down by the DMZ

The Wall Street Journal of 22 April reports a split ruling by South Korean administrative court regarding two SK military attorneys who were dishonorably discharged after they jointly challenged the defense ministry's efforts to protect the SK armed forces from economist Chang Ha-joon (author of Bad Samaritans) and polemicist Noam Chomsky.

The court ordered South Korea's army to reinstate one of the discharged lawyers, Ji Young-joon, citing his record and awards as a military attorney. However, it held the discharge of Park Ji-woong was warranted.

The plaintiffs, as Army colleagues, filed suit in October 2008 challenging the constitutionality of the Defense Ministry's ban on around two dozen books for members of the South Korean armed forces. That ban prohibited troops from possessing 23 books deemed "seditious" as pro-North Korea, anti-South Korea, anti-American or anti-capitalist. The list included Chomsky's 501: The Conquest Continues and What Uncle Sam Really Wants and Chang Ha-joon's Bad Samaritans, in which the Cambridge economist criticises free trade.

Ji and Park were dishonorably discharged in April last year, with South Korea's Constitutional Court reportedly about to rule on their suit in the near future. Following their discharge they took action in the administrative court seeking reinstatement.

Sheltered workshops

Among other excuses not to mark more law essays on a cold grey wet day -

bull terriers talking about Sein und Zeit and PhDs - here. [For perspectives on postgrad dogs using strong language see Heanes v Herangi [2007] WASC 175; Houda v The State of New South Wales [2005] NSWSC 1053; Jolly, Sean Graham v R [2009] NSWDC 212; Hill v Police No. SCCIV-01-1728 [2002] SASC 28 and Walter Christopher Saunders v Wesley James Herold [1991] ACTSC 82; (1991) 105 FLR 1]

an editorial exchange on 'Book Reviewing and Academic Freedom' [PDF] in (2009) 20(4) European Journal of International Law 967-976

and from a Inside Higher Ed review of Adam Ruben's Surviving Your Stupid Stupid Decision to Go to Grad School (Random House, 2010) -

While most doctoral programs have some sort of orientation, the focus on such matters as required courses, time to degree and dissertation goals may diminish opportunities to consider really important matters -- such as how to wander into a colloquium at which food is served, timing your entrance so you don't need to listen to the talk. ...

There are more professorial types to avoid, in Ruben's world, than to cling to. You want to watch out for the "jet setter" (she's "giving the keynote address at a different conference every week" and so doesn't believe in such duties as "hand-holding" or "clarifying" or "anything"); the "deaf optimist" ("Bad news about your research? Say no more, No, really -- say no more, because she won't hear it."); or "the founder" (the longest serving faculty member in the department... "think Strom Thurmond meets George Burns, but without the racism or the entertainment... well, maybe a little racism.")

There's a dissertation hiding in a rigorous study - preferably an acerbic one - of the 'guide for postgrads' genre, including the 'what to do now that you have a useless [ie humanities] degree' subgenre. Who reads these books? Who buys them, and why (self-help by the depressed and desperate? presents from inept but well-intentioned friends and parents, postgrad resource units that really don't have a clue)?

and from the ODNB's biography of Patrick Cotter (1761-1806), professional giant -

Cotter ... grew to be more than 8 feet tall (accounts vary from 8 feet 3 inches to 8 feet 7 inches), and from his late teens was exhibited in England as the Irish Giant. He was originally tied to a showman who gave him £50 a year for three years for the right to show him, but after a disagreement Cotter was thrown into debtors' prison for a fictitious debt. He was bought out by a benevolent stranger, and thereafter exhibited himself for his own profit. ... Like other Irish giants of the period, he took the professional name O'Brien, claiming descent from Brian Boruma, king of Ireland, and has sometimes been confused with another giant, Charles Byrne, who also took the name O'Brien. Cotter displayed himself around the country for some twenty years ... Extraordinary size had its conveniences: it is recorded that 'once in Bath, on a cold night, he terrified a watchman by quietly reaching up to a street lamp, and taking off the cover to light his pipe'

[H]e made a tidy sum from his career, and in 1804 retired into private life. But Cotter's size had more disadvantages in an era which regarded physically exceptional individuals as freaks: the same source observes that he seldom went out during daylight, to avoid comments and taunts. ... In his will Cotter left legacies of more than £3000, mainly to his mother, Margaret Cotter, and strict instructions as to the details of his burial. Like Byrne, he was afraid that anatomists would seek to acquire his corpse, which, according to the memorial tablet in the chapel of his burial, was 'buried in the solid rock at the depth of twelve feet, and his body was secured with iron bars, so as to render removal impossible'.

Promo

I do like Bourdieu but the following promo on the Stanford UP site for his Pascalian Meditations (Stanford University Press, 2000) strikes me as a parody -

A synthesis of forty years’ work by France’s leading sociologist, this book pushes the critique of scholarly reason to a new level. It is a brilliant example of Bourdieu's unique ability to link sociological theory, historical information, and philosophical thought.

Pascalian Meditations makes explicit the presuppositions of a state of "scholasticism", a certain leisure liberated from the urgencies of the world. Philosophers, unwilling to engage these presuppositions in their practice, have brought them into the order of discourse, not so much to analyze them as to legitimate them. This situation is the primary systematic, epistemological, ethical, and aesthetic error that Bourdieu subjects to methodological critique.

This critique of scholarly reason is carried out in the name of Pascal because he, too, pointed out the features of human existence that the scholastic outlook ignores: he was concerned with symbolic power; he refused the temptation of foundationalist thinking; he attended (without populist naïveté) to "ordinary people"; and he was determined to seek the raison d'être of seemingly illogical behavior rather than condemning or mocking it.

Through this critique, Bourdieu charts a negative philosophy that calls into question some of our most fundamental presuppositions, such as a "subject" who is free and self-aware. This philosophy, with its intellectual debt to such other "heretical" philosophers as Wittgenstein, Austin, Dewey, and Peirce, renews traditional questioning of the concepts of violence, power, time, history, the universal, and the purpose and direction of existence.

What can one say? It exhibits a certain "onanism" (succumbing to the demotic but without the populist aioli and the cilantro encountered in the hegemonic episteme generated by non-heretical philosophers such as "Julia Child" or "Margaret Fulton")?

Identity verification lemon

The Australian National Audit Office (ANAO), now concentrating on process improvement rather than catching officials who borrow from the public cashbox, has released an 80 page appraisal [PDF] of the Attorney-General's Department Arrangements for the National Identity Security Strategy.

Perhaps not too surprisingly (at least for observers such as myself who question some of the more extravagant expressions of faith in biometric silver bullets and real-time identity verification by computer networks) the ANAO finds that a major component of the 2005 National Identity Security Strategy (NISS) isn't quite working as planned. Indeed, there has been a "significant underspend" because some agencies are having trouble getting the NISS national Document Verification Service (nDVS) to work, with concerns over timeliness, accuracy and "glitches".

The nDVS, announced with much ballyhoo in 2006, is a computer network linking federal and state/territory agencies responsible for key identity documents such as birth certificates, passports and drivers' licences (eg the state Births, Deaths & Marriages registries). The expectation is that it will be used to check the veracity of documents presented by people as proof of identity when applying for services or benefits at a wide range of agencies. It reflects agreement that -

Australia has a system of diverse personal identification credentials, issued for primarily operational purposes, which are routinely used by Australian Government agencies, business and individuals as de–facto identity documents. The current patchwork of identity–related credentials are of variable quality and accuracy, which exposes government, business and individuals to a variety of risks from not being able to verify a person is who they claim to be.

Since coming into operation in October 2007, the service has reportedly been used an average of only 10 times per day to check documents presented at participating agencies, although built to handle 250,000 requests a day.

Over its first two years in operation, the service had reportedly not identified a single fraudulent document. 38% of its responses had been errors, including false negatives where a document could not be verified even though it was genuine.

Most damningly, the ANAO comments that -

The one budget funded element of the NISS, the nDVS, has been built and a range of document issuing agencies have been connected to the system, albeit more slowly than expected. However, the system is rarely used and presently, it is making little contribution to the NISS objective of strengthening Australia’s personal identification processes. The passage of time and the lessons learned from the NISS related activities indicate that it is appropriate to revisit the rationale for, and appropriateness of, the NISS and its specific elements in a structured way by AGD and the NISCG.

Reinforcing that comment, the report goes on to state that -

Widespread use relies upon the nDVS being connected to the agencies that issue documents used in establishing one’s identity. Further uptake will, in part, be determined by the convenience, speed and reliability of the nDVS, when compared to other means of document verification. Notwithstanding a prototype Document Verification Service funded in 2005–06 and over two years of implementation of the nDVS, the project has presented significant problems for user acceptance and, consequently, it is rarely used. While AGD has had some recent success is getting more agencies connected to the nDVS, this has not translated into increased use. Remedial strategies for the nDVS may include changes to the nDVS, assisting with changes to user’s systems and work practices, or considering the future of the nDVS itself. The current, very limited, use of the nDVS indicates that it is unlikely in the immediate future that use of the nDVS will significantly contribute to strengthening Australia’s personal identification processes.

Jellyback

Paul Keating, renowned for his vision, courage and taste in clocks, once criticised an opponent as suffering from jellyback ... being scared to take tough decisions in leading the way forward.

That epithet might be applied to the current national government, which alongside the "launch" of the Human Rights Framework noted in the preceding post of this blog, has announced that it will not be introducing a human rights act - no justiciable Bill of Rights, no Charter of Rights.

The Attorney-General is reported as stating that the Government believes a human rights framework, rather than legislation, is 'more appropriate'.

The Government believes that the enhancement of human rights should be done in a way that as far as possible unites rather than divides our community, and the framework is designed to achieve that outcome.

Nevertheless, as you'll see, the framework does reflect the key recommendations of the human rights consultation committee and we believe [it] will make a real difference.

Well, he would say that, wouldn't he, and perhaps even believe statements such as -

Strengthening the implementation of human rights through the adoption of the Framework will further enhance Australia's standing as an advocate for the protection and promotion of human rights in international settings, such as the United Nations General Assembly and the Human Rights Council.

The decision disregards the recommendation of the national human rights consultation panel headed by law professor Father Frank Brennan and drawing on cogent analysis by luminaries such as UC constitutional authority Dr Bede Harris, whose lucid A New Constitution For Australia (Cavendish, 2002) is essential reading for anyone interested in the field.

The decision is a lost opportunity to address fundamental ongoing concerns regarding human rights and is not greatly ameliorated by the announcement that "all new bills introduced to Parliament will have to be compatible with Australia's international human rights obligations", by the allocation of several million dollars for yet more glossy handouts in secondary school civics classes or the promise to develop "a new National Action Plan on Human Rights, to be lodged with the United Nations, to outline future action for the protection and promotion of human rights".

One particularly cruel contact thus rang me to say that at 3am in the morning, as a sign of his deep and undying devotion to humanity, he will announce that he will develop an Action Plan that will outline future good things. That Plan will have lots of pictures. It will be lodged with Santa, and there it will end.

Human Rights Framework

The national Attorney-General and Minister for Finance & Deregulation have jointly announced the Government's intention to "streamline federal anti-discrimination legislation into one single comprehensive law".

That streamlining would integrate the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth). The expectation is that a unitary statute -

will address current inconsistencies and make the system more user-friendly by clarifying relevant rights and obligations. It will also provide the opportunity to review the complaints handling process and the related role and functions of the Australian Human Rights Commission. Importantly, there will be no diminution of existing protections currently available at the federal level.

The Attorney-General indicated that -

Effective anti-discrimination legislation is an important element in removing barriers to greater inclusion and participation in society. Anti-discrimination law should be clear and easy to understand because people shouldn't need expensive legal advice to know their rights and obligations.

The law reform is being promoted as part of a "Better Regulation Ministerial Partnership" that will encompass development of harmonised State and Territory anti-discrimination laws the Standing Committee of Attorneys-General (SCAG). A perspective on human rights and law reform rationales or priorities is provided by the description of that "partnership" -

Better Regulation Ministerial Partnerships form a key part of the Government's deregulation agenda and ensure a disciplined and coordinated approach to delivering regulatory reform across government.

Consolidating all Commonwealth anti-discrimination legislation into one Act will reduce the regulatory burden and drive greater efficiencies and improved productivity outcomes by reducing compliance costs for individuals and business, particularly small business.

Managerialism trumps rights?

Development of "a single Act dealing with all federal anti-discrimination laws represents an important part of the Australian Human Rights Framework", which was launched today. The Framework reflects consultations highlighted in this blog over the past year. It "outlines key measures to further protect and promote human rights in Australia". It is based on "five key principles", centred on -

* reaffirming a commitment to our human rights obligations;
* the importance of human rights education;
* enhancing our domestic and international engagement on human rights issues;
* improving human rights protections, including greater parliamentary scrutiny; and
* achieving greater respect for human rights principles within the community.

A skeptic might be forgiven for suspecting that the framework is a soft option, given the fuzziness of - for example - "the importance of human rights education" (primarily addressed through "investing over $12 million in a comprehensive suite of education initiatives to promote a greater understanding of human rights across the community").

The Framework will -

Reaffirm
• The Government reaffirms its commitment to promoting awareness and understanding of human rights in the Australian community and respecting the seven core United Nations human rights treaties to which Australia is a party.

Educate
• The Government will enhance its support for human rights education across the community, including primary and secondary schools.
• The Government will provide funding of $2 million over four years to non-government organisations (NGOs) for the development and delivery of community education and engagement programs to promote a greater understanding of human rights.
• The Government will provide an additional $6.6 million over four years to the Australian Human Rights Commission to enable it to expand its community education role on human rights and to provide information and support for human rights education programs.
• The Government will invest $3.8 million in an education and training program for the Commonwealth public sector, including development of a human rights toolkit and guidance materials for public sector policy development and implementation of Government programs.
• The Government will consider appropriate recognition of the need for public servants to respect human rights in policy making in any revision of the APS Values or Code of Conduct.

Engage
• The Government will continue to engage with the international community to improve the protection and promotion of human rights at home, within our region and around the world.
• The Government will develop a new National Action Plan on Human Rights, working with our State and Territory counterparts and NGOs, to outline future action for the promotion and protection of human rights.
• The Government will bring together the NGO Forums on Human Rights hosted by the Attorney-General and the Minister for Foreign Affairs, to ensure the forums provide a comprehensive consultation mechanism for discussion about domestic and international human rights issues.

Protect
•The Government will introduce legislation to establish a Parliamentary Joint Committee on Human Rights which will provide greater scrutiny of legislation for compliance with Australia’s international human rights obligations under the seven core UN human rights treaties to which Australia is a party.
• The Government will introduce legislation requiring that each new Bill introduced into Parliament, and delegated legislation subject to disallowance, be accompanied by a statement which assesses its compatibility with the seven core UN human rights treaties to which Australia is a party.

Respect
• The Government will review legislation, policies and practices for compliance with the seven core UN human rights treaties to which Australia is a party.
• The Government will develop exposure draft legislation harmonising and consolidating Commonwealth anti-discrimination laws to remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly.
• The Government will include the President of the Australian Human Rights Commission as a permanent member of the Administrative Review Council.

All better than nothing but let's not start celebrating.

Earthquakes and heretics

What would we do without exotic clerics (assisted or not by low-grade journalists)?

This morning's coffee was enlivened by a report from Iran about a senior cleric's pronouncement that an earthquake is on the way and that women who wear revealing clothing and behave promiscuously are to blame. (Nice to see that for once they're not blaming the demonic Zionists.)

Hojatoleslam Kazem Sedighi is quoted as revealing that -

Many women who do not dress modestly ... lead young men astray, corrupt their chastity and spread adultery in society, which (consequently) increases earthquakes. What can we do to avoid being buried under the rubble? There is no other solution but to take refuge in religion and to adapt our lives to Islam's moral codes.

When the earthquake does arrive - clearly the Great Flying Spaghetti Monster is most displeased - the eminent cleric can presumably quote some Justinian, the Byzantine monarch and patron of the Corpus Juris Civilis who attributed floods, fires, famines, earthquakes and plagues to the sodomites.

Justinian's Novella 77 referred to "diabolical and unlawful lusts" and condemned sodomites to death "lest, as a result of these impious acts, whole cities should perish together with their inhabitants". In case anyone missed the point (earthquakes continued, so clearly someone was being rather naughty), Novella 141 in 544 referred to homosexuality as the "very madness of intercourse", a "plague", a "disease" and "conduct so base and criminal that we do not find it committed even by brute beasts". Such criminals needed to be put to death to avert seismic unpleasantness.

One Chinese contact questions Justinian's explanation, claiming - with equal certainty - that the recent earthquake in the south west of the People's Republic is attributable to the Great Turtle having an itchy back.

Meanwhile Human Rights Watch has highlighted the decision by Indonesia's Constitutional Court upholding a 1965 blasphemy law (article 156a of the criminal code), prioritising the protection of 'orthodox religions' over basic freedoms.

The court rejected a petition by moderate Muslims, religious minorities, democracy advocates and rights groups. The law provides criminal penalties (up to five years in prison) for those who express religious beliefs that deviate from the central tenets of Indonesia's six officially recognized religions ('Islam, Buddhism, Hinduism, Catholicism, Protestantism and Confucianism'). The law also serves as the legal basis for a number of government regulations that facilitate official discrimination on the basis of religion.

The court held that the law is a legitimate restriction of minority religious beliefs because it allows for the maintenance of public order. It held that although 'imperfect', the law did not contravene the constitution of the world's most populous Muslim country. Article 28(E) of Indonesia's 1945 constitution expressly guarantees freedom of religion. That freedom is reflected in Indonesia's 2006 ratification of the International Covenant on Civil and Political Rights, which provides that states are to respect the right to freedom of religion, including "freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching".