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.
MYANMAR
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.
NEPAL
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.
SRI LANKA
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
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.[1]
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
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…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.[2]
Further
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[3]
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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:
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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[4]
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.
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