South Asian states
have a long history
of both intra-state
and inter-state conflicts.
In each conflict the
state has considered
itself threatened. Its
sense of insecurity
has always driven the
state to devise special
laws that disregard
the due process and
impinge on citizens'
basic rights and freedoms.
In many situations the
civil society has been
influenced by the state
establishments' projection
of their concerns, real
or imagined, to the
extent that it becomes
a party to derogation
of the rule of law or,
at least, indifferent
to suppression of basic
freedoms.
The anti-colonial struggle
in the subcontinent
on several occasions
assumed the form of
violent strife. The
colonial power responded
by promulgating draconian
laws, such as the Punjab
Murderous Outrages Act
of 18671
and the Frontier Crimes
Regulation. Whenever
the British were pitted
against their European
rivals, their largest
colony received long
sets of repressive laws,
such as the Rowlatt
Act and the Defence
of India Rules. The
colony that was India
was first divided between
India and Pakistan and
then between Pakistan
and Bangladesh. The
present generations
in these new states
may not be able to recall
the special laws of
the colonial period
but their establishments
have preserved their
old manuals which used
to offer ways of meeting
the threats to 'His
Majesty's government
established by law'
both from within and
outside. Only the reference
to the English monarch
has been replaced with
the titles of the post-independence
entities while their
claim to be governments
established by law has
often had as little
justification as it
had during the colonial
period.
A study of the continuity
of the colonial tradition
of curtailing civil
liberties in periods
of internal strife and
conflict along the borders
is much too vast a subject
to be dealt with in
a brief paper and it
will be appropriate
to confine ourselves
at the moment to the
recent period, say 25-30
years.
Pakistan was the first
country in South Asia,
and probably one of
the first few in the
world, to make laws
to fight terrorism with
special laws, interpreted
by special courts for
speedy trial, and under
special procedures.
The Suppression of Terrorist
Activities Act of 1975
held the field for many
years till it fell out
of favour with the judiciary.
Early in the nineties
it gave way to the Terrorist
Affected Areas Ordinance
and the Special Courts
for Speedy Trial Act.
Then in 1997 came the
Anti-Terrorism Act.
These enactments were
defended on the ground
of need to deal with
ethnic strife and violence
related to political
issues in Sindh. Military
courts were set up in
Sindh in the last week
of December 1998 and
functioned till February
1999 when they were
wound up following a
Supreme Court ruling
against them, although
the government deemed
it proper to extend
the measure to the rest
of the country while
the court was deliberating
on the matter.
Special laws and special
procedures were needed
by civilian governments.
During the years of
direct military rule
Martial Law Regulations
and summary military
courts were available
to supersede normal
laws, even the constitution.
They were used in East
Bengal in 1971 to suppress
its political struggle
that had acquired the
form of insurgency and,
later on, of a fight
for national liberation.
In view of the proclamation
of emergency the regime
did not require fresh
extra-legal means to
deal with the situation
caused by India's invasion
of East Bengal when
the regime faced an
external conflict along
with a domestic one.
The same was the case
during the military
rule of Gen. Ziaul Haq
(1977-85). Armed with
Martial Law Regulations,
quite a few of which
prescribed death as
the minimum penalty
for offences that could
not be described as
heinous or revolutionary
(the term used by the
colonial rulers for
armed political resistance),
the regime could discard
the requirements of
rule of law while dealing
with the democratic
agitation. Its involvement
with the conflict in
Afghanistan did not
necessitate any search
for new tools of extra-legal
coercion either.
The recent last military
regime established in
1999 chose to do without
Martial Law Regulations
though a somewhat weaker
substitute was found
in the Chief Executive's
orders. It had to rely
on executive actions
instead of laws to meet
the situation created
by an extra-territorial
conflict the United
State's war against
terror.
Sri Lanka has not had
to face armed conflict
with an external party
but it allowed the political
struggle of the Tamils
to grow into an insurgency.
The first casualty was
the Constitution. A
Prevention of Terrorism
Act was enforced in
1979 and guarantees
of rule of law declined.
India too chose to
resort to special laws
to meet the situation
caused by internal strife,
like the Kashmir security
law and the infamous
TADA. When this measure
could not be kept in
force, it was replaced
with Prevention of Terrorism
Act (POTA).
In Nepal where democracy
was introduced only
in 1990, an intra-state
conflict erupted in
1996 when the Maoists
launched what they called
'a People's War'. From
the very beginning the
state discarded the
established legal instruments
for dealing with the
situation. In 2001 a
state of emergency was
declared and army deployed
to fight the insurgents.
All of the special
laws mentioned above
were motivated by a
desire to give the state
greater powers in disposing
of citizens' affairs
and their interests.
They reduced the protection
to the citizens provided
by normal laws and procedures.
In some cases the principle
of presumption of innocence
was discarded and the
accused bore the onus
of proving himself innocent.
The powers of the law-enforcing
agencies were increased
and the traditional
restrictions on use
of force, including
use of weapons and firepower,
were relaxed. Many problems
were created by creating
special courts outside
the judicial hierarchy,
as in Pakistan, where
the judiciary fought
a long-drawn-out battle
to bring the special
courts under the superior
courts' supervision.
The right to equality
before law was dented
as those facing trial
before special courts
were placed at a disadvantage
as compared to those
who were tried by normal
courts for the same
offences. The enhanced
punishments prescribed
in special laws increased
corruption all round
and the less affluent
suffered more than those
resourceful enough to
buy their way to bail
and acquittal. These
special laws and procedures
gave rise to human rights
violations on a massive
scale.
One of the forms human
rights abuse assumed
was the extra-legal
killing of suspects
and innocent people
in what were described
as 'encounters' in Pakistan
and India and disappearances
in Sri Lanka and Nepal.
Thousands were liquidated
in this2
manner. The 'encounters'
were not confined to
conflict zones and spilled
over into areas where
no armed strife had
taken place. For instance
when killing in 'encounter'
became the sole instrument
to deal with violence
in Karachi, the practice
was enthusiastically
adopted by the so-called
law enforcing agencies
in the Punjab province
of Pakistan. In India
the Sikhs in Punjab
were 'pacified' through
large-scale extra-legal
killings3.
Till recently disappearance
of hundreds of people,
many of whom were eventually
found dead was a matter
of major concern, and
the pattern is now visible
in Nepal.
Another form of human
rights violations has
been displacement of
hundreds of thousands
of innocent people from
conflict areas of the
region. The number of
people forced to abandon
their homes and sources
of livelihood as a result
of the conflict between
the Maoists and the
security forces in Nepal
has been estimated at
150,000 to 200,0003.
Thousands of people
had to leave their homes
in Sri Lanka. Displacement
of innocent civilians
has been going on for
years on both sides
of the Line of Control
in Kashmir for years
and the situation was
greatly aggravated during
the Kargil episode and
the subsequent shelling
across the LoC4.
Instances of arbitrary
arrest and detention
without trial as a result
of both intra-state
and inter-state conflicts
are a legion. Faced
with internal strife
the Zia regime in Pakistan
kept several thousand
people in detention
without trial by simply
extinguishing the judiciary's
powers to intervene.
The worldwide derogation
of civil liberties,
following the events
of Sept 11, 2001, and
guarantees of protection
against arbitrary arrest
have been compromised
across South Asia. For
instance, hundreds of
people have been arrested
in Pakistan during the
hunt for Al-Qaeda men
and the Taliban.
The government admitted
to handing over 643
such detainees to the
U.S. authorities without
ascertaining their involvement
in crimes against Pakistan
or any other state or
fulfilling the extradition
requirements. A man
was arrested on the
suspicion of involvement
in a terrorist act.
He was kept in different
police stations without
trial or any charge.
Bailiffs despatched
by the High Court in
habeas corpus petition
failed to find him.
It was many months later
that he was produced
in a court for trial
on the charge of smuggling.
Several doctors and
scientists have been
detained, some of them
for long periods, on
the suspicion of links
with the Al-Qaeda organisation
or men belonging to
it.
The security cordons
thrown around conflict
zones in Sri Lanka caused
disruption of supplies
of food and medicines
to people living in
these areas and around
them. The freedom of
movement was curtailed
and only elaborate arrangements
and pressure from international
humanitarian agencies
could ensure that some
supplies of food and
life-saving drugs could
reach the beleaguered
population. A similar
situation prevails in
Nepal. Movement of people
outside the capital
is restricted and a
short journey takes
long hours, even days,
and no one is interested
in supplying food, medicines
or other humanitarian
aid to the population
living in areas controlled
by the Maoists or where
they and the troops
are battling for supremacy.
Following the branding
of the Maoists as terrorists
by the richest of the
potential aid-givers,
they as well as the
people living under
their control have lost
their entitlement to
relief. Collateral damage,
perhaps.
All conflicts in South
Asia, whether intra-state
or inter-state, have
been accompanied with
information control
by state establishments.
The biggest casualty
has always been the
truth. Concealment of
facts and their distortion
along with restrictions
on the media in the
form of censorship and
press advice or by barring
access to conflict areas
have been noticed in
all South Asian countries.
Many Pakistanis still
complain that they did
not know about the killings
and ravaging of women
in Bengal in 1971. The
whole truth about security
operations in Kashmir
and India's North-East
is still not known.
What was concealed from
the people of Pakistan
during the conflict
in Afghanistan and the
formative phases of
Al-Qaeda and the Taliban
is now appearing in
research work5.
All conflicts of any
nature in South Asia
have given rise to a
'patriotic' media. That
the media has by and
large tended to toe
the line of state establishments
is only one, and perhaps
less reprehensible,
part of the story. The
tendency to outdo the
establishment publicists,
ideologise national
positions and demonise
the other have been
more dangerous manifestations
of disregard for truth
and professional morality.
The dissidents who question
the justification for
armed conflict or merely
pose questions about
costs and consequences
or the conduct of operations
have been pilloried
and hounded with greater
vigour than sometimes
by the states' functionaries.
Disagreement with establishments'
perception could be
branded as treason.
During the Kargil conflict
between India and Pakistan
the electronic media,
perhaps to a greater
extent in India than
in Pakistan, went to
the extent of glorifying
war with much more harmful
consequences than the
Pakistanis had done
in preceding decades
through singing of war
songs and paeans to
those who killed others
or got killed. Not enough
was done to focus on
the plight of civilians
or the bills of conflict
that were to be paid
by the people, mostly
by the poorer among
them. The infection
spread to the world
of arts, cinema in particular.
The success of a couple
of Indian films on the
conflict with Pakistan
has resulted in nearly
a score of similar ventures
in India while the Pakistanis
are trailing behind
only by virtue of fewer
productions and not
in terms of lack of
respect for human person
or the dignity of the
opponent and a pathetic
fondness for bloodshedding.
The repercussions of
conflicts in South Asia
for the civil society
have been quite serious.
The worst affected are
the political parties.
The India-Pakistan conflict
has come to determine
the agenda of political
parties in both countries.
Few parties wishe to
be less hawkish than
the others as desire
for peace is considered
a sign of weakness,
even as surrender of
what is touted as national
interest and collective
honour. The academics
also have competed with
one another in proving
themselves supra-nationalists.
The trade unions have
been split. For instance,
the rise of Muttahida
Qaumi Movement (MQM)
in Karachi, which owed
its birth itself to
a split in the student
body, brought divisions
in trade unions, some
of them with a long
history of united struggle
for workers' rights,
media ranks and professional
associations.
The worst sufferers,
however, have been the
people at large, especially
the minorities. In Sri
Lanka during the height
of the conflict an innocent
Tamil was not safe in
Colombo, nor even in
India if he went to
visit a relative there
or merely sought refuge
from violence. As a
result of India-Pakistan
conflict the Hindu community
in Pakistan has lost
its title to be considered
patriotic and loyal
to the state and the
same can be said about
the Muslim minority
in India. During the
recent pogrom in Gujarat,
India, the victims of
mob frenzy were identified
not only as Muslims
but also as Pakistani
terrorists. Seizure
of land and other properties,
including shrines, belonging
to minority communities
has been done sometimes
under laws of dubious
validity and sometimes
by the fiat of executives
or local nabbs. This
has happened not only
in Pakistan and India
but also in Bangladesh.
The application of laws
for foreigners and to
innocent civilians who
inadvertently cross
the national borders
is quite callous.
All conflicts in South
Asia have been financed
by the state establishments
out of funds diverted
from none too large
resource pools, causing
arbitrary cuts in public
welfare projects. Huge
expenditures on conflicts
and preparations for
defence have made a
direct contribution
to increase in both
unemployment and poverty.
Domestic strife has
often kept investors
away (e.g., Pakistan
and Sri Lanka till the
agreement on ceasefire).
All conflicts in South
Asia have increased
violence by non-state
actors in the communities
concerned. In Pakistan
even a child knows that
the country has received
a glut of arms and drugs
as a result of its involvement
with the Afghanistan
conflict. Militant groups
have mushroomed and
sectarian violence has
become an epidemic.
If the state functionaries
prefer killing those
suspected of threatening
national security the
game can be played by
non-state actors too.
State establishments'
tendency to employ more
effective weapons to
kill their targets has
led to a veritable arms
race between law-enforces
and criminals.
Apart from the loss
of life, property, economic
opportunities and legal
safeguards, the population
of countries faced with
either internal strife
or inter-state conflict
throughout the region
has paid a heavy price
that is often not included
in the balance sheet.
Conflict situations
impose heavy strains
on the people's mental
health, a fact established
through many researches.
A large number of people
are drained of their
sense of forebearance
and compassion. The
killing and abuse of
women and children belonging
to the opposite side
do not prick the conscience
of protagonists. The
only concern is that
the losses, pain and
humiliation suffered
by the other remain
higher than on one's
own.
However it will not
be fair to assume that
those who thrive on
conflicts and the misery
of the people have been
succeeding in smothering
the conscience of the
entire South Asia population.
No country in the region
has been with people
of sound minds and stout
hearts, although the
numbers vary from country
to country. Voices have
been raised for peace
and good neighbourliness.
Women organisations
and human rights activists
in particular have stood
up to armed goons and
their political patrons.
The media people from
the region have met
more than once to take
stock of their role
in conflict situations,
made confessions and
realised the need for
their proactive role
in averting conflicts,
in containing them and
in saving the civilian
populations from their
ravages.
South Asian Free Media
Association (SAFMA)
has gone beyond developing
solidarity among media
persons on their freedom
and professional interests
and has brought politicians,
parliamentarians, academics
and activists together
to explore ways to bilateral
and regional understanding,
good neighbourliness
and conflict resolution.
It need not be forgotten
that after all the victims
of the Gujarat carnage
found defenders from
the Indian society and
those accused of raiding
the parliament house
in New Delhi could find
eminent lawyers to defend
them.
The only conclusion
possible from this brief
survey of the consequences
of conflict situations
in South Asia is that
such situations must
be examined in the context
of the people's basic
rights. Conflict is
basically a denial of
right to peace. Discussion
of conflicts must not
be limited to considerations
of states' prestige
and the set of rights
and wrongs dictated
by the ruling elites.
A lot has been written
on conflict resolution
and there is no need
for adding another piece
of advice to the high
and mighty in South
Asia that dispose of
the lives of over a
billion people. But
a plea to the civil
society may not be out
of place. Society must
realise that neither
an inter-state conflict
nor an intra-state one
is ordained by heavens,
it is created by human
beings who believe in
taking up arms as the
first resort and not
the last. Further, conflicts
yield dividends to the
elites and for that
reason they love conflicts,
while peace brings dividends
to all people, including
the poorest.
No conflict is irresoluble.
For example, almost
all internal conflicts
in South Asia originate
in the state's stubborn
refusal to offer legitimate
political space to all
components of its multi-cultural
and multi-ethnic societies.
Can this problem defy
sincere efforts to solve
it? Likewise, inter-state
conflicts in South Asia
are in reality clashes
between national entities
for the supremacy of
one or the other. They
too can be resolved
provided that civil
societies in the warring
states can find the
strength of mind and
courage to stay two
steps ahead of the state
establishments and not
two steps behind them,
as hitherto.
(Mr.
I. A. Rehman is a renowned
human rights activist,
running most prestigious
Human Rights Commission
of Pakistan as its senior
Director, and author
of numerous reports.
He is one of the most
senior journalist in
Pakistan.)
References
1. See the text of the
enactment in Pakistan
Code Vol. 1. The law
has not yet been removed
from Pakistan's statute
book.
2. For 'encounter' killings
in Pakistan see State
of Human Rights reports
of Human Rights Commission
of Pakistan, especially
for the years 1992 to
1998. An excellent account
of such killings in
India is available in
the 672 case studies
compiled in 'Reduced
to Ashes' by Ram Narayan
Kumar and others, a
2003 publication by
the South Asia Forum
for Human Rights, Kathmandu.
3. See 'Insurgency and
Displacement,' SAFHR
paper 15, Sarah Kernot
and Manjita Gurung,
issued in 2003 by South
Asia Forum for Human
Rights.
4. Hundreds of families
in the Kargil area on
both sides of LoC had
their first restful
night in years only
after the ceasefire
that took effect in
November 2003.
5.
Ahmed
Rashid, Taliban and
two recent American
publications, George
Crile, 'Charlie Wilson's
War' (Atlantic Monthly
Press, New York) and
Gerald Posnar, 'Why
America Slept', (Random
House, New York).
