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.

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‘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!)

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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.


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:

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A few thoughts on Judicial Conduct post-retirement

One of the hot topics of discussion in Bangladesh at the moment concerns the actions of judges post-retirement. As per our Constitution, a retired Justice of the High Court Division of the Supreme Court of Bangladesh may practise before the Appellate Division of the Supreme Court of Bangladesh but the question is whether it is ethical to do so, given the dignity of their position and the post-retirement benefits they enjoy.

The Bangalore Principles of Judicial Conduct (2002), the leading ‘soft law’ instrument on the issue, and Bangladesh’s Judicial Code of Conduct (2000) are silent on the rights and responsibilities of superannuated judges. It is also unclear whether their principles should simply extend to such judges. Perhaps, instead, it is worthwhile to look at the example of the UK and Australia in this regard:

Chapter 9 of the UK’s Judicial Conduct Guide (2013) states that: “9.1. The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.” Crucially, 9.2 adds: “Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.” In my view, this would seem to extend many of the obligations under the Bangalore Principles to retired Judges.

In contrast, Australia’s Guide to Judicial Conduct (2007) is less explicit about what judges can and cannot do. Chapter 7.2.1 of the 2nd edition of this Guide states that a Judge (re-)joining the Bar “is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.” Similarly, judges are allowed to engage in commercial and political activities subsequent to retirement but with the same caveat as the UK: “[e]ven in retirement…a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided. “

I think this last guideline should also be incorporated in Bangladesh’s Judicial Code of Conduct, to emphasize the need for retired judges to be sensitive to their exalted status in society.

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