Rajdeep Sardesai
Showing posts with label justice. Show all posts
Showing posts with label justice. Show all posts
Monday 16 July 2018
Thursday 10 May 2018
Thursday 12 April 2018
Tuesday 16 January 2018
Justice as a king’s command
Jawed Naqvi in The Dawn
REMEMBER Emperor Akbar in Mughal-i-Azam? Akbar ka insaf uska hukum hai. Akbar’s command is his justice. This was how the great Mughal ruler dismissed a poor woman’s petition to save her daughter from imminent and wilful execution in the movie. In the real world, Akbar may have never spoken Urdu just as he may have never been approached to spare the life of any Anarkali if she ever existed. The dialogue writer, Wajahat Mirza, died in Karachi in 1990 but not before unwittingly describing an essential feature of justice everywhere — that it is universally a subjective thing. It was the whim of ancient kings and it remains a whim packaged in ornate terminology today, be it as a feature of democracy or of the Third Reich.
Four judges decreed the hanging of Z.A. Bhutto under military dictatorship. Three opposed it. Bhutto lost the lottery. You may see the judges on both sides as scrupulous practitioners of law and you may see their choices as a personal predilection or both. Yakub Memon would have perhaps lived had a different judge had his way. One judge unseated Indira Gandhi from power, another endorsed her emergency rule. President Pratibha Patil opposed the death penalty on principle, to quote a different example, so she never rejected a mercy petition even if she did it by leaving the files unattended. Pranab Mukherjee, who succeeded her, clearly thought otherwise. He threw out all the mercy petitions he could, opening the path to the gallows for those on death row. Justice is thus both a lottery and the wilful command of a moody emperor with or without the judge’s wig.
As far as I am aware, there were no lawyers in Aurangzeb’s or Kautilya’s time though Shakespeare could not have conjured Portia without a nascent European tradition of black-robed advocates. The encounter between the petitioner and the magistrate in Chandragupta Maurya’s court would have been direct and swift, with no place for intermediaries, today’s LL.B degree holders.
In a different era, the lawyers can mutate into an ideologically driven mob, for example to shower Mumtaz Qadri with rose petals while cheering him for killing a secular, liberal soul that Salmaan Taseer was. And there were the Indian counterparts who viciously assaulted outspoken student leader Kanhaiya Kumar as he was being escorted to the courtroom.
Judges often change their ideological preferences to comply with the doctrine of the state they serve.
In India, there is a new tradition, which I also noticed in Srinagar, to prevent lawyers from defending a petitioner. Hansal Mehta made Shahid, a powerful film depicting the true story of a Muslim lawyer in Mumbai who was killed by irate pseudo nationalists because he defended the weak and probably innocent Muslim men in law courts against accusations of terrorism.
Judges can be killed too, usually falling to those they have ruled against. Three US federal judges are on record as being murdered by those their judgements did not please. During the troubled period, the IRA killed three judges, including Lord Justice Sir Maurice Gibson in 1987. That’s a good reason that judges everywhere are accorded adequate personal security.
Indian judge B.H. Loya was hearing a fake encounter case when he died suddenly. The Bombay High Court is looking into allegations that he was murdered while the official records say that the 48-year-old judge succumbed to a heart attack. Loya’s family first feared that he might have been killed after turning down a bribe offer. They later said they no longer believed that to be so. There’s public outcry to investigate the death nevertheless, not least because the head of India’s ruling party stands named in the incident. Soon after Loya’s death in December 2014, his successor dropped the fake encounter case against BJP President Amit Shah.
The most telling comment on the cynical state of justice in India came perhaps from a man described as Babu Bajrangi, a self-confessed Hindutva zealot, who was caught in a sting operation carried out by journalist Ashish Khetan, now a member of the Aaam Aadmi Party. Bajrangi said on camera that he was denied bail on murder charges and that his leader would arrange the right judge to set him free. Cases have to be sometimes transferred to different states over fears that justice would not be delivered in a particular state in a particular court, a fear suggesting that judges are a subjective lot.
In the old days justice was delivered on behalf of the ubiquitous moneylender who had the thumb impression of the illiterate peasant on the book of accounts as evidence of money advanced. Indebted peasants are still committing suicide in India in droves, as they fear that the law overtly or covertly favours the creditor. The Portias are there to protect the poor and ignorant from wily Indian Shylocks but they are few and far between.
Judges often change their ideological preferences to comply with the doctrine of the state they serve. The head of the justice department in Nazi Germany was a former Bolshevik. With the rise of right-wing nationalism in India, a gradual ideological shift is perceptible in all institutions. The Rashtriya Swayamsewak Sangh’s Dattopant Thengadi set up the Akhil Bharatiya Adhivakta Parishad (All India Advocates Council) in 1992, ironically the year the Babri Masjid was demolished in defiance of the Supreme Court’s ruling. The lawyers’ body has produced several judges from its ranks. Justice Deepak Misra, the chief justice of India, seems to be an admirer of the RSS-backed advocates’ body as he was the chief guest at their annual function in Bengaluru two years ago.
Four most senior judges of the Supreme Court took an unprecedented step last week to address a news conference where they expressed the fear that Indian democracy was in peril. Emperor Akbar would not be amused.
REMEMBER Emperor Akbar in Mughal-i-Azam? Akbar ka insaf uska hukum hai. Akbar’s command is his justice. This was how the great Mughal ruler dismissed a poor woman’s petition to save her daughter from imminent and wilful execution in the movie. In the real world, Akbar may have never spoken Urdu just as he may have never been approached to spare the life of any Anarkali if she ever existed. The dialogue writer, Wajahat Mirza, died in Karachi in 1990 but not before unwittingly describing an essential feature of justice everywhere — that it is universally a subjective thing. It was the whim of ancient kings and it remains a whim packaged in ornate terminology today, be it as a feature of democracy or of the Third Reich.
Four judges decreed the hanging of Z.A. Bhutto under military dictatorship. Three opposed it. Bhutto lost the lottery. You may see the judges on both sides as scrupulous practitioners of law and you may see their choices as a personal predilection or both. Yakub Memon would have perhaps lived had a different judge had his way. One judge unseated Indira Gandhi from power, another endorsed her emergency rule. President Pratibha Patil opposed the death penalty on principle, to quote a different example, so she never rejected a mercy petition even if she did it by leaving the files unattended. Pranab Mukherjee, who succeeded her, clearly thought otherwise. He threw out all the mercy petitions he could, opening the path to the gallows for those on death row. Justice is thus both a lottery and the wilful command of a moody emperor with or without the judge’s wig.
As far as I am aware, there were no lawyers in Aurangzeb’s or Kautilya’s time though Shakespeare could not have conjured Portia without a nascent European tradition of black-robed advocates. The encounter between the petitioner and the magistrate in Chandragupta Maurya’s court would have been direct and swift, with no place for intermediaries, today’s LL.B degree holders.
In a different era, the lawyers can mutate into an ideologically driven mob, for example to shower Mumtaz Qadri with rose petals while cheering him for killing a secular, liberal soul that Salmaan Taseer was. And there were the Indian counterparts who viciously assaulted outspoken student leader Kanhaiya Kumar as he was being escorted to the courtroom.
Judges often change their ideological preferences to comply with the doctrine of the state they serve.
In India, there is a new tradition, which I also noticed in Srinagar, to prevent lawyers from defending a petitioner. Hansal Mehta made Shahid, a powerful film depicting the true story of a Muslim lawyer in Mumbai who was killed by irate pseudo nationalists because he defended the weak and probably innocent Muslim men in law courts against accusations of terrorism.
Judges can be killed too, usually falling to those they have ruled against. Three US federal judges are on record as being murdered by those their judgements did not please. During the troubled period, the IRA killed three judges, including Lord Justice Sir Maurice Gibson in 1987. That’s a good reason that judges everywhere are accorded adequate personal security.
Indian judge B.H. Loya was hearing a fake encounter case when he died suddenly. The Bombay High Court is looking into allegations that he was murdered while the official records say that the 48-year-old judge succumbed to a heart attack. Loya’s family first feared that he might have been killed after turning down a bribe offer. They later said they no longer believed that to be so. There’s public outcry to investigate the death nevertheless, not least because the head of India’s ruling party stands named in the incident. Soon after Loya’s death in December 2014, his successor dropped the fake encounter case against BJP President Amit Shah.
The most telling comment on the cynical state of justice in India came perhaps from a man described as Babu Bajrangi, a self-confessed Hindutva zealot, who was caught in a sting operation carried out by journalist Ashish Khetan, now a member of the Aaam Aadmi Party. Bajrangi said on camera that he was denied bail on murder charges and that his leader would arrange the right judge to set him free. Cases have to be sometimes transferred to different states over fears that justice would not be delivered in a particular state in a particular court, a fear suggesting that judges are a subjective lot.
In the old days justice was delivered on behalf of the ubiquitous moneylender who had the thumb impression of the illiterate peasant on the book of accounts as evidence of money advanced. Indebted peasants are still committing suicide in India in droves, as they fear that the law overtly or covertly favours the creditor. The Portias are there to protect the poor and ignorant from wily Indian Shylocks but they are few and far between.
Judges often change their ideological preferences to comply with the doctrine of the state they serve. The head of the justice department in Nazi Germany was a former Bolshevik. With the rise of right-wing nationalism in India, a gradual ideological shift is perceptible in all institutions. The Rashtriya Swayamsewak Sangh’s Dattopant Thengadi set up the Akhil Bharatiya Adhivakta Parishad (All India Advocates Council) in 1992, ironically the year the Babri Masjid was demolished in defiance of the Supreme Court’s ruling. The lawyers’ body has produced several judges from its ranks. Justice Deepak Misra, the chief justice of India, seems to be an admirer of the RSS-backed advocates’ body as he was the chief guest at their annual function in Bengaluru two years ago.
Four most senior judges of the Supreme Court took an unprecedented step last week to address a news conference where they expressed the fear that Indian democracy was in peril. Emperor Akbar would not be amused.
Saturday 29 April 2017
Why they lynched Mashal Khan. Lessons for humans.
Pervez Hoodbhoy in The Dawn
THE mental state of men ready and poised to kill has long fascinated scientists. The Nobel Prize winning ethologist, Konrad Lorenz, says such persons experience the ‘Holy Shiver’ (called Heiliger Schauer in German) just moments before performing the deed. In his famous book On Aggression, Lorenz describes it as a tingling of the spine prior to performing a heroic act in defence of their communities.
This feeling, he says, is akin to the pre-human reflex that raises hair on an animal’s back as it zeroes in for the kill. He writes: “A shiver runs down the back and along the outside of both arms. All obstacles become unimportant … instinctive inhibitions against hurting or killing disappear … Men enjoy the feeling of absolute righteousness even as they commit atrocities.”
While they stripped naked and beat their colleague Mashal Khan with sticks and bricks, the 20-25 students of the Mardan university enjoyed precisely this feeling of righteousness. They said Khan had posted content disrespectful of Islam on his Facebook page and so they took it upon themselves to punish him. Finally, one student took out his pistol and shot him dead. Hundreds of others watched approvingly and, with their smartphone cameras, video-recorded the killing for distribution on their Facebook pages. A meeting of this self-congratulatory group resolved to hide the identity of the shooter.
Khan had blasphemed! Until this was finally shown to be false, no proper funeral was possible in his home village. Sympathy messages from Prime Minister Nawaz Sharif and opposition leaders such as Bilawal Bhutto came only after it had been established that Khan performed namaz fairly regularly.
Significantly, no protests of significance followed. University campuses were silent and meetings discussing the murder were disallowed. A demonstration at the Islamabad Press Club drew about 450, a miniscule figure against the estimated 200,000 who attended Mumtaz Qadri’s last rites.
This suggests that much of the Pakistani public, whether tacitly or openly, endorses violent punishment of suspected blasphemers. Why? How did so many Pakistanis become bloodthirsty vigilantes? Evening TV talk shows — at least those I have either seen or participated in — circle around two basic explanations.
One, favoured by the liberal-minded, blames the blasphemy law and implicitly demands its repeal (an explicit call would endanger one’s life). The other, voiced by the religiously orthodox, says vigilantism occurs only because our courts act too slowly against accused blasphemers.
Both claims are not just wrong, they are farcical. Subsequent to Khan’s killing, at least two other incidents show that gut reactions — not what some law says — is really what counts. In one, three armed burqa-clad sisters shot dead a man near Sialkot who had been accused of committing blasphemy 13 years ago. In the other, a visibly mentally ill man in Chitral uttered remarks inside a mosque and escaped lynching only upon the imam’s intervention. The mob subsequently burned the imam’s car. Heiliger Schauer!
While searching for a real explanation, let’s first note that religiously charged mobs are also in motion across the border. As more people flock to mandirs or masjids, the outcomes are strikingly similar. In an India that is now rapidly Hinduising, crowds are cheering enraged gau rakshaks who smash the skulls of Muslims suspected of consuming or transporting cows. In fact India has its own Khan — Pehlu Khan.
Accused of cattle-smuggling, Pehlu Khan was lynched and killed by cow vigilantes earlier this month before a cheering crowd in Alwar, with the episode also video-recorded. Minister Gulab Chand Kataria declared that Khan belonged to a family of cow smugglers and he had no reason to feel sorry. Now that cow slaughter has been hyped as the most heinous of crimes, no law passed in India can reverse vigilantism.
Vigilantism is best explained by evolutionary biology and sociology. A fundamental principle there says only actions and thoughts that help strengthen group identity are well received, others are not. In common with our ape ancestors, we humans instinctively band together in groups because strength lies in unity. The benefits of group membership are immense — access to social networks, enhanced trust, recognition, etc. Of course, as in a club, membership carries a price tag. Punishing cow-eaters or blasphemers (even alleged ones will do) can be part payment. You become a real hero by slaying a villain — ie someone who challenges your group’s ethos. Your membership dues are also payable by defending or eulogising heroes.
Celebration of such ‘heroes’ precedes Qadri. The 19-year old illiterate who killed Raj Pal, the Hindu publisher of a controversial book on the Prophet (PBUH), was subsequently executed by the British but the youth was held in the highest esteem. Ghazi Ilm Din is venerated by a mausoleum over his grave in Lahore. An 8th grade KP textbook chapter eulogising him tells us that Ilm Din’s body remained fresh days after the execution.
In recent times, backed by the formidable power of the state, Hindu India and Islamic Pakistan have vigorously injected religion into both politics and society. The result is their rapid re-tribalisation through ‘meme transmission’ of primal values. A concept invented by the evolutionary biologist Richard Dawkins, the meme is a ‘piece of thought’ transferrable from person to person by imitation. Like computer viruses, memes can jump from mind to mind.
Memes containing notions of religious or cultural superiority have been ‘cut-and-pasted’ into millions of young minds. Consequently, more than ever before, today’s youth uncritically accepts the inherent morality of their particular group, engages in self-censorship, rationalises the group’s decisions, and engages in moral policing.
Groupthink and deadly memes caused the lynching and murder of the two Khans. Is a defence against such viral afflictions ever possible? Can the subcontinent move away from its barbaric present to a civilised future? One can so hope. After all, like fleas, memes and thought packages can jump from person to person. But they don’t bite everybody! A robust defence can be built by educating people into the spirit of critical inquiry, helping them become individuals rather than groupies, and encouraging them to introspect. A sense of humour, and maybe poetry, would also help.
THE mental state of men ready and poised to kill has long fascinated scientists. The Nobel Prize winning ethologist, Konrad Lorenz, says such persons experience the ‘Holy Shiver’ (called Heiliger Schauer in German) just moments before performing the deed. In his famous book On Aggression, Lorenz describes it as a tingling of the spine prior to performing a heroic act in defence of their communities.
This feeling, he says, is akin to the pre-human reflex that raises hair on an animal’s back as it zeroes in for the kill. He writes: “A shiver runs down the back and along the outside of both arms. All obstacles become unimportant … instinctive inhibitions against hurting or killing disappear … Men enjoy the feeling of absolute righteousness even as they commit atrocities.”
While they stripped naked and beat their colleague Mashal Khan with sticks and bricks, the 20-25 students of the Mardan university enjoyed precisely this feeling of righteousness. They said Khan had posted content disrespectful of Islam on his Facebook page and so they took it upon themselves to punish him. Finally, one student took out his pistol and shot him dead. Hundreds of others watched approvingly and, with their smartphone cameras, video-recorded the killing for distribution on their Facebook pages. A meeting of this self-congratulatory group resolved to hide the identity of the shooter.
Khan had blasphemed! Until this was finally shown to be false, no proper funeral was possible in his home village. Sympathy messages from Prime Minister Nawaz Sharif and opposition leaders such as Bilawal Bhutto came only after it had been established that Khan performed namaz fairly regularly.
Significantly, no protests of significance followed. University campuses were silent and meetings discussing the murder were disallowed. A demonstration at the Islamabad Press Club drew about 450, a miniscule figure against the estimated 200,000 who attended Mumtaz Qadri’s last rites.
This suggests that much of the Pakistani public, whether tacitly or openly, endorses violent punishment of suspected blasphemers. Why? How did so many Pakistanis become bloodthirsty vigilantes? Evening TV talk shows — at least those I have either seen or participated in — circle around two basic explanations.
One, favoured by the liberal-minded, blames the blasphemy law and implicitly demands its repeal (an explicit call would endanger one’s life). The other, voiced by the religiously orthodox, says vigilantism occurs only because our courts act too slowly against accused blasphemers.
Both claims are not just wrong, they are farcical. Subsequent to Khan’s killing, at least two other incidents show that gut reactions — not what some law says — is really what counts. In one, three armed burqa-clad sisters shot dead a man near Sialkot who had been accused of committing blasphemy 13 years ago. In the other, a visibly mentally ill man in Chitral uttered remarks inside a mosque and escaped lynching only upon the imam’s intervention. The mob subsequently burned the imam’s car. Heiliger Schauer!
While searching for a real explanation, let’s first note that religiously charged mobs are also in motion across the border. As more people flock to mandirs or masjids, the outcomes are strikingly similar. In an India that is now rapidly Hinduising, crowds are cheering enraged gau rakshaks who smash the skulls of Muslims suspected of consuming or transporting cows. In fact India has its own Khan — Pehlu Khan.
Accused of cattle-smuggling, Pehlu Khan was lynched and killed by cow vigilantes earlier this month before a cheering crowd in Alwar, with the episode also video-recorded. Minister Gulab Chand Kataria declared that Khan belonged to a family of cow smugglers and he had no reason to feel sorry. Now that cow slaughter has been hyped as the most heinous of crimes, no law passed in India can reverse vigilantism.
Vigilantism is best explained by evolutionary biology and sociology. A fundamental principle there says only actions and thoughts that help strengthen group identity are well received, others are not. In common with our ape ancestors, we humans instinctively band together in groups because strength lies in unity. The benefits of group membership are immense — access to social networks, enhanced trust, recognition, etc. Of course, as in a club, membership carries a price tag. Punishing cow-eaters or blasphemers (even alleged ones will do) can be part payment. You become a real hero by slaying a villain — ie someone who challenges your group’s ethos. Your membership dues are also payable by defending or eulogising heroes.
Celebration of such ‘heroes’ precedes Qadri. The 19-year old illiterate who killed Raj Pal, the Hindu publisher of a controversial book on the Prophet (PBUH), was subsequently executed by the British but the youth was held in the highest esteem. Ghazi Ilm Din is venerated by a mausoleum over his grave in Lahore. An 8th grade KP textbook chapter eulogising him tells us that Ilm Din’s body remained fresh days after the execution.
In recent times, backed by the formidable power of the state, Hindu India and Islamic Pakistan have vigorously injected religion into both politics and society. The result is their rapid re-tribalisation through ‘meme transmission’ of primal values. A concept invented by the evolutionary biologist Richard Dawkins, the meme is a ‘piece of thought’ transferrable from person to person by imitation. Like computer viruses, memes can jump from mind to mind.
Memes containing notions of religious or cultural superiority have been ‘cut-and-pasted’ into millions of young minds. Consequently, more than ever before, today’s youth uncritically accepts the inherent morality of their particular group, engages in self-censorship, rationalises the group’s decisions, and engages in moral policing.
Groupthink and deadly memes caused the lynching and murder of the two Khans. Is a defence against such viral afflictions ever possible? Can the subcontinent move away from its barbaric present to a civilised future? One can so hope. After all, like fleas, memes and thought packages can jump from person to person. But they don’t bite everybody! A robust defence can be built by educating people into the spirit of critical inquiry, helping them become individuals rather than groupies, and encouraging them to introspect. A sense of humour, and maybe poetry, would also help.
Tuesday 28 March 2017
Access to justice is no longer a worker’s right, but a luxury
Aditya Charkrabortty in The Guardian
Laws that cost too much to enforce are phoney laws. A civil right that people can’t afford to use is no right at all. And a society that turns justice into a luxury good is one no longer ruled by law, but by money and power. This week the highest court in the land will decide whether Britain will become such a society. There are plenty of signs that we have already gone too far.
Listen to the country’s top judge, Lord Thomas of Cwmgiedd, who admits that “our justice system has become unaffordable to most”. Look at our legal-aid system, slashed so heavily by David Cameron and Theresa May that the poor must act as their own trial lawyers, ready to be skittled by barristers in the pay of their moneyed opponents.
The latest case will be heard by seven supreme court judges and will pit the government against the trade union Unison. It will be the climax of a four-year legal battle over one of the most fundamental rights of all: the right of workers to stand up against their bosses.
In 2013, Cameron stripped workers of the right to access the employment tribunal system. Whether a pregnant woman forced out of her job, a Bangladeshi-origin guy battling racism at work, or a young graduate with disabilities getting aggro from a boss, all would now have to pay £1,200 for a chance of redress.
The number of cases taken to tribunal promptly fell off a cliff – down by 70% within a year. Citizens Advice, employment lawyers and academics practically queued up to warn that workers – especially poor workers – were getting priced out of justice. But for Conservative ministers, all was fine. Loyal flacks such as Matthew Hancock (then employment minister) claimed those deterred by the fees were merely “unscrupulous” try-ons, intent on “bullying bosses”. Follow Hancock’s logic, and with all those time-wasters weeded out, you’d expect the number of successful tribunal claims to jump. They’ve actually dropped.
At each hearing of Unison’s case, the judges have wound up asking to see actual people for whom the fees have represented a barrier to justice. One was sure that“if the statistics … were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an employment tribunal through lack of funds”.
Should the supreme court judges want the same thing, they could meet Liliana Almanza. They’d find her a compelling witness, although she finds it hard to sit down for too long due to three herniated discs in her lower back, which make her feel like she’s lugging around “a lot of heavy weight” and which send pain shooting into her hands, legs, shoulders and neck. She also has sometimes severe depression and anxiety. The physical pain and the mental illness can feed off each other.
Almanza has worked as a cleaner at the University of London since 2011 and never kept her conditions from her employer, an outsourcing company called Cofely. Then came a new supervisor, who Almanza felt had it in for her and who piled on extra work. Almanza was sent to the “punishment floor” – actually three floors, normally handled by two people, but she had to do the work on her own and in little time. The extra workload, especially the pushing about of a hoover and a mop, caused her so much pain that she sometimes felt dizzy. Yet when Almanza complained, she says the supervisor either laughed or told her to sign off sick. Despite being required under law, there was no adjustment for her disabilities.
Almanza, who is Colombian, remembers the supervisor telling her how Latin Americans were a bunch of beggars. Other times, she’d call Almanza a “bitch” and a “whore”.
On the worst days, Almanza would walk over to Euston station and stand at the platform’s very edge. She’d wait for the tube to come. Then “a light would come on” and she’d pull herself back.
Almanza did exactly what ministers would want and submitted a grievance using Cofely’s in-house procedure. It was rejected. She appealed and did not hear anything for months. However desperate her situation, she would never have found the money for a tribunal. Some are exempt from the fees, but Almanza and her husband – both cleaners – apparently earned too much money for her to qualify. Nor does the means-testing account for living costs, even though after renting a single room in a shared ex-council house in London and paying bills they have almost no money each month.
Her union, the tiny Independent Workers of Great Britain (IWGB), pitched in some money to go to tribunal and helped crowdfund the rest. As soon as she did, Almanza remembers that her employer made a number of adjustments and lightened her workload.
I contacted Engie, as Cofely has been rebranded, for its response to Almanza’s charges. Its statement reads in part: “We do not tolerate discrimination in the workplace and all claims … are investigated thoroughly. Following extensive investigation of the allegations brought against Cofely Workplace, all claims were denied and Cofely was formally discharged from the proceedings by the court on 24th May 2016.” The court documents actually show that Cofely was discharged because the contract was taken over by another company, which also reached a settlement with Almanza.
Without charity and the shoestring resources of the IWGB, Almanza wouldn’t have been able to file a claim. If she could testify to the supreme court, what would she say? “I would tell the judges if I hadn’t been able to go to tribunal I don’t think I’d be here today. If I’d continued like that, I wouldn’t have been able to tell this story. Maybe it sounds like an exaggeration, a movie. But it’s one thing to talk about it, another thing to live it.”
Laws that cost too much to enforce are phoney laws. A civil right that people can’t afford to use is no right at all. And a society that turns justice into a luxury good is one no longer ruled by law, but by money and power. This week the highest court in the land will decide whether Britain will become such a society. There are plenty of signs that we have already gone too far.
Listen to the country’s top judge, Lord Thomas of Cwmgiedd, who admits that “our justice system has become unaffordable to most”. Look at our legal-aid system, slashed so heavily by David Cameron and Theresa May that the poor must act as their own trial lawyers, ready to be skittled by barristers in the pay of their moneyed opponents.
The latest case will be heard by seven supreme court judges and will pit the government against the trade union Unison. It will be the climax of a four-year legal battle over one of the most fundamental rights of all: the right of workers to stand up against their bosses.
In 2013, Cameron stripped workers of the right to access the employment tribunal system. Whether a pregnant woman forced out of her job, a Bangladeshi-origin guy battling racism at work, or a young graduate with disabilities getting aggro from a boss, all would now have to pay £1,200 for a chance of redress.
The number of cases taken to tribunal promptly fell off a cliff – down by 70% within a year. Citizens Advice, employment lawyers and academics practically queued up to warn that workers – especially poor workers – were getting priced out of justice. But for Conservative ministers, all was fine. Loyal flacks such as Matthew Hancock (then employment minister) claimed those deterred by the fees were merely “unscrupulous” try-ons, intent on “bullying bosses”. Follow Hancock’s logic, and with all those time-wasters weeded out, you’d expect the number of successful tribunal claims to jump. They’ve actually dropped.
At each hearing of Unison’s case, the judges have wound up asking to see actual people for whom the fees have represented a barrier to justice. One was sure that“if the statistics … were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an employment tribunal through lack of funds”.
Should the supreme court judges want the same thing, they could meet Liliana Almanza. They’d find her a compelling witness, although she finds it hard to sit down for too long due to three herniated discs in her lower back, which make her feel like she’s lugging around “a lot of heavy weight” and which send pain shooting into her hands, legs, shoulders and neck. She also has sometimes severe depression and anxiety. The physical pain and the mental illness can feed off each other.
Almanza has worked as a cleaner at the University of London since 2011 and never kept her conditions from her employer, an outsourcing company called Cofely. Then came a new supervisor, who Almanza felt had it in for her and who piled on extra work. Almanza was sent to the “punishment floor” – actually three floors, normally handled by two people, but she had to do the work on her own and in little time. The extra workload, especially the pushing about of a hoover and a mop, caused her so much pain that she sometimes felt dizzy. Yet when Almanza complained, she says the supervisor either laughed or told her to sign off sick. Despite being required under law, there was no adjustment for her disabilities.
Almanza, who is Colombian, remembers the supervisor telling her how Latin Americans were a bunch of beggars. Other times, she’d call Almanza a “bitch” and a “whore”.
On the worst days, Almanza would walk over to Euston station and stand at the platform’s very edge. She’d wait for the tube to come. Then “a light would come on” and she’d pull herself back.
Almanza did exactly what ministers would want and submitted a grievance using Cofely’s in-house procedure. It was rejected. She appealed and did not hear anything for months. However desperate her situation, she would never have found the money for a tribunal. Some are exempt from the fees, but Almanza and her husband – both cleaners – apparently earned too much money for her to qualify. Nor does the means-testing account for living costs, even though after renting a single room in a shared ex-council house in London and paying bills they have almost no money each month.
Her union, the tiny Independent Workers of Great Britain (IWGB), pitched in some money to go to tribunal and helped crowdfund the rest. As soon as she did, Almanza remembers that her employer made a number of adjustments and lightened her workload.
I contacted Engie, as Cofely has been rebranded, for its response to Almanza’s charges. Its statement reads in part: “We do not tolerate discrimination in the workplace and all claims … are investigated thoroughly. Following extensive investigation of the allegations brought against Cofely Workplace, all claims were denied and Cofely was formally discharged from the proceedings by the court on 24th May 2016.” The court documents actually show that Cofely was discharged because the contract was taken over by another company, which also reached a settlement with Almanza.
Without charity and the shoestring resources of the IWGB, Almanza wouldn’t have been able to file a claim. If she could testify to the supreme court, what would she say? “I would tell the judges if I hadn’t been able to go to tribunal I don’t think I’d be here today. If I’d continued like that, I wouldn’t have been able to tell this story. Maybe it sounds like an exaggeration, a movie. But it’s one thing to talk about it, another thing to live it.”
Sunday 13 November 2016
Friday 28 October 2016
Imran Khan and Insaaf or Justice
Najam Sethi in The Friday Times
There is no justice or “insaf” in Pakistan. That is why citizens clutched desperately at the Pakistan Tehreek-e-Insaf. There is rampant corruption and voracious greed in Pakistan. That is why citizens lent their shoulder to fashioning the Pakistan Tehreek-e-Insaf party. Every political leader in Pakistan is corrupt and incompetent and uncaring. That is why citizens put their hope and faith in Imran Khan, who was educated at Aitchison College in Lahore and Oxford University UK; who is a cricketing hero under whose captainship Pakistan won the World Cup in 1992; whose Shaukat Khanum Hospital is a beacon of light for the wretched and hopeless. Yet, the sound and fury of Imran Khan and the PTI has not signified anything that can remotely signal a serious or even sincere attempt to grapple purposefully with these real issues. The PTI is a one-man party whose leader is mercurial, autocratic, fickle, ill informed, misguided. There is no Insaf or internal democracy in it. There are corrupt lotas in it. The financial misdemeanors of its leaders, including misappropriation and misuse of party funds donated by well-wishers and supporters, cannot be brushed under the carpet. Worse, Khan’s double standards on morality are outrageous.
There is no justice or “insaf” in Pakistan. All hopes were pinned on the Lawyers Movement to restore an independent and qualified judiciary led by CJP Iftikhar Mohammad Chaudhry to fill this vacuum. Yet, nearly a decade after it was launched and after eight years of stewardship by Mr Chaudhry, that pious hope has all but faded. Mr Chaudhry’s populist suo motu notices and summons made headlines but quickly evaporated thereafter. Many of his judicial appointments politicized the judiciary and made it more controversial and less transparent or competent. In the end, the ex-chief justice has been reduced to squabbling with his benefactor Nawaz Sharif over the mundane spoils of retirement – a bullet proof vehicle, to boot – as he squats rather pathetically over a one man political party with an eminently forgettable name.
It is therefore not surprising that the cry for Insaf or Justice is still ringing loud and true. What is ironic, however, is that it is Imran Khan’s PTI that is knocking on the door of the Supreme Court, after having trashed state institutions like ECP, NAB, FBR, FIA, etc, as “worthless” and “corrupt”. It is Imran Khan’s PTI that first demanded the formation of a SC judicial commission on election rigging, then rubbished its findings when these didn’t suit it, and is now praying before the same SC to investigate the corrupt practices of Nawaz Sharif though the very state institutions like NAB, FBR and FIA that he has earlier denounced.
The SC is clearly in an unenviable position. On the one hand, it is trying to undo some of the consequences of an errant ex-chief justice, some of whose judicial appointees are facing inquiries in the Supreme Judicial Council or whose judgments have been blithely overturned (eg illegal appointments in the Islamabad High Court by an ex-chief justice who has had to resign) etc. On the other hand, it is trying to clean up the arch anti-corruption watchdog NAB that is accused of serious malpractices relating to the discretionary powers of the Chairman NAB (to adjudicate cases involving Plea Bargains or Voluntary Returns of Corruption Monies). This, while it claims to be the leading edge of the investigations demanded by Imran Khan against Nawaz Sharif. The irony is that the very chief justice of Pakistan who rejected Nawaz Sharif’s request six months ago to conduct a corruption inquiry because he felt that the inquiry law was inappropriate for the occasion is now entertaining the same petitions from the same protagonists on the same issues, and there is no discussion yet of the law or Terms Of Reference under which such an inquiry is proposed to be held.
The latest twist in this saga of Insaf-No Insaf again originates from the indefatigable Imran Khan and relates inevitably to the Sharifs. Imran has just accused Shahbaz Sharif of billions in corruption commissions though a front businessman. The self-righteous SS has retaliated by – you guessed it! – suing and bankrupting him in court. Indeed, he insists on fast tracking the court proceedings in order to get Insaf and clear his good name. But here’s the rub. The last recorded libel case that actually came to a conclusion took ten years and ended with a whimper of an apology from the wretched accuser. It is also highly doubtful that there is any judge in the country who will have the courage to deliver Insaf to anyone genuinely wronged by Imran Khan. Such is the populist clout and charisma wielded by the foremost advocate of Insaf against the very precepts of Insaf!
It is all looking rather hopeless. It seems that no state institution or political party or leader is up to the task of provisioning Insaf transparently across the board.
There is no justice or “insaf” in Pakistan. That is why citizens clutched desperately at the Pakistan Tehreek-e-Insaf. There is rampant corruption and voracious greed in Pakistan. That is why citizens lent their shoulder to fashioning the Pakistan Tehreek-e-Insaf party. Every political leader in Pakistan is corrupt and incompetent and uncaring. That is why citizens put their hope and faith in Imran Khan, who was educated at Aitchison College in Lahore and Oxford University UK; who is a cricketing hero under whose captainship Pakistan won the World Cup in 1992; whose Shaukat Khanum Hospital is a beacon of light for the wretched and hopeless. Yet, the sound and fury of Imran Khan and the PTI has not signified anything that can remotely signal a serious or even sincere attempt to grapple purposefully with these real issues. The PTI is a one-man party whose leader is mercurial, autocratic, fickle, ill informed, misguided. There is no Insaf or internal democracy in it. There are corrupt lotas in it. The financial misdemeanors of its leaders, including misappropriation and misuse of party funds donated by well-wishers and supporters, cannot be brushed under the carpet. Worse, Khan’s double standards on morality are outrageous.
There is no justice or “insaf” in Pakistan. All hopes were pinned on the Lawyers Movement to restore an independent and qualified judiciary led by CJP Iftikhar Mohammad Chaudhry to fill this vacuum. Yet, nearly a decade after it was launched and after eight years of stewardship by Mr Chaudhry, that pious hope has all but faded. Mr Chaudhry’s populist suo motu notices and summons made headlines but quickly evaporated thereafter. Many of his judicial appointments politicized the judiciary and made it more controversial and less transparent or competent. In the end, the ex-chief justice has been reduced to squabbling with his benefactor Nawaz Sharif over the mundane spoils of retirement – a bullet proof vehicle, to boot – as he squats rather pathetically over a one man political party with an eminently forgettable name.
It is therefore not surprising that the cry for Insaf or Justice is still ringing loud and true. What is ironic, however, is that it is Imran Khan’s PTI that is knocking on the door of the Supreme Court, after having trashed state institutions like ECP, NAB, FBR, FIA, etc, as “worthless” and “corrupt”. It is Imran Khan’s PTI that first demanded the formation of a SC judicial commission on election rigging, then rubbished its findings when these didn’t suit it, and is now praying before the same SC to investigate the corrupt practices of Nawaz Sharif though the very state institutions like NAB, FBR and FIA that he has earlier denounced.
The SC is clearly in an unenviable position. On the one hand, it is trying to undo some of the consequences of an errant ex-chief justice, some of whose judicial appointees are facing inquiries in the Supreme Judicial Council or whose judgments have been blithely overturned (eg illegal appointments in the Islamabad High Court by an ex-chief justice who has had to resign) etc. On the other hand, it is trying to clean up the arch anti-corruption watchdog NAB that is accused of serious malpractices relating to the discretionary powers of the Chairman NAB (to adjudicate cases involving Plea Bargains or Voluntary Returns of Corruption Monies). This, while it claims to be the leading edge of the investigations demanded by Imran Khan against Nawaz Sharif. The irony is that the very chief justice of Pakistan who rejected Nawaz Sharif’s request six months ago to conduct a corruption inquiry because he felt that the inquiry law was inappropriate for the occasion is now entertaining the same petitions from the same protagonists on the same issues, and there is no discussion yet of the law or Terms Of Reference under which such an inquiry is proposed to be held.
The latest twist in this saga of Insaf-No Insaf again originates from the indefatigable Imran Khan and relates inevitably to the Sharifs. Imran has just accused Shahbaz Sharif of billions in corruption commissions though a front businessman. The self-righteous SS has retaliated by – you guessed it! – suing and bankrupting him in court. Indeed, he insists on fast tracking the court proceedings in order to get Insaf and clear his good name. But here’s the rub. The last recorded libel case that actually came to a conclusion took ten years and ended with a whimper of an apology from the wretched accuser. It is also highly doubtful that there is any judge in the country who will have the courage to deliver Insaf to anyone genuinely wronged by Imran Khan. Such is the populist clout and charisma wielded by the foremost advocate of Insaf against the very precepts of Insaf!
It is all looking rather hopeless. It seems that no state institution or political party or leader is up to the task of provisioning Insaf transparently across the board.
Wednesday 10 August 2016
Legal aid is a national institution like the NHS, so why is it not properly funded?
John Briant in The Guardian
The media jump on high-profile cases of criminals like Ben Butler and Jennie Gray receiving huge amounts in legal aid. The real outrage is successive governments’ policy to limit access to it
Legal aid cuts have led to surge in DIY defence, says charity
It’s frustrating for a number of reasons. Of the £1.5m, approximately £300,000 went towards legal aid for criminal proceedings, and accounted for a month-long trial involving complex medical evidence for an original child cruelty and GBH trial, Gray’s case involving perverting the course of justice, and Butler’s murder trial. One would hope that in all of these cases, the legal aid lawyers were working to the best of their ability using the highest quality lawyers willing to conduct work at legal aid rates.
What is also true, is that the lawyers involved will have undertaken an immense amount of work that they weren’t paid for. Had they been privately funded, the fees would have been many multiples higher.
As a criminal practitioner of more than 20 years, I know the workloads that are undertaken daily by legal aid lawyers. In London, the going yearly salary for a duty solicitor is about £30,000 but may reach £40,000 with experience. Barristers’ chambers are paid £50 for sending a barrister to a hearing. This covers travelling time, the two hours waiting to get into court and the actual time spent representing a client in court – and the barristers will only get a cut of that money.
If you attend the police station, the firm is paid £150-£250 per case, which includes the initial attendance, plus any further bails to return to the station on other days – which might include ID parades or second or third interviews. Those who freelance at the police station are paid less than £100 per visit, which can mean a couple of hours travelling as well as up to 12 hours of waiting and advising. Police station advisers’ fees therefore range from an hourly rate of £30 down to £7 – it doesn’t vary with bank holidays or the fact that most of this advising occurs at ungodly hours of the night or weekends.
Legal aid solicitors have similar qualification periods to doctors: after completing a first degree they undergo a year of practical qualifications, then two years of on-the-job training. The qualification for barristers is a year shorter – but the cost of this in London has been estimated by the Bar Council as more than £120,000. Graduate salaries in legal aid firms are usually at the Law Society’s minimum of £18,590 pa for London. Of the respondents surveyed by Young Legal Aid Lawyers(whose membership consists of those within 10 years of qualification), 50% had salaries under £20,000 in 2013.
A well-known London plumbing firm is delighted to share its call-out rates with the public – they are “100% transparent charges and we have a clear, upfront, open and honest pricing system”. These charges range from a weekday daytime rate of £95 per hour at a minimum of one-hour call-out and 15 minute increments after this, to a 12am-7am rate of £200 per hour. Trust me – legal aid firms would kill for these rates.
Legal aid is a national institution, like the NHS. We all hope that we will never need it, that we won’t have unfounded rumours triggering a social services investigation or family proceedings; that we won’t be falsely accused of a crime. Even if we have done something wrong, or criminal or stupid, we should still have someone who understands the law fighting on our behalf to put our side of the story and explain our circumstances. This is part of what has separated us as a “civilised society”, these rights and freedoms and the privilege to be served by those who choose to sacrifice massive incomes to do relatively poorly paid legal aid work.
The unfortunate thing is that it is the abnormal cases like this (which are often the only things that allow a legal aid practice to survive the otherwise dreadful legal aid rates), and the abnormal earnings of barristers with huge experience dealing with the most serious cases and working insane hours, that get reported. Legal aid is not a vote winner; it doesn’t fall into the category of being tough on crime, and it always seems to be paid to people we like to blame – immigrants, good-for-nothings, so-called scroungers. It’s just your money being spent on someone else.
The difficulty comes when that someone else is you. Teacher, doctor, police officer, journalist, city trader, engineer, labourer, English, Scottish, white, black, depressed, addicted, sober: I have represented all of you, without judgment, to the best of my abilities, 24 hours a day for over 20 years.
Ellie Butler's grandfather: 'The devastation is complete and utter'
re
What makes me sad is this. Ellie Butler’s grandparents were not entitled to legal aid. Despite spending their life savings and working extra jobs, they could not fight for custody of their grandchild, whom they were concerned may be at risk. They couldn’t afford to pay their private legal fees and had to represent themselves and lost. This is the tragedy: not that £1.5m went on legal aid, but that Neal and Linda Gray didn’t get any help to fight for their granddaughter.
The media jump on high-profile cases of criminals like Ben Butler and Jennie Gray receiving huge amounts in legal aid. The real outrage is successive governments’ policy to limit access to it
‘Even if we have done something wrong, or criminal, or stupid, we should still have someone who understands the law fighting on our behalf.’ Photograph: Andrew Cowie/AFP/Getty Images
It is with a mixture of intense frustration and sadness that I read the reports about the amount of legal aid that Ben Butler, convicted of murdering his six-year-old daughter, and his partner Jennie Gray, guilty of child cruelty, received. The figure is quoted at approximately £1.5m over a 15-year period, with £1.2m in civil legal aid.
It is with a mixture of intense frustration and sadness that I read the reports about the amount of legal aid that Ben Butler, convicted of murdering his six-year-old daughter, and his partner Jennie Gray, guilty of child cruelty, received. The figure is quoted at approximately £1.5m over a 15-year period, with £1.2m in civil legal aid.
Legal aid cuts have led to surge in DIY defence, says charity
It’s frustrating for a number of reasons. Of the £1.5m, approximately £300,000 went towards legal aid for criminal proceedings, and accounted for a month-long trial involving complex medical evidence for an original child cruelty and GBH trial, Gray’s case involving perverting the course of justice, and Butler’s murder trial. One would hope that in all of these cases, the legal aid lawyers were working to the best of their ability using the highest quality lawyers willing to conduct work at legal aid rates.
What is also true, is that the lawyers involved will have undertaken an immense amount of work that they weren’t paid for. Had they been privately funded, the fees would have been many multiples higher.
As a criminal practitioner of more than 20 years, I know the workloads that are undertaken daily by legal aid lawyers. In London, the going yearly salary for a duty solicitor is about £30,000 but may reach £40,000 with experience. Barristers’ chambers are paid £50 for sending a barrister to a hearing. This covers travelling time, the two hours waiting to get into court and the actual time spent representing a client in court – and the barristers will only get a cut of that money.
If you attend the police station, the firm is paid £150-£250 per case, which includes the initial attendance, plus any further bails to return to the station on other days – which might include ID parades or second or third interviews. Those who freelance at the police station are paid less than £100 per visit, which can mean a couple of hours travelling as well as up to 12 hours of waiting and advising. Police station advisers’ fees therefore range from an hourly rate of £30 down to £7 – it doesn’t vary with bank holidays or the fact that most of this advising occurs at ungodly hours of the night or weekends.
Legal aid solicitors have similar qualification periods to doctors: after completing a first degree they undergo a year of practical qualifications, then two years of on-the-job training. The qualification for barristers is a year shorter – but the cost of this in London has been estimated by the Bar Council as more than £120,000. Graduate salaries in legal aid firms are usually at the Law Society’s minimum of £18,590 pa for London. Of the respondents surveyed by Young Legal Aid Lawyers(whose membership consists of those within 10 years of qualification), 50% had salaries under £20,000 in 2013.
A well-known London plumbing firm is delighted to share its call-out rates with the public – they are “100% transparent charges and we have a clear, upfront, open and honest pricing system”. These charges range from a weekday daytime rate of £95 per hour at a minimum of one-hour call-out and 15 minute increments after this, to a 12am-7am rate of £200 per hour. Trust me – legal aid firms would kill for these rates.
Legal aid is a national institution, like the NHS. We all hope that we will never need it, that we won’t have unfounded rumours triggering a social services investigation or family proceedings; that we won’t be falsely accused of a crime. Even if we have done something wrong, or criminal or stupid, we should still have someone who understands the law fighting on our behalf to put our side of the story and explain our circumstances. This is part of what has separated us as a “civilised society”, these rights and freedoms and the privilege to be served by those who choose to sacrifice massive incomes to do relatively poorly paid legal aid work.
The unfortunate thing is that it is the abnormal cases like this (which are often the only things that allow a legal aid practice to survive the otherwise dreadful legal aid rates), and the abnormal earnings of barristers with huge experience dealing with the most serious cases and working insane hours, that get reported. Legal aid is not a vote winner; it doesn’t fall into the category of being tough on crime, and it always seems to be paid to people we like to blame – immigrants, good-for-nothings, so-called scroungers. It’s just your money being spent on someone else.
The difficulty comes when that someone else is you. Teacher, doctor, police officer, journalist, city trader, engineer, labourer, English, Scottish, white, black, depressed, addicted, sober: I have represented all of you, without judgment, to the best of my abilities, 24 hours a day for over 20 years.
Ellie Butler's grandfather: 'The devastation is complete and utter'
re
What makes me sad is this. Ellie Butler’s grandparents were not entitled to legal aid. Despite spending their life savings and working extra jobs, they could not fight for custody of their grandchild, whom they were concerned may be at risk. They couldn’t afford to pay their private legal fees and had to represent themselves and lost. This is the tragedy: not that £1.5m went on legal aid, but that Neal and Linda Gray didn’t get any help to fight for their granddaughter.
Wednesday 20 April 2016
The question of forgiveness
Shiv Visvanathan in The Hindu
On May 18, standing before the House of Commons, Canadian Prime Minister Justin Trudeau will offer a full apology for the Komagata Maru incident. File Photo
Canadian leader Justin Trudeau is to tender a full apology for the Komagata Maru incident of 1914. It should trigger similar repentance elsewhere for other sins of the past.
History rarely produces moments of epiphany, where politics appears as a creative act of redemption and the future becomes a collective act of healing. Each society carries its wounds like a burden, a perpetual reminder that justice works fragmentarily. Suddenly out of the crassness, the crudity of everyday politics, comes a moment to treasure. On May 18, standing before the House of Commons, Canadian Prime Minister Justin Trudeau will offer a full apology for theKomagata Maru incident.
The drama of the ritual, the act of owning up to a wrong and voluntarily asking for forgiveness is rare in history. One immediately thinks of Willy Brandt, the West German Chancellor, kneeling down during his visit to the Warsaw Ghetto and apologising to the Jews. The act was moving. For once instead of the mere word, the body spoke in utter humility as Brandt knelt before the monument. It was a sheer act of courage, responsibility and humility, an admission of a politics gone wrong, a statement of a colossal mistake that needed redemption.
Hundred years to atonement
This movement for forgiveness is important. Forgiveness adds a different world to the idea of justice. To the standard legal idea of justice as retaliation, compensation, forgiveness adds the sense of healing, of restoration, of reconciliation. Society faces up to an act of ethical repair and attempts to heal itself. Memory becomes critical here because it is memory that keeps scars alive, and memory often waits like a phantom limb more real than the event itself.
The Komagata Maru incident is over a hundred years old. But like the Jallianwala Bagh atrocity, it is a memory that refuses to die easily. It is a journey that remains perpetually incomplete, recycled in memory as Canada would not allow the homecoming.
Komagata Maru was a ship hired by Gurdit Singh, a Hong Kong/Singapore-based Sikh businessman, a follower of the Ghadar Party, who wanted to circumvent Canadian laws of immigration. The journey of 376 Indians, 340 of them Sikhs, began from Hong Kong. They finally reached Vancouver where a new drama of attrition began. British Columbia refused to let the passengers disembark, while Indians in Canada fought a rearguard struggle of legal battles and protest meetings to delay the departure. Passengers even mounted an attack on the police showering them with lumps of coal and bricks.
The ship was forced to return to Calcutta, 19 of the passengers were killed by the British and many placed under arrest. Komagata Maru was a symbol of racism, of exclusionary laws, a protest to highlight the injustice of Canadian laws. When Mr. Trudeau apologises, he will perform an act of healing where Canada apologises not only to India but to its own citizens, many of whom are proud Sikhs. The index of change is not just the ritual apology but another small fact. The British Columbia Regiment involved in the expulsion of the Komagata Maru was commanded between 2011 and 2014 by Harjit Sajjan, now Canada’s Minister of National Defence.
Apology and forgiveness
This incident echoes the need for similar apologies, acts of dignity which can repair political rupture. Imagine the U.S. apologising to Japanese prisoners imprisoned in World War II. Imagine Japan apologising for war atrocities. Think of the U.S. apologising for Hiroshima and Nagasaki. Press even further and dream of Narendra Modi apologising to the victims of the Gujarat riots of 2002. One senses some of these dreams are remote and realises that, after nearly two years in office as Prime Minister, Mr. Modi does not have the makings of a Willy Brandt. Truth and healing are still remote to the politics of the majoritarian Bharatiya Janata Party.
The very act of apologising and forgiveness reiterates the importance of memory and the vitality of the community as a link between past, present and future. It raises the question of the responsibility for the past and its injustices. Somehow for many politicians, the past is a different country for which they have no responsibility. Australia’s Prime Minister John Howard refused to apologise to the Aborigines, contending that present generations cannot be responsible for the past. Tony Blair was ready to apologise for the mid-19th century Irish potato famine but refused to apologise for the depredations of colonial rule. One is not asking for facile or convenient apologies, one is asking for a rethinking of politics. David Cameron, in February 2013, came close to an apology for Jallianwala Bagh. More than that, I think what one needs is a British apology for the Bengal famine of the 1940s which eliminated over three million people. It is a pity that it has not received a Nuremberg or a Truth Commission. I realise apology is a mere moral act without the materiality of reparation, but apology returns to the victim and the community the acknowledgement of human worth and dignity. Without the axiomatics of dignity, no human rights project makes any sense.
One must emphasise that forgiveness and apology are not sentimental acts constructing melodramatic spaces creating what French philosopher Jacques Derrida called “the grand scenes of repentance and theatricality”. Here, as Derrida claimed, is that rare moment where the human race shaken against itself examines its own humanity. Anti-apartheid activist Desmond Tutu is even more hard-headed when he says, “In almost every language, the most difficult words are ‘I am sorry’.” Mr. Tutu adds that spurious reconciliations can only lead to spurious healing. For him forgiveness is a wager, an ethical wager on the future of a relationship. This is why the few events of apology which stand up to critical scrutiny deserve to be treasured.
India’s own chequered past
One must realise the past haunts India. Truth-telling, truth-seeking and the dignity and the courage of rituals of apology and forgiveness may do a lot to redeem the current impasses of Indian politics. Indians have not forgiven history or what they call history for its injustices. Yet, the language, the philosophy of forgiveness adds to the many dialects of democracy. I am merely listing moments of apology which could change the face of Indian politics. I am not demanding a census of atrocity but a set of ethical scripts whose political possibilities could be played out. The effort is not to provoke or score points, but to help create a deeper reflection and reflexivity about the growing impact of violence in the Indian polity.
First, I would like Narendra Modi to apologise to the Muslim community and to India for the horror of the 2002 riots. The genocide of 2002 froze Gujarat and India at a point, and the thaw can only be an ethical one demanding the humility of truth and forgiveness. A lot has been written about the unfinished nature of the 1984 riots in which over 5,000 Sikhs lost their lives. I know Manmohan Singh did offer an apology, but the Congress’s behaviour has turned this into an impotent mumbling. In the rightness of things, the Gandhi family owes an apology to the Sikhs, something it has not had the ethical courage to venture. Third, as an Indian, I think one not only has to withdraw the Armed Forces (Special Powers) Act but also apologise to the people of Kashmir and Manipur for the decades of suffering. One must request Irom Sharmila to end her 15-year-long fast demanding the withdrawal of the Act with dignity. There has been enough violence here, and it is time that we as a nation think beyond the egotism and brittleness of the national security state.
Each reader can add to the list and to the possibilities of a new ethical and moral politics which requires a Gandhian inventiveness of ritual and politics. What I wish to add is a caveat. The rituals of apology and the question of justice, reconciliation and ethical repair are not easy. They require a rigour and an inventiveness of ethical thinking which necessitate new experiments with the idea of truth and healing in India.
Mr. Tutu makes this point beautifully and wisely. He talks of the man known as the Nazi hunter, Simon Wiesenthal. In his book, The Sunflower: On the Possibilities and Limits of Forgiveness, Wiesenthal spoke of a Nazi soldier who had burnt a group of Jews to death. As the Nazi lay dying in his deathbed, he confessed and asked for absolution from Wiesenthal. Wiesenthal found he could not forgive him. In the end, he asks the reader, “What would you have done?” — and The Sunflower is an anthropology of various responses.
We need an equivalence of The Sunflower experiment to ask Kashmiri Pandits, Kashmiri Muslims, Manipuris, Dalits, tribals, women what it would take for forgiveness after an act of atrocity. In fact, each one of us is a potential citizen, as perpetrator, spectator and victim, in that anthology. Is forgiveness and healing possible in the history of our lives? Democracy needs to think out the answers.
On May 18, standing before the House of Commons, Canadian Prime Minister Justin Trudeau will offer a full apology for the Komagata Maru incident. File Photo
Canadian leader Justin Trudeau is to tender a full apology for the Komagata Maru incident of 1914. It should trigger similar repentance elsewhere for other sins of the past.
History rarely produces moments of epiphany, where politics appears as a creative act of redemption and the future becomes a collective act of healing. Each society carries its wounds like a burden, a perpetual reminder that justice works fragmentarily. Suddenly out of the crassness, the crudity of everyday politics, comes a moment to treasure. On May 18, standing before the House of Commons, Canadian Prime Minister Justin Trudeau will offer a full apology for theKomagata Maru incident.
The drama of the ritual, the act of owning up to a wrong and voluntarily asking for forgiveness is rare in history. One immediately thinks of Willy Brandt, the West German Chancellor, kneeling down during his visit to the Warsaw Ghetto and apologising to the Jews. The act was moving. For once instead of the mere word, the body spoke in utter humility as Brandt knelt before the monument. It was a sheer act of courage, responsibility and humility, an admission of a politics gone wrong, a statement of a colossal mistake that needed redemption.
Hundred years to atonement
This movement for forgiveness is important. Forgiveness adds a different world to the idea of justice. To the standard legal idea of justice as retaliation, compensation, forgiveness adds the sense of healing, of restoration, of reconciliation. Society faces up to an act of ethical repair and attempts to heal itself. Memory becomes critical here because it is memory that keeps scars alive, and memory often waits like a phantom limb more real than the event itself.
The Komagata Maru incident is over a hundred years old. But like the Jallianwala Bagh atrocity, it is a memory that refuses to die easily. It is a journey that remains perpetually incomplete, recycled in memory as Canada would not allow the homecoming.
Komagata Maru was a ship hired by Gurdit Singh, a Hong Kong/Singapore-based Sikh businessman, a follower of the Ghadar Party, who wanted to circumvent Canadian laws of immigration. The journey of 376 Indians, 340 of them Sikhs, began from Hong Kong. They finally reached Vancouver where a new drama of attrition began. British Columbia refused to let the passengers disembark, while Indians in Canada fought a rearguard struggle of legal battles and protest meetings to delay the departure. Passengers even mounted an attack on the police showering them with lumps of coal and bricks.
The ship was forced to return to Calcutta, 19 of the passengers were killed by the British and many placed under arrest. Komagata Maru was a symbol of racism, of exclusionary laws, a protest to highlight the injustice of Canadian laws. When Mr. Trudeau apologises, he will perform an act of healing where Canada apologises not only to India but to its own citizens, many of whom are proud Sikhs. The index of change is not just the ritual apology but another small fact. The British Columbia Regiment involved in the expulsion of the Komagata Maru was commanded between 2011 and 2014 by Harjit Sajjan, now Canada’s Minister of National Defence.
Apology and forgiveness
This incident echoes the need for similar apologies, acts of dignity which can repair political rupture. Imagine the U.S. apologising to Japanese prisoners imprisoned in World War II. Imagine Japan apologising for war atrocities. Think of the U.S. apologising for Hiroshima and Nagasaki. Press even further and dream of Narendra Modi apologising to the victims of the Gujarat riots of 2002. One senses some of these dreams are remote and realises that, after nearly two years in office as Prime Minister, Mr. Modi does not have the makings of a Willy Brandt. Truth and healing are still remote to the politics of the majoritarian Bharatiya Janata Party.
The very act of apologising and forgiveness reiterates the importance of memory and the vitality of the community as a link between past, present and future. It raises the question of the responsibility for the past and its injustices. Somehow for many politicians, the past is a different country for which they have no responsibility. Australia’s Prime Minister John Howard refused to apologise to the Aborigines, contending that present generations cannot be responsible for the past. Tony Blair was ready to apologise for the mid-19th century Irish potato famine but refused to apologise for the depredations of colonial rule. One is not asking for facile or convenient apologies, one is asking for a rethinking of politics. David Cameron, in February 2013, came close to an apology for Jallianwala Bagh. More than that, I think what one needs is a British apology for the Bengal famine of the 1940s which eliminated over three million people. It is a pity that it has not received a Nuremberg or a Truth Commission. I realise apology is a mere moral act without the materiality of reparation, but apology returns to the victim and the community the acknowledgement of human worth and dignity. Without the axiomatics of dignity, no human rights project makes any sense.
One must emphasise that forgiveness and apology are not sentimental acts constructing melodramatic spaces creating what French philosopher Jacques Derrida called “the grand scenes of repentance and theatricality”. Here, as Derrida claimed, is that rare moment where the human race shaken against itself examines its own humanity. Anti-apartheid activist Desmond Tutu is even more hard-headed when he says, “In almost every language, the most difficult words are ‘I am sorry’.” Mr. Tutu adds that spurious reconciliations can only lead to spurious healing. For him forgiveness is a wager, an ethical wager on the future of a relationship. This is why the few events of apology which stand up to critical scrutiny deserve to be treasured.
India’s own chequered past
One must realise the past haunts India. Truth-telling, truth-seeking and the dignity and the courage of rituals of apology and forgiveness may do a lot to redeem the current impasses of Indian politics. Indians have not forgiven history or what they call history for its injustices. Yet, the language, the philosophy of forgiveness adds to the many dialects of democracy. I am merely listing moments of apology which could change the face of Indian politics. I am not demanding a census of atrocity but a set of ethical scripts whose political possibilities could be played out. The effort is not to provoke or score points, but to help create a deeper reflection and reflexivity about the growing impact of violence in the Indian polity.
First, I would like Narendra Modi to apologise to the Muslim community and to India for the horror of the 2002 riots. The genocide of 2002 froze Gujarat and India at a point, and the thaw can only be an ethical one demanding the humility of truth and forgiveness. A lot has been written about the unfinished nature of the 1984 riots in which over 5,000 Sikhs lost their lives. I know Manmohan Singh did offer an apology, but the Congress’s behaviour has turned this into an impotent mumbling. In the rightness of things, the Gandhi family owes an apology to the Sikhs, something it has not had the ethical courage to venture. Third, as an Indian, I think one not only has to withdraw the Armed Forces (Special Powers) Act but also apologise to the people of Kashmir and Manipur for the decades of suffering. One must request Irom Sharmila to end her 15-year-long fast demanding the withdrawal of the Act with dignity. There has been enough violence here, and it is time that we as a nation think beyond the egotism and brittleness of the national security state.
Each reader can add to the list and to the possibilities of a new ethical and moral politics which requires a Gandhian inventiveness of ritual and politics. What I wish to add is a caveat. The rituals of apology and the question of justice, reconciliation and ethical repair are not easy. They require a rigour and an inventiveness of ethical thinking which necessitate new experiments with the idea of truth and healing in India.
Mr. Tutu makes this point beautifully and wisely. He talks of the man known as the Nazi hunter, Simon Wiesenthal. In his book, The Sunflower: On the Possibilities and Limits of Forgiveness, Wiesenthal spoke of a Nazi soldier who had burnt a group of Jews to death. As the Nazi lay dying in his deathbed, he confessed and asked for absolution from Wiesenthal. Wiesenthal found he could not forgive him. In the end, he asks the reader, “What would you have done?” — and The Sunflower is an anthropology of various responses.
We need an equivalence of The Sunflower experiment to ask Kashmiri Pandits, Kashmiri Muslims, Manipuris, Dalits, tribals, women what it would take for forgiveness after an act of atrocity. In fact, each one of us is a potential citizen, as perpetrator, spectator and victim, in that anthology. Is forgiveness and healing possible in the history of our lives? Democracy needs to think out the answers.
Sunday 21 December 2014
Tribunal fees deter four out of five employees pursuing claims
The charity has found that nearly half of workers with employment issues would have to save for six months in order to afford employment tribunal fees, which in some cases can reach £1,200.
Citizens Advice has called on the Government to align tribunal fees with county court charges in order to widen access. It has also asked for greater promotion of available financial support, and more research to assess what measures could be taken to protect employers without deterring legitimate claims.
Employment tribunal fees were introduced by the Government in July 2013, aiming to transfer the £74m cost of running tribunals and the Employment Appeal Tribunal from the taxpayer to those using the system. Fees range from £160 to £250 to issue a claim, and £230 to £950 for a tribunal.
Before the fees were introduced, Employment Tribunals (ETs) received an average of 48,000 new claims per quarter. However the most recent ET figures for July to September 2014 show that this had dropped to 13,612 new claims.
Last week the trade union Unison, which wants to abolish the fees, lost a second bid to have the fees legally reviewed. Despite the dismissal, the Court of Appeal has granted Unison permission to appeal the decision.
Employment barrister, Harini Iyengar
The Citizens Advice survey found that the fees made more than four out of five workers less likely to claim, or deterred them from claiming at all. Over four in 10 of those with employment troubles had a household income of less than £46 a week after essential bills, highlighting the gulf between the high fees and working wages.
Only three in 10 were aware that financial support is available for those on low incomes. Half of those surveyed believed that they were not eligible for support when in fact they qualified.
Gillian Guy, chief executive of Citizens Advice, said: "The employment tribunal system is imbalanced against claimants. Fees are pricing people out of basic workplace rights and a justice system that is supposed to protect them.
"The Government needs to take an urgent look again at how the fee system benefits those workers who feel the prices are a barrier to justice."
Labour has promised to abolish the fees, and reform the employment tribunal system if the party is elected. Sadiq Khan, Labour's shadow Justice Secretary, said: "At a time when people need support and legal advice more than ever, the Government has slashed legal aid, leaving thousands of people adrift without any support whatsoever … This policy has denied justice to thousands of people, yet all it does is displace costs on to other branches of government. It's a short-sighted policy that has far-reaching and negative ramifications."
Sadiq Khan, Labour’s shadow Justice Secretary; Labour has promised to abolish the fees, and reform the employment tribunal system if the party is elected (AP)
Damian Brown QC, a sports and employment lawyer and former chair of the Employment Law Bar Association, said: "Most of the profession believes access to justice should be free … Most businesses have insurance or the opportunity to join an employer's federation for a small fee, so the idea of tribunal fees being a protection against frivolous claims is not a significant problem."
Harini Iyengar, a barrister who specialises in employment and discrimination law, said: "The drop we've seen in employment tribunal cases has been extremely striking; I've not seen anything like it in 15 years of practice … It is important in a democratic country we respect working people and tribunals are essential for the British economy and to a vibrant working community."
Justice Minister Shailesh Vara defended the fees saying: "Small businesses can be hamstrung by unfounded employment tribunal claims and taxpayers should not have to pick up the £74m bill for running the service. We've made sure fee waivers are available for those who can't afford to pay, as well as diverting people away from potentially acrimonious hearings, where possible, through a new early conciliation scheme which has already been used by 37,000 people in its first six months."
Tuesday 9 December 2014
Anni Dewani has been failed by South Africa
She died alone and terrified in one of the bleakest parts of the country, and after the collapse of Shrien Dewani’s trial her family still has no answers
Anni Dewani, a young woman shot dead in Cape Town, has haunted South Africa for four years. After the collapse of the trial of her husband, Shrien Dewani, accused of masterminding her murder, she will continue to do so. Not only because she was young, beautiful and just married; not only because her heartbroken, desperate parents have been taken into so many South African hearts; but also because the country, its police force and its justice system failed her so completely.
Anni and Shrien honeymooned in South Africa after an extravagant wedding in India in 2010. After going on safari they came to Cape Town and, on Saturday 13 November, went out for dinner. On their return their taxi was hijacked. The taxi driver, Zolo Tongo, and Shrien claimed they were forced out of the car and that the hijackers drove off with Anni. Her body was found in the abandoned vehicle at dawn the next day. She had been shot at close range in the neck.
Shrien was apparently a victim of the criminal violence that plagues South Africa. The police, goaded as they were by the press frenzy, were under huge pressure to find the killers because hijacking and murder are so commonplace, but there were anomalies from the start. Gugulethu, where the hijacking occurred, is notorious for its murder rate. Why would Tongo take them there at night? Shrien, allegedly forced through a window, did not have a scratch on him, and neither did Tongo.
Whispers of disbelief quickly began to swirl. Shrien looked less and less innocent as detectives and journalists picked apart the sequence of events described, and the statements he had made. The police, however, allowed him to return to England before the inconsistent aspects of the case – and his possible involvement in his wife’s murder – were properly investigated.
Tongo was soon arrested. He pleaded guilty to being party to the murder but, in return for a reduction of sentence, said he would tell the truth and claimed that Shrien had asked him to organise the killing. The hitmen, Mziwamadoda Qwabe and Xolile Mngeni, were subsequently arrested, tried and jailed. Monde Mbolombo, the receptionist at the luxury Cape Grace hotel where the Dewanis were staying, said that he had put Tongo in contact with the hitmen. In exchange for immunity from prosecution – now under review due to the case collapsing – he agreed to testify against Shrien.
The idea of hiring people to commit murder is not that shocking in South Africa. Firearms are cheap and easy to find, as are hitmen. In 2006 a young woman, Dina Rodrigues, went to a taxi rank in Cape Town and hired four strangers to murder the baby daughter of her boyfriend’s ex-girlfriend. She paid a similar amount to that which Tongo claimed Shrien paid.
It is notable that Anni’s murder took place just four months after South Africa had successfully hosted the football World Cup, when the country was under intense scrutiny because of its record of violent crime. This coloured the investigation from the start.
The then-commissioner of police, Bheki Cele, is reported to have said: “A monkey came all the way from London to have his wife murdered here. Shrien thought we South Africans were stupid.” There seemed to be a great sense of relief that responsibility for this awful murder, a public relations disaster for South Africa, lay elsewhere.
Shrien was charged and four years later returned to stand trial. Everyone seemed to have a view on his innocence or guilt. It was revealed early on that perfect wedding photographs masked Anni’s doubts about marrying Shrien. There were sensational revelations about Shrien’s bisexuality and his involvement, both online and offline, in sadomasochistic sex with male prostitutes. “At last,” people thought, “a clear motive!”
Shrien’s sexual orientation and sexual practices clearly indicated a double life. But when put forward by the lacklustre prosecution as the reason for the murder, the judge, Janet Traverso, ruled this testimony irrelevant and the state’s case unravelled rapidly. This may not have been a popular move, but prejudice about a gay lifestyle should not subvert the need for hard evidence.
During the trial it became apparent that the investigation had been botched, and that much of the police work had been shockingly incompetent: lost paperwork, incomplete statements and unreliable ballistics reports.
Traverso chastised the National Prosecuting Authority. “You have had four years to prepare,” she told them when she dismissed the case. The evidence of the main witnesses was “riddled with contradictions” and fell “far below the threshold” of what a reasonable court could convict on.
Anni’s family, the Hindochas, have said that they – and by implication Anni – have been failed by South Africa’s justice system. They are right. Their daughter came here on her honeymoon and died alone and terrified in one of the bleakest parts of the country. Her grieving relatives have sought answers, as have South Africans.
In a country with such high levels of violence, there are so many who have failed to receive a robust investigation followed by the satisfaction of justice. As the Hindochas stood tearfully outside the courtroom after the verdict, there would have been so many South Africans sharing the family’s anguish at not knowing how or why a loved one died.
Sunday 17 August 2014
Priced out of court: why workers can't fight employment tribunals
Last year, the government introduced fees of up to £1,200 to end frivolous claims. But are people with legitimate complaints now unable to get justice? We listened in to cases to find out
Many potentially successful claimants are being put off by fees. Photograph: Getty Images/Image Source
In Court 9 at the East London employment tribunal, a judge begins hearing a case to determine whether a senior member of teaching staff at Epping Forest College was the victim of age discrimination when she was made redundant last year. She was 61 when she lost her job.
"She will say that her job was rebranded and given to a 27-year-old," her lawyer tells the court. Everyone in the team she led was also made redundant; all of them were over 50, he says. "She was dismissed, as was her team, in order to make way for younger and cheaper people." He tells the judge that a third of the 31 redundancies made by the college were people over 60. A lawyer for the college gets up to argue that age had nothing to do with the decision. "Restructuring was carried out in the interest of economy and efficiency."
In another court, a judge deliberates on whether a pharmacist was unfairly sacked shortly after she told her employers that she was pregnant. In Court 5 lawyers are discussing whether disability discrimination was a factor in a large multinational firm's decision to sack a senior staff member who had been unwell. In Court 3, lawyers for an administrator at Barts Health NHS Trust are considering whether she was unfairly dismissed, the victim of bullying, or whether she was rightly disciplined for gross misconduct.
The tribunal offices are packed with anxious claimants in one waiting room and their irritated ex-employers gathered a safe distance away in another. There are eight judges deliberating cases in stark white hearing rooms around a maze-like corridor, but research suggests that this employment court may soon be much less busy. Fewer and fewer people are taking their employers to tribunal, in the wake of a government decision last year to introduce fees of up to £1,200 for claimants to pay for tribunal hearings. A recent TUC report shows that there has been a 79% fall in overall claims taken to employment tribunals, with women and low-paid workers the worst affected.
Their analysis of government figures shows there has been an 80% fall in the number of women pursuing sex discrimination claims since fees were introduced, with just 1,222 women taking out claims between January and March 2014 compared with 6,017 over the same period in 2013. The number of women taking pregnancy-discrimination claims fell by 26%. Race discrimination cases have dropped by 60% over that period, while disability claims have fallen by 46%. There has been a 70% drop in workers pursuing claims for non-payment of the national minimum wage and an 85% drop in claims for unpaid wages and holiday pay.
Similar trends have been highlighted by Citizens Advice, which reported that seven in 10 potentially successful cases are now not being pursued by employees, with over half of those interviewed saying the fees or the costs were deterring them. Chief executive Gillian Guy has called on the government to review its policy on tribunal fees. "Employers are getting away with unlawful sackings and withholding wages. People with strong employment claims are immediately defeated by high costs and fees," she said. "The risk of not being paid, even if successful, means for many the employment tribunal is just not an option. The cost of a case can sometimes be more than the award achieved and people can't afford to fight on principle any more."
Researchers at the universities of Bristol and Strathclyde have also studied the consequences of the introduction of fees and concluded that they have "severely limited access to justice for workers".
Some of the claimants pursuing cases today launched their actions before the fees were introduced and would not have gone ahead if they had been obliged to find £1,200 in fees.
Demetrious Panton, an employment lawyer with Artesian Law, representing the NHS administrator who believes she was wrongfully dismissed, said his client would not have been able to afford to take the case if she had had to pay such a fee. "Her wages would have been around £1,500 a month. If she was going to be charged £1,200, I don't think she would have put the claim in. We are seeing more and more people nervous about putting their claims in because of the fees. We are seeing a fall in the number of claimants coming forward," he said.
"The idea was that the fees would put off vexatious claims – I've never come across those anyway," he said.
He spends the afternoon cross-examining a senior NHS manager. "It was clear that there had been a breakdown between the claimant and the rest of the team. It was clear that she was unhappy about the way other staff members were sending her to Coventry. We know that the claimant was going through considerable stress in her personal life," he tells the judge, attempting to give background information that might explain why his client had sworn at her colleagues, one of a numbers of incidents that led to her being disciplined and later being dismissed for gross misconduct. In any case, the claimant disputes whether she swore in the way her employers have alleged.
The government has promised to review the impact of the introduction of fees, although no date for the review to go ahead has yet been announced. A Ministry of Justice spokesperson said: "It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution. For those who cannot afford to pay, full fee waivers are available."
But the Bristol and Strathclyde university researchers say the system is complex and claimants have found it hard to establish whether they are eligible.
Anthony Martin, 56, had to abandon his plan to take his employers to court after he was sacked, he believes unfairly, from the company that employed him as a driver in Glasgow last April, because he felt unable to risk the costs. He was accused of denting two vehicles, and not admitting the damage, but he argues that the vehicles were dented by other employees and he did not report the damage because he saw no need to, since he assumed it was historic. He consulted advisers at Citizens Advice in Glasgow, who tried to help him determine whether he was eligible for the fees to be waived, but because it proved difficult to get the correct forms together, he missed the application deadline, and was faced with the choice of either finding the fees or abandoning the case.
"I wanted my job back; it was a good job. But I also wanted to prove them wrong because they were accusing me of something I didn't do. I knew I didn't do it. I was absolutely raging about it. I wasn't in it for the money – it was that they got away with sacking me for something that I didn't do."
He had got into debt anyway in the weeks following his dismissal, so paying the fees was simply unthinkable. "It's not fair to make the employee pay. On the wages I was getting, about £300 a week, the fees would have been a month's wages. It's not affordable. There was no way that we could have done it."
Emma Satyamurti, an employment solicitor with Leigh Day, said she had seen a number of claimants "under-settling" their cases before their cases, because they were unable to find the fees.
"For many types of employment claim the remedy being sought by the claimant will not be large sums of money. For such clients, the fees are particularly prohibitive since they are disproportionate to the potential benefits to be gained by bringing the claim. The fee remission system (whereby claimants with low enough 'household' capital and income can get all or part of any fee waived) does not in our experience adequately remove the deterrent effect of fees, as only a small minority of potential claimants are eligible, and the remission system itself is difficult to navigate if people are trying to deal with it themselves," she said.
As part of the reform to the system, employees and employees must take part in a free "early conciliation" process, overseen by the independent conciliation service Acas to see if legal proceedings can be averted. But some employment lawyers argue that the introduction of fees reduces the incentive for employers to agree to early settlements. "They may wait to see if the claimants put their money where their mouth is, and actually pay the fees to take forward legal proceedings or not. The employer doesn't have as much incentive to engage in settlement at that point. They may well feel, if we hold on long enough the claimant may have to give up and go away," Satyamurti said.
The sharp fall in the number of women taking cases has caused particular concern. Rosalind Bragg, director of Maternity Action, a charity that supports pregnant women, said: "We regularly hear from callers to our advice line that the cost of pursuing an employment tribunal claim is out of their budget.
"Research from 2005 found that only 3% of women who lose their job as a result of pregnancy discrimination took their case to tribunal. The introduction of employment tribunal fees has massively reduced this already very small proportion of women who pursue a claim."
Rebecca Raven, 34, is one of the few people who has successfully taken action, after she was dismissed from her position as an art teacher, days after telling the head that she was pregnant. She was awarded £33,923.27 in compensation, but has never received the money from the private school, Howell's in North Wales, where she had worked for three years. The school has gone into liquidation.
She was told by the school's trustees that she was being "selfish" to ask for maternity leave, since this would mean that funding for other parts of the school would have to be cut back.
She doesn't believe that people willingly pursue "vexatious claims". "No one wants to go through a process like that. It is the most awful process; there is a horrendous amount of paperwork, and somehow you are made to feel that you are the one at fault," she says.
She would not have been able to pursue the case if she had needed to pay £1,200 in court fees. "Financially, everything we had to rely on had gone when I lost my job. We were struggling to buy food every week." Her family helped her to get through that period, but she says there is no way she could have asked them to pay the fees.
"When you're pregnant, you need to start putting money aside for the baby. I wouldn't even have contemplated spending £1,200 on a court case."
If claimants win under the new system, the tribunal will ask the employer to pay the fees as part of the compensation, but as Raven has experienced, it isn't always easy to get the money, even when it has been awarded.
She is angry about the introduction of fees because she believes it will mean that employers will get away with wrongfully dismissing staff.
"I think that the introduction of fees means that the very few people who were ever going to take their employer to tribunal will no longer be able to, and the figures were very low anyway. It has priced them out of justice. There is no way that most pregnant women can afford to take their employer to court – it's the most expensive part of their life. An awful lot of employers are going to get away with it over and over again because no one is able to bring them to justice.
"If I hadn't gone ahead with my case, they wouldn't have learned any lessons, and they would have done it again, and instead of just making my life a misery they would have done it to other people."
Monday 28 April 2014
The Law of Unintended Consequences - How well-intentioned laws, courts cripple growth in India
S A Aiyar in Times of India
A key reason why India’s economic growth has halved from 9% to 4.5% per year is that, in search of inclusive growth, the courts and legislatures have increasingly made legitimate business difficult. It now takes 12 years to open a new coal mine. This is not inclusive growth but paralysis and stagnation.
The new land acquisition law aims at quick, fair acquisition . But the secretary of the department of industrial policy and production says the Act has made it “virtually impossible” to acquire land for roads, ports or other infrastructure. Higher compensation provided in the new law is welcome, but it also mandates a social impact assessment for each project, followed by expert group clearance, followed by an 80% vote of affected persons. Legal challenges are possible at each stage. Instead of quick, fair acquisition, we have dither and delay.
India has become a major global player in clinical trials for new drugs. But complaints have arisen against malpractices by some companies — not informing patients of the risks, not giving insurance cover or compensation, negligence leading to deaths. The obvious answer is to prosecute and jail the guilty, deterring further misdeeds.
But in India the courts take forever to conclude cases, so misdeeds are not deterred. Instead of focusing on quick justice, the Supreme Court has decreed lengthy new procedures for clinical trials, causing huge delays and costs for legitimate activity.
The Serum Institute of India, a top global vaccines producer , has suffered delays of over a year in clearance for Phase 3 trials of a rotavirus vaccine. So, it is shifting clinical trials to other Asian countries for this, and for a dengue vaccine too.
Lupin Pharmaceuticals, a top drug company, has a research park in Pune. But delays in clearances have forced it to shift clinical trials to Europe and Japan, despite much higher costs there. If Lupin’s procedures are good enough for Europe and Japan, they should be good enough for India. But our courts are under the illusion that good practices are created by a jungle of rules. Sorry, they are actually created by swift punishment that deters the guilty. That’s why clinical trials suffer from fewer malpractices in Europe or Japan.
The Supreme Court should focus on speedy convictions, not ever more regulations.
Despite having the world’s third biggest reserves of iron ore and coal, India has begun importing both. The courts have banned iron mining in some states, and court inquiries into corrupt coal block allocations have frozen fresh mining. Now, illegal mining surely should be stopped. But the right way is to nail the guilty, not stop all legitimate activity. No illegal miners have been convicted beyond appeals, but many legitimate miners have suffered huge losses.
Illegal sand mining is rampant. Sand is essential for making concrete for construction. But the courts have passed increasingly stringent rules, curbing mining from river beds on environmental grounds. This has created a huge shortage of sand, which in some states sells at Rs 1,800/tonne, more than the price of coal some years ago. Cowed by court strictures and threats of prosecution, many Collectors are playing safe by simply not issuing new sand licences or renewing old ones that expire. Faced with public outrage over illegal mining, the Green Tribunal has mandated environmental clearance (and hence delays) for even the smallest patches of sand. Will this check illegal activity? No, but it will reduce legal mining, making India even more dependent on the sand mafia for supplies.
These examples are just the tip of the iceberg. Our courts are not designed for making policy: they are designed to judge whether actions are in accordance with the law. They are not experts in the essentially political function of balancing the needs of production and social protection.
Politicians are accountable to voters for bad policies, like those on land acquisition. But the courts are accountable to nobody for causing administrative paralysis, bankrupting honest companies , or increasing poverty by checking economic growth.
That’s why court activism should be limited to extreme cases where governments are so corrupt that intervention is essential. There’s an old judicial saying that it’s better to let many crooks go free than jail an innocent man. Yet much judicial activism penalizes innocent entrepreneurs and bureaucrats.
Misgovernance in India is not just the result of crooked politicians and businessmen. It is also the result of wellintentioned but badly designed laws. Above all, it is the result of a dysfunctional police-judicial system. Unending legal delays encourage law-breakers in every walk of life. The solution is not policy takeover by the courts, but quick justice.
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