Category Archives: Politics

Brexit Opponents Consider Legal Routes

BrexitOpponents of “Brexit” are considering legal steps they can take to try and prevent the UK’s exit from the EU. Lawyers and campaigners have been studying the situation to identify areas of the law through which the decision may be challenged.

The referendum has proved a decisive issue for the UK, and a vote in favour of leaving the EU by a majority of just 51.9% has left many opponents of Brexit unsatisfied. Many not only continue to believe that leaving the EU would be a mistake, but feel that, with the public still essentially split down the middle, the vote was too close to form the basis of such a major and long-term decision for the country’s future. Matters have not been helped by polls suggesting that over 1.1 million people may regret voting leave, either in light of things that have happened and information that has come to light since voting closed or because they used it as a protest vote.

Millions of people, an unprecedented number, have signed a petition for the government to repeat the referendum in hopes that the British public will be able to come to a more decisive conclusion one way or another. Others fear that this could just lead to a “neverendum” where vote after vote must be held before a vote that will be accepted can emerge.

Those who oppose either the entire concept of leaving the EU or the acceptance of such a narrow majority have begun looking at possible legal bases for either blocking the UK’s exit from the EU or delaying it for further consideration. Many of these possibilities are rooted in the fact that the referendum itself is not legally binding. A public vote is not part of the process for leaving the EU and under law is essentially an opinion poll, though the government added weight to it by pledging before polls opened to follow the result.

The actual legal mechanism for the UK to enact Brexit is by triggering Article 50 of the Lisbon Treaty, which gives a two-year timeframe for the country to negotiate its exit. Article 50 states that an EU member state may leave the Union “in accordance with its own constitutional requirements.” This has led some legal experts to raise questions about just what requirements are lawful in the UK constitution, with some claiming that the Prime Minister alone does not have the authority to invoke Article 50 as this would overturn the 1972 European Communities Act. Under this interpretation, the Prime Minister requires consent in the form of an act of parliament to leave the EU.

A number of legal experts have subscribed to this view. One of these is Lord Pannick QC, who says that the question of whether such consent should be given is a matter for parliament to decide.

High Court Denies Disclosure for Thai Death Penalty Case

ConfidentialityA high court judge has ruled that a UK police report should not be made available for a case in Thailand that could result in two Burmese nationals receiving the death penalty. Mr Justice Green described his “very considerable unease” in passing this judgement, but reached the decision on the basis of the UK government’s policy of not assisting overseas authorities with death penalty cases.

The two men on trial are accused of murdering two British tourists, Hannah Witheridge and David Miller, last year. They confessed their alleged involvement in the murders to Thai police, but have since claimed that they only made these confessions as a result of being subjected to torture.

The Metropolitan Police, acting on a request from the Prime Minister, examined the case and produced a report. This report was intended to be used for briefing the families of the victims rather than as an investigatory tool.

Nonetheless, the defendants requested access to the report. They requested that they be provided with information pertaining to themselves under the Data Protection Act, as well as seeking access on the grounds that the report could prove useful to their defence.

The police denied the two men access on the grounds of public interest, and the application made its way to the High Court in the case of Zaw Lin and Wai Phyo v Commissioner of Police for the Metropolis, where Mr Justice Green passed judgement upholding the police’s refusal to release the report.

One of the conditions under which Thailand cooperated with the report was a strict agreement that the report be kept confidential. Furthermore, the judgement points out that the Metropolitan Police’s involvement with the case was not an investigatory one, but rather limited to “observing and recording the investigation” which was being carried out by their Thai counterparts.

Green described how the case required careful balancing of the interests of both police and claimants, with valid and important considerations on both sides. The claimants submitted that the report could potentially have a real bearing on their defence, and the fact that the case carried a possible death penalty should override many other considerations. The police, meanwhile, claimed that going against confidentiality agreements could have “a very serious adverse effect” upon the way that police forces work together across national borders.

Ultimately the judge ruled that “there is nothing in the personal data which would be of any real value to the claimants,” and that this meant that the interests of the police outweighed those of the claimants in this situation. Nonetheless, he described his unease in reaching the judgement, especially as he was required to work out for himself how the defence might be structured and evidence tendered in order to accurately gauge how useful the document would be. “This has not been a comfortable process,” he said.

Same-Sex Marriage Legalised Across the US

US Marriage EqualityThe US Supreme Court has ruled that US citizens have a legal right to marry people of the same gender. The decision, which comes just a month after Ireland introduced same-sex marriage through a referendum, is valid across all 50 states, meaning that marriage has now been legalised for same-sex couples on a nationwide basis.

The majority of US states have already legalised same-sex marriage of their own accord. However, 14 states continued to disallow the marriage of gay couples. However, the Supreme Court decision means that those 14 states will no longer be able to enforce such a ban, though it has not yet been made clear how soon marriage licenses for same sex couples will start to be issued in these states.

The Supreme Court made the ruling in relation to the case of Ohio resident Jim Obergefell, who had previously not been legally recognised as his deceased husband’s widower. Speaking outside the court after the ruling, Obergefell told the press: “It’s my hope that gay marriage will soon be a thing of the past, and from this day forward it will simply be ‘marriage.’”

According to Justice Anthony Kennedy, the plaintiffs in this case were simply asking “for equal dignity in the eyes of the law,” and this is their right under the US constitution. US President Barack Obama, meanwhile, said that the Supreme Court’s ruling was a “victory for America.”

“When all Americans are treated as equal,” Obama continued, “we are all more free.”

The ruling has put an end to legal battles that have been raging in the US for a number of years on both state and national levels. One eccentric California lawyer even went so far as to propose a bill that would allow homosexuals to be “put to death by bullets to the head or by any other convenient method,” though naturally this bill did not get far.

The ruling’s announcement prompted loud cheering in the streets outside the court, where hundreds had been gathered to await the news. In Georgia, one of the states that had previously banned the same-sex marriage, couples began lining up to begin exercising their newfound rights within minutes. Social media, too, was abuzz with celebration and general discussion, with the hashtags #MarriageEquality and #LoveWins trending on Facebook and Twitter respectively.

Those who had opposed the legalisation of same sex marriage, particularly America’s conservative Christian groups, were disappointed by the court’s ruling. Presidential candidate for the Republican Party, former governor of Arkansas, and outspoken opponent of gay marriage Mike Huckabee said: “We must resist and reject judicial tyranny, not retreat.”

WW1 Killing of Armenians was “Genocide,” Says German Parliament

BundestagThe parliament of Germany (the Bundestag) has approved a resolution which declares a mass killing of Armenians to be genocide. The killings in question were carried out during the First World War by Ottoman Turkish forces, with up to 1.5 million Armenians being left dead. The approval of the resolution coincides with the 100th anniversary of the beginning of these killings.

For some years now, Armenian’s have been campaigning internationally to have the global community acknowledge these mass killings as a case of genocide. Turkey opposed the idea that its First World War actions extended to the point of genocide, disputing the claimed numbers of dead and saying that much of the blame for the killings lay at the feet of a civil war that erupted following the Ottoman Empire’s fall.

Prosecutions against individuals who denied that the killings constituted a genocide led to further controversy, with a European Court of Human Rights ruling in December 2009 deciding that these prosecutions infringed upon freedom of expression. However, 2009 was also the year that saw Turkey and Armenia overcome their bitterness sufficiently to sign an accord in Switzerland which opened their borders and helped to establish better relations between the two countries.

The President of the Bundestag Norbert Lammert led the drive to have the resolution approved. Lammert is of the opinion that Germany and Turkey should join together in attempts to confront past acts of genocide and reconcile with the world.

Regarding this concept of shared national reconciliation, Lammert said: “the unparalleled experiences of violence in the 20th century have ensured that we know there can be no real peace until the victims, their relatives and descendants experience justice: through remembrance of the events.”

The Bundestag as a whole also took the opportunity to highlight issues of violence and discrimination against various groups in the modern age. The legislative body pointed to instances of persecution on ethnic, religious and political grounds against groups across the globe, saying that humanity as a whole must strive to combat these kinds of actions if it is to ensure that the mistakes of the past go unrepeated.

In 2010, it was reported by a US State Department spokesperson that the Obama administration was opposed to a vote on a similar resolution stating that the killings were a genocide. More recently, Greece lent support to this definition of the incident when, in September last year, the country’s parliament approved a bill that criminalises denial of the genocide.

Law Society Gives Backing to Malaysian Bar

Christopher LeongThe Malaysian Bar has received a pledge of support from the Law Society in its current fight against the country’s Sedition Act. The law in question places a prohibition on discourse that displays a “seditious tendency,” and dates back to the British colonial era.

Christopher Leong (pictured), president of the Malaysian Bar, described the law as “extremely objectionable and abhorrent.” He said that the law had been used to prosecute people who were “not terrorist types” and had no intentions of carrying out any illegal acts designed to bring down the government.

Rather, he said, “These are people who are expressing their thoughts about what the important issues for Malaysia are and how they ought to be addressed.”

This year alone, a Chancery Lane meeting was told, over twenty people have been investigated, charged, and prosecuted under the law after they expressed dissent. Among those who have suffered as a result of the law are legal professionals such as solicitors and professors of law.

The act was reportedly not in common use before 2011. However, that year saw Malaysia’s Internal Security Act (ISA) repealed. The ISA allowed people to be detained indefinitely without the right to a fair trial, or to any trial at all.

Following the law’s repeal, Malaysian prime minister Najib Razak issued a promise that the Sedition Act would be next in line for repeal. However, Leong said that “The irony of that” was the fact that “despite that promise, we have seen unprecedented use of the sedition laws earlier this year.”

Leong suggested, however, that the blame may not lay at the feet of the prime minister. He described the government under the current prime minister as “right-thinking with respect to decisions.” However, he said that the prime minister’s political party contained some who “are not supportive of his transformation programme.”

Leong is currently on a visit to London lasting for three days in total. He said that lawyers in Malaysia had benefited significantly from the support of their colleagues around the world, which had helped prevent acts of violence against them from “extremist elements” after they stood up for people’s rights.

“The support that we got from the Law Society and other organisations,” Leong said, “showed the authorities that this was not just a Malaysia issue, this was an international issue.”

Last month, a “walk for peace and freedom” was held by the Malaysian Bar in support of repealing the act. This marks only the fourth time that a street protest has ever been held by the Bar.

Court of Appeal Rules man can Sue UK Government

abdul-hakim-belhajJudges at the Court of Appeal have decided that Abdul Hakim Belhaj, a Libyan man who claims to have been illegally sent back to his home land and tortured, can mount a case against the UK government in court.

Previously, the High Court had decided that Mr Belhaj’s case could not be heard in a British courtroom because of the potential damage it could do to international relations. Specifically, it was decided by Mr Justice Simon that, in spite of the alleged knowledge held by UK officials, a court in England did not have the power to adjudicate on claims of rendition and torture that took place in Libya. Furthermore, the court  dcided that many of the claims were “non-justiciable” in UK courts because they involved officials in China, Libya and other countries such as Thailand and Malaysia.On these grounds, it was decided that the case be thrown out.

However, the Court of Appeal has overturned this decision, with judges deciding that Mr Belhaj’s claims were “grave” enough to warrant being heard in court. Judges at the Appeal Court said that state immunity was not enough to bar the proceedings. Furthermore, Lord Dyson voiced the opinion that there is “a compelling public interest in the investigation by the English courts of these very grave allegations.”

Sapna Malik, the lawyer representing Mr Belhaj, described the decision as a “very significant step forward.” Mr Belhaj, who is now a politician in his homeland of Libya, said that he and his wife were “gratified by the judges’ decision to give us our day in court.”

Mr Belhaj alleges that MI6 and Jack Straw, the former Foreign Secretary, were deeply involved with the arrangement of the rendition of Mr Belhaj and his wife from China. According to Mr Belhaj, who previously led a group opposing the Muammar Gaddafi regime, claimed that information leading to his rendition was provided by British Intelligence.

The rendition took place in 2004, and resulted in Mr Belhaj and his wife Fatima Boudchar being returned to their homeland where they were subjected to torture which, according to Mr Belhaj, is “as fresh and as painful for us as if it happened yesterday.” Mr Straw has previously denied any awareness of the rendition.

The government and Jack Straw now have the option to appeal to the Supreme Court. If an appeal is made, the case will not be heard until this has concluded. According to a statement from the Foreign Office, it is currently considering whether to lodge an application for an appeal or not.

Senior Judge Praises Televised Pistorius Trial

Lord Neuberger, president of the Supreme Court, has praised South Africa’s Oscar Pistorius trial, which was controversially televised. Neuberger’s comments were included in a speech in which he stressed the value of open justice.

Neuberger said that broadcasting trials “is merely the modern extension of enabling the public to enter the courts physically.” Like making courts open to public visitors, televising a trial gives ordinary people access to the proceedings of the justice system and the ability to see how decisions are reached first hand.

Lord Neuberger, speaking in Hong Kong to the Hong Kong Foreign Correspondents’ Club, said that “Open justice is an essential feature of the rule of law. In its most basic form, it means that court hearings take place in public and judges’ decisions are available to the public.” He also stressed the importance of making sure that the way in which information was provided to the public was not only accessible but comprehensible, and described the role of the media in doing this as “essential.”

By contrast, he said, “if courts sit in private, judges cease to be properly accountable for their decisions, as the public do not know what the evidence and arguments were put before the judge, or why the judge reached a particular decision.” Furthermore, Neuberger warned that courts may “get into bad habits” should the doors be shut to the press and the public, and this could erode confidence in the integrity of the justice system.

On this basis, Neuberger decidedly expressed his support for the concept of televising trials. However, he acknowledged that it is important to approach the matter in the right way. For example, he described the US’ trial of OJ Simpson as a lesson “in how not to do it.” By contrast, he praised the more recent coverage of South Africa’s trial of Paralympian Oscar Pistorius, calling the media handling of the trial “impressive.”

Neuberger also stressed that it was essential journalists do not abuse their privileged position in passing on vital information about legal proceedings to the public. He acknowledged that simplification and even bias are likely to creep into the way that judgements are reported, and also that the media will likely level criticism at some aspects of the law. However, he insisted that through this the reporting process should remain “based on accuracy and truth rather than misreporting and propaganda.”

Summing up the importance of journalistic integrity in this process, he said “Inaccurate and unfair reporting of a judge’s decision in order to make a good story is an abuse of the freedom of expression accorded to the press and it undermines the rule of law.”

Black Lawyers Still Underrepresented in South African Legal System

South African CourtSince the days of Apartheid, South Africa has been hailed for undergoing a complete transformation which has seen drastic improvements in racial equality. However, black groups still remain very much underrepresented among the country’s lawyers.

Those who would once have been severely restricted by Apartheid now make up two thirds of the past ten years’ law graduates. While this figure would look encouraging on its own, data from the Law Society of South Africa reveals that only 37% of the country’s practising attorneys are black. There is evidently great disparity between the number of black people who complete law degrees in South Africa and the number who go on to work as lawyers. When it is considered that approximately 79% of South Africa’s population as a whole are black, even the two thirds (66%) of graduates that are black begins to look a little low.

According to South African attorney Michael Motsoeneng Bill, “The rhetoric has been that there was room for all of us, but it created too high an expectation. The idea that you are a black lawyer and therefore your fate is sealed is wrong.” Bill himself has enjoyed success as a black lawyer, but has also seen how difficult it is for his peers to get on in the industry.

The reason for the underrepresentation of black people among South Africa’s 22,000 practicing solicitors, Bill theorises, is that 80% of law firms remain white-owned, and this figure includes many of the big players. This is coupled with the fact that corporate clients are the most lucrative and desirable ones in the legal industry, and corporations in South Africa also remain heavily white-dominated. Bill suggests that ultimately, “They often don’t have the courage to change the status quo and diversify briefing patterns.” This leaves black lawyers confined to lower-paying areas of practice such as conveyancing, and such restrictions could potentially be a disincentive to work as a solicitor at all.

For some, the issue of underrepresentation has been highlighted by the high-profile Oscar Pistorius trial. Thanks to the decision to allow the trial to be televised, it has shown a case within the South African court system to the world. The picture the world has seen has included an all-white defence team and predominantly white team acting for the prosecution. Considering the giant steps towards equality and diversity that so many other parts of South Africa have experienced in recent years, many have found this image a surprising one.