The two countries that I have lived in most of my life, are undergoing upheaval. In Canada, the Coastal Gaslink Pipeline, travelling through We’tsuwe’ten territory, and exploiting and polluting the water and land, has been met with fierce opposition by the First Nations. Although the fight has been going on for quite some time in opposition to the pipeline route, both on the streets and in the courts, recent events where the RCMP ’s military tactics menaced the land defenders, resulted in a call-out for solidarity. It was heeded across the land, by First Nations, Metis and allies, who engaged in peaceful protests on the streets and on the rail-lines “from sea to shining sea.”
Bandied about during the last three weeks, we’ve heard a great deal of the ‘rule of law’. But the bourgeois media discourse propping up corporations and kleptocracies has obscured the impetus for this law, the origins of statist impulses to control and manage class -based consciousness and uprisings. In another century, in law school, we were explained the concept of rule of law in the following manner.
The law punishes both the rich and the poor man (sic) for vagrancy. This is the ideology that liberal legal constitutionalism seeks to promote. The problem with this, of course, is that the rich man has somewhere to go; a home — the poor man may have nowhere to go. Yet the law is enforced “impartially”, affecting the poor more frequently and adversely, because of their social location, than the rich. This sleight of hand for which the law is justly notorious, deploys a facade of universal equality, while hiding the uneven and biased practice of law.
To take the “rule of law” seriously, one would have to uphold this as an aspirational, not actually present, reality. First Nations people know, as do working class people of all backgrounds, that the law is enforced differently for the rich and poor, the indigenous and the white settler, for the union and the boss, the land protector and the land violator, the Muslim and the non-Muslim, the survivor/victim and the rapist. They know this, because a cursory look at their own history vis a vis mercantile and later industrial capitalism, has left them with a bitter taste of all the blood spilled to destroy and silence them. They know this because even pre-capitalist ways of belonging to the land are threatening to profits before people, not only anti-capitalism rooted in class development and analysis.
The challenge that allies and land defenders face, is how to make this equality of social bargaining power a reality, so that the “rule of law” will finally be a descriptive, rather than prescriptive term. Within this overarching challenge, are others. Overcoming the divide and rule legacy of the Indian Act, the racist fabric of Canadian society which underlies the entire development of this economy and polity, and the coming together of racial justice and environmental justice movements with the white and “othered” working classes.
Because it is going to be when when labour and native struggles can come together, that we can create a vision of Canada, where we equally benefit from a law which centers the land and its inhabitants as legal subjects worthy of remedy; that we can even begin to talk of the rule of law.
In another country, far, far away, the pretense of the rule of law, has been stripped totally bare in the most brutal way conceivable: state-sponsored mob violence. For Muslims, India’s largest minority, the last few weeks have culminated in murder and mayhem in ordinary neighbourhoods across north east Delhi during the official visit of American tycoon, Donald Trump.
The murderous rampage committed by Hindu mobs supporting the Narendra Modi’s BJP government’s CAA/NCR legislation in February of 2020, has resulted in 48 dead and hundreds injured as well as untold property damage to homes and business belonging to Muslim Indians.
These laws would deny citizenship and refuge to Muslims who apply to reside in India from neighbouring countries, as well as strip Indian Muslims of citizenship without documents proving the claim to nationality— in a part of the world where documentation is precarious at best, and corrupt and biased, at worst. And as an observer, I find the issues of these conflicts so similar. Central to the We’etsuwe’ten claim on territory in the 1990s, was precisely the issue of “documentation. Central to their legal case, was the holding that oral testimonies should and could provide title to land and proof of possession by Indigenous communities. That case is Delgamuukw v British Columbia,  3 SCR 1010.
While the Delhi police stood by, or even participated, in the days of violence sweeping the nation’s capital, journalists were attacked and removed from scenes of terror, threatened on religious and political grounds, and attacked for live reporting. This can be seen in a milder form with the treatment of journalists by the RCMP in their coverage of the We’tsuwe’ten protest. The fact that independent and live reporting has been brutally and so publicly censored, shows us the power of accurate reportage in a time of instant visuals and soundbytes. The news is not neutral.
The recent violence has reminded observers of the 1984 anti-Sikh attacks in Delhi, the Gujarat massacre of Muslims in 2002, and the violence of the Partition of India into Pakistan and India in 1947.
The Delhi massacre has been described as a pogrom; the use of violence to eradicate and terrorize a particular ethnic or religious community. It was practiced against the Jews at the end of the nineteenth century in particular in Eastern Europe, which account for the Russian origins of the word. In Germany, one of the most famous was known as “Kristalnacht” or night of broken glass, which took place against the Jews under the rule of Adolf Hitler in 1938. And it is a mode of violence which has popped up in conflict in Sri Lanka, on the African continent and in contemporary and recent eastern Europe (Bosnia).
Over the last few months, the world has been observing these two modes of fascism, the creeping Canadian and the blatant Indian, approach, and seeing the ways in which the rule of law grows further and further out of our reach, unless we put justice and equality first!
Opponents of the CAA and its related laws draw strongly on the secular nature of Indian Constitution, but here again, India cannot rest on its laurels of inclusivity. Equality before the law has been increasingly out of reach of Muslims, Dalits, and women and children who are the victims of an ethos of dog eat dog survival. It is impossible for any country to honour a constitutional document without honouring those whose flesh and blood make material its social order.
It has been heartening to see the groundswell of support in both countries for the defense of land and peoples who are under attack by the same forces of “buy cheap and sell dear” capitalism that characterizes neo-liberal resource extraction and approach to labour power. Jumble the word “roti” and you get “riot”. Scramble the word “oil” and you get “loi”, the French word for law.
Who benefits when the rule of law cannot be implemented because there is no equality for social actors?