One Canada, One Citizen

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Written by Randeep Singh

It’s Canada Day, a good time to reflect on what Canada means to us. I immigrated to Canada like many before and after me. I became a citizen. I am proud to be Canadian.

The Strengthening Canadian Citizenship Act (better known as Bill C-24), hasn’t made me any less proud to be Canadian, even if it does put me in a different class of citizenship.

All countries differentiate between citizens and foreign nationals or citizens and permanent residents. Canada previously revoked citizenship if it was obtained through fraud or misrepresentation. This was in accordance with the Convention on the Reduction of Statelessness; but, differentiating between citizens?

The French Revolution developed the modern idea of the “citizen.” The Revolution sought to create a society where people (men) existed as equal citizens before law, not as subjects with differing privileges. In The Origins of Totalitarianism, Hannah Arendt referred to citizenship as the “right to have rights,” the right to belong to a political community and have one’s rights protected by that community. In a 1997 ruling, Justice Iacobucci for the Supreme Court of Canada stated, “I cannot imagine an interest more fundamental to full membership in Canadian society than Canadian citizenship.”

In differentiating between different classes of Canadian citizens and in revoking (or maintaining) their citizenship status accordingly, the Government of Canada (the Conservative Party of Canada) is not only revoking a legal status; it is revoking all constitutionally enshrined rights associated with such status.

The law apparently infringes equality rights under the Canadian Charter of Rights and Freedoms by discriminating between Canadians (individuals and groups) on the basis of national and ethnic origin. There are all sorts of practical and humanitarian concerns to consider. How can the government send de-nationalized persons “back” to a country which does not receive them? Can it return a person back to a country where he or she may be persecuted?

The Strengthening Canadian Citizenship Act is an act of splintering Canadian citizenship. It creates different classes of citizenship (for different reasons) just as states in the Deep South of the United States created different classes of American citizens through legal discrimination.

I can only take comfort that it will be challenged and under the grounds of the Constitution of Canada which affirms the equality of Canadians, regardless of their differences.

Further Reading:

http://www.toptipsclub.com/blog/immigration-citizenship/nine-things-you-need-to-know-about-the-changes-to-canadian-citizenship/

Works Cited:

“Revocation of Citizenship after the Strengthening Canadian Citizenship Act,” Peter Edelmann in Immigration Issues: Not Business as Usual, (Continuing Legal Education Society of BC, 2014).

The State of Jammu & Kashmir vs. Union of India

Disclaimer: This is not a legal document, judgement or academic opinion on the legality of the accession of Kashmir to India but rather an attempt to bring together some facts and legal principles pertinent to the accession question and have the reader come to his or her own finding through further inquiry if necessary.

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Was the accession of Kashmir to India legal?

Facts

On August 14 and 15, 1947, India and Pakistan gain independence. The rulers of the 565 princely states of British India have to decide to join either India or Pakistan. The Maharaja Hari Singh is the ruler of the princely state of Kashmir and does not make a decision as to which country to join.

On October 22, 1947, Pathan tribesmen from Pakistan invade Kashmir. The Maharaja of Kashmir appeals to India for help.

On October 26, 1947, the Maharaja flees Kashmir and arrives in Jammu. Also on or about October 26, 1947, the Maharaja meets with a representative of the Indian Prime Minister and signs the Instrument of Accession. On October 27, 1947, India troops arrive in Srinagar (Kashmir). Recent British sources indicate that the Indian PM’s representative did not reach Jammu until the morning of October 27, 1947 by which time Indian troops were already arriving in Srinagar.

Issues:

  1. Did the Maharaja act of a free mind when he signed the Accession?
  2. Did the surrounding circumstances influence the Maharaja’s decision?
  3. If so, did those circumstances influence the Maharaja’s decision-making ability in such a way that he cannot be said to have acted of a free mind?

The Law

I look at three legal principles relevant to the issues above.

The question of duress: duress is legally defined as a situation where one party exerts pressure unlawfully on another party to compel that party to do something that he or she would ordinarily not do. For duress to apply against India, India would have had to have done something unlawful, such as threaten to use violence against the Maharaja, his family or threaten to seize his property and hold it ransom. The use of suggestion or persuasion on the part of India does not qualify as duress.

The question of undue influence: undue influence occurs in relationships where one party exerts pressure on a weaker party so as to overpower the will of that weaker party and thereby induce an agreement. In this case, India would have had to do something to influence the Maharaja – including making military aid to him conditional upon his signing the accession instrument – which was short of actual force, but stronger than mere talk, resulting in the signing of the accession.

The question of unconscionability: an unconscionable transaction is an agreement that no right-minded would ever make and no fair-minded person would ever accept. In this case, there would have to be an inequality in the bargaining power between India and the Maharaja of Kashmir. If there was, then the Maharaja also would have had to have made an improvident bargain, that is he would have had to sign the accession (for military aid) without proper regard for the future.

If that were the case, there arises a legal presumption of unconscionability against India which India would have to rebut.

Written by Randeep Singh

Further Reading:

Ganguly, Sumit, “Conflict and Crisis in South and Southwest Asia”, in Michael E. Brown, ed., The International Dimensions of Internal Conflict, Cambridge, MA:  The MIT Press, 1996a, pp. 141-172.

Ganguly, Sumit, “Explaining the Kashmir Insurgency: Political Mobilization and Institutional Decay”, International Security, vol. 21, no. 2, Fall 1996b.

“India’s Principal Challenge”…An Interview with Christopher Jaffrelot

Serge: India is a democracy unlike China, so why compare it to Beijing?

Christopher Jaffrelot: I never make such a comparison in terms of their political systems. For we have effectively on the one hand, a country which combines economic liberalism and political authoritarianism, and on the other hand, despite its imperfections, the biggest democracy in the world.  The comparison suffers from Occidentalism: since we perceive these countries as threats, we put them into the same category without sufficiently seeing their differences.

Guest: In the ongoing economic competition between China and India, do you think the fact that India is democratic is an asset, a hindrance or that political system has no impact?

Christopher Jaffrelot: It’s a hindrance in the short term and an asset in the long-term. That’s to say that India today struggles to develop its infrastructure (roads as well as its railway network) due to the long legal process involved in acquiring land (there’s a respect for private property that frustrates the state’s actions).

On the other hand, India will not be split like China. Again, political authoritarianism and economic liberalism can’t coexist in the long-term. One has today, a debate in India which puts democracy on the hot seat. The middle class is exasperated over the slowness of economic development, tempted by some form of authoritarianism. But, in the end, the Indian trajectory could prove to be more positive than China’s.

Marc : Isn’t there a chance that India could become the leading world power, to China’s detriment when one considers the numerous challenges facing the latter?

Christopher Jaffrelot : From the Indian point of view, the prospect of becoming a major power is located in a far off time. If one looks at indicators, certainly crude but nevertheless important, such as Gross National Product, India’s is two and half times less that of China’s.

Moreover, India cannot stem the growth in its population which could see it surpass China between 2030 to 2040. This means that the GNP per capita will have a long ways to go in catching up to that of China’s.

But if looks ahead to the twenty-first century, one can effectively imagine that sometime this century, India benefits from political stability to catch up with China.

André : Is India, being a democracy and an English-speaking country, not better equipped to adapt to globalization than the communist and non-English speaking China?

Christopher Jaffrelot: English is definitely an asset in an age of globalization. It is moreover possible, that sometime this century, India becomes the biggest English-speaking country in the world. But one shouldn’t underestimate the capacity of the Chinese to achieve an English-speaking education (Chinese constitute the largest foreign-student community on American university campuses), and also, India has not devoted enough resources to mass education. Only seven percent of any given class go on to higher education.

It’s largely in terms of soft power that India takes advantage of its linguistic ability: it “monopolizes” the literary prizes in the United States and in England and this has a lot to do with English’s cultural influence.

Benjamin : What is India’s major asset in the face of Chinese economic power?

Christopher Jaffrelot : The major Indian asset, it’s the small ten percent of its population which comprises the elite, which we can call the middle class as a misnomer. A very well educated elite, skilled in science and engineering, globalized, enterprising, entrepreneurial that has no equivalent in China.  The question is whether knowledge is sufficient to pull the country upwards.  One can worry about the entrenching of inequalities that the blossoming of this elite generates.

Eleuth : What’s the reality of the caste system today in India? To what extent does this system weaken India’s development?

Christopher Jaffrelot: Caste is an extremely complex issue. One can, to simplify, say that caste system rests on a very strict hierarchy, so in terms of status (and even of purity) that of profession. This system has been undermined with the mobilization of the lower castes in favour of greater equality, including through political parties which finally took power in many regions.

In fact, castes, today, are groups of interest in competition more than static elements in a vertical hierarchy.  This contributes to lending a social dimension to Indian democracy. Where class especially hampers social modernization, is in the sphere of education. The untouchables, notably, do not have full access there.

Wolf:  In your opinion, what will India do in the globalization of the 21st century: play its card as the biggest democracy of the world, and so of Asia? Draw closer to China in an Asian partnership? Come to terms with the United States against China in a new “cold war?” Rediscover the paths of power through a traditional alliance with Russia? Or something else?

Christopher Jaffrelot: Something even different, but in the sense that will be a little of each all at once. In the sense that India remained fundamentally a non-aligned country, a country very attached to its sovereignty, to its independence. On the one hand, India did not break with Russia which remains its biggest weapons supplier. On the other hand, India has drawn closer to the United States which has become India’s biggest investor.

But India does not want to enter into a rivalry with China, which is India’s largest trading partner and with which a conflict could be very costly at a time when the credo of these two powers is “let’s get rich!” In any case, India will not enter not into a network of alliances, it will work more through ad hoc coalitions. The most durable one could be the one already informally formed since 2003 with Brazil and South Africa.

Abhwer:  To what extent is India ready to cooperate with Afghanistan to weaken Pakistan?

Christopher Jaffrelot : It’s a question to which there’s no specific response but which is the current question in the region.  In two years, at the latest, NATO forces will have withdrawn from Afghanistan.  India fears that Pakistan will put back not one but two feet in Afghanistan while reviving its support for the Taliban.

The theory that India considers consists of supporting Karzai’s government. Beyond the simple economic and social domain, the two countries already signed a strategic partnership last summer.  One could add to it a strong military dimension but that would come back to wave the red flag in front of the Pakistanis which could cost India dearly in terms of attacks in Afghanistan or on its own territory.

New Delhi:  What could stop Indian power? An economic crisis?  Communal tensions? The risk of war?

Christopher Jaffrelot:  I do not think that India can be stopped by domestic factors. These will simply slow it down. Among them, the entrenching of inequalities is detrimental.

Even if only in a limited sense, the fact that India’s large neighbours are nuclear powers would divert foreign investors of this country.

Salam: Do you believe that India has a special role to play in the Iran crisis with Indians close to Iranians but also possessors of nuclear weapons (without signing the NTP) but partners of the West, notably Americans, with on top of everything, a post of permanent member to the security council of the United Nations?

Christopher Jaffrelot: The Iranian landscape shows us just how uncomfortable India’s positioning can be. On the one hand, Indians don’t want to break with the Iranians because they depend on their hydrocarbons and their port to reach Afghanistan. On the other hand, they can’t ignore the western pressures and the risks of instability that a nuclear Iran could bring to the region. But rather than mediate and serve as a bridge between the West and Iran, India takes refuge in abstention, mortgaging her chances in appearing as a responsible power and in attaining a post of permanent member of the Security Council.

Polo:  In all these considerations, which is above all the principal challenge which India must confront?

Christopher Jaffrelot: India’s principal challenge is human development If India falls under the illusions of its elites, it struggles to reduce mass poverty with international rankings ranking India behind several sub-Saharan African countries in terms of malnutrition, infant mortality, literacy etc.

From: “Le principal défi de l’Inde s’énonce en termes de développement humain,” an interview with Christophe Jaffrelot in Le Monde Diplomatique, March 20, 2012,  http://www.lemonde.fr/international/article/2012/03/20/le-principal-defi-de-l-inde-s-enonce-en-terme-de-developpement-humain_1672805_3210.html

Translated into English by Randeep Purewall

Is Israel a democracy or an ethnocracy?

The Britain Israel Communications and Research Centre (BICOM) is one of the key Israel advocacy groups in the UK. In the last week BICOM has published a series of essays on ‘Israel’s democratic futures’ (if that’s a question, the answer is ‘here’s hoping’). BICOM’s worry, as its chief Lorna Fitzsimons wrote in herintroduction, is that “a notion is spreading in the West that Israel is fast becoming an illiberal ethno-democracy”.

One of the contributions is an interview by BICOM’s Alan Johnson of the US political philosopher Michael Walzer. At first glance, Johnson appears to be unafraid of posing the difficult questions – but Walzer’s unchallenged replies are revealing.

Israel is not the state of the Jewish people; Jews outside Israel don’t vote in its elections and non-Jews inside Israel do vote in its elections. The Jewish people are not sovereign in Israel; the citizens of Israel are sovereign there. I think there is a sense in which Israel, I mean green line Israel, is right now politically a state of all its citizens. The real difficulties are not political, they are cultural, and they arise in every nation state.

Unpacked, this is a wonderful illustration of the denial and diversion tactics deployed by those trying to reconcile the idea of a ‘Jewish’ and ‘democratic’ state. Walzer says “there is a sense” in which Israel is “a state of all its citizens” – but he presents no evidence, and quickly moves on in order to focus on “cultural” difficulties.

Walzer’s response is just wrong (and he surely must know this).

Firstly, foundational to Israel’s legal framework as a Jewish state is legislation passed in the first few years, specifically the Law of Return, the Absentee Property Law, and the Citizenship Law. These laws shaped an institutionalised regime of ethno-religious discrimination by extending Israel’s ‘frontiers’ to include every Jew in the world (as a potential citizen), at the same time as explicitly excluding expelled Palestinians.

Search BICOM’s essays in vain, however, for serious acknowledgement that Israel the ‘liberal democracy’ was founded on the basis of ethnic cleansing and mass land expropriation; that the only reason there is a ‘Jewish majority’ at all, is because of the historic fact of the forced exclusion of Palestinians from their homes and lands.

Secondly, there is a distinction in Israel between ‘citizenship’ and ‘nationality’, a difference missed by English speakers, who tend to use the terms interchangeably. Professor David Kretzmer, law scholar at Hebrew University and member of the International Commission of Jurists, has written how this concept of ‘nation’ “strengthens the dichotomy between the state as the political framework for all its citizens and the state as the particularistic nation-state of the Jewish people”.

In the 1970s, Israel’s Supreme Court rejected a petition by a Jewish Israeli who sought to change his nationality status from ‘Jewish’ to ‘Israeli’. The rulingstated that “there is no Israeli nation separate from the Jewish nation…composed not only of those residing in Israel but also of Diaspora Jewry”. Then-president of the Court Shimon Agranat said that a uniform Israeli nationality “would negate the very foundation upon which the State of Israel was formed”.

Thirdly, Israel continues to be in an official ‘state of emergency’, which the Knesset has annually renewed since 1948. There are still 11 laws and 58 ordinances that depend on the state of emergency, covering a wide range of matters.

Fourthly, Israeli law provides for the banning of electoral candidates who deny “the existence of the State of Israel as the state of the Jewish people”. Related to that, proposed bills can be rejected on the grounds that they undermine“Israel’s existence as the state of the Jewish people”. This is particularly instructive, given the emphasis placed by those trying to defend Israel’s ‘democracy’ on the fact that Palestinian citizens can vote and be elected as MKs.

Fifthly, there is the legislated role of the Zionist institutions, the Jewish Agency/World Zionist Organisation and Jewish National Fund. As I write in my new book, bodies intended to privilege Jews, by being granted responsibilities normally performed by the state, are thus “placed in positions of authority where they have the ability to prejudice the interests of non-Jewish citizens”.

Those are a selection of elements in what makes Israel a Jewish state, as opposed to a state of all its citizens. But what has it meant in practice, for Palestinians living in this ‘Jewish and democratic’ state?

From 1948 to 1966, the majority of Israel’s Arab citizens lived under military rule, a state of affairs used to expropriate land for establishing Jewish communities, as well as repress dissent. This is a vital part of the history, and makes it laughable that in one of the BICOM essays, Amichai Magen claimsIsrael has never had “a single episode of slippage into authoritarianism” (not for the Jewish population, presumably, is what he means).

In over 60 years, around 700 Jewish communities have been established in Israel’s pre-1967 borders – but just seven for Arab citizens (and those were built in the Negev for ‘concentrating’ the Bedouin population). The average Palestinian community inside Israel has lost up to 75% of its land since 1948, while a quarter of all Palestinian citizens are internally displaced, their property confiscated for use by the state and Jewish towns.

An estimated 90,000 Palestinian citizens live in dozens of ‘unrecognised villages’, which suffer from home demolitions and a lack of basic infrastructure. Israeli officials openly talk of ‘Judaizing’ areas and tackling the ‘threat’ posed by non-Jewish citizens. Residency in 70% of Israeli towns is managed by committees that filter out those deemed ‘unsuitable’ for the ‘social fabric’.

These are just a few examples of what Professor Oren Yiftachel has described as an “ethnocracy“:

Despite declaring the regime as democratic, ethnicity (and not territorial citizenship) is the main determinant of the allocation of rights, powers, and resource … [and] the logic of ethnic segregation is diffused into the social and political system.

In addition, all of this is without commenting on how, for 45 of Israel’s 64 years, the Jewish state has military ruled over Palestinians in the West Bank and Gaza who do not even have the limited protection afforded by citizenship (while settling the territory with Jewish citizens).

As Israeli jurist and founding member of the Association for Civil Rights in Israel Ruth Gavison put it, the Jewish state is

an enterprise in which the Arabs are not equal partners, in which their interests are placed below those of a different national group – most of whose members are newcomers to the land, and many of whom are not even living in the country.

Such honesty seems to elude Johnson, Walzer, and BICOM. It is encouraging that the Israel advocacy group feels forced to address the issue of Israel’s ‘democratic future’ – not least because, through the weakness of their arguments, they are unwittingly contributing to the growing understanding of what lies at the heart of the continued lack of a sustainable, just peace.

Posted by Ben White on 05 February 21, 2012 in New Statesman (http://www.newstatesman.com/blogs/the-staggers/2012/02/jewish-state-citizens-israel)

Views of US Embassador on Pakistan‏

Robert Munter
US Ambassador to Pakistan
Islamabad, Pakistan

To: Under Secretary of State for South Asia
Department of State
Washington, DC

Date: December 31, 2010

Re: Pakistan the first quarter

Having been in Pakistan since October, I am forwarding a brief review of my first personal impressions.

1) View about America: Survey after survey has shown that the populace at large has very unfavorably views US government and policy. The perception in the corridors of power is very different. Given their propensities to focus on conspiracy theories most of them have a notion of US influence in Pakistan that far exceeds our real capabilities. Sometimes I feel as the “Governor General” from a bygone past caught in a historic time warp. From the highest office down to midlevel functionaries, perception becomes reality, when it comes to viewing US as the kingmaker. This mostly helps us in stacking the deck of cards in our favor but also works against us at times when diplomacy is seen as failing. The dilemma for our policy is incongruence between our objectives and the popular sentiment of the people in Pakistan. Changing this is not merely a matter of perception and has to be more than a public relations exercise. It will require a significant change in our strategic trajectory.

2) The Social divide: Having served in Iraq I have experienced the divide between the elites and the common citizen, which is quite typical of the Middle East and South Asian countries. In Pakistan however it takes unparalleled heights. My first private party at a key ministers residence, the opulent lifestyle was in full contrast to the plight of those serving us. White gloved waiters were standing with ashtrays so that the corpulent minister and guests could smoke their Cuban cigars at will, and with utmost disdain flicker the ash at random intervals to be caught by the gloved waiter with unsurpassed skill. Alcohol, which is, otherwise not in public display in this Islamic country was flowing from an open bar. Our hosts were shocked that most of the American guests did not drink. I was taken aback at the presence of so many blond Pakistani women, on inquiring was told by our bemused social secretary about the miracle of peroxide and modern hair coloring which seems to be the fashion statement of the day for well groomed (sic) modern Pakistani women. As we pulled out to leave, the sight of an army of drivers was something to behold, huddled in the frigid night until the wee hours, for the masters to terminate their fracas. Service is legitimate but this smacked of servitude, opprobrium reminiscent of attitudes of European aristocracy and our own experience with slavery.

3) Hypocrisy a new dimension: I was stunned to hear form a very senior political functionary about US interference in the internal affairs of the country. When pointed out that this interference could be curtailed if the Government of Pakistan would refuse to take Billions of Dollars in US aid annually, his response was that monies were for services rendered in the fighting terrorism. Purloin of developmental funds to support the prodigious lifestyle of the ruling elite seems to be the normative. This can be only rationalized as a self-entitled narcissism of a collective of people with a rapacious appetite to loot the country.

4) The common man: My contact has been limited but even with limited exposure they continue to amaze me. In abject poverty and mired in the maelstrom of illiteracy they display a dignity and authenticity that is in stark contrast to the capriciousness of the pseudo westernized elites. Hospitable to a fault and honest despite being in the vortex of poverty the common everyday people of Pakistan display great ingenuity to survive against formidable odds, a gristle of the soul, that must come from a past rooted in spiritual life of a different sort.

5) Democracy: In Pakistan democracy has taken a dimension that borders on mockery of true representative government. The elected representatives come almost exclusively for the elite and privileged class. Rather than representing the populace they are more like local regional ‘viceroys’ representing the federal government and their own vested interests in the regions. Most are in politics not with a sense of public service but more to maximize the opportunity to make money, which they do with total disdain. The mainstream political parties are oligarchies controlled by the founding patriarchs or their heirs. One wonders if this is the model, we seek to perpetuate? Given my background as a history professor I have my druthers.

6) Alchemy of change: The polarization in the society makes significant change likely in the near future but given the deficit of leadership and organization it is not inevitable. This situation is unlikely to be remedied in the short term. If such a leadership were to emerge then conflict between the polarized segments would likely ensue. Under these circumstances we will not be able to count on the Military as a stabilizing force. The Military though a disciplined and well led, is a egalitarian body with much of its leadership and rank coming from middle, lower middle and poor classes. Their support of any move to perpetuate the rule of the elite will be at their own peril. The current military leadership is unlikely to prop the existing structure if such a conflict was to occur and possibly may even be catalytic toward such change. This is in stark departure form the past.

Pakistan is a fascinating place the contradictions are glaring but the promise is great, ironically what may be good for Pakistan may at least in the short term not be good for furtherance of our policy goals. We need to take a long view and it may be worthwhile to cut our losses, uncouple from the ruling elite and align our self with popular grassroots sentiment in the country. This would change our perception in the short term and when change does come we, for a change, will be on the right side.

From Mumtaz Khan (SPN Newsletter)
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