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CENTREPIECE
2000 Newsletter of the Alberta Civil Liberties Research Centre Vol. 6 No. 3
Inside.....
Indonesia: A Better Future
by Antonius Sitompul
Guest Opinion
Antonius is a second year law student at Gagjah Mada University, Indonesia. This fall,
he spent 11 weeks at the Research Centre as a volunteer under the Canadian Crossroads
International programme.
I'm Indonesian. I came to Canada with the Canadian Crossroads International (CCI), a non-governmental organization that receives support from the Canadian public and matching grants from the Canadian International Development Agency (CIDA). CCI is a volunteer association that provides cross-cultural learning experiences. In Canada, I have faced a lot of wrong thinking and presumptions about Indonesia. This article is an attempt to expose the correct Indonesia.
Indonesia is the quiet giant of Southeast Asia larger in size and population than all others in the area. It is also the fourth most populated country in the world, with its 210 million inhabitants spread across nearly 14,000 separate islands. Indonesia's current population is overwhelmingly concentrated in the two central islands of Java and its smaller neighbor, Madura. Although comprising less than seven percent of Indonesian land mass, Java and Madura are home to nearly 70% of the country's total population. With more than 100 million inhabitants, they are as densely populated as Germany and France combined yet contained in a land mass smaller than Great Britain. The closest rival in population to Java is the larger island of Sumatra, with a population of approximately 35 million, making it similar in size and area to the state of California. After Java and Sumatra, the population distribution drops dramatically. Indonesia's two largest islands, Kalimantan and Irian Jaya together comprise more than 50% of Indonesia's total land mass and contain barely five percent of the nation's total population.
Indonesia is blessed with rich and ancient traditions of culture, arts and social organization. This country is forever finding ways of blending the old with the new from the bustle of downtown Jakarta to the lone airstrips of remote outer islands from computer-aided engineering systems to hand-crafted work passed down from father to son in traditions going back centuries.
Indonesia is also blessed with rich land. It used to be one of the best examples of progressive national development since the second world war. Its development was based on five year planning cycles, known as Repelita, which led to progress and then established priorities for the next five year cycle. The achievement of substantial progress in various fields was enjoyed by the majority of the population. Unfortunately, economic crises, which began with the monetary crisis, struck Indonesia in July 1997. Since the middle of that year the people's standard of living dropped considerably. The decline in the standard of living was aggravated by various political tensions arising from the 1997 general elections. The political system, which was developed in 1996, was unable to accommodate the dynamism of the aspirations and interests of the community, which led to riots and disturbances. To a certain extent, these contributed to the malfunctioning of the political order and of the government, finally causing the situation to develop into a political crisis. The combination of the economic and political crises triggered a general confidence crisis.
This applied not just to officials and state-run institutions, but also began to touch the system of values and legal foundations. A number of student demonstrations ensued, including the occupation of the People's Consultative Assembly, home of the People's Representative compound. Students appealed for political and economic reform, demanding that President Suharto step down and stamp out corruption, collusion and nepotism. On May 12, 1998, a tragedy occurred on the Trisaliti University campus in which four students died. On May 18, 1998, the leadership of the House suggested the President resign. Finally, on May 21st of that same year, President Suharto resigned, after a 32-year rule of the New Order government.
As Indonesia gradually emerges from the economic, social and political crises, the country will never forget the lessons learned from the national development policies of the past three decades. Indonesia failed to recognize the three inseparable elements for sustainable development namely a proper balance between economic growth, democracy and the respect of growth. Over-emphasis on stability for the sake of economic growth resulted in neglect and even the suppression of certain civil and political rights of citizens. This led to the inability of citizens to have any control over the government. As a result, the lack of respect of social and political ethics in our society went unchecked.
Indonesia is now engaged in a process of fundamental reform in all fields. These reforms are aimed at speeding up national recovery from the social and economic impact of the East Asian crisis, easing our own transition to a more fully democratic system, and upholding the rule of law. With this effort, great emphasis is being placed on human rights. The promotion and protection of these rights require tremendous legislative and judicial support. The government, in cooperation with the House of Representatives, has established a team of legal experts to review all national laws and regulations, ensuring consistency with the spirit of reform and with international human rights norms.
A number of political laws have been repealed and new ones adopted. These include laws on political parties, general elections, the People's House of Representatives, the People's Consultative Assembly, mass organizations, freedom of expression, regulations on the freedom of the press, law and regulations on the freedom to form and to join associations (including trade unions) and human rights. Under the new political and legal framework, the civil and political rights of Indonesians are beginning to flourish. Indonesia now has 48 political parties, a vibrant civil society and an ever-growing number of non-governmental organizations (NGO's) dealing with human rights. The people now feel free to speak and even criticize the government.
The situation in Aceh and Papua has, at various times in recent months, given Indonesia cause for serious concern. Today, however, the overall situation in Indonesia has much improved. Indonesia still has to deal with the residual problem of East Timor. In this regard, the government has shown its strong commitment to bring to justice those guilty of human rights abuses in East Timor. The Indonesian Commission Investigating Human Rights Violations in East Timor (dubbed KPP-HAM) has completed its task and submitted its report. This report is widely recognized and has identified a number of individuals presumed to be responsible for human right abuses in East Timor since January, 1999. The Attorney General is currently in the process of following up on the recommendation that a human rights court be implemented. This court would have the authority to try cases of human rights abuses, including those that took place in East Timor.
Leaving the past behind, Indonesia has started to reshape its society for a better future.
Staff and Volunteers
We have been busy these past few months. Pamela Dos Ramos and Anna Pellatt have been working as contractors to assist with the Freedom of Expression Project. We have been working with the University's Fred Fountain on our freedom of expression video. A number of volunteers and actors are working on the video: Laurie Anderson, Jebb Fink, Hina Thaker, Mandy Sandhu, Tyler Lord, Agam Darshi, Danijel Margetic, Nikki Barran, David van Belle, Renee Amber, Scott Kurz and Dawn Ford. Hina Thaker and Mandy Sandhu have continued to work with us as legal research assistants. We have had two education practicum students: David Weisgerber and Josy Renaud. We are very pleased to have their assistance! Thanks to Graham Price who recently retired from our Board of Directors.
We are fortunate to be working with excellent volunteers for the last few months including Lisa Van Wijk, Susana Aravena, Lori Aberhart, Tyler Lord, Rhea Castillo, Jan Goodwin, Colleen Huston, Cartney Samson and Denise Gavan. Thanks!!!
-Linda McKay-Panos
"Equality" What Does it Mean?
by Linda McKay-Panos
Reprinted from (2000) 24(6) Law Now 9
The Canadian Charter of Rights and Freedoms ("Charter"), subsection 15(1) states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.
What does this right mean? In the 1989 Andrews case (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143), the Supreme Court of Canada said that equality is "an elusive concept" and that it "lacks precise definition." In the 1999 Law case (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497), Justice Iacobucci noted that part of the reason that the court has trouble with a precise definition is that equality has a very high status in our society. He said that the quest for equality expresses some of humanity's highest ideals and aspirations, which are abstract and can be stated in different ways. In the same case, the Supreme Court of Canada set out some basic guidelines for analyzing the meaning of the equality rights provided in the Charter.
Justice Iacobucci stressed that any equality analysis under the Charter must be "purposive and contextual." In Andrews, the court noted that equality involves comparing one person's condition with the condition of others in the social and political situation that the issue arises. At the same time, the court said that true equality does not result from identical treatment. In fact, the court emphasizes that although it is possible to set out basic principles as guidelines for analysis, the results in any case will depend upon the way that the various factors apply in that particular case.
To determine whether Charter subsection 15(1) has been violated, the court looks at three elements:
*does the law impose differential treatment between the claimant and others?
*is a ground listed in subsection 15(1) or a similar ground the reason for the differential treatment? [grounds listed include race, national or ethic origin, colour, religion, sex, age or mental or physical disability]
*does the law in question have a discriminatory purpose or effect?
Once the court has determined that subsection 15(1) has been violated, it must then look at Charter section 1 to see if the discrimination may nevertheless be justified in a free and democratic society.
How do these principles apply in real cases? In Eldridge v. British Columbia (Attorney General ) ([1997] 3 S.C.R. 624), the British Columbia Medicare scheme did not provide funding for sign language interpreters for hearing impaired people. Two hearing impaired patients took the B.C. government to court to obtain a declaration that the failure to pay for sign language interpreters violated Charter subsection 15(1) and was not saved by Charter section 1. Each of the patients argued that the absence of interpreters impaired their ability to communicate effectively with their doctors, thus increasing the risk of misdiagnosis or ineffective treatment. One of the patients had gone through childbirth without an interpreter. In its legislation, the B.C. government had set its objective as providing access without charge to a range of medical services.
The Supreme Court first determined that deaf persons belonged to a listed group under Charter subsection 15(1)the physically disabled. Second, the Court said that although the Medicare funding system appeared to apply equally to deaf and hearing populations, the scheme had the adverse effect of denying people the equal protection and benefit of the law. The failure to ensure that deaf persons benefit equally from a service offered to everyone had the adverse effect of discriminating against them. Effective communication is an indispensable part of the delivery of medical services and the failure to ensure that deaf persons communicate effectively with their health care service providers is discriminatory. The court said that to argue that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of these benefits indicates a thin and impoverished version of Charter subsection 15(1).
In its Charter section 1 analysis, the Supreme Court found that the B.C. government had failed to show that it had a good reason for concluding that a total denial of medical interpretation services for the deaf was a minimal impairment of their rights. Further, the government had provided no evidence to show that providing interpreters would strain government financial resources.
In Vriend v. Alberta ((1998), 224 N.R. 1 (S.C.C.)), Delwin Vriend was employed as a laboratory coordinator by a college in Alberta. In 1990 it became known to the college that Vriend was homosexual and shortly thereafter, Mr. Vriend was asked to resign. Mr. Vriend refused to resign and was terminated. The sole reason given for his dismissal was his non-compliance with the college's policy on homosexual practice. Mr. Vriend appealed his termination and applied for reinstatement but was refused. He then attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of his sexual orientation. The Commission advised Mr. Vriend that he could not make a complaint under Alberta's human rights legislation because it did not include sexual orientation as a protected ground. Mr. Vriend filed a motion in the Court of Queen's Bench and the trial judge found that the omission of sexual orientation as a protected ground against discrimination violated Charter subsection 15(1). Next, the Alberta government was successful in an appeal. Mr. Vriend then appealed to the Supreme Court of Canada, which held that several sections of the human rights legislation violated Charter section 15(1) and the infringement was not justifiable under s. 1.
The Supreme Court said that not including sexual orientation as a ground of discrimination in the Alberta human rights legislation, taken in the context of the social reality of the discrimination against gays and lesbians, clearly impacts homosexuals more than heterosexuals. The court said that sexual orientation is an "analogous ground"one similar to those listed in subsection 15(1). Further, the exclusion of sexual orientation from the legislation had serious discriminatory effects. First, lesbians and gay men who experience discrimination on the basis of their sexual orientation could not rely upon the complaint process under human rights legislation. Second, the denial of protection on the ground of sexual orientation sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. Third, the exclusion of gay men and lesbians created psychological harm in that it implied that all persons are equal in dignity and rights except gay men and lesbians.
Finally, in (British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union. (September 9, 1999) 26274 (S.C.C.)), the B.C. government established minimum physical fitness standards for its forest firefighters. One of the standards was an aerobic standard. A female firefighter, who had performed her work satisfactorily, was fired because she was unable to meet the aerobics standard after trying four times. Because men and women are different physiologically, most women have lower aerobic capacity than most men and most women cannot increase their aerobic capacity with training. The court found that there was no believable evidence showing that aerobic capacity was necessary for either men or women to perform the work of a forest firefighter safely or efficiently.
Employers are permitted by law to discriminate against people if they have a good faith occupational reason for so doing (called a "bona fide occupational requirement"). For example, a job advertising for a male attendant to deal with an elderly male's intimate personal needs discriminates against women but is permitted in this situation to protect the dignity of the patient. In the case of the female firefighter, the Supreme Court looked at whether a standard that initially looks neutral (everyone having to take an aerobic test) is a bona fide occupational requirement. The Court set out a three step test. First, the employer must show that the general purpose of the standard is validly connected to the person's ability to do the job. Second, the employer must show that it adopted the standard in an honest and good faith belief that the standard was necessary to fulfill that job-related purpose. Third, the employer must show that the standard was reasonably necessary to the job-related purpose. In other words, it must be shown that it is impossible to accommodate individual employees with the characteristics of the female firefighter without imposing undue hardship on the employer.
The Supreme Court of Canada held that the government had failed to show that the particular aerobic standard was reasonably necessary to identify people who could be safe and efficient forest firefighters.
These three cases illustrate the complexity of "equality" under the Charter. In Vriend, Justice L'Hereux-Dubé indicated that the primary mission of Charter subsection 15(1) is to promote a society in which everyone is secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. To recognize our right to equality, however, does not require us to treat everyone the same. Equality requires us to look at the effect of a law or practice on the individual or group. When the impact of legislation or government practice deprives a disadvantaged individual or group of the law's protection or benefit in a way which negatively affects their human dignity and personhood, subsection 15(1) is violated. Thus, equality involves more than just treating every Canadian the same way. The Supreme Court has the very difficult task of applying general principles of law in a way which considers the particular circumstances at hand. It is clear that while equality is an elusive concept, it is one of our most significant rights.
Video Review
by Josy Renaud, B.S.W.
Government in Canada: Citizenship in Action
Part One: Democracy at Work - It's Your Choice
This four-part NFB video series provides an overview of all levels of government in Canada, and the rights, privileges, and responsibility of citizenship. It was designed for use in Social Studies or Canadian History curriculum, most likely at the grade 7-12 level. Although the series was produced in 1991, the videos are relevant to government processes today. There are minor changes to our system that may need to be mentioned to students, such as the outdated emphasis on the three dominant political parties of the day, and old enumeration procedures displayed in Democracy at Work - It's Your Choice (24 minutes).
This first video in the series explains how the political system works. The different levels of federal government are discussed (Crown, Senate, House of Commons), as well as the structure of political parties, and the election process. Terms such as majority/minority government, and representation by population are mentioned.
An interesting history of democracy is provided from the beginnings in Ancient Greece, to developments in Canada beginning with the British North America Act of 1867. Although democracy is a tradition in Canada, several groups of people were denied access to voting throughout our history. There is a brief overview of women, First Nations, and persons with mental disabilities achieving their right to vote.
Throughout the video there is an emphasis on diversity among Canadians (including regional), and our ability to make changes to our system. A question is posed re: the possibility of change surrounding the relevance/irrelevance of the Senate.
Towards the end of the video the focus shifts to young people's views on issues related to democracy. There are suggestions offered on ways to have our voices heard by government. The video highlights the ideas that "power belongs to the people"(video), and that each one of us has the choice to be involved in democracy.
Although students may find some of the images outdated, many sections of the video are in a cartoon animated format that is amusing regardless of the time frame. The information presented is easy to understand, is for the most part relevant today, and provides a good overview of our democratic political system. As "responsible citizenship is the ultimate goal of social studies"(AB curriculum), this video fits particularly well into the grade 10 curriculum topic Citizenship in Canada. However, it would be useful for anyone inquiring about the processes of Canadian Government.
Other videos in this series include:
*Part Two: Our Constitution - The Law of The Land (28 mins.)
*Part Three: Our National Parliament - The Inside Story (31 mins.)
*Part Four: Local and Provincial Governments - Working Together (37 mins.)
Any of these videos can be borrowed from the Research Centre, or to order your own copy call the National Film Board, 1-800-267-7710. Free catalogues are also available upon request.
Josy Renaud is a Masters of Teaching student, who has been involved in a practicum program at the Research Centre this fall.
International Human
Rights Day
Events
Celebration: Municipal Building Atrium,
December 7, 2000,
11:45 to 1:30 p.m.
Mayor Al Duerr, City Council, Charlach Mackintosh, Committee on Race Relations and Cross Cultural Understanding, Canadian Heritage, The United Way of Calgary and Area
Moderator Lisa Olsen, Global News
Displays, Artistic contributions, Heartland ECS Choir, Brenda Wong and Puppeteer Michelle Warkenten
Presentation of the Suzanne Mah and Human Rights Awards
Celebration: Alberta Civil Liberties
Research Centre
December 7, 2000
4:00 p.m. to 6:00 p.m.
Faculty of Law University of Calgary
Murray Fraser Hall
Faculty Lounge (4th Floor)
Come and go tea, coffee and cake
The Alberta Civil Liberties Research Centre appreciates the contributions made by donors and volunteers, and the support of agencies that provide grants to the Centre, including:
The Kahanoff Foundation
Centrepiece
c/o Alberta Civil Liberties Research Centre
University of Calgary
Faculty of Law
2500 University Drive N.W.
Calgary, Alberta T2N 1N4
Publisher and Editor:
Linda McKay-Panos
Regular contributors:
Linda McKay-Panos and Tracey Maksymetz
Centrepiece is the newsletter of the Alberta Civil Liberties Research Centre. The views expressed in Centrepiece are the opinions of the author, and not necessarily the views of the Research Centre; its Board, staff, or volunteers; or its funders.
The Alberta Civil Liberties Research Centre holds copyright to all material appearing in Centrepiece unless otherwise indicated. Reproduction of Centrepiece articles to which the Centre holds copyright is permitted, so long as the author and the source are acknowledged. Please contact the Research Centre if you wish to obtain permission to reproduce any other material.
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