Friday, 3 May 2013

When democracies make the wrong decisions*


By denying Dzhokhar Tsarnaev his Miranda Rights, and by conducting secret executions, citing prioritisation of public safety, USA and India - two torch-bearers for democracy - are jeopardising the very virtues they strive to protect.

The recent events in both India and the US have revealed some startling truths about democracies. In the last six months, India has secretly hanged two terrorism convicts, after a span of eight years on the death row; meanwhile, in the US, Obama’s Department of Justice has pushed for the Boston bombing accused, Dzhokhar Tsarnaev, to be questioned before he is read out his right to an attorney, thus challenging the very ethos the two democracies are based on. The two countries have successfully played up the threat to democracy from terrorism, to an extent where the both the US and India have been bending laws to suit the prevailing attitudes towards the convicted.

For the “greater good”

India executed two high profile convicts in a span of four months - Ajmal Kasab, hanged in November 2012, was one of the terrorists involved in the attacks on Mumbai in 2008, while Afzal Guru, hanged in February 2013, was one of those accused of the attack on the Indian Parliament in 2001. One of the main reasons India’s Home Minister cited for conducting the two executions in secret was “to maintain peace and keep protests to the minimum”. In the case of Afzal Guru, who received support from various groups especially in the turbulent Kashmir Valley, the Government attempted to justify the secret execution by stating that it was the only way to ensure a smooth passage to the gallows. Minutes after Guru was hanged, the Valley was put under curfew and security was increased to avoid any violent clashes or mass protests against government establishments.

In the American case, the Obama administration had already allowed for the retracting of Miranda Rights for terror suspects, in March 2011, thus permitting investigators to question such suspects without a lawyer, for as long as they deemed necessary to obtain as much information as possible. This, according to lawmakers and investigators, could help in acquiring critical information which could be used to prevent further attacks. In the wake of the Boston bombings, influential lawmakers, including Senator Lindsey Graham, called for interrogating Tsarnaev before reading him his Miranda Rights since he, as a terrorist, posed a greater and more complex threat to American society than any other criminal.

But how is a country that is capable of abridging laws on a temporary basis, fit to protect its people and their shared values? How can a democracy make an exception to its laws when this is the very same fabric that it uses to protect its people in ordinary times and in times of turbulence?

Tailoring the law to one’s convenience

The Indian government has erred on several counts.

According to both International and Indian law, a death penalty case deserves to be considered for clemency if the convict has been kept waiting for too long. The emotional trauma to both the convict and the family is to be taken into account before confirming the death sentence to a convict who has been waiting for a prolonged period. By disregarding Guru’s prolonged wait, the government defied the Supreme Court of India and the International Court of Justice. Moreover, in order to prevent any further delay in Guru’s execution, the President had rejected Guru’s petition in February 2013 and this decision had not been made public. Since he was charged with terrorism and was portrayed as an enemy of the nation, it was tough for Guru to find legal representation, making it easier for the government to cover up its misconduct.

In the case of Pakistani terrorist Ajmal Kasab, the Home Minister said the execution was conducted in secret to prevent any human rights activists or others from filing a petition against the death sentence and delaying the process.

According to Article 21 of the Indian Constitution, no individual can be deprived of life except according to the procedure of law. This would include informing the family well before the execution so they may say their final goodbyes. In the case of Kasab, the Government of India had supposedly intimated his family in Pakistan, who were unable to visit him before his execution. However the same was not done for Guru, an Indian citizen, whose request to be shifted to Srinagar prison so that he could be visited by his family, including his ailing mother, was rejected, and no timely intimation of his impending execution was sent to his family.  Guru’s family received a letter two days after he was executed, denying them the right to say goodbye or challenge the Presidential rejection of clemency in the Supreme Court. This, compounded with the fact that Guru’s body was buried within Delhi’s Tihar Jail without his family’s participation in the funeral, makes the execution an obscene affair. The act of secrecy and denying Guru’s family the right to have his body is not only a violation of human rights but also against the law, and by bypassing the necessary procedures, the government has undermined the justice system, making the handling of the entire situation unconstitutional.

Similarly, in USA, Miranda Rights were put in place to prevent any mistreatment of the accused in the hands of investigators. Withdrawing Miranda Rights for a suspect arrested on American soil could set a precedent that might lead to misappropriation of the power wielded by investigators of terrorism-related crimes.

Real challenges to democracy

Is the threat against a nation’s democracy, national security and sovereignty so large that the governments must abridge due processes and bend an entire structure of law to do whatever may be necessary to safeguard the nation’s social fabric?

In Guru’s case, he was not allowed the judicial recourse every convict in India is entitled to under the Indian Constitution. It is a legal requirement to inform Guru of his rejected appeal, and allow him to contest this decision in court. Moreover, it is unconstitutional to suggest that the government was compelled to carry out the execution in secret as a fair legal procedure would have attracted mass protests and disturbed peace. As a democracy, are we not entitled to non-violent mass protests?

Defending their decisions, both India and USA have taken a firm stand against terrorism, saying that they would take extreme measures to keep terrorism and terrorist activities off their soil. The US has gone so far as to declare war against anyone who takes up arms against the nation. Additionally, the American Supreme Court has allowed for the Miranda Rights to be retracted in the case of ‘public safety’; given that an average of 31,537 people in the US become victims of gun violence every year[i] as opposed to 400 US casualties on average in Afghanistan[ii], this should be applicable when interrogating shooters too. However, there is no evidence to prove that shooters, a larger threat to public safety in the US, have their Miranda Rights rolled back.

In such cases where the law is abridged to provide terrorists with stricter punishments, the two democracies need to be able to put an end to arbitrary distinctions between them and other criminals – who are an equal threat to public safety – to justify the former deserving rare or strict punishments. How does a democratic state distinguish between a terrorist, a shooter, a serial killer or a rapist in terms of treatment at the interrogation and/or when handing out punishment? Both states have failed to convey how one is a larger threat to public safety than the rest.

For democracies that are built on values of fairness, equal opportunity and a well-defined justice system, it is worrying when their governments are ready to disregard these very laws even temporarily. The move is self-defeating in a way that it marginalises the accused even further. This, as we have seen in the case of Kasab and Guru, makes it difficult for them to avail of legal help, thus challenging the very system put together to protect its people. This blatant disregard for the laws of the land and International Law undermines the ethos and shared values of these democracies.

Such abuse of the law can result in disenchantment among marginalised sections of society, making it easier for terrorist organisations to recruit from them. This in turn affects the manner in which the country can respond to terror threats, making nations more vulnerable, and thus undermining public support and international co-operation.

The democratic ethos need to be protected, even in times of crisis. Every time we allow governments to bend legal provisions on a case by case basis, we could very well be paving the way for them to take further liberties with our rights.

For India, the list of secret executions may not have ended. Devender Pal Singh Bhullar, a Khalistani extremist accused of the 1993 car bombing in New Delhi, has been on the death row for 20 years. His mercy petition was recently rejected by the Supreme Court despite the long wait. Given the two decade long trauma and laws suggesting that a delay in execution allow for commutation of the sentence, the government may take measures in its own hands as it has done before. Unfortunately, if the laws have been bent once to favour the government, there will be little to no hesitation to do so again, especially given that there are too few voices expressing dissent.

What is required is a strong collective voice that prevents the government from acting unconstitutionally, no matter how heinous the crime. Justice is meant to be a deterrent, not a tool to extract revenge.


*An abridged version of the blog has been published in The Heptagon Post: http://www.heptagonpost.com/Rao/When_Democracies_Make_Wrong_Decisions
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