August 29, 2011 · 20:42

US courts, Thai law

I’ve mentioned Thailand’s lesse majesty prosecutions. On it’s face, it’s not clear how Thai legal activists can respond to what many see as out-of-control prosecutions against the Thai elite’s enemies. That’s why I found it interesting to see a New Mandala blog post about a legal response to lesse majeste – but in a U.S. court! The World Organization for Human Rights has brought a suit against web hosting firm Netfirms, Inc., for releasing the identity of an anonymous poster on a Thai prodemocracy website. According to the complaint, the poster, Anthony Chai, was:

subsequently detained at the Bangkok airport, taken to the Department of Special Investigations, and interrogated about his postings on the website. After finally being released from police custody in Bangkok and returning home to California, Mr. Chai was then interrogated by Thai officials over the course of two days on U.S. soil at a hotel in Hollywood, California. Mr. Chai was later informed by Thai officials that if he returns to Thailand, he will be arrested and charged with violating lese majesté laws.

Unfortunately, I’m not caught up with U.S. jurisprudence on the Alien Tort Claims Act (ATCA) and other human rights law, so I won’t hazard a guess as to the outcome. Still, I’ll make a few observations. First, unlike in many ATCA cases, the company did clearly take an action that had an impact on the plaintiff. There will probably be no debate over whether the company knew or should have known that Thailand was prosecuting lesse majeste.

That being said, Mr. Chai, a California native, did return to Thailand after making the post and has been released from prison. In fact, the Thai government has warned him it would arrest him on future trips, so Mr. Chai would have to actively return to Thailand in order to suffer further harm. A judge might view this as too speculative to rule on for concrete damages.

Over the next few weeks and months I’ll try to follow the case and also get a better sense of U.S. law in this area. I know other U.S. internet firms have been sued on similar legal grounds (such as Yahoo releasing data to the Chinese government about political dissidents). In the meantime, for those interested in learning more, you can download the full complaint here.

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Filed under lesse majeste, Thailand, United States, USA

August 26, 2011 · 16:09

Reinstating Lawyers

In news somewhat related to my last post, the Democratic Voice of Burma reports that several Burmese lawyers who had been disbarred for political reasons are now seeking reinstatement to the bar. The article claims that over 20 lawyers had their licenses revoked since the SPDC came to power in 1988. Aung Thein, a lawyer affiliated with the National League for Democracy, argued, “These lawyers were given prison sentences on political grounds have also lost their licenses – so it’s like we got two separate punishments in just one case.”

On the one hand, it’s certainly not uncommon for lawyers in other countries to lose their licenses upon being convicted of a crime that reflects upon their moral bearings. However, U Aung Thein’s statement makes two points. First, the crimes for which Aung Thein and his colleagues received sentences were political, not moral. If anything, their support for legal rights should speak well to their moral bearings. Second, in Myanmar the government revoked their licenses, rather than a bar association. Moreover, the lawyers did not get a chance to appeal the decision.

Politics aside, the ultimate tragedy may well be that, as one of the disbarred lawyers notes, “[Law] is our career profession – just like teachers. We are not rich people and having lost our lawyers licenses made a lot of difficulties for our survival.”

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Filed under Burma, legal profession, Myanmar

August 25, 2011 · 03:54

Change or more of the same?

The Asian Legal Resource Centre has submitted a statement to the United Nations Human Rights Council criticizing the lack of progress under Myanmar’s new parliamentary government. One paragraph deals specifically with the criminal justice system:

Criminal justice: Structural changes to the judiciary under the 2008 Constitution have not been accompanied by any changes, or any evidence of intended changes, in the judicial system’s actual operations. On the contrary, it continues to be as closed and obscured from public view as before, perhaps even more so. For instance, at time of writing still no biographies or details have been made known publicly of the new Supreme Court justices, among whom three are believed to have come from the armed forces, two others from the civil administration. Legal professionals have doubts about the background and abilities of these persons, yet they too have no detailed knowledge about them, let alone the opportunity to discuss such matters. Meanwhile, legal professionals also say that the amount of corruption in the system is growing exponentially, as the costs of living rise and more and more judges and lawyers look to whatever opportunities they can to make as much money as they can. In some courts, lawyers estimate that up to 70 per cent of cases are decided in part or whole through the payment of money. This situation will continue to worsen. Simultaneously, no evidence exists to suggest plans for any meaningful reform to the highly abusive and corrupt police force. [emphasis mine].

First thing to note is that I’m not the only person having trouble finding out more about the current Supreme Court and Constitutional Tribunal justices. More substantively, ALRC primarily criticizes corruption within the system. While Myanmar’s government has certainly not done nearly enough to tackle corruption, regular readers of this blog will hopefully have come to learn that no Southeast Asian country has a monopoly on judicial corruption. However, if President Thein Sein was serious in his inaugural speech that his administration would combat corruption, one can only hope that somebody on his team looks at best practices from other countries or at least consider establishing a judicial commission to vet judicial nominees and investigate allegations of corruption.

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Filed under Burma, criminal procedure, Myanmar

August 22, 2011 · 22:47

Anwar’s last stand

As the Sodomy II trial of Anwar Ibrahim wraps up, Anwar made a stirring defense that both professed his innocence and lambasted procedural irregularities during the trial. Asia Sentinel has a summary of the defense and the main criticisms of the judiciary. I definitely recommend reading it for anybody interested in Malaysia and its struggle with the rule of law.

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Filed under Anwar Ibrahim, corruption, Malaysia

August 21, 2011 · 16:36

Clearing up the backlog

The Indonesian Supreme Court docket is notorious for its backlog. According to The Jakarta Post, there were 22,315 cases pending before the court just in 2010. Of those, the court only adjudicated 13,885, leaving the rest for the remaining year. Now, the Supreme Court recently announced that it would organize itself into five chambers in order to handle the large caseload and allow judges to develop expertise in particular fields of law. The chambers will cover civil, criminal, religious, administrative, and military law. I certainly hope this reform tames the court’s docket. However, the Supreme Court still doesn’t possess control over its docket and lacks discretion to reject appeals – the one reform that is almost guaranteed to reduce its caseload.

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Filed under indonesia, Supreme Court