Revisiting the Armed Forces Special Powers Act, 1958
- Part 3 -

Laishram Malem Mangal *

(b) AFSPA and International Bill of Human Rights

The Universal Declaration of Human Rights (UDHR)[24] and the 2 Covenants viz. International Covenant on Civil and Political Rights (ICCPR)[25] and International Covenant on Economic, Social and Cultural Rights (ICESCR)[26] along with the 2 Optional Protocols[27] constitute the International Bill of Human Rights.

Universal Declaration of Human Rights (UDHR)

The broad provisions of AFSPA which license extra-judicial execution of innocent and suspected persons under the disguise of maintaining law and order28 is in contravention with the provisions of UDHR. The Preamble of UDHR, inter alia, says "Whereas it is essential, if man is not to be compelled to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law".[29]

The state is duty bound to protect the basic inalienable human rights which is also guaranteed in its constitution and under international human rights regime. The state cannot violate these inalienable or non-derogable rights by oppressive laws. AFSPA is oppressive.[30]

Specifically, sec.4 (a) violates Article 3 of UDHR. Sec.5 violates Article 5 which prohibits torture, cruel, inhuman or degrading treatment or punishment. Persons arrested under Sec.5 are always delayed within the least possible delay and are subjected to torture, degrading treatment, etc. Sec. 6 violates Art.8 which provides for an effective remedy for violations of fundamental rights.

International Covenant on Civil and Political Rights (ICCPR) – Art.2 prohibits derogation from Art.(s) 6,7,8, inter alia. Sec.4 (a) violates Art.6 of ICCPR. Sec.5 violates Art.7 and Sec.6 violates Art. 9(4), (5) of ICCPR.

International Covenant on Economic, Social and Cultural Rights (ICESCR) – AFSPA violates security of life and liberty (i.e. physical liberty) not to mention of social security provided under Art.9 of ICESCR. Where there is no security – physical and social, development is a myth. Thus it violates the provisions of the Covenant.

AFSPA violates the provisions of the American Convention on Human Rights (Art.(s) 4,5,7,10,24) [31] and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art.(s) 2,3,5,7,14,17).[32]

Art.15(2) of the latter specifically prohibits derogation from Art.2 which guarantees Right to Life. AFSPA also violates provisions of the African Charter On Human and People's Right (Art. (s) 4, 5(b), 16, 22(1), 24).[33]

( c )International Customary Law

(i)UN Code of Conduct for Law enforcement officials adopted by the General Assembly in Resolution 34/169 of 17th Dec.1979.

First Article of the Code requires that law enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal act, consistent with the high degree of responsibility required by their profession.

The definition of law enforcement officials includes persons exercising police powers and military officers. The armed forces participating in counter-insurgency operations in Manipur and north east falls under this Code. Instances of human rights violations taking place in the region exhibits that the armed forces are ignorant of Art.1 [34] Ignorance of law is no excuse.

Second Article requires that the law enforcement officials shall respect and protect human dignity and uphold human rights of all persons while performing their duty. Contradictorily, the armed forces blatantly violate human rights.[35]

Article 3 requires that law enforcement officials to use force only when strictly necessary and to the extent required for their duty. This provision is openly violated. The armed forces kill civilians who were waiting for bus at Malom. Article 5 prohibits law enforcement officials from committing torture or other cruel, inhuman or degrading treatment or punishment at any circumstances even at the superior's order to do so. There is no exception to this rule and no-derogation permitted. Armed forces violate such prohibited and non-derogable obligations. Oinam ordeal is an example.

(ii) The Body of Principles on Detention or Imprisonment was passed by the UN General Assembly Resolution no.43/173, on 9th Dec.1988.

It applies to all persons under any form of detention, and so is applicable to numerous cases of detention of persons arrested under AFSPA. Principle 10 provides right to be informed of the reasons for arrest and charges leveled. Principle 14 requires that a person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive (information) promptly in a language which he understands.

Since the armed forces operating in the North east are foreign to the peoples they are unable to comply with this principle.[36] Under Art.32 and 226 right to habeas corpus must be absolutely granted. But it failed in Sanamacha.

(iii)Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions adopted by the ECOSOC also offers guidance for the use of force.

Principle 3 stipulates that all forms of extra-legal, arbitrary and summary executions committed by the public authorities should be prohibited. Armed forces have the right and duty to defy such orders. However, under AFSPA they systematically carried out extra-legal, arbitrary and summary executions of civilians and innocent persons.

To be continued.....

Authors Notes:
This is a paper presented at the Human Rights Day, 10th December, 2008 organized by the LMS Law College, Imphal on the theme "Human Rights, Law and Society". The topic of my paper is Revisiting the Armed Forces Special Powers Act, 1958.