Saturday, 21 February 2009

Can the suspension of civil rights ever be justified?

I was moved to write this piece after reading an article by Irfan Husain, a Pakistani journalist who divides his time between London , Sri Lanka and Pakistan . Husain writes about the situation in the Swat Valley of Pakistan where civil society has ceased to exist. The Taliban have chased the administration away, closed down girls’ schools and imposed the Shariah (beheading, floggings and all) on an unwilling populace. Husain wonders if in such a situation the suspension of civil rights will be justified. If those fundamentalists inflicting so much damage on the common Swat resident are to be tried under normal laws, most will get away since it will be very difficult to prove their guilt beyond reasonable doubt, assuming a judge can be persuaded to try them. Husain asks his readers in anguish:

So we return to the dilemma of how to treat these people: are they citizens who deserve the same rights as the rest of us, or do we subject them to the rigours of the benighted law they seek to impose on society? If we descend to their level of barbarism, do we not become their mirror image? And yet, if we play by conventional rules, we run the real risk that they will win.”

You will find Husain’s article here.

A week or so after Husain’s article appeared, the Pakistani government cut a deal with the Taliban, giving them the right, in exchange for peace, to impose the Shariah in the Malakand Division, which includes the Swat district.

I found myself asking the question, should we ever agree to relax the rules of civil society that most of us take for granted? The basic rules of civil liberty are as follows: no punishment without a fair trail, and not until one’s guilt is proved beyond reasonable doubt, no detention for a period of more than a few days without charges being framed and legal representation provided, a right to be freed on bail during the trial period, unless there is a very good chance that the detainee will flee, and the right to not to be tortured or have to suffer degrading treatment while in custody.

Every once in a while, there arises a situation, usually involving insurgency or terrorism, when a law is enacted suspending these rights to some degree. There can also be a situation where the government turns a blind eye to the informal suspension of these rights. At the height of the Khalistani insurgency in the Indian state of Punjab in the 1980s, scores of people ‘disappeared.’ Usually they were suspected militants who could be tried and punished only with a great deal of difficulty, even if they were captured alive. It was convenient for the government to do them away using hit squads who also used that opportunity to settle personal scores and make some money. I’m sure many honest mistakes were also made. All this meant that many, many innocent people died in Punjab , though militancy was stamped out. Now, with the benefit of hindsight, if Indians were to be asked, was the Indian government right to have done what it did in Punjab , what would the answer be? Presumably at that time, the Indian government thought that such a hard-nosed approach was the only way of quenching the militancy. It thought that it had a choice between losing Punjab and using hard-nosed tactics. From anecdotal evidence, I feel most Indians would say that the Indian government took the right approach. I am not too sure, but I too just can’t bring myself to say that the Indian government was wrong.

The situation in Swat is much worse than that which prevailed in Punjab in the 1980s. The state has definitely withered away. Many Pakistanis have more than a sneaking sympathy for the mullahs, though they would personally not want to be under the Taliban. Coupled with the common man’s disdain for what is perceived to be a weak and corrupt government, Pakistani society has not been effectively mobilised to meet the Taliban’s threat. Let’s assume that Pakistan can be so mobilised and that most Pakistanis would support a harsher approach, one where anyone with suspected ties to the Taliban is arrested or abducted and imprisoned or killed without a trial. Would such an approach be justified? Now that the Taliban have come to power, they will take away the civil rights of everyone in Swat. If, instead of cutting a deal with the Taliban, the Pakistani government had gone in for a harsh crackdown on the Taliban, many fundamentalists who would otherwise not be punished, would have been killed after suffering torture. A few innocents might also have died. I know this will be controversial, but I feel that if it was a choice between losing control of Swat to the Taliban and suspending civil rights, I would have preferred the latter.

Generally, when civil rights are suspended, an enactment such as the Patriot Act or Prevention of Terrorist Activities Act (POTA) is enacted, after which security forces lower the standards to a level even below what’s provided in the enactment.

After the 9/11 attacks, the US government and its allies have arrested many suspected fundamentalists from all over the world, put them in detention in various places including Guantanamo Bay and tortured some of them using a variety of procedures such as stress positions, exposure to cold and heat and cultural shocks. Is such treatment justified? I would argue that it is. Before I justify my response, let me tell you that my response is a very subjective one and is largely determined by my values, education and cultural background.

The threat from Islamic fundamentalists is very real. The fundamentalists do not subscribe to the values of civil society. Western society and non-Islamic chunks of the developing world are especially vulnerable to the fundamentalist since they all have many citizens who are disenchanted with their current situation and are willing to support the fundamentalists. Intelligence about the fundamentalists is very poor and precision arrests etc are not easy. Even more difficult is the obtaining of proof that will stand up in a court of law. It is all very well to argue that the disenchanted sections of society must be integrated and intelligence must improve and that the state should never stoop to the level of the fundamentalists. The reality is different. We know that such an improvement will not happen within the required time. More importantly, the chances of a genuine secularist being arrested and detained on suspicion of being a fundamentalist are not very high. In fact, they are pretty low. No, I’m not talking of time spent at airports clearing security. I’m talking about the chances of an individual being picked up from home and sent off to Guantanamo without a trial. Again, water-boarding and stress positions are definitely torture, but do not constitute third degree torture in my dictionary. If the authorities have a suspect who might have information that could prevent a terrorist attack or help capture other terrorists, I don’t see anything wrong in using such tactics to force a confession out of such person.

A lot has been written about how torture doesn’t work. Silly me, but if torture doesn’t work, why is it so widely used? It is widely used, because it usually works. If Mr. X is captured, water-boarded and discloses verifiable information such as having hidden a bomb in a particular place, you know that torture has worked. If it turns out that there is no bomb in that place, you know that it didn’t work.

If one doesn’t like the idea of torture, one should take the morally high position that torture shouldn’t be used even if it works, rather than say torture doesn’t work. The Americans also used cultural shocks to force confessions, such as interrogators insulting the Quran or having female interrogators touch the detainees. As far as I am concerned, I don’t consider such tactics to be torture though someone else might feel they are worse than third degree methods.

The actions of American secret service agents have been conducted largely in accordance with the Patriot Act and various internal regulations and memos. They might not stack up in a court of law which applies the usual high standards of care and proof. However, I don’t think any one was harmed just because he failed to pay a bribe or had a personal enmity with a federal agent.

The war against Islamic fundamentalism is one we just can’t afford to lose and for this reason, I feel that civil rights can be suspended. I can’t think of many other situations where civil rights can be suspended. I don’t think the Sri Lankan government is justified in imposing a White Van culture in the south of the Island . I don’t think the Indian government would be justified in following this approach in fighting the Maoists in the east of India . I do think that this approach can be followed in Jammu and Kashmir against foreign mercenaries there, though I wouldn’t support the use of such tactics against Kashmiris from Indian Kashmir.

Once again, these are very subjective views and can be controversial. A different person may say that the Maoist threat is greater and they should be dealt with greater seriousness. In any event, I can tell you that I wouldn’t want to be in the place of one of those many innocent human beings who are caught up in such insurgencies and suffer for no fault of theirs so that people like me can stay and secure.

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