In a statement, the Asian Human Rights Commission, Hong Kong, says:
Several events which have taken place in recent weeks remind us of the deepening of the crises in the region.
In Bangladesh, in The Bangladesh Rifles (BDR) 55 officers, seven civilians including two officers’ wives, were killed by lower ranking officers. Five other senior officers are still missing. Those who were killed include the Major General of the BDR, two Brigadiers General, over a dozen colonels, several lieutenant colonels, captains, majors and two soldiers. The exact reason for this revolt has not yet been revealed.
In Sri Lanka the conflict between the LTTE and the Sri Lankan government has been continuing with what is being referred to as the final assault which has resulted in the deaths of large numbers of persons. The US-based Human Rights Watch, in a report issued on 20th February, put the civilian casualty figures at 2,000, of whom 700 were children. About 200,000 civilians are caught between the fighting forces and they are being targeted both by the LTTE, which is preventing them from leaving and also by the Sri Lankan military which is continuing its assault on the LTTE. Despite of many interventions there is no significant change regarding this situation.
In Pakistan the Sri Lankan cricket team was targeted by a terrorist group consisting of about 12 persons who were heavily armed and seven policemen escorting the team were killed during the assault. The cricketers suffered minor injuries and were returned to Sri Lanka. Pakistani official sources claimed that it may have been caused by the same terrorist group that carried out the attacks in Mumbai which occurred between the 26th and 29th November, 2008. At least 173 people were killed and 308 wounded.
None of these were isolated incidents. They are in fact, merely a manifestation of an ongoing state of instability and violence prevailing in the South Asian region. The BDR revolt took place shortly after a new government was elected in Bangladesh with an absolute majority in parliament. This came after a long period of instability where the military has begun to play the role of arbiter in Bangladeshi politics. It was a period in which a large number of extrajudicial killings took place. Over 500,000 persons were arrested for political reasons, and the law of the country was suspended, particularly in matters relating to the liberty of individuals such as arrest and detentions, conditions of bail and the like. Virtually, the administration of justice has been brought to a standstill. In that background the corruption for which Bangladesh is known reached new heights, particularly the wealthier businessmen were subjected to various harassments for claiming large sums of money from them. The average citizen is subjected to corruption at all levels from admissions to hospitals, schools and on the occasions of arrest or detention of any family members.
Sri Lanka’s continuing crisis has been preceded by about 40 years of instability beginning with a minor insurrection in the south in 1971 by a group known as Janatha Vimukthi Peramuna (JVP). Large scale killing was a part of the military campaign of the time in the south, north and the east. The JVP and the LTTE also relied on armed rebellion. In the face of such large scale killings, the arrest of large numbers of persons, the maintenance of illegal detention camps, the use of torture and the suppression of freedom of expression and assembly became the normal way of life in the country. Such unstable times provide enormous opportunities for corruption. The corruption has spread so wildly in the Sri Lankan police service that there are constant harassments of people throughout the country by the utilisation of the powers of arrest and detention for the purpose of monetary enrichment of the officers of the local police stations. No complaint mechanism can expect to be successful in the midst of the resistance that naturally arises within a system that is so corrupt. The political system itself has been so corrupt that any attempt to be critical of any politician on this score carries the possibility of assassination. While some journalists have been killed many others have fled the country. The lawyers too, are under attack. Under these circumstances the institutions of the administration of justice have hardly any space to operate from.
The recent incident in Pakistan is comparatively a small incident when compared with the constant state of violence that has prevailed in the country for many decades. The global war on terror has intensified this state of violence. The possibility of bomb attacks in any part of the country has become part of normal life. Meanwhile, forced disappearances continue to occur and the past disappearances are not being investigated. There are reports of 52 torture cells operated by the military and even the keeping of women as sex slaves. In traditional systems such as Jirga, extrajudicial forms of punishments such as burying people alive and the killing of persons for what are seen as sexual transgressions also continue. The recent judgement by the Supreme Court regarding some cases concerning Nawaz Sharif indicates the continuity of the traditions of political bias on the part of the higher judiciary. The former chief justice, Iftekhar Choudhry, was not reinstated despite of promises by all political parties to do so. The lawyers are battling hard against this system. However, there is resistance on the part of the government and the military to grant any space for the operation of the rule of law. Under these circumstances corruption prevails everywhere and the policing system also suffers from the endemic practices of corruption and the control of powerful elements. The normal process of criminal justice remains virtually suspended.
In India, too, in many parts of the country there is hardly any rule of law. Of particular concern are states such as Bihar, Orissa, Chhattisgarh, West Bengal, Jharkhand, Uttar Pradesh, Manipur, Tripura and Nagaland. What the Mumbai attack also demonstrated was the sheer incapacity of the policing system to provide the services which are normally expected within a rule of law system. The absence of a credible corruption control system affects Indian bureaucracy as a whole and the policing system in particular. Public perceptions of corruption and inefficiency keep the population alienated from the policing system. The government has not demonstrated any form of political will to undertake the necessary reforms in order to upgrade its policing system to meet the demands of the population. The lack of political will in this regard may be due to powerful pressures that see the strengthening of a rationally functioning policing system as a threat to their interests. All classes of persons, particularly those of the less privileged classes and castes see the police as a severely oppressive force.
Despite of the ever-increasing instability there are no attempts in any of the countries mentioned above to reverse this situation and create a situation of greater stability. The way of dealing with violence that is pursued in all these countries is to suspend the operation of normal laws even more despite of the fact that suspension of the normal laws increases corruption and the oppression of all the people even further. The reliance of Special Forces which include paramilitary and underground elements in what is called anti terrorism, in fact, further terrorizes the entire society. The giving of extraordinary powers to the military, paramilitary, police and underground elements linked to these forces has legitimised the practice of assassination and the threat of assassination. Under these circumstances a whole mentality has been introduced where no person can predict the kind of violence that they may become a victim of at any time. The normal mechanisms of the administration of justice are of little use. In fact, the pursuit of justice carries the real threat of being subjected to assassination and other forms of harm on individuals or groups.
When the ruling regimes and powerful sections of society fear the rule of law as a threat to themselves the civilian population is trapped in a situation where it has no means to assert its will for the purpose of improving their living conditions. All attempts to improve living conditions such as the improvement of wages, the decrease of prices of essential commodities, and the improvement of health and education opportunities and even to improve the facilities for transport and communications are frustrated by an overpowering scheme in which none of these activities holds any legitimacy. The new rule established by force and the threat of force treats any such normal efforts as transgressions. All transgressions carry the threat of extrajudicial punishments. There is no proportionality between the act done and the punishment that may be meted out. For example a simple act of criticism can carry the death sentence.
The emergence of extrajudicial punishments has displaced the need for normal mechanisms for the administration of justice. New political schemes for the control of populations do not require the mediation through institutions of the administration of justice. Its ways of dealing with transgressions is direct which means by the use of force extra judicially.
Within this context there is also hardly any space for freedom of expression. Free speech and publication are seen as threats to this overreaching scheme of social control by extra legal means. Therefore, threats of extrajudicial punishments for any expression of dissent have become a common feature.
Thus, South Asia has not only become a no-law zone but has developed its own modes of social control within which extrajudicial punishments have become the normal way of societal control.
The following features have become manifest:
1. Extrajudicial punishments achieved either by way of exaggerated emergency laws or without any law at all have replaced the normal system of punishment through the criminal justice system.
2. Democratic forms of expression and struggle have been replaced with armed conflict between the state and the armed groups. The existence of the armed conflict is used to legitimise the suppression of democratic forms of expression and protest.
3. The policing system has been allowed to degenerate to an extent that they cannot perform the functions expected of them within a rule of law system.
4. Corruption is allowed to spread into all areas of life including all sectors of the administration of justice so that its capacity to uphold normal principles of justice is severely weakened.
5. Torture and extrajudicial killings including forced disappearances and the like have become necessary by-products of the transformation described above.
6. All public institutions are deprived of real power and are subjugated due to severe controls from above this depriving them of any form of independence and rational functioning.
7. The existence of the above mentioned situations makes everyone, including those in public life, dependent on political loyalties.
8. Loss of faith in law leads people often to take the law into their own hands either by way of meting punishment by themselves or by getting the law enforcement agencies to act outside the law by bribing them or by the use of the criminal underground.
9. The lack of confidence in the legal process has created the perception that to get any form of attention on an issue some form of violence has to be resorted to.
10. The normal process of criminal investigations is regarded as a threat to this new scheme.
11. The criticism of the military has begun to be treated as very important transgression deserving of extrajudicial punishment. The military spending is not subjected to public scrutiny.
12. This scheme that places extrajudicial punishment in a central place undermines the supremacy of the parliament. Even parliamentarians who exercise their normal functions as representatives of the people may be subjected to extrajudicial punishment.
13. A state of unabated impunity prevails.
The transformation that has taken place within South Asian society, shifting from basically one that accepted the rule of law model to one that has rejected that basis and the acceptance of extrajudicial punishment as a normal way of social control needs to be reckoned with by anyone that believes in justice, democracy and human rights in the region. The AHRC therefore offers this statement to all concerned people and groups and requests that the matters raised in this statement to be seriously discussed. Comments on this statement are welcomed.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
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