Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens its borders, will millions of people rush in?

The truth is that the world today is not equal, and there exist population migrations that are not necessarily two-ways. No matter which way it goes, inequalities between countries often also means inequalities between individuals belonging to those countries: a Westerner moving to a developing country does not do it in the same conditions as an individual leaving a developing country for a Western country would. Of course it depends on every situation. But if we look at the majority, immigrants in precarious situations very rarely come from Western countries; they usually want to get to Western countries.

Someone who immigrates with wealth is far less disposed to be in a precarious situation in his new country, thus far less disposed to require support from the state. Thus, rich states do not want poor immigrants, as politically incorrect as this may be. These inequalities are what make immigration laws necessary, for those who want to hold on to their social order as it is.

Some may wonder what would happen if a country opened its borders to all. In 2008, the new and progressive Ecuadorian Constitution recognised the principle of universal citizenship, hoping this policy would become part of the fight for equality between countries, especially between the North and the South[ii].

One could think that Ecuador being a developing country, it does not necessarily provide with the standard of living Canada would. Minimum wages are very low, finding a well-paying job is not all that easy. Neighbor countries do not have drastically different standards of living. One could thus conclude that the open-border policy would not change all that much.

But in fact it has. Ecuadorian authorities now have to deal with numerous refugee and human trafficking issues: Ecuador has become an open door to the American continent – more often than not to the US – for citizens from all over the globe[iii]. Ecuador is now the home of 53 342 refugees, more than any other Latin American country; in total 135 000 persons are in a situation of irregular immigration.

They are given a legal status if they are declared refugees; but the suddenness of the issue has not allowed the country to prepare those who work closely with the immigrants. The police generally does not know what to do with suspect foreigners without papers, and detention is a common solution. The whole process often takes months, during which the detention is not reviewed. The other ones will probably stay with no legal status, or go home.

In September 2010, Ecuador has changed its policy, stating that visas would be necessary for citizens of countries like Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia[iv]. The migration from these countries had significantly increased since 2008, and was linked to criminal organisations and illegal immigration to the US.

Even though they are not in fact overrepresented in jails (refugees who were detained for having committed crimes only represent 0.6 % of the total refugee population), the immigrants are seen as responsible for the rise of security issues in Ecuador, which has increased social tension and xenophobia. They increase the informal labour market, and their illegal status makes them very vulnerable to multiple types of abuse. The Ecuadorian government has not taken sufficient measures to ensure the protection of their human rights, and even though the constitution guarantees equality, they are discriminated against in most public services.

Ecuador is not the only state affected by their open-border policy: many immigrants aim at making their way up until the US. Some countries from Central America have thus complained about the open-borders policies in South America, as they also find themselves with numerous immigrants without legal status. Some continue their way to the US, but others decide to stop on the way. The governments then have to find ways to regularize their situation and support them, even if they have never officially let them in[v].

By opening its borders without being ready to welcome the immigrants, Ecuador has in fact opened the door to discrimination and poor living conditions for the most vulnerable populations. As long as fundamental inequalities remain, worldwide open borders seem quite unlikely to succeed.

[ii] « Propugna el principio de ciudadanía universal, la libre movilidad de todos los habitantes del planeta y el progresivo fin de la condición de extranjero como elemento transformador de las relaciones desiguales entre los países, especialmente Norte-Sur. » Section 416 (6). Electronic resource:

http://www.asambleanacional.gov.ec/documentos/Constitucion-2008.pdf

[iii] Opinion de Diario HOY, Correccion de la politica de fronteras abiertas, 9th September 2010. Electronic resource:

http://www.hoy.com.ec/noticias-ecuador/correccion-de-la-politica-de-fronteras-abiertas-429148.html

[iv] El Mercurio, Cancillería exige visa para gente proveniente de varios países, 7th September 2010. Electronic resource:

http://www.elmercurio.com.ec/250790-cancilleria-exige-visa-para-gente-proveniente-de-varios-paises.html

[v] La Estrella, Director de Migración reconoce preocupación por política de fronteras abiertas, 3rd of August 2011.

http://www.laestrella.com.pa/online/noticias/2011/08/03/director_de_migracion_reconoce_preocupacion_por_politica_de_fronteras_abiertas.asp

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where they otherwise would not. “Rule of law” prescriptions also, if incidentally, encourage greater compliance with the law. But the “rule of law” is not a three-trick horse. It can do, and is desired for doing, other things. The certainty that it provides extinguishes conflicting expectations (“I own this land”, “No, I do”) and stymies the actual conflict that might otherwise result. Etcetera. Etcetera.

Understood this way, its desirability is contingent on the absence of conflicting values that are liable to crop up from place to place, circumstance to circumstance. Moreover, there is little reason to assume that “rule of law’s” animating objectives will necessarily coincide with its prescriptions. Let us consider several examples.

Consider the way in which ‘rule of law’ prescriptions and philosophy engages with a plurality of legal orders, sometimes called ‘informal’, or even ‘lawless’. These normative orders might pre-exist state law and vindicate a wider array of interests. For instance, as rule-of-law-advocating donors have encouraged the formal titling of lands held by customary law, that same titling movement ignores, and hence denies, rights of usage women formerly enjoyed.[3] As formal legal institutions become more known, more accessible, (more ruling,) rule of law prescriptions ensure that the gender injustice initiated by the titling scheme is ensured and completed. In so far as the formalist conception is deaf to the substance of the law, it risks confirming injustices that would have been remedied by customary practices in the absence of the rule of [state] law.

Conversely, informal legal orders may respond to state-law, remedying a need created by the general application of laws. Until 1990, Nepalese law provided that the proprietor of land on which a water source is located ‘owned’ the water source. Access to water had become a dire need in times of drought, or in certain places more generally. A customary norm “posited” (what we might call) a compulsory license, requiring land-owners to give villagers access to their water, for drinking and cooking purposes. To provide some security for this right of access, social pressures and religious norms developed to preclude that same land-owner from resorting to formal institutions to vindicate his rights to exclude under state law.[4] This (arguably) desirable result is antithetical to the ‘rule’ of state law.

‘Rule of law’ also provides little guidance when its animating principles or prescriptions conflict, as they have and are wont to. Consider the plurality of formal legal orders that persisted in early modern Europe. A myriad of courts shared jurisdiction over certain kinds of disputes. Litigants, in certain cases, could choose to have their case heard in a municipal, royal, ecclesiastical or manorial courts and tribunals. Because different courts shepherded different bodies of law, this de-centralized legal system compromised the ‘rule of law’ or at least, the rule of one set of laws. Knowing what body of law said what in any given circumstance was thus more complicated and costly, and the risk of conflicting provisions proliferated. And yet, this arrangement provided some trade-off of rule of law prescriptions. The competition between legal fora meant that different adjudicative arenas were encouraged to adopt practices that made their competitors attractive to ‘forum shoppers’.[5] Potential litigants, for instance, once preferred the royal court systems for their impartiality.[6] Other litigants preferred resorting to arbitral arenas, where the process was faster and generally less costly.  Impartial and efficient practices were diffused – albeit to a restrained extent – as competing fora adopted them to remain competitive. Perhaps because the ‘rule of law’ narrative reacts to a state of chaos, to the rule of the whims of man, it seems to be less capable of solving problems when its own prescriptions or principles conflict or trade-off.

The ‘rule of law’ – whatever it is or means – will need to do more to deserve its pedestal.

[2] Thomas Carothers, ‘Rule of Law Revival’, Foreign Affairs, c.1998, Vol. 77, No. 2 1998.

[3] Celestine Nyamu Musembi, “De Soto and Land Relations in Rural Africa: Breathing Life into Dead Theories About Property Rights” Third World Quarterly, Vol. 28, No. 8 (2007): Market-Led Agrarian Reform: Trajectories and Contestations, p. 1468-1472.

[4] Bishnu Upreti, “Community level water use negotiation: implications for water resource management” in Water, land and law: changing rights to land and water in Nepal (Rajendra Pradhan, Franz von Benda-Beckmann and Keebet von Benda-Beckmann eds.) (Rotterdam: Freedeal, 2000).

[5] The Elgar companion to the economics of property rights (Enrico Colombatto, ed.) (Cheltenham: Elgar, 2004).

[6] Richard Kagan, Lawsuits and Litigants in Castile, 1500-1700 (Chapel Hill: University of North Carolina Press, 1981).

Je ne remets pas en question que l’application des droits de la personne puisse soulever des discussions et des désaccords. Je crois qu’il va sans dire que le concept de « liberté » ne représente pas exactement la même chose pour tous les habitants de la planète. Par contre, est-ce que quelqu’un s’est déjà prononcé contre la liberté? …Et si quelqu’un le faisait n’userait-il pas pour ce faire de sa liberté d’expression?  Les droits de la personne ne sont pas que des concepts juridiques, ils représentent des réalités bien concrètes.

Sans s’étendre dans l’analyse de chaque « droit », il est préférable de tenter de circonscrire le débat aux droits fondamentaux, aux droits qui peuvent trouver une représentation ou une autre dans diverses cultures, mais qui demeurent présents dans les systèmes de valeurs. Pour partir de droits très généraux, voici ma liste[1] : la liberté, l’intégrité, la dignité, la vie. Ces droits en englobent de nombreux autres, mais leur interprétation dépendra des choix culturels.

Il est important de revenir à l’objectif fondamental des droits de la personne : assurer un respect à la dignité de chaque être humain, donner une valeur juridique à des attributs qu’on considère comme essentiels à la vie de celui-ci. Cet objectif se trouve à être exprimé dans un système : des conventions internationales, impliquant des obligations pour les états. Ces instruments internationaux ne sont peut-être pas la seule ou la meilleure façon de protéger ces droits, et la formulation n’est fort probablement pas celle qui aurait été privilégiée par tout le monde — peut-on jamais atteindre un tel niveau de consensus?

Mais peut-on vraiment arriver à la conclusion que ceci signifie que la doctrine des droits de la personne est un concept occidental et ne peut donc, en soi, revendiquer une légitimité ailleurs qu’en Occident?

Se demander si le système des droits de la personne est parfait ou dans les faits universel est un critère beaucoup trop exigeant. Les droits de la personne se veulent une protection de base à l’être humain. Pour connaître leur efficacité, il faut plutôt se demander quelle protection ont-ils concrètement apportée à celui-ci, et s’ils sont un bon véhicule pour améliorer cette protection dans le futur.

Un exemple intéressant est la situation des droits des enfants. La Convention relative aux droits de l’enfant a été ratifiée par tous les pays sauf la Somalie et les États-Unis[2]. Est-ce que cela veut dire qu’il est plus facile de trouver un consensus sur les droits des enfants ? Si tel était le cas, alors l’existence même d’un consensus sur les droits des enfants remettrait en cause la prémisse que les droits de la personne représentent un construit uniquement occidentale. Certains pays occidentaux ont peut-être été premiers de file en droits des enfants, mais ce ne sont pas qu’eux qui ont, dans les dernières années, fait beaucoup pour améliorer la situation des enfants en droit national. Les pays de tous types de réalités économiques sont de plus en plus conscients et intéressés à reconnaître la situation particulière des enfants et les protections que l’État doit prévoir pour eux, malgré des réalités culturelles et des ressources très différentes d’un état à l’autre[3].

Les droits de l’enfant ne sont pas les seuls à avoir amélioré les conditions de vie des personnes qu’on vise à protéger par ces droits. Prenons l’exemple de l’Inde, le « choc culturel » par excellence en contraste avec la culture occidentale. L’Inde a pourtant un système de droits de la personne beaucoup plus performant et proactif que la plupart des systèmes occidentaux. Ce système a activement contribué à l’amélioration du niveau de vie de plusieurs groupes de personnes vulnérables dans la communauté indienne (les dalits (intouchables), les femmes, les enfants, etc).[4]

Que déduire de cette protection juridique avancée des droits de la personne par une juridiction non-occidentale?

Ce que fait l’Inde est interpréter les droits de la personne dans son langage, selon ses valeurs, conformément aux objectifs fondamentaux de protection de l’être humain. Les juges ont ajouté à ceci la quête de justice sociale dont ils se considèrent investis par la Constitution. Voilà déjà 30 ans que la Cour Suprême a décidé que le droit à la vie devait représenter un certain niveau de vie (et non pas la simple survie), et donc incorporait plusieurs droits « sociaux et économiques » dans la définition du droit à la vie (Francis Coralie Mullin vs The Administrator (Union Territory of Delhi) ). De plus, les individus peuvent directement saisir la Cour Suprême de toutes leurs revendications en matière de droits fondamentaux, sans même revendiquer réparation pour une violation particulière. Ce système, très différent des systèmes occidentaux, est peut-être même plus adapté aux objectifs des droits de la personne?

N’est-ce pas plutôt paternaliste de soutenir que les pays non-occidentaux ne seraient pas en mesure d’appliquer les droits de la personne selon leur réalité culturelle? C’est exactement ce que font les pays occidentaux : le droit à la vie ne signifie pas nécessairement la même chose au Canada et aux États-Unis. Le concept de base des droits de la personne est facilement adaptable à la réalité de la société qui les met en œuvre. C’est d’ailleurs ce que certains reprochent aux droits de la personne : ceux-ci sont « symboliques », ou « vagues ». Autant que cela puisse représenter une faiblesse du point de vue de la mise en œuvre, il s‘agit en fait de leur force en ce qui concerne l’adaptabilité.

[2] Nations Unies – Collection de Traités, Convention relative aux Droits de l’Enfant, signature le 20 novembre 1989, entrée en vigueur le 2 septembre 1990. Ressource électronique consultée le 9 novembre 2011: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en

[3] De nombreux pays ont amorcé des réformes majeures de leurs systèmes sociaux et juridiques afin d’augmenter la protection de l’enfant suite à l’entrée en vigueur de la Convention relative aux droits de l’enfant. Pour un résumé de ces réformes, voir le site de l’UNICEF : http://www.unicef.org/why/why_24177.html

[4] Je vous réfère au site internet de Human Rights Law Network, une ONG indienne spécialisée dans le Public Interest Litigation, qui plaide donc quotidiennement devant la Cour Suprême des causes de droits de la personne: http://www.hrln.org/hrln/

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 system operates.

Ontario in R. v. N.S. – “Bright line rules do not work”[2]

(i) Facts

N.S. alleged that she was repeatedly sexually assaulted by her uncle and her cousin, the two accused, when she was young. N.S. is Muslim and wears the niqab. At the preliminary inquiry, both accused sought that she remove her niqab when testifying at that hearing. The judge opined that the religious belief of N.S. was not sufficiently strong, largely owing to a driver’s license in which her face was visible. N.S. appealed this decision. The Superior Court quashed the decision of the preliminary inquiry judge, opining that the “judge had exceeded his jurisdiction by balancing Charter values”. The Superior Court did however trace the authority for the preliminary inquiry judge to decide on the niqab to the Criminal Code. The Superior Court then detailed the manner in which such a determination should be made and remitted the case to the preliminary inquiry judge. N.S. appealed and the accused cross-appealed.[3] The proceeding on the merits has yet to commence.

(ii) Court’s Analysis[4]

The Court recognized that its was faced with the difficult task of reconciling two claimed Charter rights. The claim by the accused was the right “to make full answer and defense at trial” (para. 49), which accords with the principle of fundamental justice. “An accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence” (para. 60). The claim by N.S. was the right to wear the niqab while testifying, in accordance with the guarantee of freedom of religion contained in the Charter.

The Court undertook a painstaking analysis on the how a court should attempt to reconcile the two competing Charter rights. The Court was guided by the earlier writings of Justice Iacobucci, who said:

It is proper for courts to give the fullest possible expression to all relevant Charter rights, having regard to the broader factual context and to the other constitutional values at stake (para. 47).[5]

To this end, the Court contended that reconciliation has to be “specific to factual context” (para. 48), as rights do not float in abstract but rather apply to very real situations, which vary greatly from case to case.

The Court then detailed the specific approach to be taken by a court in weighing the competing claims of the right to wear the niqab and the right to a full defense. First, a judge would need to determine whether or not the right of N.S. to wear the niqab is protected under the s. 2(a) guarantee of freedom of religion (para. 70). If so, the second stage of the analysis would then consider whether or not the niqab would interfere with the cross-examination process in “more than a minimal or insignificant” way (para. 71). The goal at this stage is not to undertake a detailed analysis of the two competing claims but rather to assess whether the right of the accused is negatively affected in a non-trivial manner. If second stage is answered in the affirmative, then the judge must analyze the competing Charter claims and “attempt to reconcile those two rights by giving effect to both” (para. 73). The Court detailed a list of considerations to be made in reconciling the rights of N.S. and those of the accused, which included:

• The limited manner in which the niqab interferes, as it does not obstruct demeanor, tone of voice, eye movement, and body language (para 73)
• The ability of a judge to instruct a jury that difficulty that may be encountered in assessing the credibility of the Crown witness owning to the niqab is to be “redound against the Crown” (para 74)
• The nature of the proceedings, as a preliminary inquiry varies greatly from trial proceedings (para 75)
• The forum of trial, since, for example, in a case before a judge, the judge will develop an understanding of the extent of niqab’s obstruction (para. 76)
• The nature of the evidence to be given – whether it is core or peripheral (para. 77)
• The extent to which a decision about the niqab would feed alleged stereotypes against Muslims and niqabi women (para. 78)
• The fact that N.S. is testifying in a sexual assault cases, where a victim is often in a vulnerable position (para. 80)
• The public interest in ascertain the truth, which may be affect by the niqab, though also by the discomfort that the witness may feel if not allowed to wear the niqab (para. 81)
• The societal interest in having a visible administration of criminal justice (para. 82)
• The possibility of female court staff and a female judge, along with a closed hearing (para. 85)
• The possibility of different fabrics or styles of niqab (para. 86)

By giving consideration to these points, a court should do its utmost to reconcile the two Charter rights to the extent possible.

Finally, the Court made the reluctant profession that in the case that the two rights are truly irreconciable, “the right [of the accused] must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab” (para. 88). The Court very carefully circumscribed the extent to which such a result should be an inevitability, stressing the important of genuinely assessing the competing rights. As helpful instruction, the Court provided the example that an objection over the niqab at the preliminary inquiry based solely on importance of the witness’s facial demeanour for cross-examination would fail (para. 97).

The Court did not feel that it had adequate information to make a definitive ruling, thus the case was remanded to preliminary inquiry judge to assess the case as outlined by the Court of Appeal.

France’s Constitutional Council Approves Niqab Ban

Across the Atlantic, the Constitutional Council (Conseil Constitutionnel) of France gave its final approval to government legislation banning the niqab in public spaces on 7 October 2010. The Constitutional Council is France’s highest body responsible for making sure that legislation and statutes are consistent with the Constitution of France. Legislation is sometimes referred to the Council for an opinion on its constitutionality.

The Loi interdisant la dissumulation du visage dans l’espace public was proposed in response to political and public discontent over the niqab in the public sphere – some arguing that it created discomfort and other contending that it had not place within French’s national value of laicité.[6] The core of the legislation is contained within the first two articles:

Article 1

Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.

Article 2

I. Pour l’application de l’article 1er, l’espace public est constitué des voies publiques ainsi que des lieux ouverts au public ou affectés à un service public.

II. L’interdiction prévue à l’article 1er ne s’applique pas si la tenue est prescrite ou autorisée par des dispositions législatives ou réglementaires, si elle est justifiée par des raisons de santé ou des motifs professionnels, ou si elle s’inscrit dans le cadre de pratiques sportives, de fêtes ou de manifestations artistiques ou traditionnelles.

Under the legislation, the niqab would be banned from all public forums. An individual ‘caught’ wearing the niqab would be fined 150 euros, though a male forcing a woman to wear the niqab would be given a one-year jail term and fined 30000 Euros.

After being adopted by the French National Assembly (13 June 2010) and the French Senate (14 September), the Presidents of both assemblies asked the Constitutional Council for an advisory opinion on the law (it is interesting to note that not since 1959 have the two assemblies simultaneously asked the Council for an advisory opinion on a given legislation). The Council’s recent decision confirmed the constitutionality of the law, which will take full effect in April 2011.

What is particularly interesting in the decision of the Council is the boldness with which it comes down in favour of the legislation. The commentary in Cahiers du Conseil Constitutionnel[7] on the niqab legislation explains how French parliamentary discussion on the niqab has always engendered an balancing act between, on the one hand, religious liberty, freedom of expression and respect of private life and, on the other hand, laicité, human dignity and equality of men and women. Despite this, the actual decision released by Constitutional Council remained fully silent on the former set of rights. The Council specifically cited public order, security and women’s rights as constitutional values lending support to the legislation (paras. 4-5). Thus in it’s final analysis, the Council found the proposed law conformed to the Constitution of France.[8]

A “Canadian Flavor” in the Way We Operate

By contrasting the two decisions, one begins to sense a “Canadian flavor” in the way contentious religious matters, such as the place of the niqab within society, are dealt with by our courts. R. v. N.S. is the most recent of a line of cases where the Canadian courts have grappled with religious freedoms.

Two aspects of the decision in R. v. N.S. characterize this distinct “Canadian flavour”. First, the Court of Appeal repeatedly emphasizes the importance of reconciliation. The Court comes down strongly against those dogmatically supporting either side of the niqab debate, clearing stating, “Bright line rules do not exist” (para.97). Second, the Court’s decision reveals an increased interest in substantive equality rather than formal equality. N.S. made a unique claim that the niqab was part of her identity as a Muslim and as a woman. The Court was willing to entertain this for the purpose of its analysis. These aspects of the Court’s decision greatly nuance from the decision of the Constitutional Council. The Council’s decision – in upholding the law banning the niqab in public – shows no attempt at reconciling rights. Moreover, one senses a much stronger reliance on formal equality, given the Council’s insistence that the ban would uphold the rights of women in France.

Whether or not one likes the decision of the Court of Appeal, it reveals a level of tolerance in the way minority claims and religious freedoms are received in the Canadian court system. It provides some indication that Canadian values of multiculturalism operate more than just a punch-line and, in fact, may be present in the way our courts operate.

[2] R. v. N.S. 2010 ONCA 670 at para. 97.

[3] Only one of the two accused, the cousin, was party to the appeal to the Ontario Court of Appeal.

[4] I am specifically interested in the manner in which the Court of Appeal deals with competing Charter rights. The Court outlines details in its decision the jurisdiction of the preliminary trial judge to address Charter values, which I do not present in detail here, as it is not my focus of interest in this article.

[5] Citing Justice Iacobucci, “‘Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2002), 20 S.C.L.R. (2d) 137, at 140.

[6] The French conception of laicité differs from Canadian understanding of secularism in impotant ways, which I do not believe can glossed over quickly if one is to appreciate the context in which a decisions over the niqab have been made. However, noting this point, I leave it for another discussion.

[7] Les Cahiers du Conseil constitutionnel are a publication of the Conseil. On 7 October 2010, when the Counsel released its decision on the law, a commentary on the law was released on the same day in the Cahiers du Conseil constitutionnel.

[8] The Council made on exception, namely that the niqab would be permitted in Muslim places of worship, such as mosques.

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 law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second purpose, legal pluralism, by casting a shadow of skepticism on the deeply held centralist ideology, can then step in to offer an alternate paradigm that suggests the existence of several overlapping normative legal systems with exist in tandem with the state legal system. As Griffith famously wrote, “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.[6]

Legal pluralism generally describes a situation where two or more legal systems or legal orders coexist in the same social setting.[7] Legal systems include those beyond the state system, such as religious or customary legal systems.[8] Legal pluralism also recognizes that legal mechanisms can also be found in other social settings, such as villages, families or churches, where rules and conventions exist, inducing compliance.[9] This leads to a definition of legal pluralism as “the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‘semi-autonomous social fields”.[10] This definition is not without its numerous criticisms and variations, as will be explored in more detail shortly. Nonetheless, by identifying the existence of ‘overlapping semi-autonomous social fields’, the definition breaks away from the legal centralism ideology, and opens up the possibility for other normative legal orders to stake a claim to authority.

II. Separating State Legal Pluralism and Deep Legal Pluralism

In attempting to more carefully craft out a meaningful definition of legal pluralism, some legal pluralism scholarship has found it useful to separate the notions of “state” legal pluralism and “deep” legal pluralism.[11] State legal pluralism is a direct product of colonialism, in which setting colonialist states attempted to accommodate customary law with the state system.[12] Under such a conception, the sovereign still commands authority through a unitary state legal system. Non-state laws exist insofar as they are ‘recognized’ by the state authority. Such a state system exhibits a level of internal plurality, as some of the laws contained within the overall system trace their origins to non-state legal normative orders, notwithstanding the fact that they are specifically state approved. State legal pluralism is not inconsistent with the notion of legal centralism. Rather, it represents “a particular arrangement in a system whose basic ideology is centralist”.[13] Such an arrangement is able to persist, due in part to the treatment of non-state law as imperfect, and thus in need of a centralizing authority’s supervision.[14]

The shortcomings of state legal pluralism are threefold. First, it is destructive to the aspirations of groups genuinely seeking to assert their own laws. Hinz frames this as the right to one’s own right – the right of individuals to be governed by that legal order they most closely associate with and thereby view as authoritative.[15] Second, and tied closely to the first point, is that state legal pluralism prejudices an individual’s standing before the law. An individual adhering to non-state laws will be perceived as adhering to imperfect, albeit acceptable, laws.[16] Third, as a pragmatic objection, state legal pluralism usually entails a high level of complexity.[17] While on one level, non-state laws are circumscribed to the extent that they will be recognized by the state, on another level, the very presence of multiple laws will necessitate that a choice of law rule be instituted. Such a rule may be necessary in instances where state and non-state laws apply to a given situation and the court must decide between the two.

Deep legal pluralism breaks free from the paradigm of state legal system, and posits that for any social group, two or more legal orders may coexist and not belong to a single unified system.[18] Deep legal pluralism is an attempt by legal scholars and anthropologists to chart the empirical reality of people’s state of affairs. It is sharply critical of the legal centralist dogma that social affairs, or even principles, are solely a function of state law. Rather, multiple and overlapping normative legal orders exert authority on social life. These multiple systems or orders are not unified under any single legal system. Rather multiple sets of laws may emanate from multiple sources.

Concluding Remarks

The present surge of interest in “legal pluralism” in the global legal domain calls for a deep exploration on what the term hope to bring into any particular discussion. Readers must be acutely aware that the term brings with it an eclectic of meanings and criticisms, and thus they would do themselves much justice by attempt to situation any particular discussion accordingly.

[2] John Griffiths, “What is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1 at 3.

[3] T. W. Bennett, “Comparative Law and African Customary Law” in Mathias Reimann & Reinhard Zimmerman, eds., The Oxford Handbook of Comparative law (Oxford University Press: 2006) 641 at 666.

[4] Ibid.

[5] Griffiths, supra note 2 at 3.

[6] Ibid. at 4.

[7] S. E. Merry, “Legal Pluralism” (1988) L. & Society Rev. 869 at 870.

[8] Legal systems would also rise in such setting as to family, church, business, etc. See Griffiths, supra note 2.

[9] Bennett, supra note 3 at  667

[10] Griffiths, supra note 2.

[11] Merry, supra note 7. Also see Griffiths, supra note 1.

[12] Griffith refers to this as “weak” legal pluralism. It has since been referred to as “state” legal pluralism by Merry, Woodman and others. The term state legal pluralism seems more desirable given the potentially polemical connotations connected with “weak” legal pluralism.

[13] Griffiths, supra note 2 at 8.

[14] Ibid.

[15] Manfred O. Hinz, “Legal Pluralism in Jurisprudential Perspective” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 35.

[16] Woodman, however, he disagrees with the validity of this criticism. See Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[17] Ibid. at 161.

[18] Griffith, supra note 2 at 8. Griffiths refers to this as “strong” legal pluralism.

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 normative controversies to bed or that we are borrowing from warring traditions.[1] [emphasis added]

Singer’s comments provide an enlightening (albeit contestable) suggestion that in the seeking of a solution to a legal dilemma, the use of “multiple normative strategies”, – strategies that may even create inconsistencies from problem to problem – can provide meaningful solutions.

A country’s constitution (whether written or unwritten) can open the door to a spectrum of normative interpretations. The role of any given constitution is to assert broadly defined values which extend over a diverse people within a region. These constitutional principles are normally consistent with a broad notion of human rights; thus, they encapsulate what can be viewed as the “fundamental rights” of the individuals which they extend over. However, contrary to conventional conceptions of constitutionality, a constitution does not necessarily entail that these principles are reached in one particular way.[2] For purpose of this discussion, it suffices to focus on chthonic law and state law, since elements of these two systems are often viewed as being at odds and since the Shari’a overlaps with both sets of laws.[3]

An examination of the 2004 Constitution of Afghanistan reveals how the country seeks to confer certain broadly defined fundamental rights on all its citizens.[4] The Constitution specifically includes the right to liberty, the presumption of innocence, the right to form social organization, the right to legal defense if accused of an offense under the law, and freedom of expression. The attainment of these fundamental rights can be consistent with a pluralistic conception of the law. Fundamental rights can be attained not only through state legal mechanisms but also through chthonic legal mechanisms. It is certainly arguable that the jirga/shura institution, which implements chthonic law, is just as able as state courts to implement justice in a manner that fulfills the ultimate attainment of justice to the individual. This approach to the fulfillment of constitutional principles through chthonic laws raises other questions. In the attainment of fundamental rights, how should a choice of law rule be implemented when substantive chthonic and state laws come into conflict? In what instances should courts be reviewing decisions of the jirga/shura institution, and what should be the standard of review? Finally, in what instances can one derogate from fundamental rights and to what extent?

Scenario – Murder case before a Jirga/Shura

Consider the scenario where a jirga/shura dealing with a murder case may lead to a decision to reconcile the parties through the practice of bad, which entails the swapping of brides. In such instances, though community justice may be fulfilled, the ruling may be abhorrent to fundamental justice as provided by the Constitution and understood under state law. The practice of bride swapping infringes on the well-being of some Afghan citizens, namely the females being implicated, and thus the state has an interest in protecting its citizens according to its notion of justice.[5] Legal pluralism will inevitably result in such legal quagmires where the rule of law based on one set of normative laws will directly be in conflict with the rule of law based on another set of normative laws.[6]

The approach of Singer may provide some instruction in dealing with such situations. A fixed set of a priori rules will not be able to deal with such a normative clash. Rather the judge or party weighing the interests of various normative laws must use “multiple normative strategies”. He must judge between apples and oranges  – he must analyze the extent to which a decision is consistent with one set of legal norms, as opposed to the extent to which the decision is abhorrent to an alternate set of legal norms. As well, he must take into consideration other factors, such as considering other legal norms that may claim authority – for example the Shari’a and international human rights norms – all of which he must factor into his final ruling. The judge must undertake his analysis on a case-by-case basis since much will revolve around the facts. In addition, the judge must be well versed in multiple sources of law, or minimally be ready to embark upon exploration of various normative legal norms, in trying to balance between the norms. Indeed, in case which involves two or more constitutional principles, a judge may be required to weigh fundamental rights against one another.

This scenario raises another important issue in the overall administration of justice: how should it be decided that a jirga/shura decision be reviewed by a state court? The jirga/shura institution and state courts already exhibit a level dynamic interplay between the two legal orders – a mixture of cooperation and tension. On the one hand, state courts already refer cases (including criminal murder cases)[7] back to the community level, limiting its own authority in favour of that of chthonic system. In this manner, the state system indirectly gains esteem in the eyes of rural Afghans through its cooperation with the chthonic system. On the other hand, in certain cases, the state system may seek to assert this strengthened authority by bringing in select cases of jirga/shura decisions before the court.

There need not exist a blanket policy concerning specific categories of cases that should always come before the state courts.[8] Rather, the state can proceed by identifying certain broad categories of cases that it feels “may” lead to a potential clash of normative legal orders – areas such as women’s rights cases and criminal cases – and monitor the activities of jirga/shura decisions in these areas.[9] A state actor would only raise a concern if it felt that a fundamental right (according to the state’s conception of justice) embodied by the Constitution was not being adhered to, causing a clash of normative values (in the manner analogous to scenario two, mentioned above).

Establishing a functional/functioning legal system in Afghanistan will take many years. Doing justice to this slow process requires that all conceptual postulates be brought to the table – with full knowledge that many will only be considered, studied, and retired.

[The entry draws extensively from a research paper entitled Re-conceptualizing Legal Pluralism in Afghanistan, written under the guidance of Professor Megret]

[2] C Himonga and R Manjoo” What’s in a Name?” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 329.

[3] Looking at these legal systems without focusing on the Shari’a facilitates a simplified discussion at this juncture. However, it certainly may be desirable to keep all three legal systems separate if one were to undertake a fully exhaustive exploration of the various interactions between the three systems.

[4] Constitution of Afghanistan 2004, trans. by Yahya Wardak (Kabul, Afghanistan: Shah M Book Co, 2004). Chapter 2 of the Constitution deals with fundamental rights.

[5] An even more complicated example would arise the female did not contest (or even tacitly approved) begin “bride swapped”.

[6] Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[7] USAID, “Afghanistan Rule of Law Project” A publication for the United States Agency for International Development (2005) at 11.

[8] This suggest is contrary to the opinion of various organizations that work in Afghanistan, such as the USIP and the Norwegian Refugee Council, who both assert that all serious criminal cases, such as murder, must be dealt with at the state level, without exception.

[9] Wardak provides more some pragmatic suggestions on how such monitoring could be set up. See Ali Wardak, “Building a Post-War Justice System in Afghanistan” (2004) 41 Crime, L. & Social Change 319.

The panels revolved around three central themes: the securitization of immigration policy, the role of civilian oversight of intelligence and security agencies, and Canadian intelligence cooperation with the United States in the war on terror. The challenge from the point of view of the organizers was to avoid creating a “false dichotomy” between security and civil liberties. While panelists approached the issues from a wide range of perspectives, all acknowledged the seriousness of both the threat of terrorism and the erosion of constitutionally-protected freedoms, and proposed various mechanisms for bridging the two. “We have to recognize that it is the responsibility of states to ensure that citizens are able to exercise their rights,” said Paul Kennedy, former chair of the Commission of Public Complaints against the RCMP, “terrorism is a direct attack, a direct threat, on those very rights and freedoms. The challenge for the state is to craft a response that is proportionate to the threat.”

Montreal-based human rights lawyer Pearl Eliadis talked about the need to view security considerations through the lens of domestic and international human rights instruments; this was echoed by Simon Potter, former president of the Canadian Bar Association, who spoke of the need to avoid a knee-jerk reaction to evolving security circumstances that would risk undermining the foundations of individual rights and liberties that have been built over centuries. Craig Forcese, a law professor at the University of Ottawa, addressed the practical and legal constraints under which security agencies operate and discussed detainees’ rights in the context of recent events and jurisprudence. Among other things, he talked about the government’s considerations in crafting legislation and the effectiveness of the often ad-hoc or judicial measures used to ensure Charter compliance, pointing to the controversial use of special advocates since Charkaoui I[1] as a measure that has proven at least somewhat effective. Participants also heard the narratives of individuals and communities on the front line of challenges to Canada’s anti-terrorism legislation from documentary film-maker Alexandre Trudeau and torture victim Maher Arar.

According to event organizers, the Symposium emerged in response to the recent series of high-profile cases dealing with security certificates and the securitization of immigration. The student planners wanted to see these matters discussed publicly, in a forward-looking manner that could openly address concerns and shortcomings with the current framework and generate policy recommendations. To that end, they will shortly be publishing a policy memo based on the analyses presented during the conference. Though some organizers expressed disappointment that circumstances prevented the attendance of many members of parliament, the RCMP, and CSIS, overall they were pleased with the attendance and level of participant engagement and they hope to use the momentum generated by the conference’s success to organize further related events in the near future.

For more information, or to receive updates about future events, email ctcl.mcgill@gmail.com. Video recordings of the three major panel discussions from the Symposium can be viewed here: http://prism-magazine.com/prism-tv/.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals – and one that was proposed by the Indonesian federal government, not by GAM.

Following the signing of the peace agreement, the Acehnese government highlighted the need to draft a series of fifty-nine qanun (pieces of legislation influenced by Islamic principles and vetted by the religious leadership of the province) to begin the process of re-organizing the Acehnese legal system into a system of Syariah law. Two of the qanun called for were a consolidated criminal code and a women’s empowerment law. Both of these pieces of legislation were originally slated to be tabled before the Dewan Perwakilan Rakyat (DPR, translated as the “National House of Representatives) during the 2007 calendar year, but they did not appear until 2008. As predicted by many, they were not voted upon until this year.

In brief, the women’s empowerment law was a breakthrough document for this part of the world. It was written after widespread consultation amongst political leaders, women’s activists, international government organizations, and religious leaders. It was meant to dispel the myth that Islamic principles cannot help to foster basic human rights. From the very beginning, the drafting of this qanun had a great effect upon other pieces of legislation being drafted, including the now infamous criminal code. The women’s empowerment qanun specifically promotes education, health, and economic and political integration rights, among other things. At several times during the drafting of the criminal code qanun, legislators were forced to re-draft sections to bring them into compliance with the women’s protection qanun, thus demonstrating that the women’s rights lobby was far from weak.

So how did the offending provisions of the criminal code come to pass through the DPR? It is very likely that the law passed because of a mixture of reasons. Firstly, there is no doubt that many Acehnese are strict adherents to Islam, and that at least in part, the proposed bill was popular amongst some of the electorate. Secondly, harsh physical penalties for crimes are common in some regions of Southeast Asia, particularly in Singapore and Malaysia. Third, adultery is indeed viewed in the Acehnese culture as a crime, akin to rape in terms of seriousness. Fourth, and this phenomenon probably merits much more serious study – Aceh has been inundated with aid workers, foreign diplomats, and Indonesian federal officials since the tsunami disaster of 2004 and the 2006 peace deal. The lame-duck legislators, recently voted out of office in provincial elections, probably took this an as opportunity to take a (cheap) parting shot at the outsiders present in Aceh, the ever popular Acehnese Governor, Irwandi Yusuf, and the incoming and more moderate government. Despite federal laws promoting women’s rights, and Indonesia’s obligations under several international treaties and conventions, local legislators may have passed this law in order to take a ‘nationalist’ stand.

A fifth reason that this law may have passed also deserves a more nuanced analysis. There is serious speculation amongst scholars of the Acehnese legal system that should a constitutional challenge to the system of Syariah be mounted, the entire legal system of Aceh could be wiped away by the federal courts. This is particularly true of the laws covering criminal law (jinayat in Bahasa-Indonesia), which Aceh scholar Hasnil Siregar believes is very limited by a presidential decree from 2001. It is at least possible in theory that some lawmakers supported this law because they knew it would be struck down, along with the system of Syariah.

It is very important to note that some of the ruling elite of Aceh were not happy with the way the federal government implemented Syariah. Some would have preferred an open referendum process. The passing of such a tough law, one that would violate Articles 18 and 28(d) of the Indonesian Constitution, could provide activist Acehnese lawyers with all of the ammunition they need to poke holes in whole swaths of Acehnese legislation. Article 18 does not allow Aceh the flexibility it would need to pass such laws, as it limits such legal autonomy. Article 28(d) provides Indonesians the right to “legal certainty”, and the proposed law would have contravened this article. Sulistiowati Irianto, Director of the Centre for Women and Gender Studies at the University of Indonesia, also claims that the invoking of Syariah as it stands now violates Article 27 of the Indonesian Constitution, which calls for “equality before the law.” Reconciliation between Acehnese qanun and the Indonesian Constitution has not yet occurred.

Lastly, it is very important to point out that an alarmist Western press may have once again missed the mark in assessing the characteristics of Syariah. Professor Arfian Shah of Institut Agama Islam Negeri Ar-Raniry (The State Institute of Islamic Studies) in Banda Aceh has stated that there seems to be a misinterpretation of the word rajam as it is used to describe punishments for adultery. Stoning is theoretically a possible interpretation, but by merely honing in on and defining a meaning for the word in the law itself, lawmakers could have avoided this uproar. One need only look to other established qanun in Aceh to see that caning is the most severe form of punishment currently permitted. Even then, caning is usually offered up for convicted offenders in lieu of paying heavy fines or serving jail time.

Of course, this entire discussion is now moot. Governor Irwandi Yusuf exercised his executive prerogative and has refused to sign this bill. The coming of a new DPR session, with a newly elected body, hopefully means that all of this can be rectified. Aceh made some very progressive leaps towards offering equal rights to all of its citizens. In practice, women are highly respected in Acehnese culture and history. Solidifying this in the new legal system, after a tumultuous era of conflict, is very important to peace building in Aceh. However, Western observers should take heed. If the New York Times and similar publications do not take the time to understand the reasoning behind the Acehnese legal system, they end up sounding alarmist, and run the risk of isolating the Acehnese people when the West should be attempting to become closer to potential political allies in a moderate Muslim nation with strong geopolitical pull.

[The author lived in Banda Aceh, Indonesia working on legal development projects from May-August 2008. He is the author of “The Struggle for Women’s Rights in Nanggroe Aceh Darussalam Province: A Look at History and Emerging Legislation”, published in the Singapore Law Review, December 2008.]