Asylum and the Rule of Law in Canada ~ the right to be heard

Asylum and the Rule of Law in Canada ~ the right to be heard

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The Latin maxim audi alteram partem literally means ‘hear the other side’, but it has come to encompass a wide array of procedural rules that address prior notification and disclosure, the conduct of the hearing itself, and the provision of reasons afterwards.

At least two types of normative claims are made in support of a right to be heard. The first is instrumental: gathering evidence and argument from a person about whom a decision will be made is likely to produce better and more accurate outcomes, and such decisions are more likely to be accepted as legitimate (even if adverse). The second is deontological: respect for the dignity of individuals militates in favour of enabling them to participate in a process that will affect their interests. Put simply, listening to what someone has to say about how power will be exercised over them signifies that they matter.

It is important to see that these arguments in favour of the right to be heard also support ‘voice’ in the form of electoral democracy, which in turn underwrites the doctrine of parliamentary supremacy. This idea of being heard serves the rule of law’s ultimate task of constraining arbitrary government in the legislative and in the executive sphere. But, of course, the asylum seeker is formally disenfranchised, and cannot even claim the status of a minority member of the polity. The architecture of the rule of law presupposes a certain equilibration and complementarity between political representation and legal subjectivity. The position of non-citizens as people with no voice in the political realm perforce orients them towards the judicial sphere. Unlike minoritycitizens, they do not even notionally have the capacity to seek remedies at the polls. At the limit, one can ask whether the rule of law could impose a duty to hear asylum seekers upon a legislator that has chosen to close its ears by closing its border.

There are other ways in which the right to be heard poses specific challenges in the asylum context. Consider the myriad possibilities for distortion of the communication between asylum seeker and decision maker. Asylum seekers often speak a different language, necessitating the use of interpreters. Profound differences of culture, class, personal history and political context manifest through unarticulated assumptions and [mis]readings of the Other (which leads to misunderstandings on both sides). Trauma affects people in different ways: silencing them when they need to speak, suppressing what they cannot bear to but must remember, confusing them when they need to display certitude, and so on. Reliance upon the advice of unqualified and/or unethical people may lead some asylum seekers to embellish or prevaricate. On the other side of the equation, the sensitivity and subjective perception of decision-making autonomy (as distinct from formal independence) affects the capacity of decision makers to hear. The combined effect of these factors can muffle, mute and distort the voice of a refugee in need of protection, and lead to her/him being heard as someone merely mimicking the voice of a refugee. Realistically, no feasible administrative process intended to determine refugee status can fully mitigate the multiple sources of static interference that affect the audibility of the asylum seeker.

The legal doctrine of audi alteram partem does not capture all of these nuances. However, it is this larger question of what it means for an asylum seeker to be heard that offers a link between the rule of law in its political and legal dimensions.

International law that use in this reference :

- Susan Kneebone, 2009. REFUGEES ASYLUM SEEKERS AND THE RULE OF LAW Comparative Perspectives. Cambridge University Press: New York.

international law reference