Saturday, March 31, 2012
Tuesday, March 27, 2012
The fight against corruption is central to the good governance agenda of development organizations around the world. However, this article argues that anti-corruption efforts in countries with politically active militaries present a paradox: Corruption clearly can undermine democratic institutions, but so can anti-corruption campaigns. Both domestic and international actors are hesitant to point out corruption in the military due to its revered status as the protector of the country. Yet, in not criticizing they help perpetuate an asymmetry in which politicians are seen as corrupt and incompetent, while the military is viewed as disciplined and incorruptible.
This article uses the case study of the Bangladesh 2007-08 military coup–and to a lesser extent, similar recent coups in Pakistan and Thailand–to show how militaries have not only justified “good governance” coups on anti-corruption grounds, but used charges of corruption to carry them out. It further argues that although good governance rhetoric is potentially destabilizing to democracy in these countries, it can also empower the judiciary, as the military seeks out judicial validation to show that it is providing better, and in many ways more “legal,” governance than civilian politicians. The article ends by calling on anticorruption advocates to adapt a more politically savvy strategy that does not ignore military corruption and focuses on institutions, processes, democratic elections, and consistent prosecution of low-level actors.
Friday, March 23, 2012
The NY Times reported it, as did a host of other renowned papers, journals and periodicals.
KEI (Knowledge Ecology International) has a very useful web page documenting its take on the decision, as also all articles/pieces that have reviewed the decision so far. Jamie Love, the founder of KEI had filed a very potent affidavit before the Controller General of Patents poking several holes in Bayer's estimated cost of 1.8 billion dollars for its patented cancer drug (Nexavar).
The Hindu ran an excellent editorial on the issue by Ananthakrishnan, where he notes:
"Mere application of the test of reasonable price in a country with a weak social health insurance infrastructure provides a strong argument for compulsory licensing in the case of Nexavar, the patent for which is held by the German multi-national company, Bayer. At present a month's treatment regime of 120 tablets costs Rs.2.84 lakh, but manufacture under compulsory licensing will slash it to Rs.8,880. The Indian applicant has been granted the licence till the expiry of the patent in 2021.
The use of compulsory licensing is bound to raise the temperature in the pharmaceutical industry and be dubbed a move that will stifle innovation. But that would be ignoring the point that it is perfectly legal, and is in fact provided for in the patents regime to balance public interest and corporate profits."
I summarised the text of the 63 page order in this piece in the Indian Express and extract the key portions below:
"In August 2011, Natco, an Indian generic manufacturer, had applied for a compulsory licence in respect of Bayer’s patent covering an anticancer drug, sorafenib tosylate, meant for patients with advanced kidney and liver cancer.
A compulsory licence is a legal instrument designed to force intellectual property owners to license out their statutorily granted right to interested third parties capable of manufacturing the patented product at cheaper prices.
....Constituting what many regard as a textbook case for compulsory licensing, Controller General of Patents P.H. Kurian found that all the grounds prescribed in Section 84 of the Indian Patents Act for the issuance of a compulsory licence had been met:
One, Bayer supplied the drug to hardly 2 per cent of approximately 88,000 patients who required the drug. Therefore, the reasonable requirements of the public with respect to the patented drug (Nexavar) were clearly not met.
Two, Bayer’s pricing of the drug was excessive and did not constitute a “reasonably affordable” price. It charged Rs 2.8 lakh for a month’s supply of the drug, whereas Natco was willing to supply the same quantity at Rs 8,800 a month.
Three, since Bayer did not manufacture reasonable quantities of the drug in India, it could not be said to have complied with the “working” requirement under the Indian Patents Act.
...The order marks a watershed in the history of Indian patent law and in many ways represents a “middle path” in the debates surrounding pharmaceutical patents and access to affordable drugs. Patents may now be more palatable to critics, if their worst monopoly effects can be successfully moderated through instruments such as compulsory licensing.
....Although this order marks an important victory for patients and activists who are fighting on their behalf, it is only the beginning. Much more needs to be done, particularly by the Indian government.
For one, the government cannot simply sit back and let innovators and generics slug it out, hoping that lower generic prices would necessarily redress our public health concerns. Illustratively, one simply needs to turn to the fact that Natco’s version of Bayer’s patented drug will sell at Rs 8,800 per month. Given that a sizeable proportion of Indians live below poverty line, how many of our patients can afford even this lower generic price?
The government must step in and take proactive measures to ensure accessible healthcare for all. It should facilitate robust insurance schemes, where health coverage extends to the poorest of the poor. Only then will our right to good health translate from paper to practice for the aam admi."
Tuesday, March 20, 2012
At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:
The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedly assulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.
2. Official and Unofficial US Stances
The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on record saying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)
Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statement made on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does not apparently extend to illegal assassination.
In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?
Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post article dating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.
Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.
3. The Justifications
From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.
The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.
As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism." (emphasis added)
Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso facto a cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.
To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.
[Continued in Part III]
Thursday, March 15, 2012
Monday, March 12, 2012
Friday, March 09, 2012
Wednesday, March 07, 2012
It is great to see more empirical work being done on the impact of judgments. Although this study does not take in a large sample set, it's more qualitative results are quite telling, and I think particularly useful when wanting to show more concretely how the Naz case has affected people's lives.
Tuesday, March 06, 2012
Sunday, March 04, 2012
Please see below for details about this workshop and the call for participants.
Call for Participants
Global Legal Education Doctoral Workshop
Harvard Law School, March 23, 2012
The Harvard Law School SJD Association warmly invites applications from students writing doctoral dissertations in law - or related fields such as education and globalization studies – to participate in the Global Legal Education Doctoral Workshop, to take place at Harvard Law School on March 23, 2012, from 9:00am-4:00pm. This Doctoral Forum is designed to set the stage for the Global Legal Education Forum, on March 23-25, 2012 at Harvard Law School. Ideally, Workshop participants should plan to attend both events.
The goal of the Doctoral Workshop is to identify and foster an academic community of emerging scholars and professionals interested in legal academia, private practice or policy work with a global component, and to frame the key questions and modes of analysis to be pursued in the Forum. The Workshop will engage doctoral students interested in a wide range of questions emerging from the ‘turn to the global’ in legal education. Among others, the Workshop will substantively address the impact of globalization on the following questions: What are the challenges to legal education in the 21st century? What role will doctoral studies in law play in the future of law teaching and law practice? Legal education is currently said to be in ‘crisis’; do the reforms taken under the guise of ‘global legal education’ meet these challenges? What is the emerging place of interdisciplinarity, comparative, transnational and ‘global’ methodologies in the legal academy? What can doctoral students do to initiate and foster institutional changes in their law schools?
Doctoral students will be active participants in a one-day workshop. The day will open with a breakfast and welcome from the Harvard Law School SJD Association. The Doctoral Workshop will consist of three main parts. The first will be a roundtable reaction session where students will present and debate their ideas on the most pressing challenges to global legal education in the 21st century, in response to previously distributed written and visual materials. In the second part, Professors David Wilkins (Harvard Law School), Charles Sabel (Columbia Law School) and Roberto Unger (Harvard Law School) will present their agendas for the future of legal education, followed by an open discussion. Finally, doctoral students will work in break-out groups to devise concrete initiatives – operative within legal academia and beyond - to respond to the challenges identified in the previous sessions.
Interested students should submit a brief statement of interest (approximately 250 words). Students who wish to more actively participate in the Workshop, particularly by giving a brief presentation (7 minutes) at the roundtable session, are encouraged to submit more detailed abstracts (up to 600 words) outlining their work and how they see themselves contributing to the Workshop; creative proposals for participation are encouraged! Students should provide statements of interest and abstracts when they RSVP; no later than March 15, 2012.
Because this is a student-organized event, we unfortunately do not have funding to cover participants’ travel expenses. We will make our best efforts to organize student-hosted accommodation for participants who request this in their RSVP submission.
Please register at this link.
If you have further questions, please email us at firstname.lastname@example.org.
Friday, March 02, 2012
Guest Post by Shraddha Chigateri on "Now you see it, now you don’t...’ Hindu sentiment and the legal discourse on cow slaughter"
Anup Surendranath’s recent post on the Madhya Pradesh anti-cow slaughter law is an interesting and timely intervention on the nature of the broader legal discourse on cow slaughter. It provides us with tiny glimmers of light (of legally protecting the diversity of food consumption practices in India) in the overarching darkness of the recent legal and judicial developments on the regulation of cow slaughter. Surendranath argues that the bans on the possession of beef per se, as opposed to the bans on the possession of beef obtained through slaughter in a state that prohibits such slaughter, have no constitutional basis, even within the logic of the jurisprudence on cow slaughter. The argument that he makes is that the constitutional discourse upholding state bans on cow slaughter and ancillary activities, including possession and sale of beef, is based on the ‘agricultural interests’ of the state, and these are not contravened when beef is imported from another state.
Several interesting issues are raised by Surendranath’s post, which are about the broader legal discourse on cow slaughter- what is the purpose of the laws on cow slaughter? Are the cow slaughter bans constitutional? On what basis do we assess the constitutionality of the bans? Surendranath’s argument is that the ‘agricultural interests’ of states provides the underlying rationale for the bans. This is also what demarcates, for him, constitutional bans from unconstitutional bans. While he recognises that non-secular aims are achieved through secular means, his argument is that the constitutionality of the laws banning cow slaughter is dependent on the notion of ‘agricultural interests’. Surendranath’s arguments on ‘agricultural interests’ are not unjustified. The Supreme Court pronouncements on cow slaughter have repeatedly invoked Art 48 of the Constitution of India which speaks of the scientific organisation of agriculture and animal husbandry to justify the bans on cow slaughter. I would argue however, that each reiteration of the scientific rationality of the bans, whether in be in terms of ‘agricultural interests’ or in terms of the organisation of animal husbandry obfuscates more than it reveals.
Article 48, as I have argued elsewhere, was written into the Constitution to protect ‘Hindu sentiments’, but in the language of the scientific organisation of agriculture and animal husbandry. The Article in effect speaks through both sides of its mouth, so to speak. It masquerades as one thing while doing something quite different. The Article and the jurisprudence that has flown from it, create a chimera where Hindu sentiments on cow slaughter come into view at certain moments and then they disappear. Surendranath locates a disjunction between ‘agricultural interests’ and religious sentiments in the concomitant disjunctions between the legal and political discourses on cow slaughter. I would argue instead that there is a sleight of hand wherein ‘agricultural interests’ serves as an emperor’s clothes’ style legal fiction both within the parameters of legal discourse as well as in wider politico-legal discourse. This legal fiction creates a myth that Art 48, the laws based on it and the attendant jurisprudence on cow slaughter are not about religion at all, but about the scientific organisation of agriculture and animal husbandry. In wider politico-legal discourse, the legal fiction of ‘agricultural interests’ serves to constitutionally legitimise the Hindu right’s more brutal interventions in the regulation of cow slaughter, whilst reassuring their political base of their Hindu credentials.
There are consequences to this legal fiction, the most egregious of which is that the jurisprudence on cow slaughter falls far short of the constitutional ideals of secularism. The courts, since the decision of Mohd Hanif Quareshi and others v State of Bihar, have subjected both the Muslim professions associated with cow slaughter, as well as the Muslim practice of sacrificing cows on Bakr Id to critical scrutiny, but they have not turned their critical gaze to an evaluation of the Hindu belief in the sacredness of the cow. They have instead accommodated this belief either implicitly or explicitly. Moreover, the fiction of the scientific rationale of Art 48 has allowed the courts to employ the ‘usefulness of cattle’ as a framework for regulating the slaughter of cattle. But this has not been done with any serious engagement with, or recognition of, the diversity of perspectives on the ethical, ecological, cultural and economic relationship with cattle when arriving at their preferred science. This meant that for the longest time, the cow was declared as useful for all its life, and that bulls and bullocks could be slaughtered past their usefulness. This is despite the Supreme Court itself recognising in Hanif Quareshi that the cow’s more humble cousin, the buffalo, was by far the more productive. In 2005 in the State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat and Ors, the Supreme Court went much further and upheld the constitutionality of a total ban on the slaughters of cows and her progeny. Some might argue (as the court does in its reasoning), that this judgement merely extended a 40 year old jurisprudence on the usefulness of cattle. In fact the consequence of the judgement was to overturn 40 years of compromise (in effect, if not in reasoning) between divergent conceptions of the ecological and economic relationship with cattle.
What is interesting about Surendranath’s post is that it gets us thinking about how best we may proceed in the legal story on the regulation of cow slaughter. Are we to look for glimmers of light within the jurisprudence of Art 48? It might seem that all is not lost when the Supreme Court proclaims in Akhil Bharat Goseva Sangh v State of AP and Ors that the decision in Mirzapur did not mean that the slaughter of cattle by itself is unconstitutional. However, the narrowing of spaces for dissent and diversity within the logic of Mirzapur as well as the many more strident enactments since Mirzapur provides a cautionary tale. If we are to take seriously the idea that there are diverse perspectives on the economic, cultural, ethical relationship with cattle- including dalit, Muslim and dominant caste Hindu- all of which have to be taken into account and balanced in the regulation of cow slaughter, we might well start with unmasking the anti-secular legal fiction inherent in the jurisprudence on cow slaughter. The question is not whether the laws on cow slaughter are constitutional because they conform to the varying interpretations of Art 48, but whether they are unconstitutional because they repudiate the fundamental principle of secularism underpinning the Constitution itself.
Thursday, March 01, 2012
"NonAlignment 2.0 is an attempt to identify the basic principles that should guide India’s foreign and strategic policy over the next decade. The purposes of this strategy document are three-fold: to lay out the opportunities that India enjoys in the international sphere; to identify the challenges and threats it is likely to confront; and to define the broad perspective and approach that India should adopt as it works to enhance its strategic autonomy."
The report can be downloaded here: http://www.cprindia.org/workingpapers/3844-nonalignment-20-foreign-and-strategic-policy-india-twenty-first-century; as well as here: http://www.kcl.ac.uk/aboutkings/worldwide/global/indiainstitute/index.aspx