Author Archives: dave

Punishing the Victim III: Teenager to be Executed for Killing Rapist

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Amnesty International issued a public statement regarding the death sentence of an Iranian teenager:

On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court. According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death. [Link]

The court’s judgment has, to some, further exposed the unfairness of Islamic law with respect to women. As others have pointed out, Nazanin may have been unable to prove that she acted in self-defense because of certain evidentiary rules in Islamic law that place greater weight on the testimony of males.

The women asked, “O Allah’s Apostle! What is deficient in our intelligence and religion?” He said, “Is not the evidence of two women equal to the witness of one man?” They replied in the affirmative. He said, “This is the deficiency in her intelligence. [Link]

Accordiginly, Nazanin and her niece may have testified that the three men attempted to rape them, but the testimony of the two surviving men would have successfully refuted this claim.

(For those interested, there is an online petition to “save” Nazanin, which will be submitted to UN Secretary General Kofi Annan and others.)

The case has also reinvigorated the debate about whether the death penalty should be applied to teenagers (an issue the Supreme Court of the United States recently addressed in Roper v. Simmons), and whether capital punishment should be abolished entirely.

In India, rape is not punishable by death, however some have argued that the availability of capital punishment should extend to rape cases. Columnist Vir Sanghvi, for example, suggested that “rape is as bad as murder,” particularly because of the nature of Indian society:

It is almost impossible to recover and lead a normal life after you have been raped in India. First of all, you probably can’t talk about it. Secondly, in many cases, even when you do complain, no action is taken against the rapist. Thirdly, you are finished on the arranged marriage market and if you’re already married, your husband acts as though you are now shop soiled. And finally, far from being counselled to cope with the trauma of rape, you face a new trauma: society’s hostility. [Link]

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Hamdan v. Rumsfeld

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As I write this post, the Supreme Court of the United States is hearing oral argument in Hamdan v. Rumsfeld, an important case involving the president’s constitutional and statutory authority in times of war, and the legality of military commissions set up to try detainees captured in the war on terror. The facts of the case:

Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes. [Link]

The procedural history, or how the present case made its way to the Supreme Court:

Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The Court of Appeals for the D.C. Circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude HamdanÂ’s trial before military commissions. [Link]

Hamdan appealed to the Supreme Court and in November 2005, the Supreme Court agreed to review the case. Chief Justice John Roberts recused himself, as he served on the D.C. Circuit Court panel that upheld the war crimes tribunals. (Some are calling for Justice Antonin Scalia to step aside as well because of comments he recently made in Switzerland, see here.)

Respected desi law professor Neal Katyal is arguing the case on behalf of Hamdan. There are two questions (.pdf) before the Supreme Court. The first is a threshold inquiry regarding the Court’s jurisdiction to hear the case. The government contends that the Court should dismiss the case on jurisdictional grounds:

[The government] argue[s] that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.[Link]

Second, as to the merits:

petitioner argues [in part] that the military commission that seeks to try him is not authorized to do so under U.S. law. [H]e argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent “Commander-in-Chief” power to do so. [Link]

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The Guardians of the British Raj

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Stalin found it “ridiculous” that “a few hundred Englishmen should dominate India.” [Link]

A new book by historian David Gilmour, The Ruling Caste: Imperial Lives in the Victorian Raj (Farrar, Straus and Giroux 2006), “helps explain how [the British civil servants in India] pulled it off.”

In yesterday’s Washington Post, noted author and UN official Shashi Tharoor gave a generally favorable review of The Ruling Caste. In Tharoor’s view,

The Ruling Caste paints an arresting and richly detailed portrait of how the British ruled 19th-century India — with unshakeable self-confidence buttressed by protocol, alcohol and a lot of gall…. [For example,] one 24-year-old district officer found himself in charge of 4,000 square miles and a million people [Link]

The arrogance of the British administrators and the paternalistic means by which they viewed their Indian subjects is upsetting, though not unsurprising. One viceroy is quoted by Gilmour as saying:

“We are all British gentlemen engaged in the magnificent work of governing an inferior race.”

According to Gilmour:

Few shared Queen Victoria’s “romantic feelings for ‘brown skins….'” Well into the 20th century, they spoke and wrote of the need to treat Indians as “children” incapable of ruling themselves.

Despite Gilmour’s insights into the personal lives and thoughts of these administrators, Tharoor is critical of the book’s failure to examine the Indian response to the British public officials, who were “members of the Indian Civil Service (ICS)”:

What is missing, though, is any sense of an Indian perspective on these men and their work. What did the subjects of their administration think of them? Gilmour does not tell us. He glosses over the prejudice and casual racism of many ICS men.

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“U.K.’s Highest Court Backs School Ban on Muslim Dress”

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In 2000, a Muslim girl named Shabina Begum enrolled in Denbigh High School in Luton, England. The school required students to wear uniforms, and the uniforms were developed in consideration of the fact that approximately 80% of the students at Denbigh were Muslim:

In devising a suitable uniform, the school went to immense trouble to accommodate the religious and cultural preferences of the pupils and their families. There was consultation with parents, students, staff and the Imams of the three local mosques. One version of the uniform was the shalwar kameez (or kameeze), a sleeveless smock-like dress with a square neckline, worn over a shirt, tie and loose trousers which taper at the ankles. [Link]

In accordance with her religious beliefs and consistent with the school’s uniform requirements, Shabina wore a salwar kameez, or “shalwar kameez” as noted above. She did so for the first two years of her time at Denbigh. However, she later determined that the salwar kameez would not be appropriate for her to wear.

Her brother Shuweb Rahman says that “as Shabina became older she took an increasing interest in her religion” and through her interest in religion “discovered that the shalwar kameez was not an acceptable form of dress for Muslim women in public places.” [In 2002, Shabina] turned up at school wearing a long shapeless black gown known as a jilbab. [Link]

The school’s response? The assistant head master told Shabina to “go home and change.” She went home and never came back.

Shabina sued, claiming that her freedom to manifest her religion was violated. Yesterday, five Law Lords unanimously disagreed, holding that

there was no interference with the respondent’s [i.e., Shabina’s] right to manifest her belief in practice or observance. [Link]

The Lords apparently reasoned, in part, that Shabina could have simply gone to another school nearby that had a more suitable uniform policy:

there were three schools in the area at which the wearing of the jilbab was permitted…. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools…. [Link]

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Border Vigilantes

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The Minuteman Project (MMP) is a group of reportedly 6,500 volunteer citizens who are attempting to address and curb illegal immigration in the United States by patrolling the U.S.-Mexico and U.S.-Canada borders. The purpose of the group, in its own words, is:

to bring national awareness to the decades-long careless disregard of effective U.S. immigration law enforcement. It is a reminder to Americans that our nation was founded as a nation governed by the “rule of law,” not by the whims of mobs of ILLEGAL aliens who endlessly stream across U.S. borders…. Future generations will inherit a tangle of rancorous, unassimilated, squabbling cultures with no common bond to hold them together, and a certain guarantee of the death of this nation as a harmonious “melting pot.” The result: political, economic and social mayhem. [Link]

Not surprisingly, the MPP has generated a signficant amount of controversy: it has been accused of being racist, ineffective, illegitimate, and of having ties to Neo-Nazis. Last year, legal observers from the American Civil Liberties Union and the University of Arizona monitored the activities of the MMP volunteers, before the MMP left Arizona in April 2005. One concerned onlooker had this to say about the MMP’s work:

“It’s going to encourage a lot of negative implications for brown-looking people, if you want to call it that, racial profiling….” [Link]

To be sure, citizens can be an integral part of a wider law enforcement initiative. For example, community policing — which involves collaborative efforts between the police and members of the general public, and which demands compassion from the police towards the communities they serve — has shown encouraging signs of success, particularly in areas with high concentrations of minorities, such as Miami. However, the MPP is not a part of an official border patrol program; it is a self-appointed entity that acts in isolation and with an unfortunate view of diversity and multiculturalism. Moreover, there are fears from human rights organizations as to how the MMP actually carries out its patrolling efforts – through directly confronting migrants, apprehending them, or worse. Continue reading →

To Give Back or to Stand Pat

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While I was in India last month, I made it a point to read the local papers and watch the local news broadcasts. The purpose of this was to get a sense of the issues and concerns that were on the minds of the people and the press. Bush’s impending visit, the H5N1 (bird) flu, globalization, and the negative impact of the “MTV Generation” on the youth were frequent topics in the news and editorial pages.

Of greater interest to me were the numerous stories of NRI’s attempting to improve their villages. For example:

For a long time non-resident Indians have been donating for causes associated with their native villages or hometowns for schools, dispensaries or roads. In what is a rare example of donation targeted specifically for carrying out the battle against AIDS, cancer and TB in Punjab, a New York-based NRI today told the Punjab Government that he would spend $1 million (Rs 4.5 crore) on the project…. Mr [Surinder Singh] Dhall said: “If I am satisfied, I will donate even more than $1 million. It was my wish to donate for a larger cause and not restrict myself to building roads or schools in my native village.” [Link]

One reason I was in India was to attend a three-day conference sponsored by the alumni association of my father’s medical school, the Amritsar Medical College. The conference was organized in part to display the deteriorating condition of the college’s hospital and to generate interest in NRI investment into the campus. The response from the alumni was overwhelming; some graduates felt as though it was their duty to “give back” to the institution that had provided them with a living and with fond memories.

After Amritsar, I stopped by the Guru Nanak Mission Hospital, where I met a family friend from America who has committed himself towards improving this hospital and expanding its current capabilities. Again, I encountered an NRI who was devoting his time and money to a charitable cause in India.

And, even on the flight back to America (of all places), I ran into a friend who had spent three months in India managing the India-branch of his technology company. His interest seemed purely business-oriented, but in a larger sense he is still investing in the country.

The experience in India left me thinking: as an Indian individual who was born and raised in the United States, what is my moral obligation to providing anything to India or resident Indians, whether it be financial support, investment capital, professional expertise, or simple seva, or selfless service. Continue reading →

BBCD on Marriage

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Stories about marriage in which South Asian women are treated like property, used as a means to obtain money, married off at the tender age of twelve, or attacked by their in-laws, understandably generate certain feelings, including shock, anger, disbelief, and sadness. Another expected reaction might be to think that these incidents occur on the fringes of a society: in an “old school” world that should be increasingly marginalized and whose degrading and stereotypical practices need to be exposed as such.

Categorizing these stories in this way not only stigmatizes certain vestiges of the “old school,” but also places or elevates the critic into a different world, a “modern,” “civilized,” or “Western,” one in which specific qualities — such as individual choice and gender equity — are at a premium. But, while disassociating one’s self from the old school has its psychological benefits, it would be a mistake to think that the women born and raised in the West are free of humiliation in the marriage or courtship process.

Recently, I have been reading a blog called British Born Confused Desi (BBCD). The author describes herself as:

a Londoner who has her foundations firmly rooted in her Pakistani heritage. I face a constant state of confusion as I battle between trying to be a good Pakistani girl and a modern British woman.

She writes candidly of her experiences as a prospective bride. Her posts give the impression that she is an unwilling participant in a draft, where the male suitor and his family thinks they have the final say as to whether they want to select this “free agent” girl.

My folks have a family coming over to see me tomorrow, I hate doing things the traditional way. It really is a meat market situation and for some reason the “boy side” always seem to think that its their meat to buy. [Link]

And when the family eventually came to “view” BBCD:

Today after a very long time I was made to feel like a piece of meat…. . We got on pretty well for a first meeting.. His mother on the other hand spent two hours staring at me making me feel so uncomfortable, I dont think she liked me at all, Im quiet sure that i was too “modern” for her. His father didnt smile at me even once, i think both the parents have been on a course as too how to intimidate a person…. Anyway as per usual in our silly community system of arrange marriages, lets just wait and see what “they” say. At least with last weekends bunch I wasn’t interested in him at all. [Link]

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Where There’s a Will…

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Rarely does an article or blog post occupy my thoughts for very long, but Vinod’s exceptional entry regarding an anti-“Islamist” manifesto is such an exception. The manifesto, you will recall, featured several prominent signatories, including Salman Rushdie, and argued in principle that the struggle against Islamism will not be won by arms, but in the ideological field.

When Sajit and I wrote for The Satya Circle, I asked in an essay, “is the war on terror more than a battle between arms and men, but between mentalities and worldviews as well?”

[T]he fact remains there is a large and growing disparity between the American worldview and that of other nations and cultures…. The disparity in understanding between America and other nations and cultures might serve as AmericaÂ’s biggest foe, not any military regime or any set of terrorist groups…. [T]he American worldview must expand in order to understand, yet by no means accept, the ideology and reasoning of the Taliban and others sharing its hatred, even if what the Taliban practices and preaches is beyond any reasonable sense of morality…. Destroying Al Qaeda and punishing those who sponsor, harbor, or otherwise encourage terrorism is not sufficient and cannot make the country truly safer or without real threat…. Unless and until America engages in such serious introspection and in the enterprise of comprehending the subjective worldview of the Islamic fundamentalists and others, America cannot take real long-term, proactive steps towards preventing another attack. [Link]

Now, this was written before the Iraq war. Since then, we have engaged in said war, arguably tortured, humiliated, and denied due process to Muslim detainees — reports of which have had the effect of further aggravating Iraqis and others, and contributing to the will that legitimizes and effectuates acts of terrorism.

Indeed, President Bush himself said yesterday:

[W]e cannot let the fact that America has not been attacked since September the 11th lull us into the illusion that the terrorist threat has disappeared. We still face dangerous enemies. The terrorists haven’t lost the will or the ability to kill innocent folks. [Link]

This extant will has led some to argue that the United States is actually losing the war on terror: killing suspected or prospective terrorists is insufficient and counterproductive, it is said, if doing so further inflames terrorist groups and their supporters. Certain U.S. policy is, in other words, a recruitment device. And it would be a mistake to assume that only fundamentalists or the impoverished are signing up; those interested in harming the United States for its actions include the educated and advantaged (see, e.g., “UNC Attack Suspect Wanted to Punish Gov’t“).

The interesting question is not whether the arms/men vs. will framework is an advantageous one, but how the concept of “winning the war of ideas” can be implemented into tangible policy. Continue reading →

At Least the Military is Winning Somewhere…

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The Solomon Amendment is a Federal law which directs that certain Federal funds be withheld from recipient colleges and universities that do not grant military recruiters access to their campuses on a level equal to that provided to any other employer.

The Forum for Academic and Institutional Rights (FAIR), an association of law schools and professors that oppose discrimination on the basis of sexual orientation, alleged that the Solomon Amendment infringed on its First Amendment freedoms of speech and association due to the militaryÂ’s discriminatory recruitment practices (i.e., “donÂ’t ask, donÂ’t tell”). (See Abhi’s previous post on the case here.)

The U.S. Supreme Court unanimously ruled against FAIR yesterday, issuing an opinion [.pdf] that upholds the constitutionality of the statute and that in effect gives FAIR three-snaps in a Z-formation (i.e., the “Zorro snap“). (While some legal commentators predicted a unanimous outcome, I honestly did not think a case this contested in the public sphere would yield an 8-0 result.)

Joan Biskupic of USA TODAY described the Court’s reasoning:

“Accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions.” [T]he basic communications required of colleges were bulletin board notices and e-mails [which] hardly could be compared to the kind of “compelled” government speech that has been invalidated through the years, such as a West Virginia law that required schoolchildren to recite the Pledge of Allegiance and to salute the American flag, or a New Hampshire law that ordered the state motto — “Live Free or Die” — to be on license plates. [Link]

As this astute (and hopefully single) desi notes on her blog, Mia Culpa:

The decision boosts the Bush administration as it struggles to maintain recruiting levels to wage wars in Iraq and Afghanistan. It’s a defeat for Harvard, Yale, Columbia and other universities that accused the government of intruding on academic freedom. [Link]

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You Call That a Knife?

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Gurbaj Singh Multani, a Sikh student in Québec, was playing during recess when, oops, his kirpan, a ceremonial Sikh dagger, fell out of his clothing. The mother of another student noticed, and minutes later the principal of the school, Danielle Descoteaux, informed Gurbaj that he would not be permitted to attend the school so long as he continued to carry this “weapon” on his person.

The school board agreed with Descoteaux’s initial reaction, stating that the kirpan violated its code of conduct, which prohibits the carrying of weapons. The boardÂ’s council of commissioners upheld that decision, but told Gurbaj and his parents that Gurbaj would be permitted to wear a kirpan-shaped pendant or a kirpan that was made of some other material (e.g., plastic or wood), not metal. Gurbaj’s father sued, claiming his son’s rights under the Canadian Charter were violated.

The Supreme Court of Canada unanimously sided with GurbajÂ’s father, holding that, “The council of commissionersÂ’ decision prohibiting [Gurbaj] from wearing his kirpan to school infringes his freedom of religion,” as guaranteed by Section 1 of that Charter.

The Court described the importance of this specific right as applied to Gurbaj:

Religious tolerance is a very important value of Canadian society. If some students consider it unfair that [Gurbaj] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy. A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. Accommodating [Gurbaj] and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition… outweigh its salutary effects.

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