A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Sunday, February 1, 2015
By Waliullah Ahmed Lashkar,
1. A draconian law: The
AFSPA is a piece of colonial legislation that gives the armed forces of
India unfettered power: (i) to use lethal force on civilians even to
the extent of causing death on mere suspicion that they may cause breach
of any law or order, (ii) to search any dwelling places by breaking
them on mere suspicion without warrant and (ii) to arrest people without
warrant and to keep them in custody for unspecified time and more
importantly the Act also bars the judiciary to question any acts of the
armed forces operating under the Act in areas declared disturbed under
the Act.
2. Its continuance is based on lies: The Government of
India took the plea that it is a temporary measure for meeting an
extra-ordinary situation and it would be withdrawn as soon as possible.
This plea was taken in parliament when the Act was being passed, in the
Supreme Court in the Naga People s Human Rights Movement case in 1997
and in international forums including the United Nations Human Rights
Committee. It is now 53 years in North East and 21 years in J & K.
If a measure for this length of time is temporary than what is
permanent?
3. The provisions of the Act militate against the purpose of the enactment: The
non-state armed groups (insurgents, extremists or terrorists, whatever
you may call them) need to be dealt with and contained because they
violate rights of the people to live peacefully, they try to impose
their will on the people and the state unlawfully and violently
trampling the constitutionalism and the rule of law that are sine qua
non for civilised human existence. It is the mandate of the state to
maintain the reign of law and constitution and the writ of the
government established by law along with ensuring security and safety of
the person and property of the citizens. But when the state through its
security forces and law enforcement agencies commits more atrocious
acts than the acts which it professes it is fighting the difference
between the non-state terrorists and the state gets blurred.The armed
forces of India when operate under the AFSPA do not act for enforcement
of the constitution and the law of the land or for protection of the
life and property of the citizens. Because, they operate outside the
constitutional and legal system of the land. The AFSPA places them above
the constitution, law and human rights obligations. The AFSPA gives
them the power to commit atrocities and wreak terror on the citizens
which they are supposed to combat and prevent and protect the citizens
from, with additional guarantee of immunity from any accountability. The
mischief that is addressed in the statute is doubled by its provisions.
To purportedly prevent the people from the terror of certain armed
groups the sate itself has unleashed its unmatched terror upon the very
people under the AFSPA. And it is not only in law but very much in
practice.
4. Problematic political premises: The political
premise of the Act appears to be very problematic in the sense that it
seeks in essence to impose “Indian-ness” through violence on some of the
people of the country who are deemed not to be adequately “Indian”.
This is apparent from the facts that despite naxalism being claimed as
the biggest threat to the national security the Act is not extended to
the naxal affected central India. Rather, it is stated that the
responsibility to deal with such problems rests with the state
governments, which is very true. This discriminatory attitude can not be
explained in any way other than the racial reading of the situations
and believe in fascist violence. The “Indian-ness” as it was understood
by our freedom fighters and for which they embraced martyrdom is not one
which would needed to be or which could be imposed through violence.
However, it should be more than clear that we are not seeking extension
of the AFSPA to any other part of the country since we want total repeal
of the Act. There are many draconian pieces of legislation in force in
naxal affected areas, though not of the nature of AFSPA, such the
Chhattishgarh Public Security Act etc. which are also needed to be
repealed. The phenomenon called naxalism has arisen largely due to the
deprivation, discrimination and exploitation of the tribal people of the
area. These problems need to be addressed politically and through
peaceful means.
5. A fraud on the constitution: The Act provides more
than emergency powers to the armed forces fraudulently bypassing the
provisions of the constitution of parliamentary oversight over the
exercise of such powers. The constitution also imposes duties upon the
Union Government to perform its obligations under the international
treatises. India is a party to the International Covenant on Civil and
Political Rights, 1966 (ICCPR) which provides for derogations of some
the rights in times of emergency declared legally, which are nonetheless
derogated by the Act without such declaration. It is to be noted that
the Supreme Court did not examine the compatibility of the Act with the
international human rights laws in the Naga People s Movement for Human
Rights.
6. The law lacks legality: Both the procedural and
substantial requirements of legality are conspicuous by their absence in
this Act of the parliament. On the procedural level it is to be noted
that the Act came not only as a product of a “decision” by the political
executive (i.e., as an ordinance on 22nd May, 1958) but also
subsequently escaped more or less unscathed from the “legislative
oversight function” of a democratically constituted Parliament on 18
August, 1958. And finally, rather than returning the legislation to the
Parliament again for reconsideration, the President readily gave his
assent on the legislation, thus making it into a law on 11 September,
1958. On the substantial level the Act does not pass the test of precise
definition as its terms are too vague and it also provides
powers/measures disproportionate to the mischief it is intended to
address.
7. Arbitrary application: Not only the framing of the
Act and its provisions are arbitrary but also the application of the Act
by declaring certain areas as disturbed is also arbitrary inasmuch as
the declaration of areas which are not disturbed in the sense in which
the term is contemplated in the Act. For example, the southern part of
Assam comprising of the districts of Cachar, Karimganj and Hailakandi
that is known as Barak valley is declared as disturbed area under the
Act which can not be said disturbed in any meaning of the word. There
has never been any insurgency in the area. And the former Prime Minister
Indira Gandhi proudly declared it as Valley of Peace admitting the
fact.
8. Recommendations of the government committees: Every
government committee which examined the Act opined against its
continuity in the present form including the Administrative Reforms
Committee headed by Mr. Birappa Moily. Most importantly, the Committee
to Review the Armed Forces (Special Powers) Act, 1958 chaired by Justice
Jeevan Reddy unambiguously recommended total repeal of the Act.
9. Militarisation of democracy: The ethos and practices
inaugurated, nurtured and sustained by the Act has led to critical
erosion of normative (norms) and institutional mechanisms of a civilized
democratic life which are critically manifest as (a) the near collapse
of Criminal Justice System and (b) culture of impunity of unbridled
violence in peoples life. The mockery of democracy is such that it can
be termed as democracy at gun point.
10. Traumatised Society: Actions taken under the Act
caused hundreds of extra-judicial killings, rapes, torture, enforced
disappearances forcing the people to live an uncertain terror-striken
life bereft of human dignity. It has made the whole society mentally
sick and traumatized.And on many other reasons.
The author is an advocate at Gauhati High Court and human rights defender with Barak Human Rights Protection Committee.