...with a taste of blueberries and dance!

Source: Newly discovered album

Every so often, one is brutally reminded of the darkness of the human heart!

Man's apparent capacity to witness, condone and perpetuate unimaginable horrors while continuing with daily life without so much as a clue as to the insanity that the heart ponders.

Is it so surprising, then, that on the same day the photograph above was taken, their unit oversaw the gassing of 127 people at the notorious Auschwitz baths?

Any wonder that a gifted dancer, on impressing her audience, would ask for a prophet's head in return?

⁶ On Herod's birthday the daughter of Herodias danced for them and pleased Herod so much ⁷ that he promised with an oath to give her whatever she asked. ⁸ Prompted by her mother, she said, "Give me here on a platter the head of John the Baptist." ⁹ The king was distressed, but because of his oaths and his dinner guests, he ordered that her request be granted ¹⁰

^{Matthew 14}

Jon's blog

My friend Jon has the most beautiful way with words. Here is an excerpt from his latest blog post:

To see a person this way, though still only a guessing, is perhaps to see more clearly, to understand that behind each face are, in fact, a multitude; behind each gesture, a universe that only One in all existence can fathom. And though it may at times be overwhelming, impossible as it is to know a person's entirety, it is that entire universe I am called to love.

Advocacy and Courtroom Skills

PS - this is an unedited version - the post will be edited when I find the time!

This was an exhilarating session, which had me laughing my head off one minute and on the verge of tears the next.

Pheroze Nowrojee
Pheroze Nowrojee opened with a paper on Advocacy and Legal Skills in difficult circumstances. He began by looking at some of the ways in which counsel in the trials of Nelson Mandela, Kenyatta and the English case of Liversage v Anderson had dealt with the hostile bench they encountered.

Quotes:-

“Facts are seditious things when they touch courts and kings”
“We have to practise with a sense of history”

He then set out some pointers
1) We must not give up – must be insistent
2) Must not be repetitive
3) Need not shout
4) Need not be brow beaten by an executive minded court
5) Not wrong to courteously insist on proceeding – take extra care to be courteous.
6) Need not accept maligned courtesy from an unjust court in place of justice.
7) Duty of counsel in unjust trials is to define the defence, and thus define the trial (e.g. Kenyatta trial, Mandela trial and Neru trial).

Conclusion
Eli Weisel quote: “for those who defend in such cases, an unjust court is never a reason to depart from the prayer”.

Tinoziva Bere
Tinoziva Bere then followed with a wonderful presentation, and opened with a reference to Robinson’s definition of justice as a game, and stating that if justice is described as game, the rules should be the same for everyone.

He then described some of the difficulties faced by the Bar in Zimbabwe, using an analogy with the game of football:
Shifting goal posts, whistles blown and rules invented thereafter and applied retrospectively to justify why the whistle was blown, fans of one side being aloud to invade the pitch, fans invading the pitch and stealing the ball, and so on.

Quotes:-

“It is not fair to have an unfair game”.
“Traumatic for any lawyer to attempt to practise law in an unfair system” (No doubt referring to Zimbabwe and jurisdictions with similar problems)."

He also set out a few pointers when practising in difficult environments:

1) Must have desire to help others
2) Ethics should be embedded in one’s person
3) Should want to know everything
4) Should pick the right fight
5) Concede what is obvious
6) Be consistent
7) Never agree in what you don’t believe in

The following profound quote and the matter-of-fact way in which Tinoziva Bere delivered it was sobering:

“Why bother if the verdict is pre determined? Because we do it for our children”

Justice Keith Hollis
Justice Hollis also gave an impressive and amusing presentation.
He opened with some good advice he received from an old judge who said its good policy for the judge to imagine himself naked, as that would help the judge retain the humility essential for his office.
Referring to Tinoziva Bere, he said:
It’s a brave and wise man who meets tyranny with humour and irony.
His presentation dealt with two main areas:
1) Advocacy techniques
2) The role of bar in helping court to know and apply international provisions applicable to our jurisdiction.

He repeated the famous Donald Rumsfeld quote:

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know
We don't know.
Rumsfeld's Poetry

Often both judges and counsel know what the case is about.
Known unknowns – what does the judge know?
- does counsel know what a poor case he has?
- Etc

Unknown unknowns?

Advocacy techniques
- Don’t lose your voice
- Always befriend the usher
- Sort out issues that need to be before the judge – agreed issues.
- Don’t be afraid to be amiable with opponent to appease the client
- Be courteous where client representing himself
- Don’t exclude your client – let him be aware of what’s happening.
- Avoid weak procedural points
- Never argue bad law (‘trying to make a pig out of a pound of sausages’)
- Submit respectfully
- Learn how to cross-examine
- Two important questions: "why" and "why not"!
- Keep it simple
- Must be fully prepared and have everything at one’s fingertips – fact and law
- Put everything in context for the judge

International Law
He began by noting that these have widespread application and noted that:
i) Need to be aware of international law, even if not yet incorporated, as it could affect one's case.
ii) Need to seek out the opportunities to bring these matters to court.

Independence
The judge concluded by stressing the importance of the independence of the judiciary and made the following points in closing:
- Ensure independence of advocates and judge, so that courts don’t become a fig-leaf of executive action
- There is always a tendency to develop judicial decisions to lower judges, and more junior judges/magistrates have more threats to their independence.
- Duty to make decision independent of pressures (client, bench, counsel, government).
- If advocate not independent, system is flawed.
- Lattimer guidelines have now taken up by Commonwealth. Similar process should be initiated to deal with issue of independence.

Vulture Funds - Shock, Horror!

It is not often that one attends a talk that, with the introduction of two words, opens one’s eyes to a seedy financial underworld, of whose existence one has no previous knowledge.

That was the case when I attended an enlightening and enthralling talk on International Financial Markets where the speakers were.

The emphasis was on Third World Debt and the effect that Vulture Funds (some may refer to them as gangsters) have had on the development of 3^rd world countries, and their ability to access debt relief.

The two words earlier referred to were VULTURE FUNDS.

The distaste I felt is not unique to me.

Shocking
Shocking is the legal reality that as result of the legal assignment of a large amount of 3^rd world debt to private entities, many 3^rd world countries now find themselves unable to access debt relief offered by multi-lateral institutions that would help their development, as a result of being held hostage by private entities, referred to as vulture funds.

Sobering
Sobering is the thought that the legal assignments or settlements are often procured between vulture funds in dubious circumstances, and involving politicians who, having no doubt received individual incentives, sign off the soul of their countries for the proverbial loaf of bread.

Sad
Sad is the fact that most countries do not retain lawyers when negotiating their debt agreements.

Unsurprising
Unsurprising is the high rate of success that vulture funds experience in the courts, given the legal facts that characterise most of these cases.
44 creditors have filed suit.
55% have won!
ADB estimates some countries have litigated debts amounting to up to 14% of their GDP.

Reassuring
Reassuring is the knowledge that there are bodies for example the HIPC, the World Bank, and the ADB that are seeking to lessen or eradicate the negative effects of vulture funds on 3^rd World countries.

Case studies
Zambia - In 2004, their debt burden was over 30% of GDP
Congo- qualified for facility to clear all DRC arrears, whereupon it was discovered that a vulture fund had obtained an injunction, meaning they couldn’t pay without making proportionate payment to creditor in the suit, and the provision also prohibited any new debt taking priority over the current one. Congo was forced to settle with the vulture fund out of court to access the arrears clearance mechanism.

Sierra Leone, Uganda and Zambia have paid over 30 million dollars to settle claims by Vulture funds.

Some Notorious Cases
Elliot Associates v Republic of Peru (recovered 58 m after purchasing it for 15m.
Danigole v Zambia

Developments around the world
Hillary Benn said:

“This is the first defence in a case of this kind that has ever been even partially successful, and its impact will be felt across the world. Vulture funds cannot continue to expect to profit from the world's poorest countries.”

At the US House Committee on Foreign Affairs, Congressman Payne is looking into the issue:

"Thus, a few Americans are begetting fortunes at the expense of the misfortune and further impoverishment of millions of Africans. This is morally reprehensible and exploitative.”

Jesse Jackson says:

“They prey upon the poorest nations, taking resources from the most desperate peoples -- billionaire scavengers pocketing the funds that might go to feed children whose families live on less than $1 a day. They are called the vulture funds. They protect their scavengings with fat checks to politicians and lobbyists. One of the leading vulture firms is led by major donors to President Bush. Now it is time to put an end to this disgrace.”

O’Sullivan’s perspective on the Issue

It is not the purpose of this paper to consider whether there is any moral or economic justification for the business of such funds in maintaining international capital flows. The purpose of this paper is to consider the methods which some of these funds employ and to emphasise that whilst they may be strictly legal (at least in some cases), they rightly attract moral condemnation.

The actions of Donegal that were exposed in the English proceedings included unlawful practices such as obtaining and using confidential information, use of sham constructs to conceal agency relationships and the giving of deliberately false evidence in two jurisdictions and misleading evidence in a third.

While so called investors are permitted to use such unattractive business practices to procure for themselves massive gains at the expense of unsuspecting and impoverished nations there are serious problems in the fight again poverty

Closing Quote
International community must focus on methods of vulture funds in obtaining some of the debts, to ensure they can’t operate with impunity

PS - links and editing will come later!

My difficulties with Hon. Justice Michael Kirby's CLC Presentation

Yesterday I give a report (biased no doubt) on yesterday's session by Hon. Justice Michael Kirby, at the CLC session on "Bio-medicine - the legal and ethical issues"
I didn't have the time to go into some of the controversy raised.
I don't know that I have the time to do so today, save perhaps to point out some of the problems I had with his analysis of the solution to the problems that what he described as "this part of the world" faces when dealing in this area especially with regards to the HIV AIDS pandemic.

Specifically, his claim, as I indicated yesterday, that the reason countries like the United Kingdom, and Australia had a low prevalence of HIV/AIDS was that lawmakers in those countries had taken steps “that are not palatable to law makers in this part of the world”.The steps he listed were:

• Mass education including in schools.
• Reforming the law on prostitutes.
• Sterile injection equipment.
• Removal of laws against homosexuals

1) My first problem is that he became preoccupied and spent a disproportionate amount of time on the 4th point and what he described as the archaic system of laws with respect to homosexuals that exists in "this part of the world".
The reason for this became apparent when he proceeded to tell us that he was gay and had been with his partner for decades and was a good practicing Anglican.
In asking him a question, I indicated that as this was a law conference, and given the subject matter of the talk, I was not going to go into the reasons as to why I disagreed with his view regarding homosexuality and the Anglican church.

2) I also thought his emphasis on the homosexual laws was disproportionate, firstly because "in this part of the world" transmission is mainly as a result of heterosexual intercourse, and secondly, because legalising homosexuality would not automatically result in safer sexual practices among homosexuals.

3) I also disagreed with the underlying premise that the average westener was any more educated than the average african on the issue of HIV/AIDS and its transmission. Anyone who has lived with young people both in the U.K. and "in this part of the world" would know that to be fallacious.

4)Whereas I do agree that contraceptive techniques do reduce the incidence and spread of HIV/AIDS, I disagreed with his presumption that the high prevalence was only as a result of unsafe sexual practices.
For that reason in my question, I asked:
- Whether he had considered the strange phenomenon in the UK where teenage pregnancy, and unsafe sex had greatly increased in recent years, without a corresponding increase in HIV/AIDS transmission and prevalence.
- Whether he was aware of studies carried out in the U.S. among different racial groups with similar sexual patterns that indicated different infection rates depending on the race of the group.

His answer did not address these issues at all.

A question that I did not ask, but would have been an interesting one to ask is one raised in an earlier blog post on PGD, an issue that was also discussed in his paper!

PS - editing and adding of relevant links to this post will be done when I find the time.

Bio medicine - Legal and Ethical Issues

Bio medicine - Legal and Ethical Issues

This session began with Ambrose Rachier giving an overview of his paper, dealing with some of the areas of interest in this area.

A well written paper no doubt, but he really was given insufficient time to tackle the issues to the extent that he would have liked.

Quotes:

• “If humans are cloned, will they have the normal rights that we have”?
• “Where do we draw the line between patient care and organ donation?”

Interesting Questions

• When is someone legally classified as dead (Californian case – Dr. Hotan Roozrah)?
• What happens when a sperm donor changes their mind? (Natalie Evanns v UK - where one donates sperm and later changes one’s mind, paternity should not be imposed and embryos resulting from such process must be destroyed).

Also thought provoking was his examination of some of the third world challenges to issues such as informed consent to medical trials. The challenges noted include:

High levels of illiteracy which are a barrier and question the integrity of the system/principle.

Therapeutic misconception

Gender inequality and equity.

Poverty

Thereafter, matters got rather more controversial with the presentation of a paper by Justice Michael Kirby

[The text of his paper can be found here]

[See also my earlier post on PGD, and subsequent post criticizing some aspects of his presentation]

Quotes:

• “Judge Richard Posner has said trouble with lawyers is they are the little children that were good at words but not math.”
• “We live in age of coalescence of math and science.”

He proceeded to inform us how Ambrose Rachier’s comments reminded him of some of the old ethical issues that bothered commentators in the 1970s, and now seem old fashioned and irrelevant.

He then touched on some of the ‘new’ ethical issues.

Pre-implantation genetic diagnosis (PGD).

Quotes:

• “In NZ, committee found problems with implementation of this in human beings!”
• “Worries on maori genome in NZ.”
• “Worries of rise of instrumentalist view!”
• “Do we need to postulate a perfect human being?”
• “What about elimination of grave serious human conditions/ailments”.
• “Our response to these issues is dependant on what rules we use to inform our ethical principles!”

Embryonic Stem Cells Research and Cloning.

This he said is encouraged by the belief that it is of the nature of the embryo and the cells within it, that it is omnipotent as the cells possess amazing abilities of adaptation as they eventually develop into full human beings.

He pointed out that dead heart tissues improved in early experiments.

Problems that arise in discussions on these ethical issues:

• Referred to UNESCO Committee of which he was a member, as an example of how the problems manifested themselves!
• He noted that there are radically different starting points for peoples responses!
• Catholic/Christian perspective – as human existence begins at the point of conception, cells in embryo are cells of a human life/ part of a human life!
• Christian (some other view) – human existence begins when first outline of spine.
• Others – the cells are simply fluid that will never become a full human
• Judaism – human life begins after 28 days!
• Muslim – human life begins towards end of third trimester
• Hinduism – human life begins after foetus lives but an hour, whereafter it is buried as full human with full burial rights.
• Others believe religion should not be considered when discussing these issues..
• At the UNESCO conference they agreed to disagree.

To illustrate how attitudes change over time he gave the example of Australia where:

• In 2002, Act passed banning cloning, not only to full term, but also therapeutic cloning
• In 2005, recommendation for amendment to permit therapeutic cloning
• In 2006, the amendment was passed, but only just (34-31)

In the UK – he said one of the current big issues was whether there should be a ban on hybrid developments? (using empty animal egg fertilised with human genetic material for genetic purposes?)

One of the concerns is the development and dissemination of viruses to which humans have no resistance.

HIV/AIDS

He noted that the ethical issues on cost of treatment and stated that second line therapies will be extremely expensive and out of reach of most in developing world.

He then indicated that there were some uhncomfortable facts that needed to be stated:

He stated that the countries of the commonwealth that have succeeded in curbing the AIDS pandemic are UK, Australia, Canada and NZ.

He then stated that the success was as result of lawmakers in those countried taking steps “that are not palatable to law makers in this part of the world”.

• Mass education including in schools.
• Reforming the law on prostitutes.
• Sterile injection equipment.
• Removal of laws against homosexuals

Questions – in 3^rd world homosexuality is a very minor source for transmission

- Where do the studies that see a racial component to transmission risk, fall?

- How does the situation where increase in teenage pregnancy, and legislative increase in the ease with which morning after pills are available in west does not have corresponding effect on HIV transmission.

Kirby’s suggested solutions:

Recommend benefit sharing – balance protection of IPR and access to health care

Views of religion cannot be source of bio ethical decisions on human beings.

On issue of PGD – look at work of NZ legal reform law foundation committee

Most important message (he says) – importance of tackling prevention in this part of the world, complete failure of prevention??? (criticised for consultation with the gay community).

Heather Sampson

Case in Boston (embryonic stem cell) – misconception/misunderstanding

Questions – in 3^rd world homosexuality is a very minor source for transmission

- Where do the studies that see a racial component to transmission risk, fall?

- How does the situation where increase in teenage pregnancy, and legislative increase in the ease with which morning after pills are available in west does not have corresponding effect on HIV transmission.

Day One - Commonwealth Law Conference!

Controversy - is the word I'll choose to describe today!
A post on the day's sessions will follow shortly!

Suffice it to say, there was hot debate!

Commonwealth Law Conference

If I muster up enough energy I will attempt some posts from the commonwealth law conference