Something About The Law

Tim Harford, of the Financial Times, writes in his The Undercover Economist,

“Health insurance is important because illnesses are extremely unpredictable and sometimes cost a lot to treat. Not only can some medical treatment be very expensive, it is often impossible to postpone it until a more convenient moment.”

Last week, Mr. Barack Obama addressed the American Medical Association (AMA) on healthcare reform in the country and  the exigent necessity of correcting the market failures that mar the system in the world’s most powerful economy. A chunk of healthcare in the U.S is controlled by private players and is thus subject to crude laws of the market, hence the problem of asymmetric information between the insurer and the insured and high insurance premiums.

While the full text of the speech is here, and a brief analysis of the same here, it is of vital importance to note that the issue of healthcare cuts across spectrums of politics, economics and social dynamics above all; specifically, debate over capitalism v. role of the state (An excellent piece by Amartya Sen, on capitalism after the financial crisis and a review of criticisms against capitalism, can be found here ), and fairness v. efficiency.

The situation has assumed dangerous proportions after the sub-prime mortgage crisis, as more people laid off means more people left without resources to pay for their health. With ever-burgeoning insurance premiums, rising unemployment, falling wages and an unprecedented financial crisis, the subject of healthcare reflects important and interesting intersections between law, economics and policy.

Jainism preaches enlightenment and salvation as the ultimate goal of human life. Pain and suffering are the hallmarks of a “diksha” life or life of a monk that every Jain is supposed to lead. Jains believe that it is only through inflicting hardships on oneself that one can wash away one’s sins of this and all previous lives. This practice of taking diksha and renouncing the world has been in vogue for almost two thousand years now.

Things, however, take a different turn when we talk of child monks or “bal diksha” for the question then assumes the form and shape of religious right v. child rights and child welfare. Children of tender age of 8 are being given away in diksha. The main issue and the core argument of child welfare organisations is that children are not mature enough to consent to the hard life of a monk and imposing this very life on them can amount to cruelty within the meaning of The Juvenile Justice (Care and Protection of Children) Act, 2000. The counter-argument is that bal diksha is protected as the religious right of Jains under the Constitution of India.

Recently, Jain Shasanam, a Mumbai-based Jain trust, applied for a confirmation on the issue and received a notification from the Department of Women and Child Development stating that bal diksha is protected as the religious right of the Jains under the Constitution. The Department also confirmed that the practice cannot be challenged or tried under the JJ Act. The Jain community plans to use the above documents in the ongoing case on the issue in the Bombay High Court.

While it is not denied that bal diksha has been an ancient custom practised by the Jain community, it is also important to note that the spirit of Jainism and the practice of diksha lies in an informed and self-chosen renunciation of the world. A child cannot be said to have knowledge and understanding of the meaning and implications of religious practices, duties and austere penance. The religious notions and the purpose of the practise of diksha would be fulfilled only when a person with his/her full consent opts for the path of diksha, which in the case of children cannot happen until they have attained the age of 18 years.

The Commonwealth of Australia is perhaps the only nation with a written Constitution but no Bill of Rights. It is interesting to note that the drafters of the Australian Constitution rejected the idea of a list of fundamental rights thus placing full confidence in the duly elected government to uphold and protect these rights. One of the oft-cited reasons for this state of affairs is that common law as applicable in Australia is sufficient to guarantee full protection of the basic rights of every individual in Australia. 

 The Federal Government has been contemplating the enactment of a Bill of Rights for quite some time. It is interesting to note the arguments against such an enactment, the key ones being:

1. Australia has an impeccable human rights record.

2. A Bill of Rights would vest too much power in the judiciary.

3. With a Bill of Rights, the Australians would run the risk of stating too much in very general terms. (This seems a baseless argument as Australia is a signatory to the ICCPR which itself states rights in general terms and is used as a counter-attack to any attempt towards a codified Bill of Rights.)

Other arguments for and against can be found in this paper here by Justice David Malcolm AC, the then Chief Justice of Western Australia. Arguing intensely for a Bill of Rights, J. Malcolm pointed out the exact difference between the law in Australia and most European countries thus,

Australia, without a Bill of Rights, is now outside the mainstream of legal development in English speaking countries, particularly those most comparable in their political and legal systems, including New Zealand and Canada. While it is true that the United Kingdom lacks a domestic Bill of Rights, the possibility and increasingly the fact of recourse to the European Court of Human Rights and the flow-on effect to decisions by United Kingdom courts, means that the United Kingdom does, in effect, have a Bill of Rights. The European Court has not regarded the common law in a number of areas as protecting human rights adequately. The new United Kingdom Government has announced its intention to legislate to make the Convention a part of the domestic law.

According to the doctrine of incompatibility as applicable under Section 4 of the Human Rights Act, 1998, any domestic legislation or a part thereof violating provisions of the European Convention on Human Rights (ECHR) can be declared as incompatible with the Convention by the Judiciary. Except for the state of Victoria which recently enacted the Victorian Charter of Human Rights and Responsibilities, the rest of Australia is immune from the application of the doctrine. Thus it is a debatable question whether common law is indeed sufficient to protect basic human rights in Australia.

With the forever burning issue of the rights of the Aboriginal people and the now raging and continuous “curry-bashing” perpetrated against Indian students with the Government not taking sufficient action, the atmosphere for a debate on the need and desirability of a Bill of Rights for Australia is fresh again. Hope this time the controversy will see a favorable end.

Today’s Hindu carries an opinion piece about one Jeffrey Destovic, and his memories of Obama-nominated Justice Sonia Sotomayor.

Imprisoned at the age of 16 for the killing of a high school classmate, Deskovic, now 35, filed a habeas corpus petition in 1997 in U.S. District Court contesting his conviction. The court denied the request because the paperwork had arrived four days late. Deskovic and one of his lawyers — who he said had been misinformed about the deadline for filing — appealed the decision to the federal appellate court on which Ms Sotomayor sat.

Ms Sotomayor, along with the other judge on the panel, ruled that the lawyer’s mistake did not “rise to the level of an extraordinary circumstance” that would compel them to forgive the delay. There was no need to look at the evidence that Deskovic insisted would affirm his innocence, they said.

The facts of Destovic’s arrest:

Deskovic was arrested in 1989 after the police found the body of the classmate, 15-year-old Angela Correa, at a park in Peekskill, in Westchester County, N.Y. Investigators focused on him in part because he seemed unusually distraught over the killing. After several hours of questioning — and after being promised that he would go home if he admitted to the murder — Deskovic confessed.

Sotomayor, however, fares well from a third person viewpoint, known for her aggressive stance on issues like police brutality and the death penalty. Moreover, habeas corpus petitions have a notoriously low success rate in non-capital cases: as the article cites, for example,  out of 2,384 randomly selected habeas corpus petitions in 2003 and 2004, only seven had been granted.

The question, therefore, is to what extent Sotomayor’s regard for due process ovverrides her judicial obligation to secure justice, and also to what extent the blame of not granting the appeal rested on her, given the precedents set in this context by others before her. What, moreover, is the importance of one slip?

In continuation of Arun’s fantastic post, here is the Wordle graphic of the text of Obama’s speech in Cairo.

For those of you unfamiliar with Wordle, what it does is basically rank a written piece in terms of the frequencies that various words appear in it, and put these frequencies into perspective by co-relating them to the size of those words. Basically, words that appear most seem largest.

Notice how ‘world’ appears more frequently than ‘country’;  ‘America’ is by far the only noticeable nation; ‘Egypt’ is virtually non-existant on the graphic, replaced by ‘Muslim/s’ – and most importantly, the word ‘must’ appears far, far more often than any other form of present or past tense.