AFSPA: In comparative perspective

KS Luckyson James *

Peaceful March for Save Democracy - Repeal AFSPA at New Delhi on 2 October, 2011 :: Photo Credit - Save Democracy Repeal AFSPA Group

Introduction

The Armed Forces (Special Powers) Act (AFSPA) is one of the many special laws passed by the parliament which provides policing responsibility to deal with the special situation. The reason of which the special laws go beyond the normal laws is that the state considered the existing legal framework is not enough to deal adequately with threats to the national security.

At the same time, the legal security regime and defence mechanism of the state has been violating citizenship rights conferred by the constitution by misusing the special powers. Initially, the Armed Forces (Assam and Manipur) Special Powers Act, 1958 enforced as a temporary measures to deal with the Naga insurgency in the Naga Hills District of Assam including the three sub-divisions of the tribal hill areas in the then Union Territory of Manipur.

Comparative Analyses of AFSPA

The comparative analyses of AFSPA are to find out the laws to better serve for the interest and welfare of the society. It is to drawn a conclusion by emulating some of the best practices for effective implementation of special laws in the country. The provision of the AFSPA which designated any specific areas as disturb or dangerous place is a unique legislation. The critiques of some of the rights bodies and civil society organizations describe it as discriminatory. These kinds of legislations could be rarely found in any other anti-terror laws in the world.

Under AFSPA, any army officer equivalent to the rank of Havaldar, Commissioned or non-commissioned officer has a right to shoot upon and kill a suspected terrorist by exercising a maximum use of force. Any person acting in contravenes of law is not necessarily an act of terrorism. In this regard, Section 3 of Schedule 14 of Terrorism Act, 2000 (UK) is one of the best provisions which stated that the armed forces shall use “reasonable force” in exercise of power. Reasonable forces shall be use even a suspected person falls under the section 40(1) (b) i.e. ‘terrorist’. Reasonable and minimum force should be used for maintains of law and order in public sphere.

Destruction of property, arms dump, fortified or any structure: The armed forces are allow destroying any property, structures, building, and armed dump or fortified according to their own discretion under Section 4(b) of AFSPA. For instance, under the policy of regrouping of villages, entire villages uprooted and displaced, houses, schools buildings and churches in the disturb areas were dismantle during army operation.

Under this Act, there is no provision for compensation, as a result people were denied of natural justice. On the other hand, section 43(4) of the Prevention of Terrorism Act, 2012 (Kenya) pointed out that destruction of property or any structure shall not be carried out without obtaining an order from the High Court. The anti-terror law in Kenya is much more at ease and humanize in nature.

Enter and search without warrant: The entered and search operation in United Kingdom and Australia has conducted in a more systematic and lenient manner compare to other laws. It is worthy to emulate the best ones from these countries. According to Terrorism Act, 2000 (UK), it allows only an “authorized officer” can enter the premises. The officer has to be accompanied by other person for purpose of carrying out a search and the search of any person shall be carried out by the same-sex.

In Australia, the Proceeds of Crime Act, 2002 have restricted the search of a person’s body cavities. If practicable the search has to be conducted by the same-sex. Only an authorize officer is allow to search a person. The magistrate issue search warrant if he satisfied that there is a reasonable ground suspecting that ‘tainted property or evidential materials’ were existed in the premises. The search warrant expires on the seventh day from the day on which the warrant was issue. It obliges an executing officer to give everything details about the warrant to the occupier of premise. Unlike AFSPA, procedures for enter and search operation are elaborate in a comprehensive manner under the above provisions.

Under AFSPA, all the members of security forces are authorize to enter the premises and search without any restriction. Searches without warrant can carried out anytime according to the discretion of armed forces. The innocent civilian and local populations in the ‘disturb areas’ are totally at the mercy of security forces. They can confiscate the property and freedom to do like anything inside the premise without consent of the occupier.

Section 241 of Proceeds of Crime Act, 2002 stated that the occupier has a right to be present during search unless sub-section 2(a) if he impedes the search and (b) disturb or interfere with the objective of the search

There is no provision in AFSPA that the search shall be necessarily carried out by the same-sex. If this provision has inserted, incident of misused of the act would be greatly reduce. A search warrant issued by the High Court or magistrate and monitor or accompanied by the certain individuals as an eye witness like village headmen and elders does not arise.

Detention of person without warrant: Under the Terrorism Act, 2000 (UK), the armed forces are allow arresting a suspected person and can detaining for not exceeding four hours. The review of detention has conducted once in every 12 hours by the review officer. The extent of detention should not exceed fourteen days after the expiry of relevant time. In Indonesia, under the Government Regulation in Lieu of Legislation on Combating Criminal Acts of Terrorism, 2002, detention of suspected person with strong evidence against him can be extended for seven days.

Whereas in India, under Section 5 of AFSPA, an arrested person shall be produced “to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest”. But arrested persons are not handed over to the Magisterial Court or nearest police station within 24 hours as requires by the Act and Cr Pc Section 57. Sometimes it takes longer time even to make it to the nearest police station. In India, the reviews on detention of person are to be done after every 3 months period.

Immunity of Law Enforcement: Under the Government Regulation in Lieu of Legislation on Combating Criminal Acts of Terrorism 2002, Military police Investigation against the soldier shall be conducted by their authorized command. The cases can be close only by receiving the reports of implementation by military prosecutors. Besides, Terrorism Act, 2000 (UK) provided the Independent Assessor of Military Complaints Procedures to receive the complaints, investigate, review the cases and redress the grievances of the people in Northern Ireland.

In contrast, under AFSPA, the military superiors and subordinates are equally unaccountable or irresponsible for any offences and crime against humanity as they are effectively protected from legal prosecution. Perhaps the chances of getting earlier sanction from the Central Government are not reliable because most of the accused of human rights violation are scot-free and they were not prosecuted in the history of more than 50 years of its existence.

This provision is clearly violates Article 2(3) of the International Covenant on Civil and Political Rights which stated that anyone whose rights are violate shall make ensure to have an “effective remedy, notwithstanding that the violation has committed by persons acting in an official capacity”. Under AFSPA, the provisions related to the grievances mechanism and institutions are not effective.

In the nutshell, by winning the hearts and minds (WHAM) of the people is the most effective doctrine for fighting insurgency around the world. It should not at the cost of unarmed civilian population by unleashing the reign of terror in the name of fighting against insurgency which threatens the integrity of the State. In this context, the reform of section 6 of the Act is needed with a political will into a more humanize legislation to prevent further alienation of people.

Those responsible for any atrocities or crime should accountable to the rule of law. It is worth mentioning here that the Criminal Code Act, 1995 (Australia) which make military commanders effectively held responsible for any offences committed by forces under his authority and control.

It is also pointed out that the forces committed a crime as the superior failed to take all necessary measures to prevent from omission or commission of offences. Whether civilian or military commander shall not be escape from responsibility for a crime against humanity.