My previous post focused on the challenges that the Bush administration's preventive detention policies pose for the Obama administration. This is in part because individual lawyers who now occupy positions in government (including President Obama) have previously stated their principled objection to such laws.
A consistent objection raised by opponents of preventive detention laws is that they confer vast discretionary powers upon executive officials which, coupled with the pro-government bias throughout the system of administration that is devised to implement such laws, provide both temptation and incentives for their abuse by the officials who are empowered under such laws. These opponents cite empirical evidence which show that preventive detention laws have historically been abused to target groups of people who did not at all fall within the proper domain of such laws.
The latest (Feb 28) issue of Tehelka features an article that focuses on the record of the Meghalaya Preventive Detention Act (“MPDA”), and argues that the record of implementation of this preventive detention law in contemporary Meghalaya bears out the truth and forcefulness of this objection. Teresa Rehman relies on interviews with activists and lawyers in Meghalaya to argue that“a cross-section of people including activists, NGOs, pressure groups, political adversaries, juveniles and even pickpockets” have been detained under the MPDA." Rehman notes that pursuant to a 2005 amendment,
The Act allows the state government or District Magistrate to detain a person for up to three years “with a view to prevent him from acting in any manner prejudicial to the security of the state or to the maintenance of public order or of supplies and services essential to the community”. Records from the Registrar’s office at the Shillong Bench of the Gauhati High Court show that in 2008, 12 MPDA cases were disposed of while two are still pending. “The MPDA is vague as to who can be detained and does not distinguish between militants, activists and criminals. Everything depends on the whims and fancies of the government,” says DDG Dympep, an activist working with an NGO called the Meghalaya People’s Human Rights Council (MPHRC). There have been instances where the government has done away with formalities such as placing representations before review committees and has freed detainees due to public pressure. Those who have no one to speak up for them may languish in prison for three long years.
Detainees are usually immediately shifted to jails in remote districts such as Tura Jail in West Garo Hills district, William Nagar Jail in East Garo Hill district or the Jowai District Jail in the Jyantia hills. As a result, relatives find it difficult to meet them and detainees cannot easily consult lawyers. Sometimes, they are also sent to jails in neighbouring states. Moreover, jails in Meghalaya are in an appalling condition.
In 2001, the MPHRC conducted a survey to investigate the problems detainees face. This revealed that detainees, convicts and undertrials are kept together in three dilapidated wards. It also states that the condition of detainees and convicts is slightly better than that of undertrials, who do not get proper food and are - served rotten and discarded vegetables.
The entire piece is worth reading, and Tehelka is to be commended for maintaining its focus on such issues which are often neglected by mainstream media outfits.
The latest issue of the New Yorker contains an excellent article setting out the challenges that a case that will be heard by the U.S. Supreme Court in April 2009 poses for the Obama administration. As the author of the piece, Jane Mayer, describes it, the al-Marri case will require the Obama administration to "offer quick answers to a host of complicated questions about its approach to fighting terrorism." Her detailed piece explores several such issues and focuses in particular on the Obama administration's stance on preventive detention laws.
In India, the post-independence legal system has - somewhat paradoxically given the great abuse of such laws during the colonial era - endorsed and frequently justified the use of preventive detention, to the point where even civil libertarians seem to take their existence for granted. This was evident most recently in the post-Mumbai amendments to our anti-terror legal regime. This is, in Mayer's telling, in contrast with the historical experience of the U.S. where
many human-rights advocates and civil libertarians [...] regard indefinite detention as antithetical to the American legal system’s most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, “We simply can’t have indefinite detention. Due process and fundamental fairness make that clear.”
Mayer notes that the Obama administration will have to decide this issue against the backdrop of President Obama's previous policy declarations during the campaign:
As a candidate, Obama promised a sharp break with the Bush Administration’s counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, “I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.” In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, “As for our common defense, we reject as false the choice between our safety and our ideals.” A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.
What makes the issue more intriguing is the fact that members of the Obama legal team have strong civil libertarian credentials built, in considerable part, on opposing the Bush administration's policies on the war on terror. (The article includes quotes by Neal Katyal and Marty Lederman on issues closely related to the case). Mayer's article contains detailed descriptions of the way detainees have been treated in the U.S. in the post-9/11 era, and her piece is a grim reminder of the kinds of measures that are now considered legally justifiable.
It is clear, therefore, that the al-Marri case will be a significant test case for the Obama administration's approach to anti-terrorism law and policy. The case will hopefully cause other governments - and courts - around the world to reassess both the legality and soundness of current anti-terrorism laws and policies.
The recent Parliamentary initiative to strengthen the domestic anti-terrorism legal regime in the aftermath of the Mumbai attacks is justifiably attracting extensive commentary and analysis in the media, and on this blog. Today’s Indian Express carries columns by Meghnad Desai and Soli Sorabjee which, despite their brevity, provide interesting insights. Both of them have extensive experience with such measures in the past. More recently, Meghnad Desai was a member of the British Parliament when some crucial post-9/11 legislative initiatives were introduced (which form the basis of the analysis in his column). Soli Sorabjee was the Attorney General for India under the BJP government from 1998-2004, was probably involved in drafting POTA, and successfully defended the validity of POTA before the Supreme Court in PUCL v. Union of India [(2004) 9 SCC 580].
After briefly recounting his relevant experiences in the British Parliament, Desai states, echoing concerns raised by others, that he is
mystified by the way in which the Indian Parliament can pass an important Bill in just two afternoon sessions, after ‘Second Reading’, i.e., general waffly speeches. There seems to be no detailed scrutiny and the Executive pretty much gets its way. Speed, however, is not a guarantee of effectiveness. The only time we suspended our procedures and passed an anti-terrorism bill in a single seating was after the bombing in Omagh in Northern Ireland which had killed 250 people. The Bill proved to be completely useless and indeed one of the retired Law Lords said as much during the passage of the Bill. The law just passed by the Indian Parliament is unlikely to survive a PIL which challenges its violation of human rights.
On this last point, Desai seems to be unaware of the Supreme Court’s less-than-robust record on such laws. On the last two occasions when such laws were challenged before the Court (in the Kartar Singh (upholding TADA) and PUCL (upholding POTA) cases, the Supreme Court, in contrast with its vigorous questioning of Parliamentary policies on other issues, quite meekly endorsed the stance adopted by the government on most of the controversial questions involved. At least based on previous precedents, it is doubtful if the Supreme Court can be expected to strike down the recent changes. (Aditya Swarup, a regular commentator on this blog, has a detailed post urging the Supreme Court to reconsider aspects of its ruling in the Kartar Singh case in order to question the recent amendments made to conditions of bail). Whether this particular Supreme Court will take on the current government, at this point of time so soon after the Mumbai attacks is a far more open question than Desai recognizes.
Desai goes on to assert what should, in his view, be the real focus of anti-terrorism efforts:
The problem is not having a new law but improving counter-terrorist practice. There is immense laxity in how evidence is gathered and indeed broadcast. … …. … Counter-terrorism can be tough as long as the personnel are well-resourced and co-ordinated. There has to be a lot of preventative work which cannot be in the public domain. In the UK, when houses are raided to arrest suspects, even their names are not released till they are presented before a judge. It reduces the likelihood of other terrorists being warned off and strengthens the police case. The public also has to be trained to be aware of risky items like unattended baggage, as we have been in the UK during the last 40 years of terrorist attacks. Also, all political parties have to agree that fighting terrorism is a national priority and not a party political game.
Sorabjee begins his analysis by commending the UPA government for the “much belated, tough anti-terror legislation which is sorely needed because extraordinary times require extraordinary laws.” I am struck by the similarity between this, and the far more sarcastic comments of Arun Jaitley, contending that such measures were overdue. Both figures seem to have forgotten how much public antipathy had developed against POTA, and the enormous pressure that had built up leading to its repeal. My sense is that both these figures must have been pivotal figures in the drafting and enactment of POTA (if my understanding is correct, they were the Attorney General and Law Minister at the relevant time), and perhaps this colours their view of the controversial law.
Sorabjee is justifiably revered amongst the human rights community in India, and has often taken strong stances on issues of human rights. To many within that community, however, his active engagement with controversial laws such as POTA and his refusal to quit as Attorney General over the Gujarat riots, are blemishes on an otherwise impressive record. Sorabjee shows why he is regarded as a champion of human rights when he denounces attempts to deny legal representation to Kasab. On the recent amendments, he expresses “strong reservation”
about the period of detention up to 180 days. This is constitutionally vulnerable apart from its inconsistency with the International Covenant on Civil and Political Rights 1966 [ICCPR], which India has ratified and which will cause problems before the Human Rights Committee when it takes up India’s report which India is bound to submit under the ICCPR.
But, in the very next sentence, he states:
A serious lacuna in the legislation is the exclusion of admissibility of confessions by the arrestee which to the satisfaction of the Sessions Judge were not the outcome of torture and third degree methods. This will hamper effective prosecution and conviction. This aspect has been dealt with by the Supreme Court in the POTA case and the provision making confessions admissible was upheld. In the absence of such a provision, terrorist Kasab may get away for lack of evidence.
As followers of the recent debate will note, Sorabjee’s analysis dovetails well with Arun Jaitley’s views on the admissions of confessions by those accused of crimes of terrorism. Jaitley’s arguments (which may well have been developed initially with inputs from Sorabjee) seem to be gaining favour in these emotionally trying times. I was surprised to see, for instance, this editorial in the Indian Express essentially endorsing Jaitley’s view (without saying so).
The arguments against the admissibility of confessions have a convincing rationale, and a long pedigree, in our legal system, and are made even more necessary by the operational and systemic conditions under which our police and investigatory forces function. I will not dwell on this here, and will only note that on this point, Desai and Sorabjee disagree. Desai’s short response:
What Qasab said, what he ate, what he wrote to the Pakistan High Commission are not matters which British anti-terrorist police would reveal till they presented the suspect before a judge. The evidence gathered cannot be admissible in a court of law because it is obtained under duress. As it is Qasab can already argue that he will not have a fair trial given all the adverse publicity. Many Indians are ready to hang him without trial, but the Rule of Law has to be followed.
On one point, however, Sorabjee and Desai seem to agree. Having noted earlier the views of Desai on this, here are Sorabjee’s views:
But remember: However tough and comprehensive the law, its enforcement will be ineffective if our police force is not adequately armed, properly equipped and fully trained to combat the terrorists. Police reforms are urgent and the Supreme Court directions in this behalf should be implemented without further delay.
At the present time, perhaps focusing on commonalities – rather than differences – may be the best way forward. Given the near-unanimity on the need to address conditions on the ground in the police and investigatory wings, a focus on those complex set of issues may be prudent
Lok Sabha has just passed the amendments to the Unlawful Activities Prevention Act. Although I have not seen the full text of the amending Bill, media reports indicate that it allows for indefinite detention of foreign suspects. If this is true, we might be in the process of creating our own version of the Guantanamo or Belmarsh prisons, and without any public debate. A similar law was declared by the House of Lords to be incompatible with the British Human Rights Act, 1998 in A v. Secretary of State for the Home Department (Belmarsh detainees case).
I hope this analysis is wrong and that the media reports (or my reading of them) have missed some crucial nuance in the Bill. Perhaps all it does is mandatorily denies bail after a chargesheet has been filed (which is not great either), but retains the 180-days-detention-limit-without-charge for foreigners. Can anyone please clarify?
Update - The new Section 43D (8) added by the amending Bill states: Notwithstanding anything contained in sub-sections (6) and (7), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except invery exceptional circumstances and for reasons to be recorded in writing.
I think a person becomes an 'accused' only after a chargesheet is filed, so detention without charge should still be possible for 180 days only, even for foreigners.
[Hat tip to Dilip for posting the link]
Update 2 - The analysis in the first update above may be wrong. Please see the comment section.
