Legal Regimes in Conflict Situations
Dr. Geeta Madhavan
PhD (International Law
Published in Policy Choices in Internal Conflicts - Governing Systems and Outcomes
by Vij Books -ISBN: 9789382652052
Law and the judicial machinery, in whatever form they may exist, have a crucial role in the political process of nations caught in internal conflict situations. The causes for the conflict are peculiar to each country and are the result of the social, ethnic or religious divides in the society. Conflicts are a serious threat to peace and security and an armed internal conflict of warring factions within a State has far reaching and terrible consequences. Marginalization, real or perceived, has led to those victimized rising up against the establishment which has imposed such policies upon them. Laws and legislations which have created and caused the conflicts are justified by those establishments and regimes. More laws are enacted to contain and suppress the uprisings which demand basic rights to the affected sections of that particular society. Often the rule of law is violated and the criminal justice systems are ignored leading to arbitrary arrests, disappearances, and summary trials ending in extended detentions and executions. The judiciary is often influenced, stifled or controlled leading to graver violations of basic rights to the citizens. Legal regimes that violate the basic principles of law play a role in the escalation of conflicts and contribute to the severity and the duration of the conflict.
Internal conflicts are complex: they are manifestations of human aspirations and needs and their denial; of human emergencies created within the society by those in power and of the need of the people to secure basic rights that have been long denied to them. In this complex scenario the first victim is human rights. Suffering, displacement and devastation is caused by the indiscriminate attack on civilians by both the State and the insurgents and the armed groups opposing the governments. The State’s reaction to armed internal conflict is always forceful and often repressive and results in innumerable deaths both in the actual conflict and in its ruthless response. Mass expulsions, forcible relocations, deprivation of property and lifetime incarcerations are used by the Sates to create fear and bring order. These actions, however, have shown that after the initial quelling of the uprisings; there are resurgences that have lead to more deaths, more killing and more ruthlessness by both the State and the actors of the conflict.
This paper attempts to understand and analyze the legal regimes adopted by the countries subject to internal conflicts and the role of the judiciary in those countries. A case study has been made of Myanmar, Sri Lanka, Nepal and India. The causes of the conflict situations in these countries differ greatly from each other as do the responses of the governments through the legal regimes that they have adopted. This paper, therefore, is an analysis of the legal systems which have been put into place to deal with the conflict situations and the application of those laws by the judiciary. The paper also highlights how the judiciary, in some cases, has been mad subject to the directions of the executive and thereby rendered inept and that such actions have led to the complete loss of confidence by the people.
The conflict in Myanmar in the modern context dates back to the time Burma gained independence from Britain in 1948. The three major ethnic groups: the Shan, Kachin and Chin signed the historic Panglong Agreement in 1947 with Burma, as separate political entities, and gained independence simultaneously along with the Burman from the British. Conflict broke out between these various ethnic groups on one side and the Burmese government on the other as a result of the policies of the Burmese government which did not take into consideration the ethnic diversities of the population of Burma. When the military seized power by a coup in 1962, the situation worsened and ethnic conflict escalated. Human rights violations under the military regime increased and in turn intensified the conflict. Successive military regimes have consistently dealt with the ongoing insurgencies with ruthlessness. The uprising in 1988 resulted in a military coup which not only resulted in the death of thousands of protestors comprising of students, professionals and Buddhist monks but also led to the establishment of the military regime which called itself the State Law and Order Restoration Council (SLORC). The SLORC With Order No. 2/1988, abolished all organs of state that had been created under the 1974 Constitution viz. the Legislature( Pyithu Hluttaw), the Council of Ministers, the Judiciary, the office of the Attorney-General and the Auditor-General Office. Other town and village level offices, which were the institutions which dealt with the local problems and situations, were also abolished. The State Peace and Development Council (SPDC) replaced the SLORC and enforced martial law till 1997. In 2003 a “Seven Step” to restoring democracy in Myanmar was announced by the military regime and as a move towards that, the military junta held a referendum in 2008 for the adoption of a new Constitution and subsequently published it. The Constitution had been suspended by the SLORC in 1974 and till 2008 Myanmar had no Constitution. In accordance with the 2008 referendum, as the Fifth Step in the road to democracy, the military regime held general elections in 2010 and in the restrictive political climate the military backed party – Union Solidarity Development Party (USDP) won the elections. After the elections former General Thein Sein was sworn in as President thereby launching a formally civilian government. However, the cabinet of ministers consisted of ex-military men, many of whom had held ministerial positions under the earlier totally military regime. Although the new Constitution was to be an instrument to restore democracy and install a civilian government in Myanmar subsequent actions by the military regime belied the intention. Therefore, Myanmar is still a military backed regime that has not secured for its people the basic rights of free expression or the right to choose their own political leaders.
The legal system that existed during the monarch’s reign was of absolute power of the king (thet oo san pine). Burma also inherited the Common Law system from the British colonial masters. Under the monarchy the executive power and the judicial powers were vested in the King. The King was the highest judicial authority and judicial powers flowed down from the King to the Supreme Queen, Crown Prince, Member Princes of the Parliament, Member Ministers of the Parliament to the Mayors, town chiefs and the village headmen. All the legislative powers also belonged to the King and the laws were not subject to review by any other authority. All civil suits were subject to trial by ordeal by way of water, rice, lead and fire. Criminal law suits were conducted according to the Buddhist principles and fines were imposed and death sentences were carried out in cases of murder, rebellion, insurgency and rape.
The 1950 Emergency Provisions Act was passed by the parliamentary government that came to power after independence to stifle all opposition by curtailing the freedom of speech. Journalists and writers were arrested under Section 5 of this Act which made it a criminal offence to spread false news, knowing, or having reason to believe that it is not true, and anyone who was considered to have contributed towards the diminishment of respect or disloyalty among members of the civil service or the military towards the government, either of which resulted in seven years imprisonment. Also any act that may affect the morality or conduct of the public or a group of people in a way that would undermine the security of the Union or the restoration of law and order was punishable with equal severity. In May 2003 the Depayin massacre took place against members and supporters of the National League for Democracy and 70 people were killed. The massacre has been widely regarded as the action of government organized thugs and which took place with the connivance of the military. Instead it was called an act against the government and many opposition members were arrested as political prisoners in accordance with the afore mentioned Act.
The 1957 Penal Code of Burma was used to suppress freedom of expression under various sections and to prosecute persons on charges of treason against the government. Section 122 of the Code was notably severe as the prison sentences ranged from a maximum of 25 years imprisonment to the death penalty. The Printers and Publishers Registration Act placed further emphasis on curtailment of freedom of expression.
The 1962 Revolutionary Council abolished the Supreme Court and the High Courts and replaced them with a single Chief Court of Burma. In 1972 the Chief Court was renamed as Supreme Court and after the 1974 Constitution it is called the Supreme People’s Court. The State Protection Act of 1975, the Unlawful Association Act 1908, Habitual Offender’s Act, Act for Protection of National Solidarity 1964 and the Video Law of 1985 are laws that have all served to ensure that no opposition to the military regime would be tolerated. Under the military rule the SLORC‘s chief role was to ensure that all citizens “obey law and order”; but it placed itself above the law. After seizing power, the SLORC by a judicial decree: Judicial Law No. 2/88 established the Supreme Court and provided for the creation of civilian courts at the trial level. However, the Martial law Order 1/89 of 1989 empowered military tribunals to conduct summary trials of civilians. The courts confined themselves to according only three forms of sentences: three years imprisonment with hard labour, life imprisonment and death sentences. There has been no reported instance of acquittal by these tribunals. There was also no right of appeal from the sentences handed down by the military tribunals. These tribunals were abolished in 1992 but not before they had sent many civilians to suffering and deaths.
The death blow to the judiciary was by the adoption of the new Constitution in 1974 which merged the judicial and legislative arms. Senior judges were chosen from members of the parliament. Although the judiciary did not apply the martial law yet the military mindset of the judges was apparent from their use of military uniform in court .The judiciary was also kept under the executive as it fell within the control of the Ministry of Home Affairs. Thus any law passed by the executive could not be tested for arbitrariness and therefore there was no accountability of the government. The restrictive legal system which is in continuance despite the adoption of subsequent Constitutions, underlines the fact that the judiciary serves as an arm of the military rule.
Article 11 of the 1974 Constitution stated that the State shall adopt a single party system and that the Burma Socialist Program party is the sole political party and it shall lead the State. The military junta by law criminalized criticism and prevented any discussion or debate. The military junta‘s control of the judiciary is underlined by the fact that it controls the outcome of all trials. The judges hold no tenure and are appointed by the military. The judges are also ordered to follow the instructions of the military and read prepared judgments. Lawyers in Myanmar cannot challenge any law in court. Extra judicial, summary and arbitrary executions have been common especially of the ethnic minority. Although the Penal Code provides for rigorous imprisonment with hard labour and simple imprisonment, all convicted persons are handed over to the military and forced to rigorous labour irrespective of the sentence handed down by the courts. In all cases wherein a private citizen appears against a state agent of whatever rank in whatever matter, the court’s compliance with the military regime ensures that he or she does not get a fair trial. Therefore the courts are ruled by the executive council which in turn is ruled by the military junta.
The Constitution of 2008 did not improve the legal systems or empower the judicial machinery. Article 20 (b) states that the Defence Services has the right to “independently administer and adjudicate all affairs of the armed forces. “ This places the armed forces above the law and leaves them unquestionably powerful. The provision is so broad that any activity can be brought under it as the military junta sees fit. Article 20 (c) gives the power to the executive administration , which is primarily in the hands of the military , to do all such acts that are required in “safeguarding the non disintegration of the Union , the non disintegration of the national solidarity and the perpetuation of the sovereignty. Therefore the military junta is given unlimited power to decide what it seeks to protect and from whom. Under Article 20 (f) the Tatmadaw is given the power to safeguard the Constitution. Article 46 is a confirmation of stance of the military junta that the military is the ultimate authority to determine what is to be protected. While Article 46 confers authority on the Constitutional Tribunal to declare legislative and executive actions as unconstitutional, it omits to confer similar power to declare military actions as unconstitutional thereby affirming even under the Constitution the supreme power of the military in Myanmar.
Article 232 (b) (ii) gives the power to the Commander-in-Chief to appoint Ministers of the Defence, Home Affairs and Border affairs thereby confirming the broad powers of the military in civilian affairs and over civilian offices . Although the state governments have chief ministers, by Article 262 (l) (i) the President may remove a Chief Minister at will, making it apparent that they serve not by the will of the people but are local agents of the President. Article 20 states “Defence services has the right to administer for participation of the entire people in Union security and Defence”. The imposition of military discipline over the entire population and the authority to enlist all the civilian population into the military for internal security is apparent. Under Chapter XI dealing with the declaration of Emergency, by which the military is allowed to assume all powers of the government albeit with Presidential agreement and Legislative ratification, total power is given to the military regime to rule at will.
Chapter I on the Basic Principles states that under Article 40 (c) the Commander in Chief can “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity, and loss of sovereign power or attempts thereof by wrongful forcible means such as insurgency or violence, the Commander-in-chief of the Defence Services has the right to take over and exercise State power in accordance with the provisions of this Constitution”. However, it is important to remember that only the military is in a position to assess whether any threat exists and there is no system that requires the military to obtain the approval of anyone.
Arrests and pre trial detention are common in Myanmar. The arrests are arbitrary and are by the military intelligence and they lead to prolonged interrogation, torture, denial of access to lawyer or family and adequate medical care. Ms Aung San Suu Kyi house arrest that stretched from 1989 to 1995 was under the State Protection Act of 1975. Various laws have been used to control the population by preventing freedom of speech and thought and all political opposition has been stifled by the use of these laws. Some of them are:
1. Unlawful Association Act 1908
2. Habitual Offender’s Act 1961
3. Act for Protection of National Solidarity 1964
4. State Protection Act 1975
5. The Video law 1985.
The State Protection Act allows people to be detained without charge or trial up to 5 years with no right of appeal to any authority. Under the Unlawful Association Act any association can be declared unlawful based solely on the opinion of the head of the State. All political prisoners suffer due to the overly all encompassing laws and the chances of fair trial are nil. Besides, the interpretation of these laws is done according to the dictates of the military and often during trials , evidences are fabricated to support the laws. Therefore, the manipulation of the law by the military regime has led to denial of fair trials and gross violations of human rights.
Special Rapporteur reporting in the 2nd session of the Human Rights Council stated
"The capacity of law enforcement institutions and the independence and impartiality of the judiciary [in Myanmar] have been hampered by sustained practices of impunity. I am also very concerned by the continued misuse of the legal system, which denies the rule of law and represents a major obstacle for securing the effective and meaningful exercise of fundamental freedoms by citizens.
"Grave human rights violations are indulged not only with impunity but authorized by the sanction of laws. In that respect, I consider especially as a matter of grave concern the criminalization of the exercise of fundamental freedoms by political opponents, human rights defenders and victims of human rights abuses."
The Chief Justice of Myanmar signed the 1995 Beijing Principle which was an initiative to ensure the independency of the judiciary leading to the Judiciary Law of 2000. According to the Judiciary Law 2000 the administration of justice was to be based upon the following principles;
(a) administering justice independently according to law;
(b) protecting and safeguarding the interests of the people and aiding in the restoration of law and order and regional peace and tranquility;
(c) educating the people to understand and abide by the law and cultivating in the people the habit of abiding by the law;
(d) working within the framework of law for the settlement of cases;
(e) dispensing justice in open court unless otherwise prohibited by law;
(f) guaranteeing in all cases the right of defence and the right of appeal
under the law;
under the law;
(g) aiming at reforming moral character in meting out punishment to offenders.
It becomes clear that while “ administering justice independently according to law” , “ protecting and safeguarding the interests of the people” , “ working within the framework of law for the settlement of cases” ,” guaranteeing in all cases the right of defence and the right of appeal under the law” are in resonance with the rule of law principles as followed by most nations in their judicial regimes .However , these principles are qualified by other guidelines that underline the fact that the military regime does not intend to follow the rule of law. For instance, protecting and safeguarding the interests of the people is connected to restoration of law and order and is justified as being part of the effort by the government of Myanmar to ensure regional peace and tranquility. This is apparently connected to the fleeing of people across the border to the neighbouring countries creating demographic problems there especially in countries like Thailand. Aiding the restoration would therefore be the attempt to restrain and arrest such person with the greater purpose of establishing regional peace. Aiding in the restoration of law and order and regional peace and tranquility, transparency of the judiciary which is stated in dispensing justice in open court are obstructed by the clause “unless otherwise prohibited by law”. Similarly, there is room for all forms of violation of basic human rights in the process of “aiming at reforming moral character in meting out punishment to offenders”. The abuse of the legal system has been consistent fact in Myanmar.
The ethnic diversity of Myanmar is the most complex factor in the prevailing conflict situation. The ethnic problem in Myanamr relates to the existence within the geographical territory of several ethnic communities who are non Burmans viz. Shan, Kachin, Chin, Arakanese, Mon, Karen and Kareneni. These minorities have been controlled and suppressed by the military leaders to ensure the union remains intact. The Burmans have exhibited intolerance for these ethnic minorities and the military regime exhibits racial supremacy when dealing with them. In an open letter to the KOI ( Kachin Independence Organisation) Karen national Union (KNU) New Mon State Party (NMSP) Shan State Army (SSA) , Ms Aung San Suu Kyi expressed her anguish that conflicts within the non Burman ethnic areas has created human tragedy , suffering, loss of lives, economic deterioration and destruction of costly physical structures. There are misconceptions of the majority and minority configurations which do not consider the fact that in the non Burman areas the Burmans are in minority. The Constitution adopted in 2008 does not consider the diversity and gives the military clear monopoly and supremacy in every aspect of governance. The 2010 elections which were held as the Fifth Step toward democratization resulted in very few positive changes in the structures of the government although it did not empower these structures to act beyond the military bidding. . The elections were assessed as having been held in a climate of fear and suspicion. Independent election observers and foreign media were not allowed to cover the elections. Ahead of the elections 11 political parties were dissolved and, three ethnic minority parties were denied registration. . The military backed party the Union Solidarity Development (USDP) party emerged victorious. After these elections a range of new institutions have been created: a presidential system; two houses of parliament and 14 regional governments and assemblies. The new parliaments and assemblies, in which the military was automatically allocated 25 per cent of seats ensures that the military retained its powerful hold on the country. , Although the Parliament consists of serving and retired military officials, yet as a step away from militriasation was the dissolution of the State Peace and Development Council (SPDC). This has, however, been viewed as a placating move to ensure foreign investment in the country that had suffered deep economic setback since the 1962 coup and throughout the military regime. Members of the junta have as always retained their prominent roles as president, vice-president, parliament speakers, cabinet ministers or regional chief ministers. A shift from highly centralized policies of the military regime so far is expected and to assuage the advocates of human rights, the military government announced the release of political prisoners although the actual figures vary about the number of persons released. The nominally civilian new government has declared its intention to liberalize the hard-line policies of the military junta that preceded it. Easing censorship, legalizing labor unions, suspending an unpopular, China-backed dam project and beginning talks with Aung San Suu Kyi and her pro-democracy movement to bring the leader into the political mainstream, are being viewed as positive developments. However, until the legal regimes are established in accordance with the principles of rule of law and the independence of the judiciary secured, the civilian population of Myanmar will be unable to secure their right to select the government they desire.
Since March 2011 the Myanmar government led by President U Thein Sein has displayed an earnest desire to reducing the military image of the government and projecting itself as a regime that is committed to restoration of democracy in phases. The release of Aung San Suu Kyi in November , 2010 after her 15 years of house arrest signals a change of policy which many deem to be a move to placate those nations that have been sever critics of Myanmar’s military regime. The highly centralized and inclusive policy of the regime also seems to be shifting. The release of 651 prominent political prisoners and the cease fire agreement with the ethnic Karen are welcomed as positive political moves by the “civilianized” government of Myanmar. The result of this shift has resulted in the restoration of diplomatic relations of the United States with Myanmar. However, there is a great degree of skepticism prevalent whether these apparent overtures to democracy are more about attracting foreign investments in a bid to spur economic growth and fending off criticisms from the international community and less about securing rights to its people.
The legal system in Nepal in the early days was pluralistic law: elements of civil law, common law, customary law and religious dictums. This mixed legal system in Nepal was the result of the British colonial power overlaying some of its own legal systems on the law of the land while it retained the elements of Nepal’s existing Hindu legal concepts. The Muluki Ain of 1854 which was introduced by the first Rana Prime Minister, Jang Bahadur Rana, was a compendium of ancient Hindu sanctions and customary laws along with customary law modeled on British and Indian codes. The Muluk Ain which was amended several times and blended with royal edicts and proclamations was completely revised in 1963. Over a period of time, more royal edicts and proclamations were added to it and some piecemeal legislation was also incorporated to create a corpus of laws termed as Ain Sangraha. The Muluki Ain was the family law that was uniformly applicable to all religious communities.
In the absence of provision of law or judicial procedures, local customs were applied to decide matters. Theoretically, law was applied equally to all persons with no discrimination of caste, sex or creed. The Code granted the right to divorce, permitted inter caste marriages and all laws that sanctioned untouchability were abolished. The Code drafted at the behest of the King remained substantive law till 1991. Major political events occurred in Nepal, which underlined the existing confusion in its political system. . After the assassination of King Birendra and his family in June 2001 allegedly by the Crown Prince Dipendra who succumbed to supposedly self-inflicted injuries, King Gyanendra came to power on Jun 4, 2001. King Gyanendra was sworn in as the King of Nepal but the relationship between the people and the monarchy was exceedingly uneasy. It did not help relationship between the monarch and the masses when the king, by his consequent conduct in political affairs, did not show any inclination to be a constitutional monarch. In twelve years, parliamentary elections were called four times and the government changed thirteen times. Nepal had no Parliament after May 2002, when the King dissolved it and ordered fresh election and since October 2002, the monarchy’s confrontations with major political partied did not improve the situation. On Feb1, 2005 King Gyanendra dismissed the coalition government of four parties nominated by him and sacked the Prime Minister Sher Bahadur Deuba. The King declared a state of emergency and assumed all executive powers for the next three years. Many politicians were placed under house arrest. Security was beefed up and all channels of communications shut down. All links with the outside world was severed and Nepal went into political and regional isolation. Ostensibly the reason cited was that the Deuba government had failed to hold talks with the Maoist “rebels” and conduct parliamentary elections by April. Backed by the 78,000 strong Nepalese Royal Army of which the King was the Supreme Commander, the King declared Emergency. The suspension of fundamental rights and the severe curtailments of civil liberties did not augur well for the political stability of Nepal. The King suspended several provisions of the Constitution including the freedom of speech and expression and the right to privacy .The right to preventive detention was revoked along with the freedom of the press. In 2006, King Gyanendra in response to the democracy movements that wanted to end monarchy in the country, relinquished his sovereign power to the people and reinstated the dissolved House of Representatives. The House unanimously voted to declare Nepal a secular state and ended monarchy in the country and moved from being a Hindu Kingdom to a Federal Republic. In 2007 , Article 159 of the Constitution was amended replacing “provisions regarding the King “with the words “provision regarding the Head of the State and The bill came into force in 2008 and the nation changed its official name to Federal Democratic Republic of Nepal. Nepal has been for a long time plagued by political tensions and power-sharing jousts. The Communist party of Nepal won a large number of seats in the elections held in 2008 but was soon thereafter toppled . In May 2009 a coalition government was formed with all major parties barring the Maoists. Four years after the ceasefire between the Maoist rebels and the State under the 2006 Comprehensive Peace Agreement that ended 10 years of conflict, politicians pledged to write a new constitution by May 28, 2010. However, this deadline was extended by one year after it became clear that many key constitutional issues had not been resolved. Despite this extension, power struggles both within and between the three main political parties have meant that little progress has been made. Politicians have still to agree on what system of government to adopt and how many provinces the country will have. Although last minute talks continue, it is still unclear whether Nepal's squabbling political parties will be able to agree on the terms for another extension. In August 2011, the Interim Constituent Assembly elected the Maoist leader Baburam Bhattarai as the 4th republican Prime Minister. The New Prime Minister’s priority is to complete the peace process with the Maoists, make concerted efforts to draft a forward-looking constitution, good governance and social economic development of Nepal.
The most pressing problem facing Nepal is the adoption of a new Constitution. . On the Constitution making process, an extension of the Constituent Assembly by six months has been sought. There is an urge to ensure that the new Constitution will enshrine the independence of the judiciary The past experiences of the people of Nepal was with a judiciary that was influenced by the autocratic regime and manipulated and corrupted by the system . Therefore, the top priority is acquiring for the people of Nepal, a judicial system that assures inclusiveness, accountability and accessibility. The current problems with the judiciary in Nepal are: the pendency of cases before various courts, the prolonged time frame for trials and the inordinate delays in delivering judgments. During the state of emergency declared by the King in February 2005, the judicial system became subordinate to the King and its powers were altered. An anti corruption body which had no credible legal status was created by the King and given wide powers. The six member Royal Commission on Corruption Control (RCCC) could investigate and indict suspects and conduct investigations at its own discretions. . The RCCC could order persons to appear before it within 24 hours and detain them up to 30 days on suspicion and persons could be jailed for 6 months for contempt. The RCCC could investigate charges against heads of any constitutional agency and recommend necessary action to the King against such persons.
In the bid to tackle the Maoist rebels the Royal Nepalese Army was invested with wide ranging powers and the lack of accountability of the military led to abuse of power for personal gains. Numerous instances of abuse of human rights with cases of enforced disappearances, State sanctioned killings and torture have been reported. Protracted insurgency with associated state of abuse of laws between 1996 and 2006 led to the criminal justice system being severely undermined. When King Gyanendra seized control and absolute power in 2005 and declared a state of emergency, it led to a period of total suppression of civil and political rights. Subsequent to the peoples’ uprising, the Jan Andolan in 2006 and the Comprehensive Peace Agreement, the House of Representatives was restored. Some of the major changes sought to be carried out by the Interim Parliament in 2008 in the administrative and legal systems were: the protection of individual rights, transparency and communication to the people of the intention and working of the government, reviews and accountability to restore the confidence of the people, reform and transformation of institutions and enhancement of powers of the constitutional institutions.
Defining the new Constitution and adapting to a new legal system under it would be major challenge for the political leadership of Nepal. The present hierarchy of the Court system has also been questioned; jurists and law makers and practitioners in Nepal have called for an integrated system of the judiciary. Although the severity of the conflict situation may have abated, the damage it has caused to the judicial system will require purposeful restoration of the institution. The failure of the judiciary in Nepal to deliver equitable justice and without inordinate delay has left the people of Nepal with no recourse to basic rights. Controversies in appointment of judges, charges of widespread corruption, dismissals and promotions of judges in arbitrary manner has underlined the unfairness in the system and questioned the credibility of the legal structures. A monitoring system has to be adopted that not only manages the resources and deals with issues and controversies; there is also an urgent need for a mechanism that ensures that the judiciary enjoys the support of the executive branch of the government to function independent of the executive and legislative bodies. The distressing truth is that the political instability that still seems to haunt Nepal has done untenable damage to the legal system and the judiciary in Nepal and it is necessary to create to a stable Nepal that the legal and judicial structures are strengthened.
The religious and ethnic diversity of Sri Lanka and its colonial history had played a major role on its legal history .The Portuguese were the first colonizers of Ceylon, as it was known then, arriving in the 1500s. The Portuguese were replaced by the Dutch in the 1600s and they introduced the Roman-Dutch legal system in Ceylon .This was a well organized legal system which had three seats for the courts in the west, north and south of Ceylon . The Dutch attempted codify the different customary laws of the diverse ethnic groups but applied the Roman-Dutch laws to the population in the coastal regions. In 1707 , the laws and customs of the Tamils of the Northern Jaffna province, was codified as the Thesawalamai and with the consent of the Muslim elders , a code of Muslim laws as made applicable to the Muslim population. In the 1700s the British replaced the Dutch and set up unitary administrative and judicial units and extended the prevailing law to the rest of the island. Till gaining independence in1948, the prevailing Roman- Dutch law and the customary laws were applicable in Ceylon.
An authority on Sri Lankan law, H.W.Tambiah, in his writing about Sri Lanka in Encyclopedia of Comparative Law: National Reports describe the complex and diverse nature of Sri Lankan law:
In Sri Lanka, there are five systems of private law. The Roman-Dutch law, as
modified by statutes, and interpreted by the courts, is the general law of the land.
English common law applies to commercial contracts and commercial property
and has been tacitly accepted in many matters. English law was also introduced
by statute and as such forms the statutory law of the land. The Thesawalamai is
both a personal and local law…. Similarly, Kandyan Law applies to the Kandyan
Sinhalese, and the Muslim laws, to the Muslims, in [matters relating to] marriage,
divorce, [alimony] and inheritance. Private law governs issues between individuals….
The conflict in Sri Lanka is dated in history as having begun in 1983 although the ethnic problems started long before the specific year. The ethnic conflict which continued for nearly three decades, culminated in the defeat of the LTTE by the Sri Lankan forces and the killing of the LTTE leader Prabhakaran in May 2009. The long and bloody conflict not only tore apart the social fabric of the nation creating rifts that would be very difficult to heal for a long time and resulting in mutual distrust between the Sinhala majority and the Tamil minority; but also damaged permanently many of the structures of the government including the judiciary and the legal systems which were severely eroded by the onslaught of the conflict.
Two sets of laws were used by the government to tackle the violent activities that took place during the early days of insurgency and the subsequent civil wars in Sri Lanka: the regulations issued under Public Security Ordinance No.25 of 1947 and the Prevention of Terrorism Act of 1979. The Public Security Ordinance (PSO) of 1947 was passed by the colonial government to take security measures in the “interests of the public security and the preservation of public order”. The power to the President to issue emergency regulations under the PSO is discretionary. Under Part I of the PSO the President is empowered to declare a state of emergency and by Rule 1 (2A) (b) the supreme authority is given to the President to issue any emergency regulation under Part II. During the self-declared state of emergency in the country, under the law several actions were allowed such as: detention of persons; acquisition of private property, including land, on behalf of the government and search and seizure of any property. Section 5 of the PSO grants the power of authority to make emergency regulations (ERs) as they ‘appear to [the President] to be necessary or expedient.’ Any amendment, suspension and/or application of ‘any law’ was permitted and supreme legal authority was granted to the emergency regulations issued by the President over all other laws of the land (including those defined in the Constitution). The power to grant compensation to any persons affected by an emergency regulation vested solely in the President. Apprehension and punishment of offenders of any of the emergency regulation vested in the authoritative body’s discretion. The President could also bestow upon any person of authority, military or not, the power to make any rules or orders pursuant to any emergency regulation. The provisions of Sections 16, 17, and 18 deal with curfew restrictions on residents and related penalties. Under these sections essential services during states of emergency could be demanded and any attempt to obstruct or hinder the progress of such service, physically, verbally, or via publication was subject to punishment and arrests for such acts could be made without warrant.
The Prevention of Terrorism Act (PTA) 1979 was passed to deal with the threat to public security posed by the insurgency of the LTTE by providing ways by which the government could issue emergency regulations for containment of terrorist activity .Under the act murder and detention of person was considered terrorist activity; the government security forces and the military being exempt from similar acts. Normal criminal procedures were not followed and the provisions provided for the arrest of any person, to enter and search any premises, to stop and search any vehicle and seize any document suspected of violating any law. Although the time for holding a person in custody was specified as 72 hours under Section 9 the period could be extended. A person could be held in detention on unspecified grounds for three months which could be further extended to another three months to a maximum period of 18 months and such order of detention could not be questioned in a court of law. Besides, such arrested person could be taken to any place for the purpose of interrogation. All suspected persons were subject to trial without preliminary hearing and without the presence of jury
Both the emergency laws severely limited the jurisdiction of the courts in Sri Lankan. It also took away from the courts the power to prevent abusive detention and torture .Neither local magistrates nor did the provincial high courts provide any remedies for person in illegal and abusive detention. Habeas corpus petitions and applications for securing fundamental rights in the Supreme Court seldom provided relief to those who approached it. This was seen as a failure of the Supreme Court to protect constitutional and human rights in Sri Lanka. The Supreme Court did not play any role in constraining the powers of the security forces nor was it seen as pro active in protecting the rights of the minorities. The ability of the Sri Lankan judiciary to adjudicate in a fair and free manner in sensitive matters and secure political and basic civil rights within the rule of law was severely compromised .The judiciary also failed to protect minority rights and social and cultural rights. Gross violation of natural justice was exhibited in the Singarasa case, which is considered as the case that underlined the fact that the judiciary served the executive to the detriment of basic rights. The petitioner, Singarasa, was arrested and tortured for alleged links with the LTTE. He was convicted in the High Court based on the confessions obtained under torture and he was sentenced to 50 years of imprisonment. The Court of Appeal upheld the conviction but reduced the sentence to 35 years. He was denied a fair trial and his right to review without delay was violated. The Supreme Court refused leave to appeal. Singarasa then appealed to the UN Human Rights Committee. However, when the matter came up in the Supreme Court, it was held that Sri Lanka’ s obligations under international law extended only to those that have been incorporated into the laws of Sri Lanka. It was apparent that the Supreme Court was politically motivated in the judgment. By this judgment, Sri Lankan judiciary displayed that it was unwilling and unable to protect and promote human rights and the Court acted against natural justice and rule of law; and that it was not adequately mindful of the political consequences of legal decisions, particularly in the arena of minority rights. By placing the burden of proof on Singarasa that his confession was made under duress, his rights were further violated. The judiciary was under obligation to provide Singarasa with an effective and appropriate remedy, including release or retrial, and compensation, and to ensure that the sections of the Prevention of Terrorism Act (PTA) that allowed such treatment are made compatible with the International Convention for Civil and Political Rights to which Sri Lanka is a signatory. One of the most fundamental issues concerning the effective implementation of international human rights conventions is the aspect of giving adequate domestic recognition to those human rights contained in international conventions. The State should ensure that international law is part of domestic law. Those rights contained in international conventions to which a State is Party are also rights under domestic law especially of civil and political rights of citizens. In the Singarasa case, the Supreme Court ,however, held that the rights contained in the International Covenant on Civil and Political Rights were not rights under the domestic law of Sri Lanka as nothing had been done to transform international law into domestic law; therefore, rights under the Convention were not rights under Sri Lankan law and that as long as a government of Sri Lanka had not enacted implementing legislation which transformed the rights under the International Covenant on Civil and Political Rights into rights under Sri Lankan law, a citizen of Sri Lanka could not in any meaningful way argue in a domestic court that those rights had been violated. The Singarasa case is considered by jurists to be a certain case of political manipulation of the judiciary.
By the 1972 Constitution, unfettered control of the judiciary was placed in the hands of the President. The Parliament and the Cabinet Ministers were ranked over the judiciary .All judicial review of executive and administrative actions was terminated thereby curtailing judicial independence. Constitutional review was assigned to a Constitutional Court which was appointed by the President; it was not only clearly an arm of the executive but it also lacked the power to review any legislation after its enactment. The judiciary was, therefore, superseded by the executive and legislative branches of the government. Although the 1978 Constitution (now in force) strengthened judicial independence, Chapter III of the Constitution dealing with the eight Fundamental Rights viz. equality, free speech, association and conscience, freedom from torture and illegal detention, makes no mention of civil and political rights. By the 13ht Amendment of 1987, a state of emergency was made immune from judicial challenge. The 1989 Regulation No. 17 allowed the Defence Secretary to detain persons to prevent them from “engaging in acts inimical to national security in future” other regulations dispensed with the need for search warrants and allowed the police to dispose the corpses without notifying the families. Regulation from the 1990s further extended detention powers. Emergency (Misc. Provisions and Powers) Regulation No. 1 of 2005 and Emergency (Prevention and Prohibition of Specified Terrorist Activities) and Regulation No. 7 of 2006 stated that a person can be detained up to 1 year by military or police forces to prevent acts “prejudicial to the national security or the maintenance of public order”. By the Regulation of August 2008, detention powers were extended to further six months and broader search and seizure powers were given to the security forces.
Seventeen sets of regulations have been passed on divergent topics dealing with terrorist activities, high security zones, special administrative arrangements etc. The 17th Amendment of 2001 detailed the formation of the constitutional Council to limit the presidential power over the judiciary but successive Presidents have consistently ignored the Constitutional control and by the powers vested by the emergency regulations have kept the judicial powers under check. By intermittent interventions into decisions on political questions, the judiciary has been deprived of its ability to function independently.
The freedom of expression is guaranteed under Article 14 of the Constitution of Sri Lanka. In May 2000, the President of Sri Lanka, acting under section 5 of the Public Security Ordinance (Chapter 40), promulgated the Emergency (Miscellaneous Provisions and Powers) Regulation (No. 1 of 2000). Under this, Regulation 14 imposed a number of restrictions on publishing and broadcasting, including for the protection of national security and public order. Regulation 14 also provides for the appointment of a Competent Authority and gives him the power to implement these restrictions, including requiring the media to submit material in advance of dissemination (prior censorship), as well as the power to ban publications which breach the Regulation and to place a sealing order on their premises. Therefore the prohibition on publishing or broadcasting matters prejudicial to national security or public order, found in Regulation 14 of the Emergency (Miscellaneous Provisions and Powers) Regulation, No. 1 of 2000, as well as the system established in the Regulation for implementing this prohibition, represent a substantial limitation on freedom of expression.
From the period 1983 to 2001 (except for a five month period) an uninterrupted state of emergency has existed in Sri Lanka. This period is seen as the period when there have been no guarantees of personal security. It has also been seen to be a period when no redress had been provided against arbitrary state violence. In August 2011, the President of Sri Lanka stated in the Parliament that the reasons for the stringent emergency regulations , which had been in force since 2005 , no longer existed and that he was repealing the laws. The regulations were mainly intended to deal with the security predicament of the insurgency waged by the Liberation Tigers of Tamil Eelam (LTTE). With the war having ended in May 2009, and no terrorist activity recorded since then, the President expressed that there was no longer any need for the provisions. However , the situation does not change wholly in Sri Lanka as the government and the security forces enjoy far reaching powers under the Prevention of Terrorism ( Temporary Provisions ) Act of 1979 and other laws and regulations permitting long detention periods. The repeal of the emergency law does not have any effect for those already in detention, as it does not change the detention practices. Besides , the Supreme Court rulings have been often ignored by the Sri Lankan government indicating that despite repealing the emergency laws , the government and the security forces will continue to operate as before and without legal authorization. Therefore, although the conflict has ended, instead of a sense of freedom with the repeal of the emergency laws, there lurks an air of suspicion that the independence and the powers off the judiciary will not be restored and that the legal machinery is still not in a position to secure to all the people in Sri Lanka fair and equitable justice.
India has been grappling with the phenomenon of domestic terrorism and separatist insurgencies for more than three decades and often the two have over lapped. The country has witnessed the most proliferation of separatist organizations compared to areas of conflict in other countries of the world. The militant activities and separatist movements and insurgencies in several parts of India have led to different legislations to deal with them over a period of time. Internal conflicts in India are not confined to specific geographical locations or shared purposes; on the contrary there have been several insurgent groups acting in various parts of the country, each espousing their own ideological cause based on diverse factors like religion, ethnicity, language etc and indulging in varied violent acts. Therefore, India has always felt the need to formulate and pursue its own policy to deal with these insurgent activities .
The earliest perpetrators of violent activity in India were the left wing groups in the state of West Bengal .Informally termed as Naxalites, as the violent uprising and opposing movement was started in a village called Naxalbari in 1967 as a response to killing of peasants by the landlords, the movement spread to other states in the country. Although it fragmented in the period following 1970, it was estimated that by 1980 there were 30 odd groups sharing similar ideologies and having a membership of almost 30,000. The growing insurgency is still a major problem for the Indian government and it is estimated that at present the insurgent groups have a membership running beyond 20,000 and are suspected to have spread their influence over 5 states in India viz. Andhra Pradesh, Maharashtra, Madhya Pradesh, Orissa, Chhattisgarh, Jharkhand, Uttar Pradesh, West Bengal and Bihar, where the guerrillas have control and run quasi-government structures in 160 administrative districts. In some states, Naxalites have been active for a number of years continuously. Initially, the Naxalites were treated as a law and order problem and, therefore, the responsibility of the state governments. The police in some states, particularly Andhra Pradesh, Bihar and Jharkhand, have been blamed for human rights violations. In Andhra Pradesh, local human rights groups say that a special police squad deployed against Naxalites and known as the Greyhounds was responsible for hundreds of faked “encounter killings.” Large numbers of civilians have been internally displaced by armed clashes between the Naxalites and government-backed vigilante groups. In some areas, civilians have also been trapped, not just between security forces and the Naxalites, but also armed vigilante groups like the Salwa Judum in Chattisgarh state or the Green Tigers of Andhra Pradesh. While thousands are living in temporary shelters provided by the government, others are hiding in camps run by the Naxalites in the forest. Naxalism typifies a particular kind of militant and violent armed struggle by the peasants and tribals led by a leadership drawing doctrinal support from Marxism-Leninism and strategic inspiration from Mao. The contemporary Maoists draw heavily upon the iniquitous land tenure system and exploitation of the peasantry by landlords in framing their ideological aims
The earliest legislation to deal with the uprising in the nascent stage was The West Bengal (Prevention of Violent Activities) Act of 1970 passed by the West Bengal government. In Jharkhand state, the Prevention of Terrorism Act, now repealed, was used for the arbitrary detention of hundreds of persons. The Special Public Protection Act, which came into force in March 2006, is a vague and overly broad law that allows detention of up to three years for “unlawful activities.” The term is so loosely defined in the law that it threatens fundamental freedoms set out by the Indian constitution and international human rights law, and could severely restrict the peaceful activities of individuals and civil society organizations .The law also criminalizes any support given to Naxalites, with no defense given for acting under duress. Thus, persons whom the Naxalites force to provide assistance are subject to detention under the ordinance.
In the north eastern state of Assam, militant activity evolved as a reaction to the large-scale migration of refugees from East Pakistan – what is now Bangladesh – since India’s Partition in 1947. The local demography of the state was eroded by the continuous flow of refugees and in 1977 agitations were launched for detection of illegal immigrants and their deletion from the voters list. The United Liberation Front of Assam (ULFA), the prominent militant organization in Assam along with their anti foreigner agenda included secession from the Indian Union as its chief goal. As the situation deteriorated and the local government failed to control the escalating violence, the army was deployed and the state was brought under the Assam Disturbed Areas Act, 1955 and the Armed Forces (Special Powers) Act 1958. The Assam government promulgated the Assam Maintenance of Public Order (Autonomous Districts) Act, 1953 (Act XVI of 1953).This act received the Assam governor’s approval and was published in the Assam Gazette on June 3, 1953. It was the first of a series of successive legislations that were set out to govern the Naga Hills and then other parts of the Northeast, where other groups rose in revolt and espoused secessionist policies. The Disturbed Areas Act harks back to 1947 when the Government of India, facing communal violence at the time of Partition, enacted four ordinances to tackle the crisis: the Bengal Disturbed Areas Ordinance (Special Powers of Armed Forces); the Assam Disturbed Areas Ordinance (Special Powers of Armed Forces); the East Punjab and Delhi Disturbed Areas Ordinance (Special Powers of Armed Forces); and the United Provinces Disturbed Areas Ordinance (Special Powers of Armed Forces). These were designed to confront the Hindu-Muslim riots during the time of independence when India and Pakistan were partitioned.
ULFA did not cease its violent activities proclaiming constantly its goal to liberate itself from the rule of the Indian government. Its activities consistently escalated and in 1990 it turned extremely violent. Counter-insurgency operations in Assam continued and in 1997, a Unified Command structure was set up to co-ordinate the functioning of the various forces carrying out operations against the terrorists in Assam. There have been continuous military and para-military operations in the area and although this has considerably weakened the ULFA, its activities have not ceased. Similar insurgent activities have also been occurring in the other parts of North Eastern region of the country- in the states of Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
The Armed Forces (Special Powers) Act (AFSPA) was passed by the Parliament of India in 1958. Under this Act, all security forces are given unrestricted and unaccountable power to carry out their operations after an area is declared disturbed. The AFSPA gives the armed forces wide powers to shoot, arrest and search, for “aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the north- eastern region of India viz. Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland. It was withdrawn by the Manipur government in some of the constituencies in August 2004, although the Government of India was not in favour of its withdrawal. The Act has been employed in the Indian administrated state of Jammu and Kashmir since 1990.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:
- Fire upon or use other kinds of force even if it causes death
- To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offences or is suspected of having done so
- To enter and search any premise in order to make such arrests.
Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.
The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central Government. In the 1958 version of the AFSPA the authority and power to apply and extend the Act vested in the states. Continued violence in these states led to the extension of this power to the Central Government. Therefore, the Central Government was given the ability to overrule the opinion of a state governor and declare an area disturbed. For instance in Tripura, the Central Government declared Tripura a disturbed area, over the opposition of the State Government.
Under the AFSPA , Section 4 sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons.
The army can shoot to kill, under the powers of section 4(a) for the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be "of the opinion that it is necessary to do so for the maintenance of public order" and only give "such due warning as he may consider necessary".
The army can destroy property under section 4(b) if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp or as a hide-out by armed gangs or absconders.
The army can arrest anyone without a warrant under section 4(c) who has committed, is suspected of having committed or of being about to commit, a cognizable offense and use any amount of force "necessary to effect the arrest".
Under section 4(d) the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.
The sole argument in favour of that the AFSPA is that it is a necessary measure to prevent the secession of the North Eastern states as response to the agitations for secession in the North East had to be done on a "war footing." It is often argued that under Article 355 of the Indian Constitution, it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession. Although the enforcement of the AFSPA has resulted in allegations of incidents of arbitrary detention, torture, rape, and looting by security personnel, the legislation is justified by the India government on the plea that it is required to stop the North East states from seceding from the Indian Union. The law has also been declared by human rights organizations as draconian and as a violation of the fundamental freedoms of the citizens of the state. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the prior permission of the Central government. The Jeeven Reddy Committee constituted by the government produced a Report that called for the repeal of the act, describing it as “too sketchy, too bald and quite inadequate.” It went on to say “The Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness. It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of the majority of the region that the Army should remain although the application of the Act should be removed.” For that purpose, an appropriate legal mechanism
has to be devised. The committee’s report also felt that the removal of the application of the AFSPA could create political space for negotiations, dialogue, and peace in
the Northeast. In December 2006, responding to the 'legitimate' grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report.
has to be devised. The committee’s report also felt that the removal of the application of the AFSPA could create political space for negotiations, dialogue, and peace in
the Northeast. In December 2006, responding to the 'legitimate' grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report.
.In 1961, the central government passed the Nagaland Security Regulation Act to deal with the secessionist groups active in Nagaland. This Act along with the Disturbed Areas Act was used to bring the situation under control. Along with the AFSPA, the Nagaland Security Regulations Act was enacted to put more sweeping powers in the hands of police and civilian authorities-
ties. Between the 1960s and 2004 several laws were enacted to deal with the problems of internal security, which the police were viewed as incapable of handling because the acts constituted armed insurrection against the entire state, not just a part of it, and
hence justified the use of the army or paramilitary forces.
ties. Between the 1960s and 2004 several laws were enacted to deal with the problems of internal security, which the police were viewed as incapable of handling because the acts constituted armed insurrection against the entire state, not just a part of it, and
hence justified the use of the army or paramilitary forces.
The greatest outrage of the AFSPA under both Indian and international law is the violation of the right to life which specifies that means no situation, or state of emergency, or internal disturbance, can justify the suspension of this right. the powers to kill as in the case of the offences under Section 4(a) by which the soldier may shoot even if there is no deadly force to threaten the soldier. The Code of Conduct for Law Enforcement Officials only foresees the use of deadly force by an officer when he is threatened with force. Under Section 4(a) of the AFSPA, the officer can shoot when there is an unlawful assembly, not defined as threatening, or when the person has or is suspected of having a weapon. Since "weapon" is defined as anything "capable of being used as a weapon", there is a lack of proportionality between the offence and the use of force. Therefore, to continue the use of AFSPA if required, it is essential that it must comply with the basic requirements under international law and the rule of law as set up by the Indian legal standards. This means the powers to shoot to kill under section 4(a) must be unequivocally revoked. Arrests must be made with warrants and no force should be allowed in the search and seizure procedures. Section 5 should clearly state that persons arrested under the Act are to be handed over to the police within twenty-four hours. Section 6 should be completely repealed so that individuals who suffer abuses at the hands of the security forces may prosecute their abusers. Not only should the definition of key phrases, especially "disturbed area” be clarified, the declaration that an area is disturbed should not be left to the subjective opinion of the Central or State Government. It should have an objective standard which is judicially reviewable. It is imperative that the declaration that an area is disturbed should be for a specified time, for instance, no longer than six months and such a declaration should not continue without legislative review.
The Disturbed Areas (Special Courts) Act, 1976, however, provides a clearer definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.
In the original version of the Armed Forces Special Powers Act of 1958, only the state governments had the power to declare an area as disturbed. This was consistent with Article 246 of the Constitution of India to be read with the 7th Schedule of the Constitution of India which places “law and order” under the State’s list. The 1972 amendments to the AFSPA took away the power from the State government and its legislative Assembly and handed it over to an appointee of the Central Government. After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi following her arrest as a suspected member of the Peoples Liberation Army (PLA) by the Assam Rifles personnel in 2004, Manipur faced unprecedented civil disobedience over the demand for removal of the AFSPA.
The period between 1978 and 1993 was a period of great turmoil in the state of Punjab with Sikh separatist movements demanding Khalistan – a sovereign Sikh nation. The organizations indulged in a frenzy of unabated violence. The organizations received financial support from the Sikh community in UK, USA and Canada. The militant activity brought to halt normal life in the state and hindered economic investment in Punjab plunging it into a state of total anarchy with high levels of violence. Finally, in June 1984, the army was deployed and in a major operation – Operation Blue Star the army flushed out the armed militants who had amassed weapons inside the holy Golden Temple of the Sikhs in Amritsar. Successive operations by the police against the militants weakened them and after the bombing of the Air India Flight 182 in June 1985 over the Irish Sea which claimed the lives of 329 Canadian civilians , considered the worst aviation disaster till the September 11, 2001 attacks, support for Khalistan dwindled . Eventually the separatist movement died out and normalcy returned to the state.
Internal conflicts situations in India have been complicated and there is sufficient evidence that fact that the organizations in the North East and the Maoists have been receiving logistic support, weapons and training from foreign sources. Moser and Clark define political violence, as “the commission of violent acts motivated by a desire, conscious or unconscious, to obtain or maintain political power”. Political violence is further explained as being about the acquisition of power through violent acts. It is driven by desires for power that lead people to transgress others’ private domains. This phenomenon can be seen among guerrillas, paramilitary groups, tyrannical regimes, extremist religious and ethnic groups and others, aiming to undermine the other in order to achieve hegemony over a region, state or a group. The destruction and chaos provoked by the means used by perpetrators of political violence have their origins in diverse motivations that fluctuate from the desire to defeat a government to the desire to control a region or a land. Likewise, opposite motivations such as religious beliefs and economic interests coincide in the use of violence to achieve power”.
India has led to numerous legislations over a period of time but these have been confined to the specific areas where the activities have occurred. The last three decades, therefore , witnessed the enactment of numerous legislations to tackle various specific contingencies: Jammu and Kashmir Public Safety Act (1978); Assam Preventive Detention Act (1980); National Security Act (1980, amended 1984 and 1987); Anti-Hijacking Act (1982); Armed Forces (Punjab and Chandigarh) Special Powers Act (1983); Punjab Disturbed Areas Act (1983); Chandigarh Disturbed Areas Act (1983); Suppression of Unlawful Acts Against Safety of Civil Aviation Act (1982); Terrorist Affected Areas (Special Courts) Act (1984); National Security (Second Amendment) Ordinance (1984); Terrorist and Disruptive Activities (Prevention) Act (1985, amended 1987); National Security Guard Act (1986); Criminal Courts and Security Guard Courts Rules (1987) and the Special Protection Group Act (1988). However, these legislations were enacted to tackle specific situations only.
There has been no all encompassing legislation to deal with internal conflict situations throughout the territory of India which could be applied uniformly and interpreted by courts consistently. The Preventive Detention Act was passed by Parliament in 1950 in the bloody aftermath of Independence and Partition to curb activity that was perceived as a threat to national unity. This Act expired in 1969 and was quickly replaced by the Maintenance of Internal security Act (MISA) in 1971, primarily used to curb the Naxalbari uprisings. MISA was a controversial Act giving the government and Indian law enforcement agencies super powers - indefinite "preventive" detention of individuals, search and seizure of property without warrants, and wiretapping to quell the civil and political disorder within the country and to counter foreign backed terrorist activities which were threats to national security. The legislation gained infamy for its disregard of legal and constitutional and the arbitrary arrest and torture. The 39th Amendment to the Constitution of India placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review; even though it contravened the Fundamental Rights which are guaranteed by the Constitution. The law was repealed in 1977 and by the 42nd Amendment Act of 1978, MISA was removed from the 9th Schedule. When insurgencies and militancy became synonymous with domestic terrorism and the internal conflict situations came to be used by suspected terrorist outfits, the AFSPA and MISA were followed by Terrorist and Disruptive Activities Act (TADA) in 1985 and the Prevention of Terrorism Act (POTA) in 2002. Both the laws were criticized for authorizing excessive powers for the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil freedoms.
A serious situation has developed in India in the aftermath of the Khalistan movement and the never ending conflict in Kashmir. There is enough evidence that most , if not all, insurgent groups and those organizations with secessionist agendas are funded , trained and provided with weapons and other logistics by countries that seek to destabilize the unity and integrity of India. Therefore, all acts of secessionist activities are now deemed to be acts as terrorism. Acknowledging the fact that the existing situation in the country is peculiar, the Supreme Court of India in Kartar Singh v. State of Punjab observed that
deplorably, determined youths lured by hardcore criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against humanity. In spite of the drastic actions taken and intense vigilance activated, the terrorists and the militants do not desist from triggering lawlessness if it suits their purpose.
Two laws in India that were enacted at different times to deal with terrorism specifically were the Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987) and repealed in 1995 and the Prevention of Terrorism Act 2002 ( POTA) repealed in 2004. The Indian government had introduced the Prevention of Terrorism Ordinance (POTO) on October 2001 and the legislature passed The Prevention of Terrorism Act (POTA) in March of 2002. Both the laws resulted in gross abuse of human rights during implementation and there is sufficient evidence to uphold these allegations. The laws had abhorrent features that violated fundamental freedoms enshrined in the Constitution of India. Both these laws were severely criticized as they violated human rights and vitiated the due process of law. There was uproar in all sections of society and they were consequently repealed. That they flouted the basic concepts of the legal system is irrefutable.
Briefly, the inherent flaws were as follows: 180 days detention was permitted without charges being framed, there was a presumption of guilt of those subject to the law, there were clauses for summary trials, and trials in absentia - all of which violated all norms of equitable justice. The sketchy review procedure came under severe criticism. The gross abuse of the laws occurred due to several factors. The texts of these laws were too broad and the term terrorism included everything. The generalized term covered ordinary criminal activities covered by the penal laws of the country like theft and murder. The interlocutory orders of the Special Courts set up under the new laws could not be reviewed. Since the state governments had powers equal to the Central government under these laws there was gross misuse by the state machinery especially in the states of Tamil Nadu, Gujarat, Maharashtra where the laws were used to quell political opposition or to settle personal scores and all this is supported by statistics. The erratic application of the laws at various times also varied from state to state.
Questions were also raised regarding the violation of the Fundamental Rights enshrined in the Constitution of India. These laws violate the right of equality. Establishing special courts and special procedures was challenged on the grounds that terrorists were being treated differently from ordinary criminals, and that this was discriminatory. In 1994, the Supreme Court in the landmark judgment of Kartar Singh vs. State of Punjab dealt with various provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and upheld the constitutional validity of the Act. The Supreme Court held that
…the rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.
the persons who are to be tried for offences specified under the provisions of TADA Act are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from ordinary criminals and procedure
The procedure to record confessions was streamlined by the Supreme Court in the Kartar Singh case wherein six safeguard which were to be employed while recording a confession were defined. POTA incorporated these safeguards in its Section 32, which required that,
- A police officer shall, before recording any confession made by an accused under sub-section (1) of Section 32, explain to such person in writing that he is not bound to make a confession and that if he does so; it may be used against him.
- Further, provided that, where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
- Under clause (3) of the same section it is laid down that the confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
- Under clause (4) the person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
- Further, under clause (5), the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
- Another significant departure from TADA is that if the detainee's confession is not recorded before a magistrate within 48 hours, such confession fails to carry credence.
These substantial changes with regard to the admissibility of and safeguards relating to confessions under POTA were incorporated to remove the lacunae that had existed in TADA.
Stating the severity of the earlier laws and their misuse only serves to underline the need to reframe the laws; it does not raise the question whether a new counter terrorism law is required are not.
In State of Rajasthan vs. Union of India, the Supreme Court noted:
It must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief
Counter terrorist laws which are now used to deal with insurgencies and militant organizations due to their connections with terrorist groups , are an absolute necessity for society and it should not be treated as political issues even if the implementation is questioned by human rights forums. Counter terrorist law should be viewed as an efficient response within the rule of law. It has been seen that the policy of military response to terrorism is short lived and does not have long term legal effect. To stymie terrorist organizations and weaken the capabilities of terrorist organizations there is an urgent need to strengthen counter terrorist laws. The state machinery has to be empowered by law to prevent recruitment of cadres, raising of funds and other forms of support by propaganda and to scrutinize and freeze funds and assets. Vigil of terrorist organisations and of other such organisations with the potential to become terrorist organisations irrespective of whether terrorist acts are committed by them or not has to be sanctioned by law. Constant surveillance of its leaders, members and supporters is required. A wait-and-see policy would endanger the liberty of society and lead to grave consequences.
Counter terrorist laws should be viewed as safeguards for collective safety and there should have no partisan or parochial considerations. It should be understood that measured infringement of individual freedom is not violation of fundamental right. It is the duty of the state to prevent the existence of destructive forces within its territorial jurisdiction which endanger the life and liberty of its citizens and the safety and security of other states.
The Indian government, in the aftermath of the terrorist attacks in Mumbai on 26th November 2008 that lasted till 29th and left 173 people dead, succeeded in getting two Bills — the Unlawful Activities (Prevention) Amendment Bill, 2008 and the other Bill to set up a National Investigation Agency passed in the Parliament. That there has been a need for a special law to deal with the growing terrorist activity in the country and that the existing laws were insufficient to deal with the extraordinary nature of these violent act was not questionable, but how far the new Bills have really addressed the issues and concerns are subject to some deliberation.
Prior to the attacks in Mumbai in November 2008 , numerous attacks had occurred in several major cities in India : blasts had taken place in Delhi, in Bangalore ,in Jaipur and serial bomb blasts had shaken Ahmedabad . The Indian government after each of these incidents stated that there was no need for special laws and that the existing laws were adequate to tackle the terrorist threats as well as their activities. Emerging from lassitude subsequent to the cunningly executed Mumbai attacks and pummeled into action by the angst of the citizens, the Indian government changed its previous stance and plunged into activity hastily tabling two Bills in the Parliament – an amendment to the Unlawful Activities (Prevention) Act of 1967 and another to set up a National Investigative Agency. It has been evident that the government did indeed have serious reservations to enact any law that contained provisions that could in any manner resemble the draconian measures that had existed in the repealed terrorist legislations : the Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities Prevention Act (TADA) . The abuse of several provisions of TADA and the gross misuse by some states to stymie opposition to the ruling political forces had been the underlying reason for repealing the extremely harsh Act. Past experiences under such laws, therefore, underlined the need for caution in enacting laws to counter terrorism. The raison d'être for newer and specific legislation to deal with the growing threat of terrorism and the spate of attacks on civilian targets, certain caveats were necessary. However, on perusal of the Amendment to the Unlawful Activities (Prevention) Amendment Bill 2008, the hope that finally a forceful and comprehensive law has come into effect to counter terrorism in India is followed by a sense of trepidation. No doubt alarmed by the intensity and the ferocity of the Mumbai attacks the political establishments of the country seem to have spoken with one voice against terrorism, yet the haste with which the Bills went through Parliament raises reasonable questions about the abandonment of detailed debates and proper scrutiny on the distinctions and the implications of the two Bills. Any law that comes into force must be within the rule of law ; it is therefore, disconcerting to note that the grimmest provision in the amending Bill is the one that sanctions the special courts to presume that the accused is guilty under certain circumstances. For instance, if it is proved that weapons and explosives used in a terror attack are seized from an accused or if his or her fingerprints are found on the site of the attack, then the court "shall presume, unless the contrary is shown, that the accused has committed such offence." The presumption of innocence, the primary bulwark of criminal jurisprudence and the basis of equitable justice placed for the fundamental protection for the person so accused, has been negated. Thus reversing the burden of proof undermines the credibility of the criminal justice system and raises serious questions of the inviolability of individual rights as affirmed by the Constitution.
The increase of the period for detention without charges from 90 to 180 days at the discretion of the court does not conceptually raise the possibility of conviction. The same provision under POTA was found to be abhorrent. If the period of enhanced detention is meant to act as a deterrent for perpetrators of violent terrorist activity it rests on the presumption that such persons have acted without thought to their actions. On the other hand, increased detention period presumes that the interrogating agencies will be able to gather more information and evidence with the passage of time. However, the increase in the period without charges lends itself to overall abuse as has been reported in innumerable instances under the earlier laws - here, as well as in other in other countries where such laws are or have been in use.
The provisions for bail under the amending Bill have been made rigid; the courts may deny bail when they feel the charges against the accused are prima facie true – thus the entire issue of bail which was within the purview of ordinary criminal law has been made rigorous. The amending Bill to this extent seems to have duplicated the provisions that existed under POTA. Further bail can also be denied if the court feels that the charges against the accused are prima facie true. Besides, foreign nationals who have entered the country illegally and are being accused under this law shall be denied bail. There are some provisions that are not only noteworthy but also desirable. The provision denying bail: "except in very exceptional circumstances and for reasons to be recorded in writing" is significant as it allows indefinite detention of those who perpetrate terror attacks as the one in Mumbai. It must be noted that the schedule of banned outfits can also be expanded under the Act to include all organizations proscribed from time to time by the UN under the UN Prevention and Suppression of Terrorism Order, 2007. Also under the Act the entry or transit through India of proscribed individual can be banned. The Unlawful Activities (Prevention) Amendment Bill has certain other features that have to be deliberated. First, the definition of terrorism has been adopted from the resolution passed by the United Nations which has now been universally accepted. The working definition is broadly the adaptation of the description of the UN panel in 2005: any act "intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act." The Act extends the definition of a terror act to include attacks on a public functionary and kidnapping or abduction of a person with a view to compelling the state to do or abstain from any act. The definition of a "terrorist act" has been further expanded in the Bill to include terror funding, organization of terrorist camps and recruitment of people for committing terrorist acts. The Bill also provides the power to freeze, seize or attach funds and other financial assets of individuals or entities listed as terrorists and those who are suspected to be involved in terrorism. The investigating officer has been authorized under the Act to seize credit cards and debit cards if he is satisfied that they are being used to fund terror. Widening the ambit thus allows for dealing with the financial and logistic aspects of terrorism and does not confine the term to merely the actual violent acts of terror. These significant changes are acceptable and there is a broadening of the definition to include in the definition of terrorism militancy, insurgency and Naxal extremism. Secondly, a redeeming feature that has been incorporated is the check placed on the power of the police to misuse the law: after the investigation is complete, an agency set up by the Centre or the State Government would decide whether the accused should be prosecuted. The law also provides for an independent judicial review board before the commencement of prosecution for the purpose of scrutiny. The question, however, remains open whether this will really lead to uniform and consistent application of such law by the enforcement authority and consistent application and interpretation of the law throughout the territory. Thirdly, it is stated that it would be punishable for anyone either in India or abroad to directly or indirectly raise or collect funds for commission of terrorist acts. The amendment to Section 17 says that such a person would be punishable with imprisonment for a minimum of five years and maximum of a life term. This should effectively deal with the illegal financial activities but there are terrorist organizations that through legitimate business generate and raise funds for their activities. To what extent such legitimate business activities can be brought under the scope of this provision is to be seen. Fourthly, despite pressures from other parties, the Bill has not acceded to the demand that confessions to the police be admissible as evidence. This has allayed the fears that the enforcement machinery would use all impermissible means to obtain confessions. The organization to be set up under the new Bill, the National Investigation Agency has been given the power to investigate and prosecute offences affecting the sovereignty, security and integrity of India. . How far have the investigative agencies been empowered to monitor organizations suspected of or capable of terrorist activities and whether the leaders and other leading members of such organizations will be placed under constant or intermittent surveillance as they already pose threats or are capable of doing so , is also not clear. There is a need to permit admissibility of electronic and other evidence obtained during such surveillances. Whether this can be permitted is also a matter for discussion.
This Bill also envisages the setting up of special courts to fast track the criminal justice delivery system. This is a measure that needed to be taken to set aside interminable delay in the existing system of protracted judicial procedures. The hope is that the counter terrorism measures taken will strengthen the police, the interrogation agencies and the intelligence agencies sufficiently without creating any fear that there will be misuse of powers invested in them. However, certain features that would have complemented the tenability of new laws seem to have been overlooked viz. witness protection, transparency and review procedures and central judicial agency for even application and uniform interpretation of laws. Galvanized laws cannot eliminate terrorism but without a legal system to pre-empt and counter the threat of terrorism and laws to deal with persons who commit terrorist acts or seek to do so and those who instigate , provoke and support such acts the security of society and the nation will be constantly threatened. The Bills have been passed by the Parliament more to appease those who have accused the state of being soft on terrorism and to placate those who have exhibited anger towards the entire political establishment of the country after the Mumbai attacks in Nov 2008 than as a positive step to curbing terrorism and in that perhaps lies the inherent weakness of the legislation which aspires to address the new threats and yet imitates to some extent the earlier ones. There are no minor forms of terrorism and if there has been concrete evidence of earlier abuses of counter terrorism laws, it is the implementation of the law that should be scrutinized and rectified; the need for terrorism laws should not be questioned.
The 173rd Report on “Prevention of Terrorism Bill, 2000” states: “An extraordinary situation calls for an extraordinary law, designed to meet and check such extraordinary situations. It is one thing to say we must create and provide internal structures and safeguards against possible use and abuse of the act and altogether are different thing to say that because a law is liable to be misused, we should not have an act at all.” They submitted that Indian Penal Code was not conceived and was not meant for fighting organized crime; that it was designed only to check individual crimes and occasional riots at local level. Organized crime perpetrated by highly trained and armed fanatical elements or mercenaries who are trained financed, armed and supported by hostile foreign countries and agencies had to be fought at a different level than as an ordinary law and order crime. They pointed out that the anti-terrorism laws of the U.K. and U.S.A. were far more stringent than the provisions of the proposed legislation. They submitted that the plea that police was likely to misuse or abuse the provisions of the new legislation could not be a ground for opposing the very legislation to fight terrorism. It is one thing to say, they submitted, that the provisions of the legislation must be so designed as to prevent or minimize its abuse and misuse and quite another thing to say that because of the possibility of abuse, no such law should not be enacted at all. They submitted that one must realize the extraordinary, alarming and dangerous situation in which the country was placed today because of the activities of the hostile neighbour and the fundamentalist Islamic terrorism which have made India their prime target. They pointed out that foreign terrorists now far outnumbered the local militants in Jammu and Kashmir and that thousands more were waiting to enter J&K with a view to carrying on Jihad. In such a situation, any delay or inaction on the part of the country to take measures to fight these elements would be a grave dereliction of duty on the part of the State. The present enactment was one of the means of fighting terrorism and therefore its enactment could not validly be opposed. The experience under TADA and suggested that investing powers under the Act in higher authorities was an effective means of preventing its misuse.
Legal systems of countries must not only deliver justice efficiently within the acceptable norms of law and the framework of rule of law but they must also strengthen the legal regimes in their country to assure to their people the existence of a just system. To be effective not only do laws have to exist but they have to applied uniformly to all and the courts must be seen to dispense justice without influence or political pressure. . Every country imposes restrictions on freedom of expression to safeguard national security and public order. However, such restrictions are only legitimate if they are clearly and narrowly drawn, if they are applied by bodies which are independent of governmental or political influence, and if there is a sufficient nexus between the proscribed expression and the risk of harm to national security or public order. In addition, the guarantee of freedom of expression means that sanctions for breach of these should be by the rule of law and not arbitrary. The state should also ensure that it is economically possible for all to approach the courts for redress and that all the structures are in place to permit a person to approach the courts easily and without fear. A safe and secure environment should be created for the persons approaching court for fear of life or liberty will defeat the purpose of the judicial system.