Bane hain ahle-e-hawas muddai bhi
munsif bhi
kise vakeel karein kis se munsifi chaahen..
…….Faiz Ahmed Faiz.
This is our present day dilemma.
What is the biggest challenge to any criminal legal system during an internal conflict.
In my opinion it is best put by none other than Ms. Asma Jhangir, the President of Supreme Court Bar Association of Pakistan, when while opposing calling the Army to control a conflicting situation in Karachi recently on 24th of August, 2011. She reportedly said and I quote from the Report:-
“She pointed out calling military to the city would make courts a Kangaroo Courts” and she being an advocate would oppose and resist this move. She held all political parties responsible for the deteriorating law and order situation in the economic hub of the country and said different ethinic and small groups of political parties were involved in target killing and extortion. She also did not rule out the possibility of Foreigners in the city. Saying, they might be in Karachi to exploit the situation. She alleged that MQM and all other political parties were involved in shattering peace in Karachi and incidents of extortion in the city. Problems of Karachi had a political solution, she said and urged all political leaders to go to the city, sit together and find out a solution.
She explained that Judicial System should be stronger so that a law breaker should get punishment and an innocent person should not be punished.
Therefore, ladies and gentlemen the challenge to the Criminal Justice System in dark days of internal conflicts is that it could be made stronger but its aim should be only to punish law breaker and protect the innocent.
As I stand before you today, I must express my anguish and express my heartfelt sympathy for all those who were injured and those who lost their lives in New Delhi on the 7th of September 2011 at the entrance of Delhi High Court gate where a dastardly act of extreme violence blew our brothers and fellows citizens to pieces, right in the morning at 10:15 A.M.
Now what action should be taken against perpetuators of such a crime. I ask each one of you.
I know similar happenings have been rocking Pakistan and India in the past also.
Friends lets not be mere spectators, our cause is the same lets get the guilty punished and help our authorities in raising a better protective vigil for innocent civilians, so that they are not sacrificed like animals in future.
All power in a democratic set up is the power of the people. They have chosen to vest this power in various organs of the state. Therefore, all the power of the state has to be wielded for promotion of the constitutional values within the constitutional frame work.
State in other words cannot be blind to its constitutional limitations, and cannot counter violence with violence. It has to adhere strictly to the rule of law. The state strictly speaking has no other authority.
It is a fact that all internal conflicts cannot be termed merely as law and order problems. There may be various examples available, as to how other countries could have dealt with or managed their internal criminal legal system during an internal conflict or disturbance. But let me take the example of India. A democracy, having a written constitution.
In the Indian Constitution there exists in part XVIII emergency provisions from Article 352-360 which can be invoked if the president is satisfied, whereby security of India or any part of its territory is threatened, by an external aggression or an armed rebellion. Three times in the history of India emergency was declared on the threat due to external aggression. But for the first time in the year 1975 it was declared on the ground of internal disturbance. For the first time basic freedoms were extinguished. Further by the 39th and the 42nd amendments the freedoms were further impaired. Finally the 44th Amendment was enacted to prevent the abuse of the emergency provisions.
Emergency imposed in the year 1975 subverted the constitution in a number of ways. e.g. censorship was imposed on the press, and laws were enacted to make it the law of the land. Censorship of the press was made effective by enacting the maintenance of internal securities act, 1971(MISA) or the law of preventive detention. Under MISA detention orders were signed in blank, people arrested and grounds of detention got up latter. India went back to the days of star chambers which use to issue general warrants to arrest unspecified persons and search property. Emergency raised grave problems of constitutional law. The safeguards provided by the constitution were swept away overnight.
It is therefore important that lessons be learnt from imposition of emergency and the challenges it raised to the constitutional set up including the working of the criminal legal system during a farce called internal disturbance.
Now a time may come in the history of a nation that it may have to deal with a situation like the proclamation of emergency due to an internal conflict, but what is important is that even if internal conflict is genuine the working of the criminal legal system which is in place cannot be completely abolished. Sufficient safeguards should be provided to oversee that the legal rights of the citizens are not thrown to the winds. Basic rights of fair trial under a established procedure should be adhered to. There should be fast track trial courts set up to deal with the emergency situation. The three segments of criminal justice system viz the Police, the Judiciary and the correctional institutions ought to function in a harmonious and cohesive manner.
Criminal justice administration in India has deficiencies both substantive and procedural. Inefficient and unscientific police investigation. Inept prosecution, fragile material evidence, huge pendency in Courts, Over 70% of prisoners in India are under trails.
Supreme Court of India in some very recent judgment had to deal with atrocities committed by the police, during its day to day functioning. In CBI Vs. Kishore Singh & Ors. (2011) 6 SCC 369 the judgment of the Supreme Court begins thus- and I quote
“leave granted. What should be done to policeman who “bobbit” a person in a police station and think that they can get away with it? This is the question to be decided in this case.
this case reveals how some policemen in our country have not got over their old colonial mentality and are still persisting in barbaric acts in a free country which claims to be run by a democratic constitution and the rule of law. It also reveals a grisly state of affairs prevailing in our police set up even today.”
Justice Markandey Katju, judge Supreme Court of India began his judgment delivered in the case of Mehboob Batcha & Ors. Vs. State (2011) 7 SCC 45 with the couplet with which I started my speech. From Faiz Ahmed Faiz. The case related to wrongful confinement deaths in custody and rape by policemen. Justice Katju expressed his anguish and pain and stated that this was a fit case for grant of a death penalty but not even a charge under section 302 IPC (Murder) was framed by the trail court in this case.
Supreme Court of India while dealing with a case of appointment of tribal youths as special police offers (SPO’S) for counter insurgency activities against Maoists/naxalites, while testing its Constitutionality in the case of Nandini sunder & Ors. Vs. State of Chhattisgarh (2011) 7 SCC 547, has this to say and I quote from para 85 and 86 of the judgment –
“the fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve. Means which may be deemed to be efficient in combating some immediate or specific problem, may cause damage to other constitutional goals, and indeed may also be detrimental to the quest to solve the issues that led to the problems themselves. Consequently, all efficient means, if indeed they are efficient, are not legal means, supported by constitutional frameworks.”
“the fight against Maoists/Naxalites is no less a fight for moral, constitutional and legal authority over the minds and hearts of our people. Our constitution provides the guidelines within which the state is to act, both to assert such authority, and also to initiate, nurture and sustain such authority. To transgress those guidelines is to act unlawfully, imperiling the moral and legal authority of the state and the constitution. We, in this court, are not aware of the gravity that extremist activities pose to the citizens, and to the state. However, our constitution, encoding beacons of human wisdom, also warns us that ends do not justify all means, and that an essential and integral part of the ends to which the collective power of the people may be used to achieve has to necessarily keep the means of exercise of State power within check and constitutional bounds. To act otherwise is to act unlawfully. Laws cannot remain silent when the cannon roar.”
Ladies and Gentlemen one can only compliment the Supreme Court of India for the path it has carved for us to follow.
While on one hand there seems to be a dismal picture on the other hand India has established a wonderful record as far as human rights are concerned.
The Human Rights Commission (NHRC) set up under the human rights act, 1993 has been doing a great service in protecting the basic fundamental rights of the citizens. At the same time in the states, the state commissions have been established. The national human rights commission itself became a petitioner and filed a petition under Article 32(1) in the Supreme Court in the case of National Human Rights Commission Vs. State of Arunachal Pradesh reported in AIR 1996 SC 1235 mainly for the enforcement of fundamental rights of about 65,000 chakma/hajong tribals under Article 21(2) of the constitution.
The significance of this judgment also lies in clearing the doubts regarding the applicability of fundamental rights of the refugees. The decision rules that foreigners are entitled to enjoy the protection of right to life and liberty under Article 21(2) of the Indian Constitution. Timely intervention by the commission has thus saved the lives of thousands of innocent chakma refugees from Arunachal Pradesh.
- Article 32- Fundamental Right given to all citizens to file petition before Supreme Court for enforcement of their Fundamental rights.
- Article 21- Fundamental Rights which protects life and liberty of all citizens.
On 3rd December, 1996, the commission took cognizance of a letter from one Chaturanan Mishra then the Union Minister of Agriculture regarding starvation deaths due to the droughts in Bolangir district of Orissa. The supreme court also referred a Writ Petition in this connection to the NHRC. Immediately the matter was expedited and interim orders were passed, state govt., was requested to constitute a committee and is monitoring the case.
Then there is the case relating to the Right to Food. One cannot forget the contribution of the NHRC in the matter relating to compensation paid to the victims of large scale cremations in Punjab, and the suo moto action by the commission in 2002 on communal riots in Gujarat. The commitment and integrity of NHRC is to be applauded.
Mr. Soli Sorabjee former Attorney General for India, President united layers association member U.N. Human Rights sub-commission in an article titled “the united nations and human rights which was published in a book titled Law & Justice an anthology which he has also edited- writes that conventional thinking in international law before the second world war was that an individual is merely an object of the law of Nations. An individual human being was not regarded as a subject of international law, since the law of Nations is based on the common consent of International States, and not of individual human beings.
The general accepted position was that no sovereign state may inquire into the manner in which a sovereign rules or set itself up as a judge of his conduct, nor force him to make any change in his administration……….. the consequence of this doctrine was that what a sovereign state did to its citizens was its own affair and it was none of the business of other states or the international community to interfere…. All that has dramatically changed. Today how a state treats its own subjects has become a legitimate concern of international law and international community.
The U.N. Charter proclaim and reaffirms faith in Fundamental Human Rights. There may have been doubts about the legal status of the Declaration but the Vienna Declaration at the United Nations world conference on Human Rights is June 1993 states that : All human rights are universal, indivisible and interdependent and inter related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.
Earlier the state sovereignty was used as shield from external regulation and any attempt to intervene were deemed interference. After a long battle the first successful attempt was the conclusion of the 1949 Geneva Convention of which Article 3, regulates internal armed Conflicts. This was further fortified by Protocol II Additional to the Geneva Convention, of 1977, which contains several provisions on the regulation of internal armed conflict. Since 1994 the international law of internal conflicts has changed dramatically, in large part due to the work of international criminal tribunals. Today a strong, International law which regulate internal conflicts exists. But the U.N. record after establishment of ICC (International Criminal Court) has been dismal. Mr. Kofi Annan former U.N. Secretary General (1997-2006) on 30th May, 2010 is reported to have said:-
“Questions of credibility will continue as long as some of the world’s most powerful countries stand outside the jurisdiction of the I.C.C. What sort of leadership is it that absolves the powerful from the rules they apply to the weak? We must demand that those who seek global leadership accept the duty of promoting global values”.
We need to see a new wave of countries ratifying the Rome Statute after the Kampala conference, so that a permanent International Criminal Court becomes a universal one.
Further progress also depends on states genuinely exercising their primary responsibility, under the Rome Statute, to investigate, prosecute and punish those responsible for grave crimes.
There must be no going back or lessening of momentum. Our challenge is to protect the innocent by building a court so strong, universal and effective that it will deter even the most determined of despots.
Opening the Rome Conference as U.N. Secretary-General, I told delegates that “the eyes of the victims of past crimes, and of the potential victims of future ones, are fixed firmly upon us. That remains the case. We must not let them down.”
In the end I can only say all laws which are enacted should aim only to punish the guilty and protect the innocent.
Thank you all for your patience.
