Posts by Nafay Choudhury
A “Nation-Building” Approach to Immigration Policy
On September 23, 2010, a newly formed organization known as the Center for Immigration Policy Reform, organized a press conference in Ottawa geared at criticizing Canada’s present immigration policies.[1] Canada’s current trend of opening its doors to a quarter of million immigrants each year is, as the Center argues, creating a large burden on the country’s social services as well as exacerbating unemployment. The Center’s comments, while potentially insidious to some, do call for an examination of the manner in which Canada structures its immigration policies. To fend off the types of criticisms brought forward by the Center, immigration policies must demonstrate that immigrants are becoming contributing members of society, which in turn values their contributions. One step in this direction would be would re-orient they manner in which Canadians view their own society. Rather than viewing Canada as being “neutral” towards new immigrants, we may choose to actively advocate the “nation building” characteristics that Canada can offer to all individuals.
One of the shortcomings of liberal political theories of the state is the assumption of its “ethnocultural neutrality”, the notion that a state does not favour any particular ethnicity or culture within its boundaries. Discourses on minority rights and multicultural citizenship have called to question this presumption of neutrality.[2] Every society tries to promote what Professor Will Kymlicka calls a “societal culture” – certain cultural values…
BY Nafay Choudhury
FILED UNDER
Comparative Law
Constitutional Law
Human Rights
Legal Pluralism
Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public
If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.
However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian…
Legal Pluralism – A Primer
A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.
I. Defining Legal Pluralism
At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the…
Culmination of the 2009-2010 Blogging Year
I am very please to announce that Legal Frontiers has been awarded the McGill Law Students Association Award for Clubs 2009-2010, for the group’s “outstanding contributions to the Faculty community through the organization of events and activities this year.” Congratulations the all the members of Legal Frontiers who made this year a success at the McGill Faculty of Law. I extend my full gratitude to all the contributors of Legal Frontier, whose writings constantly engaged our public readership: Brett, Daniel Haboucha, Larissa, Lee, Todd, Alexandra, Philip, Avidan, Yeniva, Jenna, Erin, Emily, and Silvia, Daniel King, and Andrew. Further, my gratitude to our coordinators, whose behind the scenes work served as the thread, which facilitated the seamless day-to-day running of the blog: Leo and James.
As the academic year comes to an end, it is time to the pass the reigns onto a new group of students. I am very pleased to announce that the 2010-2011 Contributor-in-Chief will be our own Yeniva Massaquoi. She will be assisted by the incoming Executive Contributor, Martin Hétu, who is newly joining the Legal Frontiers team. I am confident that under their leadership, Legal Frontiers will reach new heights in the coming year.
I also want to assure our valued readers that we will be continuing to…
BY Nafay Choudhury
FILED UNDER
Comparative Law
Human Rights
Legal Pluralism
Private International Law
Legal Pluralism in Afghanistan Revisited: From Theory to Practice
In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.
Framework for Navigating Normative Variations
In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:
Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all
…
Canada Actively Less-than-Active on Aboriginal Rights in the International Scene
September 13, 2007, was a day like any other, full of political brouhahas from the various corners of the world: then-President Bush addressed the nation on the way forward in Iraq; North Ireland introduced a cattle ear tags numbering system;[1] and Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples.
The Declaration put before the United Nations that day was the result of a process that started in 1985 with the UN Working Group on Indigenous People, given the broadly defined mandate to “give attention to the evolution of international standards concerning indigenous rights”. The general contents of the Declaration include “both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others”. The final vote at United Nations General Assembly that day tallied 143 countries voting in favour of the Declaration, 11 abstentions, and 4 against (Canada, United States, New Zealand, and Australia). While Canada has made various strides in recognizing the rights of its aboriginal peoples, its vote on September 13 provides an example how an overly conservative and protectionist mindset can lead us a step backwards in recognizing the historical wrong-doings to a significant part of Canada’s population.
The Canadian Government provided two broad reasons for voting against the Declaration. The first reason was procedural. During the drafting stage of the Declaration, Canada…
BY Nafay Choudhury
FILED UNDER
Constitutional Law
Human Rights
Public International Law
Omar Khadr – When Two Wrongs Don’t Make a Right…?
On Friday, January 29, 2010, the Supreme Court of Canada released its much-anticipated decision concerning the repatriation of Omar Khadr. In Canada (Prime Minister) v. Khadr, 2010, (“Khadr 2010”), the Court upheld the finding of the Federal Court of Appeal that the government of Canada violated Khadr’s Section 7 rights to life, liberty and security protected under the Canadian Charter of Rights and Freedoms (“Charter”). However, on the issue of remedy, the Supreme Court ruled that the government could not be obliged to ask the United States to repatriate Khadr. And so Khadr’s long quest for justice remains an uphill battle after Friday’s decision, leaving it to the government to decide how react (if at all) to its breach of Khadr’s Charter rights and whether it will take any steps to seek his repatriation.
The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize…
Official Launch of Legal Frontiers
I am pleased to welcome you all to Legal Frontiers. Legal Frontiers is a forum where McGill law students can develop and improve their research and writing skills while contributing to international legal discourse.
The goal of Legal Frontiers is to create a scholarly, social network where students interested in International law can identify key issues and challenges; test new theories; and draw attention to important causes, cases or alternative points of view. Having been inspired by a wide variety of legal blogs, we aspire to promote an emerging genre of writing, which we like to call “academic blogging”. We started this project because we believe that it is of the utmost importance to encourage students to actively engage with issues beyond the classroom, develop their own opinions, and learn how to clearly and effectively argue them.
This blog has been a work-in-progress for the past several months. The comments and support of several professors in the initial planning stages were particularly helpful; I would like to take this opportunity to thank Professors Frédéric Mégret, Pierre-Emmanuel Moyse, and Víctor Muñiz-Fraticelli.
This year, our blogging community includes 18 students from the Faculty. I invite you to read our entries from last semester and those that are forthcoming. For the remainder of the semester, entries will appear every weekday.…
Afghanistan – Reconciling State and Customary Legal Systems
Nearly 30 years of war and conflict in Afghanistan has left the country’s already weak legal system in total disarray. The question on the minds of many policy-makers, academics and politicians – both local and international – is how to structure a legal system conducive to stability and accountability. Afghanistan has never had a strong legal system. Officially, the country is a civilian jurisdiction, whose civil code is strongly influenced by Islamic law, particularly the Hanafi school of thought. The reality is that the country exhibits a complex relationship between civilian, Islamic, and – most significantly – customary Law (1). Rather than treating customary Law as an impediment to progress, it should be viewed in terms of its potential for creating greater inclusion into the overall legal system, particularly for rural Afghans.
Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims…
