Thursday, 26 July 2007
Haneef’s Case: An Instance of Reckless Use of Anti-terrorist Laws and Abuse of Process
Dr Mohamed Haneef, an Indian doctor working in Brisbane, was recently charged under the Australian laws for “recklessly” providing support to a terrorist organisation. The gravemen of the charge is that he left his SIM card with unused credit with his cousins in England who have been charged for smashing a jeep into the Glasgow airport. For details and background facts, one might refer to the Wikipedia entry or The Australian.
After remaining in police custody for almost two weeks without any charge, a magistrate released Haneef on bail because the prosecution could not provide credible evidence of a direct link between Haneef and a terrorist organisation. The case took an interesting twist when hours after his release on bail, the Australian Immigration Minister Kevin Andrews cancelled Haneef’s visa on the ground of failing the “character test” under the Migration Act.
The whole saga raises, at least, two sets of questions. First, are states – in their over-zeal to win the war against terrorism – invoking anti-terrorist laws (some of which are inhumane in nature) somewhat recklessly and for purposes other than the intended ones? More importantly, is this approach going to prove counterproductive in containing terrorism?
Second, was the cancellation of visa by the Minister an instance of colourable exercise of power in that the Minister tried to do something what the government could not do directly, that is, keeping Haneef behind bars? Moreover, does it amount to interference with the judicial process?
My short response to all the above questions is, yes. For a slightly longer response, see my piece posted at On Line Opinion.
After remaining in police custody for almost two weeks without any charge, a magistrate released Haneef on bail because the prosecution could not provide credible evidence of a direct link between Haneef and a terrorist organisation. The case took an interesting twist when hours after his release on bail, the Australian Immigration Minister Kevin Andrews cancelled Haneef’s visa on the ground of failing the “character test” under the Migration Act.
The whole saga raises, at least, two sets of questions. First, are states – in their over-zeal to win the war against terrorism – invoking anti-terrorist laws (some of which are inhumane in nature) somewhat recklessly and for purposes other than the intended ones? More importantly, is this approach going to prove counterproductive in containing terrorism?
Second, was the cancellation of visa by the Minister an instance of colourable exercise of power in that the Minister tried to do something what the government could not do directly, that is, keeping Haneef behind bars? Moreover, does it amount to interference with the judicial process?
My short response to all the above questions is, yes. For a slightly longer response, see my piece posted at On Line Opinion.
Friday, 20 July 2007
Towards Privatisation of Affirmative Action in India
One of the key issues concerning the realisation of human rights, in my view, is: could corporations (and other private sector organisations) be made to join hands with states and civil society organs in accomplishing this project? I explored elsewhere this issue with reference to the constitutional provisions in India. It seem that there is a growing realisation that unless corporations take on board the constitutional mandate of human rights protection, the ever-expanding scope of fundamental rights in India would not go far.
One context in which this issue has become more apparent is the affirmative action provisions under the Indian Constitution. For sometime now, discussions are taking place if these affirmative action provisions should be extended, by amending the Constitution and/or by enacting a law, to apply to the private sector. On 24 may 2007, while addressing the annual general meeting of the Confederation of Indian Industry (CII), the Indian Prime Minister Dr Manmohan Singh launched a Ten-Point Social Charter for a more inclusive growth. The Point Three of the Charter deals with the role of private sector vis-à-vis affirmative action: “… industry must be pro-active in offering employment to the less privileged, at all levels of the job ladder. The representation companies give to Scheduled Castes, Scheduled Tribes, other Backward Classes, Minorities and Women, in their workforce and staff must increase.”
CII has also released a Report on Affirmative Action and has formulated a voluntary Code of Conduct to be followed by member companies. The Report outlines several laudable concrete steps that CII seeks to take. However, at the same time the Report puts on record the opposition to “any legislation that would compromise the sanctity of its non-negotiable freedom of choice in employment”. CII is also gathering data in relation to the employment of Scheduled Castes (SCs) and Scheduled Tribes (STs). Many leading companies have already started institutionalising the policy of affirmative action and include this in their annual reports.
Although I expect the road to privatisation of affirmative action in India to be bumpy, it is likely that no roll back would be possible as long as we live in the era of corporate raj.
One context in which this issue has become more apparent is the affirmative action provisions under the Indian Constitution. For sometime now, discussions are taking place if these affirmative action provisions should be extended, by amending the Constitution and/or by enacting a law, to apply to the private sector. On 24 may 2007, while addressing the annual general meeting of the Confederation of Indian Industry (CII), the Indian Prime Minister Dr Manmohan Singh launched a Ten-Point Social Charter for a more inclusive growth. The Point Three of the Charter deals with the role of private sector vis-à-vis affirmative action: “… industry must be pro-active in offering employment to the less privileged, at all levels of the job ladder. The representation companies give to Scheduled Castes, Scheduled Tribes, other Backward Classes, Minorities and Women, in their workforce and staff must increase.”
CII has also released a Report on Affirmative Action and has formulated a voluntary Code of Conduct to be followed by member companies. The Report outlines several laudable concrete steps that CII seeks to take. However, at the same time the Report puts on record the opposition to “any legislation that would compromise the sanctity of its non-negotiable freedom of choice in employment”. CII is also gathering data in relation to the employment of Scheduled Castes (SCs) and Scheduled Tribes (STs). Many leading companies have already started institutionalising the policy of affirmative action and include this in their annual reports.
Although I expect the road to privatisation of affirmative action in India to be bumpy, it is likely that no roll back would be possible as long as we live in the era of corporate raj.
Tuesday, 17 July 2007
Starbucks Forbidden from the Forbidden City!
After operating in China’s Forbidden City – a World Heritage site (and a great tourist site) – for seven years, Starbucks has decided to close its shop rather than doing business under a different brand name. From the very beginning Starbucks had faced protests from local people/authorities/visitors on the ground of “trampling” the Chinese culture. In response, Starbucks tried to be sensitive to these concerns and removed “its eye-catching white-black-and-green logo from the Forbidden City outlet”. However, this did not completely satisfy everyone. Now probably even Starbuck thought that enough is enough; after all, MNCs knows very well “what is in a name”.
MNCs often face the business dilemma similar to one that Starbucks faced in the instant case. More often that not, MNCs have to adjust their business operations in view of local social, economic, cultural or political variables. From the corporate social responsibility (CSR) perspective, the critical issue is: when do such adjustments become legally and/or morally indefensible? In other words, should Starbucks have agreed to operate inside the Forbidden City under a Chinese brand name? What was the social responsibility of Starbucks under the given circumstances? It seems that as the management of the Forbidden City was within its right to lay down rules for operating commercial ventures, Starbucks also has a right to refuse to operate under conditions which might compromise its brand name or identity. Starbucks did not behave in socially irresponsible (or unresponsive) manner by refusing to do business under a different name; in fact, the opposite might be true.
Of course, the situation might be different if Starbucks sells not coffee etc., but is the only company to sell certain life saving drugs within the Forbidden City. Then perhaps an argument could be made that such a company should continue to supply drugs without insisting on its brand name as long as it could use its name in shops outside the Forbidden City.
MNCs often face the business dilemma similar to one that Starbucks faced in the instant case. More often that not, MNCs have to adjust their business operations in view of local social, economic, cultural or political variables. From the corporate social responsibility (CSR) perspective, the critical issue is: when do such adjustments become legally and/or morally indefensible? In other words, should Starbucks have agreed to operate inside the Forbidden City under a Chinese brand name? What was the social responsibility of Starbucks under the given circumstances? It seems that as the management of the Forbidden City was within its right to lay down rules for operating commercial ventures, Starbucks also has a right to refuse to operate under conditions which might compromise its brand name or identity. Starbucks did not behave in socially irresponsible (or unresponsive) manner by refusing to do business under a different name; in fact, the opposite might be true.
Of course, the situation might be different if Starbucks sells not coffee etc., but is the only company to sell certain life saving drugs within the Forbidden City. Then perhaps an argument could be made that such a company should continue to supply drugs without insisting on its brand name as long as it could use its name in shops outside the Forbidden City.
Wednesday, 11 July 2007
Internet’s Influence on Muslim Personal Law
A recent pronouncement, in India, relating to the validity of a Nikah (a Muslim marriage) solemnised online once again attests to the pervasive power of Internet. As reported by The Times of India, the Darul Uloom, Deoband pronounced that “a marriage solemnised in the bodily absence of a party with the help of the Internet, is acceptable if the proceedings take place in presence of two witnesses.” Maulana Khalid Safiullah Rehmani, the Chairman of Islamic Council of India, explained the rationale behind this ruling as follows: “In such a marriage, Internet is assigned the role of a vakil who is authorised to formally receive Ijaab aur Qubool (offer and acceptance) made by both parties.”
People familiar with the law of contract might see that the reasoning of Maulana sits well with the observation of Thesiger L J in Household Fire Insurance Co. v Grant (1879) 4 Ex.D. 216, wherein he saw “no better mode than that of treating the post office as the agent” of both contracting parties. Since marriage is a contract under Muslim law and Internet is now widely accepted as a medium of entering into contracts, the Internet Nikah pronouncement might look as a logical conclusion. Nevertheless, one should keep in mind how this ruling modifies what is regarded by many as a highly conservative personal law which discriminates against women.
It is clear, however, that this interpretation does not dispense with the requirement of two witnesses which are required to be present for a valid Nikah under the Sunni law. This then raises the question where should these “two” witnesses be present assuming that the bride and groom are based in two different cities (or even continents)? It is worth considering if one witness each at both the locations should satisfy the requirement. This would also probably help in resolving the potential disputes that might arise in online marriages.
Finally, it is worth investigating if this legitimisation of Internet Nikahs is going to work for or against the Muslim women generally.
People familiar with the law of contract might see that the reasoning of Maulana sits well with the observation of Thesiger L J in Household Fire Insurance Co. v Grant (1879) 4 Ex.D. 216, wherein he saw “no better mode than that of treating the post office as the agent” of both contracting parties. Since marriage is a contract under Muslim law and Internet is now widely accepted as a medium of entering into contracts, the Internet Nikah pronouncement might look as a logical conclusion. Nevertheless, one should keep in mind how this ruling modifies what is regarded by many as a highly conservative personal law which discriminates against women.
It is clear, however, that this interpretation does not dispense with the requirement of two witnesses which are required to be present for a valid Nikah under the Sunni law. This then raises the question where should these “two” witnesses be present assuming that the bride and groom are based in two different cities (or even continents)? It is worth considering if one witness each at both the locations should satisfy the requirement. This would also probably help in resolving the potential disputes that might arise in online marriages.
Finally, it is worth investigating if this legitimisation of Internet Nikahs is going to work for or against the Muslim women generally.
Tuesday, 10 July 2007
Nice to be Back!
After one year, I am back again! Hope to comment on issues of my interests more frequently in future as the doctoral thesis - which occupied most of my time during these twelve months - as well as the post-thesis relaxation is over now.
