Faith and Feminism in Quebec, Canada

September 6, 2013 / Mallika Kaur / 3 Comments

Palbinder Kaur Shergill, Canadian litigator, once stood in court and heard opposing counsel argue that lawyers and judges with religious “symbols” such as turbans should not be permitted. In 2012, Palbinder was appointed Queen’s Counsel, still donning her classic black turban.

Palbinder is a Sikh, a feminist, and general legal counsel for the World Sikh Organization. She was called to the British Columbia Bar in 1991. Palbinder recently spoke with Harpreet Kaur Neelam and Mallika Kaur, board members of the Sikh Feminist Research Institute (SAFAR), about the importance of people-to-people contact in making change, whether around gender norms or responding to the recent reports around religious freedom curtailments in the province of Quebec.

SAFAR: Turbans, hijabs, yarmulkes, and Quebec are in the news again and many people are wondering about what the Quebec government is proposing, whether Quebec would really go this far?

Palbinder: The Quebec premier, Pauline Marois, has confirmed a bill is coming, but has not commented on reports that they plan to ban the wearing of religious symbols or clothing by public-service workers. A few years ago, a report was released by the Bouchard-Taylor commission after holding public hearings on the “reasonable accommodation” of minorities. The report rejected an outright banning of religious symbols by government employees but suggested that this might be necessary for some positions such as judges, crown prosecutors and police officers. Recent media reports suggest that the Quebec government is considering a broad ban through a bill that it will table this fall.

Honestly, I think if the government tries this, there will be a lot of backlash in Quebec. I don’t believe the majority of people in Quebec support this idea. As always happens, there is a small vocal minority. Unfortunately they seem to be disproportionately represented in the Quebec government.

SAFAR: To step back, can you first elaborate a little on Quebec’s policies around religious freedom in general?

PKS: Accommodation of religious minorities has been an issue in Quebec for a very long time. With respect to the Sikh community, it first came into focus around 2004 or so, when 12-year-old Gurbaj Singh Multani’s kirpan [article of faith, small sheathed sword] fell out in the school playground. This caused a lot of uproar from the parents of some students, and some teachers. The school suspended Gurbaj and told him that he could not come with his kirpan. Gurbaj sued the school board, but was unsuccessful up to the Quebec Court of Appeal. The Supreme Court of Canada overturned the Quebec Court of Appeal, and Gurbaj’s right to religious freedom was upheld. That decision, and another decision by the SCC relating to the orthodox Jewish community, have both not sat well with some people in Quebec. From their perspective, the Charter of Rights is being pushed down their throats. The validity of the Charter and its applicability to Quebec is an unresolved issue for them. Thus, there is a tension that has been created by some Quebec politicians between freedom of religion and what they call secularism.

SAFAR: It’s a very curious re-definition of secularism that is being attempted. Shouldn’t secularism mean the state’s guarantee of the freedom for all and preference to none?

PKS: Yes. The Canadian people have overwhelmingly shown an understanding that secularism is not about stripping people of religious identity, but ensuring that no one faith is given preference over another. As I pointed out to the Court of Appeal in Grant v. Canada, religious symbols abound in public institutions. Our Coat of Arms, our Constitution, all make reference to God. The Queen, who is our head of state, is also the head of the Church of England. We are thus not really a secular society at all. But for some people who have grown up surrounded by Christian signs and symbols, they may equate that with secularism, and are offended by other people’s outward displays of their faith. In my view, there is no struggle at all between secularism as it is expressed in Canada, and freedom of religion.

Continue reading →

IntLawGrrls at SEALS

August 7, 2013August 6, 2013 / Elizabeth Ludwin King / Leave a comment

The increasingly popular Southeastern Association of Law Schools annual conference is underway in beautiful Palm Beach, FL this week. Though not a conference focused on international law, there are a few panels with international topics, as well as several IntLawGrrls presenting. One of the great things about this conference is the focus on diversity in participants; because there are so many women listed in the program, we’re highlighting only those on panels focusing on international law and IntLawGrrls contributors. If we’ve missed anyone, please let one of us know!

Sunday, Aug. 4:

Naomi Cahn

“Discussion Group: Children’s Issues” – Naomi Cahn (The George Washington University Law School) (photo credit)

“Arbitration of Internal Trust Disputes: Bold New Frontier or Disaster in the Making?” – Stacie I. Strong (University of Missouri School of Law) (photo credit)

Stacie I. Strong

“The Intersection of Reproductive Rights and Class” – Naomi Cahn (The George Washington University Law School)

“Experiential Legal Education: Assessing the Present and Imagining the Future” – Johanna Bond (Washington and Lee University School of Law) (photo credit)

Johanna Bond

Monday, Aug. 7:

“Experiential Legal Education: Imagining the Future and Integrated Education” – Johanna Bond (Washington and Lee University School of Law) (photo credit)

Tuesday, Aug. 6:

“The Rise and Fall of the Wagner Model: An International and Comparative Perspective” – Charlotte Garden (Seattle University School of Law) (photo credit), Orly Lobel (San Diego University School of Law) (photo credit)

Orly Lobel

Charlotte Garden

Wednesday, Aug. 7:

“New Scholars Colloquia: Justice/International” – Rachel VanLandingham (Stetson University College of Law) (photo credit)

Rachel VanLandingham

Thursday, Aug. 8:

“New Scholars Colloquia: Constitutional Law: Federal Courts” – Yvonne Dutton (Indiana University, Robert H. McKinney School of Law) (photo credit)

Yvonne Dutton

Friday, Aug. 9:

“Building New Democracies: Lessons from the Third Wave for the Arab Spring” – Rachel Rebouché (University of Florida Levin College of Law) (photo credit)

Rachel Rebouche

“New Scholars Colloquia: Insurance/Business Associations” – Elizabeth Ludwin King (Wake Forest University School of Law) (photo credit)

“The Law and Politics of International Prosecutions” – Elizabeth Ludwin King (Wake Forest University School of Law) (photo credit), Milena Sterio (Cleveland State University, Cleveland-Marshall College of Law) (photo credit), Margaret Spicer (Florida State University College of Law)

Margaret Spicer

Milena Sterio

Fear Mongering and Oppression: Two for the Price of One in the NC Legislature

July 8, 2013July 8, 2013 / Sarah Stephens / Leave a comment

Mere moments before Americans celebrated Independence Day, the North Carolina Senate gave its final approval to legislation targeted at outlawing the use of Sharia (or Islamic) law and severely restricting the right to abortion.

The bill, text of which is available here, started out as a meaningless attempt by legislators to portray themselves as protecting the fundamental rights of the people from those scary foreign laws (i.e. the laws of countries where the law must be interpreted accord to the precepts of Islam). The law basically states that North Carolina will not apply the laws of a foreign jurisdiction in its courts, nor will it transfer a case to a foreign venue if doing so would mean that the fundamental rights of an American, as guaranteed by the United States and North Carolina Constitutions, would be violated. The reality is that this is already the law. Conflict of law principles, which help courts determine whether to apply the law of its jurisdiction or the law of another state or another country, dictate that public policy concerns – such as the violation of an individual’s fundamental rights – would prevent that court from applying the law of a foreign jurisdiction or transferring the case to a foreign venue, even if the parties had previously agreed to the application of such foreign law. All the law actually does is increase xenophobia, it is a scare tactic aimed at increasing anti-Muslim sentiment in the community. Unfortunately, if passed, the law may also have unintended effects such as impinging on international treaties and souring international business relationships.

Legislators in North Carolina were not satisfied to stop there. Renaming the bill the “Family, Faith, and Freedom Protection Act of 2013,” the Senate added anti-abortion measures to the unrelated bill late Tuesday, where they were passed by the Senate on Wednesday. The new bill would restrict health care coverage for abortions, ban sex-selective abortions, require physicians to be present during a chemical (pill) abortion, and require clinics performing abortions to meet the requirements of an ambulatory surgical center. According to news reports only one clinic in the state would meet those requirements.

On Wednesday, hundreds protested the last minute additions to the bill.

What make me curious is why are these types of bills being proposed with increasing frequency? Why were the anti-sharia and the anti-abortion bills proposed together? From what exactly is the North Carolina legislature protecting its citizens? And, don’t they have anything better to do?

The bill will need House approval before it goes to Republican Governor Pat McCrory‘s desk. The legislation will be taken up this week.

Canada’s Supreme Court to Hear Controversial Case Challenging Restrictions on Sex Work

June 12, 2013June 11, 2013 / Alexandra (Sasha) Filippova / 2 Comments

Tomorrow, on June 13, 2013, Canada’s Supreme Court will hear a controversial case regarding the constitutionality of three criminal law provisions restricting sex work in Canada. Although the proceedings are currently under seal, they will be broadcast live and archived on the Court website, here. The hearing is scheduled for 9:00 a.m. EST.

Plaintiff Terri-Jean Bedford

Attorney General of Canada, et al. v. Terri Jean Bedford, et al. will resolve a six-year court battle over this controversy, which began when three sex workers in Ontario challenged the constitutionality of three Criminal Code provisions in 2007. The provisions at issue in the case prohibit brothels (“bawdy house” provision), “living off the avails” of prostitution, and communicating for the purpose of prostitution in public. The applicants argue that these laws violate sex workers’ constitutional rights to security of person by forcing them to evade police notice and thus to engage in their (lawful) occupation in more hazardous environments.

Ontario Superior Court’s Justice Susan Himel agreed with the plaintiffs, holding that all three provisions are unconstitutional. (Her full opinion may be found here). On March 26, 2012, the Court of Appeal for Ontario affirmed Justice Himel’s ruling with respect to the bawdy house provision of the Criminal Code, holding that it violates the constitutional rights of Canadian sex workers by forcing them to work outside, thus exposing them to greater risk. However, the Court of Appeal reversed Justice Himel with respect to the communications provision, essentially outlawing street prostitution. The Court also upheld the constitutionality of the “avails” provision but rewrote it to make clear that it applies only “in circumstances of exploitation,” and thus permits sex workers to take safety precautions, such as working in groups or hiring bodyguards. (The full five-judge panel’s decision may be found here). Both the government and the original plaintiffs appealed.

A number of advocacy organizations have intervened on both sides of the case, highlighting the ongoing public controversy regarding sex work and surrounding concerns about exploitation, human trafficking, as well as personal agency, gender inequality, and social morality. (Read more about the ongoing rift within the sex worker advocacy community here). Thursday’s hearing will be an interesting next chapter of a debate that will shape the lives and safety of Canada’s sex workers and may well inform similar discussions in other countries struggling with similar regulatory challenges.

It is worth noting that all three provisions implicated in the case remain in effect pending the Supreme Court’s decision, a legal limbo that sex worker safety advocates argue endangers some of the most vulnerable individuals in Canadian society.

Call for Papers: New Voices in Comparative Law Panel

May 22, 2013 / Aparna Polavarapu / 1 Comment

Abstract Deadline: June 24, 2013

The Younger Comparativists Committee of the American Society of Comparative Law invites submissions to fill a panel on “New Voices in Comparative Law,” to be held at the Society’s 2013 Annual Meeting in Little Rock, Arkansas, on October 10-12 at the University of Arkansas at Little Rock, William H. Bowen School of Law. The purpose of the panel is to highlight the scholarship of new and younger comparativists.

Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers for ten years or fewer as of July 1, 2013.

The Scholarship Advisory Group of the Younger Comparativists Committee will review submissions with the authors’ identities concealed. A maximum of two submissions will be chosen for the panel. Submissions will not be accepted from scholars whose work has been featured in a prior younger scholars’ panel at the Society’s Annual Meeting.

The scholars whose entries are selected for the panel will be required to submit a final paper no longer than 30,000 words by August 22, 2013.

To submit an entry, scholars should email an abstract of no more than 1000 words (including footnotes) no later than 12:00pm EST on June 24, 2013, to Judy Yi at the following address: judy.yi@bc.edu. Abstracts should reflect original research that will not yet have been published by the time of the Society’s Annual Meeting. The abstract should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, and contact information. The abstract itself must not contain any references that identify the author or the author’s institutional affiliation.

The Younger Comparativists Committee is pleased to announce that LexisNexis will award a Book Prize to the author of the paper judged most meritorious by the Scholarship Advisory Group.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee, by email at richard.albert@bc.edu or telephone at 617.552.3930.

Citizens’ challenges to statutes said to strengthen French constitutional spirit

March 20, 2013 / Diane Marie Amann / 1 Comment

“‘It took us more than two centuries to admit that a law could be imperfect and the people’s representatives uninspired. That a government and its majority often act too hastily, with the result that the Constitution is mistreated. That protecting the Constitution promotes liberty. Two centuries to admit that, on this point, the American Revolution has been more just than the French.'”

Thus does LeMonde quote French law professors Guy Carcassone and Olivier Duhamel. (All translations from the French original mine.) The quote appears in “Au ‘non’ de la loi,” reporter Patrick Roger’s fascinating analysis of how a 2010 law permitting private individuals to challenge the constitutionality of statutes has transformed both the theory and practice of separation of powers in France. (IntLawGrrl Naomi Norberg described the reform in this 2009 post.)

As Roger describes and constitutional comparatists well know, post-Revolutionary France relied on the view that statutes were the expression of “volonté générale,” the “general will” advanced by 18th C. political theorist Jean-Jacques Rousseau. Inroads into that “doctrine of the infallibility” of the Parlement français began with the establishment of a constitutional council, the Conseil constitutionnel, in France’s 1958 Constitution. In its 1st decades the Conseil hesitated to question laws; that changed in 1971, when the council determined that a law did not conform to the Constitution. In so doing, Roger reports, the Conseil referred not only to the 1958 document,

‘but also to the “fundamental principles” of the 1789 Declaration of the Rights of Man and the Citizen, reprised in the preamble of both the 1946 and the 1958 Constitutions. This “bloc of constitutionality” – that is, the ensemble of norms of constitutional stature – established the foundation on which the Conseil has constructed its jurisprudence.’

Added to this new foundation were statutory revisions that expanded the pool of potential plaintiffs, culminating in the 2010 reform. The result? Today the majority of statutes undergo review by the council; according to the LeMonde report, that fact has instilled in legislators a new awareness of their constitutional duties. Claims the Conseil‘s President, Jean-Louis Debré:

‘”The Constitution henceforth belongs to the citizenry.'”

(cross-posted from Diane Marie Amann)

Spanish Supreme Court Overturns Municipal Ban on Burqas

March 13, 2013 / Alexandra (Sasha) Filippova / 2 Comments

In a ruling made public on February 28, the Spanish Supreme Court voided the Catalan city of Lleida’s 2010 ban on wearing the

Women wearing burqas in the street (Photo credit: Wikipedia)

burqa in public places, which included a fine of up to 600 euros. The Court held that the city lacked authority to limit constitutional rights such as freedom of religion, which could be curtailed only through Acts of Parliament, and that it had acted beyond the scope of local authority in enacting the law. However, the Court refused to reach the broader question of whether a national law prohibiting the wearing of burqas throughout Spain would be constitutional.

In so holding, the Court rejected the city’s contention that use of the burqa by Muslim women disrupts everyday life, finding no support for this proposition. The Court also rejected the city’s argument that the burqa should be banned because Muslim women are compelled to wear it, speculating that a ban could have the effect of forcing such women to stay at home because they would not be allowed to walk in public without it. Last, the Court contemplated the treatment of this question by other national jurisdictions but found no unanimity. The appeal before the Court was filed by the Watani Association for Liberty and Justice.

(Hat tip to Prof. Nicolas Zambrana Tevar for sending this report.)

Protection (from rape) or Freedom (to have sex)?

March 13, 2013March 14, 2013 / Sital Kalantry / 2 Comments

The debate in India surrounding reforms to the sexual violence laws are a reflection of the changing mores in Indian society. With economic liberalization in 1991, a strong middle class with access to new goods, movies, and ideas has emerged. As a result of the mass protests in the aftermath of the brutal gang rape and death of Jyoti Singh Pandey, the President signed an Ordinance reforming the sexual violence laws on February 3, 2013. (The Ordinance took some provisions from an amendment to the Indian penal code that was pending in Parliament prior to the gang rape and adopted some provisions suggested by the Verma Committee report, but rejected other important provisions from that committee. The Verma Committee was formed by the government after international and national attention focused on the issue of gender-based violence). Article 123 of the Indian Constitution permits the President to put into place laws that have the weight of an act of Parliament when Parliament is in recess. But the Ordinance expires on April 4 unless Parliament adopts it or an amended version of it. The real deadline they are racing against is March 22 because Parliament is in recess again after that.

Key areas of disagreement such as the marital rape exemption and the availability of the death penalty in some cases of rape remain. Yesterday The New York Times India blog highlighted one issue of debate — whether the age of consent for purposes of the statutory rape provision should be 18 or 16. The Ordinance placed the age at 18 but prior to that it was 16. The new bill that is being considered seems to have lowered the age of consent to 16.

It is some prominent feminist lawyers that have argued in favor of lowering the age of consent. Indira Jaising points out that “[i]t is quite normal for people to have sexual relations at 16 or 17 years of age. . . . How can we make illegal what is normal?” Additionally, Flavia Agnes pointed out in an article that appeared in Asian Age on December 23, 2012 that “one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes.” Thus, if the age of consent was increased, it would give parents more opportunities to mis-use the law. Continue reading →

Cyberlaw conference

March 11, 2013 / Audrey Guinchard / 1 Comment

As the internet has become ubiquitous, so has cyberlaw grown in importance and influence in our lives. Not one day goes by without hearing and/or reading of legal issues of e-commerce, cloud computing, data protection, intellectual property rights, cybercrime, to name a few. At national level, Governments multiply regulations of the use of internet and new technologies. But increasingly the international dimension of cyberlaw cannot be ignored.

The Cyberlaw Section at the British Society of Legal Studies (SLS) has issued a call for original research papers to be presented at the 2013 SLS Annual Conference from 3rd to 6th September 2013 at the University of Edinburgh, Scotland, UK. The goal of the SLS Cyberlaw Section is to provide a forum where legal scholars and practitioners can gather together to update each other on current developments in cyberlaw and discuss high-quality research relevant to legal issues in the information society. Papers in every discipline of law are welcome.

If you are interested in presenting a paper, please indicate your interest or submit an abstract (within 300 words) to faye.wang@brunel.ac.uk by the 15th March 2013. More information is available at http://cyberlawsection.wordpress.com/2013/02/12/call-for-papers-2013-2/ or http://sections.legalscholars.ac.uk/news_item.cfm?no=361.

Audrey Guinchard (on behalf of the SLS Cyberlaw Section)’