Zaki Nahaboo https://www.opendemocracy.net/taxonomy/term/11892/all cached version 06/07/2018 15:18:53 en The rights and wrongs of the High Court ruling on triggering Article 50 https://www.opendemocracy.net/zaki-nahaboo/rights-and-wrongs-of-high-court-ruling-on-triggering-article-50 <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>The UK Supreme Court will soon decide whether parliament has a say on Brexit. A lot rides on the decision, but either way one side will claim victory for ‘the people’.</p> </div> </div> </div> <img src="//cdn.opendemocracy.net/files/u555228/PA-29370527.jpg" width="100%" /> <p class="image-caption" style="margin-top:0px;padding-top:0px;">People gather outside the UK Supreme Court on 5 December 2016, while judges inside hear the government's appeal of an earlier High Court ruling stating that it must receive parliamentary approval before triggering Article 50. Tim Ireland/Xinhua/Sipa USA/Press Association. All rights reserved.</p> <p>The legal rights of all Britain’s inhabitants have become increasingly uncertain. The status of EU nationals who will reside in ‘post-Brexit’ Britain is still undecided. The future of existing EU legislation, such as the limiting of working hours and the <a href="http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf">right to be forgotten online</a>, may not find enduring traction once incorporated into domestic law. While the 1998 Human Rights Act was in part an outgrowth of the Council of Europe&#39;s European Convention on Human Rights (ECHR) and not the EU, its days may too be numbered as movement towards its repeal gains momentum due to Brexit. As a consequence, asylum seekers and advocates may soon find themselves with diminished instruments for pursuing justice. Speculation and scrutiny reign in equal measure.</p> <p>Lifting the Brexit fog and finding a clear path towards a potential ‘post-Brexit’ rights regime has received significant attention through select committees, academia and civil society. These avenues of inquiry are currently frustrated by the absence of plans for Britain’s excision from Europe in the public domain. Yet even without gaining access to the intricacies of Britain’s proposed terms of exit, certain parameters for conceptualising rights are beginning to organise dominant debates. The High Court ruling on <em>R (Miller) v Secretary of State for Exiting the European Union</em> and subsequent media coverage crystallises some of the key ways in which rights are being publicly framed and enacted in the run-up to Britain’s formal departure from the European Union. </p> <h2>The High Court ruling and the migration of rights</h2> <p>On 13 October 2016 Gina Miller, Dier Dos Santos, and the crowdfunded People’s Challenge placed the government’s manner of leaving the EU under judicial review. They were concerned that the government’s procedure for triggering Article 50 of the Treaty on European Union, the provision for allowing member states to leave the EU, <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/10/20161013-am.pdf">was not legal</a> since no legislation had been passed in parliament that could authorise its execution.</p> <p class="mag-quote-right">Leaving the EU offers an opportunity to redraw the boundaries of inclusion and exclusion, and political will is tilting towards the latter.</p> <p>The case was heard in the High Court and presided over by Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales. During <em>R (Miller) v Secretary of State for Exiting the European Union</em> the government defended its position by claiming that Article 50 can be triggered by using the “Crown’s prerogative”. This residual instrument of royal power, which can now legitimate a ministerial executive decision to break international treaties, <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf">was said</a> to apply since a repeal of legislation that brought Britain into the EU (the 1972 European Communities Act) would fall within its remit. While the royal prerogative is certainly an element of Britain’s unwritten constitution, and therefore part of <a href="http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html">what Article 50 deems</a> withdrawal in accordance with the state’s own “constitutional requirements”, the court’s judgement was unanimously in favour of Miller. The High Court ruled that an act of parliament would be needed to trigger Article 50.</p> <p>The High Court’s judgement was <em>inter alia</em> grounded on the effect leaving the EU would have on individual citizens. EU-derived rights of citizens could not be stripped away with an executive decision, and without legislation from parliament, since it would impact upon existing domestic legal protections. The <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/11/r-miller-v-secretary-of-state-for-exiting-eu-amended-20161122.pdf">Conservative proposal</a> to transfer of all EU law, and therefore all directives pertaining to rights, into primary legislation might appear to address this issue. Yet the ‘great repeal bill’s’ migration of EU law at the point of Brexit cannot guarantee a lossless transfer. For instance, citizens in Britain would be deprived access to the European Union Court of Justice. Moreover, incorporation into domestic law can be fleeting if certain provisions for repeal are added (e.g. a <a href="http://www.parliament.uk/site-information/glossary/henry-viii-clauses/">Henry VIII clause</a>). </p> <h2>Renouncing citizenship rights</h2> <p>The fallout of the High Court’s decision on 3 November 2016 was venomous. The following morning <em>The Daily Mail</em>’s headline read “enemies of the people” beneath a picture of the three judges. The claimant, Gina Miller, was viewed as seeking to derail Brexit by the backdoor. Twitter lit up with calls for her murder. The emphasis on the legality of Brexit being the prime and sole concern of the High Court was treated with suspicion. Gina Miller reiterated the High Court’s point, <a href="https://www.theguardian.com/politics/2016/nov/03/gina-miller-the-woman-behind-the-article-50-legal-challenge">stating that</a> “this case was about process not politics”. Slightly departing from this neat separation, she <a href="https://www.theguardian.com/politics/2016/nov/03/gina-miller-the-woman-behind-the-article-50-legal-challenge">also argued</a> that her actions were in service of those who wanted to “take back control”, as the case aimed to place parliamentary sovereignty at the centre of decision-making. </p> <p>Alexis de Tocqueville’s diagnosis of the threats facing democracy is perhaps debatable and anachronistic if transposed to Brexit Britain. However, variations on his perceived threats to democracy have been, rightly or wrongly, mobilised in public discourse in the aftermath of the High Court decision. Tocqueville saw the creation of interchangeable citizens through political equality emerge in tandem with the legal regulation of democratic expression. While essential for democracy, he saw that this might also be its downfall since the possibility for individual opinion to break free from the prescribed sites, times and processes of political engagement becomes dampened. An effervescence of opinion may surface during periodic voting (in our context a referendum on EU membership), but this quickly dissipates as citizens have their organised spontaneity subsumed under impenetrable and distanced decision-making processes.</p> <p class="mag-quote-left">Desire for immediate withdrawal from Europe, whatever the cost, is an active and unprecedented process of rejecting rights.</p> <p>Alongside the threat of “administrative despotism” wrought by the generation of servile citizens, Tocqueville saw democracy as haunted by a “tyranny of the majority” whose disregard for the rule of law could override both the voices of dissenting individuals and the legal institutions that uphold liberal democracies. Incensed Brexiteers find that the rule of law has become a regulative process to maintain the status quo and keep the wishes of ‘the people’ unfulfilled. Reacting to this alarmism, the opposing side claims that the wildfire Brexit populism is chipping away at the safeguards of liberal democracy. </p> <p>The dissenting voices of citizens against the High Court ruling, which fills social media and gains supposed representation through the tabloids, exceed being framed as either democracy being overridden by legal bureaucracies or populism overriding liberal democracy. From 5 to 8 December 2016, the Supreme Court heard the government’s appeal against the High Court ruling. Regardless of the Supreme Court’s ruling in January 2017, which will decide whether withdrawal from the EU requires binding legislation from parliament, the dissenting voices against parliamentary sovereignty exhibit more than what Miller implies to be a contradictory expression of political self-harm. Desire for immediate withdrawal from Europe, whatever the cost, is an active and unprecedented process of rejecting rights. </p> <p>Political figures of all stripes propagate the adage that globalisation has not benefited the ‘working people’, and claim Brexit as the response. Renouncing the role of parliamentary sovereignty to act on behalf of citizens for scrutinising the terms of EU disengagement parallels this process. The hateful bile spewed on the High Court ruling testifies to a growing feeling of disenfranchisement from the national structures of political representation and legality. </p> <h2>Denying human rights</h2> <p>The <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/11/r-miller-v-secretary-of-state-for-exiting-eu-amended-20161122.pdf">opening remarks</a> by the judges in the High Court made explicit that they are dealing with ‘a question of pure law’. This view was repeated in the Supreme Court when, in December 2016, the government appealed against the ruling. But when stepping digitally and physically outside these judicial sites it is much harder to keep law and politics separate.</p> <p>The claimant, Miller, felt this politicisation of the rule of law. She received death threats by members of the public. Racist tweets called on her to be ‘deported’. In <a href="http://www.newstatesman.com/politics/uk/2016/11/bigger-just-brexit-how-gina-miller-held-government-account-over-eu">an interview</a> with the <em>New Statesman</em>, Miller recounts how “people say things like, ‘she is black and therefore a primate, so we should hunt her down’”. When going against the tide of some Brexiteers’ desire for a hasty withdrawal, the perpetual immigrant or newly arrived find themselves encountering and countering the racist underpinnings of Brexit. While the growth of racism after the referendum in 2016 has been well documented, what are the implications of Brexit for the rights of the ever-expansive political category of the immigrant, whose status ranges from full citizen to refugee? </p> <p class="mag-quote-center">What are the implications of Brexit for the rights of the ever-expansive political category of the immigrant, whose status ranges from full citizen to refugee?</p> <p>The act of leaving the EU will not directly affect the formal existence of domestic anti-discrimination legislation. In addition, Britain’s incorporation of the ECHR through primary legislation, via the 1998 Human Rights Act, can remain applicable in domestic courts. The High Court ruling might therefore appear to have little to do with rights emanating from European institutions that are not conditional on EU membership. Yet there are potential implications of <em>Miller</em> for Human Rights in the UK.</p> <p>According to <a href="https://constitution-unit.com/2016/11/11/the-article-50-judgement-and-withdrawing-from-treaties/#more-5443">Harmish Mehta of University College London</a>, the case can be utilised as precedence for contesting the very unlikely scenario of the royal prerogative being used to instigate withdrawal from the ECHR. Whether this comes to fruition or not, the result of <em>Miller</em> and government pessimism about their appeal to the Supreme Court has already <a href="https://www.theguardian.com/law/2016/dec/09/uk-bill-of-rights-delayed-further-brexit-supreme-court-case-jeremy-wright">helped postpone</a> the Conservative agenda to repeal the Human Rights Act. At first glance, the legal situation of ‘immigrant’ appears unchanged for the near future. </p> <p>The political aftermath of <em>Miller</em> is, however, more consequential. Sections of the tabloid press and social media galvanised notions of ‘the people’ and ‘the law’ at loggerheads. This frame for conceptualising the rights of citizens against overbearing legal frameworks was <a href="http://www.independent.co.uk/news/uk/politics/theresa-may-speech-that-laid-out-plans-for-the-future-deleted-from-the-internet-a7137496.html">an animating force</a> behind the now postponed Conservative movement to scrap the Human Rights Act, as it relied on the momentum of taking back ‘control’. An exchange between William David Trimble and Sir Oliver Heald, the UK minster for human rights, in the human rights select committee on the 23 November 2016 highlights the continuing traction of this perspective. It <a href="http://www.parliamentlive.tv/Event/Index/e473533a-879a-417c-a337-ccba51f5f170">was argued</a> that the ‘great repeal bill’ could take place within a “context” of the currently undefined British Bill of Rights (a proposed replacement for the Human Rights Act).</p> <p class="mag-quote-right">The difference between the <em>Human</em> Rights Act and the <em>British</em> Bill of Rights is more than a semantic issue.</p> <p>The difference between the <em>Human</em> Rights Act and the <em>British</em> Bill of Rights (emphasis added) is more than a semantic issue. One of the sticking points of the former was Article 8 – the right to a private and family life – which it was argued could be used by migrants to appeal against Home Office integration strategies and court judgements. It remains to be seen how this article will be incorporated into a potential British Bill of Rights. Moreover, the March 2016 Council of Europe memorandum on human rights in Britain <a href="https://www.ein.org.uk/news/council-europe-publishes-memorandum-human-rights-asylum-seekers-and-immigrants-uk#memo">noted</a> that there was no time limit on migrant detention in legislation or “automatic right of migrant detainees to have detention reviewed by a court”. UK courts have <a href="https://www.ein.org.uk/news/council-europe-publishes-memorandum-human-rights-asylum-seekers-and-immigrants-uk#memo">long found</a> detainees subjected to “inhuman or degrading treatment”, in violation of the Human Rights Act and Article 3 of the ECHR.</p> <p>These enduring issues are now going to be debated in a context where politics and law are becoming increasingly viewed as synonymous by Brexiteers who advocate the ‘will of the people’. A successful British Bill of Rights may mark the culmination of this in ways that will lead to further human rights abuses. Existing provisions on human rights will necessarily be incorporated, but it may be up for debate as the explicitly national context of the proposed written constitution allows for an expression of the ‘British peoples’’ values (e.g. anti-immigration) to be potentially incorporated. </p> <h2>The future of rights after Brexit</h2> <p>The rights of individuals will be the major juridical and political issue during Brexit negotiations and long after Britain’s separation from the EU. Leaving the EU offers an opportunity to redraw the boundaries of inclusion and exclusion, and political will <a href="https://www.opendemocracy.net/gurminder-k-bhambra/brexit-commonwealth-and-exclusionary-citizenship">is tilting</a> towards the latter. The substance of rights is also being transformed. The negative response to the High Court ruling on the use of the royal prerogative showed how renouncing certain rights of representation marks the continuing protest against established national democratic conventions.</p> <p>The racism that was organised through numerous responses to the High Court ruling adds to the litany of events that indirectly bears upon the waning culture of human rights and the ever-increasing concern around non-White citizens. If legislation is eventually required to consolidate EU-derived and domestic rights in the form of a British Bill of Rights&nbsp;(or other written constitution), then vigilance is needed to see where provisions for the non-national fits in. How rights of non-nationals are to be envisaged for a ‘post-EU’ Britain requires scrutiny in tandem with a deeper understanding of why citizens want <em>less</em> formal channels of control over the Brexit process.</p> <div style="background-color: #f9f3ff; width: 100%; float: right; border-top: solid 3px #DAC2EA;" class="partnership-in-article-banner-infobox"> <div style="margin-bottom: 8px; padding: 14px;" class="partnership-in-article-banner-infobox-inner"><p><strong>Contribute to Brexit Migration Watch</strong></p> <p>It is clear that Brexit is going to have significant impacts on immigration and asylum law, policy, and the lives of immigrants in the UK. And yet if the likelihood of significant ‘implications’ is clear, the specific policy, legal and other changes remain unknown. OpenDemocracy’s new series Brexit Asylum Watch provides a space for expert analysis and reflection on the theme. </p> <p>If you would like to contribute, please email the editors <a href="mailto:l.mayblin@warwick.ac.uk">Lucy Mayblin</a> (University of Warwick) or <a href="mailto:cameron.thibos@opendemocracy.net">Cameron Thibos</a> (openDemocracy) with a short pitch of up to 300 words and a two-sentence bio sketch. </p> </div></div> <p>&nbsp;</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-anoth-sidebox"> <div class="field-items"> <div class="field-item odd"> <p>&nbsp;</p> <a href="https://opendemocracy.net/brexitdivisions"><img src="//cdn.opendemocracy.net/files/u555228/Brexit-banner-final-140px%40x2.png" width="100%" alt="Brexit Divisions small banner" /></a> <div style="font-size:85%"> <!--MONDAY--> <a href="https://opendemocracy.net/brexitdivisions/uta-staiger-benjamin-martill/business-and-trade-after-brexit">Business and trade after Brexit (series intro)</a><br />BENJAMIN MARTILL<br />UTA STAIGER <hr /> <a href="https://opendemocracy.net/brexitdivisions/iain-begg/economy-after-brexit-encouragingly-resilient-or-still-case-of-wait-and-see">The economy after Brexit: encouragingly resilient or still a case of ‘wait and see’?</a><br />IAIN BEGG <hr /> <!--TUESDAY--> <a href="https://opendemocracy.net/brexitdivisions/david-sch-fer/dominance-of-brexonomics">The dominance of Brexonomics</a><br />DAVID SCHÄFER <hr /> <a href="https://opendemocracy.net/brexitdivisions/brad-mckay/business-of-brexit-how-companies-make-decisions-in-uncertain-political-ti">The business of Brexit: how companies make decisions in uncertain political times</a><br />BRAD MCKAY <hr /> <!--WEDNESDAY--> <a href="https://opendemocracy.net/brexitdivisions/guy-sears/four-myths-about-brexit-and-financial-services">Four myths about Brexit and financial services</a><br />GUY SEARS <hr /> <a href="https://opendemocracy.net/brexitdivisions/katie-daughen/brexit-ireland-stands-to-lose-most">Brexit: Ireland stands to lose most</a><br />KATIE DAUGHEN <hr /> <!--THURSDAY--> <a href="https://opendemocracy.net/brexitdivisions/luis-gonzalez/international-trade-implications-post-brexit">International trade implications post-Brexit</a><br />LUIS GONZALEZ <hr /> <a href="https://opendemocracy.net/brexitdivisions/magdalena-frennhoff-lars-n/challenges-of-negotiating-post-brexit-fta-with-eu">The challenges of negotiating a post-Brexit FTA with the EU</a><br />MAGDALENA FRENNHOFF LARSÉN <hr /> <!--FRIDAY--> <a href="https://opendemocracy.net/brexitdivisions/oliver-patel/what-will-brexit-mean-for-london-s-tech-industry-and-digital-entreprene">What will Brexit mean for London’s tech industry and digital entrepreneurs?</a>OLIVER PATEL <hr /> </div> </div> </div> </div> <div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/owen-parker/labour-party-free-movement-and-brexit">The Labour Party, free movement and Brexit</a> </div> <div class="field-item even"> <a href="/gurminder-k-bhambra/brexit-commonwealth-and-exclusionary-citizenship">Brexit, the Commonwealth, and exclusionary citizenship </a> </div> <div class="field-item odd"> <a href="/lucy-mayblin/what-will-brexit-mean-for-asylum-in-uk">What will Brexit mean for asylum in the UK?</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> Brexit2016 Brexit migration watch Zaki Nahaboo Mon, 16 Jan 2017 07:00:00 +0000 Zaki Nahaboo 108111 at https://www.opendemocracy.net Political subjectivity in Edmund Burke’s India and liberal multiculturalism https://www.opendemocracy.net/openindia/zaki-nahaboo/political-subjectivity-in-edmund-burke%E2%80%99s-india-and-liberal-multiculturalism <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Edmund Burke’s speeches on India illustrate the emergence of the orientalised political subject. Traces of this in the present can be seen through the relationship between British multiculturalism and the undocumented migrant.&nbsp;</p> </div> </div> </div> <p>In the late eighteenth century a strand of conservative thought argued that one&rsquo;s enjoyment of &lsquo;rights&rsquo; was predicated upon cultural distinction and a venerated history. Edmund Burke&rsquo;s famous critique of Indian affairs was made possible by a new way of perceiving colonial subjects as endowed with culture and history, and therefore certain &lsquo;rights&rsquo;. Orientalism became the means of constructing this political subject. In what follows, I argue that British multiculturalist politics contains traces of this orientalised political subject in its concept of national citizenship. </p> <p align="center"><img src="http://www.opendemocracy.net/files/The%20Impeachment.jpeg" width="350" /></p><p align="center"><small><em>'The impeachment' (Warren Hastings; Edmund Burke), by Thomas Cornell (1792). <br /><a href="http://commons.wikimedia.org/wiki/File:The_impeachment%27_(Warren_Hastings;_Edmund_Burke)_by_Thomas_Cornell.jpg">Wikimedia Commons</a>. Public domain.</em></small></p> <p>Throughout Burke&rsquo;s political career, British presence in India was synonymous with the accumulation of capital by a quasi-private enterprise: the East India Company. Having wrested the eastern trade monopoly from the Portuguese by the 1640s, the company&rsquo;s commercial and political ventures in India began to intensify. By the latter half of the eighteenth century the company took on an overtly imperialist character, embarking on missions to &lsquo;wage war, make peace, raise taxes, and administer justice&rsquo;, with rents paid to the monarch and public returns &lsquo;for the benefit of the British nation&rsquo;. It is in response to the actions of Governor-General Warren Hastings that a campaign was launched to discover what principles and practices could be applied to justly govern this emergent colonial population. The writings and speeches of Edmund Burke spearheaded this late eighteenth century search for colonial reform.</p> <p>Burke, previously a supporter of the Company&rsquo;s autonomy and its chartered rights, sought to critique the administration of India and the Company on the grounds of exploitation, corruption, illegitimacy of rule and damage to social and cultural stability. His proposals for colonial reform were made possible by his mastery of contemporary orientalist discourse on Indian affairs. Despite the ending of his friendship with the esteemed orientalist, William Jones, when Burke suspected him of lending support to Warren Hastings during his impeachment, his influence on Burke is undeniable. In a letter to the first Marquis of Cornwallis, Jones stated that &lsquo;if we had a complete Digest of Hindu and Mohammedan laws &hellip; we should rarely be at a loss for principles at least and rules applicable to the cases before us&rsquo;. Burke&rsquo;s &lsquo;patronizing/patronized orientalism&rsquo; reflected Jones&rsquo;s ambition of justifying new foundations for rule and legitimacy to differentiate colonial subjects. </p> <p>Burke speaks of Indians as &lsquo;civilized&rsquo; and &lsquo;cultivated&rsquo;, in comparison to what he saw as the origins of Europe. This sentiment led him to state that Indians should be governed &lsquo;upon their own principles and maxims and not upon ours, that we must not think to force them to our narrow ideas, but extend ours to take in theirs.&rsquo; He justified this through cultural difference. Burke claimed, for example, that Indians were unable to cross the ocean without losing their caste and were prohibited by custom from sharing a meal with foreigners. It is from this sympathy with the other that his pioneering critique of the East India Company aimed to rally parliament against &lsquo;civilizational hierarchies &hellip; by which British power justified its territorial expansionism and commercial avarice&rsquo;. Burke ultimately sought to reform the Company&rsquo;s affairs &lsquo;in the name of those [who] suffered from its moral and political exclusions&rsquo; since he saw <em>the other</em> as enfeebled by colonialism and cowering in the light of the British state. For Burke, Indians constituted a political community. </p> <p>Of course Burke&rsquo;s attempt to recover and protect the imagined &lsquo;rights&rsquo; of Indians can be viewed as pre-empting the colonial invention of tradition to legitimate imperial authority amongst the Indian populace: a logic which shapes culture as a &lsquo;means and end of colonial conquest&rsquo;. After all, knowing the Indian through history and culture did not lead Burke to reject colonial rule during the impeachment of Hastings. Burke only intended that local traditions should not be swept aside by the forces of colonialism. Once we contrast this configuration of &lsquo;difference management&rsquo;, with practices reserved for those deemed to fall outside orientalist knowledge, namely black slaves, we start to reveal the full functionality of this orientalised political subject.&nbsp; </p> <p>Why were black slaves not conceptualised in the same orientalising terms Burke showed for Indians? Burke&rsquo;s early justification of slavery appears to contradict his famous critique of geographical morality: &lsquo;the slaves we buy were in the same condition in Africa&rsquo;. This was the case since blacks were not an object of orientalist sympathy. They were seen as having no distinctive history apart from slavery. Burke could not deploy history to legitimate rights in this presumed all-determining situation of an unchanging violence. Since there was no threatened or forgotten tradition to be recognized and sympathised with, blacks could not be seen as bearers of rights which could be infringed by colonialism. </p> <p>To say black slaves, as the sub-humans of eighteenth century thought, have no history apart from slavery, is also to make a subtle claim that they have no history without Europeans. It can be argued convincingly that European and African history is embedded within a unified historical process of capital expansion. However, Burke is not pointing to the intractability of &lsquo;their&rsquo; and &lsquo;our&rsquo; histories through the world system. Instead it is this absence of history deemed to be outside &lsquo;the West&rsquo; that has a profound impact upon how black slaves are imagined, in a state of pure passivity. </p> <p>When we turn to Burke&rsquo;s gradualist abolitionism, in <em>A Sketch of the Negro Code</em>,<em> </em>there is no recourse to local tradition as a means for justifying why the institution of slavery should be reformed. Instead his proposed regulations were a means to civilise. Similarly, when he ponders emancipation in his <em>Speech on Conciliation with America, </em>he considers that it will come at the hands of the master. Although Burke notes that slaves may be suspicious of abolition from &lsquo;that very nation which has sold them to their present masters&rsquo;, he nevertheless makes no suggestion (if we were to follow his logic) that emancipation coalesces with African traditions. </p> <p>Burke was able to distinguish Indians from black slaves by shrouding the foundational violence of British presence in India with a &lsquo;sacred veil&rsquo;. This serves to legitimate the &lsquo;uncovering&rsquo; of Indian&rsquo;s &lsquo;authentic&rsquo; forgotten past to find a basis for political legitimacy, functional for both a benevolent colonialism and the &lsquo;recognition&rsquo; of Indian political subjectivity. The fabricated distance from the &lsquo;true&rsquo; mythical India enabled Burke to separate contemporary Indian practices, which he admitted might have offended British law, from principles during the impeachment trial. The application of orientalist knowledge led to the &lsquo;uncovering&rsquo; and essentialisation of native laws and institutions supposedly on the cusp of being derided and forgotten through colonialism. Burke was led to &lsquo;respect&rsquo; the &lsquo;great force&rsquo; and &lsquo;stability&rsquo; of Muslim institutions, claiming that their vast historical permanence placed their laws outside of British judgement. </p> <p>When faced with Hastings&rsquo; &lsquo;geographical morality&rsquo;, which posited that bribery and exploitation were in accordance with local despotic custom, Burke is commonly said to have drawn upon universalising arguments derived from natural law. However it is Burke&rsquo;s orientalist veneration of an imagined India that led him to critique Hastings&rsquo; portrayal of oriental despotism. Burke stated &lsquo;Oriental governments know nothing of this arbitrary power&rsquo;. He argued &lsquo;<em>their</em> morality is equal to ours&rsquo;. If this separation between us and them did not impinge upon a differential valuation of morality, it was precisely because of Burke&rsquo;s reverence for imagining tradition as historically and culturally situated grounds for debating justice.</p> <p align="center"><img src="http://www.opendemocracy.net/files/502px-Portrait_of_East_India_Company_official.jpeg" width="350" /></p> <p align="center"><em><small>Portrait of East India Company Official by Dip Chand (1760-1764). <br /><a href="http://commons.wikimedia.org/wiki/File:Portrait_of_East_India_Company_official.jpg">Wikimedia Commons</a>. Public domain.</small></em></p> <p>Burke saw that political power in India could only be legitimated through a state&rsquo;s duty to uphold the customary and property rights of its subjects (against Company abuse), which was also the condition through which natural law could be known and respected. Orientalism plays a crucial part in enabling this position. Yet Burke&rsquo;s orientalism diversifies the model of what it means to be a political subject beyond that of the abstract ahistorical citizen.</p> <p>This fuelled the disagreement between Burke and Hastings, leading to a situation whereby Burke&rsquo;s notion of oriental tradition as neither despotic nor entirely beyond the West&rsquo;s judgement, had a subversive impact on &lsquo;political orientalism&rsquo;, which held that the only way of expressing the political is through an abstract judging Western political subject defined in contrast to the despotic oriental. This position matures as he concludes the first day of the impeachment of Hastings:<em> </em>&nbsp;&lsquo;I impeach him in the name of all the Commons&hellip;whose name he has dishonoured&hellip; I impeach him in the name of the people of India, whose laws, rights and liberties he has subverted &hellip; I impeach him in the name of human nature itself, which he has cruelly outraged, injured and oppressed&rsquo;.</p> <p>By turning to this less acknowledged and largely unrealised strand of early colonial &lsquo;difference management&rsquo;, we can see how Burke&rsquo;s version of orientalism (eroticizing the other can lead to the &lsquo;recognition&rsquo; of different political traditions) reconfigures and subverts the thematic of &lsquo;political orientalism&rsquo; (there is only one form and body through which politics can be recognized in opposition to an inferior East). Burke exemplifies a branch of (anti)colonial and anti-Jacobin thought which imagined political subjectivity as visualized through and enacted by virtue of historical precedent. Not any history or people could be recognized to exhibit political subjectivity, only those who could be culturalised and historicised. Orientalist knowledge provided the means of rendering the Indian intelligible on these politicising terms, while emplacing the slave beyond the pale of discrete historical traditions. </p> <p>In contrast to the abstract western citizen defined against non-western others, this manner of knowing the subject allows Burke to maintain his conception of the British constitution as a benchmark for the political, valuing Indians because of their supposed equality &lsquo;in law, culture and political institutions&rsquo;, while also refraining from ascribing them any claim to sovereignty. The complex and ambivalent orientalised political subject, as a product of early colonial &lsquo;difference management&rsquo;, was a figure founded for both domination and liberation, at once on terms acquiescent to western valuations of the political subject and beyond such valuations.</p> <h3>Multiculturalism and the undocumented migrant</h3> <p>Times have changed. The configuration of &lsquo;difference management&rsquo; has shifted from how to live as and with colonial subjects to how to live as and with minoritized citizens. This is no longer a set of practises sustaining a moral justification for empire and the preservation of tradition. Through multiculturalism, its modern day task is the maintenance of a cohesive national state capable of &lsquo;recognizing&rsquo; multiple identities. </p> <p>Turning to the birth of the orientalised political subject has shown us how a coupling of tradition and orientalism split those who could be &lsquo;recognized&rsquo; as exhibiting non-western forms of political subjectivity from those who were deemed without tradition. Two figures emerged from this: the culturalised Indian and the naturalised black slave. Clearly these subjects have mutated over centuries of colonial government, and now come to reside in the margins of national history.&nbsp; Traces of this colonial hierarchy, and how this differentiation was utilised to subvert political orientalism, can however still be found through the ways in which liberal-pluralist British multiculturalism administers its own &lsquo;difference management&rsquo; of the minoritized citizen and the undocumented migrant. </p> <p align="center"><img src="http://www.opendemocracy.net/files/Shah-alam-ii-mughal-emperor-of-india-reviewing-the-east-india-companys-troops-1781-1894_1247854.jpeg" width="350" /></p> <p align="center"><small><em>Shah Alam II, Mughal Emperor of India, reviewing the <br />East India Company's troops, 1781 by John Richard Green (1894). <br /><a href="http://commons.wikimedia.org/wiki/File:Shah-alam-ii-mughal-emperor-of-india-reviewing-the-east-india-companys-troops-1781-1894_1247854.jpg">Wikimedia Commons</a>. Public domain.</em></small></p> <p>Once we shift to multiculturalist &lsquo;difference management&rsquo;, essentialism, culturalism and hierarchies of culture as means of determining one&rsquo;s rights are resolutely rejected. Instead we have the site of multicultural struggle, collective tradition and active conceptions of citizenship. Although multiculturalism steers clear of undermining the ever-inclusive figure of the liberal citizen, it diversifies what it means to be political. Attempts at recognition such as &lsquo;Muslim assertiveness&rsquo;, religiously conceived political enactments or differentiated legal positions as an expression of citizenship, introduce a fleeting difference into the western ideal of what constitutes expressions of political subjectivity. It questions the premise that there is only one model and path of political subjectivity through the master signifier of the liberal citizen defined against an orientalised other. British multiculturalism achieves this by culturalising politics, at the same time as it creates a new figure devoid of culture and tradition: the undocumented migrant.</p> <p>In the <em><a href="http://www.amazon.co.uk/Future-Multi-Ethnic-Britain-Parekh-Report/dp/186197227X">Parekh Report</a> </em>justice is a matter of extending human rights, not one of culturalising the undocumented so as to recognize equal status. The <a href="http://www.runnymedetrust.org/publications/29/74.html"><em>Parekh Report</em> </a>warned that multiculturalism cannot be secured by &lsquo;tough immigration policies&rsquo;. It condemns the racialisation of immigration and puts forward various recommendations to overcome negative stereotypes and monitor treatment in reference to the 1998 Human Rights Act and EU policy. </p> <p>Seeking to extend the civil and social rights for those who are deemed undeserving by virtue of where they originate from and their status of mobility, at the expense of culturalising migration (the problem in the first place), is a welcome move. Yet as we have seen, multiculturalism subverts &lsquo;political orientalism&rsquo; not by directly challenging nationally conceived rights, but by undermining its homogeneity. Multiculturalism diversifies enactments of citizenship through the subject of the minoritized citizen. However the challenges multiculturalism poses to the unified singular political subject can only emerge at the expense of the non-citizen. The potential of the minoritized citizen is dependent upon being a bearer, if not a champion, of liberal rights. This is realised against the backdrop of those who cannot formally belong to the national community. The paradox in Burke&rsquo;s culturalisation of the other as a means of simultaneously maintaining and subverting domination is cast anew in the form of a differentiated culturalised citizen whose subversion of &lsquo;political orientalism&rsquo; can only be attempted if occupying the position of a <em>nationally esteemed rights-bearing other</em>, in contradistinction to the undocumented. </p> <p>Michel Foucault reminds us that discourse is not simply &lsquo;divided between the dominant discourse and the dominated one; but [exists] as a multiplicity of discursive elements that can come into play in various strategies&rsquo;. By pointing to the emergence of the orientalised political subject, we have seen how this subject was conceived as both manageable for colonial rule and devised to question a homogenous western ideal for conceiving of political subjectivity. <em>The other</em> to this orientalised political subject was not simply the self-determining Briton, but the slave that was imagined without tradition. Once we shift to the minoritized citizen, this contemporary figure is envisioned through multiculturalist state practice to simultaneously constitute and mollify issues of cohesion, illiberal extremism and so on. Yet this figure also threatens western conceptions of political subjectivity by bringing culture and religion to the fore of the political; the last bastion which allowed the west to politically define itself against others. Nonetheless, this contemporary subversion of &lsquo;political orientalism&rsquo; has also reconstituted its own other: the undocumented migrant. </p> <p>Today, disillusionment is rife concerning multiculturalism&rsquo;s potential for both anti-racism and securitization. Could this be an opportunity to make the mapping of the traces of the orientalised political subject into a critical enterprise, finally moving us beyond the contradictory legacies of colonial domination?</p> <p>&nbsp;</p><p><em>This article is an edited extract of &lsquo;Subverting orientalism: political subjectivity in Edmund Burke&rsquo;s India and liberal multiculturalism&rsquo; which appeared in the Citizenship Studies 2012 special issue &lsquo;Citizenship after orientalism: an unfinished project&rsquo;. The referenced and complete essay can be found&nbsp;</em><a href="http://dx.doi.org/10.1080/13621025.2012.698483"><em>here</em></a><em>. </em><span style="font-style: italic;">The research leading to these results has received funding from the European Research Council under the European Union's Seventh Framework Programme (FP7/2007-2013) / ERC grant agreement n&deg; 249379.</span><span style="font-style: italic;">&nbsp;</span></p> <br /><p><em>This article forms part of an <a href="http://www.opendemocracy.net/freeform-tags/oecumene-citizenship-after-orientalism">editorial partnership</a>, funded by the Oecumene Project and the Open University, launched in November 2012.</em></p> <p align="center"><a href="http://www.opendemocracy.net/freeform-tags/oecumene-citizenship-after-orientalism"><img src="//cdn.opendemocracy.net/files/u537772/OUEPLOGO.png" width="460" alt="An editorial partnership with Open University" /></a></p> <fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p><a href="http://www.opendemocracy.net/freeform-tags/oecumene-citizenship-after-orientalism"><img src="http://www.opendemocracy.net/files/Oecumene page final.jpeg" alt="" width="140" /></a></p> <p>Read more from the <a href="http://www.opendemocracy.net/freeform-tags/oecumene-citizenship-after-orientalism">Oecumene: Citizenship after Orientalism</a> editorial partnership with openDemocracy.</p> </div> </div> </div> <div class="field field-sidebox"> <div class="field-label"> Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p><img src="http://www.opendemocracy.net/files/Oecumene logo.png" alt="" width="140" /> </p><p><a href="http://www.oecumene.eu/events/2nd-symposium">Deorientalising citizenship?</a> The second Oecumene symposium, 12-13 November, London.</p> <p>What images of citizenship are emerging in relation to the processes of decolonization and deorientalization? Keynote speakers Saba Mahmood and Walter Mignolo together with a selection of panellists will address this question from multi-disciplinary perspectives.</p> <p><b><a href="http://www.oecumene.eu/events/2nd-symposium">Event booking and details</a></b></p> </div> </div> </div> <div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/engin-isin/citizenship-after-orientalism-introduction">Citizenship after orientalism - an introduction</a> </div> </div> </div> </fieldset> <div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> <div class="field-item even"> India </div> </div> </div> <div class="field field-topics"> <div class="field-label">Topics:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Civil society </div> <div class="field-item even"> Conflict </div> <div class="field-item odd"> Culture </div> <div class="field-item even"> Democracy and government </div> <div class="field-item odd"> Equality </div> <div class="field-item even"> Ideas </div> <div class="field-item odd"> International politics </div> </div> </div> openIndia openIndia uk India UK Civil society Conflict Culture Democracy and government Equality Ideas International politics Citizenship and the juridical-political Oecumene: Citizenship after Orientalism Zaki Nahaboo Mon, 05 Nov 2012 10:34:00 +0000 Zaki Nahaboo 69140 at https://www.opendemocracy.net Zaki Nahaboo https://www.opendemocracy.net/content/zaki-nahaboo <div class="field field-au-term"> <div class="field-label">Author:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Zaki Nahaboo </div> </div> </div> <div><span>Zaki Nahaboo is Lecturer in Sociology and member of the European Institute at Liverpool Hope University.</span><span><br /></span></div> Zaki Nahaboo Sat, 03 Nov 2012 12:48:01 +0000 Zaki Nahaboo 69141 at https://www.opendemocracy.net