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H U M A N

A HATEFUL NARR ATIVE

Hate speech, disinformation and fake news: can the law save us from the information offensive?

The death of democracy How the Philippines’ war on drugs is exploiting legal processes to destroy rights

Saving Cambodia’s kids Conflict and trauma give way to a renewed effort to save the next generation

Tortoise and the hare

Why the delivery of legal services must keep pace with global business giants

A very superior lawyer

The bold Chinese law school producing elite graduates ready to take on the world

R I G H T S

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LAWASIA Employment Law Forum 25 – 26 January 2019 | Denarau, Fiji Register now at

fiji2019/registration

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CONTENTS

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CONTENTS

October 2018

Features 22

Democracy and the war on drugs

The Philippines' Human Rights Commissioner Karen DumpitGomez speaks out about the erosion of democracy under President Duterte's so-called war on drugs.

34

ISSUE 03

26 ↑

COVER STORY

Disinformation and hate campaigns Cherian George explores the complicated, divisive world of hate speech, fake news and disinformation – and asks whether there is a place for additional regulation in trying to limit its negative effects across the globe.

Legal delivery at the speed of business

Mark Cohen examines why the delivery of legal services is lagging so far behind the pace of business – and how the legal profession can do better for clients.

40 Talking the talk

Does speaking more than one language give lawyers an advantage in a globalised legal market? And how can lawyers master the art of multilingualism? Melissa Coade finds out.

46

Against the tide

UNHCR lawyer Ellen Hansen is working at a time when there are more displaced people in the world than ever before. So what can be done about it? Jane Southward writes.

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CONTENTS

70

Illumination Ideas, analysis and inspiration from leading legal commentators around the globe

52

22

Navigating the South China Sea

Donald R Rothwell and David Letts ask if there is still a role for international law in the notorious flashpoint.

58

Educating the legal elite

Limitless

Frank H. Wu shares his experience of teaching in one of China's most progressive and innovative law schools.

64

Saving Cambodia's children

Alastair Nicholson reflects on a renewed and concerted effort to create a more just future for Cambodia's children.

70

Lesson from a bank's downfall

Salvatore Cantale and Ivy Buche examine how poor governance and failing to pay attention can be catastrophic.

Words of wisdom on careers, professional

74

Regulars

06 From the President 08 From the Secretary-General

Cover design: Michael Nguyen Photo: Juan Monino / iStockphoto.com

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Contributors

12

News

20

Leadership

22

Opinion

88

LAWASIA

96

Inspiration

development, wellbeing and lifestyle

74

How to build presence

Making an impact at work.

76

It's okay to say no

Can you turn down a promotion?

77

Bravado versus humility

Why good leaders humble.

78

The goodness of fibre

And why you really need it.

80 Beating anxiety at work

And how to avoid it in the first place.

82

Luxury destination

Cambodia's newest jungle haunt.

84

City guide

The colour and majesty of Siem Reap.

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CONTENTS

1st LAWASIA Human Rights Conference State Power, Business and Human Rights – Contemporary Challenges 9 – 10 February 2019 | New Delhi, India Register now at

humanrights2019.com/registration

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FROM THE PRESIDENT

"You must know you are not alone in the fight; there are those who came before you and there will be more to follow."

T

his edition’s cover story grapples with an increasingly concerning phenomenon with which we are faced daily: hate speech, fake news and disinformation. There is so much clutter out there – discerning what is true and what is not is becoming more and more difficult. That is why the recent jailing of two Reuters journalists in Myanmar is so distressing. Last month, Wa Lone and Kyaw Soe Oo were jailed for seven years for reporting the truth: the massacre of 10 Rohingya men at the hands of soldiers and civilians during a military operation in western Rakhine State. The journalists exposed a shocking crime. Their report caused outrage across the globe. Young, innocent men executed in cold blood. How was this acceptable? Where were their human rights? And who should be held accountable for their deaths? Instead of grappling with these questions, the Myanmar government has chosen to silence the messengers. Speaking the truth is not easy in so many parts of the world. It can be dangerous. Journalists are frequently detained or murdered, and challenges to the principle of freedom of speech persist. Journalists share the dubious honour of ongoing persecution with lawyers and many others who advocate for causes greater than themselves. We have many colleagues and friends on the frontlines, battling for justice. Lawyers have always had to fight for the rule of law and fundamental rights, from well before Magna Carta through to the American Civil War, apartheid, and the present

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day. In the past decade alone, we have had to put ourselves on the line and fight for the independence of the judiciary, administration of justice, fundamental freedoms and the rule of law in Pakistan, Sri Lanka, Fiji, Malaysia, China, Myanmar, Vietnam and Cambodia, to name a few. Anything worth fighting for requires sacrifice. Principles have no real meaning if we are only willing to stand by them when it is convenient. Lawyers are, by our training, equipped, above all others, with the values, knowledge and skills to take to the frontlines. And, like the brave journalists fighting to expose the truth and hold accountable those who commit atrocities, we will continue to do so. If you are in an environment where you have to fight for or defend the rule of law, then it is, by definition, a challenging environment. You must find strength from your convictions and your colleagues. You must know you are not alone in the fight; there are those who came before you and there will be more to follow. Your task is to be in that line, knocking on the door when your time comes and stepping aside for the next in line when you tire. But there must be that line. One day, that door will open and, when it does, dum spiramus tuebimur – while we breathe, we shall defend.

CHRISTOPHER LEONG President, LAWASIA

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FROM THE PRESIDENT

Stay connected with LAWASIA Stay up to date on the go with our suite of tailored e-newsletters and active social media communities. Sign up today.

www.lawasia.asn.au

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F R O M T H E S E C R E TA R Y- G E N E R A L

Strength comes in numbers – and the legal profession needs all the strength it can muster right now.

I

f one stops to consider the sheer number of problems the world faces at present, it can be completely overwhelming. Reading through the pages of Asian Jurist is enough to cause a certain level of bewilderment and the issues tackled in this edition are a mere snapshot of the myriad complexities we grapple with each and every day. Lawyers are confronted with so many challenges: threats to the rule of law via a leader intent on manipulating the law to execute a policy at odds with basic human rights (Opinion, page 22); trying to decipher fake news from fact in a world increasingly dominated by deliberate misinformation (Cover story, page 26); and a new technological landscape that demands far more of legal practice than mere technical ability and a thorough knowledge of jurisprudence (Feature, page 34). More than ever the legal profession must band together and support each other, both in the pursuit of upholding the rule of law and defending human rights, and also in striving to improve individual practices. This will see the profession perform better as businesses, doing better for our clients, and ensuring better outcomes for the business of law across the region. This is why organisations such as LAWASIA are increasingly important. Not only do we have a strong and respected voice within the international community, we have our own community in which members are supported, guided and connected. One of the defining features of LAWASIA's annual conferences

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is this sense of connection. It is a powerful thing to experience the energy generated when lawyers from across the globe come together with a shared purpose, leaving aside their cultural, political, linguistic and social differences. The sense of belonging and unity is solidifying, and makes the challenges we confront easier to overcome. One of the defining features of the 31st LAWASIA Conference in Siem Reap, Cambodia, in November is that we are able to witness the interplay between the defence of human rights and a flourishing business law environment. When the rule of law is protected and promoted, as it is by LAWASIA, inevitable consequences include a properly functioning civil society, confidence in the justice system, and thriving institutions. A robust, transparent, and respected justice system ensures citizens feel safe and protected and able to live their best lives. Societal risk is mitigated, business flourishes. And the outcome? Put quite simply, better lives for all.

MICHAEL TIDBALL Secretary-General, LAWASIA

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F R O M T H E S E C R E TA R Y- G E N E R A L

Join the LAWASIA community Uphold the rule of law. Advocate for human rights. Expand business opportunities. Become a LAWASIA member today. Visit lawasia.asn.au/membership

www.lawasia.asn.au/membership

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Contributors RULE OF L AW | HUMAN RIGHTS | BUSINESS

Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klara Major Legal Policy Lawyer Kate Hewson Art Director Michael Nguyen Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Level 11, 170 Phillip Street, Sydney, NSW 2000, Australia P: +61 (02) 9926 0165 F: +61 (02) 9223 9952 E: lawasia@lawasia.asn.au twitter.com/LAWASIA_alerts facebook.com/lawasiaassociation linkedin.com/company/lawasia Š 2018 LAWASIA. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of LAWASIA. Opinions are not the official opinions of LAWASIA unless expressly stated. LAWASIA accepts no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own enquiries in making decisions touching their own interest. Asian Jurist is proudly produced in partnership with The Law Society of New South Wales.

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Cherian George

is professor of media studies and journalism at Hong Kong Baptist University, where he also serves as Director of the Centre for Media and Communication. His current research focuses on religious intolerance and its implications for freedom of expression. His books include Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy (2016) and Singapore, Incomplete: Reflections on a First World Nation’s Arrested Political Development (2017). He has had visiting positions at Singapore Management University and the University of Hong Kong. He was a post-doctoral fellow at the Asia Research Institute, National University of Singapore, and is currently a Media@Risk Scholar at the University of Pennsylvania's Annenberg School for Communication. Before joining academia, he was a journalist at The Straits Times. In our cover story on page 26, he explores recent legislative attempts to tackle the complex and growing problem of fake news and hate campaigns in our region.

Alastair Nicholson AO QC RFD was an Australian judge for 22 years during which time he served as a Justice of the Supreme Court of Victoria, a Justice of the Federal Court of Australia and, for 16 years, as Chief Justice of the Family Court of Australia. Since 2003, he has been the Chair of the National Centre against Bullying of Children in Australia and an Honorary Professorial Fellow of the University of Melbourne, Faculty of Law. He has written and spoken extensively on issues relating to human rights and the rights of children and youth at many Australian and international conferences. As Chair of Children's Rights International, he has been heavily involved in the planning and development of child justice programs in Cambodia and Vietnam, and in urging a new and enlightened approach to issues associated with Indigenous people in Australia. On page 64 of this issue, he reports on the tireless campaign for children's rights in Cambodia and the progress of an innovative new Juvenile Justice Law.

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CONTRIBUTORS

The scientificThe examination scientific examination examination The scientific documents of handwriting, documents documents of handwriting, handwriting, of and fingerprints and fingerprints and fingerprints thoroughanalysis, analysis, thorough analysis, thorough

SINC impartiality, E 19 The scientific examination impartiality, impartiality, 84 impartiality, quality assurance quality assurance qualityassurance assurance quality of handwriting, documents and fingerprintsPhone: Phone: +61 +61 22 9453 9453 3033 3033 Phone: +61 2 9453 3033

Jane Southward

has been a journalist for 30 years, having worked at Fairfax in Sydney and New York. She is Associate Editor of Asian Jurist and Associate Editor of LSJ for the Law Society of New South Wales, as well as a sessional academic, teaching media at the University of New South Wales. In this issue, Jane interviews Ellen Hansen, a Genevabased lawyer about her work at the United Nations High Commission for Refugees. In October, UNHCR will present the results of three years' work on a new global compact on refugees. The report comes at a time when the number of displaced persons, including refugees and asylum seekers and people forced to move within their own countries, is at a record high of 68.5 million. In our Leadership story this issue on page 20, Jane meets Dana Denis-Smith in London to discuss her innovative initiative to celebrate and record the stories of women in law in the lead-up to the centenary of women lawyers in the United Kingdom in 2019.

Donald R Rothwell

S SSIIINNNCCCEE19 E 11998844 84

Phone: +61 2 9453 3033

examined@forensicdocument.com.au examined@forensicdocument.com.au examined@forensicdocument.com.au examined@forensicdocument.com.au

www.forensicdocument.com.au www.forensicdocument.com.au www.forensicdocument.com.au www.forensicdocument.com.au

thorough analysis, is Professor of International Law SINC E 19 impartiality, at the ANU College of Law. He isThe scientific examination 84 quality assurance one of Australia’s leading experts of handwriting, documents in international law with specific andPhone: fingerprints +61 2 9453 3033 focus on the law of the sea, law of examined@forensicdocument.com.au the polar regions, use of force and www.forensicdocument.com.au implementation of international law thorough analysis, within Australia. He is the author of 22 SINC E 19 impartiality, books, more than 200 book chapters 84 and articles, and is Editor-in-Chief quality assurance of the Brill Research Perspectives in Law of the Sea. Co-author Associate Phone: +61 2 9453 3033 examined@forensicdocument.com.au Professor David Letts AM CSM is www.forensicdocument.com.au Director of the Military Law Program The Thescientific scientific examination examination and Director of the Centre for Military The scientific examination of and Security Law at the ANU College ofhandwriting, handwriting, documents documents of handwriting, documents thorough analysis, of Law. He entered academia after and fingerprints and fingerprints SINC and fingerprints a career of more than three decades E 19 impartiality, in the Royal Australian Navy. His 84 research and public commentary rest quality assurance upon the application of legal regimes thorough thoroughanalysis, analysis, thorough analysis, SSININCCE to military operations. On page 52 of impartiality, impartiality, SINC E1919884 E 19 4 impartiality, this issue, they examine the complex 84 quality qualityassurance assurance quality assurance dynamics at play in the South China Sea and consider whether, in thorough the present analysis, political climate, there is still a viable SIN2C29453 Phone: 3033 Phone:+61 +61 9453 3033 role for international law.impartiality, Phone:examined@forensicdocument.com. 198 3033 +61 2 E9453

The scientific examinat of handwriting, docume and fingerprints

The scientific examination of handwriting, documents and fingerprints

Phone: +61 2 9453 303

4 examined@forensicdocument.com.au examined@forensicdocument.com.au examined@forensicdocument.com.au www.forensicdocument.com.a quality assurance www.forensicdocument.com.au www.forensicdocument.com.au www.forensicdocument.com.au

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Regional news INDIA

Pivotal judgment decriminalises homosexuality in India In a landmark ruling on 6 September 2018, India’s Supreme Court determined that criminalising consensual same-sex conduct is unconstitutional. In a unanimous verdict, the fivejudge bench ruled that, while section 377 will continue to be part of India’s penal code, it can no longer be used to criminalise sex between people of the same gender. The court deemed Section 377, first enacted in 1861 during British colonial rule, "irrational, arbitrary and incomprehensible". The ruling follows a long campaign by human rights and activist groups. In 2001, the Naz Foundation (India) Trust filed a case before the Delhi High Court arguing that Section 377 impeded the organisation’s public health work in the field of HIV/AIDS and sexual health, and contended that it violated both the Indian constitution and international human rights. In 2009, the court ruled in favour of the foundation. However, this was overturned by the Supreme Court in 2013 on the grounds that it was the responsibility of the legislature to amend the law. The impact of that ruling was widespread and devastating to the LGBT community in India, many of whom had come out following the 2009 decision. Without the protection of 12

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law, LGBT people continued to suffer discrimination and were vulnerable to violence and extortion. Activists again challenged the law. In 2016, the Supreme Court agreed to a detailed hearing of the review petitions. A range of judgments, including recognition of transgender equality and the right to privacy, paved the way for the historic striking down of Section 377. The significance of this ruling extends beyond India. Countries in Asia, Africa and the Caribbean, which had been part of the former British Empire, incorporated language similar to Section 377 into their own laws. Buoyed by the progress in India, Kenya and Botswana have cases pending before the courts. In 2015, Belize and in 2018, Trinidad and Tobago, successfully decriminalised existing laws against sodomy. However, more than 70 countries still criminalise consensual same-sex relations. While recognising that there is still much to be done to protect the rights of those marginalised by their sexual orientation or gender identity, Meenakshi Ganguly, the South East Asia Director of Human Rights Watch, believes "[s]triking down Section 377 is a momentous step that will resonate around the world in communities that are fighting for equality".

PHILIPPINES

Filipino prosumers drive corporate social responsibility Prosumers are those early adopters of products who influence what others buy. A recent Filipino report, Emerging Shifts in Filipino Consumption Mindsets, reveals that 60 per cent of prosumers are influenced by the production company’s values or political and social activities. Buying local helps the economy, good choices help the environment, over-consumption damages the planet. The concept of "patriotic shopping" guides the prosumers to support local producers and examine and evaluate the company’s involvement and attitude to social issues. In this way, they are mindful of their purchases, which lead the mainstream purchasers’ choice some months later. In turn, they use social media to show and recommend their choices. To capture this market, both producers and retailers would be wise to engage with prosumers and highlight the positive values of their companies and products.

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REGIONAL NEWS

SOUTH EAST ASIA

NAURU

Facing the foreign waste crisis Since China banned the import of many types of solid wastes earlier this year, many Asian countries have seen a rise in foreign waste shipments. Vietnam has stopped issuing licenses for the import of waste in order to prevent the country becoming a dumping ground. More than 6,000 shipping containers are being held at Vietnam’s ports, causing congestion to trade. Malaysia has also recently cancelled the licenses of 114 waste processing factories in order to control pollution. At the same time, authorities in Thailand are scurrying to control the illegal import of plastics to its recycling plants. China recognises its ban on waste imports will temporarily impact other local countries, but says it will lead to much better regional and global standards in the long term. Myanmar is also facing a flood of waste, but has an agreement with Japan to provide them with better waste-management technology.

Stronger partnerships for a stronger Pacific

The separation and sorting of waste into categories can lead to more effective waste management and the generation of additional energy for the electricity grid. Japan is producing energy from waste in a demonstration factory in Yangon. Electronic waste is another concern. Since China’s ban on waste imports, thousands of tonnes of electronic waste have been smuggled into Thailand. This waste has been burnt, producing hazardous heavy metal contamination. More than 210,000 metric tonnes of electronic waste have been imported to Thailand from 35 countries during the past five months.

Leaders of Pacific Island nations, Dialogue Partners and Forum Observers recently attended the 49th Pacific Islands Forum in Nauru where climate change, refugee policy and the emerging influence of China in the region dominated discussions. Representatives from Australia, New Zealand and Pacific nations both large and small declared climate change to be "the single greatest threat to the livelihood, security and wellbeing of the peoples of the Pacific". There were differences of opinion, however, when it came to reductions in carbon emissions. Australia declined to endorse a statement calling for countries to "urgently accelerate" reductions in carbon emissions, while small island states identified this action as crucial. All nations were in accord that cooperation and collaboration were required ahead of this year’s COP24 climate conference in Poland, so as to effectively progress Pacific priorities in relation to the Paris Agreement. The Boe Declaration, named after the district in Nauru in which it was signed, also acknowledges that the Pacific region is increasingly crowded and complex, with China and Australia in particular having significant stakes in investment, aid and secruity.

The waste management crisis in numbers

46%

The amount by which chemical production in the Asia Pacific is projected to increase over 2012–2020.

2050

The year the ocean is expected to contain more plastics than fish.

1 million tonnes

of hazardous waste is generated daily in the Asia Pacific.

$1.3 billion The cost to APEC members (in US dollars) due to marine debris.

Source: United Nations Environment Programme, unenvironment.org

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REGIONAL NEWS

AUSTRALIA

Landmark study gives voice to most vulnerable groups in Australian legal system On 23 August 2018, the Law Council of Australia released its final report from The Justice Project, one of the most comprehensive and significant investigations conducted into the state of access to justice in Australia. In early 2017, an expert steering group commenced one of the most important pieces of work ever undertaken by the Law Council. Under the leadership of the former Chief Justice of the High Court of Australia, the Hon. Robert French AC, the Justice Project investigated the experiences of significantly disadvantaged community groups and how their disadvantage negatively impacts their access to justice and quality justice outcomes. The Justice Project engaged in about 150 consultations and received 129 submissions from 13 key groups, including Aboriginal and Torres

FIJI

Fiji hones electoral practices ahead of nationwide polls

Strait Islander people, people with disabilities, the aged, LGBTI people and those facing economic hardship. The final report makes 59 recommendations to improve the Australian justice system, including a whole-of-government commitment to justice access, a full review of resourcing to reduce delays and costs to the community, and ongoing funding for the legal assistance sector to ensure the effective administration of justice. Cost is recognised as one of the most significant barriers disadvantaged people face when they seek to access justice. The legal community has welcomed the Justice Project for delivering constructive, informed recommendations that provide a clear direction for future action. The full report is available online at justiceproject.com.au.

With the date of the 2018 general election in Fiji soon to be announced, preparations are well underway to support the Fijian Elections Office (FEO) in delivering a credible and fair election. Since 2015, the FEO has been working with the International Institute for Democracy and Electoral Assistance (International IDEA) to enhance electoral practices in Fiji. Joint activities have included presentations on electoral best practice and training in electoral risk management. International IDEA has assisted in the development of the Candidate’s Handbook to provide, for the first time in Fiji, information on various rules and procedures to assist potential candidates. The FEO has also had a strong partnership with the Australian Electoral Commission (AEC) for a number of years, with the AEC providing short-term inputs in areas such as full electoral cycle planning and logistics, and ballot paper printing processes. The 2018 general election will again be assisted by the Multinational Observer Group, co-led by Australia, Indonesia and India. The group will observe and evaluate the functions and operations of the FEO during the election period.

Union in 1945 but always claimed by Japan, have created an impasse and prevented the two countries from signing a peace accord. At the Eastern Economic Forum, held in September 2018 in Vladivostok, Russian President Putin sought to set aside this longstanding point of contention and indicated that an historic peace agreement with Japanese Prime Minister Abe could be signed

before year’s end. President Putin claimed that negotiating a deal "will not be easy" but that it would allow the two countries to "continue to solve all outstanding issues like friends". However, Japan’s Chief Cabinet Secretary, Yoshihide Suga, said that Japan’s stance on the attribution of the islands hadn’t changed and that any peace treaty would only be signed after that issue was resolved.

RUSSIA

Putin presses for peace treaty with Japan For nearly 70 years, a territorial dispute has hampered relations between Russia and Japan. Four islands in the Kuril chain, occupied by the former Soviet 14

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REGIONAL NEWS

CHINA

ASIA PACIFIC

Social credit system In what is purported to be the world’s largest social engineering project, China is piloting a social credit program that it says will be fully operational by 2020. Social credit is described as a personal scorecard for each of China’s 1.4 billion citizens. Those who earn top citizen scores will receive benefits and preferential treatment at hotels and airports, cheap loans and access to the best universities and jobs. At the other end of the scale, low scores will impact a person’s ability to travel, associate with others, gain access to credit and secure government jobs. Pivotal to the scheme is the use of technology. China is committed to leading the world in artificial intelligence and has developed high-tech surveillance systems and smartphone apps to collect data and monitor the physical and online behaviour of its citizens on a daily basis. This information will be combined with big data from existing government sources, such as medical, financial and educational records, to create an individual score. In the pilot projects across at least 12 cities, scores have

Regional leaders endorse AAA Recommendations to end modern slavery been out of 800 or 900. Surveillance cameras are tracking citizens’ every move. This is not a new experience and, in a country where individual privacy is less highly valued than community good, the professed benefits of improved safety, security and stability are welcomed. Some, however, see social credit as a means for the Communist Party to reassert greater control of its people, much of which was lost in the 1980s when China opened up the world and experienced rapid development. They fear it is a way to exert dominance and quell dissent. Already, 10 million people have experienced the effects of low social credit rating. Penalties include loss of social media accounts, the inability to use phone apps to make travel bookings, social isolation as friends can lose points through association with those who are blacklisted, and the freezing of assets. Time will tell whether social credit becomes a means of improving, or of controlling, the lives of China’s citizens.

With 62 per cent of the estimated 40.3 million men, women and children subjected to modern slavery in the Asia Pacific, the region has acknowledged a shared challenge to end this prevalent and highly profitable crime. Meeting at the two-day Bali Process Government and Business Forum in Nusa Dua, business leaders from across the region proposed regional solutions to end modern slavery. The Acknowledge, Act, Advance (AAA) Recommendations, endorsed by both government and business leaders, provide a blueprint to strengthen and implement policy and legal frameworks. The recommendations address issues in the region such as supply chain transparency, the treatment of workers, ethical recruitment and victim support. The forum was launched in 2017 as the business track of the Bali Process on People Smuggling, Trafficking in Person and Related Transnational Crime that was established in 2002.

Charting a connected and increasingly mobile China in 2018

98%

of internet users access the web through mobile devices.

569 million The number of online shoppers in China.

788 million The number of mobile internet users in China.

802 million The number of internet users in China at the end of June 2018.

Source: China Internet Network Information Center (CNNIC), ‘41st Statistical Report on Internet Development in China’, 11 July 2018, available at: cnnic.com.cn

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REGIONAL NEWS

MYANMAR

Press freedom plummets in Myanmar Two Reuters journalists have been sentenced to seven years’ detention in Myanmar after investigating the death of 10 Rohingya men in Northern Rakhine province. Wa Lone and Kyaw Soe Oo were arrested in December last year for possessing official documents that were classed as state secrets. The journalists alleged that the police actually gave them the documents in a restaurant and that they had been set up. Their report on the 10 deaths documents only part of the state’s ongoing brutal crackdown on the Rohingya people. Despite several witness testimonies and local police confirming the murders, the military was exonerated from involvement in the massacre. The UN has recently released a report calling for charges of genocide against Myanmar army’s excessive

response to minor Rohingya militants, accusing them of torture, rape, enslavement and murder. Meanwhile, the two journalists, who both have young families, continue to protest their innocence with the support of Reuter’s editor-in-chief Stephen Adler, who stated, "Today is a sad day for Myanmar … and press freedom anywhere." Other objections to their imprisonment were made by the UN Humanitarian Coordinator, Amnesty International and the British and US ambassadors. The Asia Director of Human Rights Watch, Brad Adams said, "These sentences mark a new low for press freedom and further backsliding on rights under Aung San Suu Kyi’s government". As the government controls access to official news from the Rakhine province, the ongoing welfare of the journalists is unclear.

VIETNAM

Facebook forced to reconcile privacy policy with local laws in Vietnam Access to Facebook in Vietnam will become more restricted as new cybersecurity laws closely monitor online political discussion. The new laws, which come into effect on 1 January 2019, force technology companies like Facebook to store and then hand over large amounts of user data and to censor content. In 2015, an Amnesty International report showed 16

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that online technology had effectively challenged traditional print media to better reflect the political issues in the country. Such public debate and assembly has long been banned in Vietnam. In response, Facebook is losing the support of many users as they see it negotiate with authorities and agree to remove specific posts and user accounts. Facebook has more than

SINGAPORE

Penal Code Review calls for new measures to combat tech-based sexual abuse Suggested amendments to the Penal Code in Singapore seek to provide better protection against sexual exploitation for the more vulnerable members of society including minors, domestic staff and victims of marital rape. Advances in mobile device technology have given rise to other avenues of sexual abuse such as voyeurism, grooming and distribution of intimate images on social media. Depending on the offence and age of the victim, proposed punishment could range from two to five years’ imprisonment, as well as fines and caning. This new Penal Code consolidates previous laws of extortion or intimidation that were piecemeal and inconsistent and focuses on the increasing use of technology to sexually exploit vulnerable victims. A sharp rise in the crimes of "upskirting", revenge porn and"flashing" has demanded specific laws to criminalise the recording and distribution of intimate images. The Amendment Bill will be tabled in Parliament next November.

35 million users in Vietnam and the potential loss of advertising is forcing the company to decide the limits of cooperation. Meanwhile, many users are looking to alternative social platforms such as minds.com that offer greater privacy through encryption.

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REGIONAL NEWS

SOUTH EAST ASIA

Tackling the illicit wildlife trade in South East Asia Using the codename "Thunderstorm", Interpol has coordinated a series of sting operations in 92 countries targeting the illegal trade in exotic animals, meat, ivory and timber. This international trade is estimated to be in the order of US$150 billion each year. Illegal wildlife is sourced in Africa and across Asia including Cambodia, Indonesia, Laos, Malaysia, Myanmar, Thailand and Vietnam but distributed widely throughout China and the rest of the world. Many cultures claim the medicinal value of tiger parts, turtle meat, anteater scales and rhinoceros horn, while smugglers still trap and kill elephants for ivory that is carved in Vietnam and sold into China. More recently, Indonesia has provided a steady supply of exotic birdlife for collectors. Many of the most popular species are becoming extinct. While authorities, NGOs and volunteer groups operate in numerous countries, the porous borders between many Asian countries allow the smuggling networks to operate undetected. Operation Thunderstorm

While authorities, NGOs and volunteer groups operate in many countries, the porous borders between many Asian countries allow the smuggling networks to operate undetected. has been successful in arresting several key criminal leaders, including Indian national Manivannan Murugesen, who led a group of turtle smugglers from Singapore. Several countries have strengthened their smuggling laws: Vietnam recently increased its maximum sentence for wildlife trafficking from seven to 15 years.

However, Cambodia, Myanmar and Laos have yet to implement laws addressing illegal wildlife trafficking. In the meantime, many locals have established informal action groups to preserve the small number of animals left behind. Although international operations such as Thunderstorm are valuable, the most effective action must be taken at the local community level. In Myanmar, concerned locals stopped traffickers at the border with China and saved and then bred large numbers of tortoises in an attempt to restore their dwindling numbers.

The price of a pangolin?

The most illegally trafficked animal in the world

8

species of pangolin have been prohibited from international trade since 2017.

159

unique international trade routes are used by traffickers, with more emerging every year.

11.9 tonnes

of pangolin scales were seized from a ship in Shenzen, China in 2017; the world's largest seizure of its kind.

120 tonnes

of pangolin were confiscated by law enforcement agencies worldwide between 2010–2015.

Source: United Nations Environment Programme, unenvironment.org | 19th century engraving of a pangolin →

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REGIONAL NEWS

DATA VISUALISATION

Levels of media freedom in the Asia Pacific in 2018 The Reporters Without Borders (RSF) World Press Freedom Index is an annual assessment of media freedom in 180 jurisdictions. Individual index scores are derived from a weighted analysis of seven factors: pluralism, media independence, media environment and self-censorship, legislative framework, transparency, infrastructure, and abuses and violence against journalists. Each jurisdiction is ultimately awarded an index score between zero and 100, with lower scores indicating higher levels of media freedom. Source: Reporters without borders

Afghanistan (Global rank: 118/180)

Violence against media personnel is rife, but the establishment of coordinating committees for press safety has supported a two-place improvement in rank.

D UNITED IRELA THE IRELANDKINGDOM NETHERLAN BELGUM G

LUXEMB

FRANCE

PORTUGALSPAIN

MOROCCO

MEXICO

MEXICO MEXICO CUBA

CUBA JAMAICA

CUBA

HAITI DOM. REP. HAITI DOM. REP. JAMAICA

WESTERN SAHARA

HAITI DOM. REP. MAURITAN M BELIZE BELIZE SENEGAL SENEGAL MAURITANIA VERDE HONDURAS HONDURAS BELIZE SENEGALCAPE VERDE CAPE MALI O.E.C.S O.E.C.S N NICARAGUA NICARAGUA HONDURAS GUATEMALAGUATEMALA CAPE VERDE O.E.C.S GAMBIA GAMBIA B NICARAGUA GUATEMALA TRINIDAD AND TRINIDAD TOBAGOAND TOBAGO EL SALVADOREL SALVADOR PANAMA PANAMA GUINEA GAMBIA GUINEA-BISSAU BURKINA GUINEA-BISSAU FASO EL SALVADOR GUYANA GUYANA GUINEA-BISSAU GUINEA PANAMA COSTA RICA COSTA RICA TRINIDAD AND TOBAGO BENINCÔTE VENEZUELA VENEZUELA SIERRA LEONE SIERRA LEO SURINAME SURINAME GUYANA NIG D'IVOI COSTA RICA CÔTE VENEZUELA GHANA FRENCH FRENCH SIERRA LEONE SURINAME LIBERIA LIB D'IVOIRE COLOMBIACOLOMBIA GUIANA GUIANA FRENCH LIBERIA TOGO COLOMBIA GUIANA

ECUADORECUADOR

PERUBRAZIL PERU BOLIVIA

CHILE

EQUAT. GUINEA

BRAZIL BRAZIL

BOLIVIA BOLIVIA

PARAGUAY PARAGUAY CHILE CHILE PARAGUAY

ARGENTINA ARGENTINA ARGENTINA URUGUAYURUGUAY URUGUAY

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MOROT

JAMAICA

An ‘information black hole’ concerning military intervention in Rakhine State, restricted access to conflict areas, and the threat of serious reprisals (including physical violence and imprisonment) for challenging official rhetoric has made self-censorship the norm for journalists in Myanmar.

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PORTUGAL

WESTERN WEST ALGERIA SAHARA SAH

Myanmar (Global rank: 137/180)

18

SW

ANDORRA

UNITED UNITED STATES STATES UNITED STATES

PERU

NO

CANADA CANADA CANADA

ECUADOR

Good situation Satisfactory situation Noticeable problem Difficult problem Very serious situation

ICELAND I

ICELAND

20/9/18 1:51 pm


REGIONAL NEWS

South Korea (Global rank: 43/180)

South Korea climbed 20 places in rank thanks to renewed public confidence in press freedom after the election of President Moon. Further structural changes are needed.

ELAND

ICELAND ICELAND

Samoa (Global rank: 22/180)

Despite the liveliness of media groups, Samoa is in the process of losing its status as a regional press freedom model due to the criminalisation of defamation.

RUSSIA RUSSIA

FINLAND FINLAND NORWAY NORWAY FINLAND SWEDEN ESTONIA SWEDEN ESTONIA NORWAY LATVIA LATVIA SWEDEN ESTONIA DENMARK DENMARK LITHUANIA LITHUANIA LATVIA UNITED UNITED DENMARK LITHUANIA BELARUS BELARUS IRELANDKINGDOM UNITED IRELANDKINGDOM POLAND POLAND BELGUM GERMANY BELGUM GERMANY BELARUS IRELANDKINGDOM CZECH REP. CZECH REP. POLAND UKRAINE UKRAINE SLOVAKIA SLOVAKIA BELGUM GERMANY CZECH REP. AUSTRIA MOLDOVA MOLDOVA KAZAKHSTAN KAZAKHSTAN HUNGARY AUSTRIA HUNGARY UKRAINE FRANCE FRANCE SLOVAKIA SLOVENIA SLOVENIA CROATIA CROATIA ROMANIA ROMANIA AUSTRIAHUNGARYITALY MOLDOVA ITALY KAZAKHSTAN FRANCE BOSNIA-H SERBIA BOSNIA-H SERBIA MONGOLIA SLOVENIA

RUSSIA

THE NETHERLANDS

THE NETHERLANDS

THE NETHERLANDS

LUXEMBOURG

LUXEMBOURG

LIECHTENSTEIN

LUXEMBOURG

SWITZERLAND

ITALY

ANDORRA

ANDORRA CROATIA

SWITZERLAND

ANDORRA ROMANIA

BOSNIA-H SERBIA

BULGARIA BULGARIA MONTENEGRO MONTENEGRO KOSOVO MACEDONIA KOSOVO MACEDONIA

BULGARIA

SPAIN KOSOVO MACEDONIA PORTUGALSPAIN PORTUGAL ALBANIA MONTENEGRO

PORTUGALSPAIN

LIECHTENSTEIN

SWITZERLAND

LIECHTENSTEIN

ALBANIA

ALBANIA

GREECE

TURKEY

GEORGIA

AZERBAIJAN

GREECE TURKEY

ARMENIA

GEORGIA

AZERBAIJAN

AZERBAIJAN UZBEKISTAN

MONGOLIA MONGOLIA

UZBEKISTAN

KYRGYZSTAN KYRGYZSTAN KYRGYZSTAN TURKMENISTAN TURKMENISTAN TAJIKISTAN TAJIKISTAN

GEORGIA

UZBEKISTAN ARMENIA ARMENIA

TURKEY

NORTH KOREA

NORTH KOREA

NORTH KOREA

JAPAN JAPAN SYRIA SYRIA CYPRUS JAPAN LEBANON AFGHANISTAN AFGHANISTAN ISRAEL IRAQ IRAQ IRAN IRAN SOUTH SOUTH MOROCCO PALESTINE JORDAN PALESTINE JORDAN AFGHANISTAN TUNISIA MOROCCO KOREA KOREA IRAQ IRAN NEPAL NEPAL SOUTH MOROCCO PALESTINE JORDAN BHUTAN BHUTAN KUWAIT KUWAIT KOREA NEPAL BHUTAN PAKISTAN PAKISTAN LIBYA LIBYA ALGERIA ALGERIA KUWAIT BAHRAIN BAHRAIN WESTERN WESTERN LIBYA EGYPT EGYPT QATAR QATAR PAKISTAN ALGERIA BAHRAIN TAIWAN TAIWAN SAHARA SAHARA RN EGYPT SAUDI SAUDI U.A.E U.A.E QATAR TAIWAN A ARABIA ARABIA INDIA INDIA HONG KONG HONG KONG SAUDI U.A.E LAOS LAOS OMAN INDIA OMAN ARABIA HONG KONG MAURITANIA MAURITANIA BANGLADESH BANGLADESH LAOS SENEGAL SENEGAL MALI OMAN MALI NIGER NIGER SUDAN SUDAN URITANIA VIETNAM VIETNAM THAILAND THAILAND BANGLADESH VERDE CAPE VERDE CHAD CHAD SUDAN YEMEN YEMEN MALI ERITREA ERITREA NIGER VIETNAM THAILAND PHILIPPINES PHILIPPINES YEMEN GAMBIA GAMBIA BURKINA CHAD BURKINA CAMBODIA CAMBODIA ERITREA DJIBOUTI DJIBOUTI PHILIPPINES FASO FASO GUINEA GUINEA BURKINA CAMBODIA INEA-BISSAU GUINEA-BISSAU BENIN BENIN DJIBOUTI FASO NIGERIA NIGERIA SOUTH SOUTH SOMALIA SOMALIA UINEA CÔTE BENINCÔTE ETHIOPIAETHIOPIA GHANA CENTRAL CENTRAL SIERRA LEONE SIERRA LEONEGHANA SOMALIA MALDIVES MALDIVES NIGERIA D'IVOIRE BRUNEI BRUNEI SUDAN CÔTE GHANA D'IVOIRE SOUTH AFRICAN REP. AFRICAN REP. SUDAN ETHIOPIA CENTRAL LIBERIA LIBERIA MALDIVES D'IVOIRE CAMEROON CAMEROON TOGO TOGO SRI LANKA SRI LANKA BRUNEI MALAYSIA MALAYSIA SUDAN SEYCHELLES SEYCHELLES AFRICAN REP. IA CAMEROON MALAYSIA TOGO SRI LANKA UGANDA UGANDA SEYCHELLES EQUAT. GUINEAEQUAT. GUINEA SINGAPORE SINGAPORE CONGO CONGO RWANDA RWANDA KENYA KENYA UGANDA SAMOA EQUAT. GUINEA GABON SINGAPORE CONGO GABON REP. DEM. REP. RWANDA DEM. KENYA SAMOA GABON PAPUAPAPUATONGA DEM. REP. CONGO CONGO NEW GUINEA NEW GUINEA INDONESIA INDONESIA PAPUATONGA BURUNDI TANZANIA BURUNDI TANZANIA CONGO NEW GUINEA INDONESIA EAST TIMOR EAST TIMOR GREECE

MALTA

MALTA

TUNISIA

MALTA

TURKMENISTAN

TAJIKISTAN

CYPRUS LEBANON ISRAEL

CHINA

TUNISIASYRIA

CYPRUS LEBANON ISRAEL

BURUNDI

TANZANIA

COMOROS

COMOROS

CHINACHINA

EAST TIMOR

ANGOLA ANGOLA MALAWI MALAWI COMOROS ANGOLA MALAWI ZAMBIA MOZAMBIQUE ZAMBIA MOZAMBIQUE ZAMBIA MOZAMBIQUE MADAGASCAR MADAGASCAR ZIMBABWE ZIMBABWE MADAGASCAR MAURITIUS MAURITIUS NAMIBIA NAMIBIA ZIMBABWE

NAMIBIA

FIJI

FIJI

MAURITIUS

BOTSWANA LESOTHO

Samoa photo: Department of Foreign Affairs and Trade

FIJI

SAMOA TONGA

SOUTH AFRICA

BOTSWANABOTSWANA

LESOTHO SWAZILAND LESOTHO SWAZILAND SWAZILAND SOUTH SOUTH

AFRICA

AUSTRALIA AUSTRALIA AUSTRALIA

AFRICA

NEW ZEALAND NEW ZEALAND NEW ZEALAND

New Zealand (Global rank: 8/180)

Media freedom thrives, but is not exempt from pressure, especially economic. Media pluralism and independence are constantly under threat from moves to concentrate media ownership.

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LEADERSHIP

EQUALITY

A true trailblazer

JANE SOUTHWARD met Dana Denis-Smith in London to talk about the First 100 Years initiative and her passion for a new approach to working in law.

D

ana Denis-Smith can pick her timing. Just weeks after she launched her new legal business in 2010 with £500 of her own money to market it, she discovered she was pregnant with her first child. Fast forward eight years and Obelisk Support is now a multi-million dollar business with 12 permanent staff in London and 1,500 lawyers around the world, mainly women who take on freelance legal work, mostly in the commercial sphere. Denis-Smith, 42, says most of the lawyers work around their family and study commitments after being what she calls “economically inactive” because of inflexible work practices in traditional firms. Obelisk supplies legal solutions to numerous companies including Goldman Sachs, Vodafone, BT, Siemens, ING and Barclays, as well as law firms such as Linklaters and White & Case. Denis-Smith was born in Transylvania, Romania, and worked as a journalist before moving to the UK on a Reuters scholarship. She studied at

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"[My father] told us that education would be our empowerment, that it would allow us to have our fate in our hands." the London School of Economics before attending BPP Law School in London, then took a graduate role at Linklaters. She worked in the finance, commercial and employment sectors before starting her own business in emerging markets in 2008. Denis-Smith was named Personality of the Year at this year’s LexisNexis awards in the UK, and The Times named Obelisk one of the UK’s top 50 employers for women in 2015 and 2016. In 2014, she launched the First 100 Years project in the UK and gave herself five years to create a large digital library charting the journey of women in law in

the lead-up to the 2019 centenary of the change that allowed women to practise as lawyers. “It feels like I have two jobs – one at Obelisk and one on the First 100 Years project, as I spend at least a couple of hours a day on it,” says Denis-Smith. “It is funded through donations and from the start I decided this has to be a project for the whole profession. Women being involved in the justice system is a bigger thing than saying we are a bunch of women lawyers celebrating women in law. Women in law have pushed change for women throughout society, not just the law.”

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LEADERSHIP

Denis-Smith talks about how she juggles work and life. “I get up at around 5am since my evenings have been eaten up by my daughter, who is seven. I have two coffees in quick succession. I quite like the quiet. The work varies and depends on whether I have a client-focused day or whatever is on the pile. I don’t do the easy things in the morning. I do the things that need my thinking time – either Obelisk or First 100 Years. Then I drop my daughter off at school and I get into the office about 9.45 or 10. My regular day is varied, which is something I really like. I travel abroad about once a month and but I have a rule that I travel only if I have to. I grew up in Transylvania and feminism definitely did not count in my village. I had no knowledge of it, but as a child I had a sense of justice and right and wrong. When I was in high school I decided I wanted to be an international journalist, so I taught myself English. My family were quite simple farming people and my dad had hoped for a son. He ended up with three girls and passed on this idea that just because you are a girl, you should achieve the same and do whatever you want. He told us that education would be our empowerment, that it would allow us to have our fate in our hands. I got the idea for the First 100 Years when I saw a photo in an alumni magazine of Herbert Smith in the UK.

→ The photograph that sparked Dana Denis-Smith's interest in the history of women in law.

My husband, who is a barrister, had spent one year there. There was an article about a partner who was turning 100 and he was talking about what his work had been like. The accompanying photograph, which was from 1982, was very strange – the most striking aspect was the one woman who was wearing blue and was surrounded by men in dark suits. Something really hit me when I saw it. I hadn’t given much thought to the work of women in the law. I wondered why there was only one woman. It got me thinking about the role and made me want to find out why there was only one woman. Then I realised they couldn’t be lawyers – I knew nothing about the history of women in law at the time. That was when I decided to fund the project. I initially funded it from Obelisk. I have the view that if you believe in something you should put money behind it. In 2016, it became a charity in its own right. The most challenging part of Obelisk is having it growing so fast. The legal sector is a very closed sector; it has a tradition as a guild and it is a profession set up to exclude, not include. Even though I was a lawyer, I am not a practising lawyer, nor an ex-partner of a law firm. Being able to punch above your weight all the time can be tough. It’s about building and pushing a market for the business, being more visible, being present, being a player when in law being a player isn’t always about your skills but who you know. My job is also about educating clients that there is another way of working. We don’t see keeping inflexible work hours as acceptable. Most of the time when I have meetings, they are with men. The decision-makers are men, so whenever I lunch it is always with men. It reflects the power imbalance that still exists.” For more information on the First 100 Years initiative, visit first100years. com.au for the Australian project and first100years.org.uk for the UK project.

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20/9/18 1:53 pm


OPINION

HUMAN RIGHTS

Democracy erodes under the guise of a war on drugs

Democratic processes, including legal processes, are being exploited to destroy the same institutions meant to safeguard democracy and protect the rights of citizens, writes Philippines Commissioner on Human Rights KAREN GOMEZ-DUMPIT. 22

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nce touted as the bastion of democracy in Asia, the Philippines finds itself in a dire predicament. We are at a crossroads of human rights promotion and protection. We are experiencing an erosion of the rule of law and witnessing the withering of our democratic institutions. While human rights violations are not new to the Philippines, in a little over two years we have witnessed the very core of humanity – human dignity and human rights – and the movement that champions them become the subject of constant attack. We are not saying that human rights violations did not exist during past administrations, but the occurrence of these violations today is seemingly reminiscent of our country’s experience during the martial law years. This is unprecedented in recent memory.

↑ President Duterte delivering his message to the Philippines community in Vietnam. Photo: PCOO EDP → President Duterte walking past the Philippines honour guards before his departure for Vietnam. Photo: PCOO EDP

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OPINION

Almost two years ago, we elected a new President who ran a campaign centered on solving the country’s problem on illegal drugs – seemingly at all costs. Since then, the very essence of human rights is the subject of constant attack amid the present administration’s bloody and relentless “war on drugs”. This so-called war has since been the centrepiece policy of the Duterte Administration, and it is being executed at the expense of the lives of the marginalised, disadvantaged and vulnerable. There is no debate that the issues of drugs and criminality are genuine issues that must be addressed, not only by the government but by all stakeholders in our society. It should be a multidisciplinary approach, a human rights-based approach that ensures respect for the rule of law. Current reports approximate somewhere between 8,000 to 12,000 or even 20,000 extrajudicial killings of people supposedly involved in drugs, nearly one-third of which were allegedly perpetrated by members of the Philippine National Police (PNP), who invariably claim these killings happened in the course of legitimate police operations and were therefore lawful. Interestingly, the PNP claims that no extrajudicial killing has

occurred and, if at all, these are isolated cases. Just within the first six months of this administration, the number of casualties already exceeded those of the first years of martial law (1972-1981). Among the victims of this “war on drugs” are children who have been considered collateral damage. Anecdotal data shows that at least 51 children have been affected so far, and they are now being brought to light as among the thousands of faceless victims in this un-winnable war. We can debate all day as to the exact figures of the killings, but we say that a single incident is one too many. And behind these reported

"This so-called war has since been the centerpiece policy of the Duterte Administration, and it is being executed at the expense of the lives of the marginalised, disadvantaged and vulnerable."

numbers are thousands of families who, unfortunately, are most often left with no recourse but to painfully mourn the sudden loss of their loved ones – most often their breadwinners. Impunity has been guaranteed through the President’s open pronouncements that police officers responsible for the killing of individuals suspected of involvement in the drug trade will not face prosecution during his tenure and, if ever prosecuted, will be pardoned. The President’s constant blanket protection to the security sector tips the scale further against human rights. This problem is reminiscent of the martial law experience of the Philippines when thousands of lives were lost, only this time, instead of political opponents, the perceived enemies of the State are drug dependents who should be rehabilitated and reformed, not killed. It is important to highlight that long-term solutions to these problems, and many other social problems, will not be achieved if the root causes are not addressed. This, I think, is one major challenge in this administration. Shortsightedness and the want for instant solutions are highlighted in this “war on drugs”. Killing a person suspected of being involved in illegal drugs not only reeks of human rights violations, but it also neglects the fact that addiction is a serious health issue. Needless to say, the supply must also be curtailed. The Duterte Administration also pushed for the reinstatement of the death penalty in the Philippines. The death penalty was abolished by law in the country in 2006 and in the 1987 Constitution. The Philippines also ratified the Second Optional Protocol of the International Covenant on Civil and Political Rights. In March 2017, the House of Representatives (lower chamber of Congress) passed a Bill re-imposing the death penalty. Despite opposition from civil society, an overwhelming 216 of 291 members voted in favour of the Bill. The reinstatement of the death penalty was

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OPINION

↑ Senator Leila De Lima, a critic of the Philippine Drug War, was arrested prior to the beginning of her trial in 2017. Photo: Avito C. Dalan for Philippine News Agency

being pushed as the solution to rising criminality. To seemingly satisfy the President, the super majority in the House passed a watered-down version of the death penalty Bill. As expected, the only offences left in the final version of the Bill were drug-related offences. The Commission on Human Rights strongly opposes the re-imposition of the death penalty. At the height of our campaign to oppose the reinstatement, the Commission and Dr Christopher Ward of the Australian National University undertook a study to examine the effect of reinstating the death penalty on the country’s international human rights obligations. The study posits that the Philippines will violate its international legal obligations if it re-imposes the death penalty. The ratification of the Second Optional Protocol by the Philippines in 2007, 20 years after the passage of the Constitution, is a valid sovereign act of the Philippines as a matter of international law. The Philippines may not withdraw from the Second Optional Protocol as this treaty unambiguously 24

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prohibits, permanently, the imposition of the death penalty in the Philippines for all crimes. Fortunately, the Senate did not pass its counterpart Bill; thus, the death penalty Bill has not become law. And, despite President Duterte still pushing for the reinstatement of the death penalty in his 2017 State of the Nation Address, the same was dropped from the list of priority Bills in the second regular session of the 17th Congress. This affords us a bit of a breather. We have also seen how this administration is trying hard to silence opposition, even to the extent of exploiting and abusing democratic institutions and processes. Staunch critic Senator Leila de Lima is still detained for alleged illegal drug trading. It must be remembered that Senator De Lima, during her time as Commission on Human Rights Chairperson, initiated an investigation into the so-called Davao Death Squad. This death squad is reported to be behind the thousands of killings of drug suspects in Davao during Duterte’s

incumbency as city mayor. As early as 2008, then UN Special Rapporteur on extrajudicial, summary or arbitrary killings Prof Philip Alston reported on the killings perpetrated by the infamous Davao Death Squad. The Commission on Human Rights was not spared. After continuously registering dissent on major policies of the allies of the President, the Lower House moved to effectively abolish the Commission. Towards the end of last year, the super majority in the House of Representatives proposed an $A25 budget for the Commission. Thanks to public outrage, a viral post #GiveMyTaxesToCHR, and a relatively more sober Senate, the CHR’s budget was restored. Other democratic institutions are continuously being attacked. The supermajority in the House are taking advantage of their numbers to impeach the Chief Justice who is perceived as a hindrance in fulfilling the administration’s seeming goal to take hold of all branches of government. The Office of the Ombudsman, tasked

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OPINION

to promote integrity, efficiency, and high ethical standards in public service, is constantly under attack – from exerting pressure for the Ombudsman to resign to suspending the Overall Deputy Ombudsman in the course of his investigation of bank transactions of the President and members of his family. Along with the Commission, these democratic institutions were placed in the 1987 Constitution precisely to safeguard against excesses of those in power. They are integral in the checks and balances that underlie our democratic government. What is ironic these days is that the democratic processes, including legal processes, are being exploited to destroy the same institutions meant to safeguard democracy and protect the rights of citizens. A culture of misogyny has also become prevalent in Philippine society. The President’s pronouncements and views on women and women’s issues have brought us several steps back. A recent order made by the President on shooting women members of the communist group New People’s Army in their vaginas, saying that without them they are useless, shows not only indecency but conveys and incites hatred against women and their fundamental roles in society. The many years of work towards gender equality and gender parity, spearheaded by the women’s rights movement, have been reversed in less than two years. These and many more human rights violations are being perpetrated with the backdrop of misinformation, especially on social media. Studies reveal that the President’s campaign was run utilising so-called influencers who

are able to sway public opinion. Some, if not most, of these influencers are known to be purveyors of fake news. It is not unfamiliar to us that fake news is used to show that all the government does is good while destroying the reputation of the opposition and ultimately silencing dissent. This same fake news is being used to destroy human rights. With the advent of this age of misinformation, the human rights movement is being besieged by negative propaganda and false dichotomies. Disturbingly, the President remains very popular and maintains a relatively high trust rating. The public is alarmingly silent and indifferent to these crucial issues on human rights. Sadly, the fact that the primary targets are “suspected criminals� has brought apathy among the majority of the general public, dehumanising the victims, justifying the violations, and accepting it as the norm in their communities. This seeming passivity and indifference possibly stems from the idea that the concept of human rights is, to many if not most Filipinos, an abstract notion to which they feel no close personal connection, unless they themselves become victims. In March, the Philippines became prominent again on the international scene, withdrawing from the Rome Statute of the International Criminal Court. This came after ICC Prosecutor Fatou Bensouda in February decided to open a preliminary examination on the situation in the Philippines, particularly pertaining to crimes allegedly committed in the context of the war on drugs. The Commission considers the move to withdraw from the ICC as a step back

"We have also seen how this administration is trying hard to silence opposition, even to the extent of exploiting and abusing democratic institutions and processes."

in addressing impunity in the country and elsewhere in the world. We believe that if the Philippine government can ably demonstrate genuine respect for human rights, as well as working mechanisms that ensure that perpetrators are brought to justice and there is recourse for victims under our justice system, then international human rights bodies will find no reason to assume jurisdiction over what should otherwise be purely domestic affairs. In these trying times, the Commission on Human Rights, following its mandates and functions, stands as the conscience of government and the people; we seek truth in human rights issues. As a beacon of truth, we make people aware of their rights, and guide government and society towards actions that respect the rights of all, particularly those who cannot defend themselves – the disadvantaged, marginalised, and vulnerable. It is also in these times that the Commission becomes ever more relevant. As a national human rights institution, the CHR serves as a watchdog of government. While we do not enforce laws and prosecute, we continue to perform our investigative functions so the government will be reminded of its own duties. We continue to educate the public of human rights and their importance in our lives. We serve as the conscience of society, especially of government and, as such, we register our dissent on issues and policies that contravene human rights in the midst of a disabling environment, even at the risk of being harassed and defunded. Some say that what happens in the Philippines could be a watershed for other nation states re-imposing the death penalty despite being a State Party to the Second Optional Protocol and the withdrawal from the Rome Statute to name specific instances. That is why we need your solidarity. This is an edited extract of a speech delivered at UNSW, Sydney, Australia, on 9 April 2018.

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20/9/18 1:55 pm


COVER STORY

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COVER STORY

DISINF OR M ATION AND HATE C A MPAIGNS While Donald Trump may have coined the inelegant term “fake news”, it is by no means a phenomenon unique to America. Sophisticated and insidious disinformation and hate campaigns are having serious consequences around the world, leaving legislators struggling to respond effectively. But are more laws really the answer? CHERIAN GEORGE writes.

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COVER STORY

At a legislative hearing in May, Singapore’s powerful law minister K. Shanmugam publicly shamed representatives of global internet giants when he displayed a shocking cartoon that been circulating freely on Twitter. It depicted a naked and bloody Caucasian woman on the ground, her slain baby between her outspread legs, and encircled by 10 Arab and South Asian men. Tweeted with the hashtag #DeportAllMuslims, the cartoon was an undisguised attempt by Europe’s far right to spread fear of immigrants and refugees. Shanmugam, of course, had a more salutary intent when he displayed this cartoon at the Select Committee on Deliberate Online Falsehoods. He pointed out that British legislators had complained to Twitter about the image, only to be told that it was not in breach of the platform’s hateful conduct policy. Here was a clear case where platforms were permitting content that was beyond what Singapore could tolerate, he said. “If the law does not cover this, then we will have to have law that covers this. And no amount of protestation that self-regulation will be enough is going to wash,” he concluded. Singapore’s Select Committee published its report in September, recommending new legislation to deal with “deliberate online falsehoods”. Singapore is one of many jurisdictions grappling with this problem. Germany’s new network enforcement law, dubbed NetzDG, requires internet platforms 28

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to delete potentially illegal content more diligently. In July, the French parliament passed a bill that would allow judges to block the dissemination of intentionally false information published within three months of an election. Of course, deceit is as old as human society. But what seems new is the sense of losing control to industrialstrength disinformation campaigns. Revelations of Russian manipulation of public opinion in the United States and Europe have raised this to the status of

a national security crisis. Also causing consternation is the fact that who sees what online is determined by codes that are being gamed by irresponsible players for private gain. Internet users seem unable to resist clickbait or to detect hoaxes, and are contributing to an information ecosystem where falsehoods, hate speech, and cat videos seem to be winning the Darwinian struggle against the information and ideas people need to sustain democratic self-government. Never have elites in liberal democracies –

Photo: Peru Ministry of Foreign Affairs

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let alone in illiberal societies like Singapore – seemed less convinced of Justice Oliver Wendell Holmes’ classic defence of free speech, that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. As a result, information disorders – including junk news, hoaxes, and hate propaganda – have gone to the top of the public agenda in many countries. Indeed, the alarm has been so shrill that the response is taking on traits of a moral panic. While much of the concern is justified, there is a tendency to overreact to a few salient features of the problem; to ignore other important aspects; to rush to judgment; and to opt for quick legal fixes.

Hijacking the “fake news” label to stifle legitimate debate As is typical in moral panics, there have also been instances of flagrant

opportunism: following the lead of Donald Trump, authoritarian leaders such as the Philippines’ Rodrigo Duterte and Egypt’s Abdel Fatah al-Sisi have hijacked the “fake news” label to stigmatise legitimate media criticism. In Malaysia, one of the final legacies of the Najib Razak government before it was ousted in May’s general election was an Anti-Fake News Act. The new government has declared that it will repeal the statute. The Malaysian law defines fake news ambiguously, notes Article 19, the London-based freedom of expression advocacy group. “It essentially grants unfettered discretion to authorities to target expression they dispute the veracity of, or simply do not like,” it adds. We need to respond to the urgent and critical challenge of disinformation campaigns, but avoid kneejerk reactions that solve nothing while creating their own set of problems.

"Deceit is as old as human society. But what seems new is the sense of losing control to industrial-strength disinformation campaigns. Revelations of Russian manipulation of public opinion in the United States and Europe have raised this to the status of a national security crisis." ↖ Singapore's Law Minisiter K. Shanmugam is pushing to legislate against 'Deliberate Online Falsehoods'. But in making an example of Twitter's failure to remove of fensive posts like the #DeportAllMuslims cartoon (right), he may have, ironically, highlighted the value of free speech.

The scourge of hate propaganda

The most virulent strain of disinformation is hate propaganda – a kind of group libel directed against communities defined by their race, religion, nationality, immigrant status, sexual orientation or other salient markers of identity. At its most extreme, hate speech has facilitated crimes against humanity, including genocides. More routinely, it is used by identity-based political parties and movements to mobilise supporters by cultivating a fear of others, and to intimidate and marginalise their opponents. Such tactics diminish the target community’s dignity and threaten their rights as equal citizens. Examples in Asia are distressingly common. In 2017, disinformationassisted hate propaganda claimed one of its biggest scalps when hardline Muslim groups brought down the Governor of Jakarta, Indonesia. Basuki "Ahok" Tjahaja Purnama, an ethnic Chinese Christian, had been the target of vicious identity politics the moment he took office. In 2016, the outspoken politician impetuously told a gathering that Muslims were welcome to vote against him if they believed his opponents’ lies that the Quran forbids them from electing non-Muslims. This remark was twisted by his enemies to make it seem as if he’d said that the Quran itself was deceiving the people. A video of Basuki’s remarks with crucial words omitted from the subtitles was posted online with a provocative caption. Hardliners seized on the episode to mobilise huge protests. Basuki not only lost the election but was also convicted of blasphemy and sentenced to two years in jail. The biggest victims, though, are not political elites but marginalised communities. Years before attacks on Myanmar’s Rohingya community reached levels that verge on genocide, human rights activists had been warning about anti-Muslim hate speech on Facebook. Meanwhile, hate propagandists in India surpass Russia’s information warfare capabilities in

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← Jakarta, Indonesia, 4 November 2016: Muslims demonstrate demanding the removal of Governor of Jakarta Basuki "Ahok" Tjahaja Purnama, believing the viscious disinformation campaign targeted against him. Photo: Abraham Adeodatus / iStockphoto.com; Yamtono_Sardi / iStockphoto.com ↙ Indian Prime Minister Narendra Modi's Hindu nationalist supporters have been behind conspiracy theories such as "love Jihad", which has broken up consensual inter-faith marriages and incited riots in key electoral battlegrounds. Photo: Kremlin.ru

scale, sophistication, audacity – and body count. One of their deadliest conspiracy theories spun by Hindu nationalists behind Prime Minister Narendra Modi is the “love jihad”, which claims that Muslim men are carrying out a plot to seduce, abduct and convert Hindu girls as part of a grand mission to steal the soul of the country away from Hindus, who make up almost 80 per cent of the population. In response, self-styled defenders of the Hindu majority have broken up consensual inter-faith marriages and forced the women to return to their families. The main utility of the love jihad hoax, though, is to incite communal conflict in critical election battlegrounds, thus solidifying the Hindu base behind Modi’s Bharatiya Janata Party. Hate propaganda has also infused Hindu nationalists’ cow protection movement. While the cow may be sacred to Hindus, the effects of the campaign have been profane. In a landmark 2015 incident, a lynch mob killed a Muslim villager in Dadri, Uttar Pradesh, after being told he had stolen a calf for his family’s consumption. Human rights norms provide clear guidance on balancing free speech rights with the right of people to live free of intimidation, discrimination and violence. The International

"While there is a strong case for regulation of extreme and dangerous forms of hate speech, lawmakers need to understand what they are up against. Policy debates have tended to underestimate how strategic and versatile the most formidable agents of hate are."

Covenant on Civil and Political Rights (ICCPR) requires states to prohibit hate propaganda that crosses the threshold of incitement to harm. Article 20 states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” But while there is a strong case for regulation of extreme and dangerous forms of hate speech, lawmakers need to understand what they are up against. Policy debates have tended to underestimate how strategic and versatile the most formidable agents of hate are.

It's complicated

First, hate propagandists are not as dependent on digital media as conventional wisdom suggests. Certainly, social media platforms are currently too hospitable to disinformation; their speed, virality and anonymity are being exploited to the hilt. But it’s not as if hate propagandists will be deterred by snatching away their internet toys. Face-to-face interaction within places of worship and study groups probably play a bigger role than online messages in cultivating religious intolerance. The Dadri lynching, for example, was triggered by an announcement in the local temple. In many countries, talk radio and cable news hosts do more to create intolerant “echo chambers” and “filter bubbles” than social media. The disproportionate attention being paid to social media places undue faith in techno-legal solutions. Second, existing and proposed measures against hate speech and fake news are designed to deal with self-contained messages that can be shot down, sniper-style, by lawyers, moderators, fact-checkers and other regulators. But that is not how the most harmful hate propaganda works. Instead, it takes the form of multimodal, multi-message campaigns – or what the public relations and advertising industries call integrated marketing communications.

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It is embedded in grand narratives, often invoking a mythical golden age as well as past injustices and traumas. These narratives are refreshed with contemporary examples to keep the community in a state of heightened anxiety. When the community needs to be activated – to take part in a riot, for example – activists simply need to point to some new development as the last straw. The audience’s pre-loaded memories do the rest. Structured thus, hate campaigns pose intractable regulatory conundrums. Trying to use fake news regulation would be futile, since propaganda can deceive without being untrue. For example, the antiimmigrant cartoon described earlier is part of a “rapefugee” myth that white nationalist media propagate by curating news reports of people with Muslim-sounding names suspected of sexual offences. Each item may be factually accurate and even come from a credible news source, but the overall effect is to mislead. Third, there is a division of labour, such that it is extremely difficult to hold accountable the leaders who ultimately benefit from the campaign. The most extreme and shocking expression is left to low-level activists and anonymous trolls. Leaders avoid inflammatory language, and thus claim plausible deniability. For example, BJP politicians make matter-of-fact references to population trends that seem unobjectionable in isolation, but are designed to dovetail with conspiracy theories about Muslims out-reproducing Hindus. The politicians show their true colours when they refuse to condemn extreme speech and hate crimes by their followers. Their silence is morally reprehensible but not something that can be legislated against. Fourth, hate propagandists don’t just use conventional hate speech, but also a companion strategy of offencetaking. They manufacture righteous indignation against perceived insults, such as the release of a book or film, or 32

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the building of an unpopular minority’s place of worship. In many Asian countries, these orchestrated shows of offendedness are supported by laws that prohibit offence and insult. Governments claim they need such laws, including against blasphemy, to maintain social harmony. But these backfire badly. When the state treats blasphemy as a crime, fanatical groups feel justified in exercising vigilante justice and mob vengeance against perceived offence. Or, after vociferously taking offence, they demand that the state uphold its insult laws. The prosecution of the former Jakarta Governor for blasphemy was a classic case, and by no means unique. Fifth, hate agents are adept at political jiu-jitsu, using a bigger opponent’s strength to their advantage. When they are hemmed in by authorities or elites, they play the victim to milk their community’s sympathy. They thus gain political

mileage even when they are called out, countered or regulated. When a government cracks down on their hate speech, they cite this to their supporters as evidence that the state has been captured by influential minorities.

Redirecting the regulatory gaze

All in all, laws against hate speech and fake news provide a false sense of security against modern hate campaigns. Granted, it is difficult to resist flexing legal muscles when confronted with content as toxic as the cartoon referred to in the introduction. Yet, this very cartoon turns out to be a good illustration of why censorship may be misguided. It is an archetype of jiu-jitsu hate propaganda, designed to inflict injury even when the power of the state is applied against it. One key detail in the drawing is that the victim is being gagged by caricatures of Barack Obama and Angela Merkel, with a strip of cloth bearing the words “racism”.

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Photo: stnazkul / iStockphoto.com

Another cartoon in this genre shows the father of the rape victim being arrested by a policeman because his protestations are deemed racist. The message: governments are protecting dangerous minorities from criticism in the name of political correctness and multiculturalism.

Any attempt to censor the cartoon – which would never stop its circulation in any case – would only confirm this allegation in its target audience’s eyes. Similarly, Germany’s NetzDG law has already been termed censorship by the extreme right, as has Google’s attempts to change its algorithms to relegate anti-Muslim propaganda sites in its search results. Furthermore, even if we agree that this particular cartoon crosses the line, articulating a general policy is not a straightforward matter. Imagine the same basic cartoon but with different characters: replace the victim with a blood-soaked Vietnamese woman and baby, and change her brown skinned assailants to crazed American soldiers, with the ironic caption, “Democracy�. Let’s say the cartoon was posted by a Vietnamese artist to commemorate the 50th anniversary of the 1968 My Lai Massacre. If an American veteran got offended and complained, it would hardly be satisfactory if Twitter moderators gave in and took down what should count as legitimate commentary on a matter of public interest. Such judgments should not be left to Silicon Valley firms secondguessing vague government rules. The proper forums are domestic courts and other regulatory agencies with the accountable power to issue specific take-down orders based on clear, written law.

"Internet users seem unable to resist clickbait or to detect hoaxes, and are contributing to an information ecosystem where falsehoods, hate speech, and cat videos seem to be winning the Darwinian struggle against the information and ideas people need to sustain democratic self-government."

Ironically, the Singaporean law minister’s actions made a compelling case for a liberal approach, even if his words suggested otherwise. To ensure that his argument reached the wider public, Shanmugam posted the cartoon and his comments on his Facebook page, which has more than 120,000 followers (more than most Singapore politicians of any party). Within a couple of days, the obscure cartoon received more than 10,000 views on his page. The minister meant this as an open-and-shut case of content that did not belong in Singaporean cyberspace, but his actions said something else: that it can serve the public interest to let such content circulate and stimulate an open discussion on the divisive forces that threaten cohesion in a diverse society. He unwittingly demonstrated that governmental intervention need not take the form of censorship when it can instead engage in counter-speech to reinforce social norms. None of this is to suggest that there is no space for the law in the fight against disinformation and hate campaigns. On the contrary, human rights defenders across the region have long been calling for more forceful action by states, in line with international law. However, there is growing skepticism about the effectiveness of speech laws. Far more emphasis needs to be given to anti-discrimination laws, backed by a strong civic culture of equality. Asian states need to be uncompromising in protecting every individual’s equal right to live, work and worship without fear – and less concerned with policing citizens’ minds and feelings. CHERIAN GEORGE, professor of media studies at Hong Kong Baptist University, is currently a Media@Risk Scholar at the University of Pennsylvania's Annenberg School for Communication. His books include: Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy (2016) and Singapore, Incomplete: Reflections on a First World Nation's Arrested Political Development (2017).

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Legal delivery at the speed of business (and why it matters) The legal profession is lagging behind business when it comes to the speed of delivery – and it’s costing us dearly, writes MARK A. COHEN.

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" Time is money

"

... wrote Benjamin Franklin in a 1748 essay titled Advice to a Young Tradesman. Franklin was a polymath – scientist, statesman, publisher, inventor and diplomat. Is it coincidence that he was almost everything except an attorney? Lawyers have a different take on time than other industries. The legal profession uses it as a price gauge – more is better. Lawyers rationalise excessive time as "attention to detail" – and justification for a larger bill. The profession rewards input (time/ origination) over output (efficiency/ results). This is the inverse of Franklin’s view that time is a precious commodity to be apportioned prudently. It is also contrary to business where rapid risk assessment and decisive decisionmaking is the norm. How have lawyers preserved a culture and tempo so asynchronous to the clients – and society – they covenant to represent zealously, competently, and within the boundaries of the law? The legal profession seeded and assiduously cultivated an ethos of “lawyers and ’nonlawyers’” that became the cornerstone of lawyer exceptionalism. Law is provincial by design; each jurisdiction has its own practice rules designed to keep out "interlopers". The profession constructed regulatory barriers to ensure "nonlawyers" could not compete for what lawyers deemed "legal" work. Law was insular and operated at a pace designed to accommodate a "scorched earth" approach to all tasks, regardless of value. This served the economic model 36

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of the traditional law firm partnership model. Law has operated as a guild for generations. It controlled membership, licensure, practice rules, regulation, delivery, supply, pricing, and terms of engagement. Lawyers dictated how, by whom, within what timeframes, and at what price their services were delivered. Their economic model was built on leverage, high rates, exorbitant billable hours, and no "outside" competition. The judicial process also operated at its own languid pace. Judges were loath to rule from the bench or chastise

counsel for dilatory practices. If justice delayed is justice denied, then the judiciary is out of sync with a world that demands rapid, binding, and efficient resolution of disputes.

Guild becomes industry

The global financial crisis, rapid technological advances, and globalisation have transformed the buy/sell dynamic across multiple industries. Law has lagged behind others, but it is showing signs of accelerated transformation. Legal

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practice is shrinking as the business of law – leveraging practice skills and delivering legal services more efficiently via tech, process, and "the right resource for the task" is expanding. The legal profession is becoming subsumed by the legal industry. Legal practice is no longer synonymous with legal delivery, and lawyers are not the exclusive providers of legal services. New expertise, organisational structures, economic models, delivery options, tech-driven solutions, knowledge management systems, process and process management, and financing for customer-centric solutions are hastening the sunset of the legal guild. Not only is the cost of legal services coming under intense scrutiny (even as law firms continue to raise rates and incoming associate salaries), but also the speed and efficiency of legal delivery is increasingly held to business – not legal – standards.

Sometimes it's not just a matter of price

Cost is generally the focus of consumer disaffection with lawyers. That is one of the principal causes of the access to justice crisis in the U.S. and many other nations. But there are other reasons why the legal industry has such a high level of consumer dissatisfaction. Legal buyers are also frustrated by legal delivery’s languid pace, unpredictable cost, artisanal approach to even routine tasks, reluctance to digitise, lack of responsiveness, onedimensional expertise, law-centric approach to business challenges, and excruciatingly slow judicial process. Law’s delivery cycle and the remnants of its artisanal approach lag the warpspeed of business, and that is one of many reasons investment in legal technology (IT applied to legal delivery), legal operations, and the migration of "legal work" from law firms to in-house legal departments and "alternative legal service providers" (ALSPs) has accelerated during the past decade. ALSPs – and that includes the Big Four

and other global inter-disciplinary professional service giants – have a DNA and modus operandi that more closely resemble business than law. The confluence of the global financial crisis, accelerated advances in technology, and globalisation has caused legal buyers to reject several legal myths including: (1) all lawyerdefined "legal" work must be performed by firm associates; (2) legal work is intrinsically distinct from other business challenges; (3) lawyers – not legal buyers – determine the value and delivery cycles of their work; and (4) legal expertise is the sole element of legal delivery – legal, technological, and process/project management expertise is required. The asymmetrical knowledge and expertise that enabled

The legal profession is becoming subsumed by the legal industry. Legal practice is no longer synonymous with legal delivery, and lawyers are not the exclusive providers of legal services.

lawyers to control legal delivery has been replaced by technological, business, and legal acumen. Legal delivery is no longer the exclusive purview of lawyers. In-house legal providers, ALSPs and providers that focus on "the business of law" are using technology, process, inter-disciplinary expertise, project management, capital, performance metrics scale, and "the right resources for the task" to better align the speed of legal delivery to the needs of business. Companies like LegalZoom (LZ) deploy technology to expand legal access to millions of individuals as well as small- and mid-sized companies. LZ provides consumers a range of service options running the gamut from chat bots, self-serve lawyer-vetted documents, "low-touch" lawyer involvement (brief, low-cost consultations focused on specific questions), and full-blown engagements. Not only is access expanded and cost reduced, but also the speed of service is aligned to the contemporary world. Legal consumers no longer search for a lawyer, negotiate terms, await the results of a conflicts check, and sign a retention letter. That can now be done online in a matter of minutes. Likewise, answers are provided quickly. And while this process may not satisfy some legal purists, consider that LZ has a sky-high net promoter score that far eclipses large law firms.

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Realigning law and business

What can legal professionals do to better align the pace of legal delivery with business? Technology is a potent tool provided that: (1) it is designed and deployed to address material challenges in ways that benefit legal buyers and the public; (2) it is a "team sport" that involves lawyers who provide the use case and application for its use, technologists to design it, users for whom it is friendly, and end-users; (3) it is not regarded as a panacea but as a tool and means to an end; and (4) that legal culture recognises technologists – like lawyers, other professionals and paraprofessionals – are all "legal professionals" committed to collaborating with other human beings and machines to improve access to and quality of legal services. Technology can accelerate speed, reduce cost, and mitigate risk of legal delivery in a legion of ways. Data filtering, review, and synthesis; selfserve, just-in-time digital learning tools, chat bots, AI applications that enable real-time preparation and negotiation of contracts, research tools, block chain, and other applications are already transforming the speed and accessibility of legal delivery – and demystifying it. Technology will not replace lawyers, but it will alter when,

Technology will not replace lawyers, but it will alter when, how, by whom, with whom, and at what price they are engaged.

Rethinking the business model The traditional pyramid model of today will likely give way to an organisation shaped more like a rocket.

TOMORROW'S LAW FIRM

Partner

Lawyers

Senior lawyers

Junior lawyers

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Outsourcing partners

Outsourcing

Outsourcing

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Automation

Project manager

Paralegals

Tech manager

Legal tech

Tech solutions

Source: How Legal Technology Will Change the Business of Law, BCG, January 2016.

TODAY'S LAW FIRM

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how, by whom, with whom, and at what price they are engaged. The judicial process, like lawyers, has been slow to adopt technology. This is changing as online dispute resolution services, virtual courtrooms, and other tech-driven dispute mechanisms are slowly reconfiguring a judicial process that is severely backlogged, slow, and out of sync with the pace of life in the internet age. The court of public opinion, fueled by social media and its instantaneous global reach, is threatening to marginalise courts of law. Technology is a tool for accelerating the speed of legal delivery, but its efficacy is dependent upon the relevance of its application, the willingness of providers to adopt it, and its benefit to legal buyers. Harnessing the potential of technology will require a cultural shift by the legal industry. It starts with reengineering legal education and training. Law schools must augment traditional doctrinal courses – training students to "think like a lawyer" with "practical practice" courses – client interaction, drafting contracts and pleadings, settlement negotiations, and other core skills. The curriculum must also expose students to the marketplace and the new skills it demands – project management, business basics, data analytics, and how technology is used to deliver legal services. These tools will enable legal

professionals to work more efficiently and accelerate the delivery process. Law schools and their accreditors must take steps to reduce the crippling cost of legal education and compress programs to two years of classroom courses and one devoted to experiential learning/legal residency. Flipped classrooms, self-help tools, and webinars will reduce cost and foster agile, just-in-time learning. Law schools would benefit students, themselves, the industry, and consumers were they to forge alliances with the marketplace and teach the skills it demands. Fewer graduates will have traditional practice careers, but there are expanding opportunities for "T-shaped" legal professionals. The industry – and consumers – will benefit from a more diverse pool of legal professionals.

Some practical steps for accelerating legal delivery

There are several practical steps that legal professionals can take to accelerate delivery. The list includes: plain language (no legalese), concise communication, responsiveness, answers instead of equivocations, proactive practices, risk assessment, the appropriate resource – human or machine – for the task, people skills, focus on net promoter score (NPS), not profit-per-partner (PPP), diversity in the broadest sense of the

term, a holistic approach to problem solving, and meaningful performance/ delivery/customer satisfaction metrics. Legal professionals must collaborate, appreciate the speed of business, embrace process and project management, utilise technology, and view challenges from the client perspective, not a narrow lawyer’s lens. Delivery of legal services must be accelerated to mirror the speed of business – and life.

Conclusion

The legal industry has the tools to expand access and improve delivery. The profession will continue to provide differentiated legal knowledge, skills, and expertise for matters that demand it. The industry – i.e. the business of law – will be dominated by providers whose delivery capability responds to the pace and needs of business. Traditional delivery paradigms, notably law firms and corporate legal departments – many of whom still operate like law firms, not businesses – will either be re-engineered or become marginalised by a new breed of ALSP that is culturally and operationally aligned with business. The recent rebadging of hundreds of legal professionals from GE and DXC to UnitedLex, a global service provider, is evidence that some corporate departments recognise what matters is expertise and results, not pedigree and bluster. The new face of legal delivery is emerging. It has a different profile than its predecessor, one that more closely resembles business than the legal guild it is replacing. Providers that consistently deliver services with speed, value, and results will dominate. As business knows, time is money. This article was first published on www.forbes.com on 25 June 2018 and is republished here with permission. MARK A. COHEN is the CEO of Legal Mosaic, a legal business consultancy, as well as speaker, author, and Distinguished Fellow at Northwestern University Pritzker School of Law.

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Talking the talk

Lawyers with multilingual talents are out there, and in greater number than you might think. So who are these people who have mastered more than Latin and legalese in this ever-increasing globalised world? MELISSA COADE finds out.

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merging economies in the Middle East and Asia are encouraging big firms to think about how they should adapt their model for international business. And with multinational companies looking to build their global talent pools, the business case for speaking at least two languages is becoming increasingly strong.

An active pursuit

Dr Alexandra Grey took up French and Mandarin classes as part of a lunch time language program offered by her Australian firm, Clayton Utz. The French lessons were a continuation of her undergraduate studies in law/ arts at university, but Mandarin was something entirely new. It was studying Mandarin that inspired her doctorate thesis, which jointly won the 2017 Australian PhD Prize for Innovations in Linguistics. After working as a tipstaff to a Supreme Court judge and then spending more than two years in private practice, Grey was ready for something new. She completed a Masters of Applied Linguistics online, and secured a job with a nongovernment organisation in China through what was then known as the Australian Youth Ambassador’s Development Program, sponsored by AusAID. Grey quit her job at the national Australian firm and, in eight months, was working in Beijing. “I managed to line up a position with a Chinese legal aid centre specialising in labour law, and thought it would be great to increase my Mandarin skills but also use my legal knowledge in a different way,” Grey says. “That turned out to be exactly the case and it was really fascinating. The more that I was there, the more I felt like my Mandarin was improving.” In the months leading up to her 42

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move to China, Grey met a Mandarin tutor once a week. But once she found herself in China, Grey spent the first month in near silence as she strained to follow conversations and identify key words. She lacked confidence about her own pronunciation. “Because Mandarin is a tonal language, you have to be really quite exacting in the way you speak,” Grey says. “I just pushed through that and, after a few months, it got much better.” In a bid to develop her language skills, Grey took night classes while working at the Beijing Yilian Legal Aid and Study Centre for Labor. Once her placement with the centre ended, she stayed in Beijing and studied Mandarin full time for two years, while teaching

debating and public communications part time at a local university. It was a decision that rounded out Grey’s Mandarin proficiency with reading and writing skills. She remained in China for three years and still returns from time to time. Grey, who is now undertaking a project at the University of Sydney’s law school in association with its China Studies Centre, believes there are a range of personal and professional benefits for lawyers to learn a language. The first, she says, is that it encourages an active mind. Beyond that, new languages invite different perspectives. “Learning a foreign language also enables you to work with different types of people,” she says. “I certainly

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know bilingual lawyers who use their second language all the time to talk to clients and attract different kinds of clients. Maybe it will be that the contract is still written in English, but there is a lot of work in building those client relationships and trust and understanding that can be better achieved if you speak their language.” For those who grow up in a monolingual household, Grey believes there is a false impression that it can be hard to learn a second language. Her message is that anyone can learn and more people should.

Responding to the new world order

“Learning a foreign language enables you to work with different types of people. I certainly know bilingual lawyers who use their second language all the time to talk to clients and attract different kinds of clients.”

The McKinsey Global Institute predicts that while the global labour force will hit 3.5 billion by 2030, there will still be a shortage of skilled workers. “Global work orientation” – a term coined by Harvard business professor Tsedal Neeley – is all about professional survivability in this new world order. The concept calls on individuals to refresh their skills, attitudes and behaviours to be better equipped to work across cultures. Writing for the Harvard Business Review, Neeley identifies five characteristics that can enhance global work orientation. Although these actions relate to working for a multinational company, they are relevant for anyone wanting to thrive in a globalised business landscape. 1. Positive indifference: Neely suggests overlooking cultural differences, such as having to file frequent key performance indicator reports, for example, without becoming unduly troubled. 2. Finding commonality between cultures: This draws together colleagues from diverse cultures, which can lead to more effective collaboration and teamwork. 3. Identifying the global organisation rather than a local office: The principle of this action is simple – when we feel a sense of belonging with the larger organisation, we are more likely to feel aligned to its values

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and goals. This fosters job satisfaction, commitment and performance. 4. Seeking interactions with geographically distant subsidiaries: To voluntarily seek out interactions with foreign partners shows a greater ability to develop trust and shared vision. 5. Aspiring to a global career: Neely describes an interview with a Taiwanese employee whose aspirations for an international career were tied up with their efforts to learn English.

Taking the international stage

If there is a shining example of a lawyer who embodies the global work-orientation mindset, it is Hiroko Ito. The project finance solicitor from Herbert Smith Freehills (HSF) was born in Japan and, before ever harbouring ambitions in law, had dreams of wowing the international stage as a prima ballerina. In 1998, at age 14, Ito moved from Thailand (where her family was living) to Russia where she began training with the Bolshoi Ballet School. Once the Putin Administration came into power, Russia’s visa restrictions for foreigners living and working in the country began to change, and Ito moved to France in 2004. Aged 20, with Japanese and Russian her primary languages, the young dancer devoted herself to learning all things French. “Everywhere I have moved, I have tried to be as local as possible,” Ito says. "My strategy was to be local. That’s how I adapted to each culture and country. When I moved to Russia, I tried to eat like the Russians, I tried to dress like them and speak like them. “The moment I moved to France I completely forgot about Russian culture, and just adapted to French. I spoke like the French and ate like the French.” Two years on, injuries forced Ito to retire from ballet and she returned to Japan knowing that reinvention was on the cards. When asked why she chose law, she says legal studies posed enough of a challenge to help her forget her dashed dreams of being a professional dancer. Besides, law 44

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was a great education for someone with Ito’s language skills to break into diplomatic work. She would not allow a sporting injury to derail her chance at an international career. “After I studied law in Japan, I joined the Foreign Ministry and then I was seconded to Sydney. That’s how I came to Australia,” Ito explains. “We have two years of diplomatic training so I decided to study a Juris Doctor course at the University of NSW and I was admitted as a lawyer. Then I was assigned to the Japanese Embassy in Canberra.”

"My strategy was to be local. When I moved to Russia, I tried to eat like the Russians, I tried to dress like them and speak like them."

↑ Hiroko Ito

Ito joined HSF in 2015, at about the time the global law firm opened an Australia-Japan practice. It made sense for her to contribute to bridging the two nations in the business world since she had spent so much time doing just that in her previous role for the Japanese Government. However, fitting in culturally did not come as easily in Australia as it did with her past overseas relocations. Ito says she found it difficult to speak up during meetings when other people spoke loudly. She adds that she struggled to find an Australian equivalent to the strict “hidden rules”, which instruct etiquette and conduct in Japanese society.

“I was kind of lost in the beginning. I thought there was a cultural challenge to overcome, but my colleagues said I just have to be as I am,” she says. “The best advice I received from the firm was that it was okay to take it slow and to express my thinking in a way that I felt comfortable.” If Ito finds she has not had an opportunity to add her two cents during a meeting, she approaches her managing partner afterwards and shares her ideas one-on-one. That the law firm has been able to accommodate her preference means HSF benefits from the unique value and cultural fluency she brings. A few weeks ago, Ito received an

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email from a well-known Japanese company. The correspondence, written in Japanese, sought legal advice about a potential investment in Australia. Ito says the prospective client was looking for a native Japanese-speaker to help with their venture and had found her details online. “I have received this kind of email more and more recently,” Ito says. “The opportunities are there and clients are no longer white, Englishnative speakers. Our clients have become more and more diverse, linguistically and culturally.” Most Japanese students study English as a second language in early high school but, according to Ito, while most Japanese people can listen in and follow English conversations, few feel confident to speak it. “I think being bilingual in Japanese and English is quite important and useful in the legal industry,” she says.

More than words

While Ito’s assistance during meetings with Japanese counterparts helps bring clarity to translation (Ito also notes that Japanese spoken in a business context is different from informal, colloquial Japanese), she also has been able to guide Australian lawyers through expectations particular to Japanese culture. For instance, order and hierarchy are a key part of the Japanese business process, so care and time is given to meetings and the steps leading up to an approval. “Meeting preparation is often quite time consuming from an Australian perspective, but it is quite important in Japanese culture,” Ito notes. “In the Japanese business context, it is important to make sure everything is on the agenda and they know the answers, and who will take the questions. "It is very procedural but that is

what clients value and, if that is so, why don’t we do it?” According to Mukund Narayanamurti, the CEO of Asialink Business, language is an important part of a broader suite of skills and knowledge required for developing “cultural intelligence” and achieving successful business outcomes. In 2012, a national strategy to develop an Asia capability workforce in Australia was devised by Asialink Business. In that strategy, language was one of six individual capabilities identified as being critical to business success in Asia. “In addition to language proficiency, these capabilities include attributes such as having a sophisticated knowledge of international markets, extensive on-the-ground experience, strong relationship-building skills, an ability to adapt quickly to local context, and the capacity to deal with local governments,” Narayanamurti says. When Grey is asked if there is a single, classic text that captures her love for Mandarin, her response echoes some of the wider attributes for cultural intelligence identified by Asialink Business. It also motivates her to look beyond any embarrassment she may have about speaking incorrectly and instead totally immerse herself in a foreign-speaking world. “I have come at Chinese in its lived and modern form and that’s how I use it,” Grey says. “I sometimes read poems or books but it’s not my focus and it’s not my love. What I love about Chinese is using it to talk to real people about current things.” MELISSA COADE is a qualified lawyer and reporter based in Sydney, Australia. She is a senior journalist with the Law Society of NSW and writes for LSJ magazine.

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Against the tide

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In 2017, the world saw more displaced people than ever before. In response, United Nations High Commissioner for Refugees lawyer Ellen Hansen will next month see UNHCR'S three-year project come to fruition as the global compact on refugees is presented to the UN General Assembly in New York. She meets JANE SOUTHWARD in Geneva.

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hen Geneva-based lawyer Ellen Hansen started her career at the Department of Foreign Affairs and Trade (DFAT) in Canberra, Australia, in 1987, Bob Hawke was Prime Minister and Bill Hayden was Foreign Minister. Hansen had wanted to be a journalist but, after an Honours degree in English and a law degree at the University of Sydney, the Danish-origin Australian missed out on a treasured journalism cadetship and joined DFAT’s International and General Legal area in Canberra. “I thought the job was quite exciting,” she recalls. “What I found most exciting was really connecting big news events with behind-the-scenes legal matters.” Hansen found herself offering advice on many crucial diplomatic matters. When a shot was fired from the Yugoslav Consulate in Sydney in 1988, wounding an ethnic Croatian protester, Hansen offered advice in a particularly complex diplomatic matter involving NSW and federal jurisdictions. (In the end, the Australian Government imposed a 24-hour deadline for Yugoslav officials to turn the offending guard over to the Australian police and, when they refused to comply, the 12 staff and their families were ordered to leave the country.) When Nauru took Australia, New Zealand and the UK to court for compensation for 90 years of phosphate mining on the small Pacific island, Hansen again used her legal skills. (Australia settled the long-standing dispute with Nauru in 1993, agreeing to pay $A120 million over 20 years.) Hansen later visited Nauru as part of her work for UNHCR. 48

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“Law helped me [with my writing] more than studying English did, ironically enough,” Hansen says with a laugh. “When you have had legal training it really sharpens the messages. "The best advice anyone ever gave me was from my international law professor, David Johnson, who had been with the UK's Foreign and Commonwealth Office, so he had a diplomatic background himself. He said never to forget that whatever you write is likely to become public. I have always lived by that rule, including in my work at UNHCR.” At DFAT, Hansen had great success and, in 1991, she landed a dream posting when she was sent to the Paris office as First Secretary. She worked on bilateral political work, including disarmament and non-proliferation issues. “That meant making representations to the French, reporting on French positions, and reporting

"The best advice anyone ever gave me was from my international law professor. He said never forget that whatever you write is likely to become public." back to Australia’s foreign minister,” she explains. She spent five years in the City of Lights, with her posting extended twice. “They were incredibly heady days,” she recalls. “France resumed nuclear testing. When I first arrived in Paris in 1991, the Berlin wall had come down a couple of years earlier, there was the

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breakup of the former Yugoslavia, and a lot was happening in Europe. “We had a number of very good and positive initiatives on the nonproliferation and disarmament front. We had the chemical weapons convention, the biological weapons convention and the nuclear nonproliferation treaty. We were doing a lot of disarmament arms control work in Paris. “I was single and absolutely loved living in Paris. The work was intense and we were sending several reports back (to Australia) a day in diplomatic cables. That Hansen spoke five languages – English, French, Danish, German and Dutch – came in handy. “When France resumed nuclear testing in the Pacific it was extremely interesting and tough times,” she says. “It was tough because it was very intense, with very intense interest in Australia, and Australia really leading the pack against French nuclear testing. “It was quite hard to manage. Postal workers were refusing to deliver the French diplomatic bag, so the French

↖ The United Nations headquarters in Geneva, Switzerland. Photo: Sharrocks / iStockphoto.com ↑ Lawyer Ellen Hansen at the UNHCR head office in Geneva. → The Broken Chair near the UN in Geneva, built in 1997 at 13 metres tall to call for a ban on antipersonnel landmines. Photo: Andrey Krav / iStockphoto.com

Embassy and Consulates couldn’t get any mail, which was in breach of international law. French goods were being boycotted in Australia and the French were generally vilified. One French Consulate-General was firebombed. I didn’t enjoy that at all; the jingoistic, nationalistic, anti-French atmosphere which, without being an apologist at all for French nuclear testing, was completely unacceptable. It was not the same reaction when the Chinese or British or Americans tested. “I found the open season on all things French difficult and it made my work so much harder. When you lose the high moral ground, that’s when it’s not so great.” After the Paris posting, Hansen moved back to Canberra and worked for a year in the nuclear non-proliferation area which, she admits, was “kind of a natural progression from Paris”. “Living back in Canberra, I think I was in culture shock. I wasn’t bored, but I went through a sort of depression being back. It was a lot of change,” she recalls. At 35, she decided to leave DFAT after a decade of service and bought a one-way ticket to Paris. “But, as they say, if you want to make God laugh, tell him your plans,” she says. “I then met my husband (Jurgen Mildner) and decided to go back to practising law. I did the legal workshop at Australian National University (in Canberra) so I could get a practising certificate. “We decided to get married and have children and I thought I would become a good domestic lawyer. Then the UNHCR role came up, which covered refugee law and policy in the Canberra office. It was perfect timing. For the past 18 years, Jurgen has been the primary carer for our two daughters, Kat, 20, and Hannah, 15, who is at school in Geneva.” For 20 years this year, Hansen has worked at UNHCR, where she is now the Senior Policy Adviser to the Assistant High Commissioner for Protection at UNHCR headquarters in Geneva.

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31 people

are newly displaced every minute of the day (roughly 44,400 people a day) ↑ A camp in Telskuf, Kurdistan, Iraq, for refugees who have fled Mosul due to ISIS activities. Photo: Claudiad / iStockphoto.com

68

%

of refugees come from just five countries Syria (6.3 million), Afghanistan (2.6 million) South Sudan (2.4 million), Myanmar (1.2 million) and Somalia (986,400).

85%

of refugees are hosted by developing countries Turkey (3.5 million), Pakistan (1.4 million), Uganda (1.4 million), Lebanon (998,900), Iran (979,400), Bangladesh (932,200) and Sudan (906,600). Source: UNHCR

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From her home she can see Mont Blanc and her office is a stone’s throw from UN headquarters and the Broken Chair sculpture built in 1997 in recognition of the fight against antipersonnel land mines, including the campaign by Princess Diana. In the UNHCR cafeteria, Hansen speaks of numbers that are simply staggering. The number of displaced persons, including refugees and asylum seekers and people forced to move within their own countries, is now at a record high of 68.5 million. “It’s the worst since UNHCR started reporting the figures,” she says. UNHCR was set up in 1950 in the aftermath of World War II to help millions of Europeans who had fled or lost their homes. The agency was given three years to complete its work but, 68 years later, the work has only increased and become more complex. UNHCR has about 1,000 staff in Geneva and more than 10,000 in the field, across more than 120 countries. Each day, Hansen walks past a tribute to UNHCR staff who have been killed in the field. Hansen says she doesn’t travel much

for work anymore and, compared with UNHCR field workers, that’s true. Still, she mentions recent work in New Delhi, a city she fell in love with, and New York in October when UNHCR's global compact on refugees will come under the international spotlight. Being based in Geneva gives Hansen a different perspective. London is only 90 minutes away by plane, and 40 per cent of residents are expats. “Geneva is a fantastic place; beautiful surroundings, lakes and mountains,” she says. “Life is very safe here. When I think of the number of colleagues who are working in Damascus or Baghdad or Mogadishu, and numerous other places worldwide, let alone the conditions for the refugees we are here to help, I feel incredibly privileged to be living in Geneva as I did living in Canberra.” UNHCR reports that humanitarian work is becoming more high risk. Eighteen staff were killed in the 1990s compared with five in the three previous decades, 15 in the period between 2000 and 2009, and five since then. Most of the deaths were in Africa and Asia and 27 involved national staff.

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"Not more than 20 or 30 countries are involved in hosting refugees or providing funding or resettlement places. We want everybody to do more." The global compact on refugees

In 2017, a record number of people around the world were forcibly displaced due to persecution, conflict or violence. That’s 44,400 people fleeing their home every day, according to UNHCR’s latest Global Trends: Forced Displacement 2017 report. “We are at a watershed, where success in managing forced displacement globally requires a new and far more comprehensive approach so that countries and communities aren’t left dealing with this alone,” says the UN High Commissioner for Refugees, Filippo Grandi.

That’s where the global compact on refugees comes into play. It’s the document that Hansen hopes the 193 countries at the UN General Assembly will adopt in New York in October. The compact, she says, is a “loose form of agreement that’s not legally binding but has a lot of political weight behind it”. Hansen has used her diplomatic skills intensely in preparing the drafts. “Trying to craft a document that is acceptable to all 193 United Nations member states is no small feat and something that is intensely political and sensitive,” she admits. “It is designed to make responses to large refugee movements much more predictable and more equitable to ensure countries receiving large numbers of refugees are supported. Of course, that’s no substitute for reducing the need to flee in the first place.” The compact aims to shake up the international response to refugees and give the people and countries that are often among the poorest in the world hosting refugees more support. “We think the hosting countries are providing a global public good,” Hansen says. “We want more countries to provide additional development funding, additional humanitarian assistance, and more resettlement places to really make sure the base is broadened and there is more heavy lifting on the part of more countries.” Of the 68.5 million displaced individuals (almost 16 million more than a decade ago), 25.4 million are refugees, 40 million are internally displaced, and 3.1 million are asylum seekers. Two-thirds of all refugees came from just five countries – Syria (6.3 million), Afghanistan (2.6 million), South Sudan (2.4 million), Myanmar (1.2 million) and Somalia (986,400). About half of the world’s refugees are children under 18. One in every 110 people in the world is displaced, compared with one in 157 a decade ago. “We want everybody to do more,” Hansen says. “We do need more countries to come to the party. We want existing resettlement countries to do more, but also to broaden the base so

that new countries come on board to resettle refugees. Not more than 20 or 30 countries globally are involved in hosting the vast majority of refugees or providing funding or resettlement places.”

Who is helping most?

For the fourth year in a row, Turkey hosted the largest number of refugees worldwide with 3.5 million people, followed by Pakistan and Uganda (1.4 million), Lebanon (998,900), Iran (979,400), Germany (970,400), Bangladesh (932,200) and Sudan (906,600). “Refugees are people who have had no choice in leaving their home countries,” Hansen says earnestly. “They don’t get protection at home, so they move onwards. They leave everything behind as they are fleeing persecution, armed conflict and serious human rights violations. “We have a mix of factors, with persecution and conflict increasingly intersecting with climate change and environmental degradation. You have people’s livelihoods at stake, increased urbanisation, fighting over scarce resources, bigger gaps between rich and poor, and, in the Pacific, rising waters.” Hansen admits the global compact is the biggest project of her career and adds “the stakes are very high”. “We are wanting all states to come to the party,” she says. “We need more money in terms of humanitarian assistance but, in terms of development assistance and helping, we would like hosting countries to include refugees in their national services to avoid parallel systems of services in camps, such as artificial schools. “We are also looking for the hosting countries to have more inclusive policies to allow refugees access to the labour market, to allow refugee children to go to local schools, to give refugees access to national health services. "But, of course, this cannot be at the expense of local populations. So long as there is armed conflict, there will be refugees. We are trying to build a system that is better for refugees and the people who host them."

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Illumination

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I D E A S | A N A LY S I S | I N S P I R AT I O N

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INTERNATIONAL LAW

Is there still a role for international law in the South China Sea?

Often described as one of the world’s biggest flashpoints, the dynamics at play in the South China Sea are sensitive and complex. But with the right political will, we may just find that all the solutions we need are already before us. Donald R Rothwell and David Letts explore.

T

he July 2016 South China Sea arbitral award remains one of the most significant international law decisions for Asia in recent decades. Handed down under the framework of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’) by an ad hoc arbitral tribunal constituted under Annex VII of UNCLOS, the decision sought to resolve some of the ongoing differences between the Philippines and China regarding a range of law of the sea issues in the South China Sea (‘SCS’). Territorial sovereignty over disputed maritime features was not addressed as this topic was outside the tribunal’s remit. However, China consistently rejected the jurisdiction of the tribunal and refused to participate in any phase of the proceedings, and China continues to contest the legitimacy of the award. As a result, legitimate questions remain about the role for international law in the SCS and its capacity to resolve ongoing tensions.

UN Convention on the Law of the Sea

The international legal issues that confront the SCS predominantly relate to contested territorial and maritime claims, and associated issues such as the freedom of navigation and overflight, fishing, oil and gas development, the building of artificial islands and their militarisation. Given the region’s maritime dimensions the UNCLOS is central to a legal resolution of some of these issues. The UNCLOS entered into force in 1994 and has a total of 168 parties including all of the States with territorial claims in and adjoining the SCS, namely: Brunei, China, Indonesia, Malaysia, Philippines, Singapore and Vietnam. Other parties to UNCLOS, such as Australia, France, India, Japan, New Zealand, South Korea, and the United Kingdom, also have strong commercial, historic, strategic and trade interests in the SCS. The outlying States and entities are Taiwan and the United States. Because of the ‘one China policy’ that applies generally in international relations,

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Territorial disputes

The second body of international law that remains particularly important in the SCS is that which deals with the resolution of territorial disputes. There are numerous maritime features of diverse types scattered throughout the SCS, many of

A snapshot of the South China Sea

3 million km2

The size of the South China Sea.

$3.37 trillion

The amount of international shipborne annual trade.*

Claimants

China and Taiwan, Vietnam, Indonesia, the Philippines, Malaysia, Singapore and Brunei all have claims.

which are subject to the competing territorial claims mentioned earlier. However, it is principally disputes regarding islands, and island-like features such as rocks, shoals and reefs, that have historically been the subject of ongoing territorial disputes. For example, it was the standoff between China and the Philippines over the status of the Scarborough Shoal that was the eventual catalyst for the Philippines commencing arbitration proceedings under the UNCLOS in January 2013. There is a long standing body of international law relating to territoriality and the legitimacy of territorial claims that has been relied upon and referred to by multiple international courts

Conflicts

China and Vietnam have engaged in two armed conflicts, first in 1974 and again in 1988.

Untold value

The SCS is home to untapped oil and gas deposits , vital fishing grounds and some of the most bio-diverse coral reef ecosystems in the world.

1994

2012

Article 121

2013

2016

UNCLOS

United Nations Convention on the Law of the Sea (UNCLOS) entered into force with 168 parties including China.

The Philippines begins the historic SCS Arbitration against China. China rejects the Tribunal's jurisdiction.

China begins to create artificial islands out of uninhabitable rocks and reefs. Military bases follow.

SCS Arbitral Tribunal finds China's claims to rights within a historic ‘nine-dash line’ have no basis in international law.

UNCLOS states that only natural islands may generate a 200 nautical mile exclusive economic zone or continental shelf.

The USA is not a party to UNCLOS, yet still asserts the same navigational rights and freedoms in the region.

*chinapower.csis.org/much-trade-transits-south-china-sea

Taiwan (Republic of China) is not recognised by the majority of States and international institutions, and accordingly is currently unable to become a party to the UNCLOS although it does occupy SCS maritime features. The United States rejected the UNCLOS in the 1980s and since then has never formally moved to become a party. Successive US administrations have asserted they respect the UNCLOS, and consider it to reflect customary international law. However, the fact that the US is not a party to the Convention is a source of tension, especially when it seeks to assert key navigational rights and freedoms that are specially provided for in the UNCLOS. In this regard, it needs to be recalled that when the UNCLOS was concluded in 1982 it was explicitly stated that the convention represented a ‘package deal’ which States either accepted or rejected. The international law of the sea as reflected in the UNCLOS has a major role to play in the SCS given its status as the so-called ‘constitution of the oceans’. In this respect it is noteworthy that China, despite its criticism of the 2016 South China Sea Arbitral Award, has remained a UNCLOS party which reflects the importance attached to the convention by States throughout the region.

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and tribunals to resolve territorial disputes during the past century. These disputes have arisen in every continent other than Australia, and the international law is well developed and understood. Likewise, there are now numerous international law dispute settlement options available to States to resolve their territorial disputes ranging from negotiation and mediation to arbitration and adjudication. In South East Asia the reliance upon this body of international law and these mechanisms for the resolution of territorial disputes dates back to the 1962 Temple of Preah Vihear case between Cambodia and Thailand. In recent years Indonesia and Malaysia (2002 Sovereignty over Pulau Ligitan and Pulau Sipadan case), and Malaysia and Singapore (2008 Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge case) have referred land and maritime disputes to

The fact that the US is not a party to the Convention is a source of tension, especially when it seeks to assert key navigational rights and freedoms that are specially provided for in the UNCLOS. the International Court of Justice for resolution. More recently, conciliation has been utilised to resolve a maritime dispute in the Timor Sea between Australia and Timor Leste (2018 Timor Sea Conciliation under UNCLOS Annex V). This body of international law and its potential to resolve ongoing SCS territorial disputes highlights the existence of multiple options available to States to resolve their SCS disputes peacefully in a manner consistent with Article 33 of the 1945 Charter of the United Nations.

Navigational rights and freedoms – an ongoing source of tension

An ongoing source of tension in the SCS relates to navigational rights and freedoms and there have been regular incidents between China and the US regarding the freedom of navigation, particularly with respect to the exercise of navigation rights by US warships and military vessels. The navigation regimes that are contained in the UNCLOS apply to all ships, whether commercial or government

vessels (including warships) [UNCLOS, Articles 17-26, 38, 52, 87] and in some cases these regimes also include overflight by aircraft. Four primary legal regimes in the UNCLOS deal with navigation of ships: • innocent passage in the territorial sea or archipelagic waters of a coastal State [UNCLOS, Articles 17, 52]; • transit passage (and overflight) in straits used for international navigation [UNCLOS, Article 38]; • archipelagic sea lanes passage (and overflight) through archipelagic waters [UNCLOS, Article 53]; and • freedom of navigation (and overflight) on the high seas [UNCLOS, Article 87]. The maritime situation in the SCS and immediately adjoining waters can be considered unique in the sense that all four of these navigation regimes are present in what is a relatively confined geographic region. In that regard, it is significant that both Indonesia and the Philippines are considered ‘Archipelagic States’ under the UNCLOS and as a result they enjoy specific entitlements that do not apply to the other coastal States in the region.

Commercial shipping

Commercial ships navigating in these waters should be aware there are different views and practices among regional states regarding each of these navigation regimes. Navigating through disputed maritime or territorial areas – First, there are maritime areas where the applicability of a particular navigation regime is disputed due to a territorial or maritime dispute. For example, the outer limit of the territorial sea drawn by a coastal State according to its application of the UNCLOS straight baseline regime may be considered excessive by other States. Such a situation will lead to a difference of opinion regarding when a vessel is required to undertake ‘innocent passage’ in the relevant territorial sea or exercise more permissive passage rights. Likewise, the status of artificial islands and their impact upon navigation is also contested. While the UNCLOS makes clear these features do not generate a territorial sea [UNCLOS, Article 60], the South China Sea Arbitration emphasised that maritime entitlements ultimately depended upon the original status of those features as either islands, rocks or low-tide elevations, and not their altered state.

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The delicate matter of military vessels protecting commercial vessels – Second, the legality of various activities associated with navigation is subject to different interpretations. For example, there is disagreement as to whether a violation of local law and regulations of the coastal State (eg, possession of weapons and firearms for self-defence purposes) necessarily renders the passage as non-innocent and, under such circumstances, whether the coastal State is entitled to use forcible means against the non-compliant ship. Some states also seek to impose certain restrictions on the passage of warships, including attempts to obtain prior notification or permission for such passage in their territorial sea or exclusive economic zone. Although restrictions on the passage or navigation of warships is not directly relevant to commercial ships, it is important to be aware of the issue because in certain maritime areas there are legal sensitivities that affect naval or government vessels seeking to engage in antipiracy or search and rescue operations – both of which are directly relevant to commercial vessels. There could also be an impact on the manner in which military or government vessels could protect a commercial vessel from maritime security threats under coastal State laws and regulations. Questions over the right to use unmanned autonomous vessels – Third, with the increased use of unmanned autonomous vessels for commercial purposes, there is a question regarding the entitlement of such vessels under the navigation regimes mentioned earlier. For example, if a coastal State adopts the view that such vessels do not enjoy the right of innocent passage within its territorial sea, an unmanned vessel may be subject to arbitrary seizure or interruption of passage by the coastal State. The issue also affects the ability to deploy small swarm boats to protect commercial ships from various maritime security threats such as piracy and armed robbery at sea. Notwithstanding these ongoing disagreements regarding the application and interpretation of the international law of the sea, it needs to be emphasised that to date there has not been any significant interference with commercial shipping undertaking innocent passage in the SCS. Any such interference would clearly be counter-productive to the freedom of trade in East Asia and South East Asia and possibly have global ramifications, making it unlikely that any State would contemplate direct interference with passage of a commercial vessel in the ordinary course of events. Thus, while there may be disputes 56

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surrounding military activities in claimed SCS waters, there is unlikely to be any appreciable direct impact on commercial shipping unless there is a major deterioration in the strategic outlook.

The ASEAN-China Code of Conduct – a way forward? Or another toothless tiger?

The UNCLOS is a global multilateral legal treaty, however there is also the potential for regional legal mechanisms to play a role in SCS disputes, including those developed by the most significant regional institution – the Association of South East Asian Nations ('ASEAN'). One such measure that has attracted a lot of comment since first being aired in the 2002 ASEAN-China Declaration on the Conduct of Parties in the SCS is the proposed ASEAN-China Code of Conduct ('CoC') for the SCS. A ‘negotiating framework’ for the CoC was agreed in Manila on 6 August 2017 by the foreign ministers of ASEAN and China, and in August 2018 it was announced that a ‘single draft’ text had been agreed upon which at the time of writing had not been publicly released. The primary objectives of the CoC are to establish a rules-based framework containing a set of norms to guide the conduct of parties and promote maritime cooperation in the SCS, promote mutual trust, cooperation and confidence, prevent incidents, manage incidents

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New initiatives still needed to break through critical issues

Since the 2016 South China Sea arbitration, disputes and tensions in the region have not disappeared and other than the proposed CoC there are no current initiatives that would appear capable of reaching a breakthrough on some of the critical issues. The position of the Trump Administration regarding the SCS is unclear, and its attention in Asia has more recently been diverted to the Korean Peninsula. Other interested States such as Australia formally take no view on the resolution of the territorial and maritime disputes other than urging a respect for the ‘rules based international order’ and noting that the South China Sea award is ‘final and binding’ between the Philippines and China.

No shortage of existing international law to resolve disputes

“China continues to contest the legitimacy of the South China Sea Arbitral award. As a result, legitimate questions remain about the role for international law in the SCS and its capacity to resolve ongoing tensions.” should they occur, and create a favourable environment for the peaceful settlement of disputes and ensure maritime security and safety and freedom of navigation and overflight. These are all objectives consistent with the international law framework of the UN Charter and the UNCLOS. Nevertheless, criticisms of the process associated with development of the CoC are plentiful. For example, although the text of the 2017 ‘framework’ includes a reference to the prevention and management of incidents, as well as a seemingly stronger commitment to maritime security and freedom of navigation there is no mention of a legally binding CoC and there is a lack of reference to any enforcement and arbitration mechanisms.

There is no shortage of international law capable of resolving current sovereignty and maritime disputes, and ensuring respect for the rights and obligations of all States in the SCS including both coastal States and the user States. China’s ‘Belt and Road Initiative’ ('BRI') depends upon an international legal framework for its success, especially the freedom of navigation for commercial shipping, and given the track record to date there is no immediate threat to regional trade from SCS squabbles. A global international legal framework exists for the peaceful resolution of territorial and maritime disputes and the regional States that have interests in these disputes are parties to the relevant international legal frameworks including the UNCLOS. New mechanisms that build upon that framework have the potential to further assist in that regard, including the proposed CoC. ASEAN also has a role to play in this process, as do other international legal actors and some key States. The South China Sea is not as wicked a legal problem as is sometimes suggested. It just needs persistence and political will to apply the international legal mechanisms that already exist to achieve satisfactory outcomes. DONALD R ROTHWELL is a Professor of International Law, ANU College of Law, Australian National University and DAVID LETTS is Associate Professor and Director, Centre for Military and Security Law, ANU College of Law, Australian National University.

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LEGAL EDUCATION

Educating the legal elite

A bold and innovative law school in China is producing Chinese-American-trained lawyers who leave the competition behind in terms of cultural, technical and linguistic capability. PROFESSOR FRANK H. WU writes.

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was in awe of my students this summer. I had the opportunity to teach at a unique institution of higher education, Peking University School of Transnational Law (STL). Located in Shenzhen, China, it offers the content of the American Juris Doctorate taught in English. It might take a moment for that to register. The equivalent would be Harvard, Stanford or Sydney deciding to offer an entire degree in Chinese law, with all of the coursework in Mandarin. No wonder the dean – an American – when asked where his school is, answers by saying, “the future”. STL is an experiment which exemplifies what modern China is all about. Peking University is consistently ranked among the most prestigious in the nation. It already had a conventional law school on its main campus, naturally providing instruction in Chinese law in Mandarin. A decade ago, however, its leaders resolved to train those whom the founding dean – another American – called “bridge people”. So they opened STL on a southern graduate campus. The locale deserves its own story, and it has one. As a metropolis of this millennium, Shenzhen has a myth about its founding that can be verified to be true. When China was establishing relations with America and the rest of the West, circa 1979,

the city officials applied to be the initial “special economic zone”, which would try out a market economy. It has become the subject of intense study due to the spectacular outcome. The “sleepy fishing village” of some 30,000, as it is typically described, was adjacent on the mainland to the then-British colony of Hong Kong, and it was granted approval for the idea, triggering a transformation unrivalled anywhere over the past generation. Shenzhen became a boomtown of manufacturing, then technology, emphasising innovation over imitation. China’s version of Silicon Valley, it has grown to an estimated 12 million people who have migrated from all over the mainland. Including the outlying areas, the population count would easily exceed the total of Sydney, Melbourne and Brisbane, plus either Perth or Adelaide. Together with Guangzhou (Canton) and Dongguan constituting the sprawl of the Pearl River Delta urban area, that would come to approximately 36 million people. The municipal government has continued to promote its progress through their urban planning measures. They are as entrepreneurial as the business people with whom they collaborate. Officials realised the importance of education, as well as their lack of schools commensurate with their newfound status. To remedy the situation, they recruited Peking University;

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its rival, Tsinghua University; and Harbin Institute of Technology to create a giant three-school “university town”. (They also organised a symphony orchestra to perform Western classical music.) Peking University then attracted a group of visiting professors from America and Europe. The administrators wished to compete – and ready the next generation of advocates to do so – with the utmost effectiveness. They eventually brought on a permanent faculty. The reduced hiring in the legal marketplace outside of China was a boon, giving prospective professors more of a reason to pursue a career overseas – at the very least it would be an adventure. STL sought American accreditation, which would have enabled its graduates to sit for the bar exam stateside without obtaining another credential. After being refused due to express fears of Asian competition, they adapted further. They added a Chinese counterpart curriculum. The students are educated in two systems, bilingually. Thus they emerge even better than before. To be as engaged as possible, I elected to live on campus. That gave me a greater appreciation of my students. I had been there before, doing a stint as a visiting professor in what is fondly recalled as “year one”. The hot pot meal had about doubled in price from less than a $US1 to $US2 over that period. The new building that had come up since then would rival any facility housing a law faculty in America. It was even designed by an international architectural firm. Within sight was the other

"Shenzhen became a boomtown of manufacturing, then technology, emphasising innovation over imitation. China’s version of Silicon Valley, it has grown to an estimated 12 million people who have migrated from all over the mainland."

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↖ Shenzen, China

new building, the global business school – the pair symbolising aspirations beyond the subjects taught and studied. Every morning, I had a two-minute walk from the residence hall, past the reflecting pool and badminton courts, to an office more spacious than back home. Air conditioning has become standard in the hallways and common spaces. Although I have been privileged to teach at many law schools, among them some of the bestregarded in America, I have not encountered any students who are as dedicated as those at STL. To generalise, they displayed reverence for both teachers and the subject being taught that might be mocked elsewhere. They would not characterise themselves as “consumers”. They were happy to put in hours that few would match. They also tried, and succeeded, in memorising quantities of text that their peers who were native English speakers

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↑ Shenzhen is a major city in Guangdong Province, China ... the river divides China and Hong Kong. Photo: HIT1912 / iStockphoto.com → Shenzhen, China - 29 September 2015: People reading books in bright hall of Shenzhen Library. Shenzhen is one of the cities with the highest per capita book reading in China. Photo: loonger / iStockphoto.com

would dismiss as impossible to commit to heart, citing provisions by section number without any pause. They had done that previously in acquiring vocabulary by reading the dictionary. A few crammed for the California bar exam, having passed the Chinese bar exam and accordingly being eligible as an attorney applicant, without ever having set foot in California. They would fly over, sit the test, and fly back. Taking the required class on Professional Responsibility, the students were enthusiastic to learn about the actual practice of law. All intended to pursue jobs at elite firms or in-house, or careers in government service; there were none who declared an interest in criminal defence or the non-profit sector. The school is a post-baccalaureate program charging much more tuition than any traditional Chinese law school. It accepts only those who are highly qualified and enrols only those who are ambitious. They are sought out by employers. Those who possess STEM (science, technology, engineering and maths) skills are especially in demand, because members of the bar with an undergraduate degree in law won’t possess the additional competence in another discipline. (In China, students with virtually no exception are admitted to colleges and specific majors based on a national test and, in turn, select in conformity with the hierarchy.) Drafting the syllabus, I altered it minimally for the Chinese students. The casebook was the leading American text for the subject. The reading assignments included slightly fewer pages, but that was prompted by the schedule of class two hours per day, four days per week – with an extra Sunday evening session as a make-up for the Dragon Boat holiday. The final exam was multiple choice, modelled on the ethics exam for bar admission mandated in almost all American jurisdictions, with the same number of questions, albeit with extra time allowed. The results confirmed my initial impressions. The best student had a perfect score. The average students did very well. The weakest students were no worse than their American opposites. Classroom discussion was comparable to contemporary American norms. That is to say, a handful of students were eager to participate. Most students needed a bit of encouragement. There was marvelling at the American Bar Association “Model Rules” on ethics and their detail, on subjects ranging from maintaining attorney-client confidences to avoiding conflicts

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of interest even as “imputed” from one attorney to a colleague or as to former clients to the propriety of contingent fees. There was speculation about whether attorneys in fact complied with every regulation, on issues such as preparing witnesses versus improperly “coaching” them to “remonstrating” with them not to commit perjury. There was snickering over the prohibition on sex between attorneys and their clients. The students sought, though quite respectfully, lectures on doctrines. They yearned, as all students do, for clarity and certainty. They had deciphered the cases with such care that they were able to point out details typically overlooked. Perhaps it is a stereotype that their technical mastery was formidable. As a Chinese American whose childhood performance at Saturday language school was embarrassing to my immigrant parents, I stumbled upon a pedagogical tactic that entertained my students as much as it educated me. Class was conducted in English, as I would have been unable to sustain more than a minute of casual chitchat in Chinese. But to ensure they comprehended terms of art and important concepts, I requested that they translate a few snippets into Chinese, back into English, and describe the Chinese words in English. Our shared joke was that they were enlightening me. The idea of “leeway”, for example, could be communicated through an exact equivalent. Their explanation gave us the basis to consider how abstract rules are intrinsically ambiguous as applied to concrete facts.

"Much of the difficulty between East and West is not intended, but is an effect of 'lost in translation'. It also is human nature for our strengths to be our weaknesses. The Chinese students were rule-oriented to a fault. The discretion available within a rule was literally foreign."

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The STL students were not perfect. None of us is, and I am sure my teaching evaluations likewise revealed I could improve. But their failings were my responsibility, not the converse. To win their trust, I assured them I passed no judgment. Cultural differences were apparent whether subtle or significant. Much of the difficulty between East and West is not intended, but is an effect of “lost in translation”. It also is human nature for our strengths to be our weaknesses. The Chinese students were rule-oriented to a fault. The discretion available within a rule was literally foreign. Their command of language was so assured that the minor slip-ups were surprising: by and large, they lacked colloquialisms such as to receive a statement “with a grain of salt”, meaning to have doubt about its veracity. I showed Hollywood movies featuring trial lawyers, and, as may be

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↗ Images to the right from top to bottom: Peking University Shenzhen Campus, Mirror Pool and badminton court; Peking University Shenzhen Campus, from Foreign Expert dorm and Peking University Library, Shenzhen Campus. Photo: Frank Wu

lamented of American audiences too, the Chinese students accepted what was on the screen as realistic depictions of attorney behaviour and daily life, however glamorous or implausible. Asymmetry in cultural competence generally favoured them. I told them, candidly, that their familiarity with America was superior to my familiarity with China, right down to the latest trends on social media. Thanks to STL, even if they do not continue with an American advanced degree or attempt a non-Chinese bar exam, they will have a tremendous advantage that can be attributed to their own effort. There are virtually no non-Chinese lawyers with background in Chinese law beyond a single seminar and only a few possessing Chinese language at the level of fluency sufficient to transact business. STL alumni will be Chinese lawyers with expertise in American jurisprudence, and, by extension, English-language common law reasoning. The model of STL, its stakeholders hope, will attract non-Chinese and non-Asians. A handful of non-citizens are already coming. China acceded to the World Trade Organization (WTO) in 2001. That event was known at the time to be historic. Its full significance likely was underestimated. The assumption was that China, by joining the WTO and thereby becoming an equal party in international trade, would acquiesce to Western standards politically and otherwise. Instead, China has demonstrated it is capable of sustained development without precedent, on a scale exceeding imagination. Insistence that China embrace “the rule of law� is often accompanied by scepticism that the Chinese are willing. STL students prove there is another interpretation of what is happening. Their presence someplace so unusual indicated they were willing to take risks. They were eager to acquire the knowledge of the West despite their awareness it was identified by its foreign origins. The few hundred who are immersed in another nation’s law, using its language, are talented in advocacy by the criteria they have been taught. Very soon, they will do exactly what we have trained them to do: they will argue on behalf of their clients and their causes, with the confidence that they can win and even change the system. FRANK H. WU is William L. Prosser Distinguished Professor at University of California, Hastings College of the Law, in San Francisco.

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The Images in this article are Unsplash and iStock photos and have been used with permission, for illustrative purposes only. The children pictured are not juvenile offenders and are not involved in the juvenile justice system.

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HUMAN RIGHTS

The fight for children's rights in Cambodia

Out of a history of occupation, conflict and genocide has emerged a renewed and concerted effort to create a more just future for Cambodia’s children. ALASTAIR NICHOLSON writes.

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he question of children’s rights in Cambodia is complex. The Vietnam War and the expansion of the conflict into Cambodia saw widespread bombing of the country, forcing a huge number of people to flee into Phnom Penh. This was followed by the devastating effect of Khmer Rouge control from 1975 to 1979, involving the genocide of millions of Cambodians and the use of children as soldiers. The subsequent Vietnamese occupation and the continued war with elements of the Khmer Rouge into the 1990s saw the destruction of families and the Khmer way of life. These events also deprived the country of a generation of leaders in all professions, including the law. It caused the breakdown of traditional

families and left large numbers of children as orphans. The aftermath was political instability and widespread poverty, the effects of which are still felt today.

UN Convention on the Rights of the Child

In 1992, Cambodia ratified the United Nations Convention on the Rights of the Child (‘UNCROC’) and subsequently incorporated it into domestic law by Article 48 of the Constitution, which obligates the State to protect children’s rights as stipulated in UNCROC. Unfortunately, there has been scant recognition of most of the rights conferred under UNCROC, largely because of widespread ignorance of their existence and the lack of any mechanism to enforce these rights.

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Domestic law sets the minimum age of criminal responsibility as 14 and recognises the special position of children between the ages of 14 and 18. It also provides that a child charged with an offence is entitled to legal representation. Proof of age is thus critical to establish whether there is criminal responsibility or whether he/she is under the age of 18. However, there is no satisfactory system of recording births in Cambodia, so there is no way to check whether the law is being observed. The 2009 Criminal Code made changes, including a provision that children are liable to half the maximum sentence provided for adults, but sentences are still very long by international standards. Children are dealt with in ordinary criminal courts, where judges, prosecutors and police have little or no specialised knowledge. This is made more difficult because professional and social supports are not available. There are very few social workers, psychologists and psychiatrists – and even fewer specialise in children. The treatment of children in prison has long been unsatisfactory. In many prisons, children are still mixed with adult offenders and receive little or no health care or education. The standard of legal representation is variable, with many children seeing their lawyer for the first time on the day of trial. Children are frequently held for excessive periods prior to trial and bail is rarely granted. Prior to the passage of a new Juvenile Justice Law ('JJL') there was no system of diversion from the juvenile justice system, either at police, prosecutor, or court levels or by way of mechanisms such as family group conferences. There was also no system of case management to give priority to children’s cases. As the JJL is

"The treatment of children in prison has long been unsatisfactory. In many prisons, children are still mixed with adult offenders and receive little or no health care and education ... Many children see their lawyer for the first time on the day of trial."

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still largely unimplemented, these problems will continue until it takes full effect. For many years, there has been widespread exploitation of children, who often live in poverty and many of whom are homeless. They are often subjected to sexual abuse, trafficked for sexual or commercial purposes, involved in the drug trade as sellers and/or consumers, or used as beggars. The standard of public education and health care remains low. This is not to say responsible people, including judges and senior government officials, have not attempted to address these problems. It is not the intention of this article to criticise the Government of Cambodia for these shortcomings, given the historical background outlined above. The Government, particularly through Minister of Justice HE Ang Son Vattana and Secretary of State HE Chan Sotheavy, have been supportive of change. Similarly, there has been support from senior levels of the judiciary and particularly the President of the Court of Appeal, HE You Bunleng. Further, the passage of the JJL itself is a significant step forward by the Government.

Photo: Joel Carillet / iStockphoto.com

Domestic law

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Cambodia-Australia collaboration

Children's Rights International

My involvement with Cambodia commenced in 2005 when I became patron of Children’s Rights International (‘CRI’), which was set up following the Fourth World Congress on Family Law and Children’s Rights in Cape Town, South Africa. I became Chair of its Board in 2010. The CEO of CRI, the late Bill Jackson, with whom I had previously worked in the Family Court of Australia, had a significant influence on my continuing involvement with the Cambodian project, until his untimely death in 2017. CRI’s mission is to promote, protect and advance the rights of children, and to promote understanding of, adherence to, and effective implementation of UNCROC. To achieve these objectives, CRI works with the approval of host country governments, in partnership with host country organisations or community groups committed to the rights of children. Such work may be project based and involve education, training, mentoring, monitoring and representation. We have done work in Vietnam and Afghanistan, but our primary mission has been in Cambodia.

We have worked in close association with a Cambodian NGO, Legal Aid Cambodia (‘LAC’), which has done wonderful work educating police, lawyers, prosecutors and judges about the rights of children, as well as defending children and adults charged with criminal offences in Cambodia over many years. I cannot stress enough the value of working so closely with a local NGO, whose personnel have such a deep knowledge of the local people and their problems. A draft Juvenile Justice Law was developed in 2006 by the Cambodian National Council for Children (‘CNCC’) and reviewed by the Government/ NGO Working Group. It went through two national consultations and was subsequently amended and submitted to the Council of Ministers in 2010 for review and approval. CRI had some input into this stage of the drafting. Thereafter, the project was delayed for some years for reasons that are unclear, but it is fair to say that UNICEF, CRI and LAC, supported by the Ministry of Justice, had considerable influence in ending that delay. In early 2006, CRI felt it might be helpful to expose some Cambodian legal aid lawyers to the Australian juvenile justice system. It was able to assist in bringing three Cambodian LAC lawyers to visit Melbourne. This was made possible by the Victorian Government and the Children’s Court of Victoria, headed by then President the Hon Justice Jennifer Coate, now a member of the CRI Board.

A child-friendly justice system

In May 2009, CRI CEO Bill Jackson conducted a study of the Cambodian justice system with reference to Battambang, where a pilot Child Court was then proposed. In his report, he commented on the significant effect of poverty on children in rural areas, who were frequently relocated or left with relatives while parents sought work elsewhere. Drug and alcohol abuse among children had increased to the point where it had become a part of everyday life. He found that at local levels, officials had little knowledge that children had rights, although when their entitlements under Cambodian law and UNCROC were brought to their attention by LAC, particularly in the Battambang area, they responded favourably. On Jackson’s initiative, I was invited to co-chair a seminar in Phnom Penh on 28 July 2010 with HE Ith Rady, the then Under Secretary of State for Justice, to look at juvenile justice issues and

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examine the possibility of setting up a Children’s Court in Cambodia. Every Child Cambodia sponsored the seminar, and a wide range of people attended, including judges, court officials, government representatives, police and NGO representatives. It revealed widespread support for action and a working party was set up with the approval of the Minister. The working party, which reported in 2011, did not recommend the establishment of a separate Children’s Court at that stage, but suggested a training project to make the entire justice system more child friendly. We were able to attract support from UNICEF, AusAID and some Australian donors to develop the program, which was a significant breakthrough. An important step was a study visit to juvenile justice establishments and the Children’s Court in Victoria, Australia, in September 2012 by a party of Cambodian officials, including HE You Bun Leng and HE Chan Sotheavy. In late 2012, CRI, LAC and the Ministry of Justice (‘MoJ’), assisted by UNICEF, held a large conference of judges, prosecutors and police over two days in Siem Reap to consider a child-friendly approach within the justice system. These events were followed up by CRI assisting in improving the case management system in respect of children in the justice system in 2013-14. The program then slowed due to reductions in available funding, including the abolition of AusAID by the new Australian Government. However, it did improve attitudes towards children in the justice system

The Juvenile Justice Law – a triumph of regional goodwill and perseverance

In 2015, CRI, supported by UNICEF and in conjunction with MoJ, organised seminars in Phnom Penh and Siem Reap which were mainly devoted to the need for a new JJL. These involved presentations by three international juvenile judges from Australia, New Zealand and Singapore, who outlined the operation of their juvenile justice systems and legislation, and how they addressed these issues. Seminar participants then considered a youth justice case study in groups and discussed how they would deal with it, followed by comments from the judges as to how they would deal with the problem in their countries. These seminars were followed by a further study visit to Australia in February 2016 by a senior Cambodian group led by the Minister for Justice. 68

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By this time, the focus was very much on what should be included in a new JJL. Following this visit, a working party was set up by the Government and legislation drafted. The National Assembly approved the JJL on 30 May 2016 and the President of the Senate signed on behalf of the King on 14 July 2016. It became law on 20 February 2017, but many of its provisions will not take effect for some time. An examination of the JJL reveals it is an enlightened and innovative law relating to juvenile justice that conforms closely with the requirements of UNCROC. It also represents an enormous challenge to the Cambodian justice system, which has hitherto been punishment-oriented.

Challenges in implementing the new law

The JJL requires significant changes in relation to how the justice sectors respond to child offending. The law mandates that key government ministries develop new Practice Rules and Standard Operating Procedures on complex issues, including age determination, arrest, prosecution, court hearings, diversion and detention.

Photo: Joaquin Corbalan / iStockphoto.com

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One of the initial problems will be conveying to Cambodian politicians, media and the public that this approach benefits the community by diverting minor offenders from the justice system, thus reducing recidivism. Additionally, instead of imprisonment in adult prisons, a regime of youth correctional institutions providing education and training opportunities will be introduced. For the first time, the law provides for the involvement of ‘social agents’, which includes social workers and people with lesser qualifications. They will provide the traditional role of reporting to the courts on the relevant background matters relating to children, and also support children in the community. This presents a challenge in identifying and training suitable people to perform these roles. The identification and construction of suitable facilities for holding detained children presents another challenge. Finally, the education and training of all relevant persons, from police to judges, in the application of the new law is another.

The way forward

Following the passage of the legislation, CRI prepared a Strategic Plan for the implementation of the new legislation over a three- year period. Professor Sue Marshall, a CRI Board member and experienced law teacher, managed the project, assisted by a Cambodian team, largely from LAC. It has two overriding objectives: • To build a solid and sustainable foundation for a modern juvenile justice system that can continually develop and improve. • To have an effective and positive impact on existing and future children in conflict with the law and reduce the number of children in detention. The Strategic Plan was developed after extensive consultation with key stakeholders from the Ministries of Interior, responsible for police, prisons and regional affairs; the Ministry

"The new Juvenile Justice Law is enlightened and innovative ... It also represents an enormous challenge to the Cambodian justice system, which has hitherto been punishment-oriented."

of Justice, responsible for courts and justice; and the Ministry for Social Affairs, responsible for the training and control of social agents and the management of Youth Rehabilitation Centres. Critical activities include: • The establishment and training of the JJL Working Group to build capacity and cooperation. • Development and wide dissemination of materials by that group. • Development of the new Juvenile Justice System with a focus on diversion, including diversion by caution by police. • Specialisation standards for judges, prosecutors and police. • Accreditation and training of social agents. • Introduction of Judicial Justice Law and a child rights approach into the curriculum of professional and training courses. • Community and media JJL diversion awareness and training. • A five-province pilot to include intensive evaluation of existing detainees. • Monitoring and evaluation. The Strategic Plan is extensive and the task of translating it into Khmer has been enormous. It consists of the original plan and six lengthy appendices, including a comparative study of juvenile justice systems throughout the world carried out by the Latrobe University of Melbourne, Australia. The first step towards setting up a JJL Working Group to oversee the implementation took place in early June 2018 at a meeting assisted by CRI and attended by senior representatives of the key Ministries. The Minister for Justice chairs the group and its first meeting will take place shortly.

Conclusion

It is hoped that, as well as UNICEF, the Strategic Plan will receive support from other international and national funding agencies. This is not a short-term project. Its full implementation will extend to well beyond the three-year period. It is a far-sighted proposal which, if fully supported, will put Cambodia at the forefront of South East Asian countries in the pursuit of justice for children. THE HONOURABLE ALASTAIR NICHOLSON AO RFD QC is former Chief Justice of the Family Court of Australia and Justice of the Federal Court of Australia. He is an Officer of the Order of Australia and has long been a children's rights campaigner. He is currently Chair of Children's Rights International.

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GOVERNANCE

Lessons from a Swiss bank scandal

As the recent and spectacular downfall of a financial powerhouse shows, poor governance and failing to pay attention can be catastrophic for even the most established companies. SALVATORE CANTALE and IVY BUCHE write.

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he world’s biggest financial scandal over missing billions from Malaysian staterun development fund 1MDB, has left the country’s former prime minister, Najib Razak, facing charges of corruption – charges which he denies. In addition to bringing down a government, the scandal’s effects have reached as far as Switzerland, where Swiss bank BSI was forced to close after over 140 years of trading. The 1MDB fund was overseen by Razak as Prime Minister, financial minister, and chairman of the advisory board, and was controversial from the outset in 2009. When in 2014 it was reported that 1MDB had amassed US$11 billion in debt, posing a threat to the Malaysian ringgit, the scandal began to unravel. Documents leaked to investigative journalist Clare Rewcastle Brown’s website Sarawak Report in 2015 revealed how money appeared to have been funnelled out of the fund via a close friend of the Prime Minister, Malaysian tycoon Jho Low. He has denied any wrongdoing, but is currently facing an Interpol warrant for his arrest. The Wall Street Journal then published serious allegations of financial fraud, including the transfer of US$681 million into Razak’s personal account. Funds were alleged to have been siphoned off through a web of shell companies and bank accounts and lavishly spent on items including a luxury property, a private yacht, and even funding for a Hollywood film. Investigations into these and other activities continue; Razak and Low deny any wrongdoing. While Razak was initially cleared of any criminal offence in 2016 (the report was classified

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under Malaysia’s Official Secrets Act), and Malaysia’s central bank’s investigations led to 1MDB being fined (an undisclosed amount) for irregularities, the scandal attracted the attention of authorities in Singapore, Switzerland and the US – and it was these regulators that claimed the scandal’s first victim, the venerable Swiss bank BSI.

End of a bank's bull run

The 143-year-old bank was one of the oldest in Switzerland and the sixth largest, having expanded overseas during the 2000s into the high-growth markets of Asia, Eastern Europe, the Middle East and Latin America. As a strategically important financial centre, the bank opened a Singapore subsidiary in 2005. Under chief executive Hanspeter Brunner it grew rapidly. Among its clients were high net-worth individuals, family-owned companies, and several state-owned wealth and development funds – including 1MDB. Storm clouds were gathering. In 2011, the Monetary Authority of Singapore, the state bank and financial regulator, inspected the bank for the first time, finding policy and process lapses and weak enforcement and control. A second inspection in 2014 uncovered serious shortcomings in BSI Singapore’s due diligence conducted on assets supposedly underlying the investment funds. The bank became embroiled in regulatory investigations related to 1MDB – now BSI Singapore’s largest and most profitable client. A subsequent intensive on-site inspection of BSI Singapore revealed multiple breaches of anti-money laundering regulations, a pervasive

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pattern of non-compliance, poor and ineffective oversight from senior management and numerous acts of gross misconduct. The bank’s licence was withdrawn in May 2016, and the names of BSI Singapore employees, including Brunner’s, were passed to authorities to determine whether they had committed any criminal offence. Investigations into Brunner and other executives continue, although Brunner recently won back a confiscated passport. On the same day, the Swiss Financial Market Supervisory Authority (Finma) started criminal proceedings against the BSI group for failing to prevent suspected money laundering and bribery in its dealings with 1MDB. The BSI group was fined 95 million Swiss francs (US$96 million), the amount the bank had generated in illegal profits. The group’s chief executive Stefano Coduri stepped down, and subsequently BSI was taken over by private banking group Zurich-based EFG International, on Finma’s condition that the BSI group would be dissolved within the next 12 months. The US Department of Justice also filed civil forfeiture complaints in 2016 and 2017 seeking to recover about US$1.7 billion tied to 1MDB – the largest action brought under the US Kleptocracy Asset Recovery Initiative.

Three lessons from BSI's demise

There will always be tension between the demands of business and regulations controlling a bank’s exposure to risk, especially when directives are given to achieve high growth targets. This scenario plays out in banks all over the world – but which should prevail? BSI appears to have prioritised customer demands in its pursuit of growth and profit, at the expense of compliance and internal controls. The outcome, as it was during the financial crash of 2007-08, is plain to see. The failure of senior management to provide any effective oversight of non-compliance or misconduct of bank employees ultimately points to a dereliction of duty. Did BSI staff not notice that 1MDB had 100 accounts at the same bank? Such high numbers of accounts are considered a sign of “layering”, a method that makes it more difficult to detect money laundering activity. While precisely what happened has yet to be established, it seems clear that BSI failed to perform its due diligence or to monitor transactions. In a globalised world economy, the risks associated with compliance breaches and management failures in one region can have far-reaching implications in others. All chief 72

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"The failure of senior management to provide any effective oversight of non-compliance or misconduct of bank employees ultimately points to a dereliction of duty."

↑ Najib Razak, the Prime Minister of Malaysia, welcomes a packed audience to the 2015 Langkawi International Maritime and Aerospace Exhibition, Malaysia, 17 March 2015. More than

officers in banks like to say that compliance and risk management is their key priority. But most participate only at the strategic level, and other departments such as legal, IT and project management must implement it. A common vision of strategy and compliance across all levels of all departments of a company’s global operations is required to ensure that management oversight is consistent throughout the company. Ultimately, the result of failing to pay attention can be catastrophic for the company involved – and others too, if struck by the domino effect.

60 countries participated in LIMA 15, making it one of the leading exhibitions in the region. Photo: U.S. Air Force photo by 1st Lt. Elias Zani/Released

This article was first published on theconversation. com in August 2018 and is republished with permission. SALVATORE CANTALE is Professor of Finance and IVY BUCHE is Business Transformation Project Manager; both are at IMD Business School.

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LEADERSHIP

The beauty of presence Clear, concise and persuasive communication is key when it comes to building presence. However, this is just part of the winning formula for solid leadership, writes FIONA CRAIG.

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’ve got a thing for men on a stage: singers, actors, trainers and speakers. When they get up there and are confident in their delivery, I fall for them hook, line and sinker. Equally, I admire inspiring women who take to the stage confidently to share their message, or who walk into a room with an air of “I know I’m really good at what I do and I’m confident in sharing that with everyone”. The key ingredient that gets me every time is presence. When someone owns the stage and their message, I am putty in their hands. Many professionals shy away from “owning” the stage in a work context. They fail to speak

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up in meetings, defer to superiors (and peers) too readily, and seek approval and confirmation when they should be leading the conversation and dictating the direction. In short, they don’t have the presence they need to influence better outcomes and results.

What is presence?

Presence is a crucial element of building influence. When I had the pleasure of meeting former Australian Prime Minister Julia Gillard, what struck me was how calm and articulate she was. She was measured and deliberate in her words, yet she conveyed a friendly and trustworthy manner.

↑ Former Australian Prime Minister the Honourable Julia Gillard. Photo: Russell Watkins / DFID

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She had impressive presence, and I came away with a positive impression of her. Your presence is literally made up of everything you do: what you wear, how you sit, the way you stand, the way you enter a room or sit at a meeting table, the way you shake hands. I was once told never to enter a room for a meeting without knowing what I wanted to say and what I wanted to get out of it. Preparation can be your best friend. Equally, your presence is conveyed in the tone of your voice, the language you use, and the way you engage with others. All of these factors make up your presence and determine how you will be perceived by others.

How to prime your presence

As well as carefully considering your body language, image, and choice of words, there are other ways you can take control of and improve your presence to improve results. Master your message: Clear, concise and persuasive communication is key when it comes to building presence. Learn how to get your point across

Work out who you need to be in front of and how to get there. You may view social events or even some meetings as time wasters, but think about the impact your absence has on your personal brand. Be seen and heard in the right places.

in a way that’s succinct and gets you the result you want. Preparation is important. Know what you want to say and be ready to speak up, then aim for a focused, calm delivery to ensure your point is heard and taken on board. Remember, though, not to dominate every part of any meeting. Increase your visibility: To be heard, you need to be seen. If you don’t have a seat at the table, how can you expect to make an impact? Work out who you need to be in front of and how to get there. You might view social events or even some meetings as a time waster when you have so many more important things to do (like the work you get paid to do), but are you thinking about the impact your absence has on your personal brand and what you are known for? Be seen and heard in the right places. Read the room: Understanding what motivates people and their particular communication style is like winning the lottery; it opens up a whole range of opportunities you may never have thought possible. Work with a coach to improve your understanding of different behavioural styles and how you can adapt your own behaviour to get more out of situations and relationships. Another option is to watch yourself present in front of a mirror or on video. You may be surprised by the messages you are conveying that you didn't realise were habits. The good news is that once you know them, you can practise and improve your presentation style. Be aware of your presence. Make an impact, for the right reasons. Use the tips above to become the type of person who has respect, recognition, and is known for getting results – even before you walk in the room. FIONA CRAIG is a former corporate lawyer and is now an executive coach and trainer who thrives on connecting people in business and inspiring them to build brilliance in their career and life. Connect with Fiona at fionacraig.com.au or www.linkedin.com/in/fionacraig

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Dear Fiona I heard the worst presentation last week. It was a 40-minute rave from a really boring speaker. What do you see as the key elements of positive presentations? Thanks, Jesse Dear Jesse, The only thing worse than watching a boring presentation is giving a boring presentation. The average attention span was 12 seconds in the year 2000. Today, it's eight seconds. That's less than the ninesecond attention span of a goldfish. So it's crucial you learn how to get and keep the attention of your audience. Try these tips for an engaging presentation. Be brief – The biggest mistake you can make is to think your audience needs to know everything about the topic you're presenting on. In presentations, less is most definitely more. Do your content plan, then ditch 50 per cent of it. Get visual – If you are using PowerPoint, it should support and enhance your presentation, not BE your presentation. You need to think visually. Fewer words, more pictures. The average slide has 40 words on it. That's at least 35 too many. Reading content off your slides is insulting your audience. Move them – Ask your audience to introduce themselves to each other or discuss a point from the presentation among themselves. Get them talking – you will lift the energy and help them make valuable connections. That in itself is worth attending any presentation.

8s The average attention span

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personal style, abilities and aspirations. It was a lose-lose situation. He was unhappy and the firm was on the verge of losing a brilliant professional. Fortunately, he negotiated a new role with the firm which allowed him to focus on his area of expertise while maintaining his level of seniority. In place of managing a team full time, he mentored individuals in his specific area of law.

How to say no

PERFORMANCE

Can you say no to a promotion?

Can you decline a new role and still be committed to your career? RACHEL SETTI thinks so.

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aying no to a promotion is a difficult scenario. After all, isn’t career success defined by job size – the bigger the better? Not necessarily. With a shift in traditional career patterns, increased remote working and a clearer focus on work-life integration, the “top job� no longer fits everyone’s career trajectory. The reasons vary. Lifestyle can be a significant factor. Senior roles come with heightened responsibility and less opportunity to switch off. Time is a commodity which for some is more valuable than the salary and status that come with seniority. Alternatively, the role may not fit your long-term career vision. Accepting a more senior role requires

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a steep learning curve and significant investment. This may feel demotivating and morally misaligned if you don’t intend to make a long-term commitment to the business.

Case study

A partner who was in this situation approached me with concerns about his new role. Although he had been a committed lawyer, he found his new duties – especially people and team management – arduous to the point that he considered early retirement. On reflection, he realised he had accepted the partnership for financial and status reasons, replacing a rewarding and stimulating role with one that did little to align to his

The way you communicate your decision is important. Avoid giving a flat out “no� as this can lead to misconstrued intentions. Instead, display gratitude and view the situation as an opportunity for a career conversation. If you find yourself facing an unwanted promotion offer, consider your negative feelings. If your reasons relate to lifestyle, aspirations, values, skills or interests, then your decision to decline the opportunity may be spot on. Consider whether the real aversion to the promotion relates to your own unfounded concerns. “Imposter Syndrome�, a term coined in the 1970s by psychologists Clance and Imes, refers to high achievers who experience a persistent fear of being exposed as frauds, despite evidence to the contrary. If you are an active self-critic, this might cause you to reject opportunities based on self-limiting beliefs. 1. Consider your rationale and explore what the business is seeking from the promotion. 2. Think creatively. There may be alternative career options within the firm which play to your strengths and help the firm progress towards its strategy. Perhaps a broader version of the role you are doing? 3. Explore opportunities for a new role which aligns to your and the firm’s needs. RACHEL SETTI is an organisational psychologist and coach who specialises in effective leadership and interpersonal skills.

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PROFESSIONAL DEVELOPMENT

Bravado versus humility

Being self-assured, bold, and forthright are common attributes of successful lawyers. However, understatement is a key way to get results, writes PETER AGNEW.

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hen we think of traits leaders typically exhibit, many come to mind – including strength, charisma, enthusiasm, and vision. Big egos, self-promotion, and driving the team hard are often the norms for leaders in competitive environments. But experts are beginning to recognise the importance of humility in leadership. Being humble takes confidence. Humble leaders recognise their mistakes, learn from others, give credit where credit is due, and keep their egos in check. When talking to leaders, I often reflect on the work of Jim Collins, author of Good to Great. Collins notes that those displaying the best traits of leadership build enduring greatness through a paradoxical blend of personal humility and professional will. They channel their egos away from themselves and into the larger goal of building a great company or organisation. They apportion credit to factors outside themselves (mainly other members of their team) when things go well – they take personal responsibility when things go poorly. Can you be too humble? At some stages in your career, perhaps you can. There are occasions when someone aiming for the top needs to lift their leadership brand by self-promotion and

Good leaders channel their egos away from themselves and into the larger goal of building a great company or organisation. They apportion credit to other members of their team and they take personal responsibility when things go poorly.

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assertive behaviour to compete with their naturally ego-driven co-workers. In the long term, they are more effective leaders once they reach positions where they can make a difference and the need to impress is over.

How to stay humble

1. Be open to other opinions. Humble leaders seek input to ensure they have all the facts and are making decisions that are in the best interests of the team. No one has all the answers. If you think you do, it’s probably time to reassess. 2. Tend to others’ needs. Team performance is typically higher when staff believe their leaders are truly looking out for their best interests. This doesn’t mean hand-holding, but it means caring about the environment in which your team is working and ensuring they have what they need to do a good job. 3. Admit mistakes and be okay with vulnerability. It’s tough to be transparent and open; even those who consider themselves humble don’t want to look like they’ve messed up. But we all make mistakes. When you’re willing to share your own missteps, and how you dealt with and recovered from them, you earn trust from your team. 4. Give up control from time to time. Many leaders want to control everything. You need to know when to take charge – and when to let go. 5. Self-reflect. Humility may not come easily to everyone. Understand the importance of self-reflection. Ask others for feedback, undertake a 360-feedback process, keep a reflective log on what behaviours you use and if they are successful or need more humility. 6. Let people do their jobs. Micromanaging kills morale. Choose good people, train them, then get out of the way and let them do their jobs. It can take humility to admit that your way isn’t the only way or even that some people are better at certain roles than you. PETER AGNEW is the director of People Development Australia.

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NUTRITION

5 surprising benefits of fibre

This essential compound deserves more attention. Its role in the gut and its impact on health is more significant than initially thought. JOANNA MCMILLAN explains.

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ibre is not the sexiest of topics. Pushed aside by magical weight loss diets, superfoods, and the evil dietary demon of the day such as sugar or gluten, it rarely makes the headlines. As a result fibre has flown under the radar as something only the elderly need to worry about or something you

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wish you had been eating regularly when constipation hits and you find yourself in the pharmacy buying fibre supplements. Fibre is actually a diverse group of compounds, all with different benefits. Broadly speaking, they can be defined as: Insoluble fibre – what you might

think of as roughage. It’s the rough outer husk of grains, including bran from wheat, the “brown” part of brown rice, and the visible rough bits in wholegrain breads. You’ll also find insoluble fibres in some vegies, fruit, nuts and seeds, especially in the skins and the stringy parts. Soluble fibre – as the name suggests, is fibre that is soluble in water. One example is beta-glucan, which is found in oats and barley. You’ll also find a range of soluble fibres in fruits (such as pectin), vegies, nuts and legumes. Resistant starch – a more recently recognised class of fibre. It is a form of starch that our own enzymes cannot break down and so it passes into the colon where, like most soluble fibres, it is a gold-star fuel for the resident bacteria. You’ll find resistant starch in firm bananas, cooked and cooled potatoes, rice or pasta, and legumes. Laxative effects aside, here are five benefits from fibre that might surprise you.

1. Fibre lowers blood glucose responses.

It does this via two main mechanisms. First, soluble fibre absorbs water in the gut, making it swell up into a gel – you get a similar effect if you soak chia seeds in water for 10 minutes. This gel slows down the attack of our digestive enzymes, which take longer to break down the carbohydrates in the meal and therefore slow their absorption into the bloodstream. In other words, soluble fibres tend to lower the GI (glycaemic index). Secondly, fibre fuels the friendly bacteria living in the colon and the byproducts of the fermentation processed used to break it down. It also helps control overall blood glucose responses to food.

2. Fibre boosts immune function.

More than 70 per cent of your immune system is in the gut, which, essentially, is the principle barrier controlling what goes in and out of the body.

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The micro-organisms that live in the gut, called the microbiota, play a crucial role in regulating immune function. In infants and young children, the microbiota is involved in training the immune system to recognise foreign and “friendly� substances entering the body and is thought to play a role in the development of allergies and auto-immune diseases. This is one reason why it’s so important that kids eat well with plenty of fibre. The fermentation of fibre continues to be important for a strong, healthy immune system into adulthood.

3. Fibre lowers blood cholesterol.

Beta-glucan in oats is most famous for this effect, but other fibres, particularly soluble, are involved. They collect cholesterol in the gut and carry it out of the body. But there is a second effect; their fermentation by the microbiota creates chemicals that are absorbed into the bloodstream, where they reduce the production of cholesterol by the liver.

4. Fibre reduces inflammation.

Chronic low levels of inflammation in the body are now recognised as an integral part of many disease processes,

Soluble fibre tends to lower the glycaemic index and fuel the friendly bacteria living in the colon. It also helps control overall blood glucose responses to food. Remember, more than 70 per cent of your immune system is in the gut.

including heart disease, cancer and gut problems. Diet plays a key role in reducing inflammation and fibre plays an important role, due to the fermentation processes going on. A recent study showed that those who eat the least wholegrains, a key source of fibre, have the highest levels of inflammation.

5. A combination of fibres reduces the risk of colon cancer. While we have long known that fibre is important for the health of the bowel, recent research highlights the importance of a combination of the three families of fibre. Most soluble fibres and all resistant starch are fermentable and provide fuel for the microbiota. But insoluble fibre is also important because it carries the other fibres along the length of the colon, ensuring that fermentation takes place right to the distal regions. Why does that matter? Because most cancers occur right at the end portion. If you can encourage fermentation throughout the colon, you get the byproducts of that fermentation being delivered to all the colonic cells, helping to keep them healthy. Fibre is crucial to our gut and overall health, which is why there is concern about the trend to cut carbs or avoid wholegrains and legumes – fibres are carbohydrates. They are just the carbohydrates we cannot break down and so our microbiota does it for us in part, while other fibres play an important role while passing through our digestive systems. Cut all carbs and you cut out major sources of fibre, too. Embrace fibre-rich foods and focus on cutting the ultra-processed food that is at the heart of all our nutrition-related health issues – you will feel and see the benefits now and into the future.

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JOANNA MCMILLAN is a nutrition scientist, dietitian and author. Visit drjoanna.com.au for more health advice.

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ANXIETY

8 things making you anxious Is your job making you anxious? THEA O’CONNOR identifies the sources of anxiety at work.

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nxiety is native to us all. It is a survival function that alerts us to possible danger. However, when fear and worry become stuck “on” and don’t abate when a stressful situation has passed, it becomes a problem. Anxiety disorders affect up to one in four people at some stage in their lives. The cost of these disorders to the health of individuals and the organisations they work for is significant. Workers with anxiety disorders have more than 1.8 times the risk of being absent for at least two weeks than those without, and more than double the risk of having poor work performance, according to 2010 research published in the Journal of Affective Disorders. Here are some common anxietyprovoking workplace conditions.

1. Your boss

“The biggest stressor in the workplace is an employee’s direct boss,” says Linda Ray, CEO of Neurocapability, which translates neuroscience into practical applications for leaders, teams and organisations. “Too many managers and leaders are failing to create psychologically safe environments where people feel safe to speak up with ideas or concerns, without being 80

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humiliated or embarrassed. Safety is our most basic survival need. Without it, employees will continually be on high alert, scanning their workplace for threats.”

2. Sleepless, 24/7 expectations

When workplaces fail to protect employees’ down time and sleep time by establishing out-of-hours email, for example, sleep quality and quantity can suffer. Research from the University of California, Berkeley, demonstrates that sleep deprivation creates the same patterns of brain activity as seen in anxiety disorders (American Academy of Sleep Medicine, June 2012).

3. Demanding roles

Jobs that entail high emotional and/ or mental demands, such as teaching, nursing, social work and law, have high rates of mental health problems. Unreasonable KPIs also are a big cause of anxiety, according to Peter Diaz, CEO of the Workplace Mental Health Institute. Anxiety is further exacerbated when employees fear speaking up, leaving them thinking, “Everyone else seems to be coping, so what’s wrong with me?” The risk to mental health increases if it’s combined with: • A lack of appreciation or reward.

A major review published in the Journal of Affective Disorders in June 2010 found that high effortreward imbalance was strongly associated with an increased risk of common mental disorders in the workplace, including anxiety. Inadequate resources to get the job done. This can include not having the authority to make the decisions you need to make progress or not having the relevant tools, skills or information.

4. Unclear roles

Not sure what you are meant to be doing? The human brain identifies uncertainty as a threat, according to neuroscientist Dr David Rock, Director of the Neuroleadership Institute. Workers who don’t have enough information about their role’s priorities, goals and responsibilities are less productive and more anxious,

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organisational change, research shows. Change may be unavoidable – ensuring it is well managed and not prolonged can help minimise the fallout. Ray observes that leaders typically underestimate the level of threat workplace change generates. “People become fearful not only about losing their jobs but also about loss of status or not having as much autonomy as they previously did. Leaders can focus too much on communicating the benefits of change without addressing these core fears, which just increases workers’ anxiety.�

7. Information overload

"The biggest stressor in the workplace is an employee's direct boss. Too many managers and leaders fail to create psychologically safe environments where people feel safe to speak up with ideas or concerns without being humiliated or embarrassed."

according to a paper published in the Asian Academy of Management Journal (2013). In contrast, role clarity is one of the elements that make up a mentally healthy workplace.

Human cognition simply isn’t designed to manage a high volume of multiple streams of incoming data. Yet this is what the typical knowledge professional is expected to do, with few or no guidelines on how to cull and curate the masses of information at our fingertips each day. “When the amount of information coming in overloads our cognitive abilities, we become stressed,� says Nathan Zeldes, international consultant on information overload in the workplace. “Stress and cognitive overload slow down our mental processing speed, while also increasing error rates, which only drives our stress and anxiety levels higher.�

5. Unsupportive colleagues

8. Lack of feedback

6. Organisational change

THEA O’CONNOR is a writer, coach and presenter focused on the intersection of health and business. She specialises in identifying ways to create healthy work habits. Visit thea.com.au

Humans are wired for social connection. A lack of social support or connection makes us anxious, elevating heart rate and blood pressure, studies show. Lacking support from your workmates or manager is associated with an increased likelihood of mental health problems and longer sick leave. In contrast, social support helps protect against anxiety. Support can be in the form of emotional support, “How are you feeling?�, or practical support, “What do you need?� Mental health symptoms tend to spike during the anticipation phase of

“When people enter the workforce, the evaluation system people have been used to ever since they started school in the form of regular tests and grades disappears completely,� Diaz says. “It’s really unsettling if you don’t know where you stand.� Diaz and Ray agree that managers need daily conversations that are oriented towards enhancing performance, without putting people in a threatened state.

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DREAM DESTINATION

Jungle talk

A new wilderness retreat is set to reshape Cambodian tourism, writes UTE JUNKER.

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ou don’t need an alarm clock in the jungle. As the sun steals above the horizon, the jungle’s inhabitants greet the new day. Above the rushing of the river, the trill of the yellow-bellied warbler mixes with the uncanny calls of gibbons. If that sounds like a nicer way to wake up than the buzz of an alarm, then Shinta Mani Wild is for you. Cambodia’s newest luxury retreat, set to open before the end of the year, showcases a very different side of this ancient kingdom. Thus far, tourists to Cambodia have largely been drawn to its ancient monuments and magnificent beaches. Now, the spotlight is shifting to its underexplored wilderness, thanks to one of the hotel industry’s most famous figures. Bill Bensley is known for designing some of the world’s most luxurious resorts, including properties for the likes of One & Only, Mandarin-Oriental, the Four Seasons, and St Regis. Recently, he launched his own hotel portfolio, the Bensley Collection, which debuted with a hotel in Angkor Wat. His next property, the luxury tented camp known as Shinta Mani Wild, is located in the southwest of the country. “We are opening up a part of Cambodia that few have seen,” Bensley says. Shinta Mani Wild is as much a conservation project as it is a luxury retreat. In a corner of the country that is home to some of Cambodia’s most important national parks, including Bokor and Kirirom, where 82

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wild elephants roam freely, Bensley identified an unprotected wildlife corridor at risk from poachers, miners and loggers. He promptly decided the 160-hectare valley would be the site of his next venture, and enlisted the help of key organisations such as the Wildlife Alliance, Fauna & Flora International, the Royal University of Phnom Penh and the Cambodian government, to create a conservation plan for the area. Bensley has long practised lowimpact design – positioning buildings between existing trees rather than cutting them down, and allowing for natural drainage patterns – and Shinta Mani Wild is no exception. The luxurious tents are cleverly ensconced within the embrace of the forest, allowing the landscape to be the star of the show. The setting, ranged along a fastflowing river, is spectacular; but then, so are the tents themselves. Each one measures 100 square metres and is packed with eye-catching furnishings, from carved wooden beds and overstuffed armchairs to colourful fabrics and antique pieces including vintage telephones. Bensley derived his design inspiration from an event that never took place. “Imagine King Sihanouk has invited Jackie Onassis to explore the wilds of Cambodia in the early 1960s,” says Bensley. “What would that experience have been like?” It is hard to imagine Jackie O ziplining her way into camp, as guests

← Bill Bensley, architect and designer of this luxury resort known as Shinta Mani Wild and other luxury resorts around the world. Photo: Everipedia

are invited to do, but otherwise the camp conjures up Onassis’ particular blend of timeless elegance. It's easy to picture her lounging on the verandah of one of the tents, sipping a sundowner. She would have been equally at home dining at the Waterfall restaurant, where meals feature produce grown locally or foraged in the jungle, or indulging in a treatment or two at the Boulders Spa, which uses local chemical-free brand Khmer Tonics. The main point of a stay at Shinta Mani Wild, however, is to explore the area. Meander through the Srae Ambel estuary in one of the luxury expedition boats, designed by Bensley himself; each one comes equipped with kayaks, so guests can go exploring down narrow tributaries. Alternatively, you can head out on foot. Join rangers on anti-poaching patrols, or take a hike with one of the lodge’s naturalists. They have developed a series of trails that highlight the many natural treasures of this complex eco-system. From mighty elephant footprints to tiny orchids peeping out among the greenery, your guides will reveal a world of natural wonders.

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Shinta Mani Wild is as much a conservation project as it is a luxury retreat and is near some of Cambodia's most important national parks. All inclusive rates from US$1,900. See shintamani.com

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Discover

CITY GUIDE

Siem Reap

Siem Reap is fast becoming a tourist mecca, but don’t let that put you off. With a revitalised ancient culture, delicious cuisine, vibrant night life and a labyrinth of extraordinary ancient temples to explore, a world of discovery awaits. KLARA MAJOR writes.

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The biggest drawcard to Siem Reap is the incredible complex of nearby temples, which have survived from the Khmer Empire. Unlike compact downtown Siem Reap, Angkor Archaeological Park is surprisingly vast, stretching over some 400 square kilometres – so best to plan ahead. Arrange your tuk tuk driver and guide the day before and see if your hotel will pack you a picnic (the food inside the park is not recommended). Entry passes for one, three or seven days cost $37, $62 or $72, and must be purchased at the park entrance. It’s worth getting a very early start to avoid the heat and crowds. Seeing the sunrise behind the ancient majesty of Angkor Watt is an unforgettable experience. From there, you can explore the many other temples in the forest, such as the beautiful Bayon or Ta Phrom, with its spectacular root-ravaged walls or the more secluded pink-stoned walls of Banteay Srei (“Citadel of Woman”) further afield. Remember to take water and wear a hat, comfortable shoes, and cool but modest clothing. You will be visiting religious temples, after all – a skimpy scarf won’t cut it.

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coconut rice, Khmer pancakes, or deep fried beetles and tarantulas if you’re game! On nearly every corner you’ll find stalls serving fresh mango, jack fruit or the powerfully pungent durian. For dinner, if you want an authentic and welcoming ambience and the best "fish amok" in town, you can’t go past Sugar Palm Restaurant. In this traditional wooden stilt house, celebrated Chef Kethana recreates the traditional Khmer cuisine of her childhood, which was all but lost during the devastation and famine under the Khmer Rouge and Pol Pot. For a special occasion, the well-known Malis restaurant serves Cambodian and Asian influenced dishes in a beautiful

Eat

Photo: Oleh Slobodeniuk / iStockphoto.com

Put simply, Khmer cuisine is delicious. It’s similar to that of its Thai and Vietnamese neighbours, but with unique and delicate flavours. Street food is often the best way to go, particularly when it’s too hot to eat a full meal. The town centre is quite compact so you can easily wind your way around the streets of on foot, sampling bitesized treats such as palm sugar cakes, sticky rice in banana leaves, pork skewers, parcels of smoky river fish and

Seeing the sun rise behind Angkor Watt is an unforgettable experience. It’s worth getting an early start to avoid the heat and crowds. ← Buddhist Monk. Photo: Jordi Ganduxe ↖ Ta Prohm Temple in Siem Reap. Photo: Raph Howald ↓ Tourists on tuk-tuk taking a field trip at Angkor Wat.

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garden overlooking the Siem Reap River, often with a traditional Cambodian dance performance. High on the list for another visit is the French-influenced Cuisine Wat Damnak, the first Cambodian restaurant to land on Asia’s 50 Best Restaurants list.

Drink

In the heat of the day, fresh coconut water from one of the many street stalls can be a saviour. Craving a caffeine hit? Australian-owned and Cambodianoperated cafe Little Red Fox Espresso is gaining a strong following for its iced and hot coffee and its environmentallyfriendly business practices. When night falls, the aptly-named Pub Street and surrounding laneways beckon. There is a fun and friendly vibe with live music in bars and clubs popular with travellers enjoying local Cambodian beer. For those in the mood for a more intimate or trendy atmosphere, the nearby Miss Wong’s Cocktail Bar is definitely worth a visit. But for the ultimate in relaxed glamour, take a tuk tuk to the French colonial splendour of the Raffles' famous Elephant Bar for its signature "Airavata" cocktail of rum, coconut passion, lime, crème de banana, pineapple and coconut juice. Need we say more?

Stay

There is somewhere to suit everyone in Siem Reap. Golden Temple Residence is a boutique modern hotel and a good choice if you want to be within walking distance of the action. It ticks a lot of boxes: excellent service, quiet, comfortable and cool rooms, a refreshing pool with a swim-up bar, and a good day spa. Sala Lodges is an authentic and sustainable luxury retreat just eight kilometres from Angkor Watt. Guests stay in restored traditional Khmer stilt houses with understated but luxurious interiors. Set in tranquil gardens, with a day spa, pool and restaurant, it is a unique escape. Raffles Grand Hotel D’Angkor, set in 15 hectares of calm tropical gardens with a mammoth swimming pool,

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is an historic French colonial landmark and the only Cambodian hotel to have the royal seal of approval. It has played host to illustrious guests from Charlie Chaplin, Charles de Gaulle and Jacqueline Onassis to Michelle Obama. It really is a step back in time to Cambodia’s understated colonial splendour.

Shop

↑ Pub Street by day, the heart of Siem Reap's night life.

↑ A fruit seller on a street in Siem Reap.

Visit

Tuk tuks or bicycles are not the only way to explore Angkor Archeological park. If you prefer a more relaxed pace, board a traditional Khmer boat with Kongkear Angkor and admire the sunset from the still waters of the canals and rivers surrounding the temples. Closer to town, the comfortable air conditioned Angkor National Museum 86

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↑ Sample street food such as a grilled rice cake wrapped in banana leaves.

provides more of the history of Angkor if you visited the park without a tour guide. Visitors progress through eight separate galleries in what is an interactive lesson about Khmer civilization. Each gallery is connected by a vaulted corridor with a series of fountains. It’s not all just about ancient civilizations, though. Contemporary Cambodian artistry is thriving and we recommend a visit to the workshops and silk farm of Artisans Angkor – a social enterprise which supports Cambodian traditional fine arts and crafts and gives ethical jobs and training to rural youth. Their silks are simply beautiful. There are also many beautiful day spas in Siem Reap. For an indulgent luxury treatment or a restorative Khmer massage, try Sokkhak Spa, Riverside. But if you want to end your visit with a bit more excitement, the popular Phare, the Cambodian Circus could be just the ticket. Families flock to their shows to see local performers use theatre, music, dance and modern circus arts to tell uniquely Cambodian stories.

Photos from top to bottom: Nikada / iStockphoto.com; mihailomilovanovic / iStockphoto.com

Siem Reap is not exactly a famous shopping destination, but there are some great pockets if you know where to look. The precinct of Kandal Village, south of the French quarter, is gaining a reputation as a trendy and ethically responsible shopping destination, and a number of Cambodians who had left to study in Paris have returned to create their own businesses. Sirivan is known for fashionable and fair trade accessories, Trunkh is popular for unique home-wares, Shop676 Attire Rustique has relaxed and chic cotton and linen clothes for men and women, and Louise Loubatiers is a must for handcrafted homewares, ceramics, silk scarves and jewellery. There are also a growing number of small art galleries worth a visit. For high-end fashion, head to Charles de Gaulle Avenue for the incredible couture of Madagascan-born, Frenchtrained fashion designer Eric Raisina. His colourful garments made of innovative silk fur and raffia lace fabrics are stunning. If you are after cheaper souvenirs such as fans, scarves, t-shirts or jewellery, the outdoor Angkor night markets near Sivatha Street are well worth an evening stroll.

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Join LAWASIA's new Young Lawyers Committee today. www.lawasia.asn.au/membership

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LAWASIA

Since its inception in 1966, LAWASIA has fought for the rule of law, protected human rights, and expanded business opportunities across the Asia Pacific.

Afghanistan Australia Bangladesh Brunei Darussalam Cambodia China England & Wales Fiji Germany Hong Kong SAR India Indonesia Israel Japan Macau SAR Malaysia Nepal New Zealand Pakistan Papua New Guinea Philippines Republic of Korea Russian Federation Samoa Singapore Solomon Islands Sri Lanka Taiwan Thailand United States Vietnam

Sections

Business Law Section business.chair@lawasia.asn.au Business Law Subcommittees Alternative Dispute Resolution Anti-Trust & Competition Law Asia-Europe Banking & Finance Communications, Technology & Data Protection Corporate Securities & Investment Energy & Resources Environmental Law Franchising Intellectual Property

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One Belt, One Road Real Estate & Transactions Taxation Family Law & Family Rights Section: family.chair@lawasia.asn.au Human Rights Section: humanrights.chair@ lawasia.asn.au Judicial Section*: judicial.chair@lawasia.asn.au Law Management Section: lawmgt.chair@lawasia.asn.au *Open to members of the judiciary only.

Committees

Constitutional and Rule of Law Committee: conlaw.chair@lawasia.asn.au Criminal Law Committee: crimlaw.chair@lawasia.asn.au Employment Law Committee: emplaw.chair@lawasia.asn.au Legal Professional Indemnity Insurance Committee: pii.chair@lawasia.asn.au Moot Competition Committee: moot.chair@lawasia.asn.au Young Lawyers Committee: younglawyers.chair@ lawasia.asn.au

2017–2018 Executive Committee

President Christopher Leong (MALAYSIA) President-Elect Chunghwan Choi (REPUBLIC OF KOREA) Immediate Past President Prashant Kumar (INDIA) Vice Presidents Justin Dowd (AUSTRALIA) Melissa Pang (HONG KONG SAR) Yap Teong Liang (SINGAPORE) Committee Members Gordon Hughes AM (AUSTRALIA) Yin Baohu (CHINA) Shyam Divan (INDIA)

Isomi Suzuki (JAPAN) Chisako Takaya (JAPAN) Eric Eunyong Yang (REPUBLIC OF KOREA) Steven Thiru (MALAYSIA) Upul Jayasuriya (SRI LANKA) Secretary-General Michael Tidball (LAWASIA)

Secretariat

Head Office Suite 1101, Level 11 170 Phillip Street Sydney NSW 2000 AUSTRALIA Phone: +61 2 9926 0165 Fax: +61 2 9923 9652 Email: lawasia@lawasia.asn.au Website: lawasia.asn.au Secretary-General Michael Tidball General Manager Magdalena Malota magdalena.malota@ lawasia.asn.au Policy Lawyer Kate Hewson kate.hewson@lawasia.asn.au Membership & Administration Officer Kim Shazell lawasia@lawasia.asn.au Conference & Events Manager Magda Imre conference@lawasia.asn.au Conference & Events Coordinator Shanna Venter conference@lawasia.asn.au

Photo: Indraneel Chowdhury / Sipa USA via AP

Member Jurisdictions

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L AWA S I A

EQUALITY

Sec 377: Supreme Court signals a fresh phase in the evolution of rights jurisprudence Beyond the LGBTQ community in India, the judgment will bring cheer across the globe to other communities seeking their place in the Sun. Shyam Divan reports.

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W

hen asked in 2006 how he would rate the Supreme Court, Fali Nariman had a devastating riposte: “Do you feel like reading any of their judgments?” That cannot be said about the court’s magnificent judgment delivered on 6 September, reducing to ashes Section 377 of the Indian Penal Code. In a unanimous verdict in Navtej Singh Johar v Union of India, a Constitution Bench headed by Chief Justice Dipak Misra declared the offending provision inapplicable to consensual sexual relationships between adults. The LGBTQ community stands liberated. Here is a judgment worthy of reading and rereading. It will endure as long as the court and the Constitution. The Supreme Court does here, and does exceptionally well, what constitutional tribunals are meant to do. It draws on the submissions made in court, lifts the discourse through layered research and then applies prodigious analysis to distil the core of the case. The challenge before the court was not about physical acts but about identity. A section of Indians found themselves criminalised for simply being who they are. This, the court held, destroys dignity and so severely undermines a person’s self esteem that the offending provision had to be declared unconstitutional. Courts derive legitimacy from the power of reasoning and analysis in their judgments. Thursday’s verdict is rigorous in its analysis, careful in its survey of global jurisprudence and, most of all, sensitive to the human condition. The judgment is founded on the recognition of the need for intimacy in developing human relationships. The heart of the judgment is the court’s belief that the Constitution creates zones of privacy and spaces for individuals to not conform. Constitutional morality trumps majoritarian notions. Indeed, no matter how small a minority, the Constitution will spring to its defence where the actions cause no harm. This has been a long journey. In 2000, a group of activists and lawyers began strategising on whether and how to challenge Section 377. The Naz Foundation case was lodged in the Delhi High Court in October 2001. The Delhi High Court in 2009 reached the same conclusion in the Naz Foundation case the Supreme Court eventually did, on Thursday. However, after several twists and turns, that case met a grim end in a judgment of the Supreme Court in December 2013.

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"This is a moment to be savoured by the LGBTQ community, finally, full citizens of India."

LGBTQ communities in Mumbai (above) and Bangalore (right), erupt into joyous celebrations upon hearing news of the Supreme Court's historic 6 September ruling. Photo credits (clockwise from top: Associated Press, Rafiq Maqbool, Aijaz Rahi, and Rajanish Kakade)

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This led to a fresh round of strategic thinking on how Koushal could be overturned. At one point, activists contemplated the possibility of certain state governments amending Section 377. The legislative route, however, meant that the Supreme Court’s decision would survive. When the government refused to acknowledge the right to privacy, the Supreme Court was compelled to set up a panel of nine judges to reconsider previous decisions. On August 24, 2017, in an offshoot of the Aadhaar case, the Supreme Court took the opportunity to examine Koushal. The nine-judge bench in Puttaswamy recognised a constitutional Right to Privacy. The judgment also declared the law laid down in the Koushal case wrong. However, it did not overrule it. Finally, with the Supreme Court’s verdict, Suresh Kumar Koushal is now buried. The verdict decisively restores to members of the LGBTQ community, long overdue access to the experience of full citizenship. This is a moment to be savoured by the LGBTQ community, finally, full citizens of India. The Court also points the nation down a constitutional path: “Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.” Inclusiveness is a core constitutional value. Beyond the LGBTQ community in India, the judgment will bring cheer across the globe to other communities seeking their place in the sun. Moreover, by crafting doctrines of progressive realisation of rights and non-retrogression, the court has signalled a fresh phase in the evolution of human rights jurisprudence. Reassuringly, the Constitution remains a wellspring of hope and rejuvenation. SHYAM DIVAN is a senior advocate. He appeared for Voices against 377. The views expressed are personal. First published on 7 September 2018 in Hindustan Times.

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ADVOCACY

Legal leaders converge at 29th POLA Conference, renew commitment to substantive progress

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“The rights of millions of our fellow citizens, as well as the stability and correct function of our liberal democratic systems – depends on our courage ” – Morry Bailes | President, Law Council of Australia

• •

anti-corruption and transparency business and human rights and the legal profession • inclusion and diversity in the legal profession Throughout the region, POLA members have identified that the independence of the judiciary and the legal profession is under threat. This issue garnered more concern than in previous years in light of mounting anti-judicial rhetoric and the casual undermining of legal institutions.

In response, POLA members affirmed their commitment to oppose threats to the independence of these key groups and provide support not only in their home jurisdictions but to other POLA members, when requested. In respect of anti-corruption and transparency initiatives, members emphasised the crucial role of lawyers in drafting and implementing effective legal frameworks. To this end, the political, economic and cultural diversity of the Asia Pacific was viewed as a regional advantage, with the potential to facilitate law reform by combining different models and approaches. Similarly, delegates recognised the importance of the legal profession in ensuring future business growth and innovation, resolving to promote clients' compliance with emerging international requirements for the ethical conduct of cross-border transactions. The 2019 POLA Conference will be hosted by the All China Lawyers’ Association and, in 2020, by the Korean Bar Association.

Photo: Law Council of Australia

T

he 29th Presidents of Law Associations in Asia (POLA) Conference was held in Canberra from 2-3 August 2018. Hosted by the Law Council of Australia, the two-day forum provided a vital opportunity for bar leaders from across the region to exchange ideas and information, collaborate on issues of mutual interest, and strengthen international relations. More than 65 delegates from 15 jurisdictions were in attendance, engaging in high-level discussions as collective representatives of the Asia Pacific legal profession. In its capacity as an Observer, LAWASIA was represented by Secretary-General Michael Tidball, President-Elect Chunghwan Choi and President Christopher Leong, who delivered a regional perspective on the independence of the legal profession and the judiciary. Also observing were delegates from the International and Inter-Pacific Bar Associations, including IBA Vice President Horacio BernardesNeto. Acknowledging the very real challenges lawyers face in the region, the conference program was guided by a thematic focus on "Matching Rhetoric with Action", with session topics addressing the key issues of: • independence of the judiciary and legal profession

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et on the banks of the Mekong River, the 7th LAWASIA Family Law & Children’s Rights Conference took place on 6-8 June 2018 at the Crowne Plaza Vientiane, Laos. The conference brought together more than 80 speakers and delegates from 18 jurisdictions across the Asia Pacific, including members of the judiciary, lawyers, academics and nonlegal professionals. It also marked a conference milestone for LAWASIA, with representatives from Fiji and the United Arab Emirates in attendance for the first time in LAWASIA’s event history. The two-and-a-half-day program centred on ‘Realities, Expectations and Hope’ in family

EVENTS

One big happy family

The 7th LAWASIA Family Law and Children's Rights Conference Conference, held in Vientiane, Laos, from 6–8 June 2018, was a huge success.

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Upcoming

"The conference provided a unique opportunity for lawyers to exchange insights, explore current policy and practice issues, and develop a network of colleagues with shared interests." law, with sessions on diverse topics such as child trafficking, surrogacy, estrangement and alienation, and social media in family law practice. Session highlights included the International Academy of Family Lawyers Symposium on "Challenges of international family law and conventions", and a keynote presentation on the "Battle of children’s rights" by Patron of the LAWASIA Family Law Section, the Honourable Chief Justice John Pascoe AV CVO. The social program began with a welcome reception in Crowne Plaza’s Zen Garden. Attendees enjoyed traditional Laos music and dance, with a live percussion ensemble and synchronised dance troupe. Later in the conference, delegates were invited to indulge at the famed Kualao Restaurant. Building on the success of previous family law events, the conference provided a unique opportunity for lawyers and professionals to exchange insights, explore current policy and practice issues, and develop a network of colleagues with shared interests and expertise in family law. LAWASIA extends its sincere thanks to those who attended and looks forward to the next Family Law & Children’s Rights Conference in 2020. More photos are available to view on the LAWASIA Facebook page.

events

31st LAWASIA Conference 2-5 November 2018 Siem Reap, Cambodia siemreap2018.com

LAWASIA Employment Law Forum 25-26 January 2019 Denarau, Fiji

1st LAWASIA Human Rights Conference 9-10 February 2019 New Delhi, India

LAWASIA Business Law Forum 14-16 March 2019 Manila, Philippines

For further details, visit lawasia.asn.au/ conferences-and-events.

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I N S P I R AT I O N

(BBC, 2010)

ASMA JAHANGIR (1952–2018) Pakistani lawyer, human rights activist and feminist icon

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n February this year, thousands of men and women attended Asma Jahangir's memorial in Lahore to honour a life dedicated to the rule of law, democracy, freedom from religious intolerance, and women's rights. As the daughter of prominent opposition politician Malik Ghulam Jilani, much of Asma's childhood was spent visiting her father in prison or court until, at the age of 18, she became a plaintiff in a legal challenge to his arrest under martial law. In a landmark judgment, the Supreme Court overturned her father's detention, and also ruled that martial law itself was illegitimate, paving the way for the restoration of democracy and a new constitution. Asma went on to spend her life opposing military rule, instead striving to uphold the more liberal ideals of Pakistan's founder Muhammad Ali Jinnah. Asma, her sister Hina Jilani and two friends established Pakistan's first all-female law firm, representing religious minorities accused of blasphemy, indentured labourers, and women resisting forced marriages or domestic violence. In 1981 she co-founded the Women's Action Forum to mobilise against the 1979 Hudood Ordinance, which replaced parts of the Britishera Pakistani Penal Code with Sharia laws, many of which had particularly adverse effects on women. Her life of activism lead to death threats, imprisonment and house arrest – but she was never deterred. In 1987 she co-founded the Human Rights Commission of Pakistan, became a UN Special Rapporteur on religious intolerance and, in 2012, after serving as a leader of the Lawyer's Movement, became the first female President of the Bar Association of Pakistan. Her fearless life and legacy remain a powerful source of inspiration for women (and men) not only in Pakistan, but around the world.

Photo: UK Foreign and Commonwealth Office

"There have been times I have been scared. There have been times that I have cried. But does that mean you give up in the face of brute force? No, never!"

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LAWASIA Risk Management & Professional Indemnity Insurance Conference 31 May – 1 June 2019  |  Hong Kong SAR For more details, visit

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