Anil Kalhan

(Posted at Dorf on Law)

In 1997, to mark the fiftieth anniversary of the independence of India and Pakistan, the House of Representatives passed a bipartisan resolution “congratulat[ing] the people of India and Pakistan on the occasion” and “look[ing] forward to broadening and deepening United States cooperation with Pakistan and India in the years ahead for the benefit of the people of all three countries.” Undoubtedly not the most consequential legislative act taken in the 105th Congress, although let’s not forget that the 105th was the “Monica Congress,” whose “dismal legislative record,” according to congressional scholar Thomas Mann, “will barely register when its history is written.” So this resolution might actually be up there as one of its highlights.

Regardless, symbolism and good will gestures have their place, and the 1997 resolution was a laudable one. So I was curious to see what the current Congress had to offer ten years later, on the occasion of the sixtieth anniversary of Indian and Pakistani independence. The differences are at least mildly noteworthy. The only current resolution that I could find (which apparently has not been adopted) was introduced two weeks ago by House members Jim McDermott and Joe Wilson. The resolution, which McDermott and Wilson apparently introduced at the behest of the U.S. India Political Action Committee, a group which (I think) did not even exist in 1997, “applauds the Indian-American community” for its role in promoting bilateral relations between India and the United States, “extends best wishes to the people of India as they celebrate the 60th anniversary of India’s Independence,” and — interestingly, for a resolution of this sort — “recognizes India as a long-term strategic partner of the United States.” Unlike the 1997 resolution, this resolution makes no reference to Pakistan or Pakistani Americans at all.

One certainly should be careful not to read too much into something so insignificant. But this resolution seems just a tad bit petty in its exclusive focus on India. Whatever we might understandably expect from a group like USINPAC, which self-consciously advocates in favor of stronger “U.S.-India bilateral relations in defense, trade, and business,” I do expect more from members of Congress. Especially at a moment in which the Bush administration has stumbled in its policies toward Pakistan, losing Pakistani hearts and minds left and right by lending unconditional support to General Musharraf for so long — and at a moment in which none of the major presidential candidates has yet offered a compelling alternative approach in support of Pakistani democracy — it is unfortunate that members of Congress could not have approached even this small, symbolic gesture with more creativity and thought than this.

* * *

So it is left to the rest of us, rather than lawmakers and lobbyists, to try to make modest symbolism at least somewhat more meaningful. As Ramachandra Guha reminds us in his magisterial new book, India After Gandhi, not everyone in the subcontinent found cause for celebration at the moment of independence, which came with the largest mass migration of people in history and left hundreds of thousands dead in the wake of Partition. As Guha notes, in Pakistan poet Faiz Ahmed Faiz wrote that

This is not that long-looked for break of day
Not that clear dawn in quest of which those comrades
Set out, believing that in heaven’s wide void
Somewhere must be the stars’ last halting-place,
Somewhere the verge of night’s slow-washing tide,
Somewhere the anchorage for the ship of heartache.

In India, Gandhi avoided the independence celebrations altogether, lamenting the violence of Partition and questioning whether anyone should be celebrating “in the midst of this devastation.”

However, this evening, in New York, some Indians and Pakistanis will lay claim not only to the notion that the independence of India and Pakistan can indeed be celebrated, while simultaneously recognizing cause for mourning and reflection, but also to the idea that the moment can be a shared one that Indians and Pakistanis can celebrate together. While Gandhi observed the moment of independence with a twenty-four hour fast, the organizers of “Flavors Beyond Borders” have creatively chosen instead to embrace food, treating it

as a medium to spread the message of peace, brotherhood and harmony among the people of the two nations. People from across the border will feast on a hearty meal specially prepared by renowned chefs of the two nations and enjoy the musical performances by acclaimed singers.

As Gandhi famously said, “we must be the change we wish to see in the world,” even when in seemingly insignificant ways.

* * *

On July 4th, Mike commended to Dorf on Law readers the Declaration of Independence. In the same spirit, today I commend to all of you the speeches on the occasion of independence by both Nehru:

Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. . . . It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity. . . . That future is not one of ease or resting but of incessant striving so that we may fulfil the pledges we have so often taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. [link to full text]

and Jinnah:

No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples. You are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any region or caste or creed –that has nothing to do with the business of the State. . . . We are starting with this fundamental principle that we are all citizens and equal citizens of one State. . . . Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual but in the political sense as citizens of the state. [link to full text]

(Posted at Dorf on Law)

A few days ago, Mike posed the following question regarding Pakistan:

Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one?

My own initial reaction was that intense fear of that prospect, which Mike described as “terrifying,” might often cause Americans to overestimate the actual risk. (Yes, John Edwards, I’m talking to you.) Now, over at Chapati Mystery, our colleague Sepoy goes a step further, arguing not simply that it is possible to support the pro-democracy forces without that feared outcome materializing, but that doing so in fact offers the best hope of avoiding it. His essay offers some useful background on the current standoff in Islamabad at the Lal Masjid (and in particular, its roots in the Islamization policies implemented during the 1980s by the last military dictator in Pakistan supported by the United States, General Zia ul Haq). The full post is well worth the read, but here’s the punch line:

The strengthening of miltant forces in Pakistan – and their inward gaze – has not come from any radicalization of Pakistani society but from the incomplete operation of US forces in Afghanistan. The war in Iraq drained away any plan for a viable and functioning Afghanistan. The defeated troops carried their tribal allegiances back across the border into the Northern and Western regions of Pakistan – and turned their attention onto Pakistani state. Musharraf, busy consolidating the military’s dominion had no viable way of combating these tribes – he has no legitimacy. I could be writing an alternative version of this recent past, if democratic tendencies had actually been allowed to develop in Pakistan since 2001. You may call it ‘paradoxical’ but the only solution to de-Islamization of Pakistan is democracy – not the support of dictatorships.

* * *

While many western observers praise Musharraf’s brave decision to side with the United States, the truth is that it was a no-brainer for him. The majority of Pakistan’s population has long maintained a healthy distaste for the involvement of religious leaders into statecraft – taking perhaps as axiomatic Bulleh Shah’s old verse: Mulla tay mashaalchi dohaan ikko chiz / Loukan karday chananan, aap anhairae vich [The Cleric and the Light Bearer are both the same / Trying to illuminate others, but in darkness themselves]. The outpouring of support for the Chief Justice is just one indication that the country is hungry for relief – note, please note, that Chaudhry Iftikhar is not some bearded mullah with any agenda for Shari’ah implementation in Pakistan. And yet, that old canard is forever being bandied about that if given democracy, the insane mullahs will control Pakistan. The choice has never been between Musharraf and the Mullah or the Mosque and the Ballot. The truth is that there never has been any choice. And the Pakistani public demand a choice. And they can be trusted to make the right decision just as much as any other citizen in any other democracy in any nation of this world [cf. 2000 and 2004, United States of America.] [link]

Pakistani military analyst Dr. Ayesha Siddiqa, author of the recent book “Military, Inc.,” offers a related perspective here.

(Oh, and that photo at the top of the post? It’s not from yet another stop on the Chaudhry yatra, but rather from a 100,000 person rally in Karachi against the Lal Masjid clerics back in April.)

(Posted at Dorf on Law)

Vice President Cheney has been all over the news this week. First, Cheney made headlines for his claim that he need not comply with rules requiring all executive branch entities to report to an oversight office in the National Archives on how they handle classified information because the Office of the Vice President is not part of the “executive branch.” Second, the Washington Post has been running a series of revealing stories this week on the dominant role that Cheney has played in the Bush administration across a range of issues.

For more on all of that, have a look at what our colleagues Jack Balkin and Marty Lederman have to say over at Balkinization. Here, I simply wish to draw attention, in the context of this week’s reports, to some of last week’s Cheney-related news, which I suspect some folks may have missed — namely, the apparently dominant role that Cheney’s office also has been playing in the Bush administration’s continued, seemingly unconditional support for General Pervez Musharraf in the current political crisis in Pakistan (which is not discussed in the Post series). First, from a column by Pakistani journalist Ahmed Rashid in the Post:

[Recent years have seen] a dramatic drop-off in U.S. expertise on Pakistan. Retired American officials say that, for the first time in U.S. history, nobody with serious Pakistan experience is working in the South Asia bureau of the State Department, on State’s policy planning staff, on the National Security Council staff or even in Vice President Cheney’s office. . . . “They know nothing of Pakistan,” a former senior U.S. diplomat said.

Current and past U.S. officials tell me that Pakistan policy is essentially being run from Cheney’s office. The vice president, they say, is close to Musharraf and refuses to brook any U.S. criticism of him. This all fits; in recent months, I’m told, Pakistani opposition politicians visiting Washington have been ushered in to meet Cheney’s aides, rather than taken to the State Department.

No one in Foggy Bottom seems willing to question Cheney’s decisions. Boucher, for one, has largely limited his remarks on the crisis to expressions of support for Musharraf. . . . Meanwhile, Boucher’s boss, Secretary of State Condoleezza Rice, demands democracy and media freedom in Venezuela but apparently deems such niceties irrelevant to Pakistan. [link]

Second, from an interview that longtime Asia expert Selig Harrison gave to the Daily Times:

Harrison said that Washington’s Pakistan policy is run by Vice President Dick Cheney’s office, adding that there is a group in there, which is pushing for a showdown with Iran, including military action, over its nuclear programme before Bush’s term expires.

The American Vice President attaches great importance to Musharraf and it would appear that an understanding has been reached with him on Iran. The Cheney lobby is keen on destabilising Iran, said Harrison, who recently returned form a week-long trip to Iran.

He further claimed that Cheney’s last visit to Pakistan was Iran-related, during which Cheney wanted to find out if there was more information to be gleaned from Dr AQ Khan on Iran’s nuclear programme and what assistance his network had rendered to it. [link]

Meanwhile, the crowds continue to throng around “suspended” Chief Justice Iftikhar Chaudhry as he travels across Pakistan to speak to gatherings of Pakistani lawyers. This past weekend’s stop was Multan, where a 30-plus hour yatra from Lahore culminated in a speech before thousands of lawyers and Musharraf opponents. “Your motto is supremacy and implementation of law and independence of the judiciary,” he told the lawyers, “[and] I am confident your movement will succeed.” [link] All of this comes amidst new allegations that Musharraf’s intelligence agencies are bugging judges’ telephones.

Hai rabba, between Cheney and Musharraf, who’s giving advice to whom? Perhaps the same people are giving legal advice to both of them. If it’s constitutionally permissible for Musharraf to manipulate electoral rules so he can continue to serve as both President and Chief of Army Staff, as he has hinted that he might, then maybe (among other things) it’s also possible that Cheney’s Office of the Vice President is a non-branch of government after all.

As our colleague Sepoy, over at Chapati Mystery, might say, tick tock….

(Posted at Dorf on Law)

Our colleague, Diane Marie Amann, draws our attention to, and invites our nominations for, an interesting contest that she and her co-bloggers at IntLawGrrls are conducting to name the “Seven Legal Wonders of the World.” Here’s Diane’s description of the contest and its inspiration:

A contest launched 6 years ago by the entrepreneurial New7Wonders Foundation has driven more than 4 million people to cast 28 million votes for humankind’s 7 most wondrous feats of engineering or architecture (of the traditional 7 only 1, the Pyramids, is still in existence). You’ve got just 60 days left to choose among the 21 finalists, which range from Athens’ Acropolis temple to Bavaria’s Neuschwanstein castle, from the statue of Jesus in Rio to the Statute of Liberty in New York. If the spirit moves you, vote here.

Or, help IntLawGrrls put together a different list — of the World’s 7 Legal Wonders. Post a comment or e-mail us at intlawgrrls@gmail.com with your nominee. Names of persons, things, events, ideas all are fair game. And your nominee may be a “wonder” in the negative as well as the positive sense of the word. [link]

So far, the nominees include: (1) the 13th Amendment to the U.S. Constitution, (2) the Constitution of the Republic of South Africa, (3) the Law Merchant, and (4) the Edicts of Aśoka.

Just as interesting as any particular candidate for “Legal Wonder” may be what the nominations say about the cultures from which these Legal Wonders have emerged and our own. Mary Rebecca Bynum has written that when she teaches her undergraduate course on “The Seven Wonders of the Ancient World,” her purpose is not simply to teach students about the Seven Wonders themselves, but to explore “how members of one culture view other cultures, and what use they make of other cultures in their own world.” This contest, too, may be as much a window into our own values, ideals, and culture as it is into the cultures that produced the particular “Legal Wonders” being nominated.

So who or what do we nominate here at Dorf on Law? There are of course many worthy candidates, but I nominate Dr. B.R. Ambedkar, a Dalit (or so-called “untouchable”) leader who at times clashed with Gandhi and other Congress leaders during the Indian independence movement and later became one of the principal architects of the Indian Constitution, which among many other notable things abolished “untouchability.” Over fifty years after his death, Ambedkar remains a deeply influential figure in contemporary India, although to many people also a controversial one. A crude indicator of progress under Ambedkar’s Constitution may be seen in the sweeping recent victory in the state of Uttar Pradesh by the Bahujan Samajwadi Party, a party created principally to represent and advocate on behalf of Dalits. Not only did the BSP surprise observers by winning an absolute majority of seats in the state — returning Mayawati, the first Dalit woman to lead any of India’s states, to power as the state’s Chief Minister — but it apparently did so with significant support from a “rainbow coalition” that included significant numbers of upper caste Hindus. On the other hand, for a sense of how far India has yet to go to fully realize its formal abolition of untouchability, recall my post on the status of Dalits from several months ago.

Feel free to post your nominations for the “Legal Wonders” contest, along with your reasons, in the comments to this post (or, co-bloggers, perhaps in blog posts of your own). Or send an email to intlawgrrls@gmail.com. If it seems easier to identify “legal blunders” than “legal wonders,” that need not hold you back, for if a blunder is bad enough — if it’s a downright fiasco — perhaps it inspires wonder on that basis alone. So whether fabulous or fiasco, fire away with your nominations.

(Posted at Dorf on Law)

UPDATE (6/7/2007): An updated and more complete discussion of the issues in this post may be found in my column for AsiaMedia on Wednesday.

**

A couple of weeks ago, in response to a New York Times editorial critical of continued U.S. support for General Pervez Musharraf, Pakistan’s U.N. ambassador, Munir Akram, took a break from his duties as diplomat to perform a quick stint as media critic (thanks, SAJAforum). In a letter to the editor printed last week, Ambassador Akram complained that the Times‘s “repeated references to our president as a military dictator are offensive. President Pervez Musharraf was elected in accordance with Pakistan’s Constitution by our national and provincial parliaments. His re-election will be similarly democratic.” [link]

It will be recalled that Musharraf was swept into office with 98 percent of the official tally in an April 2002 referendum that presented voters with no opponents and the following ballot question:

Do you want to elect President General Pervez Musharraf as President of Pakistan for next five years for the survival of local government system, restoration of democracy, continuity and stability of reforms, eradication of extremism and sectarianism and for the accomplishment of Quaid-i-Azam‘s concept.

At the time, leading Pakistani lawyers and human rights advocates concluded that the polling was not free and fair and even questioned the very legitimacy of the referendum itself under the Pakistan Constitution. [link] Just last week, soon after Ambassador Akram sent his letter to the Times, a former Pakistani high court judge made the same arguments to the Supreme Court panel hearing the allegations against suspended Chief Justice Iftikhar Chaudhry:

A former judge claimed yesterday that President Pervez Musharraf had no authority to suspend Chief Justice Iftikhar Chaudhry, arguing that the 2002 referendum that kept the military ruler in power was unconstitutional.

* * *

“People were made into fools,” [Fakhruddin G.] Ibrahim said of the referendum, adding that the vote’s lack of legal authority leaves Musharraf “not competent”.

Ibrahim called for an end to military rule, saying Musharraf had received a stamp of approval from a subservient parliament. Musharraf is expected to seek a new five-year presidential term later this year from the same parliament, but has yet to announce whether he will give up his position as army chief — the source of most of his power. [link]

Ibrahim might want to check his inbox to see if there is any fan mail from Ambassador Akram. But if all he and the Times get from Pakistani officials is correspondence, then maybe they should consider themselves fortunate, for just last week:

Three Pakistani journalists working for foreign news organisations in Karachi found bullets placed in their cars in what a local media body described on Wednesday as an attempt to intimidate the press into silence. “It is very threatening. This is a serious issue. It is an attempt to gag the press, but we will not compromise on our objectivity,” Mazhar Abbas, secretary-general of the Pakistan Federal Union of Journalists, told Reuters. [link]

Over the weekend, the government and its allies cracked down on the electronic media, taking three independent TV news channels off the air for several hours. [link, link] Live coverage of Chaudhry’s speech before a rally in Abbotabad (apparently the largest pro-Chaudhry rally to date) was blocked, and one of the channels, Geo TV, was apparently blocked on account of a broadcast critical of Musharraf. All of this came after weeks of media intimidation — countless warnings by senior government officials that the media must “use its press freedom with responsibility” and “avoid inappropriate reporting,” a number of police raids on journalists’ offices, violent attacks targeting journalists during the last month’s violence in Karachi, and explicit threats last week by both government officials and the national cable operators association that media restrictions were likely on the horizon.

And then today, the other shoe dropped:

Under an emergency ordinance that takes effect[] immediately, Musharraf made a raft of amendments to regulations governing the electronic media, including private television channels that the general has accused of anti-government bias.

The ordinance says authorities can seal the premises of broadcasters or distributors breaking the law, and raises possible fines for violations from 1 million rupees ($16,665) to 10 million rupees ($166,650).

The Pakistan Media Regulatory Authority can also suspend the license of an offender. [link]

No word just yet on the circumstances ostensibly justifying the “emergency” measures. But not to be left out of the fun, Pakistan Prime Minister (and former Citibank executive/would-be ladies’ man) Shaukat Aziz chimed in as well, warning that the media should “refrain from maligning prestigious state institutions, particularly the armed forces. Those who talk against the armed forces are enemies of Pakistan.” [link] One cannot be entirely certain, but it’s possible that Aziz’s comments were directed not only at the electronic media, but also at Dr. Ayesha Siddiqa, whose new book “Military, Inc.” — launched on Thursday, banned by Friday — investigates the lucrative private business interests that feed the Pakistan Army’s power. [link]

Musharraf and his colleagues say that they are all for freedom of the press. In fact, just last month, Musharraf participated in the launch of a new English all-news TV channel by Dawn, a newspaper founded by Jinnah himself (and one that has been engaged in a bitter dispute with Musharraf’s government for several years). At that event, Musharraf took “full credit for the mushrooming of private television channels, saying that whatever freedom there was in the country it was only because of him. ‘I alone had insisted that we must give them freedom so that the media could hold everyone accountable,’ he said while recalling the early years in power when he had framed the media policy.” However, in that same speech Musharraf also warned, as he frequently has before, that the media must “demonstrate what he called a certain level of responsibility in the projection of Pakistan” in its coverage. [link]

Explicit media censorship was, of course, a key element of Indira Gandhi’s Emergency in India, as this Time Magazine article from July 1975 reminds us:

Strict censorship has prevented the once lively Indian press (some 830 daily newspapers) from printing anything other than official handouts about the crisis. Government proscriptions against “unauthorized, irresponsible or demoralizing news items” last week were extended from articles and editorials to cartoons, photos and even advertisements. This further muzzling of the press may have been in response to a few cases of surreptitious sniping at the government’s measures; in Kerala, for example, one paper ran a cartoon depicting Mrs. Gandhi dressed as Louis XIV with a caption reading “I am India.” The censors also closely monitored the dispatches of foreign newsmen. Last week the government summarily expelled Washington Post Correspondent Lewis M. Simons, who had stirred official ire by reporting that the army did not solidly back Mrs. Gandhi. [link]

The violations of press freedom in Musharraf’s Pakistan have not yet reached such an explicit and blatant point, and perhaps never will. Musharraf might well conclude that he can more effectively advance his domestic and international political objectives by relying on more subtle forms of interference with press freedom than total bans, explicit censorship, and the declaration of a complete state of emergency. Regardless, even short of the extremes reached in Indira Gandhi’s India, the situation is not particularly encouraging.

* *

Meanwhile, according to the State Department, “[t]he direction that President Musharraf set for Pakistan is a good one, and we are supporting that.” [link] And in the process, some moderate Pakistanis say that they “are coming to despise the USA.” Not that there are necessarily any simple answers here, but mull over that the next time someone tries to tell you that “they” hate “us” simply because “they hate our freedoms.”

(Posted at Dorf on Law)

This week, the Senate began debate over a massive immigration reform bill cobbled together by a bipartisan group of senators and the Bush administration, a compromise proposal that Arlen Specter has extravagantly dubbed the “grand bargain.” As rumored several weeks ago, the bill includes a set of initiatives (apparently included at the behest of the Bush administration) that would radically accelerate the Clinton-era trend of eroding the place of family unity as a foundational principle underlying U.S. immigration policy. The system contemplated by the grand bargainers would eliminate most of the existing family-based immigration preference categories (and all of the existing employment-based preference categories) in favor of a new “points”-based scheme that prioritizes highly-skilled, highly-educated, and English-speaking professionals; under the points scheme, family ties would carry negligible weight. Immigration by spouses and minor children of U.S. citizens and lawful permanent residents would remain unchanged, but the grand bargain would eliminate family-based immigration for adult children of U.S. citizens and permanent residents and siblings of U.S. citizens. The proposal would also cap immigration by parents of adult U.S. citizens, who currently can immigrate without numerical restriction.

The proposal seems to come straight from the playbook of immigration restrictionists, who sometimes purport to welcome nuclear family-based immigration, but dismiss extended family-based immigration as privileging “kinship ties” over “actually making the United States better off.” [link] Curtailing “extended” family-based immigration — which in this context means parents, adult children, and adult siblings, not more “distant” relatives — certainly would visit a real hardship upon many immigrants from societies in which the extended family is a basic social unit and caring for aging parents and other adult family members a basic social value. (Indeed, at least one international news report this week characterized the grand bargain as “challeng[ing] Asian family values.”) But one need not view this issue exclusively in cultural terms to be concerned by the grand bargain’s rather sudden move away from family unity, for opponents of extended family-based immigration also seem to underestimate its social and economic benefits to the United States at large. Studies indicate that family-based immigrants, perhaps aided by greater social capital, have the same earning potential over time as employment-based immigrants, play a leading role in the entrepreneurial sector, and provide economic, psychological, emotional, and cultural support that facilitates the integration of immigrants into U.S. society. Immigrant grandparents and other extended family members often also play a crucial role in assisting with child care, facilitating the workforce participation of many parents.

It is a bit odd to see a proposal to curtail family reunification — which was not even on the table at all in the immigration debate last year — as part of the opening bid in the debate before a Democratic Senate. It is one thing to see President Bush’s statement that “American citizens [should] understand that family values do not stop at the Rio Grande River” evaporate, since the Bush administration has always devoted more energy to asserting broad principles in the area of immigration reform than to tangibly implementing those principles in proposed legislation. (The revised rhetoric coming from the White House this week maintains, less majestically, that the grand bargain’s elimination of most family-based immigration categories “create[s] a new balance between family connections and our national interests and economic needs.” [link]) But it is quite another to see Senator Kennedy signing on to this proposal, which appears in a bill that on balance seems more restrictionist, in some ways, than the bill which passed the Republican-led Senate by a wide margin last year. Not only did Kennedy strongly assert his commitment to family reunification less than two months ago, he also played a crucial role in placing family reunification at the heart of U.S. immigration policy in the first place, when the Immigration Act of 1965 was enacted. One has to wonder what the strategy is here. Some senators have said they will seek to amend the family unity provisions on the Senate floor, but it remains to be seen how those floor votes will play out.

* *

The New York Times efficiently summarizes and critiques the 347-page bill’s main components (including its legalization and temporary guest worker provisions, and the “triggers” and “touchbacks” that might make it difficult for those provisions to take effect at all) in this short editorial. The American Immigration Lawyers Association adds its concerns about the grand bargain here, the Rights Working Group discusses due process concerns in the bill here, and SAALT executive director Deepa Iyer discusses implications for the South Asian American community here. And last but not least, Jon Stewart and Aasif Mandvi discuss the points scheme in the clip above.

UPDATE: An updated discussion of the issues in this post may be found in my column for AsiaMedia on May 18, 2007.

**

(Posted at Dorf on Law)

It’s been an eventful week in Pakistan. A recap for folks who get most of their news from American media outlets may have missed it:

• In a speech on Saturday, President Pervez Musharraf once again accused “non-functional” Chief Justice Iftikhar Chaudhry’s supporters in the Pakistani legal community of “trying to give political colour to a judicial issue.” He warned “that they would not succeed in their designs,” and again defended his decision to suspend Chaudhry. [link]
• In response, tens of thousands of Chaudhry’s supporters and Musharraf’s opponents rallied in support of Chaudhry’s motorcade on Saturday and Sunday as it proceeded through towns along the Grand Trunk Road from Islamabad to Lahore — a four-hour trip that took Chaudhry’s motorcade approximately twenty-six. “Nations and states which are based on dictatorship instead of the supremacy of the constitution, the rule of law and protection of basic rights get destroyed,” Chaudhry warned in a speech to lawyers in Lahore. The government apparently blacked out news coverage of the demonstrations and arrested many activists in advance of Chaudhry’s yatra. [one, two, three]
• In response to the demonstrations, Musharraf’s Prime Minister Shaukat Aziz, a former Citibank executive in New York, warned that the government reserved the option under the Pakistan Constitution to declare a state of emergency. He also warned the media to “use its press freedom with responsibility” and “avoid inappropriate reporting.” [link]
• On Wednesday, the Supreme Court of Pakistan “strictly prohibited” any “discussions, comments or write ups which may interfere with the legal process, or ridicule, scandalize or malign the Court or any of its Judges/Members of the Supreme Judicial Council or touching the merits of cases pending both before the Supreme Judicial Council/Supreme Court” and warned that violators would be punished for contempt of court. [link] Meanwhile, that same day in Karachi, government officials sealed the law office of Munir Malik, President of the Pakistan Supreme Court Bar Association and one of the lawyers defending Chaudhry. Within hours, the Sindh High Court ordered Malik’s office unsealed, and early on Thursday morning, shots were fired into Malik’s home by unidentified gunmen. [link]

Leaving to one side the merits of the charges against Chaudhry, about which I have nothing to say, Musharraf’s repeated attempts to draw a line between politics and law in this case — and at that, to do so in the course of his own political speeches and press conferences — seem a bit naive at best. Indeed, the highly politicized manner in which Musharraf and Aziz initially handled the referral of the case back in March, as summarized in a preliminary report released on Tuesday by the International Bar Association, seems to have intertwined the case with politics from the start. And clearly, the case has touched a nerve implicating issues bigger than anything to do with Chaudhry himself. Given the Supreme Court’s gag order, the cabinet has now asked Musharraf and other government officials to stop talking about the case. [link]

Aziz’s talk of emergency seems more ominous, evoking not only earlier moments in Pakistani history but also the notorious Emergency declared in India during the 1970s. Facing growing political opposition and an unfavorable judicial decision that would have tossed her from office, Indira Gandhi instead tossed Indian democracy itself to one side, manipulating constitutional provisions authorizing the declaration of emergency to suspend fundamental rights, censor news coverage, detain tens of thousands of political opponents and others, and effectively rule by decree. Pakistan seems to be facing a similar moment. With elections required by the end of this year, Musharraf has been maneuvering for a way to remain President while retaining his post as Army Chief of Staff, which would appear to violate the Pakistan Constitution. (Indeed, Musharraf has already violated his own promise to give up either his post as Army Chief or his civilian post as President by December 2004.) A state of emergency could provide a convenient pretext for Musharraf to postpone elections and prolong his hold on power. At the same time, given the depth of political opposition that the Chaudhry affair has exposed, one has to cringe at the thought of what it might take for the Pakistan Army to meaningfully enforce any declaration of emergency.

So far, there seems little basis for even a pretextual declaration of emergency. But the Chaudhry Yatra proceeds this weekend to Karachi, where Chaudhry is scheduled to address the Sindh High Court Bar Association. Chadhury’s supporters have scheduled an anti-Musharraf demonstration, and in response the pro-Musharraf MQM has scheduled a counterdemonstration to take place at the same time nearby, which Musharraf opponents allege has been planned in a deliberate attempt to stir up violence. (Musharraf also has scheduled a political rally of his own to take place at the same time in Islamabad.) Karachi is understandably on edge in advance of the competing demonstrations, for which the state government is planning to deploy 15,000 police.

Will the unfolding events provide Musharraf with a convenient excuse to declare an emergency? And what are U.S. diplomats saying to Pakistani officials behind closed doors? In the words of the Faiz Ahmed Faiz ghazal that has been much quoted in connection with this week’s events, “hum dekhenge.”

(Posted at Dorf on Law)

According to the New York Times, U.S. officials are concerned about what the Times calls a “visa loophole“: the ability to enter the United States as a short-term, temporary visitor without a visa. The headline does not make clear precisely what the supposed “loophole” is. If the Times means to refer to the Visa Waiver Program as a whole, which authorizes visa-free entry of visitors from 27 countries that extend the same privilege to U.S. citizens, then that must be one of the biggest “loopholes” in human history, since approximately 13-15 million people — representing roughly half of all nonimmigrant admissions — enter the United States under the program every year. So surely the Times’ characterization rests on a more particularized, irregular, and unanticipated concern?

In recent months, the homeland security secretary, Michael Chertoff, has opened talks with the government here on how to curb the access of British citizens of Pakistani origin to the United States. . . . Among the options that have been put on the table [by U.S. officials], according to British officials, was the most onerous option to Britain, that of canceling the entire visa waiver program that allows all Britons entry to the United States without a visa. Another option, politically fraught as it is, would be to single out Britons of Pakistani origin, requiring them to make visa applications for the United States.

Oops. Maybe not all that particularized, since (according to the Times) approximately 800,000 UK citizens are of Pakistani descent. And not the least bit irregular, since the government has implemented the Visa Waiver Program pursuant to criteria established under a series of statutes dating from the mid-1980s. A wag of the finger to the Times, and a tip of the hat to Siddhartha Mitter — as he notes, to characterize as a “loophole” the ordinary application of U.S. immigration laws to UK citizens of Pakistani descent in precisely the same manner that they apply to any other UK citizen seems, “wittingly or not, an appeal to prejudice and an insult to intelligence.” It’s as much a “loophole” as my entitlement, as a U.S. citizen of South Asian descent, to get one of those kitschy new U.S. passports that Mike wrote about on Tuesday.

* * *

Let’s leave to one side debate over the Visa Waiver Program in general, which provides significant economic and fiscal benefits to the United States but also has raised security concerns. What should we make of the specific proposal to discriminate against Pakistani UK citizens? Despite the Chief Justice’s statement in a 2006 voting rights case that “it is a sordid business, this divvying of us up by race,” the Supreme Court might well uphold an official policy discriminating against Pakistani, South Asian, or Muslim UK citizens. Just as it relied upon and reaffirmed the Civil Rights Cases when striking down the Violence Against Women Act, the Court could rely upon and reaffirm the cases from the same era upholding Chinese exclusion, which never have been overruled; while more recent Supreme Court cases require some limited constitutional scrutiny over substantive admissions criteria, they probably don’t require strict scrutiny.

But it also doesn’t strike me as a “slam dunk” case, given the proposal’s rather questionable rationality. Indeed, the very fact that this discussion is taking place at all might be an illustration of Bernard Harcourt’s suggestion (which he also makes in his recent book) that profiling in defensive counterterrorism measures might, counterproductively, lead to substitution in the form of either recruitment from non-profiled groups or use of methods that may be more immune to such profiling. The first generation of post-2001 profiling-based initiatives by the United States largely targeted natives and citizens of predominantly Muslim countries. The possible shift now to a second generation of profiling-based initiatives, this time instead targeting citizens (presumably including both naturalized and native-born) of largely non-Muslim countries in the West, might be a response to precisely the sort of substitution that Harcourt discusses. Why shouldn’t we expect further substitution in response to this proposal as well? After all, UK citizens suspected of terrorism in recent years have not exclusively been Pakistani, but also have included individuals of Jamaican and East African descent. And there are 26 other countries in the Visa Waiver Program.

According to GAO, the biggest potential vulnerability in the Visa Waiver Program is the misuse of lost and stolen passports by individuals seeking to conceal their true identities or nationalities. Some visa waiver countries may not be monitoring and reporting lost or stolen passports as effectively as they should, and U.S. border officials may lack sufficient resources and capacity to detect the misuse of passports from visa waiver countries. But assuming these are the principal concerns here, it seems odd and misguided to respond by requiring Pakistani UK citizens alone to apply for visas. After all, holders of false, manipulated, or fraudulently-obtained British passports probably could manipulate their identities rather easily to indicate that they are of, say, Indian or Lebanese descent. Even if the profile were broadened to include all Muslim UK citizens, a determined would-be terrorist could similarly conceal their religious identity.

So a wag of the finger to Chertoff as well. Like most of the post-2001 initiatives that have adopted blanket, categorical rules that profile and discriminate against individuals perceived to be Muslim, this proposal strikes me as symbolic “security” on the cheap, a sign that perhaps the government does not understand all that well the phenomenon it seeks to prevent. In the short term, the proposal seems unlikely to provide more than a false sense of security and could visit real hardships upon many UK citizens of Pakistani descent, given how much red tape many Muslims face in the visa application process nowadays. (See here for a particularly cringeworthy story.) In the longer term, the proposal represents yet another discriminatory initiative with great potential to fuel the alienation and anger of Muslims throughout the world, by once again forcing them to endure the indignity of imputed responsibility for wrongdoing with which they have absolutely nothing to do.

(Posted at Dorf on Law)

On the heels of increasing discussion of whether its erstwhile (given his recent defeat in the first “money primary”) presidential frontrunner is sufficiently conservative to win the Republican nomination [one, two], the erstwhile party of family values is apparently about to unveil its latest proposal for comprehensive immigration reform. While details remain unclear, reports indicate that the proposal — which has White House support and whose Senate sponsors include at least two erstwhile opponents of comprehensive immigration reform, Senators John Cornyn of Texas and Jon Kyl of Arizona — would limit family reunification in at least two respects. First, while the proposal would provide undocumented immigrants with an opportunity for legalization, it apparently would bar them from bringing family members with them [link]. Second, while the bill would increase the number of employment-based visas to accommodate future flows of immigrant workers, these increases apparently would be offset in part by eliminating the existing family-based visa category that permits immigrants to sponsor their siblings and adult children [link].

Immigrants’ rights advocates and pro-immigration legislators have criticized the proposal:

“Family reunification has been an essential aspect of these policies,” Kennedy said last week. “Many of those who are brought in, in terms of families, have become actively involved. They open small stores, play a significant role in the economy. The families and the importance of family unity are extremely important.” [link]

“This set of principles is a nonstarter – they don’t work,” said [Asian American Justice Center] President and Executive Director Karen K. Narasaki. “They don’t address the underlying problems leading to undocumented immigration – and, in fact, the policies would actually exacerbate the problems. They offer only false promises to the undocumented already here. And they are very anti-family.” [link]

As these advocates suggest, the White House/GOP Senators’ proposal might legitimately be understood as a significant anti-family shift in the current reform debate. However, what might easily be lost in this discussion is the extent to which the proposal might also be understood as simply the continuation of a trend, for the immigration policies enacted in the last decade – especially the legislation signed into law by President Clinton in 1996 — already have devalued immigrant families to a significant extent. Ten years later, one doesn’t have to look very hard to find stories of families devastated by the vast expansion of deportation grounds to encompass minor crimes and the elimination of opportunities for many long-time residents to seek individualized, discretionary relief from deportation. (I’ll nevertheless help with that search by providing a couple: click “play” on the audio link above for the story of Aarti Shahani and her family, also downloadable here from Breakthrough, and see this link for the story of 82-year-old Gurdev Gill. Only two stories among many, many others.)

With the proliferation of such stories, one might think that one has heard every possible permutation. And yet, yesterday (thanks, Naina), a remarkable recent case caught my attention:

Samuel Jonathan Schultz was born in India and adopted at age 3 by a Utah woman. His adopted mother apparently failed to complete his application for US citizenship upon his arrival to the US.

As a teenager, Schultz got in trouble with the law on numerous occasions. At the age of 18, he was arrested for driving a stolen vehicle (he claims that his friend stole the car and that he was simply on his way to return it). A year later, he was convicted again for car theft. [link]

Schultz also “has a juvenile record of theft offenses and engaged in altercations as a teen with his stepfather that occasionally required police intervention.” [link] Apparently ineligible for discretionary relief on account of his criminal history, he has sought asylum on the ground that, as a Mormon, he might face persecution in India, and in an unpublished opinion the Tenth Circuit recently affirmed the denial of his asylum claim, also on account of on his criminal record. Let’s leave the merits of the asylum issue to one side for now — although I wouldn’t too quickly or categorically dismiss the notion that Christians might face persecution in India, either, at least in some circumstances. At the heart of this case is not Schultz’s asylum claim, but rather the question of what justifies either his deportation or the blanket denial of any opportunity to seek discretionary relief from deportation at all. Since Schultz is an adoptee, presumably all of his family ties are here in the United States. Indeed, Schultz’s criminal record itself is entirely “homegrown” in the United States, since he has had no meaningful ties to his country of origin since the age of three.

Schultz’s case is only a particularly extreme illustration of the harsh immigration consequences that countless others have faced since 1996. At one point, concerns over such extreme outcomes led a bipartisan group of legislators — including some of the very architects of the 1996 legislation themselves — to conclude that those laws had gone too far and should be scaled back. Such proposals have been notably absent in the post-2001 debates over immigration reform. However, Congressman José Serrano recently has proposed legislation in that spirit. Serrano’s bill, the Child Citizen Protection Act, would restore discretionary authority for immigration judges to waive deportation of parents of U.S. citizen children if the IJ concludes that deportation is “clearly against the best interests of the child.” Serrano’s proposal is a limited one. It wouldn’t help Schultz and many others facing overly punitive consequences of the 1996 laws. But the bill could provide a starting point for a rather different kind of public conversation than the one we’ve been having for the past several years about who we are deporting and why.

When he was still mayor here in New York, the erstwhile GOP frontrunner was a vocal advocate on behalf of immigrant communities in several respects. Now that he has presidential ambitions, and both a GOP base and Tom Tancredo to contend with, it will be interesting to see whether he will remain a strong advocate for immigrant families in the current reform debates or will instead “flip flop” and become merely another erstwhile pro-immigrant voice.

(Posted at Dorf on Law)

The crisis in Pakistan over General Pervez Musharraf’s “suspension” of the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, has only deepened since Mike first posted about it earlier this week, but it continues to garner surprisingly little news coverage in the United States. Musharraf has still offered no details of the allegations against Chaudhry, but his suspension came one day after the now “non-functional” Chief Justice gave notice that he intended to investigate allegations of disappearances at the hands of Pakistani security forces, which have increased dramatically since 2001. (On the surge in disappearances, the Guardian has chilling details.)

The move to dismiss Chaudhry is hardly the first time in the postcolonial history of the subcontinent that judicial independence has been threatened. In each of Pakistan’s four periods of military rule, the coup leaders have moved with some success to legitimize their usurpation in the courts, which have elaborated what Tayyab Mahmud has aptly termed a “jurisprudence of successful treason.” Nor has interference with judicial independence in Pakistan come solely from the army. Only two years before he was deposed by Musharraf, former Prime Minister Nawaz Sharif’s ugly dispute with (and effort to remove) one of Chaudhry’s predecessors as Chief Justice culminated in a physical attack by a mob of Nawaz’s supporters on the Supreme Court building.

When asked to legitimize the army’s interventions into domestic politics, Pakistani judges have frequently acquiesced — as judges have, to be sure, in other countries during emergency-like moments, such as the United States in the face of internment and India in the face of Indira Gandhi’s Emergency. While such acquiescence has usually been discredited over time in other countries, in Pakistan the result seems to have been the validation of a central role for the army in domestic affairs. Those Pakistani judges who have tried to resist typically have been sidelined by the military regime; when Pakistani courts have acted somewhat more assertively in response to the army’s claims, it has tended to happen after civilian rule has been restored, and without repudiating the notion that military intervention into politics is valid and legitimate.

So far, that basic script has been followed once again under Musharraf’s regime, with the Supreme Court validating his coup in a March 2000 decision. However, during Chaudhry’s twenty-one month tenure as Chief Justice, the Supreme Court of Pakistan has increasingly shown the potential to become a thorn in the regime’s side. Since Musharraf already has significantly weakened the civilian bureaucracy and provincial governments, the judiciary is, along with the media, one of the few institutional power centers with the capacity to pose a challenge to the role of the army.

In Pakistan, the clichéd adage goes, politics is often driven by three As: Army, Allah, and America. Here in the United States, we like to focus (that is, if we are paying attention at all) on the first two, variously condemning the army’s interruption of the democratic process and raising the specter of Muslim extremists using Pakistan as a staging area for terrorism or even ascending to power in Musharraf’s place. As Americans, however, perhaps we should be devoting greater attention to the third A, and in particular how the role of the United States may be interacting with the role of the army and of religion in Pakistani affairs. Here’s what U.S. officials initially had to say about the current crisis in Pakistan:

The US State Department on Monday described the government’s action against Chief Justice Iftikhar Mohammad Chaudhry as Pakistan’s ‘internal matter’ and refused to comment on the development. “We won’t be offering any comment on that. It is an internal matter,” a State Department official told Dawn when asked for comments. [link]

In this particular instance, however, it is an “internal matter” whose triggering event — an investigation into post-2001 disappearances — may well have been influenced or more directly shaped by U.S. policy:

[U]ntil 9/11, disappearances were rare. Then, in late 2001, as al-Qaida fugitives fled from Afghanistan into Pakistan, Musharraf ordered that the agencies show full cooperation to the FBI, CIA and other US security agencies. In return, the Americans would give them equipment, expertise and money.

Suddenly, Pakistan’s agencies had sophisticated devices to trace mobile phones, bug houses and telephone calls, and monitor large volumes of email traffic. “Whatever it took to improve the Pakistanis’ technical ability to find al-Qaida fighters, we were there to help them,” says Michael Scheuer, a former head of the CIA’s Osama bin Laden unit.

* * *

The al-Qaida hunt became a matter of considerable pride for President Bush’s close friend, the president of Pakistan. “We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars,” wrote Musharraf in his autobiography last year. (The boast sparked outrage at home in Pakistan and was scrubbed from later Urdu-language versions of his book.) Prize captures included the alleged 9/11 mastermind Khalid Sheikh Muhammed, who has apparently confessed to a string of terror plots after four years as a captive, and Abu Faraj al Libbi, another alleged bin Laden lieutenant. But certain innocents were also swept up in the dragnet.

* * *

The truth is that the American government still quietly supports the disappearances of al-Qaida suspects, says Ali Dayan Hasan of Human Rights Watch, which has documented many cases. “The abuse has become even more brazen because of US complicity,” he says. He claims that American officials are regular visitors to ISI safehouses in Islamabad, Lahore and Rawalpindi where torture has occurred. They have supervised interrogations from behind one-way mirrors, he says. In FBI internal documents, he says, torture is referred to as “locally acceptable forms of interrogation”.

For some detainees the safehouses are the back door to the mysterious world of CIA “black sites” – secret prisons in Afghanistan, eastern Europe and across the Arab world where torture is allegedly rife. [link]

There is some irony that, in a week in which Khalid Sheikh Muhammed’s confession has received so much media attention in the United States, the deepening political fallout in Pakistan triggered by an investigation into the very policies and practices associated with his capture have received so little. It seems possible that, like the investigations in Italy and Germany into extraordinary rendition, an investigation into post-2001 disappearances in Pakistan could reveal information that the U.S. government would prefer the public not to know. The broader point is that there are many ways in which Pakistani political developments are being shaped by what the United States is doing, even though those influences may often be far from our public consciousness.

* * *

To echo Mike’s comment about the courage of Pakistani lawyers and others resisting Chaudhry’s suspension and house arrest, the scenes in Pakistan are quite remarkable. (Here is a particularly vivid set of photos.) Prominent and distinguished lawyers in India have expressed their solidarity with the “courageous lawyers in Pakistan who are opposing this frontal assault on the judiciary,” and they deserve the active support and encouragement of American lawyers as well.

(posted at Dorf on Law)

Ten years ago this month, South Africa’s post-apartheid constitution went into effect, laying the foundation for the establishment of a non-racial democracy with a mandate to overcome the effects of decades of institutionalized inequality. The new South African charter has been widely heralded as among the world’s most progressive, entrenching a broad range of civil, political, economic, social, and cultural rights as foundational guarantees and explicitly mandating courts to consider international human rights norms when interpreting its fundamental rights provisions.

With formal South African apartheid receding into the past, however slowly, as South Africans work arduously to overcome its legacy, what does it mean to invoke the concept of “apartheid” in the world today more generally? Comparisons to South African apartheid have abounded for years, and have invariably been controversial. In recent months, for example, former President Jimmy Carter has argued to some controversy that Israel’s “rigid system of required passes and strict segregation between Palestine’s citizens and Jewish settlers in the West Bank” is tantamount to apartheid. Later this week, when it meets to consider India’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the U.N. Committee on the Elimination of Racial Discrimination (CERD) could confront the contemporary significance of apartheid in another context: the systematic and well-documented discrimination against India’s 165 million Dalits, or so-called untouchables. The issue is suggested in the title of a comprehensive report issued last week by Human Rights Watch and the NYU Center for Human Rights and Global Justice, “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables.’” According to the report, to which students in the NYU International Human Rights Clinic contributed extensive research and analysis:

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. . . . A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals. [link]

Much of the factual information in the report is uncontroversial, coming directly from Indian governmental and nongovernmental sources and previous Human Rights Watch reports. Indeed, perhaps more noteworthy than any of the specific facts documented in the report is that a couple of months before its publication, in December 2006, the Prime Minister of India, Dr. Manmohan Singh, made a statement resting on similar premises — namely, that discrimination against Dalits is “fundamentally different from the problems of minority groups in general” and that South African apartheid may constitute “[t]he only parallel to the practice of untouchability.”

With such widespread acknowledgment of the pervasive and systematic nature of discrimination against Dalits, one plausibly might quarrel with the HRW/NYU report not for its characterization of that discrimination as “apartheid,” but rather for its suggestion that these abuses are in any sense “hidden.” To be sure, there are obvious differences between formal South African apartheid, which was lawfully enforced by the state itself, and substantive caste-based “apartheid” in India, which persists in the face of an extensive array of constitutional and statutory provisions that outlaw untouchability and caste-based discrimination and justify state intervention to eliminate those practices. But despite these laws, abuses against Dalits remain no less widespread or systematic for lack of formal legal sanction by the state. State actors remain complicit in countless abuses against Dalits and, at the same time, frequently fail to stop abuses committed by private actors. While affirmative action programs have played a significant role in improving the status of some Dalits, these limited government interventions have been inadequate given the overwhelming extent of caste-based discrimination in Indian society. Such abuses are hidden only to the extent that they “hide” behind their formal illegality while, in many contexts, remaining as visible as ever.

Analogies to South African apartheid not simply are potent rhetorically, but also have potential legal significance, if taken seriously, given the extent to which apartheid has been formally condemned by the international community. At the height of South African apartheid, the U.N. General Assembly adopted numerous anti-apartheid resolutions and effectively expelled South Africa from its meetings. An international convention against apartheid entered into force over thirty years ago and now has 107 state parties. Eventually, even the U.N. Security Council concluded that South African apartheid constituted a threat to international peace and security and adopted a number of anti-apartheid resolutions, including one mandatory resolution under Chapter VII of the U.N. Charter imposing an arms embargo against South Africa. Today, many years after the formal demise of South African apartheid, the Rome Statute expressly defines apartheid as a crime against humanity over which the International Criminal Court has jurisdiction.

Remarkably, India’s official report to CERD — which, in fairness, was submitted long before Prime Minister Singh’s recent statement — contains no information on discrimination against Dalits or other lower caste groups, which the Indian government had refused to acknowledge as encompassed within the Convention at all. This stance is unfortunately consistent with India’s more general resistance to meaningful engagement and cooperation with international human rights monitoring institutions — for example, by refusing to permit U.N. special rapporteurs to visit the country to examine various human rights concerns. There are poignant ironies in this resistance, which disregards CERD’s clear conclusion that caste-based discrimination falls well within the Convention’s protections against discrimination on the basis of “descent.” For one thing, when the Convention was being drafted, it was India which proposed to include discrimination on the basis of “descent” within its ambit, apparently with caste-based discrimination in mind. For another, it was India which first put the issue of South African apartheid itself on the international community’s radar screen. Around the same time that it was drafting its own post-independence constitution — which, like the new South African constitution today, was widely heralded at the time as a progressive model with a mandate to overcome past injustices and transform Indian society — India became the first nation to raise the issue of South African apartheid in the U.N. General Assembly. For many years thereafter, India continued to play a leading role in the global anti-apartheid struggle, during a period when many Western nations chose instead to make accommodations with South Africa’s apartheid-era regime.

Rather than regarding international human rights monitoring institutions as obstacles to be resisted, India could instead choose to regard greater engagement and cooperation with these institutions as a constructive means to help address what is widely acknowledged as a serious human rights challenge, as Meenakshi Ganguly has noted. Such an approach to the “hidden apartheid” of discrimination against Dalits would set an important example to other countries, and certainly would be more faithful to India’s own pioneering role in challenging the international community to help bring South African apartheid to an end.

Links: “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables‘”; audio commentary by Professor Smita Narula, NYU Center for Human Rights & Global Justice and co-author of the report (English, Hindi)

(posted at Dorf on Law)

Earlier this week, Somini Sengupta reported in the New York Times on the controversy in the Indian state of Madhya Pradesh over an initiative by the BJP-led state government to conduct a mass yoga program in the schools. The program has caused opposition by some Muslim and Christian groups, who apparently object less to the yogic exercises themselves than to the recitation of Hindu religious verses as part of the program. (One Australian reporter wrote that the plan “enraged India’s 160 million Muslims,” but that’s self-evidently ridiculous.) When it comes to trying to keep yoga out of the schools, Indians are hardly alone. In the United States, Christian groups have been attacking school yoga programs for years, echoing the words of the current pope, who admonished back in 1989 that yoga can “‘degenerate into a cult of the body’ that debases Christian prayer.”

There must have been something in the air in January, however, for the Global War on Yoga seems to have intensified surged everywhere these past few weeks. In the United States, Christian groups have renewed their concerns that “yoga’s Hindu roots conflict[] with Christian teachings and that using it in school might violate the separation of church and state.” And in Canada — that’s right, even in Canada — concerns over the potentially satanic influence of yoga have also been increasing in recent days:

“Supposedly, we do not allow religion in schools — and yoga is a religion,” said cattle rancher Audrey Cummings, 68, who filed a complaint with the Quesnel school board and the Education Ministry over the Action Schools program. Quesnel is in the B.C. interior, about 90 kilometres south of Prince George.

* * *

Yoga turns kids’ minds toward Hindu gods, Cummings said.

“If you’re not seeking the God of the Bible, His power, then by default you’re in the other camp,” Cummings said. “The other source of supernatural power is Satan.” [link]

The social and legal contexts in which these disputes have arisen are different in ways that seem significant. In Madhya Pradesh, the initiative is part of a broader program by the Hindu nationalist BJP to promote yoga across the state. For the first session, the Chief Minister himself served as yoga-instructor-in-chief, broadcasting instructions by radio to state-sponsored programs not only in public schools and colleges, but also in private schools, government offices, and even prisons across the state. (They apparently didn’t get the memo from Norway, which scrapped prison yoga when officials discovered that it made inmates irritable and aggressive.) Especially given past efforts by the BJP and its affiliate organizations to “saffronize” education — for example, by rewriting textbooks to include chauvinistic perspectives on Hinduism and denigrations of other religious groups — it’s understandable that some would suspect the true motivations behind the program and raise concerns about its potential effects. Secularism is an entrenched part of the Indian Constitution’s “basic structure,” but religion and the state are not meant to be completely separate. Rather, Indian secularism protects freedom of religion within a broader constitutional framework that demands equal respect for all religions, on the one hand, and at the same time contemplates state intervention to constrain and reform some religious practices that violate fundamental rights, on the other. Of course, yoga is not an example of the latter, although some popular American variants seem pretty close to cruel and unusual punishment to me. (“Hot yoga“? Competitive yoga??) But institutionalizing it on such a broad and comprehensive scale — and more importantly, if this is in fact true, with a self-consciously saffron tinge — may raise understandable concerns about the state’s commitment to affording all religions equal respect. The Madhya Pradesh High Court has ordered the state to make the program voluntary, and according to at least one news report, the government has dispensed with the recitation of Hindu hymns as part of the program. But depending on the remaining details, that might or might not be enough to ensure a non-coercive educational setting in which all religions are afforded equal respect.

In North America, by contrast, the school yoga programs seem not to involve much religious content at all, much less any intent to promote Hinduism or coerce acceptance of Hindu values. At least I’d be awfully surprised if they did — in 2007, yoga in America seems mostly about health, fitness, and keeping up with the Joneses. (Indeed, both conservative Hindu organizations and yoga purists have objected to some of the ways in which yoga has morphed in America.) It’s also not clear if these programs are a mandatory part of the physical education curriculum or entirely elective. But even assuming these school programs necessarily and unavoidably incorporate some religious content, albeit implicitly, is that necessarily a constitutional problem in context? If the programs were being implemented to promote particular religious values — for example, if they were “PraiseMoves” programs — that would of course be one thing. But coercion or promotion of religion seems pretty unlikely in this context. Especially since Hinduism is almost certainly a minority religion in just about every school district in North America, Hindus are probably not in much of a position to be coercing anyone, and since the proponents of these programs are almost certainly not even Hindu themselves, it’s not all that likely that their goal is to promote Hinduism. If, in context, both the purpose and primary effects of these programs are basically secular, then maybe the folks getting exercised about all of this should just close their eyes, relax, sit quietly, and take a few deep breaths using their diaphragms.

Now, on to more serious religion-state issues — can we talk about how today, all over the country, we are coercing schoolchildren to participate in the rituals of that major religious holiday, Groundhog’s Day?

(posted at Dorf on Law)

Time for a break from these trivial conversations about supposed Asian invasions, supposed Muslim invasions, intimidation (by government officials) of white shoe lawyers, intimidation (of potential jurors) by white shoe lawyers, Canadian parliamentary maneuvering, New York legislative non-maneuvering. Enough with all of this frivolity, already — it’s time to talk about something consequential. Yes, it’s time to talk about Bollywood, Reality TV, and the Law. (And no, despite how it sounds, that’s not a course that I have either taken or taught.)

Now that the “Celebrity Bigot Brother Big Brother” kerfuffle has hit the paper of record, some of you may already know a smidgen about the drama rocking the UK, the Subcontinent, and the South Asian diaspora this week. (Primers here and here, and for the pathologically obsessed, up-to-the-minute updates here.) The show features a couple of Hollywood has-beens low on media attention these days — Jermaine Jackson, of those Jacksons, and Dirk Benedict, of the old Battlestar Galactica. But more importantly for our purposes, the lineup also includes Shilpa Shetty, a significant Bollywood star, and three fading British luminaries, Jade Goody (famous for being famous), Danielle Lloyd (a former Miss Great Britain), and Jo O’Meara (of the band S Club 7). To make a long story short:

Jackiey [Jade’s mother] called Shilpa “the Indian” and asked if she lived in a shack, and then Danielle told Jade that she thought Shilpa was a dog and then Jo refused to eat the chicken that Shilpa had cooked because she had only put it on for 45 minutes, and she didn’t know where her hands had been, and now, well, now she knew why all Indian people were so thin, because they couldn’t cook properly, … and then Danielle said that Shilpa wanted to be white… [link]

Oh yes, and Jade’s boyfriend may or may not have called Shilpa a “Paki,” Danielle definitely did say that Shilpa “should f*** off back home” because “she can’t even speak English,” and Jade told Shilpa to “go back to the slums” and later called her a “pappadum.” Shilpa, though not exactly speechless, was left to ask (in English), “Is this what today’s UK is? It’s scary. It’s quite a shame really.” Faster than you can say “Michael Richards,” all hell breaks loose —effigies burning in India, official protests by the Indian government to the British government, calls for the show to be cancelled immediately, front-page headlines screaming about the possibility of a “bitter race war” between the UK and India, colloquies with Tony Blair about racism on the floor of the Commons during Question Time….

Hai rabba, stop the madness! Believe it or not, however, there is more to this story than celebrity gossip, political opportunism, and tabloid sales. As Booker Prize winner Kiran Desai has noted, for many British South Asians, who now constitute 4 percent of the UK’s population, the episode touches a nerve because it vividly calls to mind their own day-to-day experiences with racism in the UK over a period of many years. The public hangama has resulted in tens of thousands of formal complaints, more than any TV show in British history and enough to shut down the website of Ofcom, the British broadcast regulator. Ofcom and the police are investigating possible violations of (among other things) laws banning broadcasts intended to incite racial hatred. These reality shows are notorious for manipulating the social dynamics among their participants — remember the “Law & Order” episode covering this ground? — and if the show’s producers have deliberately provoked racial conflict on the show, an investigation might be useful in bringing that to light. Still, all of this seems to fall well short of incitement, and people calling for the show’s cancellation are probably missing the point. Certainly the entire obsession with l’affaire Shilpa misses more than one point, since there are far more consequential issues involving racism and inequality in British society than the bullying of a multimillionaire actress. But given the choice between shutting the show down and letting the spectacle unfold for everyone to see, it’s better for Britain to hold up a mirror and see just how ugly what the Independent has called its “barely submerged xenophobia” can sometimes get.