannot charge someone over false papers,’ said Jacob van Garderen, of Lawyers for Human Rights. ‘The Refugees Act takes account of people arriving here using ‘irregular means’. And the mere fact that she was from a failed state without a sitting government for decades would have placed a responsibility on the authorities to protect her via the relevant legislation: the Constitution, the Refugees Act, the immigration laws and, depending on her age, the Children’s Act – they would all have applied.

On the other hand, he said, the reality was often very different and there was ‘no telling what happens at airports’, where there was little oversight. LHR has had to deal with cases ‘where the person was sent back’ rather than being allowed to enter and apply for asylum.

Van Garderen said he was confident, however, that someone in the position of SXH would have been more successful in claiming damages.

Another attorney who specialises in refugee work, Chris Watters, said that in some ways, ‘things were getting better’. While the rhetoric and attitudes of officials and the public appeared to be ‘hardening’, the ‘safety net’ for vulnerable asylum-seekers had grown. This was due to more legal help becoming available with even large attorneys’ firms getting involved in refugee issues as part of their pro bono commitment – witness the Biglaw director who alerted me to the SXH case.

Like Van Garderen, however, Watters was greatly concerned about another development: the government’s stated intention to move adjudication of asylum-seekers’ applications away from the cities to the border areas of South Africa. ‘What happens there will be out of sight and out of mind. We fear people will be thrown out before anyone can act to protect their rights. Increasingly the challenge to the legal community will be how to expand our safety net to the processing or detention centres in the border areas. That is very worrying.’

[With permission from Legal Brief: Issue no: 54, Tuesday 02 May 2017]

NEPAL: Chief justice Sushila Karki suspended 

Sushila Karki suspended after MPs filed impeachment motion accusing her of bias and interfering with executive powers.

Karki, Nepal’’s first female chief justice, was suspended after an impeachment motion was signed by politicians [File:AP]

Nepal’s first female chief justice has been suspended after an impeachment motion filed against her was signed by members of parliament. The two main parties in the ruling coalition - the Maoists and the Nepali Congress (NC) - accused Sushila Karki of interference after the Supreme Court last month overturned the government’s choice for chief of police. The government had appointed Jaya Bahadur Chand as police chief, but the court ruled that the highest-ranking officer Navaraj Silwal should take the top job. “We have decided to impeach Chief Justice Sushila Karki ... after she visibly started taking sides in cases,” Min Biswakarma, a member of the ruling coalition and an NC member of parliament, who proposed the motion, told AFP news agency on Monday. Hours later, Bimalendra Nidhi, deputy prime minister and NC member, resigned in protest. One  of the smaller coalition parties - Rastriya Prajatantra Party - has also threatened to quit the government. KP Sharma Oli, leader of the Communist Party of Nepal and former prime minister, also criticised the government’s move. But the Communist Party of Nepali (Maoist Centre) of Prime Minister Pushpa Kamal Dahal, also known as Prachanda, and its main coalition partner, the NC, are together on the issue.

Karki’s supporters say she has taken a strong stance against corruption during her year-long tenure as head of the Supreme Court. The motion to impeach her was signed by 249 legislators (out of 601) from the NC and the CPN (Maoist Centre). The government said she breached Article 75 of the constitution, which outlines the government’s executive powers. A committee will now be established to investigate the allegations of bias, after which MPs will vote on whether to impeach her. But the process is unlikely to get that far as she is due to retire in June when she turns 65. Lok Raj Baral, a political analyst, told Al Jazeera that Karki’s suspension is the latest case of the judiciary versus the executive in Nepal. “Karki took a tough stance against corruption, but she was a bit aggressive - that annoyed the politicians,” he said.

Excerpts from:

http://www.aljazeera.com/news/2017/05/nepal-chief-justice-sushila-karki-suspended-170501124314347.html

INTERNATIONAL CONFERENCES

15th Annual IBA AntiCorruption Conference, 13–14 June 2017, OECD Conference Centre, Paris, France

A CONFERENCE PRESENTED BY THE IBA ANTI-CORRUPTION COMMITTEE, SUPPORTED BY THE ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD)

Topics may include:

• Recent trends and updates on enforcement and prosecution from the OECD Working Group on Bribery
• Asset recovery: Role and standing of victims of corruption in criminal proceedings, notably in the context of structured criminal settlement
• Double jeopardy and managing risks in cross-border investigations and prosecutions
• Uniform deferred prosecution agreement standards? Setting the stage
• Corruption at a human level: Sextortion, trafficking, bribery and the business supply chain
• Bribery dynamics in the board - room: How a company responds to bribery and corruption
• The collateral consequences of corruption: The world of civil sanctions and debarments
• The state of the corruption union: Where are we and where are we going?

Andrew Webster-Dunn or telephone on +44 (0) 207 842 0090

6th IEL/SEERIL International Oil and Gas Law Conference, 21 – 23 JUNE 2017, Waldorf Hilton, London, England

A conference presented by the Institute for Energy Law (IEL) of the Center for American and International Law and the IBA Oil and Gas Law Committee and the United Kingdom Energy Lawyers’ Group (UKELG) of the IBA Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL), supported by the Institute for Transnational Arbitration (ITA) and the IBA European Regional Forum.

The IEL first collaborated with the Oil and Gas Law Committee of the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) in 2008, to present a two-day conference on international oil and gas law in London.

Topics will include:

• What does BREXIT mean for UK energy policy and the single European energy market?
• What Trump’s first five months means for energy
• The developing role of funds and private equity in upstream oil and gas
• Climate change and dispute resolution
• Tax disputes and investor protection
• Dispute resolution in Africa - an update
• Latin America and world energy update
• Global LNG – the new supply wave and the evolving dynamics of the global LNG trade

Jenny Roote or telephone on +44 (0) 207 842 0090

SIX OF THE BEST LAW BOOKS

The Rule of Law by TOM BINGHAM

Whatever did inquiring legal minds read before Lord Bingham published The Rule of Law? This slim volume has rapidly become the book Guardianreading lawyers are most likely to recommend to anyone interested in the profession. As Joshua Rozenberg put it: “Bingham’s definition of that much-used term is now entirely authoritative and will probably remain so for the next 120 years or more. In summary, it is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’

Letters to a Law Student by NICHOLAS MCBRIDE

“Dear Sam, I hope you don’t mind me writing to you in this way...” The only book to receive as many nominations as Bingham’s was Letters to a Law Student, by All Souls fellow and director of studies at Pembroke College, Cambridge. Solicitous, authoritative and hardly discounted even by Amazon, it knows its audience - those who already have a place to read law are advised to skip the first chapters.

Glanville Williams: Learning the Law (ATH Smith)

Welsh legal scholar Williams died in 1997, but Learning the Law lives on - though much of the rest of his prolific output is out of print. His support for legalising abortion and euthanasia, as well as his role in decriminalising suicide in 1961, earned his reputation as a reformer. But not everyone is a fan. “I read it once and I’ve never touched it again,” wrote Stephen Clark (LLB Exeter and about to start his BPTC). “This is supposedly the standard introductory text, but I couldn’t encourage students enough to stay away from it. It really won’t help when it comes to knowing the law, it won’t help when it comes to understanding the law and it won’t impart you with the skills necessary to do well on the LLB.”

What About Law? by CATHERINE BARNARD ET AL

Recommended by - among others - Southampton University lecturer Mark Telford, What About Law? describes the various fields of law in engaging detail, though is less forthcoming with practical advice. Opens with the legal implications of the wild party 17-year-old Laura throws while her parents are away for the weekend.

Eve Was Framed by HELENA KENNEDY

Baroness Kennedy, as listeners to her current Radio 4 series will know, is as much concerned with justice as the law. Much of this lively and highly readable book is devoted to exploring the myriad ways in which the legal system has let down women - as lawyers, victims and defendants - though there is also plenty of optimism, particularly about the ability of women to rise to the top of the legal establishment. Kennedy’s Just Law was also nominated.

Bleak House by CHARLES DICKENS

Somewhere in the new Rolls Building, a modern Jarndyce v Jarndyce is doubtless lumbering - or perhaps the Technology and Construction Court is hosting a particularly lengthy dispute involving tree roots. Dickens was a court reporter for four years and undoubtedly drew on his experiences, particularly at the Old Bailey, for his fiction - this coining trial may have inspired part of Great Expectations.

https://www.theguardian.com/law/2012/aug/08/sixbest-law-books

 

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