Archive for the Law Category

Legendary Lawyer Doris Brin Walker Dies; Represented Angela Davis, Smith Act Defendants

Posted in Communist Movement, International Affairs, Law with tags , , , , , , , , , on August 20, 2009 by Umer

by Marjorie Cohn
From the MRZine

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor, and political activists.

Doris’ legal and political activism spanned several decades and some of the most turbulent but significant periods in US history. She organized workers, fought against Jim Crow and McCarthyism, was active in the civil rights and anti-Vietnam War movements, and vigorously opposed the current wars in Iraq and Afghanistan.

At UCLA, Doris became a Marxist. After she was sworn in as a member of the California State Bar, Doris joined the Communist Party USA, remaining a member until her death. Upon graduation from law school, Doris began practicing labor law; but a few years later, she went to work in California canneries as a labor organizer. When Cutter Labs fired Doris in 1956, the case was appealed all the way to the Supreme Court. Although the Court refused to hear the case, Justice Douglas, joined in dissent by Chief Justice Warren and Justice Black, wrote:

The blunt truth is that Doris Walker is not discharged for misconduct but either because of her legitimate labor union activities or because of her political ideology or belief. Belief cannot be penalized consistently with the First Amendment. . . . The Court today allows belief, not conduct, to be regulated. We sanction a flagrant violation of the First Amendment when we allow California, acting through her highest court, to sustain Mrs. Walker’s discharge because of her belief.

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In the name of honour

Posted in Communist Movement, Law, Marxism with tags , , , , , , , , , , on August 18, 2009 by Umer

The Aug. 15-29, 2008 issue of the Frontline carried the theme of caste-based violence and killings in the name of honour. The urgent relevance of the topic emerged from the an instance in Dharana, near Haryana, where a local panchayat ordered the ouster of a family from a village on the grounds that a member of the family had married outside of caste in violation of the parampara (tradition).

The Red Diary has frequently raised the issue of caste system and emphasised the importance that caste plays in the socio-political make-up of the South Asian sub-continent. The Red Diary here presents the interview of Brinda Karat to Frontline regarding caste system and its impact women.

Interview with Brinda Karat, MP and CPI(M) Polit Bureau member.

ONE of the few parliamentarians with a record of raising women’s issues both in and outside Parliament, Brinda Karat feels that honour killings and honour-related harassment do not get the attention they deserve from the executive or the legislature. She says that it was time political parties came together on this issue. In an interview to Frontline, she explained the importance of recognising these crimes as a separate category and the need for special laws to deal with them as had been done in the case of sati. Excerpts:

In your view, how serious are honour killings and crimes related to honour? You raised this issue in the Rajya Sabha and it evoked a response from the Home Minister and several other members cutting across party lines

I had asked a question in Parliament on the number of killings relating to honour that had taken place so far and the reply I received from the government was that they do not recognise such a category and, therefore, there was no separate collection of such data.

According to a 2008 judgment of the Punjab and Haryana High Court, it was stated that there were thousands of cases of young couples who had been victimised because they crossed the lakshman rekha determined by their communities, castes or families.

It is a shame that even today there is no legal definition of the term honour killing or honour crime. As a result, the perpetrators of such crimes more often than not get away with murder, torture, assault, and violation of laws regarding atrocities committed on the Scheduled Castes and the Scheduled Tribes. And they continue to commit them with impunity.

The extent of the crime is underestimated, it is made invisible and young men and women just disappear without a trace as though they had never lived. Hence, it is essential for the government to not only define the crime but also start collecting separate data, for unless the existence of the crime itself is recognised, it is difficult to deal with it in any form.

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Kashmir: Activists Arrested

Posted in International Affairs, Law, Pakistan with tags , , , , on August 1, 2009 by Umer

Hundreds of activists illegally arrested at the demand of secular and democratic united Kashmir

In the Pakistani part of Kashmir several political activists and students have been arrested for observing the demands for an independent Kashmir, free from India and Pakistan. Mr. Sardar Liaquat Hayat, the Central President of the Jammu Kashmir National Awami Party, and several activists of the Jamu and Kashmir National Awami Party (JKNAP) and Jammu Kashmir National Students Federation (JKNSF), were arrested without any judicial warrants or charges. At the time of arrest on July 19, 2009, they were protesting against the call by the prime minister of Kashmir to annex Kashmir with Pakistan. Police conducted raids in Rawalakote city and arrested Liaquat Hayat, Wajid Ayyub and Shaihid Sharaf without arrest warrants from their homes. The same day the ruling party of Pakistani Kashmir organized a public rally to commend the so-called Kashmir´s accession to Pakistan at Rawalakote city.

July 19 is observed in Pakistan as the annexation of Kashmir to Pakistan since 1948, during the day governments of Pakistan and Kashmir (Pakistani) demanding the whole of Kashmir (including Indian territory) from the UN to be annexed to Pakistan as the unfinished agenda of creation of Pakistan.

On the same day in another incident, law enforcement personnel abducted and humiliated four Kashmiri students belonging to the JKNSF in Rawalpindi, Punjab province-Pakistan, for demanding the liberation of Kashmir from both Pakistan and India. It is alleged by the nationalist groups that leaders of the JKNAP and the JKNSF have been harassed, tortured and detained in the past as well for demanding basic human rights in the parts of Kashmir under Pakistani occupation. The JKNAP and JKNSF were opposing the annexation of Kashmir to Pakistan and demanding, the reunification of all the divided parts of Jammu Kashmir and its complete independence from India and Pakistan, based on secularism, democracy, equality, rule of law and social justice.

The Asian Human Rights Commission urges the government of Pakistan, who runs the affairs of their part of Kashmir through the federal ministry of Kashmir affairs, to release the activists of JKNAP and JKNSF and provide the right of freedom of expression and freedom of association to their part of Kashmir. The people of Kashmir have a legitimate right to protest peacefully. Denying the people this right is a serious violation of their basic human rights and contravenes the Universal Declaration of Human Rights (UDHR 1948) and the International Covenant on Civil and Political Rights (ICCPR 1966) as Pakistan is a signatory to both the covenants as a member nation state.

Murder in a dungeon

Posted in Books & Authors, Communist Movement, International Affairs, Law, Pakistan with tags , , , , , , , , , on July 11, 2009 by Umer

Umer A. Chaudhry reviews a book containing graphic details about the Communist leader Hassan Nasir’s killing.

Book:

Hasan Nasir Ki Shahadat
Major Ishaq Mohammad
Xavier Publications, Multan
Rs. 500

The letters of Ethel and Julius Rosenberg moved the lyrical pen of Faiz Ahmed Faiz to write his monumental poem ‘hum jo tareek rahon mein mare gaye.’ The Rosenbergs were Marxists and victims of McCarthyism. A few hours before they were sent to the electric chair in 1953, they left an everlasting message of hope for their children: “Be comforted then that we were serene and understood with the deepest kind of understanding, that civilization had not as yet progressed to the point where life did not have to be lost for the sake of life; and that we were comforted in the sure knowledge that others would carry on after us.”

McCarthyism is widely documented as a dark chapter in the history of the U.S.A. It is considered synonymous with Communist witch-hunts, state-sponsored red bashing, illegal detentions of left-wing activists and the arbitrary use of state power to censor progressive political expression. McCarthyism was not merely an American experience. During the heyday of the Cold War, systematic repressive measures against Communism were introduced by almost all allies of the U.S.A. Pakistan was no exception, although there has been very little written on this subject, and there is no accessible documentation in this regard. Who were the victims of anti-Communist repression in Pakistan? How were these radical Socialists persecuted? What is their history? These unconventional questions are usually sidelined or silenced.

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Victimising labour

Posted in Law, Pakistan with tags , , , , , on June 11, 2009 by Umer

By

Umer A. Chaudhry

Just as Prime Minister Yousaf Raza Gillani reiterated the strong resolve of his government to revise the anti-workers legislation of the country on May 30th, an ugly episode unfolded in Lahore that exposes the deep prejudice against the working classes entrenched in the folds of the Pakistani State. Niaz Shaikh, a labor leader associated with the Labour Party of Pakistan and National Trade Union Federation, was arrested from Model Town, Lahore, by police on May 25th on baseless charges of dacoity that purportedly took place in 2006. His real crime, however, was that he assisted the disorganized workers of the factory unit of an interior designing company to form their first trade union. Such crimes seldom go unnoticed by the owners of the industries who are well aware of how to use the corrupt law enforcement officers. This time around, Niaz Shaik had to face to the brunt for helping poor workers in their legitimate struggle for the fundamental constitutional right to form a trade union.

When the Prime Minister of Pakistan announced his government’s plan to form a new labor policy that will end all anti-workers legislation on May 30th, Niaz Shaikh was presented in handcuffs at the court of the Senior Civil Judge and Judicial Magistrate at Model Town Courts, Arif Khan Niazi, for the extension of physical remand. Upon hearing the issue in detail, the Judge held that the charges of dacoity on Niaz Shaikh were not proved. Niaz Shaikh was discharged and Police was ordered to open his handcuffs. Had the entire drama ended there and then, it could have been a triumph of justice. Justice, however, is never easy to find in Pakistan. The Police, in utter disregard of the Court’s order, refused to remove the handcuffs of Niaz Shaikh and rearrested him. Neither the Court nor Niaz Shaikh was informed if any charges other than the 2006 dacoity lied against him. He was arrested, in plain violation to his fundamental rights and in complete disrespect of the verdict of the Court.

After the second arrest, it took more than a day to find the whereabouts of Niaz Shaikh. His supporters in the meanwhile were running between Model Town and Garden Town in his search, only to find later in the day that he was detained in Garden Town. A new case was framed against Niaz. He was allegedly involved in cheating and criminal intimidation all the while when he was under arrest in Model Town. The workers of the Interwood, in the meanwhile, were being constantly harassed and threatened by the law enforcement agencies.

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Beware Human Rights Fundamentalism!

Posted in International Affairs, Law with tags , , , , , , , , , , on March 28, 2009 by Umer

by Mahmood Mamdani

When former South African president Thabo Mbeki makes the African case for a postponement of the International Criminal Court’s (ICC) indictment of President Omar al-Bashir of Sudan, what can he say with dignity and foresight?

To begin with, he should remind his audience that nowhere in the world have rights existed outside an enabling political context. No democracy enforces a fixed standard of rights regardless of the country’s political context. Few can forget how the Bush administration diluted the Bill of Rights in the interest of pursuing Homeland Security. In the relation between law and politics, politics is always paramount. Precisely because the struggle for rights is a political struggle, enforcers of rights — and not just its violators — need to be held politically accountable lest they turn rights enforcement into a private vendetta.

Mbeki can then share with his audience the lessons Africans have learned in the struggle for peace and justice over the past several decades. Contrary to what many think, this lesson is not that there needs to be a trade-off between peace and justice. The real trade-off is between different forms of justice.This became evident with the settlement to end apartheid. That settlement was possible because the political leadership of the anti-apartheid struggle prioritised political justice over criminal justice. The rationale was simple: where there was no victor, one would need the cooperation of the very leaders who would otherwise be charged with war crimes to end the fighting and initiate political reforms. The essence of Kempton Park can be summed up in a single phrase: forgive but do not forget. Forgive all past crimes — in plain words, immunity from prosecution — provided both sides agree to change the rules to assure political justice for the living.

The South African lesson has guided African practice in other difficult situations. In Mozambique Renamo sits in Parliament instead of in jail or in the dock. In South Sudan, too, there would have been neither peace nor a reform of the political system without an agreement not to pursue criminal justice.Why not in Darfur?

Mbeki would also be well advised to keep in mind that in the court of public opinion — unlike in a court of law — the accused is considered guilty until proven innocent.

The public needs to be reminded that when the justices of the ICC granted the prosecutor’s application for a warrant to arrest the president of Sudan, they were not issuing a verdict of guilty. The justices were not meant to assess the facts put before them by the prosecutor, but to ask a different question: if those facts were assumed to be true, would the president of Sudan have a case to answer? Unlike court, which took the facts for granted at the pre-trial stage, we need to ask: to what extent are these facts true? And, to the extent they are true, are they the whole truth?

The prosecutor’s case
The prosecutor’s application charged President al-Bashir with (a) polarising Darfuri tribes into two races (Arab and Zurga or Black), (b) waging a violent conflict (2003-2005) leading to the ethnic cleansing of Zurga ethnic groups from their traditional tribal lands, and (c) and planning the malnutrition, rape and torture of internally displaced persons (IDPs) so as to “slow death” in the camps — a process that the prosecutor claimed went on from 2003 to the time the application was submitted in 2008.

The racialisation of identities in Darfur had its roots in the British colonial period. As early as the late 1920s, the British tried to organise two confederations in Darfur: one “Arab”, the other “Zurga” or black. Racialised identities were incorporated in the census and provided the frame for government policy and administration. In spite of official policy, Arabs never constituted a single racial group. Contemporary scholarship has shown that the Arab tribes of Sudan were not migrants from the Middle East but indigenous groups that became Arabs starting in the 18th century. This is why there can be no single history of Arab tribes of Sudan. Little unites privileged sedentary tribes of riverine Sudan and impoverished nomads of Western Sudan. Unlike the Arabs of riverine north, who have tended to identify with power, the Arabs of Darfur are the most marginalised group in a marginalised province.

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A law for domestic workers

Posted in Law with tags , , , , , on January 31, 2009 by Umer

by

Lyla Bavdam (The Frontline)

ABOUT 15 years ago, a small morcha wound its way through Cuffe Parade in South Mumbai. In terms of age, gender and community, it was a motley crowd. Nothing seemed to hold it together except for a huge banner that proclaimed that its members were domestic workers. They called out a few slogans in a desultory fashion. As the morcha made its way through the streets, people surreptitiously dropped out of it. On the whole the show was not a success.

Though nothing immediate came out of the morcha, it could be considered the forerunner of a Bill that was passed on January 2 by both Houses of the State Legislature in its recently concluded winter session in Nagpur. The Domestic Workers’ Welfare Board Bill was the outcome of a two-decade-old struggle to ensure the rights of domestic workers.

The Bill gives domestic workers legal recognition as salaried employees. This means that hitherto non-existent or flexible aspects such as leave and bonus will now be bound by law. Domestic workers will also be able to avail themselves of benefits as employees as stated under the State’s labour laws. Hence, financial support in the form of soft loans, health insurance and a provident fund will be made available.

While the exact benefits are yet to be decided by district welfare boards, the Bill is a very welcome piece of legislation for workers who are often unfairly treated and have to put up with atrocities.

“It’s a big victory and a first step towards organising domestic workers,” said Dr. Rupa Kulkarni, president of the Vidarbha Molkarin Sanghatana (VMS), the organisation of domestic workers that relentlessly worked for the Bill.

A keen student of Dr. B.R. Ambedkar’s ideology of equality across the classes, Rupa Kulkarni retired in 2005 as the head of Nagpur University’s Sanskrit Department. She has led the movement for the last 20 years. Her interest in the issue was first aroused in 1978 when she realised that domestic workers in Nagpur earned as little as Rs.15 month. “They would be paid five rupees for washing clothes, five rupees for vessels and five rupees for cleaning the floor,” she said. Even when holding multiple jobs, they were unable to make ends meet. Astounded at their lives and their strength, Rupa Kulkarni studied their situation and set about collecting data informally. In 1980, she formed the VMS.

One of the things she did in those early days was to organise free medical checks. Recalling them, she said, “These women worked with water all the time. They had bad skin problems. Their hands and feet were so dry that they were cracked open and bled. They suffered intense back pain. Still, they had to keep working. And their haemoglobin level was as low as 3.5 [normal levels range between 11.5 and 15.5 gms/decilitre of blood]. They were severely anaemic, but they just kept working.”

As her involvement with the women grew, Rupa Kulkarni realised the extent of the problem in organising them. How would one define a domestic? How would a minimum wage be set for work that could be so varied? And most important, should not such workers be considered a part of the labour force of the State?

Over the years, Rupa Kulkarni established three categories of domestic workers – those working in many homes, those working in one home for a number of hours, and those who were live-in domestics. Thirty-five types of domestic work were identified.

The new law is a “big victory and a step forward”, but Rupa Kulkarni says much work remains to be done. The first requirement is to arrive at a relatively accurate estimate of the number of domestic workers in the State.

The VMS has 51,000 registered members in Nagpur. Rupa Kulkarni extrapolates this to make an estimated figure for the entire State: “Nagpur’s population is 30 lakh. Maharashtra has 33 districts and approximately one lakh workers in every district. Maharashtra’s population is 10 crore. For a start, we estimate that there are about 50 lakh to one crore workers in the State. The State’s estimate of 25 lakh workers is way too much on the lower side.”

District-level boards

The State is now in the process of creating district-level boards with which workers will be registered. The boards are expected to start functioning after March. Their duties will be to provide accident insurance and scholarships for domestic workers’ children, pay for the last rites of such workers, pay premiums for health insurance, and, in case of serious illnesses or surgery, ensure free medical treatment for the affected workers. For all this, a corpus will be required. The passage of the Bill was crucial because the Cabinet can make budgetary allocations only after a Bill has been passed by the Upper House.

Thus, the next month and a half is crucial to Rupa Kulkarni, whose aim is to form a reliable estimate of the number of workers so that the State can budget for their benefits during the Budget session of the legislature in March. Once the initial capital has been provided by the State, both the employers and the employees will be expected to pay a monthly fee (yet to be set) to the board. Once a minimum wage is decided, a percentage levy will be added to it, and this will become part of the salary that the employer will deposit with the board. The board will disburse the workers’ salaries. The system calls for employers to go to a board office to pay their dues, a process that many will no doubt baulk at.

Rupa Kulkarni sees this as only a minor glitch and says drop-off points can be created. On whether the system of boards disbursing salaries might have scope for corruption and create hurdles for workers, she said, “There will be some agency to guard their interest and there will be a passbook system so this should not be a problem.”

There is yet another problem. At present salaries differ according to the location of work. Salaries of domestic workers in upmarket South Mumbai are higher than salaries in many other parts of the city. Would there be ward-wise boards within Mumbai to sort out this problem? “It is a complicated situation,” Rupa Kulkarni said, adding that the employer’s capacity to pay would be taken into account, too.

Will the rules backfire?

As to whether the new rules might initially backfire on the workers with employers preferring do their own housework instead of hiring help, Rupa Kulkarni said that a small percentage might do this. “In Nagpur, when we first started the movement there were employers who dismissed the workers. But the women stood their ground and now it is not uncommon for a worker to tell the employer, ‘If the salary does not suit you I can get a job elsewhere.’ The rules will ultimately be beneficial not only to the workers but to the employers as well. Employers will be happy because the rules will put a check on the domestics ‘bunking’ tendencies!” Rupa Kulkarni said, laughing.

Realising that making the new law into a workable reality will take a lot more work, the State has decided to form a committee comprising the Labour Minister, certain non-governmental organisations, and representatives of employers (the manner in which employer representatives will be selected is yet to be decided).

It is striking that Maharashtra took so long to pass this Bill, given its reputation as a State with progressive social sector policies. Legislation that provides financial and welfare benefits to domestic workers has been passed in many other States, notably in all the southern ones. Rupa Kulkarni attributed the delay in Maharashtra to a lack of political will: “The southern States have been more sensitive to this issue. Despite our tradition of reforms, it took very long for us to get a positive response from the government. But that is now in the past. The main obstacle is over.”