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Deakin (Students) Deciding - Legal Reasoning and Decision-Making in the Vis Moot

Previously on Deakin Speaking, the opportunity arose to reflect on ten years of involvement with the Willem C. Vis International Commercial Arbitration Moot, as well as the practical legal training component of that event.  The aspects of learning arising out of the Vis Moot in Vienna and the Vis (East) Moot in Hong Kong are many - they are truly an extraordinary educational opportunity - though that opportunity does not necessarily end with the conclusion of the oral rounds each year.  In today's post, I explore the subject of Deakin (students) deciding - how students can learn from legal reasoning and decision-making in the Vis Moot.

Islamic State child soliders

I post these attachments without comment other than the idea that there are Indonesian and probably Malaysian child soldiers being training by IS in Syria is deeply disturbing for many reasons. My purpose is to disseminate this information, and its origins:

The text is in Indonesian, which can be machine translated at

Three Spanish Women Golfers in Australia - Recari just a little bit Korean

Bureaucratic murder

I feel a heavy weight in the pit of my stomach as I write this. Andrew Chan and Myuran Sukumaran have been moved to Nusa Kambangan, where Indonesia's prisoners are executed. They are killed by firing squad.

Their death is now +-3 days away. After many years, the bureaucratic wheels are now moving more quickly.

I understand that Indonesia wants to stop the drug trade, for good reason, even though the drugs in question were bound for Australia. Had it not been for the Australian Federal Police tipping off the Indonesian police, these two men would not now be facing the ultimate penalty, which is not applied in the country the federal police of which is ultimately responsible for handing then over.

I so, however, understand that the laws of other countries apply in those countries. Our governments keep reminding us of this, and it is wise to take note. Once convicted of a crime elsewhere, even if it is not a crime in Australia, there is precious little that the government can do.

I also understand taking a life in self-defence. Drastic circumstances may call for drastic measures, and I have seen such circumstances (though, thankfully, not acted upon them).

It is even understandable, if not allowable, that one might take a life in a moment of passion or anger. This is wrong, but it is at least not pre-planned.

I also understand the necessity of due judicial process which can prolong final outcomes for years. We must have due process, exhausting all legal avenues of appeal, for whatever outcome it might be.

What I struggle to understand is that, having made a decision many years before, the bureaucracy of a state grinds over its slow and deliberate wheels to process the taking of life, and then does so. For me, regardless of the crime, having the intent and planning, this is bureaucratic murder.

No country should do this - not Indonesia, not the United States - no-one. The bureaucratic taking of life does not speak to the sins of the condemned, but about the intrinsic values of the condemner. For this reason, I oppose state murder, everywhere, always.

East Timor's domestic and foreign policy after the resignation of Gusmao

The resignation of East Timor’s Prime Minister, Xanana Gusmao, and the appointment of a new cabinet marks a fundamental change in the young country’s political landscape. Gusmao’s resignation was expected, having been initially flagged during the passing of the budget almost a year ago, but has raised questions about the country’s future direction.

Gusmao’s successor is former Fretilin Deputy Prime Minister under Jose Ramos-Horta’s prime ministership, and Fretilin Health Minister, Rui Araujo. At 50, Araujo is considered to be one of the ‘young generation’, and is widely liked and respected. Araujo’s appointment indicates that a long-discussed ‘government of national unity’ has come to fruition.

Araujo is known for being methodical and having a strong grasp of the country’s finances. As a former independent, before formally joining with Fretilin, Araujo is seen as a moderate who is able to maintain good relations with major donor countries, notably Australia and the US.

One of the principal concerns about Gusmao’s resignation has been the continued stability of East Timor. There is no doubt that, while not universally popular, he has been both the towering figure of East Timorese politics and a great stabilising influence, especially after the chaos of 2006-7.

A ‘government of national unity’ would, by bringing East Timor’s major political groupings into the same government, very likely provide a much more stable political environment than one in which there continued to be a high level of political division. The disadvantage with such an arrangement is, however, that it will leave the government without a viable opposition, which could reduce political accountability.

If such an arrangement was in place until the next elections, scheduled for 2017, this might be seen as an adequate post-Gusmao period of transition. If it went beyond 2017, however, it might start to look more like some other ‘dominant party’ states, such as Malaysia, where coalitions rule effectively unchallenged.

As for Gusmao himself, it is likely he will remain either in a ministerial role or in an advisory capacity, at least for the time being. The President, Taur Matan Ruak, is also expected to keep a close watch on the post-Gusmao environment; it is no coincidence that his name, a nom de guerre, translates as ‘Two Eyes Watching’.

East Timor’s foreign relations are unlikely to shift under the new regime, with perhaps the new Prime Minister being slightly less combative than Gusmao has, on occasion, been in the past. Araujo is widely regarded as consiliatory, although this should not be taken as a sign of softness in protecting East Timor’s interests.

There is also hope that the Greater Sunrise LNG field dispute, worth tens of billions of dollars, may be resolved under the new government. However, there is no particular indication this will be the case.

More importantly, however, East Timor will continue to push ahead with its desire to see a permanent maritime boundary established between it and Australia. As Gusmao was resigning, East Timor’s parliament passed a law establishing a maritime council which will have oversight of settling permanent boundaries with Australia. If successful, this will mean overturning the current 50-year arrangement in which the resources of the Timor Gap are shared between the two countries, based on an earlier Indonesian agreement that favored Australia.

While Australia has opposed such a move, it has agreed to enter into discussions over the boundary question outside a judicial setting. This has been variously interpreted as East Timor believing it is getting closer to some form of agreement, or Australia just buying time. Whatever the circumstances, this is not likely to destabilise other elements of the bilateral relationship, which East Timor is keen to maintain.

East Timor has faced the challenges common to many, perhaps most, newly independent states. But it now appears that it might now be moving past initial teething problems.

With an orderly transition from the leadership of the country’s dominant political actor, it may be that East Timor is now moving towards a phase in its development when it can concentrate on planning its future rather than be distracted by its present. It will need to, if it is to survive the challenges of improving the livelihoods of its people, and sustainably manage the all-important petroleum fund that underpins the country’s economy.
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Xanana Gusmao resigns

The resignation from office by East Timor’s prime minister, Xanana Gusmao, was not unexpected. He had flagged his intentions over the past year. But it has sent shock waves throughout East Timor, where many believe his departure will create an unfillable political void.

Yet East Timor is likely to remain stable in an immediate post-Gusmao environment, rather than return to the chaos of 2006-07. And it will probably retain its democratic hue, if in a modified form.

Gusmao has been the towering figure in East Timorese politics since assuming leadership of resistance to Indonesian occupation in 1981. After his capture in 1992, Gusmao led the resistance from prison in Jakarta, becoming a cult-like figure within East Timor and beyond.

His misinterpretation of what was to become East Timor’s constitution saw him become a non-executive president in 2002. Prime minister Mari Alkatiri’s mishandling of a fragile domestic environment led to open violence in 2006, which saw Gusmao reassert his political authority, forcing Alkatiri to resign.

A Gusmao-led coalition won the 2008 elections, and he became prime minister. He was re-elected in 2012. In both the 2008 and 2012 elections, Gusmao’s anointed candidate – first Jose Ramos-Horta and then Taur Matan Ruak – were elected as president. His authority seemed all but unassailable.

However, even after the 2008 elections, there was a view that the “generation of 75” political leaders should start to make way for the “young generation”. Over the past couple of years, Gusmao has increasingly looked to them for successors.

Since 2008, Gusmao has been both the key stabiliser of East Timorese politics and a centralising force in political decision-making. He has attracted criticism for personalising power, yet East Timor’s ministers have often been inept and, without central decision making, little would have been achieved. As it is, East Timor’s development record is mixed, improving off a low human base but with major projects running over time and over bud

There has also been extensive criticism of blossoming official corruption under Gusmao’s prime ministership. This has been directed primarily at the awarding of government contracts to family members of cabinet ministers.

The long expected cabinet shake-up currently underway is expected to remove a number of ministers under investigation for corruption, as well as reduce the size of cabinet from 53 – an unwieldy number, arguably bloated.

The first likely outcome of this cabinet shake-up is that, after having been cast into the political wilderness in 2008, senior members of leftist political party Fretilin will likely be included in a new “government of national unity”. The most likely successor to Gusmao as prime minister is the popular former Fretilin deputy-prime minister and health minister Rui Araujo.

Although aged 50, Araujo is seen as one of the “young generation” of political leaders. He is popular with most East Timorese, is regarded as having considerable personal capacity, and is seen as a potential consensus prime minister. His appointment would then go a long way to ensuring the country’s continued stability.

Gusamo has said that he will remain in the political background, possibly as senior minister, to ensure that the succession goes smoothly. If there is a serious threat of the country returning to chaos he, and president Taur Matan Ruak, would be prepared to step back in.

A unity government is likely to satisfy most major political actors, but it is also likely to leave East Timor without a viable opposition. There is, however, a view among many East Timorese that opposition breeds conflict and that consensus fits better with traditional decision-making.

The experience of political fronts – or dominant parties without viable opposition elsewhere – is that they tend towards a lack of accountability, corruption and sometimes intolerance of dissent. This may be an issue that East Timor could face if it retains a “government of national unity” into the longer term.

For now, Gusmao has shown that charismatic, dominant leaders can choose the timing of their political departure, and can better manage the transition from a position of continuing authority rather than its sudden loss.

East Timor is still finding its way along a difficult post-independence path. It is a period in which many other countries stumble or fall. Gusmao choosing his own timing to step down is likely to smooth the transition process. But the many problems of this young and still fragile nation will remain to confront his successor.

Death row: a tragic reminder for Australian travellers

The execution in Indonesia of six death row prisoners early last Sunday, including five foreigners, convicted of drug smuggling and the refusal by president Joko Widodo to grant clemency from the death penalty for Myuran Sukumaran has cast into sharp relief his likely fate and that of fellow death row prisoner Andrew Chan.

Chan's appeal for clemency has not yet been decided by President Widodo but, consistent with his decision on Sukumaran, he has said that he will not grant clemency to convicted drug smugglers.

Widodo, or 'Jokowi' as he is better known, came to the Indonesian presidency last year as a reformist and with what was understood to be a human rights agenda. Human rights advocates in Indonesia have been dismayed by his refusal to grant clemency in death row cases.

From Jokowi's perspective, however, there are two issues driving him in these cases. Both are compelling, if for different reasons, and both play against Australian calls for clemency.

The first issue is that Jokowi came to office on a clear 'reform' platform, which includes both respect for the rule of law and opposition to interference in the judicial process. Indonesia's judiciary has long been regarded as compromised by special interests, including political pressure, so Jokowi's refusal to involve himself in judicial matters is consistent with his view of reform.

As a country which opposes the death penalty on principle, Australia's government is obliged to seek clemency on behalf of its citizens. Australia's political leaders, including Prime Minister Tony Abbott and Foreign Minister Julie Bishop, have done so, no doubt sincerely, but knowing their chances of success are limited.

As importantly, the death penalty applies equally to Indonesian citizens as foreigners, and any sense that there should be an inconsistency on this basis is repugnant to many Indonesians. In particular, many Indonesians' often well-developed sense of national pride would be deeply offended by any such a double-standard.

Jokowi is not only sensitive to this, but also sensitive to the fact that Indonesia's legislature, the DPR, is overwhelmingly stacked with his opponents. If he wishes to proceed with his reform agenda, he will require the DPR's cooperation.

Many DPR members are focusing closely on Jokowi's public acts and would be quick to pounce if there was even a hint of a double-standard. Indeed, there is even a chance that Jokowi could be impeached, as happened to one of his predecessors, president Abdurrahman Wahid. Public pressure within Indonesia, then, while often not explicit, is great.

How Australia represents its case for clemency is also critical. If Australia's appeal is too private then it can be dismissed without much ado. For Australia's domestic audience, too, the Australian Government would be seen to be doing too little for Australian citizens facing execution.

However, if Australian representations are too strong, it could engender a nationalist backlash. This would have the effect of further compelling Jokowi to reject any call for clemency that he might otherwise have been considering.

Australia's political leaders know there is little they can realistically do to alter the circumstances that Sukumaran and Chan now find themselves in. The only hope, such as it is, is that at this stage Chan's appeal for presidential clemency has not yet been rejected.

Indonesia's practice is that, when more than one person is sentenced to death for the same offence, the penalty is carried out simultaneously. Sukumaran last opportunity for appeal has failed, but Chan has not yet been notified of the same outcome. While Chan remains alive, so does Sukumaran.

However, if and when Chan's appeal for clemency is rejected by the president, the process will move relatively quickly. Probably within weeks, the pair will be given three days notification of their execution in order to finalise any outstanding business. They will then be taken to an execution ground and shot by a 12 man firing squad.

Despite the crimes for which Sukumaran and Chan have been convicted, there is a sense shared by many that the impersonal process of the state - any state - taking someone's life is bureaucratically grotesque. Yet, as various foreign ministers and the Department of Foreign Affairs and Trade have consistently said over many years, Australians overseas will always be subject to the laws on the countries they are in, up to and including the death penalty.

It is little comfort that Sukumaran and Chan's experience is serving as a stark object lesson to others who might be contemplating drug trafficking. It has been a decade since the last Australian, Van Tuong Nguyen, was executed for drug trafficking in Singapore. That death came 12 years after Australian Michael McAuliffe was killed in Malaysia.

It seems, with the passage of time, that such lessons are too easily forgotten. It is likely, however, that Australia will soon be reminded.

Charlie Hebdo attack an assault on the human condition.

Islam is a superstitious, antiquated belief system, its prophet spoke to imaginary voices in his head and its god is a figment of an ignorant imagination. I might believe this statement to be true, or I might not. Christianity is a superstitious, antiquated belief system, its prophet spoke to imaginary voices in his head and its god is a figment of an ignorant imagination. I might also believe this statement to be true, or I might not. And so on for each religion and, differing only in detail, for any other belief system or ideology.
What is important in these statements is not that I necessarily believe them, that they are objectively true or even that they are rational. What is important about these statements is that I be free to make them.
When three Islamist terrorists murdered 12 people and wounded 11 others at the office of the satirical magazine Charlie Hebdo in Paris, they were attacking this most fundamental principle of human rights. If all human rights are deemed as equal, as they are usually claimed to be, then freedom of speech is first among those equals.
Speech, or language, as a reflection of our ability to think, is the defining quality of being human. Speech is fundamental to our ability to express desires, fears, needs, concerns and, at the juncture of these qualities, views, values and opinions. That this has become fundamental to liberal democratic society is but a development of its own prior logic; freedom of speech necessarily implies a plural, tolerant political system.
In this, human rights are predicated upon the quality of being human, not being the citizen of a particular country or the adherent, or even respecter, of a particular faith. In this, freedom of speech is especially elevated among human rights in that it is both; it reflects freedom to express oneself on matters of interest or importance, and it reflects freedom from censorship, control and subservience.
Without such freedom of speech, such religions that exist would be allowed only by the arbitrary whim of a particular holder of sufficient power. So too for political views and expressions of culture, as well as more mundane concerns such as taste and preference. Those who try to shut down freedom of expression seek, by their own logic, to shut down even their own conversation.
The magazine Charlie Hebdo had, and will continue to have, its own special place pricking the over-inflated egos, beliefs and opinions of many. It will offend and it will annoy. As well as to entertain, that is its job. Such an exercise is a necessary curative for all the pompousness, self-importance and, often, ridiculousness that characterizes a large part of the world in which we live.
Part of that deflating exercise includes making fun of organized religion, which in turn includes Islam. Indeed, it is the more extreme iterations of Islam, such as that propagated by Salafi jihadists, which is most in need of deflating. That this interpretation of Islam regards violence as legitimate only further highlights the need to satirise it.
The attack on Charlie Hebdo, then, was not, as one of the attackers claimed, ‘avenging the prophet’. It was not even an attack on democracy, as claimed by some political leaders. The attack on Charlie Hebdo was an attack on the very condition of being human.
As for the proposition about belief systems, re-phrasing Voltaire, I may – or may not – believe what I say. But as a human I, and everyone else, have the right to say it. To shy away from that is to let terrorism win.

2004 Indian Ocean tsunami: how Aceh recovered, and Sri Lanka declined

The 2004 Boxing Day tsunami that left almost a quarter of a million people dead and led to the world’s largest emergency aid program had a profound impact on two wars being fought in the region.

In Aceh, Indonesia, it contributed to the end of three decades of bloody conflict; in Sri Lanka, the tsunami ultimately led to the deaths of tens of thousands.

In Aceh, the Free Aceh movement (Gam) had been fighting the Indonesian government for a separate state. Gam retreated to the mountains following a declaration of martial law in 2002 and the escalation of the war by the Indonesian military.

In Sri Lanka, The Liberation Tigers of Tamil Eelam, better known as the Tamil Tigers, had similarly been fighting for a separate state in the north of the country. As a result of a 2002 Norwegian-brokered ceasefire, they managed to establish a semi-autonomous zone in the north of the country, but both the Tamil Tigers and the Sri Lankan government had withdrawn into increasingly hard line positions.

A dispute over whether tsunami emergency aid funds should be autonomously administered by the Tamil Tigers in their area of control meant that already high levels of distrust were further entrenched. Shaky movement towards a negotiated settlement drifted.

By contrast, in Aceh, Gam declared a unilateral ceasefire. There was a sense that assisting the people to rebuild had to take priority. The newly elected Yudhoyono administration put out feelers towards a possible resolution.

While opposing groups in Sri Lanka squabbled and retreated from each other, the international community applied pressure to both Gam and the Indonesian government to find a way forward.

Aceh’s peace talks began in Helsinki in January 2005 and, over the next six months, worked towards a compromise in which Aceh could have a high degree of political and economic autonomy if it remained within Indonesia. Indonesia’s own democratisation was hugely important to this, with the principle of local political representation clinching the deal.

With only animosity in Sri Lanka, the Tamil Tigers made the fatal error of stopping Tamils from voting in the 2005 presidential elections, which saw Mahinda Rajapaksa achieve the slimmest of victories, of 50.29%. Had Tamils voted, the more amenable Ranil Wickremesinghe would likely have won and negotiations could have resumed.

Rajapaksa’s victory ensured that a return to confrontation was all but inevitable. The Tamil Tigers own leader, Velupillai Prabhakaran, was equally combative, retaining unrealistic faith in the Tiger’s ability to defeat the numerically superior government forces.

As late as 2007, there remained a chance for a negotiated settlement in Sri Lanka, but this ended when government forces resumed their attacks. By early 2009, the Tamil Tigers had been routed, at the cost of some 40,000 lives, with Sri Lanka’s ethnic division continuing as a running sore in the country’s body politic.

In Aceh, meanwhile, post-tsunami rebuilding continued, and the province assumed something approximating normalcy for the first time in the modern era. The peace agreement led to local elections, comfortably won by former Gam combatants.

The devastation caused by the tsunami created organisational, economic and political pressure in two deeply troubled regions. In one, these pressures highlighted differences, drove opposing sides apart and ultimately led to a further human catastrophe; in the other it pushed opposing sides to seek compromise.

The outcome in Sri Lanka has since served as a model for how to militarily crush a separatist movement, but remains globally deplored by human rights advocates. The outcome in Aceh has, by contrast, been viewed as a model for using democracy to achieve peace.

The 2004 tsunami created two choices for achieving a genuine peace in the areas it affected. Only one of them can be said to have been successful.

Deakin (Students) Speaking - Practical Legal Skills Training and the Vis Moot

In my previous post on Deakin Speaking, I commented on 10 years of involvement - as a student, judge and coach - with the Willem C. Vis International Commercial Arbitration Moot in Vienna, and the Vis (East) Moot in Hong Kong. In that post, I foreshadowed three further contributions to Deakin Speaking, addressing the Vis Moot. This is the first of those contributions - Deakin (Students) Speaking - on the topic of practical legal skills training and the Vis Moot.

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