The Tunisian revolution of January 2011 sparked the “Arab Spring” pro-democracy movements that led to the fall of Arab dictators. The aftermath of revolutions involve messy transitions; a crucial period in which success or failure of democratic uprisings is determined – think of Iran, after 1979. Tunisia is experiencing a rough period involving a struggle for control of the revolution and future direction of the country. It is in this evolving context that I recently travelled to Tunis to assist in the training of members of the Tunisian judiciary.

The program “Training of Tunisian Judges” is funded by the Swedish International Development Agency (SIDA), and provided through the International Bar Association, Human Rights Institute. The objectives of the program involve infusing the Tunisian judiciary with knowledge of international human rights law, including an independent judiciary. Judicial independence is a crucial ingredient of a democratic society and respect for rule of law. International human rights law and treaties enshrine the fundamental principle of an “independent and impartial” judiciary. The African Charter on Human and Peoples’ Rights enshrines the additional requirement of a “competent court or tribunal” [Art. 7(1)(b)].

The training sessions occur monthly over the course of one year and are intended to encompass practically every member of the judiciary and thereby build an element of critical mass. My co-trainers for the June 2013 session were from the UK and Morocco. The session had 30 judges, from around the country, of which one-third were women. The training required simultaneous translation in English and Arabic and was provided with excellence. My seldom used French language skills were useful and appreciated in social settings.

Despite decades of authoritarian rule, Tunisia is a secular society and that was reflected in the judicial contingent. The judges appeared genuinely interested and committed to fundamental fairness, judicial independence, democracy and respect for rule of law. The training covered knowledge and safeguards concerning due process and fair trial. My presentations included introduction to international human rights law and concepts, major universal human rights instruments and mechanisms for their implementation, major regional human rights treaties and jurisprudence, international legal standards for the protection of persons deprived of their liberty, and judicial independence and the role of the legal professions.

The first day did involve overcoming some skepticism or suspicion voiced by a couple of judges as to why the program and what human rights meant – including western ideas, hypocrisy on Palestine, and homosexual rights. These preconceptions were addressed and personal rapport and trust established – all the while emphasizing that human rights are universal, indivisible, interdependent and interrelated – with practical examples and jurisprudence.

I found the Tunisian judges to be gracious, intelligent and highly capable. Their professional fear and concerns related to a lack of unity amongst the judiciary and lack of judicial independence. They also feared for the direction of their country. The transition has been marred by violence, assassination, depressed economy and social unrest. A “moderate” Islamist party – Ennahda – won the polls and there is deep suspicion as to its real motives and commitment to genuine democracy.

A draft constitution makes Islam (not Sharia) the official religion, and while referencing universal human rights, it makes them subsidiary to the constitution. Prominent human rights lawyer and opposition leader, Chokri Belaid, a strong critic of the supporters of the fundamentalist Islamists – sometimes referred to as “Salafists” – was assassinated on February 6, 2013, and four radical Islamists were detained in relation to his murder. The PM denounced the murder and formation of a caretaker government until a new election is held.

Meanwhile, many Tunisians resent Saudi and Qatari money being funneled to build Mosques, propagate their ultra-conservative brand of Islam (Wahhabism), and finance Islamic radicals. Salafists have attacked theatre performances, music concerts, journalists, secular leaders, and political opponents. The government dismissed 82 judges without any due process and deep concerns about subordination of the judiciary to the executive branch abound. The government judicial bodies are stacked with government appointees. The judges went on a strike and the issue remains up in the air.

The defendants in the violent attack and burning down of the US embassy received only two year suspended sentences for their crimes. The double-edged justice became only more visible when two youths who spray painted graffiti on the walls of a religious site, calling out certain leaders as “dogs”, were imprisoned for two years. Judicial independence or not, there is widespread belief in political interference in the judicial and legal decision-making process. There is suspicion the government says the right things, but looks the other way with the Islamists or outright interferes and manipulates power to create an Islamic state and society.

It is essential the judges have unity and fight to secure judicial independence. They are also terribly underpaid and that makes it vulnerable to corruption. I was left with great respect and admiration for Tunisians. The capital Tunis and environs is highly secular and one of the goals of the 2011 revolution was to bring judicial independence through democratic transition. The struggle is on and democratic allies and institutions around the world could lend an assisting hand in strengthening democratic groups and institutions, including rule of law and an independent judiciary.

Ultimately, the fate of the revolution will depend on Tunisians themselves. That does not mean we must stand on the sidelines as cheering, foreign bystanders. We can help build a sustainable democracy on the ancient shores of North Africa. There is cause to be optimistic based on the Tunisians I met; a highly impressive, informed and dedicated people. It was an humble honour, informative and enriching experience to have been invited to work with the Tunisian judges on behalf of the International Bar Association.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at third reading of Bill C-37, An Act to amend the Criminal Code.

This bill amends the Criminal Code to change the rules concerning mandatory surcharges. The purpose of the bill is to double victim surcharge amounts and to make them mandatory for all offenders convicted of a criminal offence.

The bill amends section 737(5) of the Criminal Code to eliminate judicial discretion; section 737(2) of the Code to increase the victim surcharge from 15 per cent to 30 per cent of a fine imposed by the court; section 737(2) of the Code to increase the victim surcharge from $50 to $100 for offences punishable by summary conviction; and section 737(2) of the Code to increase the victim surcharge from $100 to $200 for offences punishable by indictment if no fine is imposed by the court.

Senator Jaffer: This bill will not follow the Gladue principle, which the Supreme Court of Canada has established must be taken into account when sentencing Aboriginal peoples. As Minister Nicholson stated, “This bill applies to all individuals convicted of a criminal offence committed in this country.”

Honourable senators, last weekend, I met an amazing human being, Mr. William Sundhu. Mr. Sundhu has practised law in British Columbia for 30 years. He is a former judge and a member of Kellogg College, University of Oxford. He has had a distinguished career in criminal trials, human rights and community leadership in British Columbia. He has worked in trial courts, predominantly in criminal law, including 11 years on the bench in the interior and northern regions of British Columbia. He shared his perspective on the impact that Bill C- 37 would have on certain Aboriginal people in Canada. He wrote:

Many of the persons who come before the criminal courts live with poverty, addiction or disabilities. This may include those with mental health needs, Fetal Alcohol Syndrome Disorder, and especially Aboriginal persons, who are disproportionately over-represented among Canada’s prison and criminal justice population.

(1540)

Certain racial groups are also overrepresented in our criminal justice system.

Bill C-37 only further compounds criminalization and the serious challenges facing these groups because they do not have the ability to pay the mandatory surcharge.

Some provinces do not have Fine Option Programs.

That generally only leaves the option of a warrant of committal.

In remote and isolated communities, there may not be a court sitting for weeks or hundreds of kilometres away in a larger centre.

Upon arrest for non-payment, a person may be held in custody for several days before they can appear before a judge and seek release on bail.

Mr. Sundhu continued:

This type of situation is not only very expensive and bureaucratic . . . it can also create huge consequences for affected persons — disruption and ministry removal of children from single parents because their sole caregiver has been arrested, lost their home, lost their job, lost their ability to provide food derived from hunting and fishing for families.

For example, if you are arrested on Haida Gwaii, the sheriff will fly from Prince Rupert on the mainland to collect the arrested person, fly the arrested person back to Prince Rupert and then transport them 800 kilometres, if they are denied bail or imprisoned, to Prince George where the nearest provincial jail is located.

Upon release, the person must then make their way back to Prince Rupert and catch the ferry that departs back to Haida Gwaii twice a week.

That person, often a woman, must make this trip back to her reserve via the “Highway of Tears” — where many Aboriginal women have gone missing over the years.

Warrants of committal can and have profound consequences.

“Trust us” does not resonate with Aboriginal Canadians and for good historical reason.

Some criminal justice experts might also question the wisdom of Fine Option Programs.

Such programs, even if available, may be too much for a person with mental illness or an aboriginal single parent struggling to keep his or her head above water — if they already struggle for example with disabilities, addiction, obtaining suitable shelter, illiteracy, language problems, counseling and treatment programs.

For many such persons daily life is already a struggle.

Perhaps, at its most basic the removal of judicial discretion to waive victim surcharges will force some persons to choose between food or fines — when it comes to survival for them or their families.

Do their children eat or do they pay the mandatory surcharge to avoid further sanctions or arrest?

For example, in British Columbia’s north-west, on the Haida Gwaii, some Aboriginal persons must survive on monthly government income assistance of only $265 per month, after a modest housing allowance.

Due to it being a series of islands and its geographic isolation, the cost of transport makes food very expensive.

For example, a two-litre carton of orange juice retails at $7.59.

Most persons survive by hunting and fishing.

Poverty and lack of employment are very real problems.

Forcing a single parent or two-person headed family living in poverty to pay a mandatory surcharge will force the family and children into hunger and even more desperate circumstances.

The impact of this legislation on aboriginal, poor and vulnerable persons and families will create manifold problems and costs elsewhere.

It will cause extreme hardship and it is unjust.

Choices will come down to food or fine, a pair of boots for a child or a fine, and so forth. One hundred dollars may not [seem] like much, to some Canadians or legislators, but it means a great deal to a poor person or an Aboriginal parent on Haida Gwaii.

Honourable senators, Bill C-37 is not about seeking justice. It is about arbitrarily disbursing disproportionate punishments. Fairness and sameness are not interchangeable concepts. If we pass this bill, we are rejecting compassion, proportionality, restorative justice, common sense and fairness.

This bill is really wrong, and I ask that honourable senators vote against it.

Delhi: Darkness to Light, December 16, 2012.

March 25, 2013

By Bill Sundhu

I landed in New Delhi on the night of December 16th, 2012 – a night of infamy. It was my first visit to India after 18 years. Our family histories and ties are in India and it was to be a journey of exploring ancestral places and roots for the first time with our daughter and son. India has that pull. It is inescapable, powerful and profoundly personal. I remember how dark and eerily quiet the streets and gated shops appeared, on the drive through the city to our hotel – it was as if it had been abandoned and devoid of life – a remarkable contrast to the teeming crowds and intensity of daytime Delhi.

That same night, a 23 year old physiotherapy student – Jyoti Singh Pandey – was returning home after having gone out to watch the movie “Life of Pi” with a male companion. I had seen that movie one week prior to landing in India. It was a brilliant and moving film; at a poignant moment the main character submits and utters to heaven, “I surrender. What do you want from me?!” It is a profound question posed by men and women, through the ages. And yet, Jyoti Singh Pandey, did not submit – she fought against her assailants and for her life afterwards in the hospital. She was the victim of an unimaginably brutal and horrific rape by six men on a Delhi bus. She succumbed to her injuries and died on December 29th.

In the days to follow, I found it unbearable to drive by landmarks associated with that horrible night – the mall where she’d seen the movie, Safdarjung hospital, the bus stop where she’d been picked up, or the roadway where her and companion’s stripped and abused bodies had been dumped and no-one had stopped to assist for over an hour, and where police officers callously left them laying on the ground as they argued over who had jurisdiction.

On the night of December 22nd, we were trapped in central Delhi – the authorities had shut down roads and metro stations in and out of the city core – lathi-bearing police officers grinned as we tried to navigate our ways around steel barriers and the young protestors trying to make their way to Raisina Hill. A national symbol, India Gate, and the historic Jantir Mandir had also been closed off by the police wielding lathis and lobbing tear-gas canisters the day before.

The days and weeks to follow were equally painful, disturbing, remarkable and hope inspiring. I am lawyer and former judge somewhat hardened by 30 years in the criminal courts of Canada. I am well-traveled and have witnessed, more than a few times, the gut-wrenching plight of fellow human beings. None of that had prepared me for the depth of anguish one could feel during that time in India.

Much has been written about the brutal crime and does not need repeating. A few observations, however:

• Patriarchy: India is a highly male-dominated society and a deep, long change must necessarily occur in evolving society at large away from patriarchy;

• The Indian political class, judiciary, lawyers, and police must be accountable for their indifference, complacency, sexism and corruption;

• Caste: sexism and sexual violence must not be framed, as was by some, to define the victim as a middle-class. Sexual violence and discrimination is rampant against lower and scheduled caste women;

• Religious and cultural leaders that frame “honour” based on a woman’s “chastity” must be challenged and denounced. Rape victims do not “shame” their families and community; the rapists do – and, so-called leaders must begin to say so;

• Indian Women’s & Feminist Movements: They are second to none and they are heroic. India does not lack for intelligent, articulate, incredibly courageous or forceful voices of women. The discourse in media and on the street by Indian women and feminists was incredibly impressive and insightful. Indian feminists may need solidarity and transnational support; they do not need the misguided, self-righteous, and sometimes superior sounding advice of western women or commentators;

• Patriarchy and imperialist-colonial attitudes both need to be challenged and eradicated;

• Death penalty: I am opposed to the death penalty, including for rapists. Justice is too often imperfect and unequal. Death penalty may also render it harder to obtain convictions against accused rapists.

No doubt there are complex socio-economic, political and historical factors underlying violence and sexism as against women. And, no doubt, India has a serious problem that has been brought into acute focus by the brutal and dehumanizing crimes committed against Jyoti Singh Pandey in Delhi and against women daily across the wide expanse of India. The fact that women, men and especially young people took to the streets and on social media in massive numbers all across India to vent their fury against society and their rulers was inspiring – unprecedented in modern times and issues – and, perhaps, the awakening of a more democratic and humanist spirit. It felt so much like:

“If I do not speak, then who will…if our leaders and police do not ask or view her
as someone’s daughter, sister, wife, mother, friend…and, above all, a human being; then who will?
I must speak…I will stand up, I will fight.”

And, that causes me to believe in the spirit and action of the people of India. India just might be on the move in more ways than one…from the night of darkness towards the light.

This is my first Blog posting. I hope to embrace and write about things that matter: human rights, culture, law and politics, the free play of the mind, the dearness of one’s friends, our shared humanity, and look into the true Heart of Justice.

I hope you will enjoy reading and sharing your responses.

Bill