A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

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The Akayesu Judgment at 20: looking back, pushing forward

Twenty years ago, on September 2nd, 1998, the International Criminal Tribunal for Rwanda (ICTR) handed down a landmark trial judgment in the Akayesu case: the first to define rape as a crime against humanity, and the first to recognize that rape and other acts of sexual violence are constitutive acts of genocide. The defendant, the mayor of the Rwandan town of Taba, was found guilty of genocide and crimes against humanity for acts he engaged in and oversaw against Taba’s Tutsi residents, including murder, torture, rape, and other inhumane acts.

Throughout its findings, the ICTR Trial Chamber surfaced gender in its legal analysis, illuminating the gendered experience of mass atrocities, and underscoring how the perpetrators’ and victims’ understanding of gender influenced the planning, commission, and impact of a wide range of genocidal acts.

Akayesu‘s ground-breaking findings owed less to the Prosecution’s case theory – which originally failed to include charges of sexual violence, despite the rape of between 250,000 and 500,000 women and girls between April and June 1994 – than to the Coalition for Women’s Human Rights in Conflict Situations. Formed by feminist activists in 1996, the Coalition mobilized around the ICTR’s failure to investigate and prosecute sexual violence. As prosecution witnesses, who were primarily female survivors of the genocide, gave first-hand accounts of sexual violence, the Coalition submitted an amicus curiae brief calling upon the Trial Chamber to use its authority to invite the Prosecution to amend their Indictment to include charges of rape and other acts of sexual violence.

One of the suggestions in the amicus was that the Prosecution charge rape and sexual violence as acts of genocide, arguing that they were essential components of the genocide, and were designed to “destroy a woman from a physical, mental or social perspective and [destroy] her capacity to participate in the reproduction and production of the community.” An oft-cited passage in the Akayesu Judgment, echoes aspects of this argument:

Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. […] Sexual violence was a step in the process of the destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself.

On the 20th anniversary of Akayesu, two things are evident.

First, despite the judgment’s pioneering nature, a gendered understanding of genocide (and international crimes, more generally) still needs to be consciously asserted in investigations, analysis, and prosecutions. The legal avenues opened by Akayesu were, for a long time, not seized upon by prosecutors; the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecution’s practice of charging rape occurring during the genocide as crimes against humanity and/or war crimes, rather than genocide, continued. Decades later, the analysis and reporting of genocide continues to revolve around an understanding of genocide as a crime committed through organized mass killings. Killing remains the privileged genocidal act, and consequently the examination of the risk and commission of genocide has largely, and unhelpfully, revolved around the numbers killed. Akayesu notwithstanding, the majority of genocide convictions in both the ICTR and ICTY have been based on instances of mass executions, founded upon strategies geared towards achieving the immediate physical destruction of (predominantly male members of) the protected group.

Second, the work of asserting a gendered analysis of international crimes continues largely to be done by feminist jurists and practitioners, most of whom are female. While it is not the role of female lawyers and activists to bring to light the experience of women and girls in jurisprudence, the task has too often fallen on their shoulders. Akayesu would not have been the landmark case it is without the work of the female-led Coalition; the Judges, notably Judge Navanethem Pillay; and the Chamber’s Legal Officers, notably Cecile Aptel. At the ICTY, three female lawyers and investigators led the development of the evidence of crimes committed in Foča with an express focus on building a case that reflected the organized way rape was used as part of ethnic cleansing. As a result, the Kunarac Judgment found sexual enslavement and rape as crimes against humanity. At the International Criminal Court (ICC), it was under the auspices of the first female Chief Prosecutor, Fatou Bensouda, that a gender strategy for investigations and prosecutions was developed.

The red thread of genocide continues to course its way through human history. In June 2016, the UN Commission of Inquiry on Syria determined that ISIS was committing the crime of genocide against the Yazidis of the Sinjar region of northern Iraq. In August 2018, the UN Fact-Finding Mission on Myanmar held that there was sufficient information to support an inference of genocidal intent regarding the actions of Myanmar’s security forces against the Rohingya. Having failed in its obligation to prevent genocide, punishment remains a priority for the international community. The UN’s recent report on Myanmar has reinforced calls for the Security Council to refer the situation in Myanmar to the ICC. For the Yazidi genocide, the path to justice is likely to be forged through national courts, including, hopefully, in Iraq. The Iraqi Investigation Team, created by the Security Council, has just begun its work.

As the push for accountability for the Yazidi and Rohingya genocides continues, it is essential that prosecutors and activists alike ensure that acts of genocide, beyond the act of killing, are fully investigated, properly indicted, and raised at trial. As women and girls are more likely to survive genocide, any ensuing trials rely heavily on what they have seen, heard, and suffered. A conception of genocide that relies on them bearing witness to killings (usually but not solely of male members of the group), and which turns away from all non-lethal acts of genocide (usually but not solely visited on female members of the group) is a harm to the survivors, the group, the historical record, and to our understanding of the crime of genocide.

When genocide is recognized only its most murderous articulations and gendered genocidal crimes such as rape, torture, forced pregnancy, and enslavement are ignored, States and international organizations lose much of their power to uphold the legal obligations to prevent and punish genocide. When the gendered crimes of genocide are excluded from prosecutions, the living survivors of genocide are denied justice and history yet again erases the experiences of women and girls.

In 1998, Akayesu’s gendered analysis was ground-breaking. In 2018, it’s never been more necessary.

 

 

 

 

 

 

 

Shanghai story opens World Affairs Council Young Leaders’ China sojourn

This month I’m on a business tour of China, as a World Affairs Council of Atlanta Young Leaders Fellow and in my capacity as Director of Global Practice Preparation at the Dean Rusk International Law Center, University of Georgia School of Law. Traveling with me are eleven others, many from globally minded businesses. I’ll post on my travels throughout the trip; my 1st dispatch is below.

img_0315SHANGHAI –

“Confucius said: it is such a delight to have friends from afar.”

And so began our first day in China, with a warm welcome from Professor Yang Li, Vice-President of Shanghai International Studies University (SISU). He shared his hope that through our exchange, “the distance between American and Chinese businesses will be bridged.” These sentiments were echoed by Kimberly Griffin, Deputy Director of the Confucius Institute at Georgia State University, and Paulina Guzman, Membership Manager at the World Affairs Council of Atlanta.

Our opening ceremony took place in the state-of-the-art conference facilities at SISU, one of the top universities in China for students of translation and interpretation. We all felt quite official, with headphones, tablets at each of our seats, and interpretation provided by the Dean, Zhang Ailing. The ceremony closed with our hosts presenting us with a lovely gift of custom-made SISU jackets.

img_0316We were then treated to a lecture by Dr. Zhang Shangwu, Professor and Deputy Dean of the College of Architecture and Urban Planning at Tonghi University. He introduced us to the historical expansion of the city of Shanghai, and its newly unveiled 2040 development plan. Shanghai has always been an important city in the region because of its rich water resources from the Yangtze river delta. Following the 1840 opium wars, the city started to take shape as an international center of commerce, because of the concessions granted to various foreign governments in the aftermath of the war. Official urban planning began in the 1920s and 1930s, but intervening conflicts and political changes meant that many of these projects were never completed.

It wasn’t until the 1990s that the Shanghai Master Plan was adopted as the blueprint of development for the city. This was a critical because it emphasized the four major areas of industry that would define the city going forward: economy, finance, trade, and shipping. It also aimed to control the incredibly densely populated city – at that time, 9 million people in fewer than 700 square kilometers – by moving approximately 80,000 people to satellite cities built to absorb them. This plan was bolstered by China’s accession to the World Trade Organization in 2001, and showcased when Shanghai hosted the 2010 World Expo, which focused on urban life. The latter also drove a new wave of infrastructure development, including a deep water port, two international airports, and a vastly improved metro system.

img_0317The economic crash forced Shanghai to re-envision its future, as the manufacturing industries and accompanying trade suffered. The city faces many challenges, including a steady population growth rate and a dwindling supply of land as urban sprawl expands. Accordingly, the 2040 plan aims to re-position the city by adding three new areas of focus to those emphasized by the 2010 plan:

► Innovation, especially in the areas of the tech and service industries;
► Culture, to make the city more attractive to newcomers and livable for current residents; and
► Environment, to include increased outdoor spaces and sustainable growth mechanism.

The overall goal is to create a better city that offers a better life.

From what we’ve seen so far, Shanghai is indeed an incredibly organized city for a place so densely populated. I look forward to exploring more and seeing this development plan in action.

(Cross-posted from Exchange of Notes blog)

Write On! Call for Papers: Colonial Law Conference, Helsinki (deadline March 1)

eci20ryhmakuva-7-349pxThe Erik Castrén Institute of International Law and Human Rights at the University of Helsinki has announced a call for papers for the Conference “Law Between Global and Colonial: Techniques of Empire,” to be held from 3-5 October 2016.

The conference proposes to discuss the legal languages and techniques through which colonial powers ruled non-European territories and populations throughout the modern age. The aim of the conference is to examine in detail the juridical practices and discourses of colonial powers when they exercised their supremacy over colonial subjects and disciplined them. Although the focus of the conference is historical, its theme resonates in the present. With the great numbers of people moving about in Europe, Asia and Africa as migrants, guest workers, refugees and displaced persons, territorial states have often used methods and techniques that resemble those with which colonial populations once were treated. With research showing a sharp rise in world inequality, the conference poses the question whether legislative techniques and institutions inherited from the imperial past, once again see the light of day in the present.

The conference will close the four and a half-year period of the Finnish Academy research project on “International Law, Religion and Empire” at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. Members: Martti Koskenniemi, Paolo Amorosa, Mónica García-Salmones, Manuel Jimenez and Walter Rech.

Abstracts are due by March 1. For more information, see the full Call for Papers at http://www.helsinki.fi/eci/Events/Call_for_Papers_Colonial_Law_2016.pdf.

 

The Republic of the Philippines v The People’s Republic of China: A question of jurisdiction

The dispute in the South China Sea continues to be played out on the global stage with no resolution yet in sight. Tensions endure as the Philippines pursues its quest for arbitral resolution, whilst China continues to stake its claims in the area despite the ongoing litigation. Satellite photographs have been released in recent months of Chinese barges enlarging the size of reefs and islands, and the building of airstrips and harbours to accommodate jets and warships. This demonstrates China’s determination to assert its ownership of virtually the entire South China Sea.

Image Credit: www.smh.com.au

[Image Credit: http://www.smh.com.au ]

The Philippines has challenged the basis of China’s territorial claims by way of arbitral proceedings, and lodged a Memorial in March 2014. The Arbitral Tribunal (for which the Permanent Court of Arbitration acts as a Registry) fixed 15 December 2014 as the date for China to submit a Counter-Memorial in response, however no such document has been forthcoming. The Chinese Government has previously stated in a Note Verbale that it will ‘neither accept nor participate in the arbitration unilaterally initiated by the Philippines.’  Article 287(3) of the United Nations Convention on the Law of the Sea 1982 (LOSC), which both States are party to, requires States to select a preferred means of binding dispute resolution involving third parties, and if they fail to do so, arbitration under Annex VII becomes the default means – unless reservations have been made in writing with regard to optional exceptions (see below). As China and the Philippines have not agreed on a binding mechanism, they are deemed to have selected arbitration unless the aforementioned exceptions apply. Article 9 of that Annex provides for default of appearance; namely if one of the parties fails to appear before the arbitral tribunal, the other party may request that the tribunal continue its proceedings and make an award. This may well be the approach of the Tribunal in this case, as China refuses to participate.

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The Historic Journey to Respond to the Kim Regime’s Crimes Against Humanity

“A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history.” Mahatma Gandhi

 A little over a year ago, history was made at the 25th session of the United Nations Human Rights Council (HRC) when three UN commissioners released a report finding, based on a “reasonable grounds” standard, that “systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials.” The three commissioners had just spent the better part of a year carrying out their UN mandate to investigate potential human rights violations, per HRC resolution 22/13, as members of the new Commission of Inquiry on Human Rights in North Korea (COI). The commissioners collected evidence and heard witness testimony of crimes committed by North Korean officials that “shocked the conscience of humanity.” They stated that based on the body of testimony and other information “crimes against humanity have been committed in [North Korea], pursuant to policies established at the highest levels of the State.”  The commissioners called on North Korea to undertake profound reforms to provide its citizens with basic human rights, including recommending that North Korea first “acknowledge the existence of human rights violations, including the political prison camps.” Undoubtedly, their work shined the spotlight brighter on one of the darkest places in the world and was instrumental in catalyzing international attention on the suffering of North Koreans under the Kim Family Regime.

One Year After the COI Report: On February 17, 2015, the Center for Strategic and International Studies (CSIS), the Committee for Human Rights in North Korea (HRNK), Yonsei University Center for Human Liberty, and The George W. Bush Institute co-sponsored an unparalleled conference in Washington, DC on “the road ahead” for North Korean human rights, which North Korea protested. The conference aimed to carry the momentum of the COI report, findings, and recommendations forward and commemorate the one-year anniversary of the Commissioners’ report.

Since this historic report, history continues to be made and a new path forged by all parties involved. For the first time, the issue of the human rights situation in North Korea, “without prejudice to the item on non-proliferation,” was put on the UN Security Council’s agenda for ongoing attention in a decision adopted 11:2:2 (with votes against from China and the Russian Federation). In addition to the perseverance demonstrated by civil society organizations in propelling human rights up front, a key COI recommendation calling on the UN to ensure “that the most responsible for crimes against humanity committed in [North Korea] are held accountable” played a vital role in creating this momentum. Although there has yet to be a Security Council referral to the International Criminal Court, the UN has moved many steps closer on the path toward accountability of the Kim Family Regime’s ongoing crimes against humanity.

Over the last year, the commissioners’ COI report has shown the international community that North Korea is increasingly more responsive and motivated to counter findings that its leader, in particular, could be held individually responsible for international crimes, specifically crimes against humanity. In addition, there have been good arguments, as noted by law firm Hogan Lovells in a report commissioned by Human Liberty, that North Korea’s State-controlled officials could be found to be committing genocide by targeting groups labeled as “hostile class,” Christians, and children of Chinese heritage.

Undoubtedly, the commissioners and their report laid the groundwork necessary for these historical milestones to occur, and they have also put other States with North Korea relations on notice that they could be aiding individuals responsible for crimes against humanity by supporting the State. It will be interesting to see how the current ten non-permanent Member States view the issue of North Korea’s human rights violations as related to international peace and security going forward.

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An Argument for Construction of Common TWAIL-Based Identity in East and Southeast Asia

The Unequal Treaties weave the narrative of state transformation and the deconstruction of the Sino-centric regional order in the Southeast Asia. A chain of empires and kingdoms—extending from the Korean plateau in the northeast, Japan, the Qing Empire, and the Kingdom of Siam in the southeast, were faced with relentless diplomatic pressure under the shadow of gunboats, and coerced into entering into biased and one-sided treaties. Across the region, these treaties set out a pattern of relations, which formed the infrastructure of a semi-colonial political system. Not only the unequal treaties forced the semi-colonial states to reform and restructure themselves to suit the needs of the Western powers, they also provided a new institutional framework for international politics in the region. The post-Westphalia concepts of sovereignty and equality displaced the traditional hierarchy-based system of inter-state relations in the region. As the nineteenth century turned over, the Western powers systematically fractured the former Sino-centric regional structure by carving out spheres of influence, and left it littered with bitter political disputes and legal anomalies that continue to this day.

However, a lesson in history is not where this discourse on Unequal Treaties ought to stop. This is so particularly because the current international legal regime is still frequently used to legitimize and sustain the unequal structures and processes that have manifested themselves in the growing North-South divide. The relationship between ‘state’ and ‘international law’ is being reconstituted to the distinct disadvantage of the Third World and its people. As in the past two centuries, the policies and laws of the Third World states are still being dictated by the international institutions that are conspicuously controlled by the ‘First World’. It is not in vacuum that the terms like ‘neo-colonialism’ or ‘neo-imperialism’ have been coined. Many of the Southeast Asian States forming a part of the Third World, have witnessed debilitating economic meltdowns and severe political interferences because of such a structure of the international order that infiltrates and superimposes the interests of a transnational ruling elite on the developing states.

It is at this juncture that the ‘Third World Approach to International Law’ (TWAIL) be taken into serious consideration. TWAIL – a critical school of international legal scholarship — is an intellectual and political movement formed by a group of states, which are, although geographically, culturally, politically, and economically diverse, bound by a shared colonial past. It is a coming together of such States to build a common platform to consolidate the sources of international law in order to articulate and address the material and ethical concerns of the region and its people. TWAIL seeks to pierce the partial blindness induced by the structural determinism of the omnipresent and penetrative international legal regime, which has in turn prevented a holistic critique of the regressive international practices, or mapping out alternative futures. This approach has come a long way from its first generation foundational phase to inter-state forums being set up on the basis of their common history and shared goals. TWAIL may not be dismissed as a mere theoretical proposition or a wishful radical transformation, as it proves its practical and real-life functionality. A most recent and a gem of an example is the setting up of the New Development Bank by the BRICS States. By establishing this new multilateral bank, the BRICS States have decentralized the power previously held by IMF, and the World Bank, which were always complained to be too American or Eurocentric. The success of the BRICS Bank is yet to be assessed in coming years, but the establishment of such an institution, which may mark the emergence of a new financial order, by a handful of developing states, is a laudatory act in itself. 

Witnessing the continuing imposition of structural inequality in Southeast Asia, affected through partisan application of International Law, the central proposition calls for construction a common TWAIL-based identity for the region. Drawing largely from the Constructivist theories in international relations, it can be plausibly argued that construction of an identity based on doctrinal epochs of TWAIL will create an intersubjective system based upon shared history, mutual understanding and social knowledge, and common understanding. This will be instrumental in helping the Southeast Asian states to positively identify their interests with regard to each other in larger international forums. Once this shared identity is settled into the consciousness of the States in the region, it can be evolved into  a political platform to gain leverage in international negotiations on the issues of common regional concern, and for establishment of new institutions and regional orders, howsoever the need be.

Hopefully, by reclaiming the narrative and turning over the rhetoric through TWAIL, this long continuing discourse of the unequal treaties will come to an end in this era.