The Widows of Malabar Hill by Sujata Massey

(39. – 1,010) The Widows of Malabar Hill by Sujata Massey - One of the most fascinating works of legal fiction I have read.

I was instantly intrigued by the lead lawyer. In 1921 Perveen Mistry is the first female solicitor in Bombay. Working in the family firm her father is going to court and she is handling contracts. Clients and the legal administration are not quite ready to have a woman represent them in court.

The Mistry’s are Parsi. Of Persian origins they are Zoroastrians. Though “Parsis accounted for just 6 percent of Bombay’s total inhabitants, they constituted one-third of its lawyers”.

And then the case. Perveen is suspicious about a letter she has received from Faisal Mukri, who is the estate trustee and household agent for the estate of Omar Farid. He had three wives at his death. I had not anticipated the widows of the title would have shared a husband.

The letter states “that all the widows wanted to give up their assets as donations to the family’s wakf, a charitable trust that provided funds each year to the needy while paying a dividend to specified relatives. While a man or woman certainly could donate wherever he or she desired, wakfs were assiduously monitored by the government in order to prevent fraud, and a sudden infusio of money might be cause for scrutiny.”

Why would they want to give up their assets?

Perveen’s father cannot discuss the letter with the Moslem widows as they will not meet with a man who is not their husband or a close family relative but it is possible for Perveen to talk directly with them.

Meeting with the widows provides insight into the challenges of three wives sharing a home. Beyond internal rivalries they had lived in purdah spending virtually all their time within the house. Now they have an even more cloistered life with their husband gone.

And then Mukri is murdered within the house. The widows and servants are the  obvious suspects. From his treatment of everyone in the house to what he wanted to do with the estate motives abound for killing Mukri.

Farid died without a will. Rigid laws on inheritance create fear and friction.

As a lawyer I was caught up in the challenges presented in the book by differing laws for Indians of that time depending on their faith. Laws, such as divorce law, varies for Hindus, Moslems, Sikhs, Parsis and possibly other faiths. And then there is English law.

Women are at a disadvantage under all the legal systems. 

Perveen is unusual, not only because she is a professional woman but because she is the friend of the daughter of a prominent English administrator. Perveen and Alice Hobson-Jones attended Oxford together. The friendship creates interesting dynamics as Alice’s father is overseeing the murder case.

The investigation is sensitive. While a killer must be found the British do not want to provoke unrest and possibly riots by Muslim Indians if they do not respect the privacy rights of the secluded women, questioning them is a challenge. Will they close ranks against the police or will they turn upon one another?

Perveen is the only person with the standing from her sex, her professional status and social connections who can move between all the levels of personal, religious and business societies entertwined in the book.

Life is complicated for wealthy women in colonial India. Even for women not living in purdah they are bound by the traditions of the particular faith of their family and rarely associate with members of other faiths and only socialize within their own communities.

There is an architectural component to the solution that was subtle and vital to the resolution of the case and completely appropriate to the plot.

It is a good mystery with a plausible ending. Perveen finds the solution but it does not involve her legal skills. The Widows of Malabar Hill is the first in a series. I hope subsequent books more fully use the legal talents of Perveen.

With so many laws covering the same areas it would have been intriguing to be a lawyer in the Bombay of the 1920’s. I thought there must have been many conflicts over which law would prevail when the opposing parties were of different faiths. Which law has priority?

Perveen is such a great character my next post will be about her.

2019 Harper Lee Prize Winner - The Boat People

Earlier this month The Boat People by Sharon Bala was announced as the winner of the 2019 Harper Lee Prize for Legal Fiction. It was a coincidence I was putting up posts on The Boat People at the same time. From the shortlist for the Award I am currently reading The Widows of Malabar Hill Earlier this month I had read Class Action, the third book on the shortlist. 

The joint press release of the University of Alabama Law School and the American Bar Association Journal announcing The Boat People as winner states;

“‘The Boat People’ is timely and powerful. Even those who think they are versed in the various vantage points involved in the complex area of immigration will gain a deeper appreciation of the nuances by reading Sharon Bala’s first novel,” said Molly McDonough, editor and publisher of the ABA Journal. “The book explores the perspectives of desperate refugees; the attorneys who – voluntarily or not – are trying to help them; and the adjudicators who are asked to make potentially life-or-death decisions with little to no evidence.”

Legal mystery fiction author and a member of this year’s judging panel, Claire Matturo offered a powerful endorsement of the book in a CBC article: 

           "The Boat People” touched me, haunted me and educated me — in much
           the same way To Kill a Mockingbird did when I first read it 
           as an impressionable child," …..

"It's the kind of book I wish the whole world could read with an open mind and an open heart."

In the joint press release Bala is quoted as follows:

“Writing this novel was a meditation on empathy. My greatest hope is that it has the same effect on readers.”

Bala on her website added a statement on how she will be using the attention from the Awards to gain her attention in Canada’s political debates:

Refugee law, and in particular, the perfectly legal and legitimate process of coming to the border and seeking asylum, is a situation that is woefully misunderstood by the general public. It doesn’t help that so many Canadian politicians - many of them lawyers by training - willfully and purposely lie. Fiction can be the antidote, translating the letter of the law into a compelling plot and using imagined characters to show readers the truth. The truth is so important. This is a federal election year and now more than ever we all have a duty to tell the truth. Loudly. And as often as possible. Awards give me and my book a soap box and a megaphone. For these gifts, I’m incredibly grateful.

It is an excellent book forcing readers to think about refugee claimants. Much of the world has become resistant to claims.

Each year readers of the ABA Journal can vote on the Award. The winner of that voting process constitutes one vote on the voting panel. This year the votes were 43.88% for Class Action, 35.41% for The Widows of Malabar Hill, and 20.7% for The Boat People. 

Following my personal tradition once I have posted my review of The Widows of Malabar Hill I will write a post on which book I thought should have won the Award.

An Ending for The Boat People by Sharon Bala

This post definitely
contains spoilers. In particular, it discusses the ending of The Boat People by Sharon Bala.

The Boat People tells the story of 503 Tamils who, fleeing Sri Lanka, arrived off the coast of Vancouver Island. They faced rigorous examination of their refugee claims. The book focuses on the story of Mahindan, a mechanic, and his son, Sellian. As the story concludes Mahindan is about to enter an admissibility hearing that will determine if they are allowed to stay in Canada. To my surprise and regret Bala chose not to tell whether they succeeded.

On her website under the link for Contact Bala provides a link to FAQs where she states with regard to the ending:

Mahindan goes into the admissibility hearing ready to face the future head on. But Canada's refugee system is capricious. So much depends on individual adjudicators' good and bad moods, their ignorance and understanding.  Maybe Grace is feeling generous. Maybe she's in a foul mood ….

Mahindan's entire life has been a series of unlucky and lucky dice rolls. Stories are partnerships, co-created by writers and readers. I left the dice on the table for you to make the next roll. Put yourself in the adjudicator's uncomfortable shoes. You know what Mahindan's done and his motivations. Does he deserve to stay or be deported? You also know the forces and people working for and against him. You've met Grace and Fred Blair and Gigovaz and Priya. So also ask yourself: what do you think will happen to Mahindan and Sellian? Is it different from the judgement you would have made?

I decided to take up Bala’s challenge utilizing my experience as a litigator. I have written the judgment I believe Grace would have written. I took a look at a number of Immigration and Refugee Board decisions to have a sense of format and content. I took a look at Canadian court decisions on refugee appeals. I looked at international law on refugees. I sought to base the decision on the facts presented in the book and the law of Canada. My decision is condensed. A real decision would have been much longer and would be unlikely to have had case citations. Sharp eyed readers may notice that some of my case authorities were given after the time of the fictional admissibility hearing would have taken place. The principles quoted in my decision were already being considered at the time Grace would have been writing her decision. I have sent this post and my review of the book to Ms. Bala. If she responds and is willing I will post her reply.

****

Between:

Canada (Citizenship and Immigration)

and

Poonambalan Mahindan and Sellian

Panel - Grace Nakamura
Counsel for the Minister - Ms. A. Singh
Counsel for the Persons Concerned - Mr. Gigovaz and Ms. P. Rajakaran

REASONS FOR DECISION

These are the reasons for a decision made under the provisions of the Immigration and Refugee Protection Act (hereafter referred to as the Act) concerning Mr. Mahindan and Sellian.

MINISTER’S POSITION

The Minister’s position is that Mr. Mahindan was a member or active supporter of the Liberation Tigers of Tamil Eelam (LTTE), an organization that engages, has engaged or will engage in terrorism.

In the alternative, it is the Minister’s position that Mr. Mahindan and his son, Sellian, are not in need of protection if returned to Sri Lanka.

MR. MAHINDAN’S POSITION

Mr. Mahnidan does not dispute that the LTTE is an organization that has engaged in terrorism, but denies being a member or supporter.

It is his position that both himself and his son qualify as refugees as they are in need of protection.

Mr. Mahindan submits that he should be reunited with his son, Sellian, and admitted to Canada.

DECISION

The Minister has provided information Mr. Mahindan, at his garage, worked on a bus on behalf of the LTTE that was then used in a terrorist bombing in Sri Lanka.

The Minister asserts that the actions of Mr Mahindan establish that he was either a member or active supporter of the LTTE.

Mr. Mahindan stated that he was under duress from the LTTE to work upon  the bus. He says if he had not worked on the bus he would have been subject to reprisals by the LTTE. He says that he never knew the bus was going to be used for a suicide bomb attack.

He continues that he was never a member of the LTTE nor a supporter of the organization.

The report filed by the Minister includes detailed information on the plans for the bus attack, the work done upon the bus and the actual attack.

What is absent from the report is that Mr. Mahindan was either a member or active supporter of the LTTE.

Ms. Singh asks that I draw an inference that his work upon the bus means he had to be a member or active supporter of the LTTE.

Ms. Rajakaran points out that such an inference would mean anyone who did work for the LTTE or supplied them with goods, including food, would be a member or active supporter.

Ms. Rajakaran submits that there must be proof of membership or clear evidence that Mr. Mahindan was more than a mechanic working on a bus.

I agree with Ms. Rajakaran. Suspicion is not proof. Canada has had a history in wartime of using suspicion of danger to justify punitive actions by governments. Our nation has learned, through painful experience, not to rely on suspicion. To use suspicion is to erode the Rule of Law which is at the heart of Canada’s legal system. I will not return to that dark time when suspicion was considered proof.

There are no records of Mr. Mahindan being a member of the LTTE.

No evidence has been presented that he was active politically. It his evidence, which I accept, that he had no interest in politics. 

I reject the Minister’s claim that Mr. Mahindan is a member or active supporter of the LTTE.

Mr. Mahindan asserts that he qualifies as a person in need of protection as he is at risk of torture or risk to his life or risk of cruel and unusual treatment or punishment if he is returned to Sri Lanka.

He refers to his work on the bus. He states the Sri Lankan government has punished Tamils whose work for the LTTE was subsequently involved in a terrorist attack.

He was among the Tamils present at the last stand of the LTTE. Mr. Mahindan has advised that he and his son were compelled by the LTTE to accompany them as they retreated. When Sri Lankan government forces overran the final stronghold it is well established that those who survived were suspected of being members of the LTTE. 

Most important he arrived in Canada on a cargo ship from Sri Lanka. Mr. Fred Blair, Minister of Public Safety,  has expressed his opinion that Tamil Tigers were among the passengers. 

By Mr. Mahindan’s presence on the ship he will be suspected by the Sri Lankan government of being a member of the LTTE. That conclusion is supported by the decision of X (Re), 2012 CanLII 100150 (CA IRB) where the Board found such suspicion existed for an applicant who had been a passenger on the Ocean Lady, a cargo ship containing Tamils which arrived off Canada in 2010.

In accepting Mr. Mahindan’s assertion he is in need of protection, I adopt the following statement from X (Re):

         The UNHCR Guidelines, issued two years ago in 2010, 

         specifically recommend ongoing protection for those persona 

         with the following profiles: persons suspected of having 

         links with the LTTE (emphasis added), journalists and other

        media professionals, civil society and human rights activists, 

        women and children with certain profiles, and lesbian, gay, 

        bisexual and transgender individuals. As I have found that this 

        claimant would be suspected of having links with the LTTE on 

        return to Sri Lanka, I have paid particular attention to risks he 

        might face.

The full text of the X (Re) decision can be found at:

https://www.canlii.org/en/ca/irb/doc/2012/2012canlii100150/2012canlii100150.html?searchUrlHash=AAAAAQARcmVmdWdlZSBTcmkgbGFua2EAAAAAAQ&resultIndex=7

A further consideration involves Sellian. I accept, as found in Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909, 2015 SCC 61 (CanLII), that Sellian is at risk of discrimination as a young Tamil male if he were returned to Sri Lanka.

Further since the decision of the Supreme Court Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) it has been established law that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them." I find it is in Sellian's best interests to stay in Canada.

Unity of the family is long established in international law. An example of that principle is to be found in the Final Act of the 1951 U.N. Conference of Plentipotentiaries on the Status of Refugees and Stateless Persons, Recommendation B:

B. "THE CONFERENCE,

CONSIDERING that the unity of the family, the natural 

and fundamental group unit of society, is an essential right of the

refugee, and that such unity is constantly threatened, and

NOTING with satisfaction that, according to the official commentary of the

ad hoc Committee on Statelessness and Related Problems 

(E/1618, p. 40) the rights granted to a refugee are extended to

members of his family
,

RECOMMENDS Governments to take the necessary measures

for the protection of the refugee's family, especially with a 

view to:

(1) Ensuring that the unity of the refugee's family is maintained particularly in 

cases where the head of the family has fulfilled the necessary conditions for 

admission to a particular country;

(2) The protection of refugees who are minors, in particular unaccompanied 

children and girls, with special reference to guardianship and adoption."

Mr. Mahindan has described the agonizing separation from his son for the many months of his detention. It is time for them to be together again as father and son. I find they are in need of protection and accept their applications as refugees.

Signed by Grace Nakamura

(The Government of Canada did not appeal Ms. Nakamura's decision. Mahindan and Sellian succeeded before the Refugee Board. They are doing well in Canada. Mahindan is working full time as an automotive technician and Sellian is happy in school.)

****

Bala, Sharon - (2019) - The Boat People

The Boat People by Sharon Bala

The Boat People by Sharon Bala - In late June of 2009 a cargo ship filled with 503 Sri Lankan Tamils is intercepted by the Canadian Navy just off the west coast of Vancouver Island.

In a heart wrenching scene Mahindan is separated from his 6 year old son, Sellian. Men and women will be in different camps. The children go with the women but Chithra, Sellian’s mother had died in childbirth. Father and son had never spent a day apart. Mahindan encourages Sellian saying it will only be for a short time and the Aunties will take care of him. With his son gone “Mahindan’s hand felt oddly empty at his side”.

On July 1, Canada Day, Peter Gigovaz and Priya Rajakaran , a senior counsel and articling student respectively at Elliott, McCadden and Lo in Vancouver are on their way at 4:00 in the morning to Vancouver Island. Gigovaz has chosen Priya because of her Tamil Sri Lankan heritage. She does not tell him her Tamil language skills are rudimentary.

Gigovaz speaks of Canada having “a split personality” with regard to refugees - at times welcoming and other times rejecting.

They are assigned several clients. Mahindan and Sellian are two of them. The arrivals cannot understand why they are not just accepted as refugees. They left a war torn land on a rusting ship to travel almost half-way across the world. They had thought they would be free to enter Canada on arrival. Now they face a complex refugee process with an uncertain end.

The book shifts back and forth between the proceedings in Canada and the circumstances, starting 7 years earlier in Sri Lanka, that led the 503 to flee on the rusting cargo ship. 

Mahindan and his wife, Chithra, had lived in Kilinochchi, the capital of Tamil Eelam, with friends and family. In 2002 they speak almost abstractly of the Tamil Tigers who chased the government soldiers away and govern the area.

It is a book with unsparing stories of suffering and death that are the consequences of the brutal civil war coming to its end in Sri Lanka. I could barely read of the earlier time knowing what was to come after the ceasefire ended in 2002.

Moving back to 2009 Grace Nakamura is a new Immigration Adjudicator. A long time mentor, Fred Blair, who is now in the Federal Government cabinet has obtained the position for her. She is not a lawyer. Grace is confident she can master the rules and guidelines and policies and law. The Minister is looking for adjudicators that will not merely admit a refugee because of a claim of persecution. He believes many on the ship were Tigers.

Of Japanese descent Grace’s family had been interned and badly treated during World War II. Her mother, despite being afflicted with dementia, is striving to gain recognition of the mistreatment of the Canadian Japanese. They were considered dangers to Canada during the war.

The hearings, detention and admissibility, grind on month after month.

Horrific stories are told to Grace. Some appear carefully crafted. Are they true? There is usually no evidence of either corroboration or contradiction. Of what use is general knowledge of the violent and vicious end to the war. Will the claimants be persecuted if returned? Who among the 503 should Canada admit?

From life and legal experience how evidence is given is as important as the words said. Most of the evidence of the claimants is given in Tamil. When interpretation is involved the task of discerning truth becomes more daunting. Nuance is lost in translation.

I am grateful I have never had to handle such hearings. The lawyers are diligent in advancing the cause of the claimants. The toil on their psyches would be immense for losing sends clients back to an, at best, hostile land.

And what if one or more of the claimants was a committed Tiger? The Tigers were designated a terrorist organization. Would Canada ever admit such a claimant? Such claimants would face the greatest risk if deported back to Sri Lanka.

Priya’s family had left Sri Lanka after earlier persecutions by the Sihalese majority. They had applied to emigrate to several countries and been accepted by Canada.

For Canada the underlying question is whether the boat people should have applied to come to Canada officially. Is systemic discrimination and periodic violence towards the Tamils sufficient for claiming refugee status?

Conflicting emotions run through all in the book and myself as reader. I am the grandson of Norwegian immigrants on one side of my family and on the other side the descendant of Irish immigrants who came almost 200 years ago. None of them faced hearings to justify their staying in Canada. At the same time I am not comfortable with a policy that lets anyone who reaches Canada stay here. I have yet to work out in my mind the balance on who gets to stay.

I was completely absorbed in Mahindan’s fight to stay in Canada with Sellian. His cause was aided by skilled lawyers. It has been some time since I became so identified with a character and wanted him to succeed.

I appreciated that despite the great issues and emotions Bala did not demonize any of the main characters. Mahindan, Priya and Grace are all treated with respect. There is empathy for each of them.

It is a powerful book that will make every reader think about immigration law and recognize it will be a never ending issue. Bala has written a great novel that is all the more impressive for being her first novel. The Boat People is one of the finalists for the 2019 Harper Lee Prize for legal fiction. (July 8, 2018)

(I subsequently wrote a post of the decision I think the adjudicator would have written. Here is a link - https://mysteriesandmore.blogspot.com/2019/07/an-ending-for-boat-people-by-sharon-bala.html)