RSS FeedHow lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)
Indefeasibility of title? Not that indefeasible in Kenya?
First posted on Commercial Law International on Oct 15, 2009.
By Charles Wanguhu
The caveat emptor rule dictates that an individual seeking to purchase land should ensure that he is dealing with the rightful owner. Therefore upon inspection of the register kept at the ministry of lands, an individual seeking to ensure the ownership of land would request the registrar for an official confirmation of search, the advantage of the official search is that it is given priority registration over all other transactions for a period of 14 days from the issue of the search.
However in the Mau forest in Kenya the government aims to evict thousands of families who are said to be on forest land. This is despite the fact that some of the settlers have valid title for the property which was a result of excision of forest land by the previous administration. A similar operation in 2005 resulted in thousands of people being displaced and claims of human rights violations by the evicting forces.
The new administration however views the issuance of the titles as void as in their view they were illegally obtained from the former administration. However, under the Principle of Indefeasibility the title of an innocent Purchaser cannot be set aside, even by the claims of a previous rightful owner. This is so, because the Register of Titles is conclusive evidence of the Purchaser’s rightful ownership of the land.
In the case of Maathai & 2 others v City Council of Nairobi & 2 other 1994 a case in which the Nobela laureate Waangari Maathai sought to stop the sale of a piece of land by the city council the court in its deliberations held that:
Registration of Titles Act Cap 201 of the laws of Kenya which provides inter alia, that the certificate of Title issued by the Registrar to a purchaser of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the indefeasible owner thereof …. and the title to that proprietor shall not be subject to challenge.”
The Kenyan government while well intentioned in conservation of forests has opened a pandoras box and thereby creating uncertainty in dealings in land. By ignoring the indefeasibility of first registration land transactions have become a gamble. A commission of inquiry into illegal/irregular allocation of public land revealed that a number of foreign embassy and consulates are actually built on former public land. It would be interesting to see whether the government would take similar measures against these missions as they are attempting to do with the families in the Mau forest.
An AFRICOG report available here looks at some of the recommendations of the Commission of inquiry and looks at the possibility or impossibility in implementing the recommendations.
No fear
- Experts vindicate woman trapped in Kenya
- DNA test proves identity of stranded Toronto woman
- Whose fault is it?
- ‘This nightmare will be over’
- Canada ignores desperate Mohamud — again
- McGuinty hammers Ottawa for ignoring stranded woman
- Ottawa’s shameful `imposter’ case
- Official identity loss
Many trash the government for hanging Suaad, our fellow Canadian, out to dry when she desperately needed help. By all means, the government deserves that. Trash hard.
But don’t forget another lesson of this story. When government officials have leeway, no one knows what’s on their mind. No one knows why they decide one way or another. No one can tell for now what on earth moved that low-level hack in our High Commission in Kenya to throw Suaad to the wolves. We should learn that when our life, rights, liberties, and security are at stake, government officials in charge must have no such leeway. They must follow precise rules.
There is a legal term for this freedom of maneuver, this leeway that officials have in making a myriad decisions that they make. It’s called discretion. The rule of law means, whenever possible, officials must follow the law rather than their own discretionary whims. Specific legal rules must bind Canadian officials who have the power to accept or reject our passport in some foreign country.
The world is so small now. Canadians should not fear international travel because our government can randomly dump us without justice and without hope. We should know exactly what the government will be obliged to do if anyone questions our passports. We should be guaranteed justice. We should have no fear.
Standing up for the Rule of Law
Note: This piece was subsequently published on March 26, 2009 in the StarPhoenix. Available online here
Due process is a long-standing Canadian principle. It is enshrined in our legal tradition as a safeguard against the denial of liberty. It is a part of our liberal democracy that distinctly separates us from the dictatorships scattered around the world today. Yet, certain Canadians are being apparently denied their basic rights as citizens.
Consider the case of Abousfian Abdelrazik. Since 2003, Abdelrazik has languished in limbo in Khartoum, Sudan and currently lives in the lobby of the Canadian embassy. His ill-fated trip to Khartoum in 2003 to visit his ailing mother ended in secret detention under the country’s notorious domestic security agency, which newly de-classified documents show acted on the request of the Canadian Security Intelligence Service (CSIS).
He was repeatedly detained for a total of nineteen months. No charges. No trial. No conviction. A Canadian citizen – arbitrarily detained at the behest of Canada, by a disreputable foreign regime whose president was indicted this month by the International Criminal Court for crimes against humanity. Abdelrazik says he was tortured by his Sudanese captors, and has the scars to show it.
Sudan’s dismal human rights record speaks for itself. CSIS agents visited and interrogated Abdelrazik during his imprisonment. Documents reveal that Canadian diplomats in Khartoum were told to not provide him with his right to consular support during interrogations by Sudanese and American officials.
Today, Abdelrazik lives in virtual exile – denied the right to come back to Canada and to his family. Sudan says it has no reason to hold him and has cleared him of the suspicions laid out by CSIS. It even offered to fly him back to Canada.
Although the federal government has tried to get Abdelrazik removed from an international no-fly list, it has still raised road-blocks to prevent his return. When he did find ways to return, like arranging a flight out of Sudan, he was refused a passport. Why?
It is alarming to see Sudan more committed to releasing a Canadian than us. When we unlawfully outsource the detention and interrogation of one of our own to an authoritarian state, then we are going down a frightening path of injustice.
Another troubling case is that of Canadian Omar Khadr – a story well known to many of us. Captured as a child soldier in Afghanistan at the age of 15 and held for more than six years at the Guantanamo detention facility without conviction, Omar is the last Western citizen languishing in a place that exists outside the norms of law. His Canadian lawyer, Dennis Edney, has said Omar is a broken person.
Although U.S. president Barack Obama has frozen “trial” proceedings at Guantanamo and is slated to shut the facility down, we have yet to intervene and repatriate this young citizen. This stands in stark contrast to other Western nations like the United Kingdom and France, which have already repatriated their nationals.
For ourselves and our country, some important questions need to be asked. What has happened to the value of Canadian citizenship? Are we being parochial and selective in upholding the rights of our citizens?
And, perhaps most importantly, have we learned from the perilous mistakes that were brought to light during the Arar Inquiry? At this point, it does not seem like we have.
Our government must provide answers and address the unjust plight of Abdelrazik. Indeed, his case and that of Khadr demonstrate a harmful and dangerous erosion of fundamental justice and must not be taken lightly.
At the same time, our courts exist for a reason and they constitute the proper forum to mete out justice with transparency and due process. Canadian courts have successfully convicted those charged with terrorism under the Criminal Code. For example, Momin Khawaja of Ottawa was found guilty of such offences in October 2008 and and was recently sentenced to 10.5 years of jail time.
Yet, for over five years, no grounds or evidence have been offered regarding Abdelrazik. And for six years, the Americans have failed to create a just process for Khadr that is consistent with legal norms and international law.
There is no doubt that national security and collective safety are critical in times like these. But the inalienable rights and citizenship of every Canadian must be upheld and respected.
Let us stand by the timeless Canadian edifice that defines our values and separates us from the agents of chaos and the regimes of repression: the rule of law. In our cherished democracy, real security is the preservation of not only human life, but also of human dignity.
Kashif Ahmed of Law is Cool is a Board Member of CAIR-CAN. Note that this piece is provided for interest alone.
Omar Khadr’s Guanatanamo Trial Suspended!
It’s over!
For now, anyway.
Staying true to his promise, Barack Obama has made it one of his first official acts as President to request a suspension of the military tribunal process in Guantanamo.
Omar Khadr is the first beneficiary of the directive. His “trial” was suspended this morning.
The suspension will last for 120 days so that the government can explore alternatives.
The legal maneuver appears designed to provide the Obama administration time to refashion the prosecution system and potentially treat detainees as criminal defendants in federal court or have them face war-crimes charges in military courts-martial. It is also possible that the administration could re-form and relocate the military commissions before resuming trials.
…
President Obama has acknowledged in recent interviews that shutting the facility is likely to be prolonged and complex. And the administration now faces a number of potentially daunting challenges to following through on the president’s campaign promise. Obama is expected to sign an executive order soon that will lay out in detail his plan to empty the facility.
(source: Washington Post)
The military tribunal process has been roundly criticized by human rights groups, lawyers and lay people alike as a violation of the rule of law.
In his inaugural address, Obama spoke these inspiring words, which I leave you with:
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.
We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort – even greater cooperation and understanding between nations.
