On writing a poem – or not

2017-Badali JoelBy Joel Badali

I wanted to write a poem at first.

It’s been five years since my last excursion living abroad and I think I came at this opportunity with less of the wide-eyed enthusiasm I had in my early twenties, and more with the cynicism of law student instilled with a rote way of learning and thinking.

The socio-political and legal circumstances of Serbia seem ripe for an outsider, particularly a law student, to scrutinize in a human rights essay. International law has condemned the Serbian government for war crimes following the dissolution of Yugoslavia and the International Criminal Tribunal for the Former Yugoslavia continues today. Issues at the intersection of race, gender, sexual identity, and disability still pervade legal discourse not only here but are evident in Western media outlets that tout the purported elevated level of social stability found in countries such as Canada through comparisons to Serbia’s recent racist incidents at soccer matches and week-long protests in Belgrade.

“You must hate us” joke some my new friends in Belgrade when they find out I’m from Canada. But amidst all of the vilification the Serbian government from international bodies, the subtlety of personal relations belie the popular narratives of Serbia’s socio-political and cultural situation. The discourse around these issues are, and feel much more complex when you meet the people they affect, instead of reading about the government officials that effected Serbia’s precarious economic situation.

What would writing a poem about this experience have contributed to my understanding of these issues? I thought a poem would capture the emotions and lack of logic behind seeing the reality for what it is and consequently yet inexplicably developing the empathy that I – uncharacteristically for a law student— now have gained. On top of that, a poem might capture the romance and rhythm of Belgrade city life from the pounding basslines of Serbian turbo-folk to Euro-headbanger classics like Abba remixed meticulously to match the hypertrophic emotion of the local weight room I frequent. Meanwhile, emotion captures the confusion of gender dynamics from men acting like they thought Eminem lyrics were meant to be taken literally (you’ll have to ask me about it) to men and women resisting the patriarchy despite the rampant objectification of women on bus ads and billboards (again, ask me about it). My summer placement is with Disability Rights International’s Serbian chapter Mental Disability Rights Initiative-Serbia (MDRI-S) however has to do with forms of the patriarchy which manifest at the crossroads of disability rights and gender-based violence.

Much of MDRI-S’ work is in the area of human rights advocacy for women who are institutionalized in psychiatric facilities across Serbia. In contrast to international standards, provided for in the Convention for Rights for People with Disabilities for example, and legal precedents provided for by European tribunals for human rights, the situation of institutionalized women in Serbia verges on major human rights abuses, if not outright systemic psychological and physical torture. Institutionalized people with disabilities, particularly women are subject to maltreatment and unsafe living conditions as a result of under-staffing and lack of understanding of psychiatric illness. Most women remain institutionalized for life, with few opportunities to be released, a prospect that increases quickly once institutionalized. Women not only experience psychological violence, but physical violence and in some cases forced sterilization and unconsented abortions, effectively negating the legal capacity of women with disabilities.

My understanding of these human rights abuses resonated with the theoretical and historical practical issues in psychiatry made familiar to me in my post-undergraduate work in psychology, studying issues that were (until now) almost considered academic psychology folklore.

Psychiatric asylums, existent for centuries in medieval times originally institutionalized people who were considered to have literal internal demons, and also used for women who were considered to be witches. Although the rationale for the continuation of psychiatric institutions continued to evolve through the centuries, the lack of ethical integrity behind their unjustified use remained. In Canada, their use came to an end in the 1970’s, known as the psychiatric-consumer movement yielding new forms of mental health care, modern facilities such as CAMH in Toronto, and successful community programs such psychiatric peers support groups.

With regard to gender-based violence and depicted in movies such as Girl Interrupted, the effects of institutionalization not only worsens many womens’ conditions, but also prevents any reintegration or inclusion into mainstream society. The psychiatric-consumer movement that ushered in an era of client-centred service, enabling people afflicted by mental disabilities to take care of themselves, is merely an aspiration in Serbia, leaving the current state of psychiatric care something reminiscent of Brittany Murphy’s acting career at its early peak.

Interestingly, the psychiatric consumer revolution has been dubbed using a term emergent from one of the darkest periods of human history through the phrase “nothing about us without us”, a term which gained popularity during World War 2 not only in regard to the Nazi party’s draconian disability laws, but also with regard to the decision-making regarding Europe’s initially permissive attitude towards Germany’s annexation of parts of neighbouring countries.[1]

I was astonished to learn then, that Serbia was still in the midst of institutionalization, replete with apparently common issues of legal capacity deprivation and maltreatment made notorious in the book One Flew Over the Cuckoo’s Nest. Tucked away in Serbia’s bucolic pastures, issues related to the rights and well-being of people with disabilities might have remained on the government’s back-burner without the tantalizing prospect of accession to the European Union.

But it’s difficult to reconcile the notion that human rights issues are predicated on political reforms, and not the compassion that one would assume catalyzes most human rights movements. However, from my experience working with counselling services and speaking to mental health service providers, psychologists, and psychiatrists both in Serbia and back home, the issue of institutionalization is still divisive even in Canada. Moreover, I’ve learned to understand that where someone stands on these issues related to human rights is more nuanced than right or wrong.

Morality is influenced by culture, history, economy, and lived experience, and so peoples’  understanding of the dilemma of institutionalization is understandably not uniform. Human rights are not  static, although we like to think they are, necessitating that human rights movements engender discussion from all levels of governance, but especially the groups affected. It seems obvious that decisions about people with disabilities’ rights ought not be made without them. But at the same time, someone’s morality ought not be judged on the basis of their political upbringing. Compassion is dynamic and often involves struggling with our own beliefs in understanding others. This struggle was poignantly real in a two-day training with staff from psychiatric institutions who themselves struggled to relay the efforts they take to provide adequate care and their desire for social reform, yet the issues of funding and systemic issues such as deeply-embedded societal sexism. The notion that people  working in these institutions display such compassionate attitudes drives me to understand what morals underlie the government’s continued, yet costly, belief in institutionalization. Ultimately, finding out what values guide these high-up decisions is the work of civil society organizations on the front lines of advocacy and cross-sectoral dialogue.

Compassion shows itself in not only between humans, but in our interactions with our environment, a life lesson I stress is key to building a prosperous and caring society.  Over the course of my three month visit, I noticed—rather, felt — the familiar conflicting feelings I harbour about my life-long  love for animals. Known among my peers for my free-ganism, or being a vegetarian unless the opportunity to eat  meat “free”ly presents itself, I generally espouse the values of vegetarianism not because of animal rights specifically but because of the impact that moderate meat consumption represents in terms of reducing excessive consumerism, unnecessary local environmental degradation, and increasing detachment of Westerners from mass food production and its effects  on climate change.

Weary of the sense of Western delusion and entitlement that this purported vegetarianism by convenience carries with it, I am open to “meat-eating” experiences when immersed in new cultures.  Meanwhile, my conflicting relationship with animals manifested itself in a second, and perhaps more unsettling, way. I found myself again faced with the familiar task of  balancing the Western stereotype of pandering to stray dogs’ needs while virtually appearing ignorant to the plight of people who are homeless or impoverished in Belgrade. Having lived in rural Korea where eating certain  types of dogs was acceptable (although also illegal), being seen petting dogs on the street looks as asinine as stopping to pet pigs on a Canadian highway (which would never happen, right?[2]). Despite this, my fear of revealing myself to be the naive Western tourist in Belgrade was not so certain of a fate as in Korea (issues of race notwithstanding— here I can pass for Serbian). Indeed, I noticed many people in Belgrade perhaps experienced the same cognitive dissonance that I did— the internal conflict of owning a dog and treating it well in spite of others’ socio-economic circumstances.

Ownership of canine companions is quite common, but strays are equally visible around town or in the city’s many parks. Nonetheless, it was not uncommon for locals to be friendly with stray dogs and cats, and meanwhile denizens’ lay understanding of Serbia’s human rights issues, political situation, and inequality among certain demographics was equally evident. I experienced the reality that some Serbians are equally conflicted about their love for dogs firsthand. Midway through my internship, my best friend, and dog —who I had for twelve years and was deemed perfectly healthy at his yearly check-up only a week before I left to Belgrade— suddenly became seriously ill and had to be put down. I didn’t speak about the event at work but posted a link of Facebook about all the lessons I learned from having my silly dog as a best friend.[3]

A few days later, at the end of the work day, one of my supervisors approached me once everyone had left and, like a scene from All Dogs Go to Heaven, said, “Hey, I saw about your dog on Facebook. And I want you to know I understand how hard it is. People think maybe it’s crazy, and selfish, but when I lost my dog, I went through the same thing.” Yes, I was heart-broken, but stunned by the outpouring I received from friends back home, friends who have owned dogs, friends from many different provinces (and territories), friends from different socio-economic backgrounds, all telling me that I was sane. True, although maybe not in the long term.

But my love for a dog was not as selfish as I had feared, even seven thousand kilometers away from home. All this to say that I truly felt less ridiculous for my lifelong belief that the way we treat dogs is important for the very reason  that the way we treat each other is reflected in the way we treat animals.  It’s been said in other tropes, like that a society is only as strong as its weakest member, but my personal and ‘normative’ assumption comes from my lived experience. My understanding is that a positive relationship to animals fosters compassionate communities, a respect for life, and a sense of humility knowing that we are not above anyone else. Writing this, I have no idea what the relationship between my love for my dog has to do with human rights, much less law. But I think by removing myself from the legal context and returning to my values that brought me to law school is a reminder of the purpose and foundation of law. Law is often predicated, albeit debatably, on normative values, and judges often make law based on values and not pure interpretation of law, as suggested by Justice Kirby, an Australian judge who has sat on the United Nations Human Rights Council.[4]

Human rights legal frameworks thus fundamentally emerge from peoples’ common understandings of justice, empathy, and compassion. Sharing stories of hardship, whether it’s the “pet”ty loss of an animal friend or the abuses facing institutionalized women with disabilities, forms the foundation a society that cares about change, whether merely normative or purportedly ‘strictly legal’. The way we treat each other is reflected not only in the law, but more concretely through societal norms. These reflections sum up my feelings, perhaps inadequately and only insofar as a paper can convey, on my up-close and personal experience working at the cross-sections of international law, human rights and disability.

I may be less jaded now, but I still didn’t write a poem.


[1] Braun, K. (2015). Nothing about Us without Us: The Legal Disenfranchisement of Voters with Disabilities in Germany and Its Compliance with International Human Rights Standards on Disabilities. Am. U. Int’l L. Rev.30, 315.

[2] https://www.theglobeandmail.com/news/national/judge-acquits-woman-in-pigs-water-case/article34893404/

[3] The official eulogy: https://www.facebook.com/joel.badali/posts/10102111970846499

[4] “Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced […] Honesty that this is so helps to transform the debate that follows into a consideration not only of the elements of past authority but also of relevant considerations of principle and policy. […] So long as human language remains imprecise and human capacity to predict the future limited, it will fall to judges to fill the gaps in the law’s rules.” (p. 30)

Kirby, M. D. (2004). Judicial activism: authority, principle and policy in the judicial method. Toronto: Thomson Sweet & Maxwell. Retrieved from https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Judicial_Activism.pdf

Safeguards – Regional and International Protections on the Rights of Children

Katerina LagasséBy Katerina Lagassé
The Adhikain Para Sa Karapatang Pambata (AKAP)[1] Child Rights Desk of the Ateneo Centre for Human Rights works with different stakeholders to advocate for children and has contributed to drafting legislation and building programming for the ASEAN region in partnership with Save the Children.

Currently, AKAP is compiling research on children and corporate social responsibility. In the ASEAN region, children are affected by adverse business practices. They may be affected either directly, by working illicitly as underage labourers, or through other means such as being relocated with their families as a result of land expropriation by corporations or the government, through forced migration due to social and or economic pressures and by being exposed to toxic substances from resource extractive industry practices.

Supporting children’s rights requires businesses to continually and diligently assess their potential human rights impacts and mitigate the issues that are identified. All ASEAN member States have ratified the United Nations Convention on the Rights of the Child (CRC) and continue to implement domestic laws that follow the CRC framework.[2]

There are different social, economic, and political environments in the ASEAN States which create obstacles to the effective implementation of the CRC. All ASEAN member States are parties to the ASEAN Convention Against Trafficking in Persons, Especially Women and Children. This convention recognizes the proximity of borders and promotes regional cooperation to effectively “combat trafficking in persons, especially against women and children, and to ensure just and effective punishment of traffickers […]”[3]. However, ASEAN member States are each affected differently by the impacts on children associated to business practices. As mentioned these impacts include exploitative child labour and human trafficking and other factors that result from social and economic disparity that shape vulnerable populations (migration, HIV and AIDS, Natural disasters, emerging diseases and conflict).[4]

Certain provisions of the CRC are particularly relevant to business responsibility and state protection.[5] As per the CRC, State parties  “recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development” and are required to “take legislative, administrative, social and educational measures to ensure the implementation of the present article(s)”.[6] Recognition in particular requires providing a minimum age for employment, regulation of hours and conditions of employment, and imposing penalties or sanctions to ensure the provisions are effectively enforced.[7] States are required to protect children from sexual exploitation and sexual abuse[8], from trafficking[9], and against any form of exploitation that prejudices a child’s welfare.[10] Furthermore, States are required to implement penalties for abuses[11] and to take measures to promote the physical and psychological recovery and social reintegration of children that are considered victims of “neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” in order to promote the “self-respect and dignity of the child”.[12] According to the CRC, State parties are required to implement child protection measures to ensure the government fulfills their commitment. As of June 2017, Indonesia is the only ASEAN member State to launch a National Action Plan on Business & Human Rights.[13]

[1] Akap is a Filipino term that means “to embrace”.
[2] “Situation Review of Children in ASEAN: A report by UNICEF to the Association of Southeast Asian Nations” (December 2007), online: UNICEF < https://www.unicef.org/eapro/Asean_book.pdf > [UNICEF, “Situation…”].
[3] ASEAN Convention Against Trafficking in Persons, Especially Women and Children (entered into force November 21, 2015) at art 1(a), online: Interpol <https://www.google.ca/?gws_rd=ssl#q=asean+convention+on+human+trafficking+interpol >
[4] UNICEF, “Situation…”, supra note 8 at 9.
[5] See CRC, supra note 9 at arts 32, 34, 35, 36, and 39.
[6]Ibid at art 32.
[7]Ibid.
[8]Ibid at art 34.
[9]Ibid at art 35.
[10]Ibid at art 36.
[11]Ibid at art 32.
[12]Ibid at art 39.
[13] FIHRSST, “Indonesia publishes National Action Plan on Business & Human rights; first to launch NAP among Asian countries” (25 June 2017), online: Business & Human Rights Resource Centre < https://business-humanrights.org/en/indonesia-to-develop-a-national-action-plan-on-business-human-rights#c159131 >.

The Ateneo Human Rights Center (AHRC) and Human Rights Education

Katerina Lagassé By Katerina Lagassé
The Ateneo Human Rights Center (AHRC) of the Ateneo de Manila School of Law facilitates an internship program that provides an opportunity for Ateneo law students to gain experience in human rights advocacy and alternative lawyering. This program provides students with an understanding of the “vulnerable sectors of Philippine society”.[1] Throughout the year, different batches of students participate in the internship program. There are three main activities the Semestral Break Internship program (two weeks), the Summer Internship program (2 months), and the Graduate Internship Program (yearlong).[2] Subsequent to the internship, students continue to support the program and the centre by generating activities and research that supports human rights advocacy.[3] The summer program is unique because it includes a week-long immersion in an Indigenous community that is followed by an internship placement at human rights groups around the country. The mandate of these organizations ranges from addressing issues related to the environment, children, Indigenous peoples, urban poor, women, fisher folk, detention prisoners, and migrants (to name a few).[4] Each placement allows students to gain an invaluable hands-on experience that exemplifies the barriers that exist to access to justice and the importance of alternative lawyering in the Philippines context (and abroad).

In Atty. Marlon J. Manuel’s article “Lawyer with the Poor”, that is reproduced in the Training Manual for Paralegals (and interns), he deconstructs the concept of alternative lawyering. For Atty. Manuel, it is a form of lawyering that uses legal tools and works through the legal system to address social issues, but is not limited to solely providing legal aid.[5] Alternative lawyering is distinct from traditional conceptions of human rights lawyering in that it focuses on “economic, social and cultural rights rather than on civil and political rights” while “seek[ing] to effect societal change”.[6] This form of practicing the law requires understanding the precarity of social relationships and circumstances that perpetuate injustices and necessitates working with the marginalized not for them.[7] Atty. Manuel’s legal career reflects this philosophy and practice which the interns were able to witness in the documentary on the struggle of the Sumilao Farmers before commencing their internships.

Prior to departing on the immersion, students undergo the basic orientation seminar and read the Training Manual for Paralegals. During the seminar, presentations by different specialists provide a framework to understanding Human Rights in the national context. This year, the presentations included: Alternative Lawyering (Atty. Anmau Manigbas, AHRC), Legal Aid and Client Interview (Atty. Kenjie Aman, ALSC), Children’s Rights (Atty. Nica Yan, AHRC – AKAP), Refugees, Statelessness and Internally Displaced Persons (Atty. Anmau Manigbas, AHRC), The Environment and Human Rights (Usec. Ipat Luna, Department of Environment), Peasant Farms Section and Agrarian Reform, Human Trafficking – Modern Day Slavery (Atty. Vida Verzosa, International Justice Mission), Women’s Rights and Gender Sensitivity (Atty. Nayie Caga-ana, Urduja-AHRC), Indigenous Peoples’ Rights (Atty. Ma. Vicenta De Guzman, PANLIPI), Criminal Justice System (Atty. Iyok Abitria, HLFA), and Justice Reform in the Philippines  – Hustisya Natin (Atty. Tonet Ramos, Alternative Law Group).

Atty. Ma. Vicenta De Guzman’s introduction to Indigenous Peoples rights in the Philippines and the organization PANLIPI demonstrated the importance of providing paralegal trainings to Indigenous and other rural communities. In particular, PANLIPI supports and empowers indigenous communities to gain control of their Ancestral Domain and maintain their self-determination. These forms of training provide community members with the tools required to advocate for their rights and understand the legal framework which effects their rights. Each presentation contributed to unpacking the concept of alternative lawyering in the Philippines and how this form of legal practice creates valuable social networks and empowers people to advocate for their rights. The immersion experience as well as the internship placement will be carried by the students throughout their professional career regardless of what legal stream they decide to follow – as attested to by past interns and the AHRC team.

[1] Training Manual for Paralegals, A publication of the Ateneo Human Rights Center (2010), p. 101.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid at 6.
[6] Ibid.
[7] Ibid at 8.

Science Fiction and Empiricism: On Imagining and Measuring a Better Future

Greenberg AnastasiaBy Anastasia Greenberg

Hanging unassumingly on a wall in the hallway that divides the Research Department from several other departments at One Earth Future Foundation (OEF) is a framed version of OEF’s Institutional Logic Framework: a manifesto followed by a sort of “ten commandments” listing the organization’s core values. This mundane framed text is sandwiched between walls that are adorned with large colourful emotionally provoking photographs taken across several countries in sub-Saharan Africa – quite the juxtaposition. While OEF staff seem to pay little attention to this moral code passed down to them by the Board of Directors; the upper management, on the other hand, seem to taut these phrases in an almost cult-like fashion at every staff meeting. One of these “commandments” – my personal favourite – is: “we are relentlessly empirical”. OEF clearly has a penchant for hard data and quantitative research methodology, which is why I was surprised to walk into a development talk one day at the office led by a PhD graduate who has decided to venture outside the academic lines by pursuing science fiction.

The project that was being presented, led by Dr. Andrew Merrie, is called Radical Ocean Futures. Using a method called “science fiction prototyping”, Merrie wrote a compilation of four science fiction stories to depict four different future scenarios for the world’s oceans, integrating some predictions loosely based on scientific research on ocean health. Two of the scenarios were dystopian. In one, ocean life has died off and humanity with it, leaving behind a sole surviving fisherman. In the other, a complete industrialization of the oceans has taken place. The last two scenarios are more utopian: humanity survives sea level rise by living in underwater cities, and the most favorable scenario is that in which humanity succeeds at a sustainable ocean future, featuring robots responsible for cleaning and upkeep of ocean health. What’s more, is that Merrie also commissioned a high-profile concept artist, Simon Stålenhag, to create incredible digital artworks to represent each sci-fi scenario.

While I found all of this engaging and entertaining from an artistic point of view, what really struck me was the audience that Merrie was able to target outside of sci-fi nerds. News outlets picked up the story immediately. Most impressively, Merrie was recently invited to present this work at the United Nations Ocean Conference, with Stålenhag’s artwork displayed throughout the event. Academics from the environmental sciences have been warning us about the grave realities of climate change effects on the oceans for decades, but apparently science fiction and art were the channels that could get policymakers to tune in.

This got me thinking about the word “impact”: what does it mean and how do we measure it? In a world that is increasingly data-driven, OEF is feeling that thirst for empiricism. While the Radical Oceans project is only loosely based on actual empirical information, OEF was drawn by the perceived “impact” that it was having on their stakeholders of interest. OEF has been undergoing some major changes to their organizational structure and mandate, and a major part of this change will be to solidify a way to measure the organization’s social impact.

Coming from an academic background, the word “impact” and its measurement has always meant something very specific to me. A scientist’s “impact” is measured by a very precise formula that takes into account the number of publications that one has and the number of citations that each of those publications has accumulated. This essentially measures how influential one’s work has been on the scientific community, but not necessarily beyond those academic boarders.

My connotation of the word “impact” has really started to evolve. OEF is a multifaceted NGO that aims not only to have others cite its research and policy reports but to actively facilitate peaceful conflict resolution in fragile states. Impact in this realm is really hard to measure. However, OEF is also “relentlessly empirical” and it is difficult to pride themselves in this regard without any tangible measure of their impact on peace.

Peace is not only difficult to measure, but even to define. At staff meetings, conversations constantly revolve around concepts of “negative” versus “positive” peace and which of these OEF should concern themselves with. Negative peace is the absence of violence and war. This is relatively simple to measure, the so called “body bag count” will do. The Global Peace Index (GPI) is a sophisticated attempt by the Institute for Economics and Peace to measure such negative peace. The GPI gives a peacefulness score for every country based on several factors including: numbers of internal and international violent conflicts that a country is involved in, levels of violent crime, political instability, as well as military expenditure. The GPI is updated on an annual basis so that progress over time can be assessed. Of course, even measuring such negative peace statistics accurately, as the GPI tries to do, is just the first step in figuring out whether a small organization like OEF has any causal role in the measured progress towards peace.

Positive peace on the other hand, deals with structural violence, issues such as: poverty, discrimination, inequality and other social injustices. Negative peace is reactive, while positive peace is proactive. While even measures of negative peace can be highly contentious, positive peace is substantially more difficult to define and measure. Nevertheless, the Positive Peace Index tries to do just that by considering the effectiveness of government institutions, levels of corruption, freedom of information, and so forth.

Although such complex information is aggregated into numbers, the data tells a rich story much like those sci-fi scenarios. These data come with their own artistic depictions, albeit less awe-inspiring. The picture below shows that the PPI has been improving on average across countries for the past decade, with about three quarters of all countries showing an improvement in positive peace. These data seem to point towards the possibility of a more utopian future scenario. Quantifying peace in such a manner has always been politically controversial, especially when dealing with governments of countries who score low on these “Western” standards of peace. This is a legitimate criticism given how many facets of life an index such as the PPI will inevitably omit.

Given that peace is such an elusive concept, is it futile to attempt to measure it and the social impact of NGOs like OEF? As Steve Killelea, founder of the Institute for Economics and Peace, has said: “If you don’t measure peace, how can you understand it?“. Thinking back to science fiction prototyping in the context of the future of peacebuilding, I can imagine a dystopian scenario in which we have given up hope on measuring peace and the world has spiraled into perpetual violent conflict. On the utopian end of the spectrum, a meaningful way of measuring social impact and peace has become a reality. In this future, we can even diagnose early signs of political conflict and initiate the right preventive measures – a “positive peace” approach. To get to this utopia, we need an empirical and critical approach that challenges the meaning of impact, peace, and a deep understanding of the data that shed light on these issues. And maybe a little art can help too.

 

The Exclusion of Women’s Interests in India’s Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013

Alexa FranczakBy Alexa Franczak

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act (LARR), 2013 came into force on January 2014, replacing the Land Acquisition Act, 1894. Meant as a reforming piece of national legislation to replace other laws on land acquisition within India, the Act standardized compensation in cases of land acquisition and created the legal obligation of rehabilitation and resettlement. The preliminary provision of the Act states that “the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post-acquisition social and economic status and for matters connected therewith or incidental thereto.” However, the actual provisions of the LARR 2013, and the subsequent amendment ordinances and bills modifying the Act, indicate that this is not likely to be the outcome for most women displaced by land acquisition. Naturally, ‘women’ are not a homogenous group and not all of these points reflect the actual realities of all Indian women equally. Nevertheless, the lack of recognition of certain women’s realities creates the potential to further marginalize women in cases of land acquisition, and risks to disproportionately exclude women from the benefits and rights that the LARR is meant to confer.

Control and legal ownership over property remains crucial to women’s empowerment. Evidently, land acquisition undermines the accumulation and retention of assets. However, the consequences of landlessness and lack of ownership over immovable property for women seem to be especially dire. Bina Agarwal’s work on women and property in Asia has well documented the link between land ownership for women and security: land ownership guarantees a source of economic support in cases of desertion, widowhood, or divorce. Property ownership is hypothesized to increase a woman’s sense of self-worth and reduce her tolerance to violence, as it increases a woman’s bargaining power.[1] In contrast, lack of ownership increases women’s vulnerability and dependence on others who are propertied, thus linking women’s property ownership to security and independence. The LARR offers compensation based on a market formula without any guarantee of property to be granted in equivalence, which undermines the interests of women in retaining property. The compensation sums are not sufficient to generate security for displaced women in the same manner as property. Asset ownership and control rights are more beneficial to women’s empowerment than other alternatives.[2] The link between women’s wellbeing and ownership of property should not be ignored in cases of land acquisition, as acquisition evidently removes the security that comes with property ownership.

The LARR is blind to the realities of most women, as the compensation awards and the rehabilitation and resettlement allowances offer the most to individual land owners. This implicitly excludes women from receiving any right or benefit in the process of land acquisition due to women’s historical and ongoing exclusion from land ownership, especially in cases of succession. Even with legislative reforms meant to strengthen women’s claim and retention of property rights, the reality is that very few women hold property rights.[3] These legal guarantees of women’s right to property are often not enforced privately or publically, especially in cases of succession. Personal, religious, and cultural customs and practices continue to deny women ownership rights, inhibiting the accumulation of property. It is often the case that women do not assert their rights, or are made to sign away their legal rights to land to avoid family conflict.[4] Accordingly, women are disproportionately excluded from receiving compensation in cases of land acquisition, since the LARR Act emphasizes compensation solely for the legal owner or tenant of the acquired land.

The Act entitles non-land-owning stakeholders allowances in the rehabilitation and resettlement provisions if they qualify, but these entitlements are defined in a way which creates the potential to disproportionately exclude women. The award provisions do not reflect the economic and employment realities for most women in the labour market due to the prevalent underestimation of women’s contributions to household incomes. Women’s contribution to income generation remains undervalued as it is often seen as an extension of domestic work, limiting the recognition of the “economically gainful nature of women’s work”.[5] Women workers tend to predominate in difficult to measure informal sectors, such as unpaid family work, house work, and subsidence work, thus making it difficult to quantify and incorporate women’s work.[6] This holds especially true for women in the agricultural sector, which accounts for the majority of rural women’s work and continues to increase. Despite this, women’s roles are not fully recognized and women are often considered marginal workers on family farms and enterprises.[7] Figures indicate that above 40% of the rural female workforce in India is unpaid for their work, and is primarily engaged in agriculture.[8] Since women’s work is often not a source of income or is undervalued as one, many women will be excluded from the entitlements since they are not recognized by the LARR as earning a livelihood, which is a necessary requirement for qualifying. Additionally, the nature of women’s labour might result in acquisition officials not qualifying women’s work as that which is affected by acquisition. In order to include women interests, the LARR must expand the definition of affected family to reflect the reality of women’s work, especially the fact that women’s work is often unpaid.

For women who do earn a livelihood, the award provisions do not go far enough to ensure the rehabilitation of women impacted by land acquisition. Land acquisition creates joblessness as it impacts employment provided from land and reduces employment generation, as the jobs provided from the acquired land, like agriculture, are not replaced. The LARR offers those whose livelihoods are affected an annuity or payout per family, or a guarantee of employment to only one person in the family unit. These award entitlements overlook the impact on women’s livelihoods as it does not consider multi-person households that are dependent on the economic contributions of various members, especially if only one member of a multi-person household is guaranteed employment post-acquisition. Studies of post-acquisition communities found a gender bias in situations where employment is only offered to one family member, as the employment opportunity will go to the most eligible male in the family unless the family is female headed.[9] Additionally, the LARR rehabilitation and resettlement schemes to not focus enough on the impacts of acquisition for agricultural workers, especially as the land depended on is no longer available. Women still disproportionately rely on rural agriculture for employment, and women with agricultural skills face difficulty in transferring those skills to new industries, limiting their mobility into non-agricultural work post-acquisition.[10] Women will not only be deprived of the livelihood they depended on, but will also not be able to obtain employment post-acquisition. Land acquisition impacts the livelihood of women, yet the LARR does not seem to recognize the effects of acquisition or the burden of unemployment for women.

[1] Pradeep Panda and Bina Agarwal, “Marital Violence, Human Development and Women’s Property Status in India,” World Development 33, no. 5 (2005): 842.

[2] Govind Kelkar, “Gender and Productive Assets: Implications for Women’s Economic Security and Productivity,” Economic and Political Weekly 46, no. 23 (2011): 63-65.

[3] Rahul Lahoti, Sucharita J Y, and Hema Swaminathan, “Not in Her Name: Women’s Property Ownership in India,” Economic and Political Weekly 51, no. 5 (2016): 17-19.

[4] N.C. Saxena, N.C., “Land, Livestock and the Rights of Women in Rural India,” in Women, Land and Power in Asia, eds. Govind Kelkar and Maithreyi Krishnaraj (New Delhi: Routledge, 2013), 241, 246.

[5] Ibid, 226.

[6] Chaya Degaonkar, and Gills, Dong-Sook, “The Economic Reform and feminisation of Labour in Agriculture” in Women and Work in Globalising Asia, eds. Dong Sook Gills and Piper Nicola (London: Routledge, 2002), 74.

[7] Swarna S.Vepa, “Feminisation of Agriculture and Marginalization of Their Economic Stake,” Economic and Political Weekly 40, no.25: (2005): 2563-2564.

[8] Indrani Mazumdar, and N. Neetha, “Gender Dimensions: Employment Trends in India, 1996-94 to 2009-10,” Economic and Political Weekly 46, no. 43 (2011): 120.

[9] Lancy Lobo and Shashikant Kumar, Land Acquisition, Displacement and Resettlement in Gujarat 1947-2004 (New Delhi: Sage, 2009), 222; S. Parasuraman, “Economic Marginalisation of Peasants and Fishermen Due to Urban Expansion: The JNP Project of New Bombay, India,” The Pakistan Development Review 34, no 2 (1995): 133.

[10] Nisha Srivastava and Ravi Srivastava, “Women, Work, and Employment Outcomes in Rural India,” Economic and Political Weekly 45, no 28 (2010): 52-53.

A truly international evening

By: Nathalie Laflamme

It’s quite hard to describe the IHRTP to someone who hasn’t experienced it themselves. At least, that’s what I told myself as I began writing this blog post.

The three weeks of the IHRTP—short for International Human Rights Training Program, which has been held by Equitas for the last 38 years—was a blur. A blur of hectic logistical arrangements, of endless tasks, of fascinating, eye-opening conversations with human rights defenders from across the globe, and sometimes—like during the International Evening—a literal blur of colourful traditional garb, dancing along to music from the opposite side of the world.

To give you a glimpse into my experience working for Equitas, I thought I would first describe what I felt was the most memorable moment of the IHRTP: the International Evening, which was held on June 15th.. On this night, participants, facilitators, Equitas staff and interns were encouraged to throw on their best traditional clothing and come to the cafeteria at John Abbott College for an evening packed with flavour and entertainment.

The evening was—to say the least—a blast. While the days spent at John Abbott College (where the IHRTP is held) had been extremely busy, and while I had had the chance to share a few sporadic meals and conversations with participants, the full impact of the program only became apparent to me when I stepped through the doors of the cafeteria during the International Evening.

For you to grasp how impressive this event was, I feel that I should first explain what the IHRTP is (note that I will speak more about my tasks and responsibilities as an Education Intern in my second blog post). The IHRTP is a three-week intensive program which is open to human rights educators from civil society organizations, regional and national institutions, and government agencies across the globe. During the program, participants mainly work in small, diverse groups, and work to transform their working methods and develop tools to increase the impact of their work. The program uses a participatory approach, allowing human rights educators to build capacities and skills by learning from one another—participants are both the teachers and the students of the IHRTP.

So, as I stepped into the cafeteria that night, and as the colours of everyone’s clothing and the smell of the dozens of different, scrumptious international foods hit me, I really saw the beauty and power of the program for the first time. I was a little late for the event as I had driven one of the IHRTP’s Resource Persons back to the airport, and of course I had managed to get lost on my way back to the college. The Resource Person and I had shared a fascinating conversation in the car involving a comparison of the legal system in Canada and Egypt, as well as a discussion concerning Canada’s Aboriginal Peoples. It truly was enlightening. But, I digress. Because of my lateness that night, I got to step into the bustling cafeteria on my own, once the event had already begun, and got to take it in in all its glory.

The Intern and Volunteer table on International Evening. Photo by Michael Cooper/Equitas.

I watched as groups of participants from the same regions took the stage after our delicious meal to perform to their favourite local songs and give us a glimpse into their worlds. I remember thinking, as I watched an incredibly pregnant participant from Haiti dance with gusto, her stomach bare, surrounded by other Haitian participants (one of whom was wearing the Haitian flag as a cape) dancing beautifully, that this truly was a unique experience.

After the participants had all performed, we sang “Happy Birthday” to Equitas—in both French and English, of course—as this year marks the organization’s 50th anniversary. After that, everyone got on the dance floor. Never in my life have I been surrounded by so many amazing dancers; it was so beautiful. There was something so unique about seeing so many people from such different places, with such different lives, come together. That night, I also learned that dancing in a circle is apparently an international social norm.

Dancing after dinner. (That’s me, in the light pink dress). Photo by Gabrielle Vendette/Equitas.

I begged AJ, the Logistics Intern who was in charge of the music that night, to add “Cotton Eye Joe” by the Rednex to the song cue. He agreed, and I somehow managed to teach that silly line dance to at least 50 different people from all over the globe. I remember dancing so enthusiastically that my right leg cramped, but I powered through. I was smiling so hard my cheeks almost cramped, too.

I am the only intern participating McGill’s International Human Rights Internships Program (IHRIP) who stayed in Montreal this summer. And yet, during that evening, I wasn’t in Montreal. I was in Morocco, in Colombia, in the Democratic Republic of the Congo, in India, in the Philippines… I was everywhere, caught in an international blur. I hope this memory stays with me forever.

More dancing during Equitas’s International Evening. Photo by Gabrielle Vendette/Equitas.

Defining Equality: Namibia’s Supreme Court and the Rights of Persons with Disabilities

By Kevin Lee Pinkoski

Equality in Namibia and the Rights of Persons with Disabilities:

A young country – with a new constitution – needs an active judiciary that takes every opportunity to develop a more nuanced understanding of its constitutional principles. This is the context of Namibia, a country that, in 1990, won independence from South Africa after years of racial division implemented by apartheid, and, in the same year, adopted a new constitution. But many terms in this new constitution have yet to be comprehensively nuanced and defined through jurisprudence. As the case Alfred Mew Visser v Minister of Finance & 3 Others shows, Namibia’s judiciary continues to miss opportunities to describe both the nuances of equality as the term is present in the constitution and its relationship to the rights of persons with disability.

The nuance that is lacking from Namibian jurisprudence on equality is if the term is only limited to formal equality, where the law treats all individuals equally, or if it includes substantive equality, where the law recognizes individual differences in order to make everyone equal. Namibia’s constitution prioritizes equality, yet Namibia’s Supreme Court has failed to provide an accurate explanation of what is meant by the term in the constitution — if it is limited to just formal equality, or if it can be expanded to substantive equality. The judiciary must play an active role in addressing these ambiguities. Consequently, disabled individuals in Namibia are left without true equality.

Alfred Mew Visser v Minister of Finance & 3 Others:

The Alfred Mew Visser case is about the rights of persons with disabilities. Alfred Visser was in a severe car accident and, as a result of his injuries, he was blinded in both his eyes. Because of Namibia’s no fault insurance scheme, he was awarded damages according to The Motor Vehicles Accident FundThe Fund sets caps for damages, and Alfred Visser challenged these caps under the claim that they do not adequately provide the financial support necessary for him to live with a permanent disability. The Supreme Court did not find the case in his favour because of the financial implications of going beyond the caps established in The Fund.

Alfred Mew Visser characterizes a clear problem in the Namibian judiciary; the term equality in the Namibian constitution has not been accurately defined by Namibian jurisprudence. Yet the Supreme Court’s response inAlfred Mew Visser, ignorant of this problem, focuses only on the financial limitations of The Motor Vehicles Accident Fund. My criticism is that, regardless of the outcome of the case, the Supreme Court needs to actively seek out opportunities to elaborate and clarify Namibia’s constitutional principles. Because of this, the Supreme Court’s judgment in Alfred Mew Visser is a missed opportunity to provide a nuanced understanding of what is meant by equality – this is detrimental to Namibia’s most vulnerable populations.

Equality in the Namibian Constitution:

Strong memories of the heroes of the liberation struggle, such as Toivo ya Toivo, continue to inspire Namibians like Fazilla to fight for equality.

Reflective of years of apartheid – when inequality between race was implemented by law – Namibia’s new constitution prioritizes equality for all its citizens. The preamble to the constitution sets this mandate, affirming that “the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace.” Namibia, as a new country, founded itself on the principle of equality.

Namibia’s standard of equal rights for all is expanded upon in Art. 8: Human Dignity and Art. 10: Equality and Freedom from Discrimination of the Constitution. Art.8(1) states: “The dignity of all persons shall be inviolable”, and Art. 8(2)(a) elaborates: “In any judicial proceedings… before any organ of the State… respect for human dignity shall be guaranteed.” Art.10(1) reads: “All persons shall be equal before the law,” and Art.10(2) continues: “No persons may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed or social or social status.”

The constitution and current government policy indicate an ambiguity between formal and substantive equality in Namibia. While Art. 10(1) establishes the terms of formal equality before the law, Art. 10(2) creates the potential to use the law to make all individuals equal through substantive equality.  Art 10(2) indicates the potential for substantive equality as it would be discrimination not to make individuals equal who suffer under the prohibited grounds for discrimination in Art 10(2). The emphasis on equality in both the preamble of the constitution and in Art. 8 show Namibia’s prioritization of equality for anyone within Namibia’s borders. Furthermore, Namibia has embarked on clear projects to create substantive equality for marginalized populations, such as economic empowerment initiatives and gender equality programs. There is a clear ambiguity in what is meant by equality that must be addressed by Namibia’s Supreme Court.

Neither Art. 8 nor Art. 10 provide a nuanced understanding of what is meant by equality. Because of this, Namibia’s lower courts have been limited to an understanding of equality that only evaluates the formal equality of all individuals before the law, not the substantive equality necessary to make all individuals equal. Furthermore, as Alfred Mew Visser shows, the Supreme Court has failed to take any opportunity to define any nuances to what is meant by equality as it is presented in the Namibian constitution. Because of this, Namibia has yet to create an environment of true equality for persons with disabilities.

Disability in Namibia and Alfred Mew Visser:

Although empty on the weekend, the Katatura Disability Plaza houses numerous organizations that promote equality for people with disabilities.

Namibian law defines disability as “a physical, mental or sensory impairment that alone, or in combination with social or environmental barriers, affects the ability of the person concerned to take part in education, vocational, or recreational activities.” This definition is elaborated upon to include the “loss or limitation of opportunities to take part in the normal life of the community on equal level with others due to physical or social barriers.”

The Namibian constitution does not list disability as a prohibited ground for discrimination in Art. 10(2). Thus, for disability to be adequately recognized or discussed in terms of equality, the Namibian judiciary must establish that disability is included under the prohibited grounds for discrimination in Art. 10(2).

Disability has a clear consequence on an individual’s ability to participate in society, it has a detrimental effect on the following grounds prohibited by Art. 10(2) of the constitution: social status, economic opportunity, and personal prosperity. The statistics are clear: 17.7% of urban disable persons do not attend school, 82.3% of rural disabled persons do not attend school, 42.5% of disabled persons work in agriculture and fishers, with 14.6% in elementary occupations. 70% of disabled persons live in homes without a mortgage. The reality is explicit – being disabled in Namibia is a limit on the potential of an individual to achieve success and prosperity.

In the example of Alfred Mew Visser, Alfred Visser has suffered a permanent disability because of the accident: he is blind in both eyes; he has a physical impairment that will impede his potential to participate in everyday activities and in work opportunities; he will need to learn a new system of reading. He is likely to be to be limited, as Art 10(2) of the constitution explains, to a “social status” because of his disability.

Art. 8 and Art. 10 of the Namibian constitution ensure a conducive environment to the full and equal participation for all in society, including those with disabilities. But, as was previously alluded to, because neither Art. 8 nor Art. 10 provide a comprehensive definition of what is implied by equality, the Supreme Court is required to give such an interpretation. The Alfred Mew Visser case is a clear example of a missed opportunity to give a more nuanced explanation of what is meant by equality, a missed opportunity that will be detrimental to disabled people – one of Namibia’s most vulnerable populations.

Formal Equality – Equality as applied by the Supreme Court:

Namibia’s clear wealth disparity, apparent in the village of Hoachana, is continually being addressed in the pursuit of equality.

Namibian jurisprudence has yet to provide a nuanced understanding of what is meant by equality in the Namibian constitution. The problem is that, because of the limited wording of the Namibian constitution, there is no need for courts to expand beyond an understanding of equality that is restricted to formal equality. Formal equality is established only by equality before the law. It applies blind rules to every situation, no matter what social differences may be involved. If the Namibian constitution ensures only formal equality, the Namibian Supreme Court should define that distinction. While it is possible to develop the language of formal equality in Alfred Mew Visser, it is important to recognize that the case turns on the financial limitations of The Motor Vehicle Accidents Fund, and not the issue of equality.

In Alfred Mew Visser, the court employs a view of formal equality before the law, as all claimants are held to the same limits of compensation, regardless of either their individual characteristics or the consequences of an accident. Alfred Visser’s disability can only be taken into account provided it falls under the limits of the caps established in The Motor Vehicle Accidents Fund, and it cannot be adjusted to take into account the particular needs of certain claims. The caps employ the same legal equality to all — the same formal equality before the law — and thus the court can resolve that “No distinction is made between claimants at all” since “all claimants are in the same position when it comes to the capping of their claims and are thus equal before the law.” No differentiation is made between individuals and their needs. If this is what is meant by equality in the Namibian constitution, the Supreme Court should define equality in this way in its decision.

Formal equality could, however, provide the means to address the necessary compensation required to ensure equality for disabled individuals. Since, to establish formal equality, the court adheres to “equality before the law,” it is the actual law itself that would have to change. The Motor Vehicle Accidents Fund would have to be amended to provide for a recalculation of damages for disability, for injuries that cannot be recovered from and that requires an individual to live their life in a different way. In this way, the court could still employ formal equality before the law, but the law itself would have to be expanded to provide for the necessary compensation to an individual who has been affected to a new “social status” (as Art. 10(2) of the constitution establishes) as a result of an accident. The Namibian constitution could imply formal equality in this way, but the distinction would have to be made by the Supreme Court.

The Potential for Substantive Equality in Namibia:

The Katatura Hospital is one of many public hospitals that provides medical services to Namibians.

In Alfred Mew Visser, substantive equality would imply that, because Visser has been placed in a different social status as a result of the disability incurred in the accident, the court could employ a definition of equality that allows for increased compensation. While the court establishes that The Motor Vehicle Fund ensures that “equally positioned persons are treated equally”, it fails to consider that some individuals will require more support in order to be treated equally. The reality is, as substantive equality reminds us, that the results of an accident do not leave all individuals “equal”, and that some, especially those with long term disabilities, will require more compensation. If the court had chosen to establish substantive equality as a part of the Constitution’s definition of equality, the court would allow for the law to be adapted to Alfred Visser’s specific case.

Furthermore, the court would establish the necessary precedent to employ substantive equality when necessary to ensure that the law can be adapted to provide what is needed for any individual to achieve equality. This is the missed opportunity of the Supreme Court, they failed to recognize the reality that equality before the law does not ensure that the law has equal effects on all individuals. Consequently, in order for the law to allow that all individuals can achieve equality as a result of the law, a substantive understanding of equality should be employed. Here, the Supreme Court has failed to provide for a more nuanced, and more just, understanding of equality that takes into account an individual’s unique needs. Alfred Mew Visser is thus a missed opportunity to define equality.

Conclusion:

Namibians, especially Namibia’s most vulnerable population, must again wait for the Supreme Court to develop a nuanced understanding of equality. Namibians are left with ambiguity as to if equality goes beyond formal equality to address substantive equality, thus allowing for the prohibitions on discrimination in Art. 10(2) to be extended to unlisted ground. It is, as Art. 10(1) reminds us, that “all persons shall be equal before the law” – so why stop short of protecting Namibia’s vulnerable populations?

The Supreme Court should be capable of providing the necessary jurisprudence to clarify and develop the constitution. The Supreme Court cannot be limited by state resources or policy in its decisions, it must be capable of balancing these limitations with the necessity of equality. The nuances in the term equality have yet to be defined by Namibia’s Supreme Court, and the Court continues to miss opportunities to add the necessary nuances. Defining these nuances is, after all, the role of the judiciary.

 

Assumptions revisited: the origins and meaning of the Charter

By Mark Dance

Over my summer at the Canadian Civil Liberties Association (CCLA), I’ve had the occasion to get below the surface of a few of my tacit beliefs about the Charter of Rights and Freedoms. It’s remarkable that I’d not been disabused of some of these notions over two years in law school—but maybe it’s just time outside the classroom that has started to puncture and deflate them.

My first stark realization was that the motivations for the adoption of a Charter in the first place may have been profoundly political and more specifically, fueled by a fear of Quebec Nationalism rather than a desire to elevate the rights of citizens. Joseph Heath explores these topics in greater depths in his book Enlightenment 2.0 but he paints the essential picture in a 2014 piece in the National Post:

“With the conflict between French and English growing more and more intractable, a frustrated [Pierre] Trudeau finally gave up on his old motto, [‘Reason before passion’], admitting that his faith in reason had been mistaken. ‘If they want blood and guts,’ he said, ‘I’ll give them blood and guts.’ To this end — and with varying degrees of cynicism — he set about creating a new national identity, in part by co-opting traditional French Canadian culture and imposing it at the national level. His efforts began with the aggressive promotion of the national flag (with the Parliamentary Flag Program of 1972, which gave each representative a quota of flags to be distributed to constituents), the designation of ‘O Canada’ as the new national anthem, and the creation of a national holiday (with Dominion Day being renamed ‘Canada Day’), and which culminated in the repatriation of the Constitution and the adoption of the Charter of Rights and Freedoms in 1982. All of this served to create a new Canadian identity distinct from the British one that had previously been dominant at the national level.”

On this reading, the Charter is not a principled document for the sake of individuals or communities but rather a scheme hatched by Pierre Trudeau to stave off armed revolution and the crumbling of a federation; a ‘good’ nationalist bulwark against the ‘bad’ nationalism of the FLQ.

My second jolt came when I realized that CCLA had a more complicated and nuanced relationship with the upholding of Canadians’ rights than I had originally understood. I saw this immediately when I watched and reported on a CCLA intervention about the rights of doctors to conscientiously object to performing medical procedures like doctor assisted dying—where CCLA took the position that the obligation to make effective referrals was justified—but I also gleaned it from freedom of expression cases on which I was working, where certain limits on speech were understood to be justified in the service of protecting the community from disturbing images and messages. I grasped the complications most clearly when reading an autobiography of a former CCLA general counsel, Alan Borovoy. In one of his last chapters he writes that, when the idea of a constitutionally entrenched Charter was first proposed to the CCLA,

“I was against the whole idea […] I took the position that this deference to the judiciary represented a form of tyranny. Why, I asked, should the raw value judgments of appointed judges trump those of elected politicians? After all, politicians are accountable for their judgments to the people who elect them […] I hit on a possible compromise. Instead of calling for a complete withdrawal of the proposed Charter, I borrowed a concept from the statutory Bill of Rights that then existed at the federal level: a ‘notwithstanding’ clause.”

While at first baffling that a CCLA leader would oppose the entrenchment of a Charter, I came to understand the logic both from my work at CCLA and from Borovoy’s writing. In the former case, I saw how much good s. 1 can do in the right judicial hands and how certain statutory and regulatory objectives, despite clearly infringing Charter rights, are simply good for the country from a utilitarian perspective. In the latter case, I read Borovoy’s compelling history of the US Bill of Rights, which in the 20th century was used to “strike down legislation limiting the hours of work, prescribing certain minimum wages, outlawing child labour, and regulating employment agencies”. Without limits like s. 1—or perhaps even the notwithstanding clause as a rarely invoked limiting condition—it could wind up being the individual who tyrannizes a hopeful and progressive majority.

A third eye-opening moment came from the overturning of my naïve impression that the Charter embodies democracy in some way; while it may protect voting rights and other liberties that make electoral democracy possible, a look at the history taught me just how undemocratic the Charter’s origins were. To watch Jean Chrétien, Roy McMurtry and Roy Romanow talk through the delicate dance of feds and provinces striking a deal is to see an elite cabal reprised and Machiavellian manoeuvres re-enacted.

A philosopher once wrote that “there is scarcely a commonwealth in the world whose beginnings can, in conscience, be justified”; like the absence of Indigenous people at Canada’s Confederation conference 150 years ago, the Patriation of the Constitution in 1982 was a profoundly exclusionary bit of nation building. Perhaps that sort of state of exception is necessary to get constitutions off the ground—but that doesn’t mean that it was pretty. The same philosopher wrote, in the context of the English Revolution in the 1640s, that “Charters are Donations of the Soveraign” rather than true manifestations of public will. I’d not grasped the undemocratic—or perhaps pre-democratic—origins of our own Charter until this summer.

But in addition to these observations regarding the origins, meaning and structure of the Constitution Act 1982—most of which could be understood as instances of disenchantment—this summer also sparked for me at least one surprising new source of admiration for the document.

Participating in CCLA outreach work meant that I saw high school students  thinking through the Charter for the first time. CCLA facilitators walk these young people through collisions of and justified limits upon rights and freedoms: in the case of a minor refusing to submit to a life-saving blood transfusion, is a province justified in forcing the procedure upon them? In the case of a boy bringing a ceremonial knife to school, does the right to security of the person of the other children overpower his freedom of to manifest religious conviction? Presented with each of these questions, I saw teenagers engage passionately in debate with one another. I saw them try on different standpoints and end the hour with new, richer convictions. I saw them play in the conceptual jungle gym of rights, freedoms and public powers in a way that I do not believe they could have without the Charter.

A week later, midway through July and out for a bike ride, I was reminded that the Charter can make students of us all. As I leisurely pedaled past a group of older, visibly down-and-out men in a downtown park, I caught a phrase or two of their conversation: “I don’t think the police can do that to you. I think that’s breaching the Charter of Rights. At section eight it says that…” and then I passed out of earshot.

I realized then, rolling through the cool dusk of a Toronto summer eve, that at least one of these men had space to think and a vocabulary to speak because of the Charter; he had a bridge between his experiences and the power of the law because of what is undoubtedly an aspirational and inspirational document. The main success of the Charter may after all, I thought, be a pedagogical one: it helps us think about who we are, what we deserve and what sort of society we want to live in.

After this summer, that’s certainly what it has done for me.

National Aboriginal Day at the Ottawa-Carleton Detention Centre

Madeleine MacDonaldBy Madeleine Macdonald

On National Aboriginal Day, we went to Ottawa.

Ottawa has been getting a lot of love this summer, as countless dollars have been pumped into Canada 150 celebrations. National Aboriginal Day was no exception, and celebrations were held overlooking Parliament.  Leaders, elders, and community members feasted and danced; they spoke of reconciliation and snapped photos. By all accounts, a good time was had.

Across the city, nestled among mature trees and strip malls, lies the Ottawa-Carleton Detention Centre. The OCDC is a remand facility, a sort of processing warehouse for inmates as they move through the justice system.  From pre-trial detention to conviction to sentencing to incarceration, this is where inmates stay before they arrive at the correctional facility where they will serve out sentences longer than 60 days.  But don’t be fooled by the label. Despite its innocuous name, OCDC is a maximum security facility with everything that entails: barbed wire, industrial food, strip searches, and solitary confinement.

On a beautiful, sunny summer day, a team from the Mohawk Council of Akwesasne, Akwesasne Justice Department skipped the downtown parties and schmoozing to celebrate National Aboriginal Day in prison. The percentage of aboriginal inmates at OCDC hovers around 30%, relative to 3.8% of the national population. Despite this, 2017 marked the first time a cultural celebration was held for NAD there. Increased aboriginal cultural and spiritual programming is just one of the recommendations of the OCDC Task Force, struck in March 2016 to address reports of deplorable conditions and overcrowding.   

That day, aboriginal inmates who had shown good behaviour were invited out into the yard for a surprise. Native Inmate Liaison Officer Brian David greeted them with smudging before welcoming them into the yard, which held a mid-construction sweat lodge and a circle of chairs. Our guests were treated to a feast of homemade fry bread, corn soup, and fresh strawberries. Wearing his formal Gustowah (feathered headress), Satekaronhioton Fox of Native North American Travelling College told creation stories. Joyce King, Department Director, spoke of culture and restorative principles, emphasizing the importance of knowing one’s identity. In Haudenosaunee culture, to be prepared to for death, each one must know five things: their name, clan, language, song, and their medicine.  Then, we danced.  

Singing and drumming, the men from the travelling college led and we all followed.  Shuffling behind, the women massaged the earth with their feet, just as Sky Woman massaged the dirt on Turtle’s back to create the world.  We laughed. We sang.  Just like the big shots downtown, we feasted and feted, but there were no photo ops, because cameras are contraband.  

And as we were dancing around a barbed-wire enclosed prison yard, an osprey appeared overhead in that blue and cloudless sky, soaring wide and graceful arcs. Beneath him, for a moment, we were all free.

« J’accuse Trump, j’accuse la France, j’accuse Sarkozy »

Lucas MathieuPar Lucas Matthieu

Ouagadougou (“Ouaga” pour les intimes) ressemble de plein de façons à ce à quoi l’on s’attendrait de la capitale d’un pays enclavé et sub-saharien. Le flux incessant des motocyclettes, la poussière, les gardes armés dans la rue, la pollution, la chaleur étouffante en cette saison des pluies, les maquis et leur poulet braisé : tout est en mouvement. Pas en ligne droite, vers le sacro-saint Développement, mais comme la trace d’un scooter fatigué qui crache encore, de ses zigzags, emballées, esquives suicidaires et roues arrière héroïques.

Dans cet assemblage, je suis forcé de reconnaitre, bien souvent, des restes – peu entamés – d’hégémonie française. À commencer par la langue, réappropriée certes, mais bien la même. En face de ma chambre, une vielle carte du Burkina indique encore, en légende, la superficie du pays, sa population, et son « maitre colonial » la France. Les antennes Canal+ sont partout, ma carte SIM est Orange et je paye en Francs CFA. Le Burkina Faso vient d’adopter le système LMD.  Bref, la France est omniprésente, sur le plan militaire, industriel, politique, économique, et culturel. La population Burkinabè en a tout à fait conscience. Alors que je marchais hier vers la rue passante pour trouver un maquis (bar/restaurant d’exterieurs qu’on trouve à tous les coins de rue), j’ai entendu un jeune dans un groupe qui criait « J’accuse Trump, j’accuse la France, j’accuse Sarkozy ». La nuit tombait, mais ç’aurait aussi bien pu être l’aurore.

Nous avons parlé du rôle de la France et des États-Unis dans le dispositif militaire Burkinabè et Ouest Africain en général, du système universitaire Burkinabè, des restes de la colonisation et du point de vue Burkinabè sur le la révolution technologique. Il semblait ambivalent sur ce dernier point. Il mentionna que la conquête coloniale européenne était basée sur le Progrès et la Modernité, bref, la fin de l’histoire. Il semblait convaincu de la nécessité pour l’Afrique de s’adapter et d’entamer une transition technologique – il prit notamment pour exemple la Corée du Sud et le Japon – tout en fustigeant le monopole français sur le capital social Burkinabé via la formation d’élites Africaines, l’imposition semi-camouflée su système scolaire Français et la fuite des cerveaux.

En même temps, il paraissait convaincu que la structure sociale africaine traditionnelle était responsable dans une certaine mesure de ce manque de changement. Il m’expliqua que l’écart entre les modes de fonctionnement sociétaux Africain et la rationalité occidentale ne permettait pas un tel saut. On comprend alors à quel point la domination française agit encore ici. Il ne s’agit pas seulement de contrôler, encore aujourd’hui, les ressources des anciennes colonies. Mais, via le soft power français, via Canal+, via Orange, via les publicités étincelantes pleines d’automobiles de luxe, montres érogènes et gratte-ciels parfumés, de créer le récit d’une Afrique immobile et coincée en étaux par ses soi-disant contradictions : culturellement, ni traditionnelle ni moderne; politiquement, ni colonisée ni indépendante; économiquement, pleines de ressource qu’elle serait incapable d’explorer.

 

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