RSS FeedSarkozy Wants to Ban the “Burqa”
French President Nicolas Sarkozy stated this past week that he is interested in banning the “burqa,”
The burqa is not a religious sign, it’s a sign of subservience, a sign of debasement — I want to say it solemnly. It will not be welcome on the territory of the French Republic.
But Sarkozy is not really talking about the burqa, he’s referring to the niqab. His nomenclature is borrowed from his selected exposure via media to the Afghan chadri, which is almost never worn outside of Afghanistan or neighbouring countries. It may seem like semantics, and some neo-cons have argued banning both.
Ignorance over terminology is not the only issue here. It’s premised on the assumption that it’s involuntary, and not a bona fide religious requirement.
There are certainly disagreements among Muslims about the use of face-coverings, and certainly those that believe it is mandatory.
The assumption that these garbs are forcibly imposed on women by men living in France reflects its own type of paternalism about the empowerment and ability of minority women.
If there are cases where women are being forced, it would not be upheld under any human rights standards. But for women who are being forced, is not the most likely outcome that they would now be forced to stay inside: leading to further disempowerment?
For women who are choosing to dress in this way, Sarkozy’s ban would have a difficult time justifying necessity or protection of rights and freedoms under Article 9 of the European Convention on Human Rights,
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
If his ban was to proceed, it would likely receive a challenge to the European Court of Human Rights (ECtHR). If brought by women wearing a niqab out of their own volition and a belief that it is part of their religion, any such uniform ban is unlikely to succeed.
Do you have a right to marry a foreigner?
Not effectively. Not, if you want to stay in your own country, Canada. In that case, marrying a foreigner is a privilege granted by the government. The Star reports today about exorbitant refusal rates for sponsoring spouses from some parts of the world.
Although the initial reaction to this story may be focused on the discrimination, whether you approve it or not, Canadians’ civil rights and access to justice are at stake here. The government has discretion in screening sponsorship applications. It means there is little recourse in rejected cases and the government doesn’t have to give you reasons.
Fair?
(post sponsored by advicescene.com)
Federal Court Slams CSIS (Again)
Pretty soon this won’t be news.
Law profs throw their weight behind Legal Aid boycott
Here is the story from the Globe. On one side, we have a potential boost for access to justice at the cost of a definite short-term harm to the rights of the accused. On the other, it’s a slow flight of defence lawyers from the Legal Aid system.
Another effect of the status quo is a growing scarcity of mentors for young lawyers, according to Professor Tanovich. Should the state indirectly subsidize young lawyers’ training in the private bar? I say, yes. Or only the rich will afford good lawyers, while middle-class clients will be stuck with lawyers who use them to train themselves.
(post sponsored by advicescene.com)
Mau Mau to sue the British Government
First Posted on Commercial Law International on June 24, 2009.
Concentration Camps
By Charles Wanguhu
The above move by the Kenyan freedom fighters to sue the British government has elicited some very interesting responses from some readers of the times online paper:
This is all about money and bashing the UK. Africa does not want to take responsibility for its current problems
Also if this happened in the 50’s so why have they waited till now?
Lawyers and Money again: A poisonous mix. Why after so long drag up these horrors. The Mau Mau allegedly used to drink the blood of the white farmers they killed. The British allegedly tortured Mau Mau. What good can come of this knowledge now? Time to put these things back in the box of history
While the above sentiments may be of a few it may be worth placing their arguments in a context. Firstly during the emergency in Kenya loads of kikuyu men were rounded up and accused of being Mau Mau based on accusations by guards who were collaboratoring with the british. We can therefore not claim that all those held in prison camps tortured and killed were indeed Mau Mau fighters.
Secondly what is more at stake is the recognition by the UK government that it was official colonial policy to run concentration camps and that it was sanctioned at the top.
In the article :
Professor Anderson states that is doubtful the lawsuit in its current form — targeting the state rather than those surviving individuals who allegedly carried out the abuse — will succeed.
“There can be no doubt that torture was used by British Forces . . . but the question remains ‘who is responsible?’,” he said.
Whoever this notion is flawed in that when a criminal offence occurs it is not the role of the victim to seek evidence against the offender and then bring in criminal charges against them. When a state decides to open up institutions of incarceration it is the states responsibility to ensure that the inmates are treated in a humane way and not subjected to torture. In this instance the British colonial state failed in their duty and they should therefore be brought to account for their inaction when it was clear what is happening. The Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya by Caroline Elkins is an account of the atrocities carried out on the Kikuyu population in Kenya and is worth a read for any individual prior to defending the british actions.
The Mau Mau atrocities cannot be denied and were definitely atrocious. It is however pretentious to claim that they were on a similar scale as the colonial state with their better equipped and organised forces. In addition the fact that they used Machetes and not guns is akin to declaring that the British killings were undertaken in a humane way.
The question is should it be placed in history and forgotten about? Well while seeming to take a leaf from its predecessors the Kenyan Government extra judicially killed up to 400 Kikuyu young men accusing them of being Mungiki (a group not too dissimilar to the Mau Mau if not claiming their inspiration from the Mau Mau) should we forget about them as well.
While it is in the interest of majority of British people to be forward looking, the victims of atrocities still seek justice. History appears to be relative as the World Cup win in 1966 is considered fresh enough to be brought up at every opportunity but atrocities committed six years earlier than the win are too far to be worth remembering.
The issue is not so much monetary compensation but recognition that it was official British Gvt policy to carry out such atrocities and that indeed the victims of these actions were in some instances innocent people who happened to be members of the wrong ethnic community at the time.
These Are Also My Country of a Kazakhstan
I agree with Simon Chester, Borat was a “silly film.” The real country of Kazakhstan is making headlines, and few people online are laughing.
The parliament in that country has approved a new law that would allow criminal prosecution for blogs, chat rooms and social networking sites. Foreign sites considered unsuitable can also be blocked.
The government defends the recent move, saying it is intended for child pornography and extremist literature. But critics cay that it can also be used to censor content on elections, strikes, demonstrations, and inter-ethnic strife.
The popular blog site, LiveJournal.com, is already inaccessible to people in the country. In 2007, a pro-opposition blogger was given an extended sentence for insulting the president. Concerns of rendition to other states for the purposes of torture have also been raised.
Harout Semerdjian of UCLA accuses the country of a history of unlawful arrests of journalists and arson against Ak Zhaiyk, one of the largest independant publications in the country.
However, Kazakhstan is not part of the Axis, and will probably use these “untraditional methods” to oppress political groups in the name of fighting terrorism, so we probably won’t get as much coverage as recent political strife in Iran. Unfortunately this situation is hardly limited to these two countries, but the instances we do hear about are selective based on unrelated political tensions.
The main human rights watchdog in Europe, The Organisation for Security and Co-operation in Europe (OSCE), has also offered up their criticism. Perhaps slightly ironically, Kazakhstan is expected to assume the chair of this same organization in the next six months.
What country has the strongest civil liberties?
There is a lively discussion on Slashdot about which countries are best for civil liberties and privacy. It all started when someone from the UK said s/he was unhappy with growing restrictions and wanted to emigrate.
It struck me how little Canada came up in the discussion. Why? We have the Charter; reasonable, independent, strong courts; decent privacy laws; evidence of the judiciary keeping the government on its toes. I guess the world just doesn’t know Canada that well.
Do you have other ideas why Canada is not mentioned? Any other countries you think are better?
Podcast: Corporate Social Responsibility Blog (Episode 23)
On last week’s podcast, we brought you Part 1 of Omar Ha-Redeye’s interview with Osler, Hoskin & Harcourt LLP Associate Jason MacLean. MacLean is one of the contributors to Corporate Social Responsibility – A Legal Analysis. In Part 1 of the interview, MacLean talked about the precautionary principle and how it can create a competitive advantage for the corporations that embrace it. He also discussed how securities law may lead to investors demanding more complete disclosure of the environmental impacts of a corporation’s activities.
This week, we feature Part 2 of Omar’s interview with Jason MacLean. In this episode, MacLean discusses the Supreme Court’s decision in the BCE case, as well as the transition from writing a book to publishing a blog about corporate social responsibility. The blog enables MacLean and his co-authors to chronicle the latest developments in corporate social responsibility and the law without being frozen in time.
The Post-Mortem Legal Battles of Michael Jackson
When the king (of pop or otherwise) dies, all the courtiers usually start scheming on how to get pieces of his estate.
Brian Oxman, the family’s lawyer, said,
We will have to see how that plays out in a court of law. I suspect that the death of Michael Jackson is only the beginning of the legal battles over not only his property, but also his children.
Jackson supposedly recorded over 100 songs for his kids that were only supposed to revealed after he died.
But after all of his debts are paid, there may not be much scraps left to fight over. His death may signal an end to confidentiality agreements, especially around his legal settlements, and there will be a lot more stories revealed.
Then there are the disputed reports that he converted to Islam recently. Some have indicated that removal of his body wrapped in white sheets may signal an Islamic funeral, something that some of his family and friends may object to given denials by his publicists of the conversion.
One thing that is not disputed is that his music reached the entire world, and everyone will be watching the trials to see what happens.
Copyright Law, Freedom of Expression and Canwest v. Horizon
In a previous post I erroneously stated that the appeal of Canwest Mediaworks Publications v. Horizon Publications had been dropped. As it turns out, the appeal is pending; the game is on. Those who wish to know more should visit the Seriously Free Speech Committee website where there is a wealth of information including the trial court decision and the Notice of Appeal. While browsing the site, I noticed that within some of the articles there are calls for Canwest to drop the suit. Although I completely understand why the appellants would want to be freed from the onerous burden of legal action, I am hoping that the case proceeds for the benefit of society.
Copyright law occupies an unusual place in the legal landscape. It is an extraordinarily complicated regime that affects our daily lives in hundreds of ways, yet it is rarely litigated. There are only a handful of appellate court decisions pertaining to copyright law; opportunities to move the law in a positive direction are infrequent and questionable decisions like Michelin can linger for decades.
While many cases of infringement involve activities that could reasonably be described as unjust enrichment, the wording of the statute is such that a black letter interpretation renders a number of practices unlawful that are in fact beneficial to society and do not involve usurping the gains of a copyright-holder. A prime example is the artistic practice of appropriation, i.e. using culturally recognized symbols (for which copyright usually subsists) to express a unique idea. In the Michelin case, a cartoon was distributed to promote a union drive which depicted a large smiling “Michelin Man” about to trample on a Michelin factory worker.
Although appropriation is an old artistic technique, it is becoming much more common in our media-rich culture, and I would suggest that the growing importance of appropriation is a natural evolution in a society where we are constantly bombarded with images and sound bites. No individual alive today created the English language. We were “bombarded” with it when we grew up, and we appropriated the words and phrases as tools for our own expression. This is a reasonable and indeed productive activity. It is for this reason that copyright protection is not permitted for words and ideas; they are the building blocks of expression that are part of our cultural heritage and rightly belong in the public domain.
In a media-saturated society, the same elements are at work with the many images and sound bites that we are exposed to. With the growing variety of tools to manipulate them, it is only natural that artists would incorporate some of these images and sound bites into their own unique works, and often as a means of social commentary. This is what artists do. They have never been satisfied with painting pretty pictures, but prefer to shine a harsh light on the society in which they live through the innovative use of symbols. This is an important part of the social dialogue and free exchange of ideas that underpin our culturally rich society.
The law of copyright, in its current form, depends upon the concepts of originality and substantiality to protect the building blocks of expression, and therefore only permits appropriation that is not substantial (with narrow exceptions for fair dealing as explained by David Fewer — thank you for your comment). This test is too simple to ‘get it right’. As a result, it has the incidental effect of stifling the vast majority of appropriative forms of artistic expression and social commentary, regardless of the social import and regardless of how creative a work is.
There can be no doubt that copyright law protects legitimate interests, and it must continue to do so. However, I respectfully submit that the current statute, as applied by the courts, does not adequately serve the dual objectives of “promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at para 30.). To the contrary, the law actually discourages the creation and distribution of new works.
In a society where copyright cases are rarely litigated, the Canwest case is an invaluable opportunity. It is my hope (and apparently I am not alone) that the Canwest case results in a more nuanced enunciation of copyright law in Canada: one that allows appropriation in circumstances where it does not interfere with the legitimate interests of a copyright holder.
Is international law a legal system?
Some time in the future, when I weigh all the things Osgoode did to me, the Jurisprudence class I took last year will definitely add a ton to the good-things side of the scales. Taught by Leslie Green, a world’s major jurisprudence authority and simply a great prof, the course gave me much-needed peace.
See, I am one of those poor souls who desperately need a big picture when they take a task. Law schools, may I say, do not quite target people like that. Fortunately, you can take the optional Jurisprudence class if you are at Osgoode (mandatory in many civil law systems I hear).
Here is the paper I wrote for that class. It addresses a well-worn issue so it’s more of an exercise in logic than in ground-breaking research. But it was fun writing it after reading Hart’s The Concept of Law, Fuller’s The Morality of Law, Raz’s The Authority of Law, and finally, my favourite: Dworkin’s Law’s Empire, for Leslie Green’s class.
If someone goes so very far as to read the actual paper, I will be extremely grateful for any comments.
Is international law a legal system? [pdf, 144 kb]
Canadian courts and national security
Here is an interesting article from Ottawa Citizen related to my today’s post about Abdelrazik.
