Foreign Affairs Committee on Feb. 20th, 2007

[The Chair, Conservative, Kevin Sorenson]

Good morning, everyone.

This is meeting number 41 of the Standing Committee on Foreign Affairs and International Development, on Tuesday, February 20. This morning we continue on our study of democratic development.

We have with us today Ms. Kathleen Mahoney, professor with the Faculty of Law at the University of Calgary. Ms. Mahoney was before our committee last, I think, in 1999. I'll say that even at that time her credentials were very impressive, and I think they're even more impressive when you look at the work she's done recently. She has been a law professor for almost 30 years. By now she has taught on human rights extensively in many parts of the world, from the University of Chicago to the University of Adelaide in Australia.

Her experience in human rights more or less covers the spectrum. She has published in many journals in Canada and throughout the world. She has organized conferences on various issues. Most of her advocacy work is pro bono. She was a member of the legal team representing Bosnia in its case in the World Court against Serbia prior to the international criminal tribunal being struck. She is a fellow of the Royal Society of Canada.

We certainly do appreciate your being with our committee this morning. As I said to you earlier, we're getting closer to the end of our study on democratic development. We will be coming forward with a report that will be tabled in the House of Commons and to which we will expect the government to respond. We'll take all this information, and it will become part of the fairly comprehensive study and report that we're doing.

Welcome here this morning. We look forward to your opening comments. We will then go into the first round of questioning.

There may be some questions in French. I'm not certain if you're bilingual.

Welcome, Ms. Mahoney.

[Professor Kathleen Mahoney, Professor, Faculty of Law, University of Calgary]

Thank you, Chairman.

It's a great honour for me to be here and meet with you. This is such a huge task that you have in reporting on democratic development, and presumably the best ways to go about supporting democratic development in the world.

My experience, as you've said, Mr. Chair, is quite broad. From my professional bread-and-butter job, which is teaching at the university, I have taught in this area for many years. But probably more relevant to your discussions and work here are my extracurricular activities in this field. I'm a lawyer and a law professor—I'm a practising lawyer as well as an academic—and I've done a considerable amount of consulting work in the law.

I have done a lot of work--in fact I was a pioneer in Canada--in presenting the idea to the legal profession that judges could not be assumed to know everything just because they were judges, and that judges required ongoing judicial education to ensure that the rule of law is always protected and that justice is dispensed in the fairest possible way, taking into account the rights of all of those who may appear before the courts, or indeed may be affected by the courts.

Back 20 to 25 years ago, it was evident that justice and fairness weren't always to be assumed in the sense of social context in human rights, that human rights are an ongoing, evolutionary concept, and that the judges and the legal profession have to move with the evolution of these concepts.

My first international experience in this regard was in South Africa. After the apartheid regime was overturned and a seemingly more democratic regime replaced it, nevertheless there were still huge issues of human rights protection for everyone, not just the people who had been persecuted because of race, but other serious issues with respect to women, ethnic minorities, certainly racial majorities and minorities. I worked with an organization called Lawyers for Human Rights and started this notion that judges and magistrates would have to, in order to make this transition, also learn about democratic principles, learn about the rule of law, and learn about fundamental human rights protection in order to incorporate those values into their judgments.

There was a centre that worked with academics as well as the judiciary and the magistrates, and there was a centre started at the University of Cape Town called the Law, Race, and Gender Research Unit, a name something like that. But it became a very vital and important centre in the development of South Africa's new approach to itself and the world, and it's still a very vital organization there. Its job is to train new judges as well as to develop continuing education for judges who have been judges for quite some time. That, in my own view, is one of the more successful approaches to incorporating democratic principles into a society.

The reason I say that is because on one hand you're working with elites, you're working with powerful people, who have an ability to make change and who the society usually respects. It's very difficult to work in a situation where the society doesn't respect the judiciary—and I'll talk about that in a few moments—but it's usually effective because of the stature of the people you're dealing with. But also, at the same time they are in contact with the grassroots by virtue of their job. They are seeing people on a daily basis who are not usually like them, people who have problems, companies that have problems, disputes that are needing to be resolved. So you have both sides of society interacting through the concept of the judicial system. So if the people who are making the decisions and expressing the values of the society are effective, are respected, and are listened to, then the chances for democratic reform are much greater than, let's say, working in some little pockets of society that don't have access to power.

It's not to say that those things aren't important, but what I'm talking about here is effectiveness and measurable change in relatively short periods of time. It's been my experience that working with judiciaries under certain conditions can certainly promote that kind of change.

When I was chair of the International Centre for Human Rights and Democratic Development in Montreal--I was chair of the board for six years--that organization had the mandate of democratic development and human rights. And it had a whole range, of course, of projects and strategies to assist developing countries and emerging democracies in respecting the rule of law and in developing democratic institutions.

That centre's been evaluated. You should have access to those documents. Just like any place that's trying to make fundamental change, depending on what is done and how it's done and over what period of time, it's often difficult to measure. But by and large, the work of the centre has been successful--incrementally successful. They've gone through several different evaluations and re-examinations of what's important and what priorities they should be looking at. Again, that's very reflective of the notion that human rights and world conditions are always on the move and evolving, and human rights organizations, aid to emerging democracies, and so on, must move with the times.

I've also worked here in Canada with judges--as I mentioned, I was a pioneer in identifying the need--to develop curriculum, to organize conferences, and to critique the status quo and point out the need for change.

I've worked with indigenous groups in Canada, primarily in the last three years, on the residential schools settlement. I brought to that table concepts of human rights, restorative justice, and reconciliation. And largely because of the efforts of the work I did and that the Assembly of First Nations did, that settlement for residential school abuse did not only incorporate compensation for physical and sexual abuse and for the inherent racism in the policy to assimilate native children into white culture. Over and above that was the idea of truth and reconciliation and telling the story. To have non-aboriginal Canadians understand what went on there, in my view, is exceedingly important in terms of restorative justice and reconciliation.

In order to do that work, it required a lot of study and looking at international experiences, as well. So I do believe, myself, very strongly, that reconciliation and restorative justice principles are extremely important in our assistance to other countries in democratic development. Many emerging democracies have problems not dissimilar to our own in terms of racial discrimination and gender discrimination. But some of them have much more severe problems, coming out of war situations and conflict. So reconciliation, if that does not occur, well, you can throw all sorts of money at problems and you'll never see much progress in terms of institutions of democracy developing and the mutual trust and confidence that that requires.

With those just very preliminary remarks, I'll try to answer your questions the best I can. I've prepared most of my thinking here for today on the area of judicial education--that branch of democratic institutions--but I can try to answer whatever other questions you may have in a more general way.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Mahoney.

We have a number of replacement members here today, and I'm not certain if they were able to take a look at your bio before to see some of the work you've done. But we certainly appreciate your comments.

We'll go for the first round to Ms. Minna, and you have seven minutes.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you, Ms. Mahoney. It was good to listen to you.

I did some international work while I was Minister for International Cooperation, and I'm quite interested in the work you've done. It's interesting, the presentation you made this morning.

I wanted to ask if you could expand a little bit. Have you done any work with countries that are in the process of reviewing their judiciary structure, in democracies that haven't gone through the huge change that would have happened in, say, South Africa? I'm thinking of China, for instance. I know that Canada has judges there and that they're doing some work with the judiciary, but it's a slower process and it's in an environment that is quite different and more structured. Do you think it's working in that area? If you don't have that experience, I apologize, and I'll go on to something else.

[Prof. Kathleen Mahoney]

A number of years ago, when Canada supported a project with China at the University of Ottawa, I was a member of that team. It was the first human rights organization that had ever been recognized by China, by the government, as being something they wanted to listen to. We talked about the importance of the rule of law--it was that basic. Subsequent to that, China adopted the rule of law as part of their administration of justice.

But perhaps more relevant to your question is I've recently been appointed Canadian director of the Vietnam project on judicial strengthening. To my knowledge, this is the largest investment Canada has made so far in this area, $12 million. It's actually $12.5 million, but I think the $500,000 is being contributed by the Vietnamese government.

This project is very interesting, in that Vietnam, being a communist country, has become a member of the WTO as of November and is highly motivated to change their judiciary. In my experience, there's been resistance to this kind of reform of the judiciary for all sorts of reasons, but by and large a lot of judges in our country as well seem to think, or did at one time, that judicial education was not necessary. They knew enough, and once they were appointed judges, that was it.

In most cases, you have this threshold of resistance to get over at first, but in Vietnam it's quite different and it's been driven by the market, which is very interesting. I also believe that not only is judicial education important for respect for human rights and equality and the values that Canadians cherish, but now more than ever, it's seen as integral to successful dealings in the global market.

When I was recently in Vietnam speaking to the senior justice of the Supreme People's Court, they were asking for help, for example, in dealing with international trade agreements because it's not their experience to have to deal with these. They foresee themselves having to resolve disputes and they're not sure how to do it. They're not sure of the principles that will apply. They're not sure about international conventions on human rights, for example, that they have signed on to but have never really had to deal with. Because in communist countries, of course, the judges do the government's bidding; there's no independence of the judiciary.

What we discovered was, for example, there's a position called the procurator in their courts. The judges sit at the bench and the lawyers sit out here and the accused, or whatever the dispute might be, and the procurator sits beside the judge. The procurator's job is to report to the government what the judge has done and what has transpired in the courtroom. That gives you some indication about the independence of the judiciary. Also, these people train right alongside the judges in the judicial academy.

What we're doing there is working very much step-by-step. It's a five-year project and right now it's in the needs assessment phase. I brought our overall work plan, which will have many, many outputs over the five years, everything from examination banks to codes of conduct, to textbooks on substantive issues, to pedagogical techniques and curriculum development for human rights seminars, involvement in civil society, techniques of doing that to assist the judges in developing understanding of ethnic minorities and their values and cultures, etc. So there's a whole range of activities and projects and outcomes that will occur over the next five years.

You see, one of the problems in this field so far is that a lot of judicial education has been very episodic. You go and have a conference for three days in some country in Africa and think when you walk away everything is going to change. It doesn't work that way. It's like educating anyone: you start off with curriculum and you have progress, development, you have evaluations and you have markers you're trying to achieve. So I think we're now into an era of a much more sophisticated approach to these issues.

I think we're seeing that the recipient countries are far more aware of how critically important the judiciary is, not just in the courtroom to dispense justice, but in developing public confidence in democracy. They're seeing the judiciary as an arm of it that must be developed along with governance structures in the mainstream.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

I know Ms. Minna has another quick question.

[Maria Minna, Liberal, Beaches—East York, ON]

I know that Canada's doing a terrific job in working with the judiciary system abroad. You mentioned earlier restorative justice and possible truth and reconciliation in our aboriginal communities. We know there's a problem with respect to the large number of aboriginal women and aboriginals in general in our jails. There's a problem in our system.

I wonder if you can tell us what we should be doing there, since you mentioned it. Do you have some knowledge or understanding of what we ought to be doing and are not doing to improve our situation?

[Prof. Kathleen Mahoney]

That's a very big question.

[The Chair, Conservative, Kevin Sorenson]

We unfortunately don't have very much time for the answer, so keep it very quick.

[Prof. Kathleen Mahoney]

I think that speaks to the need for judicial education in our own country to focus on some of the areas where we really have some problems. I could point you to a number of cases where there are obvious problems between the understanding of the judiciary and the problems as they present themselves about women, violence, poverty, appreciation of the judicial system, and understanding of it.

In Calgary a very interesting project has been going on at the Tsuu T’ina reserve on incorporating community values into the sentencing role. It's all run by an aboriginal judge, peacemakers in the community, and the community itself. It is having very positive results and is well accepted by the community.

So it strikes me that Canada has to work in this area in its own backyard, and also in bringing our values abroad and helping other people who have indicated they want us to assist them.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Mahoney.

We'll go to the Bloc.

[Vivian Barbot, Bloc, Papineau, QC]

Good day, Ms. Mahoney. Thank you for joining us.

We've just had a taste of bilingualism and experienced the joys of simultaneous translation. I don't know why it is, but when French is spoken in this and in other forums, we always get the impression that it's some kind of inconvenience. Each time, it seems a little more effort is required to get things done. There, I've said my piece.

I had the pleasure of meeting you several times in Montreal when I served as president of the Fédération des femmes du Québec. I know how very interested you are in gender and equality issues.

I would like to draw a connection between judicial education and the presence of women in this field. In developing, and more particularly in underdeveloped countries, women are not visibly present in this field.

When you speak of education, are you talking about actively promoting gender equality?

[Prof. Kathleen Mahoney]

Yes, thank you. I apologize for not being fluent in French. I can understand a little bit, but I would probably slow things down. It's too bad that out in western Canada we don't have the opportunity to speak French as much as people do in Ottawa and Quebec.

In any event, yes, you've put your finger on a very important part of democratic development generally, and judicial education in particular. Of course, half of the world's population are women, and nowhere in the world do women enjoy equality with men. That's a very important issue.

There are all sorts of cultural differences, of course, in different places in the world, and that fact has to be taken into account.

But there is the Universal Declaration of Human Rights, which guarantees equality, and all of the other international human rights instruments reflect that notion. Canada certainly stands for that principle. In my work, part and parcel of any project is the awareness that one has to instill the importance of gender equality.

This is often not an easy task. I was talking earlier about resistance. That whole notion of the subordination of women is definitely a pocket of resistance. It's something that some like to suggest is cultural and should be kept that way.

However, I think that in most countries, and I'll use Vietnam again as my example.... It's not a country that historically has championed gender equality, but now they are realizing that women are integral to the success of the economy and of families, that the worth and the importance of the family have to be considered in a holistic way, in a realization that women are being educated, are taking their place in the public domain, and that the society has to respond in appropriate ways so that the families can thrive under those circumstances.

So yes, absolutely integral to judicial education programs has been consciousness-raising about the reality of women's lives. Violence against women has been a very important component—and the access to justice issues: that women, by and large in most countries of the world, do not have access to justice. That engages issues such as legal aid; such as awareness of the judiciary about who isn't in front of them in the courtroom, and why they aren't, and how you bring them in to hear from them; issues in terms of family law and support for women, the support for children. All of those issues are things that are integrally incorporated into judicial education programs.

It used to be, at the beginning, that the focus was almost entirely on social context issues and on gender equality. As I said, as time went on, it became evident that there were many other facets, such as the administration of the courts, the procedures involved in cases. All of these things that support the judiciary needed to have the assistance as well. But what we've always held as a fundamental value is that everything should be looked at through the lens of equality, so that even procedures—I shouldn't say “even” procedures—can be very weighted against certain ethnic groups, or minority groups, or women, so that they don't even get access.

That is an integral component, and I think CIDA now recognizes that in its funding requirements: that it be the lens that any funding for this type of work has to take into account.

[The Chair, Conservative, Kevin Sorenson]

You have another minute and a half.

[Vivian Barbot, Bloc, Papineau, QC]

You also emphasized the importance of reconciliation. We tend to think of reconciliation only when there is an obvious war or conflict raging. However, in countries that do not have a democratic system of government, rival factions exist.

In such instances, is it possible to think in these terms? Is reconciliation even feasible?

[Prof. Kathleen Mahoney]

Right now in the world I think there are something like 62 truth commissions that have been organized. There are some successful commissions, I think, and some not so successful.

Reconciliation has many different components. Of course it includes things such as apologies, for example. It includes things such as recognizing the harm that's been done. It includes putting in place structures that ensure it will never happen again. And all of the above include making people who have been victims of discrimination or racism or abuse or subordination trust a society, trust a democratic or any kind of government structure.

So as I said earlier, in our own context here in Canada, you just can't throw money at a problem and think it's going to be resolved. It takes more than that. It's much more holistic than that. So the justice system has to strive for that too, and that's why it's so important for people to have access to the courts, for judges to be empathetic and understanding of who's in front of them so that they understand the different cultural ideas about children or about women or about the proper conduct of family life in certain situations. And you don't get that if people have just been very narrow in their life experience or have just had a very confined idea of what the law is all about, a set of rules and procedures. It's much more than that.

Reconciliation can be seen as part and parcel of the administration of justice, or it can be extra added for reasons to avoid a civil war or reasons to bring people onside to avoid future civil strife or separation and those kinds of things. So I would see it as both. I think it has to be integral to the day-to-day operation of justice as well as in some situations require extra added effort such as we are going to do in Canada with the truth and reconciliation commission as a result of residential school abuse.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madame.

Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

Ms. Mahoney, welcome.

Ms. Mahoney, you had mentioned just a little earlier that in some of these countries the justice simply does the government's bidding, and I think that we're seeing evidence of that in many of the countries. But beyond just identifying that as a singular problem, what we're finding in the examination of democractic development is that it really takes the involvement of many or several pillars, I guess you could say, to support any evolution and real change in the country from of course justice and human rights, but also the security, the governance part because of the connection with justice, poverty reduction, economic development, electoral reform and then overall education, and education not just at the academic level, but education of the population from the grade school level so that over a period of time there will be a change in the sensitivity of the basic population to what these improvements can bring about.

When we look at a country like Haiti, where there are extreme difficulties at all levels, have you had experience with the Haitian justice system that you could comment on? Secondly, Afghanistan seems to be one of the later concerns and there's been commentary from Afghanistan that the work in governance is beginning at the tribal and village level. But how does that interact with the justice system? Are there justice system difficulties that are cultural--tribal law, whatever--and that are insurmountable, given our style and way of thinking? Could you comment on those two countries?

[Prof. Kathleen Mahoney]

First of all, I totally agree with your preliminary statement that all these things are interconnected and very important for overall democratic development. I've focused on the judiciary because that's what I know the most about, but definitely all of those things are important.

I don't know a lot about Haiti, to be honest with you, but I know a little about Afghanistan. I do know that these programs don't work unless there is a desire to have them, number one.

There also have to be some fundamentals in place. It can't be an anarchical situation. There's no point in trying to educate judges if there is no respect for the judiciary, for example, or no respect for law and order or the rule of law. There has to be some basic template to work on.

Having said that, it is very important to see what is going on at the tribal and village level, especially in poor countries. In Vietnam, we're doing that as well. Not only is there a formal justice system, which some people have access to—businesses and wealthier individuals—but in developing countries and emerging democracies, they often have village systems. But these village systems can often be tyrannical and very counterproductive. This was the case in South Africa

In South Africa, they had these institutions called the people's courts out in the townships. Some of them perhaps worked okay, but there were some that were brutal examples of very rough justice. People were flogged and there was very little adherence to any kind of principle or rule. It was an episodic kind of rough justice in which family vengeance, tribal vengeance, and so on, could interfere with what was going on.

So working at that level is very important. Instilling in a basic grassroots system some fundamental rules and principles can be very effective. I mentioned earlier that just outside of Calgary, on the Tsuu T'ina reserve, there is an experiment going on that has been very effective.

Up in the Yukon, Justice Barry Stuart—he's the former Chief Justice of the Yukon Territorial Court and is in fact on the Vietnam project with me—developed a community-based sentencing approach. If someone pleaded guilty to an offence—let's say it was a family violence type of offence or a small robbery—they could be channeled into a community-based system of sentencing, where the community would take a role in dealing with this individual. Certain people would take on the role of, say, taking a person out onto the land to hunt, trap, and bring things back to the village to feed the elders and do things like that, as part of their reconciliation with the community for what they had done.

In other situations, like those of family violence, for example, you might bring in the family members and extended members of the community who are impacted by this type of family violence in the community, so that there can be a healing that takes place. The perpetrator apologizes to the victim and people talk about how they can deal with this problem in a better way, other than to send somebody out of the village to a city to put them in jail for a few years, only to have them come back worse than they were when they left.

These experiments have shown some considerable success in restoring harmony to the community, in restoring relationships, in assisting in developing a justice system that would otherwise be inaccessible. In some situations in remote communities, it's impractical to suggest the presence of a courthouse, with judges and prosecutors and lawyers. It just isn't going to happen. But there are other ways in which principles of fundamental justice and respect for the rule of law can be instilled in communities, with creative grassroots engagement, with responsible members of the communities, elders, or, as they call this person in Tsuu T'ina, a peacemaker who brings people together and organizes these sessions.

It's not separating them from the larger community. In fact, there's a facility to go back into the court system if there's lack of cooperation or if the judge feels this isn't sufficient to deal with the problem. The courts can then take over this particular problem that may be existing in the community.

These alternative solutions are important because they can be done economically and they can be done through strengthening the local resources that are there.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll go to Madam McDonough.

[Alexa McDonough, NDP, Halifax, NS]

Thank you very much.

Thank you for being before the committee today. I have so many questions I'd like to ask, and so little time to ask. Actually, your latter reference to the work of Barry Stuart and alternate approaches and so on really leads directly into my first question. I'll just ask both questions, which are actually a bit unrelated.

I know that you're very aware, from your legal expertise and also from your extensive work with Rights and Democracy, that there's a world of difference between democracy-building or democratization rooted in international human rights, and democracy-building that is perhaps more accurately called “democracy promotion”, which is rooted in self-interest and the imposition of particular ideologies.

In the context of this committee's work, which is to look at Canada's approach to democracy-building and what sort of role we might take, what kinds of models we might look at, I wanted to ask whether you have particular views, from your extensive experience, about the kind of approach that Canada ought to be embracing. We've been looking at a number of different models. As you know, Rights and Democracy exists. The Parliamentary Centre exists. Both have various aspects of capacity-building and so on. Would it be your view that we should try to incorporate what they're doing, tie in with it, and so on? Or are there other models you would propose, some of them being much more political party based?

The second question is not totally unrelated, but may seem a little different. In our developing an approach to that, would it be your view that we ought to look specifically at some of the things happening within first nations within Canada? Because one of the things I've been very struck with as we venture out into developing countries--and most recently, a couple of weeks I spent in Africa--is that there's a certain element of “physician, heal thyself” that we are faced with, looking in our own mirror but also in talking with people. In northern Uganda, where there's a tremendous need and frankly a drive with Canadian leadership around truth and reconciliation with the Acholi people and the Lord's Resistance Army, you're just reminded of exactly the point you've made: that within first nations and some of the things happening here, perhaps there are things we need to understand more about and take more responsibility for if we're going to be credible on the world stage in terms of our contribution to democracy-building.

[Prof. Kathleen Mahoney]

That's quite a lot, all right.

On models, it is important that you understand the world we live in now, one that seems to be dominated by ideologies, by fundamentalisms regardless of what they are—Hindu fundamentalism, Islamic fundamentalism, Christian fundamentalism. In terms of human rights, these ideologies have spawned a concept of cultural relativism, which is something that is very important for everyone to understand in terms of how damaging it can be. It is the arch enemy of the universality of human rights.

There is a huge difference between cultural relativism and a margin of appreciation in having baseline values. That is the importance of secularism as well, as opposed to fundamentalism.

One way of looking at the foundation of any of this work is to say that human rights are really the secular opposite of all of these fundamentalisms. If programs are based on that model with margins of appreciation, for sure....

This is where the Strasbourg Court, in the Council of Europe, has been so successful in dealing with things in terms of countries that have different fundamental values, such as Turkey versus Germany, for example, or Ireland versus France. Turkey and Ireland are still theocracies, but they want to participate in democratic exchange. They want to become credible partners in the modern world. Even though they have certain values that are different from the mainstream, the European Court of Human Rights in Strasbourg has been able to make decisions when citizens clash with fundamental principles that are set out in the Strasbourg convention, yet still have freedom of religion respected. It's the separation of church and state that the court insists upon.

There is appreciation for different peoples' ways of running their societies, but when it comes to fundamental values, there has to be a separation there. The secular human rights standards can then prevail.

In my view, it's very important for Canada to maintain the position in the world that there has to be public policy grounded in human rights values. Otherwise, it becomes extremely difficult.

The second fundamental value in a model such as this is that it's very important for people to incorporate and develop democracy through their own institutions, on their own set of priorities. Even mainstream priorities in Canada aren't necessarily going to work for first nations, for example. It's important for them, through self-government, to develop their own priorities and to preserve their own cultural values, yet to also incorporate within those cultural values a baseline of human rights that can take into account their cultural realities of economic, social, and cultural rights that appreciate and respect group rights as well as individual rights.

The dominant culture in Canada tends to appreciate individual rights more than any other kinds of rights, but first nations and aboriginal cultures put a huge priority on collective rights. In order for both cultures to thrive, one has to appreciate the other. There has to be a margin of appreciation for our first nations cultures to be able to develop their group base of values. Otherwise, you strangle their cultures.

It's the same internationally. Cultures have to be able to survive and be different, but they can't participate in fundamental violations of things like the right to life, the right to be presumed innocent, or things like gender equality.

So it's a delicate balance. It's a constantly evolving process in which people have to be vigilant, particularly the judiciaries, to these kinds of problems. There is no easy answer. It's a constant nuanced calculus that has to be prevalent in all things that people do, but this is where judicial education becomes very important.

The public interest is at the centre of issues such as Canada's involvement in strengthening the judicial pillars that exist. It has to be grounded in human rights, yet be sensitive to the local needs and local values of wherever you're working. As I said, in situations like South Africa, the people's courts can be respected as being an integral part of village governance, but Canada can't support a people's court that flogs people or participates in capital punishment or doesn't respect the rule of law. There have to be some fundamental requirements, a floor that everybody stands on. The ceiling can vary, but the floor is fundamental human rights values that separate church and state, that respect life, that respect the rule of law, that respect equality--those kinds of things.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll come back to Mr. Khan.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Thank you very much.

Thank you for being here. It's very enlightening.

My questions might be a little broader. I'll ask both of them and wait to hear your answers. I want to go to the two most populous countries in the world, India and China. One is a democracy; the other is still a communist country. How do you compare their legal systems?

Human rights records aren't any better in either one of them. I read somewhere that 13 million girls are killed annually in India. Does a democracy guarantee rule of law, human rights, and so on? I'd like you to comment on that.

The other question has to do with gender equality. We talk about it and obviously we all want it. We support it. It's important. If we go to countries such as India, Pakistan, and Bangladesh, which are supposed to be third world countries, developing countries, we find in Bangladesh that you have Hasina Wajed as Prime Minister. I think she was Prime Minister twice. The leader of the opposition is also a female. Benazir Bhutto was the first elected woman in Pakistan; she was twice elected. Indira Gandhi had a tremendous role there. Are we to assume that those countries have achieved greater gender equality?

Here in our own country, we barely have women who go beyond the first round in election races. We've never had a female Prime Minister--we did have one, sorry; we had one for a very short while. She was a Conservative.

I'd like you to comment, please, on that. And Pakistan has reserved 60 seats for women; only women can run there, and women can also run anywhere else they choose to. They have beaten some men over there.

[Prof. Kathleen Mahoney]

First of all, India and China, you're right, there are huge human rights violations in both countries, without a doubt. They're both hugely populous and they're both very poor. Whenever you have poverty, you have human rights violations. They go hand in hand. Poverty itself, arguably, is a human rights violation, but I won't bother going there right now.

Of course, the fundamental difference between China and India is that India is a democracy, and you can work in democracies. You can appeal to those democratic principles. I've worked in India, and there's a world of difference with China, because in a country like China, where the government is the ultimate source of all knowledge and power, everything depends on the sensibility of who is in charge. If by definition they do not believe in the rule of law--as I was saying earlier--you can't work in a place like that unless there's some fundamental recognition of the separation of the judiciary from government, the independence of the judiciary, and you can't talk about people's right to have their day in court and be treated fairly in those kinds of contexts. It's just not doable in that context. You might be able to work a little bit in one place here or one place there, depending on the local politician, but you're always at the mercy of the ultimate dictator.

In India, on the other hand--it's highly possible and it has been done--you can appeal to the fundamental values of the country to make change, you can identify needs, you can identify abuses, and you can work through what they themselves have embraced as their own values. You go to their constitution. You can look at that and use that, and people within their own country can use that, and to have the values, the template in place is critical to progress.

So yes, there are abuses in both, but the ability to change that is far different in one country from the other.

On your questions of gender equality, and pointing to certain situations where in India and then Pakistan there have been female leaders, and whether or not that indicates that a country has achieved more gender equality than a country like Canada, no. Most females who have led countries have done so because--and especially in India and Pakistan--they were related to males who had those positions ahead of them. And the Philippines is the same, whereas Margaret Thatcher is a different example in England. What's important, I think, is developing a culture of commitment to gender equality in the country, so you don't see people at the top achieving those places episodically, but you see within the entire population the access to education, access to jobs, access to reproductive control, access to appropriate child care supports, and things like that, which can enable women to participate. Enabling ordinary women across the board in the population to participate is key to gender equality. It isn't just opening up a space at the top for the widow of a former prime minister or something like that.

In other words, you have to create this broad-based commitment and culture of gender equality, and in places that have embraced that, there are far more women participating at all levels. It would be nice in Canada to have more women participate, but if you look at--