What is the Colonialism of Human Rights?

by Colin Samson

(Originally posted on Polity books 27 July)

The title of my new book may seem perplexing. Human rights are widely associated with life affirming social benefits and freedoms. They are said to be enjoyed in democracies, and indeed human rights are often how liberal governments distinguish themselves from autocracies. From the franchise to impartial social justice, freedom of expression to the right to the fundamentals of life, Western liberal scholars and politicians have projected human rights as indicators of inevitable human progress. The suggestion that one of the preeminent achievements of liberalism is colonial seems uncharitable, especially now when several nations are ruled by nationalistic populists who have a contempt for human rights.

Colonialism of human rightsMy title is not a reiteration of the charge that the finger pointing about human rights problems from Western middle classes and political elites is a continuation of a colonial mindset – although that charge is not entirely unfounded. Instead, I refer to the notion that human rights are infused with colonial attitudes because in their formulation in texts and laws, and in their recognition and enforcement in civil society, exceptions to the much vaunted principles were, and continue to be, routinely made. Indeed, exceptions by which non-Europeans were excluded from rights were built into the philosophical treatises on human rights as well as the more prosaic texts produced by governments and international bodies. Furthermore, the civic institutions that have administered human rights often have had no intention of applying such rights to everyone.

This is ironic since human rights call for universal application, recognising specific, sometimes ‘inalienable’, rights that are conferred to people either as individuals or collectives. Broad rights to equality, liberty, freedom, legal protections and private property are decreed in the official documents and extolled by liberal theorists. While many of these rights have been realized, violations recognised, and processes of ameliorative justice pursued and won, there is still a large gap between what is pronounced and the force that is given to universal application. One of the most important reasons for the existence of this gap is the authoritative depiction of non-European peoples as culturally and biologically inferior. In ‘liberalism’s founding text’, John Locke’s Second Treatise on Government, asserted that American Indians do not qualify for private property rights. This right, a crucial one given the continual waves of English migration, was for Locke a prerogative of culturally superior colonial farmers. Being all hunters in his erroneous view, indigenous peoples could not claim property in their land as a right since they did not ‘improve the soil’.

What if the State is Racist?

Through the concept of the social contract, Locke conceived of popular consent to the authority of ‘political society’ or the state, which in turn confers human rights on subject populations. The idea of consent through a social contract is embodied in liberal thought and tracts such as the American Declaration of Independence and the French Declaration of Rights of 1791. But what if, as is currently being said through the Black Lives Matter and other social movements, the state was and is racist? What if it achieved its authority by violent occupation, duplicity and enslavement? What if these activities were legitimated by the belief in the inherent inferiority of non-Europeans? What if, as Frantz Fanon argued quoting from a WHO booklet of the 1950s, the normal African is perceived by significant liberal institutions as a ‘lobotomized European’?

The colonialism of human rights advances the idea that authoritative constructions of Afro-descended and indigenous peoples as being sub-Europeans fuels a longer history of non-universal human rights. Today the tension between the realities of differential human rights and liberal claims to universalism is now out in the open as the current impacts of past wrongdoing are being brought forth. The exceptions, exclusions and denials of human rights that occurred simultaneous with colonialism and enslavement have metastasized into new realms of de facto non-universality, and these are apparent to even the most casual observer.

In the US and Britain it has long been known that black people, for example, are not accorded the same rights as whites in employment, housing, education, criminal justice, and the right to life itself – the public spheres in which such rights are supposedly enjoyed. It did not only take the senseless killing of George Floyd by Minneapolis police officers in May 2020 to know that the sets of rights officially granted to African Americans as a group are not only inferior to those granted to whites as a group, but that violations of supposedly universal human rights have been of no consequence when perpetrated by largely white authorities on black people.  As the narrator of Attica Locke’s Bluebird, Bluebird tells readers, ‘for every story about a black mother, sister, wife, husband, father or brother crying over a man who was locked up for something he didn’t do, there was a black mother, sister, wife, husband, father or brother crying over the murder of a loved one for which no one has been locked up.’

 

Article-Card-windrush-generation

In 2018 activists, journalists and private individuals exposed the British Home Office targeting people who had arrived following the Windrush migration from former British slave plantation colonies in the Caribbean in the mid 20th century. Accused as being illegal immigrants, these now elderly people had accompanied their parents who were recruited to work in Britain’s public services after the ravages of World War 2.  Many of them were, after successive immigration acts, denied rights to employment and healthcare after paying taxes over decades of service to the UK. Key evidence of their legitimate status, such as the original landing slips, were destroyed by the Home Office in 2010.  Many victims of the Windrush scandal have still not received the promised government apologies and several have died since it erupted.  At the time of writing, there have been massive delays in disbursing the compensation payments pledged two years ago.

The colonialism of human rights is reflected in the ongoing global mobilization against police murders of black people, demanding the removal of statues of national heroes whose heroism was connected to slavery and colonialism, and in the growing choruses for schools to cease teaching histories omitting the racism which has permeated national social, cultural and political life. Current social movements are revealing that human rights were never really intended for vast swathes of national populations, and simply update the invidious distinctions between colonizer and colonized, enslaver and enslaved. The real fear of many of those in power in Britain and the US is that the past will interrogate the liberal democracy that legitimates their rule, and ultimately that the telling of the truth will accuse them also. The victims as well as journalists, activists and scholars are showing how the past is folded into the present. The reclaimed memories offer dignity and some glimmer of justice.

Why should these colonial divisions have such longevity?

While the liberal principles of the European Enlightenment are often swaddled in self-applause, they are too often seen in isolation from the parallel set of principles that underpinned the belief that humanity was divided so sharply into hierarchies. These doctrines were multifarious; for example, that indigenous peoples were savages and that certain peoples, especially Africans, were ‘natural slaves’. Such assumptions were translated into action as indigenous peoples were killed, dispossessed of their territories, forcibly assimilated and consigned to small tracts of land. The pattern was set in the initial English colonization of ‘New England’ with the relative indifference of the English towards the mass deaths of Indians from disease and violence in the 17th century. Over one 23 year period as much as 95% of the New England population was killed by English transmission of disease. This was, as Jill Lepore says made possible by, ‘the idea that Indians were not, in fact, truly human, or else were humans of such a vastly different race as to be considered essentially, and biologically, inferior to Europeans.’

Instead of protecting American Indians as subject populations of a democracy, the US Constitution functioned as a human rights document to empower settlers to encamp themselves on indigenous lands. It mentions Indians directly only twice; excluding them from taxation and, importantly from political representation, and giving powers to Congress to regulate trade with them. In practice, several Articles in the Bill of Rights were also not applied to Native Americans as ways of life, languages and religions were suppressed and often eradicated.

We the People

Similar beliefs legitimated plantation slavery.  Implicit in the Constitution was the idea that humanity is arrayed along an ethnically differentiated continuum with human rights dispensed accordingly. This was admitted in the 3/5s compromise in the 1787 Constitution, which made enslaved people count as 3/5s of a person for the purposes of taxation and the calculation of the number of state representatives in Congress. Other passages in the Constitution, most prominently, the fugitive slave provision and a clause preventing Congress from ending the slave trade within 20 years, underpinned the legitimacy of enslavement.

Given this history, it is not surprising that today black people are routinely denied the right to life by American police. It is not surprising that legitimate British subjects who happened to be black were tracked down, criminalized, denied health care and jobs, and some hounded out of the country to be ‘repatriated’ to other countries that they hardly knew.  It is no surprise that in France Muslim migrants from ex colonies have been segmented into vast suburban housing estates called banlieues in which unemployment rates over double the national average, and that former President Nicolas Sarkozy infamously referred to French African youth protesters as ‘rabble’ or ‘riffraff’.  Similarly, it is no surprise that fundamental rights to freedom of speech and assembly were denied to Native Americans and their allies contesting the construction of the Dakota Access Pipeline. The company building this environmentally damaging project diverted it away from a white community to run it through burial sites and sacred lands guaranteed to the Sioux by treaty, and under the water supply of the Standing Rock reservation.

As the book shows, the official treatment of particular populations is linked to enduring social, political and economic expressions of colonial domination. Contemporary conflicts are layered onto uncompleted histories of racial domination, exception, differentiation and rightlessness, all of which cannot be extricated from the study of human rights. States which administer human rights are represented by institutions and personnel that embraced ideas affirming the inferior status of indigenous and enslaved persons. Because states are dedicated to the perpetuation of hegemony, neither they nor the official human rights they oversee can hold great potential for social change.

Can Human Rights be Decolonized?

To decolonize human rights is not an easy task, in part because differential human rights are themselves engrained in racist histories. I end the book by suggesting that two actions to address the morass of contradictions in which human rights stands are worth pursuing; reparative justice and indigenizing law.  Reparations for the murder, rape, and pillage of colonialism and slavery are long overdue. This recompense will never atone for countless Black Americans killed by the police and lynched. It will not rectify the systemic refusal to extend human rights to African Americans. Likewise, reparations will never help realise the alternative futures that colonialism and enslavement denied to the populations of Africa, the Americas and the Caribbean. But they will signal that universal human rights have to amount to more than a statement in an official text, protocol, standard or policy document.

Reparations to indigenous peoples for their losses of land, people and culture have not been discussed seriously, and their colonization continues as state sovereignty goes largely unquestioned in the institutional orders of international and national human rights. Continuing violations are enabled by the mandatory use of national laws.  Instead, as many indigenous scholars, such as Gerald Vizenor and Glen Coulthard, and allied activists have suggested, a dialogue which would involve the use of indigenous values, customs and laws, and that diminishes state sovereignty could help address ongoing human rights violations. An important element of the decolonization of human rights is also to affirm that laws or frameworks of common understandings of the world are transgenerational and refer to knowledge and norms formulated in the past, but which are binding on current generations. This would include the idea that all of nature has agency, and that people have a duty to respect it.

These measures would help bring the present into conversation with the past, connecting the wrongdoings of colonialism and slavery with the differential human rights doled out to so many people today.

 

ABOUT THE AUTHOR

Colin_SamsonColin Samson is Professor of Sociology at the University of Essex. His new book, The Colonialism of Human Rights: Ongoing Hypocrisies of Western Liberalism, is now available from Polity.

 

International Human Rights Weekly News Roundup

by  Pauline Canham and Lauren Ng

 

This week’s stories in focus:

 

Authoritarian police tactics threaten democracy in the US

20UNREST-PORTLAND-VETERAN-videoSixteenByNineJumbo1600-v2The Mayor of Portland, Oregon, has called the strong-arm tactics of federal agents in his city as a “direct threat to democracy” and warns other officials that their cities could be next.  Mayor Ted Wheeler has asked for the agents to be removed, stressing the tactics are “abhorrent” and “are leading to more violence”, rather than quelling it.   Trump has responded by saying local leaders have lost control and he is trying to help.

Portland has seen a wave of protests since the death of George Floyd in Minneapolis in May and rallies have become increasingly violent with clashes between police and protestors escalating in recent days.  Language coming out of the White House has done little to calm the situation, with the Homeland Security Secretary calling protestors “anarchists” and Trump blaming democratic leaders for the chaos.  Federal agents have appeared to snatch people off the streets into unmarked vehicles and detained them without justification.

A video has emerged of a Navy veteran being attacked by camouflaged agents, striking him with batons, which resulted in a broken hand, and pepper spraying him at close range directly into his face, without provocation.   David Steel said he had wanted to talk to the officers about why they were “violating their oath to uphold the constitution” and he was standing still with his hands by his sides when he was attacked.  This can clearly be seen in the video that’s been viewed over 3 million times.

The Oregon Attorney General has sued the federal government for unlawfully detaining protestors, requesting a restraining order to prevent federal agents from making any more arrests.  Ms Rosenblum stated “These tactics must stop”, adding that the tactics used by The Department of Homeland Security, US Marshals Service, US Customs and Border Protection and Federal Protection Service, are preventing people exercising their First Amendment right to protest and are “out of character with the Oregon Way.”  Meanwhile, the mothers of protestors have come out onto the streets to protect their children’s right to protest but linking together to provide a barrier between protestors and federal forces.

President Trump, however, has applauded the actions of officers in Portland, saying they’ve done a “fantastic’ job and threatened to use similar tactics in more liberal democratic cities.

 

1921 Tulsa Race Massacre – a new horizon for US reparations?

Tulsa_dig2Nearly 100 years after one of the most brutal racial events in US history, a test excavation for the mass graves of the Tulsa Race Massacre victims will begin this week.

Between May 31 to June 1 in 1921, a white mob burned Tulsa’s local Greenwood community, a thriving black neighborhood, then known as the “Black Wall Street”, to ashes. Within 24 hours, thousands of Black Americans were displaced from their homes and an estimate of 300 people were killed.

For years, it has remained unknown as to where the victims of the massacre were buried. An investigation was initially initiated in 1991, yet discontinued shortly after. The Tulsa Race Riot Commission’s in 2001 made clear in their recommendations that officials should investigate the location of the graves, but Tulsa failed to comply.

However, due to the unresolved questions surrounding the massacre, Tulsan Mayor G.T. Bynum reopened the investigation in 2018. In December 2019, forensic scientists of the State of Oklahoma Archaeological Survey detected anomalies in the ground that could indicate the existence of two mass burials on city-owned property. The senior researcher of the Oklahoma Archaeological Survey, Scott Hammerstedt, felt confident that this discovery was “something associated with the massacre”. While the test excavation was initially postponed in March due to the Coronavirus pandemic, Bynum announced it will be restarting this week:

“As a city, we are committed to exploring what happened in 1921 through a collective and transparent process – filling gaps in our city’s history and providing healing and justice to our community. In the past 99 years, no other agency or government entity has moved this far into an investigation that will seek truth into what happened in Tulsa in 1921.”

Furthermore, earlier in May this year, Human Rights Watch published a detailed report highlighting how city officials have continued to obstruct rebuilding of the Greenwood area and reject offers of medical and reconstruction aid. In addition, ongoing police brutality in the area have destroyed the prosperity and livelihood of the local community. It is hoped that unearthing this truth will allow the start to an important part of restoring justice for Black Americans – that of reparations.

 

Other stories making the headlines around the world

International

 

Asia

 

Europe

 

Africa

 

Australasia and Oceania

 

North America

 

Latin America

 

Middle East

 

 

Calamitous coronavirus xenophobia: A new-age predicament

by Tushar Behl and Medha Patil

 

Sunset Park, in southwest Brooklyn, houses New York City’s largest Chinese community. Chinese immigrants have settled and built their lives for more than two decades after being moved from Manhattan’s Chinatown due to the overflowing population. People from all over the city visit Sunset Park to buy fresh meat and eat at the authentic Chinese restaurants but it is no more. From the beginning of this pandemic, the Asian community across the world has been subjected to serious racial discrimination and xenophobia. The xenophobia compounded with general fears of COVID-19, the disease caused by the virus has taken a great toll on the livelihood of Chinese immigrants and workers, especially those in smaller communities.

This article examines contemporary issues faced by Asian Communities amidst the outbreak of the novel coronavirus by highlighting the previous historical instances of xenophobia, coupled with racism, its implications, and also proffering recommendations to address such prejudice.

 

The Problems

There are currently more than 12,964,809 cases of COVID-19 around the world, as evident from the WHO Coronavirus Disease Dashboard.  As of today, the majority of these cases are present in the United States of America (“USA”) since not long ago it surpassed China where the disease was first detected in November of 2019. Unfortunately, this divide that COVID-19 has created travelled great lengths and continues affecting the innocent Asian population.

Most recently, a single but highly derogatory remark made by President Trump in his press briefing at the White House stood out and captured a lot of angry attention. In the President’s note, the word “corona” had been replaced by the word “Chinese” which sparked a fury, too deep to be a mere offense. Critics have said that such a deliberate use could lead to increased discrimination and racism towards Asian-Americans who are a marginalized group with a long history of being painted as scapegoats in instances of public health crises.

This anti-Asian harassment is not just limited to the USA, rather, various international outlets have reported such cases in major white nations such as Canada, where Chinese-Canadian students have been isolated from local school districts; in Australia, where people have refused to get treatment from Asian doctors and in Germany, where an Asian woman was asked to move her “corona-riddled body” while she was on her train to work.

‘Sinophobia’ is another specific type of prejudice that is magnified by the news of coronavirus outbreak. It is a type of aggression against China, its population, or people of Chinese descent. In the past, President Chester A. Arthur signed the Chinese Exclusion Act of 1882 that banned the immigration of Chinese laborers to the USA for 10 years. President Donald Trump has also been restricting the immigration of Chinese students and scholars since 2018. Today, increasing migration means that a growing number of states have become or are becoming more multi-ethnic, and are confronted with the challenge of accommodating people from different cultures, races, religions, and languages.

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Pandemics and Racism

Viral outbreaks or pandemics go hand in hand with racism. When we look into the past, dating back centuries, just like the xenophobic attacks and actions amidst COVID-19, the denigration of certain populations sounds more of a familiar symptom of virus-related outbreaks. These gruesome diseases, causing mass human suffering are often used to rationalize bias. For instance, yellow fever, one of the most dangerous infectious diseases, was pegged to the Africans initially, owing to the first epidemic reported in Yucatan in 1648. But later, the 1853 epidemic in the USA targeted European immigrants, since they were more vulnerable to it. On the other hand, the 2003 SARS outbreak in Toronto, billed the east-Asians.

Xenophobic reactions are not limited to Asians, it mostly depends on the origin of the disease. Reference can be taken from the Ebola virus, which was discovered near the Ebola River (Now, the Democratic Republic of Congo) in 1976, and soon the Africans were targeted with hate.

Although the WHO came through, by opting this practice of not naming the disease based on geographical location, an animal, an individual or a group of people, as it did in the case of Ebola and now COVID-19, xenophobia stimulates quickly, interlaces with politics and paint’s the ideology of people and their Governments.

 

What Does the Law State?

International human rights instruments generally prohibit racism and racial discrimination, the same cannot be said for xenophobia and resulting discrimination. Xenophobia itself is rarely mentioned in international instruments and distinctions made between citizens and aliens on the basis of race is predominantly rampant when it comes to exercising fundamental rights. It is therefore, sometimes expressly prohibited to make such a distinction which would in turn lead to hampering of such rights.

The ICESCR and ICCPR under Article 2, and the ECHR and IACHR under Article 1 respectively, enable protection against any form of racial discrimination but the same is silent when it comes xenophobia. Moreover, the status of Customary International Law is quite ambiguous than that of treaty law since there exists a divergence of opinion on whether the norms of xenophobia and discrimination have become part of Customary law.

 

Conclusion

The issue of racial discrimination and xenophobia has a tough influence on state legislations. Owing to such fundamental divergence in legal measures of various states, where one has adopted comprehensive anti-discrimination laws and the other has enacted a sectoral legislation, is problematic. Avoiding all forms of racial segregation and setting out a comprehensive legislation is the need of the hour since common human rights ideals are the main antidote to the persistence of racism.

The pandemic is taking a massive toll on people’s lives all over the world. A disease like COVID-19 does not discriminate while spreading and yet new cases of racial discrimination and xenophobia are coming up every day. Unfortunately, this divide, is in turn, causing additional damage to this existing calamitous situation. Therefore, our willingness to understand each other will protect us from fear and its disastrous consequences.

 

ABOUT THE AUTHORS

TUSHAR BEHL__1590856734_106.215.2.102
Tushar Behl LL.B. (Hons) is a 2020 Graduate from the School of Law, University of Petroleum and Energy Studies. He is an Advocate from India and currently working as a Research Associate at the Supreme Court of India. He is an avid reader, writer, and interested in International Relations and Politics. 

Medha Patil.
Medha Patil is a final year Law Student from Maharashtra National Law University, Nagpur, India.  She is an avid writer and interested in Human Rights and Public International Law.

Protecting the rights of sex workers during a pandemic

by Astha Madan Grover

 

The COVID-19 pandemic has exposed many of the the pre-existing inequalities in society. It has disproportionately affected already marginalized communities that live outside societal protection mechanisms, often in financially precarious situations.  Sex workers are one such community whose rights need to be protected and respected.  Sex workers are entitled to human rights which include labour rights under the aegis of international protection frameworks.

From an International Law Perspective, the United Nations Charter (1945) obligates all UN bodies and agencies to promote and respect the “dignity and worth of the human person”, and The Convention on the Elimination of all Forms of Discrimination Against Women (1979) safeguards the right of female sex workers against discrimination.  It also grants them the right to social and economic security, right to privacy, the right to work, the right to freedom from stigma and prejudice and equal protection from the law and freedom from discrimination.  Recent research by Human Rights Watch shows that the criminalisation of sex work increases the vulnerability of sex workers, because attackers perceive them as easy targets due to stigmatization by law enforcement agencies.  Criminalisation has also been found to restrict sex workers’ right to health.

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Issues faced by sex workers due to COVID-19

Unfortunately, due to the COVID-19 pandemic, sex workers are facing increased harassment and discrimination due to a lack of access to emergency social protection programmes as well as financial difficulties.  In most countries, given the criminalization of some or all aspects of sex work, the informal sector is unable to grant them benefits, such as access to national social protection schemes.  Migrant sex workers also face the risk of deportation due to lack of work permits.

Workers can also get pushed into compromising situations, where they are taken to work with clients who may not have their safety or best interests in mind.  They lower the price to attract more clients so they can support themselves.  Workers may also stay on with abusive partners to avoid homelessness.  Sex workers, who still engage with clients may contract the virus despite taking precautions such as checking for fever and taking the client’s travel history.

Many workers live in shared accommodation,  which enables the rapid spread of the virus.  Sex workers, including those working in brothels, are usually self-employed.  They receive no remuneration for the period during which they do not get work.  Workers are unable to provide for their families due to the lack of clients and may have no other employment prospects as many of them have been forced into prostitution from a young age.

The HIV epidemic is an ever-present threat to sex workers and it has now been added to by COVID-19.  HIV, though does not spread through the air and can be prevented by using protection while engaging in sexual intercourse.  HIV can also be treated through the use of antiretroviral therapy (ART).  While it does not completely cure patients, it does enable them to live long and healthy lives.

 

Measures taken worldwide to protect sex workers

Germany legalised sex work in 2002 and has over 200,000 practising sex workers.  The government ordered the closure of all brothels and other ‘non-essential’ businesses such as clubs and bars on the 14th of March.  Susanne Wilp, the spokesperson for the Association of Erotic and Sexual Services Providers, states that business has gone down by 90% and due to their lack of income, they face homelessness.  A similar fate is being faced by sex workers in Amsterdam, where sex work is also legal.

Japan has allowed sex workers to apply for governmental aid in some cases.  However, the requirements for applications are rigid and will force workers to ‘out’ themselves to their communities.  Employers are eligible for subsidies, if their employees have to stay home to care for children during school closures, and sex workers can also receive cash handouts.  (Though the requirements do not clearly state whether the handout is for those who have lost a portion of their income or those who have been dismissed entirely.)  The rigid rules require workers to show proof of income, which is difficult to show as they are usually paid under the table.  Many sex workers do not report their occupation or entire income on their tax returns due to a fear of repercussions and a sense of stigma.  Admitting non-disclosure of income could lead to its own set of consequences.

Thailand has made sex workers eligible for grants in the government’s pandemic relief package and the Malaysian government is providing housing and monthly remuneration for the homeless; most of whom are sex workers.  These workers have to hide their occupation to receive the benefits as sex work is illegal in Malaysia despite being practised widely.

Sex-worker-3

The Way Forward

Taking sex work online is one way for workers to protect themselves during the pandemic.  This is done through photos, videos, video conferencing, and phone sex.  However, this kind of work has its limitations as well.  Workers may not have the required equipment or technical know-how to facilitate work this way.  Workers with an existing base of online followers find it easier to monetize their online services.  In addition, posting online may compromise the privacy of workers who may not want to reveal the nature of their work to family and friends.  Performing online may also not be a viable solution for workers with children and families at home.  A lack of consistent internet access may also hinder the ability to perform online.  Moreover, workers earn less working online and laws are not designed to protect these workers from privacy breaches and dangerous clients they could encounter as a result of working online.

UNAIDS and the Global Network of Sex Work Projects have called on countries to take action to protect the health and human rights of sex workers.  These measures should include access to national social security schemes, unemployment benefits and financial aid, providing healthcare services to migrant sex workers, appropriating emergency housing for homeless sex workers, halting prosecution and arrests for all sex work-related activities, ending the use of criminal law, promoting COVID-19 testing and providing visa extensions to migrant sex workers.

Sex workers need more allies. Global bodies such as Amnesty International and the World Health Organisation support their demands for legalization and decriminalisation.  Sex worker rights should matter to everyone who cares about gender inequality, migration, public health or poverty.  The need to protect sex workers during this pandemic is incredibly important as they are one of the most marginalised groups in society. Sex workers must be included in the decision-making process when it comes to legislation and programmes that can impact them.  They should have the right to work safely and on their terms and this includes protection during a world-wide pandemic.

 

ABOUT THE AUTHOR

Astha Madan Grover - Photo (1)Astha is a second-year law student at the National University of Juridical Sciences, Kolkata.  She has a keen interest in public policy, gender law, and public health.

Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

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India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also thenatural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

KartikeyaKartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

PranayPranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi