Friday 30 June 2006
Doing Charity by Killing People: The James Hardie Way
The Guardian’s columnist Simon Jenkins has declared 21st century to be “the age of charity”. This optimism seems to have been triggered partly by the unprecedented courage and leadership shown by Warren Buffett, the world’s second richest man, to donate to charities 80 per cent of his wealth. However, the age of charity may not turn out to be an unqualified good, for 21st century might also see totally uncharitable activities being passed on as charity.
Take, for example, the case of James Hardie. To sum up the saga, several companies of the James Hardie Group manufactured and distributed asbestos products in Australia for several decades in the 20th century. These products led to deaths and prolonged illness, and consequent fears of unknown liability. In order to limit (and to some extent preempt liability), James Hardie restructured its business and established a trust fund to compensate victims of asbestos-related diseases. The under-funding of the trust culminated in the Jackson Inquiry. Finally, in view of a robust naming and shaming campaign run by the asbestos victims groups and ACTU, Hardie accepted its ‘moral’ responsibility towards the victims and signed a Final Funding Agreement on 1 December 2005. A Special Purpose Fund (SPF), which will be making compensation payments over a period of at least 40 years, was established under the agreement. This funding agreement was, however, subject to several key pre-conditions. One of the pre-conditions was a tax exemption of the SPF as well as James Hardie’s contributions to it under the Australian tax law.
Recently, the Australian Taxation Office ruled that the SPF is not entitled to the tax exemption as a charity. But it agreed to treat Hardie’s annual contribution to SPF tax exempt under a revised “blackhole expenditure” law enacted in April 2006. James Hardie as well as other stakeholders reacted strongly to the first ruing of the taxation office. Hardie immediately asserted that no-grant of a charity status to SPF would undermine the viability of SPF. Victims group, on the other hand, felt disappointed and considered such ruling as ‘obnoxious’.
Leaving aside what law considers as a charitable activity for taxation purposes and why, are we not going too far in labeling James Hardie’s creation (SPF) and action (contributions) as charity? Knowingly exposing workers and others to asbestos hazards, restructuring and under-funding the trust fund, and then fleeing out of the reach of victims’ legal mechanism are not, if at all, healthy symptoms of a charitable deed. What people should be getting as rightful entitlements (but for an infirmity in law) is presented to them as a token of compassionate charity. Are there no sustainable differences between what many corporations did in the aftermath of the Tsunami and Hurricane Katrina on the one hand and what James Hardie is proposing to do for the asbestos victims? One could find commonalties between the two scenarios, but there are fundamental differences too. Owning responsibility and paying for one’s wrongs does not and should not become a charity merely because of legal loopholes. This is a difference too obvious to be ignored.
Take, for example, the case of James Hardie. To sum up the saga, several companies of the James Hardie Group manufactured and distributed asbestos products in Australia for several decades in the 20th century. These products led to deaths and prolonged illness, and consequent fears of unknown liability. In order to limit (and to some extent preempt liability), James Hardie restructured its business and established a trust fund to compensate victims of asbestos-related diseases. The under-funding of the trust culminated in the Jackson Inquiry. Finally, in view of a robust naming and shaming campaign run by the asbestos victims groups and ACTU, Hardie accepted its ‘moral’ responsibility towards the victims and signed a Final Funding Agreement on 1 December 2005. A Special Purpose Fund (SPF), which will be making compensation payments over a period of at least 40 years, was established under the agreement. This funding agreement was, however, subject to several key pre-conditions. One of the pre-conditions was a tax exemption of the SPF as well as James Hardie’s contributions to it under the Australian tax law.
Recently, the Australian Taxation Office ruled that the SPF is not entitled to the tax exemption as a charity. But it agreed to treat Hardie’s annual contribution to SPF tax exempt under a revised “blackhole expenditure” law enacted in April 2006. James Hardie as well as other stakeholders reacted strongly to the first ruing of the taxation office. Hardie immediately asserted that no-grant of a charity status to SPF would undermine the viability of SPF. Victims group, on the other hand, felt disappointed and considered such ruling as ‘obnoxious’.
Leaving aside what law considers as a charitable activity for taxation purposes and why, are we not going too far in labeling James Hardie’s creation (SPF) and action (contributions) as charity? Knowingly exposing workers and others to asbestos hazards, restructuring and under-funding the trust fund, and then fleeing out of the reach of victims’ legal mechanism are not, if at all, healthy symptoms of a charitable deed. What people should be getting as rightful entitlements (but for an infirmity in law) is presented to them as a token of compassionate charity. Are there no sustainable differences between what many corporations did in the aftermath of the Tsunami and Hurricane Katrina on the one hand and what James Hardie is proposing to do for the asbestos victims? One could find commonalties between the two scenarios, but there are fundamental differences too. Owning responsibility and paying for one’s wrongs does not and should not become a charity merely because of legal loopholes. This is a difference too obvious to be ignored.
Sunday 18 June 2006
Liability for abetting triple suicide at Guantanamo Bay
The triple suicide at Guantanamo Bay has been interpreted variously. Whereas the camp commander Rear Admiral Harry Harris considered the triple suicide as "an act of asymmetrical warfare waged against us", Colleen Graffy, deputy Assistant Secretary of State for Public Diplomacy, has seen them as a "PR move" to further the jihadi cause. Others have disagreed and interpreted suicides as an act of despair. To date, the US – the self-proclaimed messiah of human rights – has ignored almost unanimous pleas to close this legal blackhole. The only ray of hope is the much-awaited judgment of the US Supreme Court in Hamdan v Rumsfeld. In anticipation of this decision, even Bush seems to be softening his stance on the issue.
The circumstances under which attempts to commit suicide succeeded this time will be the subject matter of a military investigation. But this investigation is unlikely to explore whether the camp commanders and higher up administration could be held responsible for abetting these suicides. I think a case could be made out.
The prison authorities are under a duty of care towards all the Guantanamo Bay detainees, even if they are labelled as enemy combatants. In view of well-known harsh confinement conditions (such as solitary confinement, denial of due process and Geneva Conventions protections, almost no hope of being released) and several past unsuccessful suicide attempts, the camp commanders should have reasonably foreseen the possibility of these suicides. Arguably, the prison administration did not desire, intend, or provide active assistance in the triple suicide, but they knowingly created and sustained an environment which facilitated these suicides. A (legal) case for abetting suicides do exist, which might not be as tenuous as one was sought to be made in Jack McColum v CBS Inc. 202 Cal. App. 3d 989 (1988). [In McColum, the family of a teenager, who committed suicide while listening to certain recorded music, had unsuccessfully sued the composer, performer and producer of the music for negligence and encouraging the suicide through their music.]
The circumstances under which attempts to commit suicide succeeded this time will be the subject matter of a military investigation. But this investigation is unlikely to explore whether the camp commanders and higher up administration could be held responsible for abetting these suicides. I think a case could be made out.
The prison authorities are under a duty of care towards all the Guantanamo Bay detainees, even if they are labelled as enemy combatants. In view of well-known harsh confinement conditions (such as solitary confinement, denial of due process and Geneva Conventions protections, almost no hope of being released) and several past unsuccessful suicide attempts, the camp commanders should have reasonably foreseen the possibility of these suicides. Arguably, the prison administration did not desire, intend, or provide active assistance in the triple suicide, but they knowingly created and sustained an environment which facilitated these suicides. A (legal) case for abetting suicides do exist, which might not be as tenuous as one was sought to be made in Jack McColum v CBS Inc. 202 Cal. App. 3d 989 (1988). [In McColum, the family of a teenager, who committed suicide while listening to certain recorded music, had unsuccessfully sued the composer, performer and producer of the music for negligence and encouraging the suicide through their music.]
Saturday 17 June 2006
Cost of crossing the line
Just a quick update on the controversial internet poll run on a radio show. The Hong Kong Broadcasting Authority has directed Commercial Radio to offer a public apology and pay a fine of HK$140,000. On its own, Commercial Radio has also introduced an additional layer of in-house monitoring of its programs.
The other side of the story is that many Hong Kong students (according to a report about 20,000) have come out in support of the two radio hosts in an online forum. So, for some the internet poll that asked listeners to vote for the most popular artist for indecent assault was OK. Also consider that sexual harassment – as Ms Atty Ching Tsui-wan, the Director of TeenAids, pointed out at a recent conference – in Hong Kong schools is becoming more frequent in recent years. Do you see a connection?
Wednesday 14 June 2006
Freedom amidst secrecy!
Like the November 2003 secret-surprise visit, the recent visit of President Bush to Baghdad (not to Iraq!) was shrouded in secrecy. If one of world's most powerful person could not enter and visit Iraq freely, can one legitimately claim ordinary Iraqis to be living a life free from tyranny?
On a more general level, many things have changed since November 2003, but certainly not the two: the security situation in Iraq, and Bush’s rhetoric regarding his Project on Freedom and Democracy (PROFAD). One should not though be much surprised by this secrecy, because the PROFAD has been linked with the “war on terror”. And secrecy has been central to the US “war on terror” and is well-documented – from unilateral aggression, to memo to disregard the Geneva Conventions, Guantanamo Bay (including its military tribunals), Abu Ghraib, outsourcing of torture, suppression of military and civilian causalities, domestic spying, and lucrative contracts to Halliburton. Therefore, the task of selectively accomplishing the PROFAD is rooted in secrecy.
The world needs to unmask soon how secrecy could become central to the PROFAD.
On a more general level, many things have changed since November 2003, but certainly not the two: the security situation in Iraq, and Bush’s rhetoric regarding his Project on Freedom and Democracy (PROFAD). One should not though be much surprised by this secrecy, because the PROFAD has been linked with the “war on terror”. And secrecy has been central to the US “war on terror” and is well-documented – from unilateral aggression, to memo to disregard the Geneva Conventions, Guantanamo Bay (including its military tribunals), Abu Ghraib, outsourcing of torture, suppression of military and civilian causalities, domestic spying, and lucrative contracts to Halliburton. Therefore, the task of selectively accomplishing the PROFAD is rooted in secrecy.
The world needs to unmask soon how secrecy could become central to the PROFAD.
Monday 12 June 2006
From “most sexist female” artist to …?
Although I did not hope to open Glocal Canvas with this kind of post, the issue was too compelling to ignore.
In Hong Kong, Sammy Leung Chi-kin and Kitty Yuen Siu-yee host Commercial Radio 2’s So Fab radio show. On Friday, 2 June 2005, they launched an internet poll on their show asking listeners to vote for “the most popular singer/actress for indecent assault”. In view of a public outcry, the title of the poll on Sunday was changed to “the sexist Hong Kong female artist”, for the former poll was considered insulting and degrading to women. [South China Morning Post, 6 June 2006] Perhaps, the original poll also fell foul for abetting a criminal activity. Now the two hosts have offered an apology, and the Commercial Radio has suspended the popular duo (sent on no-pay leave!) as well as their program for two months. The issue will also be investigated, among others, by the Broadcasting Authority.
Nevertheless, this controversy showcases the prevalent attitude towards women even in a free-developed society like Hong Kong. By changing the poll title, we are made to believe that naming sexist women would be perfectly consistent with showing respect to women. But this may not be the case. To a great majority of populace, especially in developed societies, the term ‘sexy’ – which as per the Oxford Dictionary (2nd edn, 1989), ‘sexy’ means “sexually attractive or provocative, sexually exciting” – no longer rings any alarm bell. However, this term too is an instrument of women subjection (just do a Google search of the term ‘sexy’ to find this out). After all, why would males fancy and find sexy some female artist more than others? It may not merely be because of their appreciation for nature’s beauty. In the guise of bringing freedom and empowerment to women, constructs such as ‘sexy’ incrementally results in nothing by male dominance. It is a vicious circle aimed at undermining the dignity of women: first women are made to outclass each other in a race for infinite sexiness and then they are made a commodity for sexual and other exploitations. For example, do not some still suggest that ‘she’ invited rape or indecent asault by (not) wearing a particular kind of clothes or by behaving in a particular way?
My fears are that as ‘sexy’ has been made to appear an innocuous adjective now, in future even voting for a woman whom one would like most to indecently assault might be considered appropriate and acceptable (after all, the named women should take pride and feel powerful for being such a desirable person!) The critical point is not the social or lingistic change, but who are benefitting by such change.
In Hong Kong, Sammy Leung Chi-kin and Kitty Yuen Siu-yee host Commercial Radio 2’s So Fab radio show. On Friday, 2 June 2005, they launched an internet poll on their show asking listeners to vote for “the most popular singer/actress for indecent assault”. In view of a public outcry, the title of the poll on Sunday was changed to “the sexist Hong Kong female artist”, for the former poll was considered insulting and degrading to women. [South China Morning Post, 6 June 2006] Perhaps, the original poll also fell foul for abetting a criminal activity. Now the two hosts have offered an apology, and the Commercial Radio has suspended the popular duo (sent on no-pay leave!) as well as their program for two months. The issue will also be investigated, among others, by the Broadcasting Authority.
Nevertheless, this controversy showcases the prevalent attitude towards women even in a free-developed society like Hong Kong. By changing the poll title, we are made to believe that naming sexist women would be perfectly consistent with showing respect to women. But this may not be the case. To a great majority of populace, especially in developed societies, the term ‘sexy’ – which as per the Oxford Dictionary (2nd edn, 1989), ‘sexy’ means “sexually attractive or provocative, sexually exciting” – no longer rings any alarm bell. However, this term too is an instrument of women subjection (just do a Google search of the term ‘sexy’ to find this out). After all, why would males fancy and find sexy some female artist more than others? It may not merely be because of their appreciation for nature’s beauty. In the guise of bringing freedom and empowerment to women, constructs such as ‘sexy’ incrementally results in nothing by male dominance. It is a vicious circle aimed at undermining the dignity of women: first women are made to outclass each other in a race for infinite sexiness and then they are made a commodity for sexual and other exploitations. For example, do not some still suggest that ‘she’ invited rape or indecent asault by (not) wearing a particular kind of clothes or by behaving in a particular way?
My fears are that as ‘sexy’ has been made to appear an innocuous adjective now, in future even voting for a woman whom one would like most to indecently assault might be considered appropriate and acceptable (after all, the named women should take pride and feel powerful for being such a desirable person!) The critical point is not the social or lingistic change, but who are benefitting by such change.
