Wrongful detentions, judges’ quotas in the search for illegals in…

2019/07/27 Leave a comment

Appears to be an ongoing issue, likely to continue under the current Indian government:

Three years ago, police in India’s northeastern state of Assam were looking for a woman named Madhumala Das, who had been declared an illegal immigrant by a local tribunal.

When they reached the village of Bishnupur, they picked up 59-year-old Madhubala Mandal, who was lighting a fire outside her bamboo hut one morning in November 2016.

Mandal, a frail, Bengali-speaking woman who is just over four feet tall, spent over two-and-a-half years in a detention center until she was freed last month following a probe conducted by a new police chief in the area.

In a recent interview in her hut, Mandal said she told the police she was not the person they were looking for, that she was Indian and had documents to prove it. But they did not listen.

Local activists and lawyers say such cases are not uncommon in Assam, where a long-simmering movement against illegal immigrants, particularly Bengali-speaking Muslims, has been fanned by Prime Minister Narendra Modi’s Hindu nationalist government. His ruling Bharatiya Janata Party (BJP) also governs Assam.

BJP’s campaign against people deemed to be foreigners from Muslim-majority and Bengali-speaking Bangladesh, even if they have lived in India for decades, or were born in India but can’t prove it, is about to reach boiling point.

At the end of next month, Assam plans to publish the final version of a register of citizens it has been preparing since 2015. Hundreds of thousands – perhaps millions – are likely to be left off the list – meaning they will have to prove their citizenship, or risk detention like Mandal.

This is unlikely to lead to immediate mass arrests because detention centers are full, and Bangladesh has not agreed to accept the people identified as “foreigners”.

But being a non-citizen carries many penalties, including loss of access to government payments, voting rights, healthcare and state education. People could be quickly marginalized.

And this isn’t only an Assam issue.

Last week, Modi’s top lieutenant, Home (Interior) Minister Amit Shah, who has described Assam’s illegal immigrants as “termites”, said the government intends to go nationwide in identifying and deporting those who don’t have the right to stay.

At the same time, the government has been welcoming Hindu, Sikh and Buddhist migrants, making Muslims feel targeted. Shah said this month that the government wanted to “stop infiltration and push every single infiltrator out of the country”, but would welcome Hindu refugees.

WORSE THAN CONVICTS

When she was arrested, Mandal, a Hindu, was taken to a detention center in the town of Kokrajhar, in western Assam.

A group from India’s National Human Rights Commission that visited that center last year said illegal immigrant detainees there were in some ways “deprived even of the rights of convicted prisoners”.

U.N. experts warned in a statement this month that the citizenship drive in Assam risked rendering millions stateless or in prolonged detention, and that the process “could fuel religious discrimination”, adding that the legal system was discriminative and arbitrary.

The office of the chief minister, the highest elected official in Assam, did not respond to questions sent by Reuters on this story.

Ajoy Rai, a local activist who worked with police to secure Mandal’s release, said there may be many more wrongly detained people in the state.

“Most people are not literate and don’t understand what the documents they have even mean,” he said. “When there are floods or a fire, people lose the documents too.”

Assam, one of India’s poorest states, is ravaged by floods annually, displacing millions, with this year no exception.

Rights activists and lawyers say Assam’s system of ‘foreigners tribunals’, detention centers and its ‘border police’ – a unit in charge of checking illegal immigration – is biased against the poor and against Bengali speakers, who are deemed to be from Bangladesh.

Bengali is the second-most widely spoken language in India, after Hindi. The official language in Assam is Assamese.

A review of orders issued in recent years by Assam’s tribunals – quasi-judicial bodies set up for illegal immigration cases – shows many people of Bengali descent have been declared foreigners because of discrepancies in their names and other details on identity documents.

The tribunal judges’ performance itself, which is evaluated by the government, appears to be at least partly based on the percentage of the people they declare as foreigners, according to their appraisal sheets. Reuters reviewed copies of the appraisal sheets of judges in 79 of Assam’s roughly 100 tribunals.

The documents, which evaluate the judges’ performance over two years until April 30, 2017, show that a majority of judges who declared less than 10 percent of all the people they examined as foreigners got a rating of “may be terminated.”

Despite criticism of the process, Assam is working on setting up some 200 more foreigner tribunals by Sept. 1, growing to around 1,000 eventually, as it scrambles to prepare for the aftermath of the publication of the final register on Aug. 31. Around 245,000 cases are pending at the tribunals, and scores more are likely to be added after the final list is published.

The government has also lowered the eligibility criteria for the post of judges, allowing retired bureaucrats and lawyers with seven years of experience to apply – as opposed to 10 years required earlier.

“It is obvious that these appointments lack judicial independence or adequate separation from the executive, and the judges are being appointed for tribunals with indications that they should lean in favor of declaring people foreigners,” said Sanjay Hegde, a senior Supreme Court lawyer in New Delhi.

There is room for appeal against a tribunal decision through the high court in Guwahati, Assam’s main city, But that court is swamped with some two dozen new cases of illegal immigration each week, said Hafiz Rashid Ahmed Chaudhry, a senior lawyer in Guwahati.

Santanu Bharali, legal adviser to Assam’s chief minister, dismissed criticism that the tribunals were biased or had targets to declare people as foreigners. He said the judges relied on documents submitted as proof of citizenship and the tribunals’ decisions could be appealed.

“CREATE ONE WHOLE TOWN”

Assam is far from ready to deal with the situation if hundreds of thousands of residents are declared illegal.

The six detention centers there are already overcrowded, said Bharali. They held 1,133 illegal immigrants as of May 25, 2019, the government said earlier this month.

Kula Saikia, the chief of police in Assam, told Reuters there was no clarity on what would be done with those who don’t make it onto the citizenship register. He and other officials say they are awaiting orders from India’s Supreme Court, which is supervising the process.

“It’s impossible” to detain hundreds of thousands of more people, said Bharali. “We will have to create one whole town for these people.”

Local activists say the fear of being declared an illegal immigrant has driven at least 25 people to suicide since a draft citizenship list was drawn up in July 2018. Reuters could not independently verify the claims, and the police have refrained from linking the suicide cases to the citizenship verification process.

In the case of Madhumala Das, she was first declared a foreigner by a tribunal in 1988, and a fresh order was passed in June 2016 that led to Mandal’s arrest.

Police said the mistake occurred as there were three women with similar names in Mandal’s village.

“They had to follow the tribunal’s orders and find the person,” said a senior officer at the police station near Mandal’s home.

Madhumala Das had died more than a decade earlier. The border police did not know.

Source: Wrongful detentions, judges’ quotas in the search for illegals in…

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C-24 Citizenship Act Hearing – 14 May

2014/05/15 3 Comments

The abrupt end to Monday’s hearing was apparently caused by the Government’s not wanting to give the floor to Don Chapman on Lost Canadian issues. Not clear whether the other two speakers will be invited back. See Government muzzles expert witnesses on major citizenship bill.

Testimony at Wednesday’s meeting also ended early given in camera discussion of a NDP motion to extend hearings by three hours to hear more witnesses.

This hearing was largely dominated by witnesses supporting the Government to greater or lesser degrees.

Bal Gupta, Air India 182 Victims Families Association (no website) talked poignantly about his personal loss and those of the other families in the Air India terrorist attack. He supports the provision that provides one year’s credit towards citizenship for those serving in the Canadian Forces (but the Canadian Forces website states that one already has to be a Canadian citizen in order to apply – see here). He also supports the revocation provisions, particularly those on national security or treason grounds, as such crimes demonstrate “no loyalty to the Canadian democratic system” and there is a need to deter those who wish to take up citizenship “of convenience” to further their terror or criminal objectives. He noted CSIS evidence of dozens of Canadians travelling abroad for terrorism and that he hoped these provisions would “help free Canadians from terrorism.”

Salma Siddiqui, Coalition of Progressive Canadian Muslim Organizations (no website, press release Launch of Coalition for Progressive Canadian Muslim Organizations), noted her immigrant background and how her families struggles and success were a shared experience of many immigrants to Canada. Canada needed immigrants not only to contribute to the economy but the broader development of the country. The coalition supports the increased residency and physical presence requirements as there have “unfortunately been far too many examples in the past of abuse.” Supporting the requirement to submit tax returns as part of the application process, she also advocated that Canadians living abroad file income tax returns, citing the example of the 2006 evacuation of Lebanese Canadians, many of whom had little or no connection to Canada. She picked up on Mr. Gupta’s point about Canadians travelling abroad to various terrorism hotspots and supported the government’s proposed revocation measures. She did not agree with the “knee jerk reaction” against stripping dual nationals of Canadian citizenship for terror or treason given that this is contrary to Canadian values and abusing the privilege of citizenship. Moreover, she argued for suspension of immigration from failed states, given widespread false identities that allowed criminals, hate mongers and others to enter Canada.

R. Reis Pagtakhan, Immigration Lawyer (bio here) started off by supporting the increase in residency to 4 years out of 6, given that increased time should increase connection to and understanding of Canada. Requiring income tax returns was logical. He was concerned regarding no longer counting pre-Permanent Residents time, as Canada has largely an employer-driven system, with most working as Temporary Foreign Workers, and half-time credit should be restored. He also noted that the flexibility within IRPA for counting certain days outside Canada as Canadian time should be applied (e.g., working full-time abroad for a Canadian business, along with dependents). He opposed the intent to reside provision, stating that many Canadians contribute to the “world stage.” Moreover, there was a contradiction between Canada negotiating free-trade agreements that provide preferential treatment for Canadians working abroad and this the intent to reside (“can’t do both”). On revocation, while he supported the general approach, this was only in the context that the person was tried and convicted in a Canadian court. If the Government persists, perhaps it could draw on a list of countries with which Canada has extradition treaties (e.g., he contrasted Syria and Iran with the US). For criminal convictions, it should not be for minor offences, and suggested that the five-year sentence of the Bill may be too short.

Jonathan Chodjai, Immigrant Québec, supported the increased residency requirements but opposed the removal of credit for time spent pre-Permanent Residents. No issues with tax returns. He also, like Pagtakhan, noted the need for more flexibility for absences from Canada for professional reasons. The planned reduction in processing time was welcome. On revocation, he had concern over the increased discretion of the Minister in the case of fraud, given that there may be room for political interference and that the criteria could be clearer. He did not address clearly the question of revocation for terror or treason, but stressed that he believed there should be equal treatment of  born and naturalized Canadians. In terms of criminal convictions abroad, these had to be equivalent to Canadian courts, and suggested that it should be on a reciprocal basis (e.g., if Canada accepts US judgments, US should accept Canadian judgements). He also supported the proposed fines for fraudulent consultants.

Questions of interest:

CPC/Menegakis and Shory probed Gupta and Siddiqui on what she was hearing from people on the Government’s approach. She noted the ongoing effects of 9/11 on increased suspicion of the Muslim community, how many went into depression, and how her religion had been “hijacked”. All political parties had to stop associating with those who “glorify terrorists.” She expressed here satisfaction on the Supreme Court ruling upholding the use of security certificates for terrorism cases. She also flagged abuse of the now suspended investor immigrant program, citing examples of citizens of convenience that had used the program.

NDP/Sandhu probed both Gupta and Siddiqui on charter compliance of the revocation provisions, and whether “laws should conform to the Charter.” Gupta noted that he was not a lawyer but while laws have to conform to the Charter, there was “too much political correctness,” some people only want rights, not duties, and his reading of the Bill is that nothing contradicted Charter rights. Siddiqui confirmed but was quickly cut-off before likely nuancing her reply. Sandhu also probed question of pre-Permanent Residents time; Siddiqui supported Government on no longer crediting this time.

Liberal/McCallam probed on situations of wrongful accusal and safeguards, citing Mandela as example where Canada would not agree with overseas courts. Gupta stated that Canadians would not condemn comparable situations and that wording of the Bill makes that clear. McCallam stated that all other lawyers disagreed with his interpretation. Siddiqui expressed confidence that “everything right will be done” and Gupta reminded McCallum that revocation in cases of terror or treason would be under the Federal Court, not the Minister.

There was some interesting back and forth on the legality of revocation with NDP/Sitsabaiesan, after she cited A Tale of Two Citizenships: Citizenship Revocation for ‘Traitors and Terrorists’. Siddiqui replied that academics don’t know everything, they are not experts living every day with these issues. Sitsabaiesan probed, “what to you mean living everyday?” Siddiqui stated that “taking the war on the street that we are” is as important as the experts, and that terrorists or sympathizers were not “penalized enough.”

In the second shorter session, Pagtakhan and Chodjai were probed on crediting pre-Permanent Residents time. Both supported, including full-time credit for spouses with conditional Permanent Residents status. On revocation, Pagtakhan reiterated his concern that only decisions by Canadian courts be considered, comparing a conviction for a restaurant bombing in North Korea to one in the US as being different situations.

Then some theatre. CPC/Menegakis asked for a ruling by the Chair on interrupting of witness testimony by NDP/Sitsabaiesan. In the end, the Committee ruled that Sitsabaiesan could use her time as she deemed fit.

Followed by the motion for additional testimony time and the in camera session.

Next week is a parliamentary break week. Will do a summary of what I have heard so far next week.

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