Monday, 19 January 2009
Ever since I began researching the topic of polygamy, I have been bothered by the idea that this practice is justifiably criminalized because it is associated with the ills I have just listed. However, within our Criminal Code, we have clear and specific provisions to target these offences, which are clearly harmful, and which any reasonable person considers intolerable and deserving of criminal sanction. So why, then, does s. 293 of our Criminal Code (banning polygamy) remain, a provision which, by the way, is almost never invoked and, when it has been used, have led to few convictions that carried relatively minimal sentences?
Nearly 18 months ago, one of the special prosecutors named by B.C.’s Attorney General to investigate the “polygamy problem” in Bountiful released a report acknowledging that a prosecution on the bases of sexual exploitation or sexual assault against any of Bountiful’s residents would fail. In particular, he found no “substantial likelihood” of a conviction because of insufficient evidence of such offences. At the same time, he concluded: “I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly.”
Polygamy will be directly addressed when the two men arrested in Bountiful on January 7 are tried for this offence. There will most certainly be a challenge raised by the accused, maintaining that the charges unduly interfere with their freedom of religion, equality rights, liberty, personal security, and possibly also, their freedom of association, all of which are protected under the Canadian Charter of Rights and Freedoms. It would be shocking if the defence did not succeed in establishing that s. 293 compromises at least some of these guarantees. The onus will then shift to the government to establish that such interference with the accused’s rights and freedoms is justified pursuant to s.1 of the Charter. The arguments raised with respect to s.1 will, in my opinion, reflect the nub of the controversy over plural marriage.
The first question the Crown will need to address is whether a pressing and substantial objective exists to justify the ban on polygamy. This will present a major hurdle for the government. Can it point to the popular assumptions drawn about sexual exploitation and abuse in polygamous communities like Bountiful? This will be unlikely, since several independent investigations have revealed no evidence of systemic abuse or coercion. Moreover, my own field research in Bountiful last summer indicated that women today in this community exercise a relatively significant level of choice and autonomy when it comes to deciding who and when they will marry, and also, whether their marriage will remain monogamous. These women are also committed to the value of ensuring that young people reach at least the age of majority before they wed. And last, we have independent provisions for addressing sexual exploitation and assault, so this will beg the question of why we need the polygamy offence.
Another tack that the government might pursue is to marshal arguments about the moral sanctity of monogamous marriage, and the need to use criminal law to ensure its primacy in the place of Canadian law and Canadian society. But that, too, will be an uphill battle. For one thing, it is pretty difficult to argue that Canadians view marriage as something sacred, given current divorce rates of about 38 percent, and given the elevated numbers of couples who opt to remain cohabiting (unmarried) partners (35 percent of couples in Quebec, 13 percent in the rest of Canada). Moreover, the act of adultery has never had criminal consequences in Canada, and has barely any consequences any longer in determining divorce outcomes. Canadian courts have also indicated that practices associated with open sexual relationships and “swinging” are beyond criminal law’s reach, provided that those involved are consenting adults.
How then, to justify the banning of polygamy when the practice defined in the Criminal Code under s. 293 is broad enough to include not only formal marriages between more than two people, but “any kind of conjugal union” with more than one person, “whether or not it is recognized by law as a binding form of marriage.” Could the person separated but not divorced, who begins to cohabit with a new partner be caught? Could the divorced individual still in a religious marriage who then remarries civilly be arrested? And what about the “cheating spouse” whose relationship with the “other woman/man” starts to look a little too conjugal?
The question of course is whether the state is prepared to enforce the polygamy provision against all those caught within the sweeping definition of the offence. As others have argued (e.g., Susan Drummond at Osgoode Hall Law School), the real risk in all of this is that it is those who “stand out”, the “others” the “them” and “not us” – that is, religious and cultural minorities – who are at real risk of being snared by this provision. There is no doubt that a careful look at who was just arrested for polygamy (and, of course, who was not) supports this hypothesis.
A couple of hours ago the International Court of Justice handed down its judgment on the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America). The 20-pages judgment which –I'm sure– will not surprise anybody, states that the ICJ cannot deliver an interpretation simply because the matters in which it seems to be a disagreement were not covered by the 2004 Avena judgment.
I do not think that anybody would disagree with the proven fact that the execution of Jose Ernesto Medellín is a clear violation of the original Avena judgment, the 2008 Order on Provisional Measures given by the Court a couple of weeks before the execution, and article 94 of the UN Charter (which establishes the binding character of ICJ judgments). What I guess would be the point of disagreement is whether Mexico's actions constitute frivolous litigation.
In a Court that clearly does not have supervision powers and which enforcement depends on the Security Council, Mexico's Request for Interpretation seem to be the only way to publicly denounce in a relevant forum the many legal problems which flow from the Medellín vs. Texas decision of the US Supreme Court (I must say, the last issue of the AJIL makes a very interesting analysis of its repercussions in the Agora section). However, it still was a request that lacked any factual or legal base beyond the execution of Mr. Medellín. At paragraph 60 of the decision lies the only relevant point that could be made: "The Court finds it sufficient to reiterate that its Avena Judgment remains binding and that the United States continues to be under an obligation fully to implement it."
Wednesday, 14 January 2009
It is hard to know what the actual effects of legal pluralism or legal monism are for goals such as social cohesion or gender equality. Could it be the case that no uniform assessment can be made of either approach - that the consequent benefits and dangers of each approach will depend on context and therefore the question of whether societies should adopt legal pluralism or monism is a matter of political judgement? Has there been much empirical work done on issues such as the operation of sharia law in liberal/social democracies, and the impact on women's rights or gender equality, on the (better or worse) integration of related communities, and on the effects of increased legal pluralism on dominant legal frameworks?
Meanwhile, the debates continue to stir controversy:
Tuesday, 6 January 2009
The UN’s justice system is a complicated and incoherent set of bodies which deal with disciplinary and labor related disputes between the organization and its employees (with a very restrictive definition of “employee”, I must say). It is no secret that the current system fails to comply with most of the judicial guarantees established on the International Covenant on Civil and Political Rights. The report of a Redesign Panel set up in 2006 stated that:
“the administration of justice in the United Nations lags so far behind international human rights standards is a matter of urgent concern requiring immediate, adequate and effective remedial action” (A/61/205, para. 11)
“In summary, the structure of the formal justice system is both fragmented and overcentralized. It is slow, expensive and inefficient. It does not provide proper or adequate remedies and fails to guarantee individual rights. It promotes neither managerial efficiency nor accountability. It generally lacks transparency and fails to satisfy minimum requirements of the rule of law. It enjoys neither the confidence nor the respect of staff, management or Member States.” (A/61/205, para. 73)
Most of the recommendations of the Redesign Panel are in the process of been addressed. By resolution 62/228 of the General Assembly the Ombudsmen offices are being unified under the UN Ombudsman Office, a Mediation Division is in the process of being set up, and both regional and sub regional offices of the aforementioned entities will eventually be opened.
However, the final formal steps were completed last month with the adoption of GA resolution 63/253, which abolishes the Joint Appeals Boards (JAB) and Joint Disciplinary Committees (JDC) starting July 2009 and the United Nations Administrative Tribunal (UNAT) on 31 December 2009. It adopts the statutes of the newly constituted United Nations Dispute and Appeals Tribunals, which should start working on July too, and adopts transitional measures to be taken throughout this year.
I have not been able to find online the Resolution 63/253, so I do not know the details of the new formal system of administration of justice. However, the adoption of a two-tier formal system is a considerable improvement from the peer-review model of the JAB and JDC, and the one-tier model with no right of appeal of the UNAT. One of the promises of the new system is to reduce the length of the procedure, which under the current system is at least 3 years.
It only took 63 years for the UN to actually adopt a system for the administration of justice that reflects the human rights principles that it has been promoting since the adoption of the Universal Declaration. The question now is how much time it will take to make the system fully operational.