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.

 

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