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A Few Words on the Tekaia’torehthà:ke Kaianerenhsera (Akwesasne Court Law) to Commemorate the “Birthday” of the Akwesasne Mohawk Court

2016 Philpott AmeliaBy Amelia Philpott

Over the past months of my placement with the Mohawk Council of Akwesasne Justice Department, there have been some exciting legislative developments in the community. In June a referendum was held on the Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law) regulating the manufacturing and distribution of tobacco on the territory,[1]  and this month the community’s Tekaiatorehthà:ke Kaianerenhsera (Akwesasne Court Law) came into force.

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

I have decided to focus this blog post to the latter. The Akwesasne Court Law coming into force is an event worthy of celebration not only for the Mohawks of Akwesasne, but also for First Nations across Canada, because it marks  the “birthday”[2] of the first ever independent court established by a First Nation.

Background

The Mohawks of Akwesasne have been administering their own justice since well before Jacques Cartier first arrived on Mohawk territory in 1535.[3] As members of the Haudenosaunee Confederacy, The Mohawks were united with the Cayuga, Onondaga, Oneida, Seneca, and later the Tuscarora, under the Kaianerekowa (Great Law of Peace); bringing together the previously warring nations. This law enforced the matrilineal clan system across the Confederacy, based on hereditary leadership.[4]

With Canadian Confederation, however, came a number of obstacles preventing the community from being able to effectively exercise their traditional Haudenosaunee government. Section 91(24) of the Constitution Act 1867 assigning “Indians and Lands Reserved for Indians”[5] to federal jurisdiction was used to justify a number of assimilative policies which had, and continue to have, severe repercussions for all First Nation communities, including Akwesasne.

In Akwesasne, elections were imposed by the Canadian government in 1899 in an attempt to disempower the traditional Mohawk council of chiefs.[6] This imposition, along with the larger assimilative scheme of the Canadian government, ultimately prevented the community from being able to administer their own traditional justice effectively.

Perhaps the greatest obstacle Akwesasne faced in this regard was the drawing of a Canadian-American international border squarely through their territory, and the further quartering of their land into the Canadian provinces of Ontario and Quebec. These borders alone have made it virtually impossible for the community to administer one cohesive justice system, since the Mohawk Territory of Akwesasne, and the larger Haudenesaunee Confederacy, now have to contend with multiple imposed colonial jurisdictions.

The Akwesasne Mohawk Court

Despite efforts to dispossess the Mohawks of their traditional institutions, the community has never stopped asserting their right to govern themselves and their traditional territory.[7] The Akwesasne Mohawk Court is an example of this.

The court itself, established by the Mohawk Council of Akwesasne (MCA), has existed since the 1970s, but its character has evolved substantially since then. For the first twenty or so years of existence, the court operated under the Indian Act, with Minster of Indian Affairs approved justices of the peace adjudicating by-laws passed under section 81 of the Act.[8] The court was therefore under tight control of the Canadian government.[9]

Over the past few decades, a number of interrelated factors made it easier for the community to effectively assert their right to make their own decisions about their judicial institutions.

Firstly, the Constitution Act 1982 entrenched this right by  “recognizing and affirming existing Aboriginal […] rights”[10] under section 35(1) of the Act. This effectively gave the assertion of this right a Constitutional backbone. Furthermore, towards the end of the 1980s the Minister of Indian affairs began rejecting a greater number of by-laws proposed by the MCA. The band council ratified some of the rejected by-laws anyway, marking the beginning of the community passing legislation themselves under their inherent right, as opposed to under the authority of the Indian Act.[11]

An important factor leading to the establishment of an independent court at Akwesasne was a report produced by Bruno Steinke in 1995 (the Steinke Report). The findings of the report indicated that overwhelmingly Mohawks of Akwesasne were in favor of establishing their own independent Mohawk court on their territory. The survey indicated that the community wanted a court to be structured like a Canadian court, with the incorporation of traditional restorative Haudenosaunee principles, presided over by justices from their own community.[12]

A reading of the Akwesasne Court Law clearly demonstrates that the Akwesasne Mohawk Court as it stands today has been modelled directly from the Steinke Report recommendations. The law represents a significant shift from the Court’s earlier days of operation in one very important way:  its source of authority is the community itself, and their inherent right to self-govern, as opposed to the Canadian government via the Indian Act.[13]

The Akwesasne Court Law

This Akwesasne Tekaiarorehthà:ke Kaianerénhsera (Akwesasne Court Law) reflects the values of the Mohawks of Akwesasne and the principles of Sken:en (peace), Kasatstensera (strength) and Kanikonri:io (a good mind), respect, fairness as well as natural justice.[14]

The coming into force of the Akwesasne Court Law on August 12 laid a framework enabling the Mohawk Council of Akwesasne to adjudicate their community laws. The law sets out the principles, powers and authorities of the Akwesasne Mohawk Court and governs the conduct of the institution’s justices. It also outlines the Court’s jurisdiction, which spans across a broad range of civil matters, including contract disputes, matrimonial property, and the regulation of untaxed tobacco products on the territory.[15]

Aside from the symbolic significance of Akwesasne Court Law for Akwesasronon[16] in terms of what it means for the MCA’s assertion of self-government, the law also places the community at the forefront of indigenous self determination efforts in Canada by laying the foundation for the first independent court established by a First Nation.[17]

The mix of legal traditions informing the Court Law is also unique: In accordance with the expressed will of the community,[18] the court is set up to be adversarial; operating in accordance with fundamental principles of Canadian justice.[19] What sets it apart from Canadian courts is the incorporation of traditional restorative Mohawk principles into the institution’s judicial framework.

The distinct blend of traditions in the Akwesasne Court Law is particularly present in its sections pertaining to remedies. While some are in line with what one might expect a provincial or Federal judge to order, others are unique to the Mohawk Court. Illustrating the former, section 9.3  states the payment of fines or ordering injunctions are both within the scope of remedies a Mohawk judge might order.[20] On the other hand, the requirement under section  3.4 that a judge consider “the talents of the [offending party]”;[21] and use these for the benefit of the community to remedy their infraction; is a consideration one would certainly not encounter in a Canadian Court.

The inclusion of Mohawk principles in the Akwesasne Court Law  is important for two reasons: Firstly, it is an affirmation of the community’s cultural identity. Secondly, by employing restorative mechanisms focussed on healing for offenders, the law illustrates an approach to justice which promotes the long term wellbeing of the community.

On a practical level, the Akwesasne Court Law guarantees members of the First Nation that their cases will be heard by a Mohawk Judge from their own community, and that they can choose to have court proceedings conducted in either English or Mohawk.[22] The law will also lessen congestion in nearby provincial courts, as it gives Mohawks of Akwesasne the possibility of referring to their own court to adjudicate community matters.

Concluding Thoughts

At the Akwesasne Justice Department I have been fortunate to work with some of the amazing trail-blazing minds behind the Akwesasne Court Law. I feel being an intern here during the first “birthday” of the Akwesasne Mohawk Court essentially gives me a backstage pass to history-in-the-making. Expressing how much this has meant to me is difficult, but suffice to say I consider myself to be one incredibly lucky law student (and human being).

You can find a digital copy of the Akwesasne Court Law, along with other community legislation on the Kaiahnehronsehra iehiontakwa (Akwesasne Law Registry):

http://www.akwesasne.ca/lawregistry

 


[1] Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law), MCR 2016-2017-#075, Purpose para 2.

[2] Credit to Gilbert Terrance, Court Administrator, who called August 12th “the Birthday of the [Akwesasne Mohawk] Court.”

[3]  Frey, S.L., The Mohawks : An Inquiry Into their Origin, Migrations and Influence Upon the White Settlers, (Utica: Oneida Historical Society, 1898) at p 6.

[4] Joyce Tekahnawiiaks King, “The Value of Water and the Meaning of Water for the Native Americans Known as the Haudenesaunee” (2007) 16:3 Cornell Journal of Law and Public Policy 1.

[5] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24) , reprinted in RSC 1985, Appendix II, No. 5.

[6] Rarihokwats, How democracy came to St. Regis & the thunderwater movement, (Rooseveltown, NY: Akwesasne Notes, 1974) at p 8.

[7] Ibid at p 3.

[8] Indian Act, RSC 1985 c I-5.

[9] Anna Gilmer in conjunction with the Akwesasne Justice Department, History of the Akwesasne Mohawk Court (2015) at p 6 [unpublished, archived at the Mohawk Council of Akwesasne Justice Department].

[10] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Ibid note 6 at pp 8-9..

[12]   Bruno Steinke, “Justice Needs in a Mohawk Community: Akwesasne” August 1995  at pp 65-70.

[13]  Akwesasne Tekaia’torehthà:ke Kaianerénhsera (Akwesasne Court Law), MCR 332 2016, Preamble para. 10.

[14] Ibid at Purpose para 2.

[15] Ibid at ss 5.1-5.4

[16] “Akwesasronon” is the Mohawk term for community members of Akwesasne.

[17] While other First Nations have established courts (see the Nisga’a Treaty), the Akwesasne Mohawk Court is the first institution of its kind established under the inherent Aboriginal right to self-government, recognized and affirmed by section 35 of the Constitution Act, 1982.

[18] Ibid note 9.

[19] For example, section 7 of the law helps to ensure the principle of judicial independence is upheld by holding the Akwesasne ratiianerenhserakweniénhstha (justices) and teshatiia’toréhtha (appeal justices) accountable to the Akwesasne Review Commission for their conduct. The Akwesasne Review Commission can also be called upon to rule on an alleged conflicts of interest of justices or appeal justices.

[20] Ibid note 13.

[21]  Ibid.

[22] Ibid at s 4.2.

 

 

A Nation in Mourning

By André Capretti

On Sunday morning, Cambodia lost one of its most beloved sons. Kem Ley was a prominent independent political analyst, a renowned intellectual, an advocate for democratic reform, and an ardent critic of the government. Most importantly, he was a husband, a brother, a son, and a father to four boys, with a fifth child on the way.

The news of his death was made more painful by its senselessness and the callous manner in which it occurred. Ley was just about to have his morning coffee at a gas station café, when he was executed by a gunman at point blank range.

The reaction of the Cambodian public illustrates how respected and revered Kim Ley was by his countrymen and countrywomen. Thousands of Cambodians gathered in a procession, marching to a pagoda on the other side of town, to lay his body to rest. Since then, his funeral was attended by thousands of people wishing to pay their last respects. While a somber moment for all, the event seemed to bring many Cambodians closer together, unified in their mourning and sorrow.

Kem Ley's Funeral

Kem Ley’s Funeral

Today was the tenth edition of the Black Monday campaign. After more than 20 arrests in the past 9 weeks, no protesters were detained today, and yet the day stood out for being much darker than any other Black Monday.

In the days, weeks and months to come, much will be made about the assassin: his identity, his connection to Ley, his motives, etc. Luckily, the suspect was apprehended as he fled the scene. And yet, in the messy aftermath there appears to be little reason to believe that justice will truly be served in this case. Ley’s body had barely turned cold before supporters of both major political parties began blaming the other for his death.

Many people pointed the finger at the ruling party, whose track record of political assassinations and use of scapegoats makes it a prime suspect. While few will question that the man captured by police was the one who pulled the trigger, it remains to be seen whether he was truly the mastermind behind this heinous crime.

One important piece of the puzzle would appear to be an interview that Ley gave to Radio Free Asia just a few days ago, about a groundbreaking report released by London-based international organization Global Witness. The report caused shockwaves across Cambodia, as it detailed the extraordinary levels of wealth held by Prime Minister Hun Sen, his children and his extended family. In a country where nearly 40% of Cambodians still live below or close to the poverty line, the report revealed that the ruling family had substantial control over 114 local companies in 20 different economic sectors, and an estimated net worth of at least 200 million dollars. The report helped to highlight the extreme levels of corruption, nepotism and income inequality that plague the oligarchical Cambodian economy. It also served as a warning for Cambodians about the very real possibility of a dynastic dictatorship holding on to the reins of power for decades to come.

The reaction from Hun Sen and his family was swift and dismissive, as many of his children took to social media to deny claims of wrongdoing and accuse Global Witness of trying to ruin their reputation. Sen’s own response was nauseating, as he posted photos to his Facebook page of him toasting a drink with his children in celebration, seemingly mocking the report. Sen’s poor taste was somehow trumped by a pro-government media outlet, which posted an anonymous reader’s letter titled “Behavior Plunging Cambodians Into a Bonfire of War Because of Foreigners”, which used a doctored piece of Nazi propaganda to attack the English-language Cambodian newspapers which initially published news of the report.

In the aftermath of Kem Ley’s slaying, many of my colleagues spoke in admiration of a man who was fearless, unafraid to die if it meant standing up for what he believed in. Others remembered a man who was outspoken, even in the face of increasing persecution against government critics. It remains to be seen what kind of impact Ley’s death will have on the state of freedom of speech in Cambodia. Many expect it to serve as a chilling reminder of the lengths that the ruling party is willing to take to consolidate its power and eliminate all voices of dissent.

I wish I could end this blog post on a happy note, but there’s really no point sugar coating it. The prognosis appears grim for Cambodia, a country in a deep state of crisis, where the space for civil society keeps shrinking, and human rights are at the bottom of the government’s list of priorities.

Looking ahead at my last few weeks in the country I have four dates highlighted on my agenda. Two are trial dates, one marks a court summons and the fourth the announcement of a verdict. All four cases are political. At this point it’s hard to be optimistic that justice will prevail, when all four outcomes seem clearly pre-determined.

For now, I’m just hoping for a miracle.

To Witness a Miscarriage of Justice

2015 Noga BrodieBy Brodie Noga

I used to think that the phrase miscarriage of justice was oddly visceral. Having felt my heart slow, my chest become heavy, and my stomach wrench as the “Phnom Penh 11” were handed down 20 and seven year sentences in a deeply flawed legal proceeding after a mere 15 minutes of deliberation, it now feels sterile.

The trial of the 11 opposition party officials and activists I was observing had deteriorated quickly after an opposition led boycott of a vote on the NGO law and a major political rally held at a contested area of the Vietnam-Cambodia border. Plaintiffs conveniently failed to show when summoned and instead had suspiciously similar written statements read into the record; after months of delay the trial was suddenly sped up to a daily schedule despite defence lawyer protestations that they would be unable to attend; the day of the verdict only one of the nine defence counsel was present; closing arguments were announced with three minutes notice; and as as the judges left to deliberate, scores of police were mobilized to shut down the streets surrounding the Court and to fill the courtroom.

When it became clear that the outcome was pre-determined, the 11 men charged with leading and participating in an insurrection – despite a total absence of any accusation that they’d committed acts violence or that the events of July 15 2014 had in any way amounted to an insurrectionary movement – began to joke. One man, whose son had died that morning, teased the court police that he needed to pee before the verdict was rendered and promised he wouldn’t run away. Others asked the guards if they could have their cellphones back so they could give them to their family before they were jailed. While my translator conveyed these words to me he would interject and tell me how these words hurt his heart. They hurt mine, too.

And then the verdict came, read so quickly most couldn’t even catch who received which sentence, and the police handcuffed the 11 to lead them to prison. As we left, my translator told me that he was glad to see the verdict so that now he will be prepared for when they come for him. And then my heart hurt for him as well.

As students of law we often talk about justice and injustice, but it is nearly always in the abstract. The trial is far from the first terrible thing that I have witnessed, but the emotional charge that hung in the air as the verdict was read continues to haunt me. But it wasn’t the catalog of fair trial violations in my notebook that was disturbing, it was the performance of state power before me, it was the men aware of their looming sentence, it was the nervous energy of the audience, it was the rapidity of the judge’s speech as the sentence was read. Law in the abstract never really exists without law in the concrete. A miscarriage of justice isn’t just a failure of the court to abide by abstract codes of behaviour, it is the immensely visceral interaction between humans whose final reality exists in their flesh. For me and for those in the audience, the physicality of the injustice was vicarious. For those 11 who felt the handcuffs around their wrists, it was far more immediate.

Portrait d’un peuple ébranlé par de la violence qui ne lui ressemble pas

2015 St-Jean FrederiquePar Frédérique St-Jean

Hier, vendredi 26 juin, la Tunisie a été ébranlée par un attentat terroriste qui a fait, à ce jour, 37 morts. La cible : la plage d’un hôtel touristique. Cet incident fait suite à une tuerie qui s’est produite au musée du Bardo il y a près de trois mois faisant 22 morts. Ces deux évènements ont en commun leur cible : les touristes, des occidentaux. Le message que cette similarité révèle est bien clair. Les djihadistes s’opposent à la modernisation de la Tunisie, qu’ils qualifieraient d’ « occidentalisation ». Ils s’opposent au fait que la Tunisie a réussi avec succès sa transition démocratique, que la charria n’est pas appliquée par l’État, que les standards qu’imposent la religion sont imposés de façon libérale. Le meilleur moyen de faire payer la Tunisie pour ces changements non-souhaitables est de s’attaquer à un secteur vital de son industrie et à son point de contact direct avec l’Occident: le tourisme. C’est aussi, tristement, le meilleur moyen d’assurer que l’incident fasse les nouvelles partout dans le monde.

Cet attentat a ébranlé les Tunisiens, tout comme le dernier. Ces gestes de violence sont en effet en parfaite contradiction avec leur nature et leur identité. Au cours des prochains paragraphes, je tenterai de vous dépeindre le portrait du peuple tunisien, un peuple que j’apprends à aimer, pour illustrer à quel point ces évènements ne sont pas représentatifs de la situation du pays.

Les Tunisiens et Tunisiennes ont une joie de vivre contagieuse. Ils aiment la musique, la danse, rire, manger, chanter et danser. Ils aiment leur café bien fort, leur thé à la menthe bien chaud et leur baguette de pain fraichement sortie du four. Durant le mois de ramadan, chaque soir, ils se rassemblent dans les étroites rues de la médina, la vieille ville, pour fêter la rupture du jeûne. Entre amis, en famille, jeunes et moins jeunes se réunissent pour célébrer. Des spectacles sont offerts à presque tous les coins rues. C’est à peine si l’on peut marcher à travers les étroites rues cintrées par les maisons blanches aux accents bleus. Le ramadan, tradition qui peut sembler complètement insensée pour un étranger, est un moyen de rapprocher les familles et les communautés, de donner au prochain, de bâtir une solidarité qui les aide à affronter les moments plus difficiles de leur quotidien.

OLYMPUS DIGITAL CAMERA

Les rues de la médina

Les Tunisiens et Tunisiennes sont ouverts d’esprit. La religion est pourtant encore bien ancrée dans leurs mœurs. La plupart ne boivent pas d’alcool, font le jeûne durant ramadan, ne mangent pas de porc et vivent avec leur famille jusqu’au mariage. L’appel à la prière peut encore être entendue à travers toute la ville cinq fois par jour. Or, ce qui est admirable chez les tunisiens est que chacun est libre de choisir la façon dont il souhaite pratiquer la religion. Ils m’ont expliqué que la relation entre dieu et un individu et la façon dont ils entretiennent cette relation ne regarde qu’eux. Il n’est ainsi pas rare de rencontrer au sein d’une même famille, d’un même groupe d’amies, une fille portant le voile et l’autre pas, l’une priant plusieurs foispar jour et l’autre pas.  Elles seront pourtant toutes aussi soucieuses d’être à la mode : les femmes portant le voile agençant parfaitement cet accessoire avec leurs souliers ou encore leur sacoche. Chacun se respecte dans ses choix religieux et c’est remarquable.

Les Tunisiens et Tunisiennes tiennent à leurs droits et ils sont prêts à lutter pour les défendre. La Tunisie a probablement l’une des sociétés civiles les plus actives que j’ai eu l’occasion de rencontrer. Les organisations non-gouvernementales se sont mises à foisonner après la révolution et elles mettent la main à la pâte pour aider les plus démunis et pour promouvoir l’égalité. L’un des cafés de la ville est d’ailleurs surnommé le café des « NGO », illustrant que suffisamment de gens travaillent dans ce domaine pour remplir un café à semaines longues. Il est d’ailleurs assez commun que les jeunes soient actifs au sein de ces organisations. Les libertés civiles sont de mieux en mieux respectées, bien que certaines limites à ne pas franchir existent encore.

Photo groupe aswat

L’équipe d’Aswat Nissa

 Les Tunisiens et Tunisiennes aiment la politique. Ils sont fiers d’avoir réussi leur transition d’un régime autoritaire à un régime démocratique de manière pacifique. Ils sont fiers d’appartenir à ce pays stable et moderne situé dans une région où la stabilité politique est périlleuse et où la religion prend des tendances de plus en plus extrémistes. Il y a plus de 100 partis politiques enregistrés, c’est-à-peine si l’on peut s’y retrouver. Les Tunisiens discutent de santé, d’éducation, d’économie, suivent l’actualité et imaginent un futur meilleur. Ils sont prêts à collaborer pour faire avancer les enjeux qui leur sont chers. Au cours du projet de l’Académie politique des femmes organisé par Aswat Nissa, l’association où je travaille, des femmes provenant de partis politiques différents, de droite et de gauche (le gap est grand, je vous l’assure), ont été capables de collaborer durant une année entière pour faire avancer la cause des droits des femmes. Elles ont dépassées leurs préjugés pour faire de la Tunisie un monde meilleur. Même si leur Parlement ne réussit pas à faire des changements aussi rapides et efficaces qu’ils le souhaiteraient, les tunisiens croient en son pouvoir et surveillent attentivement son évolution afin de protester si la situation se détériore.

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Les femmes de l’Académie au travail

 En somme, les Tunisiens forment un peuple incroyablement ouvert d’esprit, chaleureux, éduqué et brillant; un peuple plein d’espoirs envers un futur meilleur. Les tunisiens sont arrivés à définir une identité qui est en accord avec leurs racines islamiques et qui est pourtant tournée vers l’avenir, vers le monde. Ils sont fiers d’être tunisiens et ils ont raisons de l’être.

Il est certain qu’il reste encore du travail à faire afin de rendre ce pays totalement égalitaire et respectueux des libertés civiles. La patriarchie est encore présente de façon intangible au quotidien. Les hommes sont toujours plus nombreux que les femmes dans les endroits publics : les cafés, les plages, les spectacles, ce qui révèle que les femmes sont, pendant ce temps, à la maison entrain de prendre soin des enfants et de l’entretien ménager. Les hommes vous dévisageront d’ailleurs sans gêne dans les rues et vous passeront des commentaires plus ou moins adéquats s’ils vous trouvent joli. Les inégalités entre les riches et les pauvres sont marquées. Le contraste entre les villas à couper le souffle de la banlieue Nord de Tunis, et le centre ville où la vie va à mille à l’heure et où les rues sont sales et puantes est marqué. Le Parlement est loin d’être efficace et neutre, les derniers projets ayant fait l’objet de délais indus. Les élections municipales prévues tardent à venir, tout comme le projet de loi sur la décentralisation qui créera ces institutions. Les défis sont nombreux. Or, les tunisiens ont tous les outils pour les surmonter.

J’espère que ce portrait vous donnera envie de découvrir ce peuple et de venir visiter ce beau pays. Les attentats sont de tristes évènements provenant d’influences extérieures nullement représentatives de la culture tunisienne. La Tunisie n’est malheureusement que l’une des nombreuses victimes de l’islam extrémiste et du terrorisme, joignant les rangs de la France, du Koweït, qui ont aussi été victimes d’attentat durant la journée d’hier, et de bien d’autres états. Je vous invite à ne pas tourner le dos à Tunisie, à y affluer pour découvrir sa beauté et pour aider les tunisiens à bâtir le pays dont ils rêvent.

Jenner and Residential Schools; ‘Call Me Caitlyn’ and Call it Cultural Genocide

2015-Snyder-Dan

By Dan Snyder

“Have you seen the photos of Caitlyn Jenner?” posed one of my colleagues to the rest of us gathered around the lunch table the other day. Jenner’s transition had garnered international attention, and at the Ateneo Human Rights Center in Manila, my co-workers and I wondered if this would translate into more dialogue for LGBT rights here in the Philippines as well. The country is devoutly Catholic – over 90%. Even for myself, I remember worrying if revealing my sexual orientation would be a problem here since I’d be working at a Catholic university for the summer. (It’s not an issue.) Incredibly, one of my first projects will be to create a “SOGIE and the Law”[1] module that would be taught here at the school and replicated in workshops. I think my background has helped prepare me to work on LGBT rights in a Christian environment such as this.

While browsing Facebook the other day, the two major topics in my news feed were Caitlyn Jenner’s debut and the release of the Truth and Reconciliation Commission’s summary report on residential schools. The following post by a friend was quite jarring to me:

There is something very evil about this whole ‘Caitlyn Jenner’ thing. The bible speaks of the unnatural and otherworldly phenomenon we will encounter towards the end, and I’m gonna go ahead and lump this in with that category of events.

I received clarification from the poster that the status was not ironic and that they were indeed serious. Though the comment really irked me, it also got me thinking about how around the world, religion is still a major influencer of people’s worldviews. Admittedly, I may forget this while studying at the “secular bastion” that is a university in Montreal, but it comes to the foreground in a place where communal prayer before lunch is second nature.

Perhaps it’s a coincidence of the jumble that is the News Feed, but the juxtaposition of the Jenner and TRC stories really stuck out to me.

In Canada, the Truth and Reconciliation Commission just issued their summary report after 6 years of interviews. (I implore you to devote time to read it.) It is heartrending; thousands of children died during a residential school process that amounted to cultural genocide. I found this line from one of the commissioners particularly haunting:

Children were buried at schools that often had graveyards but no playgrounds.

In the past century, where were the Christians saying: “these residential schools are a sign of the end times, let’s work to stop the evil going on there?” The TRC report is clear that some church denominations were in fact complicit in perpetrating this violence.[2] If some people want to use a Christian worldview to guide their lives (and the lives of others), what does the Bible say about how God will judge people? In the New Testament, it says that the King will ask if you treated the oppressed and marginalized as if they were Jesus himself.[3]

Now how about Caitlyn Jenner. Trans individuals are some of the least understood and most marginalized people in our societies. Many spend most of their lives uncomfortable with the gender that society has attributed to them which may not line up with their biological sex. For most people, gender identity is not something that they ever think about because they are comfortable with the status quo paradigm. But for trans people, the status quo can be so oppressive that in the US, the rate of attempted suicide is almost 10 times the national average.[4] What puts them at such a high risk? Contributing factors include: family rejection, bullying, violence, poverty, homelessness, and unemployment.

In order to begin to comprehend someone else’s lived experience, it requires empathy and an attempt at putting yourself in another’s shoes. No one wants to be socially ostracized or be rejected by their family. For many trans people, transitioning is dangerous because it makes one a target for increased discrimination. They aren’t doing this for fun, for attention, or because they are ill. From what I understand, they seek to more honestly be themselves and are risking a lot to do so — when the alternative is staying in a false reality that is unbearable. (I don’t want to speak instead of trans* people, please see the links below for more accurate educational resources.)

When faced with topics we don’t like, or people we don’t understand; our response must be based in compassion. Everyone deserves respect and we need to value the inherent dignity of each and every person.

“Evil” is a term I rarely employ, but I would apply it to the cultural genocide that occurred through the residential schools program and Canada’s federal assimilationist policies.

“Beautiful” is the word that I would use to describe Caitlyn’s debut. Hopefully those of us in Canada and around the world can come to admire her courage in transitioning so publicly as she journeys toward more holistic authenticity. Whether it’s the treatment of Aboriginal peoples, or learning to embrace trans people, some issues require more compassion, awareness, and understanding no matter where you are in the world.

————-

More trans* resources can be found here:

http://www.pflagcanada.ca/en/links-e.php?audience=transgender


[1] Sexual Orientation, Gender Identity and Expression

[2] Some of the denominations involved released a statement responding to the TRC report, acknowledging their role in what was done and supporting the recommendations, “…we know that our apologies are not enough.” http://www.anglican.ca/news/response-of-the-churches-to-the-truth-and-reconciliation-commission-of-canada/3004539/

[3] Matthew 25: 31-46

Cambodia in Context: Freedom of Assembly + Heavy Clashes Today

2014-Couloumbe-JonathanBy Jonathan Coulombe

The first few months of 2014 were dark in terms of freedom of assembly in Cambodia. Hence, when I arrived for my internship, this was the main topic surrounding us. From January to today, we saw ongoing attempts by the authorities to silence dissenting opinions, often with violence. Today, we can see the somber results of this perpetual constriction of rights.

The issue mostly started with the elections, but culminated with the garment workers strikes. Following the 2013 national, the government promised to increase the minimum wage in the garment sector by 64 percent, from $61 to $95, a number yet under the demanded $160 per month to “stop surviving” [1], researches having confirmed that the current government offer of $100 per month is truly insufficient to satisfy basic needs of workers[2].

While there is a legally entrenched right to strike under the Constitution, on Thursday January 2, protesters clashed with soldiers from the Royal Cambodian Armed Forces’ elite 911 brigade. At least 15 people were injured while being beaten by sticks and rocks by the 911 brigade and 10 were arrested[3]. Their whereabouts were hidden for 5 days until it was confirmed by the government officials that they had been transported to Correctional Centre 3 CC3) located in a remote area in Kampong Cham province rather than CC1, the usual and closer detention center[4].

Furthermore, the day after the clashes, on January 3, 2014, protests continued and so did its violent repression. Security forces in fact used live ammunition against striking workers[5]. At least four civilians were shot dead, 38 were injured and a teenager, Khem Sophath, was last seen with bullet wounds before disappearing. He is still missing. Thirteen more men were arrested on this day[6]. These detainees together would form the 23 (I will speak of them in a further entry).

Then, on January 4, 2014, the Ministry of the Interior issued a media statement announcing a ban on all public gatherings and marches while also expulsing everyone from Freedom Park, the “Democracy Plaza”. The park was fenced with barbed wire.

This reduction of freedom of assembly also occurred the same day military forces were deployed at a number of points throughout the city and followed a statement issued by the Ministry of Defence, saying that it would protect at all costs the results of the July 2013 general elections and the government led by Prime Minister Hun Sen[7].

Arrest for gathering continued later in January and February as human rights defenders were often detained as they attempted to demonstrate. They were usually release the same day, signing forms promising that they would not take nor incite any actions prohibited by law, including demonstrations.

This did not stop the protests going on nonetheless. Other demonstrations in fact took place, calling for actions on many issues. The demonstrations were always faced with violent repression.

This ban of public gathering seemed to be a one-way policy however as the ruling party (CPP) still hosted a large public events and tolerated anti-CNRP gatherings[8].

The ban was abolished on February 25, 2014, by the ruling party, with Prime Minister Hun Sen warning of possible violence that could occur under gatherings[9]. Moreover, reference is still being made to the ban as if it was still in place, over its application and the right of freedom of assembly. Similarly, since February 25, protesters continued to face massive intimidation by security guards and police forces in place.

While I monitored some gatherings since my arrival with LICADHO, I must say that the continuous presence of police forces and security guards always increased the tension in place. Nonetheless, I was lucky enough to witness very few acts of violence. Today, however, the population tried to take back Freedom Park in a gathering organized by the opposition party and when security guards tried to repel the protesters, violence emerged like never before on the part of the population who took revenge on the authority after having endured repression for so long.

I invite you to watch this video by the Phnom Penh Post to get the details of it:

https://www.youtube.com/watch?v=cDlWePP9eCQ

The question that remains is what will be the next step to this violence? If the protesters fight back and stop being non-violent, will the increasingly present security guards be equipped with more dangerous weapons and equipment? Will the security guards try themselves to avenge this event?

LICADHO has issued a statement today regarding what has happened (you can read it here: http://www.licadho-cambodia.org/pressrelease.php?perm=348). As always, the organization is very critical of any form of violence, whether from the authority or the protesters. This kind of events can only lead to the escalation of conflicts.


[1] http://www.cambodiadaily.com/archives/amid-strikes-minister-raises-minimum-wage-to-100-49798/

[2] http://www.licadho-cambodia.org/pressrelease.php?perm=333

[4] http://www.licadho-cambodia.org/reports/files/192LICADHOTimelineLethalViolence2014-English.pdf

[5] http://www.licadho-cambodia.org/pressrelease.php?perm=334 – http://www.licadho-cambodia.org/pressrelease.php?perm=336

[6] http://www.licadho-cambodia.org/pressrelease.php?perm=336

[7] http://www.licadho-cambodia.org/pressrelease.php?perm=335

[8] http://www.licadho-cambodia.org/reports/files/192LICADHOTimelineLethalViolence2014-English.pdf

[9] http://www.rfa.org/english/news/cambodia/warns-02252014163146.html


Terrorism, Ethnic Divisions and a National Day of Protests

2014-ODell-AnnieAnnie O’Dell

It’s now week 6 in Meru, Kenya. Since we have arrived, Kenya has made the international news on several occasions.

  • May 3, 2014: two bombings in Mombasa.
  • May 4, 2014: two buses bombed in Nairobi, four killed.
  • May 10, 2014: I arrived in Nairobi.
  • May 15, 2014: travel advisories for most Western countries increased to include a high threat of terrorism. British nationals are evacuated from Mombasa and the coast.
  • May 16, 2014: a bombing in a market in Nairobi killing 12, wounding 70.
  • June 10, 2014: a Muslim cleric was shot in Mombasa, followed by more clerics killed and some rioting.
  • June 15, 2014: 48 people killed in a small town on the coast and near the border of Somalia, only non-Muslim men were targeted, though apparently 12 women were abducted.
  • June 16, 2014: near the town attacked the day before, ten more killed while watching the World Cup.

This follows a history that includes the Westgate mall shooting (killing 74) only last September. It also includes an attack on the international airport in Nairobi in January. As well as many other smaller-scale attacks that I did not bother listing above because they happened more than a week before my arrival.

In 2011, Kenyan troops entered Somalia. This move has increased terror attacks by the terrorist group linked to Al-Qaeda, Al-Shabaab.

However, the situation is more complex than Somali terrorism. Last year, President Kenyatta (racially a Kikuyu) won a much-disputed election against Prime Minister Odinga (who is Luo). Odinga claimed the elections were rigged, but the Supreme Court disagreed. The election results caused riots but pales in comparison to the violence that erupted after the elections in 2007. President Kenyatta has been charged by the ICC for inciting and financing parts of that 2007 violence.

Odinga, is currently calling for a day of protests on July 7th, the Saba Saba day. Saba Saba (meaning “seven seven”) is the anniversary of a revolution overthrowing an apparent dictatorship in 1990. This day is expected to be filled with riots and roadblocks.

Al-Shabaab has apparently taken responsibility for the two most recent attacks. But the President is claiming they are part of a political ploy to divide the country among the ethnic lines of Kikuyu and Luo. This conflict is increasing tension and distrust among the population, particularly those near the Somali border who are now arming themselves.

Where we are stationed has never been affected by any violence, terrorist or political. The violence and upsets are not affecting our work in the region but it is affecting our ability to travel on weekends and our parents’ sense of security. We booked a trip to Nairobi this weekend. We haven’t had running water for four weeks now, and this is practically our only opportunity to bathe. We are also looking forward to some Western comforts, such as burgers and movie theatres. But now, though Nairobi hasn’t been attacked in a few weeks, we have had to seriously evaluate whether we should cancel our trip. It’s kind of an odd feeling to weigh options like showering and burgers against the relatively remote, but not unlikely, threat of terrorism.

Still Far to Go: World Refugee Day in India

2013-Malischewski-100x100By Charlotte-Anne Malischewski

Today marks World Refugee Day. The number of refugees worldwide is at an 18-year high and the UN high commissioner for refugees Antonio Guterres told reporters that, around the world, a person is forced to flee every 4.1 seconds.

While much of the world’s attention is placed on the crisis in Syria and countries which continue to produce huge numbers of refugees such as Pakistan and Afghanistan, there is much to be concerned about when it comes to the plight of refugees in South Asia.

No country in the region is party to the United Nations Convention Relating to the Status of Refugees, 1951 or to the Protocol Relating to the Status of Refugees, 1967.

In India, the central argument against ratifying the 1951 Convention is that it is too much a representation of European ways of addressing European problems to be effectively implemented in India.  Presently, India is not bound by the provisions of these key tools of international refugee law. That said, article 51 (c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.   So, the principles of refugee law are often adopted in India, but the state is not bound by them in the way that a signatory country would be.

To make matters more ambiguous, India has no domestic refugee policy. Because there is no legal framework for asylum, the UNHCR conducts refugee status determination for asylum-seekers from non-neighbouring countries and Myanmar.

In an address in honour of World Refugee Day, Dr. Shashi Tharoor (former Minister of State for External Affairs and now a  Member of Parliament who spend much of his career working for the UNHCR) said:

“It troubles me that a country with our proud traditions and our noble practices remains neither legally committed nor obliged to do anything for refugees, even if we behave humanely in practice. I think it is high time the Government reviewed its long-standing reluctance to sign up legally to what it is already doing morally. The Convention and the Protocol involve no obligations that we have not undertaken voluntarily.”

To say that the convention is in keeping with existing Indian intentions towards refugees, to draw parallel’s with India’s ancient historical of acceptance of migrants, or even to demonstrate that the current situation is inconsistent with constitutional principle is useful in trying to convince the powers that be to sign the convention, but to say that India is already doing morally what it would be required to do legally if it signed the convention is somewhat misleading. It masks the fact that India is not only resisting signing the 1951 convention, it is resisting implementing an effective legal system of refugee protection – period.

It’s been a year since the government committed to new long term visa that all refugees are suppose to be able to apply for, but those on the ground are not seeing the benefits of these new visas. An article in The Hindu today tells the story of refugees from Myanmar still waiting to hear from the Foreigner Regional Registration Office about these long-term visas. In it, a UNHCR official is quoted as saying:

“The Government of India has committed to allow all UNHCR-registered refugees in India to apply for long-term visas, which will also allow them to work in the formal sector and enrol in any academic institution. The process is slow and it is not clear how long it will take for all refugees registered with UNHCR to obtain them. So far, according to our information, refugees from Myanmar and some Somali refugees have obtained them. Refugees from other nationalities have also applied but have not received them yet.”

If India is to live up to the “heritage of diversity” Dr. Shashi Tharoor celebrates, it has a long way to go.  Signing the 1951 refugee convention will likely not be enough, because as a product of post-War Europe it is ill-suited for the South Asian context, but it could be a start.  A regional mechanisms is another option. A mixture of the two might be ideal.  Ultimatley, though –  while the means are many, the need is clear.

India needs to to implement a legal framework for refugee protection that is in keeping with international legal norms and responsive to South Asia realities and then, it needs ensure that these laws become practice.

As an advocate of the Supreme Court of Hinda and  human rights activist, Rajeev Dhavan, said five years ago on this day:

“India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.”

For those forced to flee and  now stuck in a legal lacuna, India’s history of hospitality is meaningless.  They need legislated rights protection mechanisms and active efforts to ensure social, political, and economic inclusion in the present.

CONGEH’s Chairwoman Appointed to the Supreme Court

I hoped she would enjoy her gift, a traditional bowl of bowls made from local woods that I had picked out with the assistance of one of her close relatives. The occasion was significant and celebratory: Julienne Ayissi, the Court of Appeal justice who, on a parallel career track, acts as figurehead and chairperson of the CONGEH, was to be sworn in as a Councilor of the Supreme Court of Cameroon.

In broad strokes, the Supreme Court of Cameroon acts as the final appellate court in penal, administrative and civil matters. It also provides the final say for disputes governed by the state-recognized customary law.  The Supreme Court has also assumed jurisdiction over constitutional matters while President Biya and accomplices lag to establish the Constitutional Court envisioned in the Constitution.

Her house was hard to find. Towards the back end of a messy web of warped and deep-ridged mud roads – the kind that evidence the “informality” of the local housing – we would finally find a gated cement lot. Lawn chairs were being unloaded by the dozen, groups of women worked around mountains of fresh vegetables, while Mme Ayissi herself rushes to and fro, preparing herself for a meeting. “Everybody has taken this so seriously, I find it overwhelming,” she tells me, “It is not that big of a deal”. Her exasperation might have been expected. It is rumored that she has had to take out a loan to pay for all the gas consumed in traveling between preparatory meetings, where members of the judiciary, State officials, family members and even some village authorities have stressed the importance of her new position and of the values she should embody in her work at the country’s highest tribunal.

And, in spite of her humility, the appointment is significant. Ayissi is attentive to the needs and concerns of the landless and the vulnerable, particularly women infected or affected by HIV/AIDS. That kind of alignment is useful in a Court that has been known to have its way with the law, so to speak. In matters of family property and succession law, for instance, the Supreme Court has been known to ignore core, explicit Codal articles and to fabricate new rules or regimes un-tethered to either the Code’s provisions or to its evident philosophy. This assumed judicial liberty might well be rooted in a dissatisfaction with the Civil Code, which is, for most intents and purposes, the French Code Civile as it existed in 1960. It was originally adopted as a temporary, “gap filling” measure to hold the country over until the competent government bodies could enact a law proper to Cameroon. Some speculate that, in light of persistent legislative inaction, the Cameroonian judiciary has taken upon itself the task of adapting inherited foreign legal notions to local realities and philosophies. In any event, this assumed liberty makes the identity of the members of the Supreme Court all the more important.

After an official State ceremony oversaw the swearing in of all sitting magistrates, Ayissi was treated to two receptions, one for members of the legal community and another for family, neighbours and residents of Bana, her native community. Residents of Bana would impress upon her how she now represents Bana, and the Bamileke more generally, at the national stage. Her family would celebrate the success of one of their own, evidently satisfied with the kind of family status that will follow her appointment. Members of the CONGEH, also present, have reason to be excited as well. “She could one day become Minister of Justice!” says an elated colleague. For now, CONGEH stands to look more credible with a member of the Supreme Court at its helm, and can look to Ayissi’s appointment as a vindication of its philosophy and approach to development.

Her appointment does speak volumes of the relationship CONGEH has fostered with the Cameroonian government. Paul Biya would certainly not have seen a critic appointed to the country’s highest judicial body. But the CONGEH that I have been exposed to seeks more to assist the Government, and considers many elected representatives and government missives as partners. Colleagues of mine are proud that government officials have expressed a certain reliance on the contributions made by the CONGEH. Liaisons with government ministries in turn lend the organization some credibility. Moreover, having the attention of certain politically significant individuals allows the CONGEH to engage in more effective – and therefore more fund-worthy – advocacy work. No doubt, there are pervasive costs associated with aligning an NGO with a central African government. So it is a strange kind of accomplishment that, while some of the other human rights interns have served advocates that have been targeted by anxious governments, loathing dissent, CONGEH’s leading advocate was just promoted.

Cambodian Government Uses NGO Law to Silence Critics

By Siena Anstis

I just published an article which is basically an abstract of the major essay I wrote on ‘repressive legislation’ in Cambodia as a conclusion to the internship. You can view the original here and an abstract below:

In late July the Cambodian government released a third draft of its highly contentious Law on Associations and Non-Governmental Organizations (NGO Law). A number of provisions in the law have the potential to impair the activities of human rights and civil society actors in the country.

The draft law, in a likely violation of freedom of expression which is protected both in the Cambodian Constitution and the ratified International Covenant on Civil and Political Rights (ICCPR), makes it mandatory that any group of Cambodians (including clubs and networks) operating as a non profit in Cambodia register with the government. These bodies also have to fulfill a number of complex and technical registration requirements. If they fail to do so, the government has a ‘legitimate’ excuse to prevent them from operating. The Cambodian League for the Promotion and Defense of Human Rights (LICADHO), a human rights organization operating across Cambodia, dubs this approach the “tyranny of the technicality” and believes it is likely that the government will use this power to shut down entities advocating for human rights or reporting on government corruption.

For ‘informal networks’ or loosely associated groups of individuals like farmers and taxi drivers, who do not have the means to open bank accounts or have formal office addresses, these requirements could severely impair their ability to register. It may force a majority of them to operate illegally, rendering them even more vulnerable. These networks are key partners in the development process, providing first-hand information on the situation of at-risk groups in the country and assisting international donors who continue to fund about half of the Cambodian government’s budget.

While these concerns may seem speculative, there have already been a number of recent situations foreshadowing what is to come. For example, the Ministry of Interior, without any clear justification, arbitrarily closed an NGO called Sahmakum Teang Tnaut (STT). A few weeks before, the NGO had published a report finding that the compensation offered by the government to households affected by a government railway project and slated for resettlement was too low.

LICADHO’s director, Naly Pilorge, perhaps best summarized the overall effect of the NGO Law were it to pass: “Everything that would happen to informal networks under the draft law is already happening now [like STT being shut down]. If the law passes, it legalizes these restrictions.”

Repression through new laws

Activists believe the NGO Law is representative of a larger trend by the Cambodian government to use ‘repressive’ legislation to impair freedom of expression and assembly.

During his recent unofficial visit to the country, Frank La Rue, the UN Special Rapporteur on freedom of expression and opinion, dubbed this emerging Cambodian style of governance a “legal dictatorship.” Surya Subedi, the current UN Special Rapporteur on the situation of human rights in Cambodia, has called it a “legal offensive.”

Along with the NGO Law, the new Penal Code and the Law on Peaceful Assembly also facilitate this trend of repression through the courts in Cambodia.

Commenting on the Penal Code, the Cambodian Minister of Information, Khieu Kanharith, said: “Before, using the argument of ‘freedom of expression’ and opposition party status, some people could insult anybody or any institution. This is not the case now.”

Human rights bodies in Cambodia are particularly concerned by the possibility that Penal Code provisions like incitement to commit a felony and defamation will be indiscriminately used to silence activists in the same way the crime of disinformation under the former UNTAC Criminal Code was applied.

Two recent cases justify this concern:

A LICADHO staff member was charged with incitement during his appeal hearing in July. Originally charged with disinformation for distributing anti-Vietnamese pamphlets, the judge not only violated international fair trial standards, but also clearly affirmed that the court believes that this type of political leafleting can actually constitute an act to cause unrest in Cambodia or ‘incitement.’

A second case is that of Seng Kunnaka. In December 2010, Kunnaka, an employee of the World Food Program, was convicted on a charge of criminal incitement under the new Penal Code for printing and sharing material from KI-Media, an online blog that aggregates information critical of the government. He was sentenced to six months in jail and a $243 fine.

The third ‘repressive law’, the Law on Peaceful Assembly, is primarily giving the authorities a means to isolate and neutralize protests. The law provides for the creation of “Freedom Parks” across Cambodia. These parks are assigned zones for peaceful protests of up to 200 people. They are typically isolated from heavily trafficked areas. Authorities use the existence of these parks as an excuse to disperse peaceful assemblies not happening within their confines.

[Continued]

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