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26-03-2018

EDITORIAL MONDAY, MARCH

EDITORIAL MONDAY, MARCH 26, 2018 4 Acting Editor & Publisher : Jobaer Alam Telephone: +8802-9104683-84, Fax: 9127103 e-mail: editor@thebangladeshtoday.com Monday, March 26, 2018 Thoughts on 47th Independence Day Bangladesh today is observing its 47th Independence Day. Every year, it is found to be an occasion to be celebrated with great ardour by Bangladeshis. All generations of Bangladeshis take pride in it, get inspiration from it. But Independence Day , this year, is seen in a very positive and hopeful spirit of national recognition that Bangladesh is well on the road to realizing the vision for which the independence struggle was launched. Only days ago Bangladesh celebrated nationally its recognition by the United Nations as a country which has fulfilled successfully all the criterion for breaking out of its undesirable status in the comity of nations as a least developed country (LDC). Today, Bangladesh is recognized as a country which has graduated successfully from its LDC status and taken a proud place in the family of nations as a Middle Income Country justifying the endeavor for independence by all freedom fighters and martyrs. All reputed think tanks at home and abroad seem to be united today on the view that Bangladesh is well set on the track to become a developed country by 2050 as targeted. Indeed, the people of this country are the ones who made the most sacrifices to make independence for this Bengali nation a reality. Of course, titanic leadership was there some four decades ago to preside over this majestic struggle of the people. But it was the role of the people supremely on the roads, in the trenches, in the battlefields and everywhere that led to the triumph of this nation of 75 million of that period who number some 160 million today and who are distinguishing Bangladesh in the comity of nations in so many and varied forms. All hats, therefore, are to be taken off to show admiration and respect to the indomitable and able people of Bangladesh who have been contributing to national accomplishments in different spheres . The people of Bangladesh deserve to be specially recognized and congratulated for their various enterprising which has taken their country far down the road to national well-being and advancement in different areas. These signs of progress are to be noted everywhere and are too many to be included within the narrow confines of this column. It should suffice, to say, that the same would be obvious to those without mindsets or who are prepared to wholeheartedly accept the progress made mainly through people's endeavour during the last four decades. There is no doubt that Bangladeshis in all of these years have quite successfully fulfilled the criterion of nationhood. They did not just lose their will or got overwhelmed by different internal and external choking factors to feel resigned to a sense of hopelessness. Far from it, Bangladesh today presents a spectacle of zest reflected in the various energetic activities of its people notwithstanding the odds. Proving the Malthusian dictum between overpopulation and famine or Henry Kissinger's famous expression that Bangladesh was destined to be an everlasting case of international charity, today's Bangladesh is seen very much as a self supporting nation. It nearly feeds its doubled population with its own food grain production, has substantially boosted its GDP and increased its per capita income despite heavy population growth, has an impressive record of debt servicing-- very punctually-- unlike many other developing countries and funds a major part of the expenditures for developmental activities from its own resources and not from external charity. It has developed a world class export oriented apparel industry, third biggest in the world. Other industries like shipbuilding and Informtion Technology (IT) seem to be very suited for it. Most importantly, its people on the whole seem to be yearning to utilise their energies in gainful entrepreneurial activities to take the country further and quickly up the economic ladder. Unfortunately, these conditions and mood of the people to work for a take-off of the country in the economic sense has been put on hold by the failings of some successive governments. Only self-seeking government leaders, political elites in leadership positions, the bureaucracy and other interest groups, have been frustrating the moves of the people on the whole to accelerate progress in different fields. Bangladesh's moving up to the status of a middle income country and its further significant attainments in different spheres, depend supremely on overcoming this lack of dedicated, scrupulous and able leadership. Thus, the singular prayer for Bangladeshis on the occasion of Independence Day ought to be for a metamorphosis of their confused leadership where the same apply. Bangladeshis in their different fields of activities have proved their great abilities and potentials . Indeed, Bangladesh today is seen as enjoying the conditions for a great economic take-off based on the sheer zest of its people. The country's leadership must read this pulse or enthusiasm of the people and join the people to lead them sincerely towards true all round development and prosperity. Politics of building narratives THE fourth estate in India-held Kashmir is in peril. Willing collaborator-journalists have made the institution of journalism the lapdog of the state by not calling out its follies, and by muddying IHK's political narrative in line with the Indian state's interests. A recent report by the International Federation of Journalists (IFJ) highlighted how government clampdowns on media houses through censorship, arm-twisting curbs on advertising, and intimidation by the intelligence agencies is threatening essential journalism in IHK. The findings of the report hardly come as a surprise to local intelligentsia. But the IFJ report, like previous other reports, failed to identify that the biggest danger to the institution of journalism in IHK is from journalists itself. It didn't articulate details such as how the state doles out sops to journalists to prevent them from reporting the on-the-ground reality of the situation in IHK. The obfuscation of the reality of IHK's political issue involves the complicity of journalists. Here in IHK, who in the media carries out the government's 'dirty work' is common knowledge, but it's seldom spoken about. So overarching is the state's influence on local media houses that none raised a voice against the arrest of a 22-year-old Kashmiri photojournalist, Kamran Yousuf, charged by India's National Investigation Agency (NIA) with being a "stone-pelter". The NIA told the court that Yousuf was not a "real journalist" because he didn't cover the "developmental activity of any government department" or the "statements of any political party in power". "Kamran Yusuf had hardly taken any video of such activity and video or image of any such activity can rarely been seen in his laptop or mobile which clearly show his intention to only cover the activities which are anti-national and earn money against such footages," the charge sheet read. In essence, the NIA was telling the court that Yousuf didn't uphold the "moral duty of a journalist" because he didn't support the state and its forces' narrative. Contrary to its claim, Yousuf often performed his duties to the best of his ability, all the while dodging bullets and stones. He covered pro-freedom protests, WASIM KHAlID BRADleY K MARTIN gun battles and other aspects of the interminable conflict in IHK - coverage that was picked up by leading media organisations. By arresting him for being an 'unreal' journalist, the Indian government, through the NIA, has again signalled to the press that they would court trouble by reporting the facts about IHK. The message hit home loud and clear - the The NIA told the court that Yousuf was not a "real journalist" because he didn't cover the "developmental activity of any government department" or the "statements of any political party in power". "Kamran Yusuf had hardly taken any video of such activity and video or image of any such activity can rarely been seen in his laptop or mobile which clearly show his intention to only cover the activities which are anti-national and earn money against such footages," the charge sheet read. media did not come to Yousuf's defence. Only a passing reference to his arrest was made. Even the organisations for which he worked dumped him. These are the kinds of pressures journalists who refuse to comply with the state face. By taming the media, the state has succeeded in muddying the waters about the real happenings in IHK. Journalists who do the state's bidding are the "real journalists" in the eyes of the state and intelligence agencies. Ironically, those "real journalists" are sometimes also hosted by the Pakistani media to help build a narrative on IHK for international audiences. Observers in IHK fail to make sense of why such journalists are invited, as their views on the situation in IHK are too cluttered for even the ordinary Kashmiri. There are, however, some conscientious reporters who reflect the true reality of IHK - whether that goes against pro-India parties, pro-freedom groups, rebels or the Indian forces. They are uncompromising in their pursuit of the truth. Young Yousuf was trying to do the same. The obfuscation of Kashmir's political narrative does not end here. The media in New Delhi continues to galvanise public opinion on IHK in line with the official narrative to whip up hysteria for 'war' with Kashmiris and also with Pakistan. It completely turns a blind eye towards the bloodshed and the political realities existing on the ground - the hard truth that Kashmiris are, by and large, indigenously fighting for the right to self determination on the streets. Like the mainstream Indian media, many Indian liberals also play with the facts and reinforce the official narrative in a roundabout way. These liberals are equally immune to the plight and struggle of Kashmiris. Source : Dawn Another North Korean con job in the offing? Some analysts have been speculating that North Korean leader Kim Jong-un wants a total revolution in North Korean policy - a revolution in which he would push China even farther away and either join an American-led alliance outright or attempt to play off China against the United States. Kim does have poor relations with China, as shown by the lack of visits and contacts. And there are the anonymous sources who say he was alerted to a plot by Uncle Jang Songtaek to enlist China's help in kicking him out of office and putting his halfbrother Jong-nam in power instead. That certainly would explain why Kim Jong-un saw the need to kill both his uncle (execution) and his half-brother (assassination), and why he hasn't warmed to China. And if he had such a revolutionary intention as switching from the United States to China as his great power protector, that would likewise explain his sudden peace offensive and reported offer to meet US President Donald Trump. All that said, however, and as intriguing as those notions are, we need to remember just who Kim Jong-un is. We have it from his father's Japanese sushi chef that Jong-un was the meanest and most belligerent of the late Dear Leader's three sons. My guess is that he was chosen precisely on that account. You have to be a mean son of a bitch Ihave spoken to seasoned diplomats who are extremely worried at the prospect of John Bolton's appointment as US National Security Advisor. When neoconservative warmongers like Dick Cheney, Donald Rumsfeld and Bolton previously ruled the roost at the White House, they envisaged the Iraq and Afghanistan invasions as only the first phase of "creative chaos" for remodeling the "broader Middle East." Although their fevered plans were drastically curtailed and ultimately discredited, the current catastrophic state of the region can be largely traced back to this deranged worldview. Are the war drums about to start beating again? In 2005, Bolton was appointed as America's UN ambassador as an avowed enemy of multilateral diplomacy; summed up by his scathing claim that "there is no such thing as the United Nations." The fact that this assertion has become increasingly accurate is partly due to acts of sabotage by Bolton, who under previous administrations lobbied successfully for the US to refrain from joining the International Criminal Court. Having interviewed Bolton and attended his briefings, I found him singlemindedly dogmatic, yet strikingly uncharismatic. This notorious "bomb thrower" (as he was described by the former boss of Fox News) may encourage Trump's predilections for cutting support for those multilateral institutions which are supposed to underpin international law and global security, if only superpowers refrained from torpedoing them. Trump's foreign policy instincts during to be a dictator in the Kim family mold. If, in fact, he'd been a secret reformer, Kim had time after his father's 2011 death to show that. I've seen little evidence that he differs significantly from his father, who never could pull himself far from the policies instituted by his own father, the first-generation head of the dynasty, Kim Il-sung. We cannot know for sure how a true reformer would be greeted domestically. Still, I think it's reasonable to assume that military/security hardliners would resist a major turn away from the militarism that the eldest Kim unveiled with the 1950 invasion of the South, and then developed further from the 1960s on. There are some indications that the reaction of secret dissidents among Will Trump’s ‘bomb thrower’ take the world to war? 2017 were often held in check by the "adults in the room" - figures like Bolton's predecessor H.R. McMaster - who were regarded as level-headed advocates of the status quo. However, such advice clashed with Trump's desire for a radically different approach to previous presidents, and he bristled each time they begged him not to tear up Obama's Iran deal. Now that the adults have left the building in a stunning succession of departures, the mind boggles as to what the future holds. With Trump slated to sit down with Kim Jong-un for face-to-face talks, there has never been a more inauspicious time to appoint such a unilateralist hawk. There are no longer any wise advocates of diplomacy whispering in Trump's ear. A hollowed-out and marginalized State Department has been gutted at all levels through resignations and Rex Tillerson's purges, with high-level positions vacant BARIA AlAMUDDIN the elite as well as the long-suffering population of ordinary people might be positive This is the possibility I imagine in the plot of my new novel Nuclear Blues. But Kim must also bear in mind that his claim to legitimacy as one-man ruler depends mainly upon his fidelity to family policies. In other words, even if we posit that some other North Korean from another family, coming to That certainly would explain why Kim Jong-un saw the need to kill both his uncle (execution) and his half-brother (assassination), and why he hasn't warmed to China. And if he had such a revolutionary intention as switching from the United States to China as his great power protector, that would likewise explain his sudden peace offensive and reported offer to meet US President Donald Trump. power afresh, could afford a major, Dengist break with the past, Jong-un has to question whether he, as the designated Kim heir, could get away with it. As for the reports that Kim Jong-un has quoted his father and grandfather on their goal of denuclearlizing the peninsula, we know very well that definitions of denuclearization differ widely. My guess at this moment is that for over a year. Even if Trump and Kim do hit it off, this administration lacks the capacity and mentality for the complex negotiations that would ensue. Bolton would not be the only figure itching to derail these talks, pushing Trump toward a military option. For those who doubt where Bolton's instincts lie, he recently wrote: "It is perfectly legitimate for the United States to respond to the current Trump's foreign policy instincts during 2017 were often held in check by the "adults in the room" - figures like Bolton's predecessor H.R. McMaster - who were regarded as levelheaded advocates of the status quo. However, such advice clashed with Trump's desire for a radically different approach to previous presidents, and he bristled each time they begged him not to tear up Obama's Iran deal. Now that the adults have left the building in a stunning succession of departures, the mind boggles as to what the future holds. 'necessity' posed by North Korea's nuclear weapons by striking first." After a long period in the political wilderness, and now an office-holder with immense responsibilities, John Bolton may wish to draw a line under his most inflammatory previous positions. Those who want to see Iran challenged and contained should not rush to applaud Bolton's appointment. Bolton was a prominent architect of the 2003 Iraq War, and the consequences of a new regional conflict could be similarly Jong-un is trying yet another hustle in the tried and true Kim family regime tradition. I hope I'm wrong, and I will keep watching eagerly for evidence that I'm wrong. But just look at young Kim's retinue. Who represented the regime at the opening ceremony of the Olympics? Answer: Kim Yong-nam, 90 years old, the same official who had been trying for four decades to con the Americans into leaving their South Korean ally to fend for itself. (He sat me down in Pyongyang in 1979 and had me listen to his spin for five hours.) Meanwhile, Jang Song-taek, the most likely Dengist figure we'd seen since Kim Dal-hyon enjoyed an alltoo-short run near the top of the power structure in the 1990s, is dead at the hand of his nephew. (Kim Dalhyon took his own life in despair after hardliners got him sidetracked.) If you're going to revolutionize your own regime, normally you'd want to align your personnel more in that direction, I'd say. Unfortunately, another DPRK con job - if that is what Kim's current diplomatic outreach represents - may be coming at precisely the wrong time: It would be music to the ears of Washington's most reckless hardliner, the newly appointed national security advisor Ambassador John Bolton. Source : Asia Times horrific. Make no mistake, Iran's regime with its third-rate conventional military capacity is hated by its citizens and is alltoo-ready to collapse. Yet a botched invasion could further destabilize Central Asia and give rise to even nastier successor regimes, particularly as Bolton and Trump are ideologically opposed to nation-building - leaving us with the consequences of a widening chain of failed states dominated by terrorist warlords all the way from the Mediterranean through into South Asia. During Barack Obama's tenure, Bolton repeatedly provoked Israel toward strikes against Iran. However, a conflict directed against Tehran's proxies in Lebanon and Syria would leave a sizable part of the Arab world as a pile of smoking ruins. The belligerent parties - Iran or Israel - wouldn't necessarily emerge significantly weaker from such a war, which would be heavily dependent on terrorist proxies and airstrikes across Arab territories. Such a conflict would simply play into the hands of hardliners on both sides. We instead require a muscular multilateral framework for aggressive containment against Iran. The 2015 nuclear deal failed to address Iran's ballistic missile program and expansionist regional meddling, which became more unrestrained after Obama's deal due to the absence of any assertive containment strategy. Iran must face tangible consequences for its sponsorship of terrorist entities and efforts to dominate regional states. Source : Arab news

LAW & PUBLIC MondAY, MARCh 26, 2018 5 Choice of Court Agreement and Arbitration: Recognition and Enforcement of Foreign Judgments Md. MAMonoR RAshid Choice of Court Agreement and International Arbitration are being the recent debate that they are canned as contender of each other. Choice of Court Agreement (CCA)are the repercussion of the Hague Convention and international arbitration is the upshotsof the New York Convention on the Recognition and Enforcement of Arbitral Awards ('New York Convention'). However, the Hague Convention on Choice of Court Agreements is considered as "a sort of mini version of the New York Convention for the enforcement of court judgments". The HagueConvention is an international treaty that legally binds contracting parties to a uniform set of rules relating to civil and commercial matters. It currently has 33 Contracting Parties, mostly EU member states (excluding Denmark). However, Bangladesh is not a party to the Hague Convention. hague Convention The Hague Convention was concluded in 2005, and came into force on 1 October 2015 and was designed to promote international trade and investment by encouraging judicial cooperation in multi-jurisdictional litigation, and the enforcement of foreign judgments. It applies to cases that are international in nature (Article 1) but also outlines several matters that do not fall within its scope of application. They include disputes about employment, consumer contracts, family law, insolvency and the validity of intellectual property rights other than copyright and related rights (Article 2). There are three key features of the Hague Convention: 1. Where parties have stipulated an exclusive choice of court agreement in their contracts, the Hague Convention requires that a court selected by parties must act in every case as long as the choice of court agreement is not null and void (Article 5). There is no discretion (on forum non conveniens or other grounds) in favor of courts of another State. 2. The Hague Convention provides that any other court seized but not chosen must dismiss the case unless the exceptions listed in the Hague Convention apply (Article 6). A jurisdiction agreement is thus effectively enforced and avoids parallel proceedings. 3. Key feature of the Hague Convention is that it provides an international framework to recognize and enforce judgments. A judgment rendered by the court of a member State must be recognized and enforced by the courts of other member States (Article 8) unless one of the exceptions established by the Hague Convention applies (Article 9). This is the feature highlighted by Michael Hwang SC and Menon CJ in their speeches. It must be borne in mind that the recognition and enforcement of judgments between member States are limited to judgments made by courts designated by the parties under the choice of court agreement. Recognition and enforcement of foreign judgments The third goal of the Convention is the recognition and enforcement of foreign judgments. Article 8 states that: "a judgment given by a court of a Contracting State designated in an ECCA shall be recognised and enforced in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention". Article 9 lists seven grounds for refusal. Three important points are: i) The upshot of Public Policy Article 9(e) states that: "recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State". Public policy encapsulates violations of procedural fairness that also violate public policy. The Convention cannot determine the meanings of terms such as public policy, reservation of public order or public interest of society. There is no international or uniform definition of "public policy" and the concept changes over time. This makes it impossible to predict how the courts will interpret the term in practice or its effect on parties to the Convention. ii) incompatible Judgments Article 9(f) states that: "the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties". This appears to contradict the ECCA requirement to recognise and enforce judgments. The Explanatory Report states that an "inconsistent judgment" must have identical parties but is not required to have identical causes of action. It includes default judgments. This contradicts the concept of an "exclusive judgment" because a court can refuse to recognise and enforce a foreign judgment under Article 9(f). The Convention prioritizes judgments from courts in requested countries, in breach of the "court first seized rule". iii) Limiting declarations An issue related to the actual connection principle is whether a court in the requested country, as a "disinterested court", is obligated to recognise and enforce foreign judgments. Article 20 states that: "A State may declare that its courts may refuse to recognise or enforce a judgment given by a court of another Contracting State if the parties were resident in the requested State, and the relationship of the parties and all other elements relevant to the dispute, other than the location of the chosen court, were connected only with the requested State". This applies to the same subjects as Article 1. Article 20 cases are not "international cases" so may fall outside of the Convention's jurisdiction. If a "disinterested court" establishes jurisdiction but disregards the Convention, the requested countries' can refuse to recognise and enforce the judgment in domestic cases. This protects the requested countries' judicial sovereignty over actual connection and domestic cases. Conclusion The Convention is almost identical to the New York Convention in regards to the recognition and enforcement of arbitrary awards. International commercial arbitration's predominant advantage in international dispute settlement may be compromised. It is the multilateral convention on jurisdiction and enforcement to which Bangladesh is a not party. About the Author The Author has attained his Master of Laws by thesis (Equivalent to M.Phil) on International Commercial Arbitration from University Utara Malaysia with Post Graduate Scholarship. He is practicing as an Associate of B&M Legal, focusing on International Commercial Arbitration, Corporate Law and Drafting. He is the Young Professional member of Singapore International Arbitration Centre (YSIAC), Singapore and Young International Arbitration Group (YIAG), London. Can be reached atmamon_rashid@live.com Prank Calling on Radio shows: how legal is it to toy with someone's emotions? Aiman R Khan Apprentice advocate, Dhaka Judge Court. Youtubers all over the world take prank videos to be the stairway to overnight success. Although difficult to execute in public, making prank calls is an easy way to bluff someone. That's how a certain radio host runs her show with. She makes people laugh by making prank calls. The entire conversation is recorded and filmed and uploaded online. The videos go 'viral' and receive thousands of views. But the question is, how legal is it? YouTubers are still in its basic level. I have subscribed few of them the other day and watched their content. Some were hilarious and disciplined. But most of these were nothing but public nuisance. FYI, Public nuisance is an offence in this country under the Penal Code 1860. Public Nuisance can be an act which causes injury, danger or simply annoyance to the public under s. 268 of the Penal Code. There are other sections from the same law which might be applicable here. If by any chance, the prank goes horribly wrong and the victim is injured, the prankster may also be liable under s.321 for voluntarily causing grevious hurt. He may have to stay behind bars for a year or pay a thousand bucks as fine. Pranks involving objects that can cause a passerby to apprehend immediate fear may result in the offence of Assault under s.351 of the Penal Code. For example, a man without notice throws a toy snake or a cockroach at a woman, or points a gun pretending to be a robber. No matter how many times the prankster apologizes or reveals that it was a prank, he may still face trouble if the victim takes legal steps. 'Pranking' refers to the act of making a practical joke on a person usually in order to make them or others laugh. Mostly done by teenagers, pranking can be anything ranging from prank calling or pulling off a social experiment on passersby. It is done mostly by youngsters as a part of their mischief. But things can get out of hand if any of the victim takes it to the police. Not everyone stays in the same state of mind at all times. A person heading towards office wont have the same state of mind as the person heading home. You wouldn't smile back if you are sitting at home with your wife and someone calls you up to tell you that your only child was actually swapped at birth. Following the trend, Bangladeshi Moreover, a prank video uploaded on the internet that shows victim being pranked may hurt the victim's reputation. This is where the prankster may be charged under s.499 for Defamation. The section talks about any sort of publication that may harm the image of a person. So, before you think of getting more YouTube views, think of its consequences too! Pranking is acceptable if done maintaining public order and respecting one's sentiments. Consent must be taken from the prank victims before putting the videos on the internet. There is a common law principle called 'De Minimis Non Curat Lex' which suggests that law wouldn't punish you for trivial offences. Therefore, pranking is only legal if you act wisely!

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