The Relationship between the Rule of Law and Separation of Powers: A Bangladeshi Perspective

The PDF below contains an essay I wrote for a Legal Theory class at Warwick in 2008-2009 on the aforementioned topic. I spent a good part of my Spring break reading Rousseau and social contract theories before writing this. There is much I would add now, in light of recent case law, but I still maintain the view that both terms are essentially contested and than an appreciation of whether rule of law ‘exists’ in a country cannot be divorced from local realities or the country’s stage of political maturity.

Relationship between Rule of Law and Separation of Powers in BD

Morshed
the Hague

Impression of the Guest Lecture delivered by H.E. CG Weeramantry

Impression of the Guest Lecture delivered by H.E. CG Weeramantry

Today, I attended an inspiring guest lecture delivered by H.E. CG Weeramantry, a former Vice President and Judge of the International Court of Justice (ICJ), most famous for his dissenting and separate opinions on nuclear weapons and sustainable development. In his 50-minute, ex tempore address, the honourable judge spoke eloquently about how the wisdom of global religions should inspire the development of international law. Interweaving quotations from the Holy Quran, the Ramayana and the King James Bible, in his lecture he argued that these great scriptures are a treasure trove  for those seeking to formulate principles of international environmental law, protect the rights of the child and preserve the rule of law. He referred to how Rama avoided the use of highly destructive weapons in the war against Ravana, after consulting great sages (of the law), and how Christ sought to protect the rights of children (and arguably future generations) by saying, “whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea” (Matthew 18:6). He spoke of how they all espoused sustainability and concern for future generations and stressed the cross-fertilisation of these universal ideas across civilizations. This was in line with his approach as an international judge, when he broke away from the traditional eurocentricism of the ICJ and arguably brought TWAIL more into the mainstream.

However, while looking at the past, at millennia of knowledge, the 89-year old judge had an eye fixed firmly at the future. Nuclear disarmament is not as high on the policy agenda now as it was in the ’80s and ’90s but sustainable development certainly is. Thus, the title of one of his 30 (!) books continues to be instructive – “Tread Lightly on the Earth” (quoting Ayat al-Furqan, 25:63).

Morshed
Leiden

Official English Translation of the Bangladesh Labour Act (2006)

Please find below the official English translation of the Bangladesh Labour Act, 2006, as amended till 2015. This is an invaluable resource for anyone conducting research on Bangladesh’s labour and employment law and will somewhat settle the questions researchers might have concerning applicable terminology.

Bangladesh Labour Act 2006 (with amendments till 2015)

Morshed
Leiden

Costs Keep Soaring

Costs Keep Soaring

In today’s Guardian, there was an article concerning the spiralling costs of qualifying as a Barrister. Admittedly, the eye-popping figure of £127,000, that was quoted from the new Chair of the Bar Council, is based on the most circuitous route to the Bar: 1) non-law degree in London; 2) GDL in London and 3) BPTC in London, plus living expenses during that time. Apparently, a similar path followed outside of London will set students back 111,000 GBP.

Astronomical sums, but for a Bangladeshi/Commonwealth lawyer, perhaps the most noteworthy figure is that of “£19,000” for the BPTC. (At least for the BPTC, UK, EU and non-EU students are on equal footing, as they have to pay the same fees. However, UK & EU students get to pursue the course part-time while non-EU students don’t, as a result of strict immigration rules.)

To elaborate a little on this, I did a quick search through the established BPTC institutions – that I have provided links to on the left sidebar – and found that for the 2016-2017 year, the full time BPTC tuition fees are £19,070/£15,680 at BPP (London/Rest of England and Wales), £16,060 at Cardiff,  £18,000 at City Law School,  £14,480 at Manchester Metropolitan University, £13,050 at Northumbria University, £14,100 at Nottingham Trent University, £19,040/£15,480 at the University of Law (London/Rest of England and Wales)and £13,795 at UWE-Bristol.

Looking at these figures, it seems that fees have gone up by roughly 30% since I did the BPTC in 2011-2012. This means a Bangladeshi student will have to pay somewhere between 14.5 lac BDT and 21.1 lac BDT  as tuition and between 10 lac and 13 lac BDT as living expenses through the academic year (according to UK Visa & Immigration minimum requirements).

Many in England perceive the Bar to be an ‘elite’ profession, dominated by a moneyed Old Boys Network, but through Inn scholarships, institutional bursaries, pupillage top-up schemes and an increased percentage of women joining the Bar and being appointed QCs, the reality is gradually changing. (Though challenges do remain) But this shift is only happening in the UK.

For non-EU Bar aspirants, the financial barriers to entry are overwhelming. Only a privileged few can hope to study at one of the aforementioned institutions by paying full fees or benefiting from a partial fee reduction. Some might say – “So what? If they can’t afford it, they should study at their own Law Schools and get qualified there”.

The problem is, in countries like Bangladesh, the number of quality Law Schools can be counted on one hand. For a country of 162 million people, there simply aren’t enough seats to accommodate all deserving candidates. As a result, many choose alternate careers. At the same time, I believe there is a nascent demand for legal services that is not met, as there are disproportionately few lawyers compared to the size of the general population. How do we remedy this? How do we ensure a bright future for the next generation of lawyers?

Well, the ‘invisible hand’ has pointed to two options already. On the one hand we have affiliate, associate and registered centres of the University of London, BPP and Northumbria University in Bangladesh, which allows students to pursue UK LLB (Hons.) degrees at a fraction of the usual cost, without leaving their home town. However, it is widely assumed that students graduating from these programmes will eventually go on to pursue the BPTC in England. Thus, we come back to the aforementioned cost problem and its deterrent effect. Some meritorious students may try to become Advocates or in-house counsel, while others will leave the profession altogether.

On the other hand, a number of private universities have opened new law departments. While this is a positive development, as I feel that we should develop high-class, local law schools like India, but the problem is quality-management and regulatory oversight. In this case, I am not referring to academic output per se but rather to the variable standards of teaching at some of these institutions. Many law departments are understaffed, overly reliant on part-time lecturers and lack the quality controls and feedback loops needed to ensure high teaching performance.Thus, questions may arise as to the extent to which these LLB degrees are compliant with the requirements of the Advocateship examinations and the broader demands of a legal career. (See here for an example of a recent tussle between certain private university students and the UGC-Bar Council regarding the recognition of LLB degrees). Given that the tuition fees of private universities are not exactly cheap by Bangladeshi standards, students may legitimately question whether they should pursue such qualifications at all.

Till these issues are comprehensively addressed, aspiring Bangladeshi law students will have to choose between the spiralling costs of English law degrees and local law degrees that may not be recognised!  A truly precarious position to be in.

Morshed
the Hague

‘Blue Sky Mine’: CSR’s lack of CSR

‘Blue Sky Mine’: CSR’s lack of CSR

If the sugar refining company won’t save me, who’s gonna save me?“, Peter Garrett cynically implores in this quintessential anti-corporate anthem. Midnight Oil was an internationally renowned Australian band, famous for their activism, and this song topped the charts across Western Europe and North America.

The workers of the Wittenoom asbestos mines were given the classic Hobson’s choice by the mine-owner Colonial Sugar Refinery (CSR) Limited: labor in the mines and develop lung cancer or don’t get “pay in your pocket” or “food on the table tonight”.

The mine was not immediately shut, even after it was discovered that blue asbestos was poisonous to the miners. Due to the number of people that contracted fatal illnesses as a result of this operation, this is widely regarded as the greatest industrial disaster in Australian history.

Aside from its social message, it is perhaps the only song I have heard that derides the concept of shareholder wealth maximization:

The candy store paupers lie to the share holders
They’re crossing their fingers they pay the truth makers
The balance sheet is breaking up the sky

(I have to confess though, there is a certain irony in the fact that it was the representative of a large multinational petroleum company that showed me this video during a lecture!)

Morshed
the Hague

A Living Constitution

A Living Constitution

Today I read an impassioned speech delivered by the (late) Hon’ble Thurgood Marshall, J. of the US Supreme Court in the midst of nation-wide celebrations organised for the bicentennial of the US Constitution. In his remarks, he scythed through jingoistic nationalism, the romanticisation of the original document and the avowed belief in the infallibility of vision and judgement of the American founding fathers. To explain the magnitude of these comments and the fame/notoriety it brought him, I should add that this was 1987 and Marshall was the first African-American judge on the Supreme Court.

I think three passages are particularly worth noting:

I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

He goes on to indicate how the founders and drafters of the original Constitution, even the more ‘egalitarian’, Quaker ones, deliberately deprived slaves from the substantive benefits of ‘equality’, ‘liberty and ‘justice’ so as to secure their own economic interests. It took a civil war, countless civil rights movements and untold civilian casualties to correct these original omissions. As Marshall correctly points out:

“We the People” no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.

While his short speech concerned the institutionalization of racism through the Constitution and was informed by his experience as an African-American (or “descendant of an African slave” as he called himself), this closing statement has a broader appeal:

[I]n this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled.

Despite being a progressive charter in many ways, I think the millions, living and dead, who experienced a Jim Crow education, were excluded from voting, were told what they could or could not do with their bodies or who they could or could not share their lives with – as a result of this Constitution and its rigid interpretation – may share this sentiment.

But this brings me to a point that is closer to home. As with the US Constitution, Bangladesh’s Constitution of 1972 is a remarkable document. It pledged the State to “the high ideals of nationalism, socialism, democracy and secularism” and stirringly envisions a society where political, economic and social justice and equality are assured. It is unfortunate that this bold document did not have much time to establish itself in our nation’s consciousness before being subverted. Since 2009, we have been on a tortuous path to undo the damage wrought by a series of authoritarian interregnums, with the view of re-establishing our original values. These amendments have ranged from the reintroduction of socialism as a fundamental state policy to abolishing the Supreme Judicial Council and reinstating Parliament as the organ responsible for recommending the removal of judges to the President. Perhaps the most controversial decision was to scrap the Caretaker Government system that had been used in each national election since 1991.

As to be expected, this was a politically charged process. Some claimed that such a move threatens to ossify the Constitution and denies the (purported) improvements made to its provisions through subsequent amendments. Whether the Constitution is fossilised or not, will largely depend on the future action of our Courts and Parliament. Leaving aside the essentially political question of whether one electoral process is superior to another, or one judicial investigation procedure is better than another, a study needs to be undertaken on whether our higher courts consistently adopt an ‘originalist’ approach to constitutional interpretation or construe it as a living document. Similarly, it is necessary to note the additions made, that were not envisioned by the drafters. An earlier Government included a quota for 50 female MPs (which, till date, has been retained) and through the Fifteenth Amendment, a new fundamental principle of state policy was added to  preserve the environment and biodiversity.

I hope that through the application of the legislative and judicial mind, the outstanding debate on minority rights and recognition will also be prudently settled so that during the Golden Jubilee of our Constitution, there are far fewer suffering quietly than they did in the US over two centuries.

Morshed
Leiden

Negotiation, Erin Brockovich and Flint

Negotiation, Erin Brockovich and Flint

Earlier today, I briefly sat in on a lecture delivered by a senior colleague of mine, MPP (Maarten) van Buuren, on international commercial law and negotiation. During his presentation, he spoke about the Harvard Principled Negotiation method, as elaborated in the seminal Getting to Yes: Negotiation Agreement Without Giving In.

One of the key components of this method is ‘focusing on interests, not positions’, which in other words means focusing on your underlying motivation for a stance on an issue, rather than just the stance itself. This point was underscored by showing a clip from Erin Brockovich (2000), a legal drama about a one-woman crusade against a multi-billion dollar company responsible for industrially poisoning a city’s water supply. In the clip which I have shared below, the novice negotiator sent by the company clearly focuses on positions – a final cash settlement of US$ 250,000 – rather than interests. (At the same time, when assessed against the Harvard criteria, Erin and her lawyer also fall short in some respects)

Aside from negotiation blunders, while watching this video, my interest was piqued by the parallels the movie’s story line has to the ongoing water crisis in Flint, Michigan. (If you haven’t seen it in the news already: there is an unprecedented amount of lead and other corrosive substances in Flint’s water, caused by the local government rerouting the city’s water supply. The new source, the river Flint, is highly toxic. General Motors, the largest corporation in the region, is the only entity that continues to receive clean water.) I had read earlier that Flint-resident Michael Moore had already begun raising awareness of this human and environmental catastrophe but it was quite a coincidence to see today that the real-life Erin Brockovich had also become involved. See Michael Moore and Erin Brockovich’s interviews on this issue below:

Morshed
the Hague