[IRPCoalition] The Absence of Due Process/Was Re: Re CIS' Statement on Sexual Harassment at ICANN55

Tue Mar 22 02:34:23 EET 2016

Dear All,

I agree with the spirit of Nighat's email and some of the recommendations
by the Center of the Internet Society and offer some remarks on Due Process.

*Due Process - Setting the Context*

For British common law systems, "Due Process" is a principle emerging from
English common law tradition, see Chapter 39 of the Magna Carta: "“No
freeman shall be arrested, or detained in prison, or deprived of his
freehold, or outlawed, or banished, or in any way molested; and we will not
set forth against him, nor send against him, unless by the lawful judgment
of his peers and [or] by the law of this land.”

English Jurist Edward Coke's efforts saw the replacement of the "law of the
land with "due process of the law" and influenced the fourth article of the
Petition of Right (1628), “That no man of what estate or condition that he
be, should be put out of his land or tenements, nor taken nor imprisoned,
nor disinherited, nor put to death without being brought to answer by *due
process of law*.”

Within the  Fifth and Fourteenth Amendments of the U.S. Constitution as
well as in various state constitutions, read that no person shall be
“deprived of life, liberty, or property *without due process of law*.”

Abhinav Chandrachud argues
<http://www.thehindu.com/opinion/op-ed/of-constitutional-due-process/article436586.ece>
that
in India, due process has become a part of Indian constitutional law via
backdoor entry despite constitution framer's intent, see *Selvi v Karnatka*
 and *Union of India v R.Ghandi.*

*Case Study of Why Due Process is Important and Central to Democratic Ethos*
In February, 2016, Jawaharlal Nehru University Students Union president
Kanhaiya Kumar was taken into Police Custody for 3 days and faced sedition
charges. Students called it a "witch-hunt"
<http://www.thehindu.com/news/cities/Delhi/jnusu-president-arrested-under-sedition-charges/article8227527.ece>
.For Kanhaiya Kumar to defend himself against "tyranny" he has to be able
to trust that "Due Process" exists and that his freedom won't be
arbitrarily taken away from him without a proper trial where he can also
"defend himself". The JNU Teaching Staff said that the conduct of the
Police was a threat to "democratic ethos".

*Alleged Sexual Harrassment Incident at ICANN55 and the Need for Due
Process*

The matter was reported to the Ombudsman by the Complainant and would have
been under investigation. Most ICANN venues are conducted within hotel
premises where CCTV cameras are present. Time and space *have to be given*
to the investigators to conduct their appraisal. It is the right of the
complainant to register a complaint and to divulge the nature of her
complaint to others for as long as it does not prejudice the investigations.

It is also the right of the "accused" to defend himself in the course of
these discussions otherwise what we are seeing is *Trial by Peers *without
a proper process.

In any event, the complainant has many avenues available to her to launch
redress and as a law student and one who has access to lawyers, there are
many avenues.

Whether this is the case against JNU's Kanhaiya Kumar or in this case the
alleged offender an "unverified", "unsubstantiated" and "unproven" attack
without proper due process is a severe breach of human rights.  Pre Trial
Publicity does neither party any good. This is why you have systems in
place, for example in Padimini's case, the Ombudsman who must be given room
to conclude the ICANN Office of Ombudsman's investigation.

ICANN  has a formal redress system. The Board and the Ombudsman are well
within their powers to appoint a committee to investigate the same. ICANN
has Expected Standards of Behavior
<https://www.icann.org/resources/pages/expected-standards-2012-05-15-en>
for Stakeholders which includes behaving ethically and responsibly and
considers ethics and integrity as important. There is need for specific
Sexual Harassment Policy and the US DoS
<http://www.state.gov/s/ocr/c14800.htm> has a good one which can be largely
mirrored.

*Perspective*
If Khaled really did do what he is being alleged to have done, then there
is a proper process to follow and if he did do what he is alleged to have
done, then his conduct should be penalized and appropriate disciplinary
actions taken.  Another way of looking at this is: If Padimini was sexually
harrassed, then she can log a formal complaint and allow for the process to
take its course.

Kind Regards,
Sala

On Tue, Mar 22, 2016 at 10:28 AM, Marianne Franklin <m.i.franklin at gold.ac.uk
> wrote:

>
> Dear all
>
> See below for an important thread about sexual harassment, at the recent
> ICANN meeting but also with respect to the IGF. Of importance to all of us
> working with and within Dynamic Coalitions and other events.
>
> best
> MF
>
> -------- Forwarded Message --------
> Subject: Re: [bestbits] CIS' Statement on Sexual Harassment at ICANN55
> Date: Mon, 21 Mar 2016 18:15:32 +0200
> From: Nadira Alaraj <nadira.araj at gmail.com> <nadira.araj at gmail.com>
> Reply-To: Nadira Alaraj <nadira.araj at gmail.com> <nadira.araj at gmail.com>
> To: nigidaad at gmail.com
> CC: <bestbits at lists.bestbits.net> <bestbits at lists.bestbits.net>
> <bestbits at lists.bestbits.net> <bestbits at lists.bestbits.net>,
> NCSG-DISCUSS at listserv.syr.edu <NCSG-DISCUSS at listserv.syr.edu>
> <NCSG-DISCUSS at listserv.syr.edu>, Sunil Abraham <sunil at cis-india.org>
> <sunil at cis-india.org>, ncuc-discuss at lists.ncuc.org
> <ncuc-discuss at lists.ncuc.org> <ncuc-discuss at lists.ncuc.org>
>
> Dear all
> I commend Ms. Padmini Baruah courage for bringing this issue to ICANN and
> to the civil society public forums.
> The discussion here raises a questions and I would like to direct this to
> those senior with ICANN.
> How we can create a working group to discuss this issue under ICANN
> umbrella? It is important the recommendations of this group to be
> instituted into ICANN.
> Which body of ICANN will grant the official existence of this group and
> what constituency it will work?
> Hoping these answers will bring the existence of this working group and
> follow the pattern of button up approach in decision making of ICANN and to
> follow with the recommendations of Padmini to make them happen.
> Best wishes,
> Nadira Alaraj
> On Mar 21, 2016 6:32 PM, < <nigidaad at gmail.com>nigidaad at gmail.com> wrote:
>
>>
>> First of all, I would like to say I think that Ms Baruah is an incredibly
>> brave woman for not only making her story public, but also for not giving
>> up despite being discouraged to report the incident and CIS for issuing a
>> statement on rather ignored issue within our own circles. I personally know
>> many women who don’t report harassment because there is a lack of support
>> and significant discouragement. Unfortunately, this leads to silencing and
>> harassers are thus granted impunity.
>>
>> Ms Baruah’s statement betrays another reality that women in this field
>> have to live with if they wish to continue working: her harasser was
>> granted access to her space where he was allowed to make her uncomfortable
>> by staring. I have lost count of the number of women who have spoken about
>> this. Unless a strong accountability mechanism is enforced, the rate of
>> reporting harassment will remain low. Women will not come forward unless
>> they are guaranteed that they will not have to face their harasser until
>> they are ready to. Furthermore, having to face a harasser is triggering and
>> emotional exhaustion leads to giving up.
>>
>> This incident should lead to reflection regarding harassment in our own
>> tech community and development in general.
>>
>> Strong policies should not only be enforced, but should be culturally
>> sensitive. For example, if women from a very patriarchal country report
>> harassment to someone, they should not be asked to first officially report
>> it legally. Some are unable to do so and will hesitate to do so due to lack
>> of support.
>>
>> More than anything else, as a community, we need to reflect on how we got
>> here and why. Perhaps some accountability on our own roles is necessary
>> because men would not able to harass women so easily unless they knew they
>> had impunity on some level. While it is heartening to see conversations
>> taking place, I don’t believe we can have meaningful change unless we all
>> collectively discuss how we got here in the first place. Why does the tech
>> development industry have such a bad reputation when it comes to
>> harassment? Surely it isn’t the result of a conspiracy against us.
>>
>> Jac it would be great if we make this discussion happen at Gender Dynamic
>> Coalition in next IGF and discuss how to address the issue of sexual
>> harassment not only restricted to spaces like ICANN and IGF but within our
>> own community.
>>
>> My two cents..
>>
>> Best,
>> Nighat Dad
>> Digital Rights Foundation, Pakistan.
>>
>> Sent from my iPhone
>>
>> On 21-Mar-2016, at 8:00 pm, Sunil Abraham < <sunil at cis-india.org>
>> sunil at cis-india.org> wrote:
>>
>> The Centre for Internet and Society
>>
>> Statement on Sexual Harassment at ICANN55
>>
>> The Centre for Internet and Society (“CIS”) strongly condemns the acts of
>> sexual harassment that took place against one of our representatives, Ms.
>> Padmini Baruah, during ICANN 55 in Marrakech. It is completely unacceptable
>> that an event the scale of an ICANN meeting does not have in place a formal
>> redressal system, a neutral point of contact or even a policy for
>> complainants who have been put through the ordeal of sexual harassment.
>> ICANN cannot claim to be inclusive or diverse if it does not formally
>> recognise a specific procedure or recourse under such instances.
>>
>> Ms. Baruah is by no means the first young woman to be subject to such
>> treatment at an ICANN event, but she is the first to raise a formal c o
>> mplaint. Following the incident, she was given no immediate remedy or
>> formal recourse, and that has left her with no option but to make the
>> incident publicly known in the interim. The ombudsman’s office has been in
>> touch with her, but this administrative process is simply inadequate for
>> rights-violations.
>>
>> Ms. Baruah has received support from various community, staff, and board
>> members. While we are thankful for their support, we believe that this
>> situation can be better dealt with through some positive measures. We ask
>> that ICANN carry out the following steps in order to make its meetings a truly
>> safe and inclusive space:
>>
>>
>>    1.
>>
>>    Institute a formal redressal system and policy with regard to sexual
>>    harassment within ICANN. The policy must be displayed on the ICANN website,
>>    at the venue of meetings and made available in delegate kits.
>>    2.
>>
>>    Institute an Anti Sexual Harassment Committee that is neutral and
>>    approachable. Merely having an ombudsman who is a white male, however well
>>    intentioned, is inadequate and completely unhelpful to the complainant. The
>>    present situation is one where the ombudsman has no effective power and
>>    only advises the board.
>>    3.
>>
>>    Conduct periodic gender and sexual harassment training of the ICANN
>>    board to help them better understand these issues.
>>    4.
>>
>>    Conduct periodic gender and sexual harassment training for the
>>    ombudsman even if he/she will not be the exclusive point of contact for
>>    complainants as the ombudsman forms an important part of community and
>>    participant engagement.
>>    5.
>>
>>    Conduct periodic gender sensitisation for the ICANN community.
>>
>>
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*Salanieta Tamanikaiwaimaro aka Sala T*

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