This paper was presented to a conference organized by the World Council of Churches held in Bangalore India in April 2009 on Peace, Security and Development in South Asia.
As a background to this paper I would like to place a few considerations that may be useful in discussing the subject. A few such considerations are as follows:
A few preliminary remarks
It is a moral obligation to present a difficult problem as a difficult problem
Often due to a misconceived idea of hope, talking about difficult problems is discouraged. There is a tendency to suggest that we should discuss the positive side in such a way as to sustain hope, rather than to reveal more difficult aspects of a problem, which, at first glance, create the impression that solving such problems is difficult. This kind of attempt to generate a positive feeling virtually implies that the problem may be solved in one way or another, and that we do not have a role in trying to solve such problems. Thus, discussion of a problem is separated from the responsibility to participate in the solving of the problem. Participation requires understanding. Any form of genuine understanding requires effort. The more difficult the problem, the more effort required to understand the problem.
By failing to look at the problem we may be able to see the world through rose-tinted glasses. However, the world we see in this way is not the real world, particularly when we are dealing with more difficult problems. This is even more so when we are dealing with the extremely difficult situations of society. Making contributions to resolve the more difficult social problems requires serious attempts to arrive at an understanding of the problems, which, at first glance, appear to defy any solution. Militarisation anywhere in the world is a difficult problem to deal with. South Asia is no exception. In the long history of different South Asian countries we see that they have passed through periods of different monarchies where feudal systems control all economic resources, using also extremely repressive machineries of social control, into long periods of colonialism, where once again the exploitation of resources and the control of the populations were brutal and ruthless, and then coming into periods of independence where the locally established regimes also turned to ruthless methods of social control, often relying on the police and military in order to maintain power. From the point of view of bloodshed, the deprivation of all civil liberties and the denial of participation, there is a commonly harsh history, although the degree of harshness may vary in terms of time and place. If we are unwilling to look into the difficult times created for the people living through these histories, it is not possible for us to participate in the process of trying to find solutions to these problems. False hope, generated by trying to look at the brighter side of things, only creates further possibilities of continuity of these harsh conditions. Therefore no apology is needed in presenting the difficult aspects of South Asian life today.
The importance of the experience of average citizens: the arrest and detention of Santha Fernando
It is also necessary to emphasise that it is possible to discuss peace, security and development on a grand scale with all sorts of theories and views. While in some form of academic discourses such discussions are legitimate, when the emphasis is on finding ways to participate in resolving problems it is essential to focus on trying to understand the ways the average citizen is affected by these problems. A closer look at the reality as expressed in the lives of the ordinary folk should be the entrance to an understanding of these problems. In this context let us discuss, briefly, one of the problems we have faced at this conference itself. One of the participants for this conference was Mr. Santha Fernando, a person well known to ecumenical and civil society organisations. He was stopped at the airport in Sri Lanka while on the way to this meeting and has been detained under anti-terrorism laws ever since, which is over five days now. We also learned that a detention order has been issued by the secretary of the Ministry of Defense to detain him for 30 days, which makes any application for his release in court futile. Now most of the participants at this meeting know Santha Fernando. He is the sort about whom people say he would not hurt a fly. But he is detained under charges of terrorism. Under ordinary law, any arrest must be based on a reasonable suspicion of having committed a particular offense. What is the basis of reasonable suspicion of Santha Fernando committing any act that is forbidden under the anti-terrorism law? Obviously there is nothing of the sort, and those who arrested him are fully aware of this. So we have a peculiar kind of arrest. An arrest for which there need not be any reasonable ground. Only a declaration of the arrest is needed, and there is nothing that the arrestee or his relatives can do about it. This is an exercise of power in the most absolute sense. Representations have been made by persons of high social standing, such as bishops, lawyers and international organisations on his behalf. None of these things matter. Now let us also see where he is being detained.
It is not in any normal prison, where, in Sri Lanka, the conditions are usually very harsh. But this particular detention centre called TID (Terrorism Investigation Division), notoriously known as the fourth floor, is famous for harassment of persons and torture. It may be that Santha Fernando himself may not have been directly subjected to torture. However, he would already have heard the yelling of others and the stories of those exposed to such treatment. Just to cite one example, there was a young Sinhalese journalist who was arrested and held in the TID for a short time. He was himself not subjected to torture. However, he saw and heard what was happening. When he was released he was a changed man. He did not even want to talk to anybody about what he had seen and heard while in detention because it had so thoroughly shocked and disturbed him. Thus, a detention in a place such as this can itself be treated as a punishment.
The question then is: what is the detention for, and what is the punishment for? Through this experience that we have in our own midst, we should try to understand the literally tens of thousands of persons who have been subjected to such arrest and detention, and what it does to these human beings. The traumatic experience that these persons are put through is today is a very common occurrence. Everyone knows one or more persons who have faced such situations. It is therefore necessary for us to take note of these experiences of the people and participate in the process of creating a collective discourse about this type of arrest and detention. When we look at the problem of peace, security and development from that perspective then we will be able to understand how the ordinary folk of our countries experience such things, and their views about such topics.
The unique nature of the master and servant relationship in South Asia as shaped by the caste system
A further issue that we need to keep in mind during this discussion in South Asia is something that we have in common in all South Asian countries, and this is a common heritage of a unique servant master relationship which has developed within the South Asian culture. What is unique in this relationship is that unlike the black slaves of the United States and elsewhere, who were often kept in physical chains, South Asian servants – who constitute overwhelmingly the larger sections of societies – are not kept in such external restraint. South Asia developed a comprehensive scheme of internalizing servanthood. The chains are inside the minds and the hearts of the people themselves. Their instincts have been shaped in such a way as to reproduce habits of faithful service to masters, even with smiling faces. Mostly worked through the institution of caste and other modes of internalized branding and degrading of humanity, this servanthood goes on. A recent novel, The White Tiger by Aravind Adiga, portrays this servanthood graphically. The following quote succinctly summarizes the South Asian problem in this regard:
The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop.
Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know theyre next. Yet they do not rebel. They do not try to get out of the coop.
The very same thing is done with human beings in this country.
Watch the roads in the evenings in Delhi; sooner or later you will see a man on a cycle-rickshaw, pedaling down the road, with a giant bed, or a table, tied to the cart that is attached to his cycle. Every day furniture is delivered to peoples homes by this man the delivery- man. A bed costs five thousand rupees, maybe six thousand. Add the chairs, and a coffee table, and its ten or fifteen thousand. A man comes on a cycle-cart, bringing you this bed, table, and chairs, a poor man who may make five hundred rupees a month. He unloads all this furniture for you, and you give him the money in cash a fat wad of cash the size of a brick. He puts it into his pocket, or into his shirt, or into his underwear, and cycles back to his boss and hands it over without touching a single rupee of it! A years salary, two years salary, in his hands, and he never takes a rupee of it.
Every day, on the roads of Delhi, some chauffeur is driving an empty car with a black suitcase sitting on the backseat. Inside that suitcase is a million, two million rupees; more money than that chauffeur will see in his lifetime. If he took the money he could go to America, Australia, anywhere, and start a new life. He could go inside the five-star hotels he has dreamed about all his life and only seen from the outside. He could take his family to Goa, to England. Yet he takes that black suitcase where his master wants. He puts it down where he is meant to, and never touches a rupee. Why?
Because Indians are the worlds most honest people, like the prime ministers booklet will inform you?
No. Its because per cent of us are-caught in the Rooster Coop just like those poor guys in the poultry market.
The Rooster Coop doesnt always work with minuscule sums of money. Dont test your chauffeur with a rupee coin or two he may well steal that much. But leave a million dollars in front of a servant and he wont touch a penny. Try it: leave a black bag with a million dollars in a Mumbai taxi. The taxi driver will call the police and return the money by the days end. I guarantee it. (Whether the police will give it to you or not is another story, sir!) Masters trust their servants with diamonds in this country! Its true. Every evening on the train out of Surat, where they run the worlds biggest diamond- cutting and polishing business, the servants of diamond merchants are carrying suitcases full of cut diamonds that they have to give to someone in Mumbai. Why doesnt that servant take the suitcase full of diamonds? Hes no Gandhi, hes human, hes you and me. But hes in the Rooster Coop. The trustworthiness of servants is the basis of the entire Indian economy.
The Great Indian Rooster Coop. Do you have something like it in China too? I doubt it, Mr Jiabao. Or you wouldnt need the Communist Party to shoot people and a secret police to raid their houses at night and put them in jail like Ive heard you have over there. Here in India we have no dictatorship. No secret police.
Thats because we have the coop.
Never before in human history have so few owed so much to so many, Mr Jiabao. A handful of men in this country have trained the remaining 99.9 per cent as strong, as talented, as intelligent in every way to exist in perpetual servitude; a servitude so strong that you can put the key of his emancipation in a mans hands and he will throw it back at you with a curse.
Youll have to come here and see it, for yourself to believe it. Every day millions wake up at dawn stand in dirty, crowded buses get off at their masters posh houses and then clean the floors, wash the dishes, weed the garden, feed their children, press their feet all for a pittance. I will never envy the rich of America or England, Mr Jiabao: they have no servants there. They cannot even begin to understand what a good life is.
Now, a thinking man like you, Mr Premier, must ask two questions.
Why does the Rooster Coop work? How does it trap so many millions of men and women so effectively?
Secondly, can a man break out of the coop? What if one day, for instance, a driver took his employers money and ran? What would his life be like?
I will answer both for you, sir.
The answer to the first question is that the pride and glory of our nation, the repository of all our love and sacrifice, the subject of no doubt considerable space in the pamphlet that the prime minister will hand over to you, the Indian family, is the reason we are trapped and fled to the coop.
The answer to the second question is that only a man who is prepared to see his family destroyed hunted, beaten, and burned alive by the masters can break put of the coop. That would take no normal human being, but a freak, a pervert of nature.
Some centuries ago there were many enlightened persons who talked about educating these servants, making them aware of their condition and helping them to be free from this situation. Almost in all countries of South Asia there were various movements for education, and even attempts to politically provide opportunities to break this internalized servitude. Many generations of such work has had its impact. The servants have begun to wake up and to want to walk away from their servanthood. This is also a common experience today. However, when the servants finally begin to wake up, the masters have not had the enlightenment to make the necessary compromises by the improvement of the social arrangements to as to ensure a new type of relationship where the master/servant bondage ends, and a mutual relationship on the basis of humanity and equality begins. Instead the masters have turned to their guns to suppress servants who no longer want to be servants. The essential background to the militarisation in the region is this historical situation in which the larger sections of society demand a fundamental change in the political, social and economic relationships in which the traditional relationship of the master/servant bondage is brought to an end. The lack of enlightenment of the masters to resolve this problem is the most important aspect of the present day conflicts and militarisation.
In a discussion on peace, security and development, this historical conflict and the present state of contest by those who have been the underclass for centuries needs to be given serious consideration. This contest is likely to last until a proper solution is found for it by way of social and economic rearrangements which recognise the equality of all. Mere legal recognition of equality while the basic master/servant relationship remains unchallenged is not what will be considered as equality under present day conditions.
Consequences of militarisation
Perhaps it is better to discuss the theme of militarisation and human rights by taking actual examples from the South Asian context that indicate the impact of militarisation on the collective behaviour in different countries from the region.
Two photographs recently published indicate the extent of this problem. One is a photograph from an Indian daily newspaper of a group of very young children holding placards with slogans that say, Kidnapping Uncles, do not kidnap us. This photo was from the state of Bihar, which is now known for the complete collapse of the rule of law and basic institutions. The result is that kidnapping for ransom has become a common occurrence. For parents, protecting their own children from such kidnappings has become a source of anxiety. A similar photograph from Sri Lanka shows the picture of a six-year-old girl amidst her school mates. This six-year-old child, Varsha Jude Regi, was from Trincomalee. She and her brother were tutored on the use of computers by a person known to her family and referred to by them as Computer Uncle. One day in March, Varsha went to her school and went missing at around 11 am when a trishaw sent to bring her back home arrived. Within hours some persons contacted her family in town, as well as her father who was employed in the Middle East. They demanded a ransom of Rs. 30 million. The family did not have such money and was negotiating to give Rs. 1 million. However, within two days of the kidnapping, Varshas body was found in a bag lying in a drainage ditch. The reports state that the child’s throat had been slit.
The rest of the story is even more gruesome. The police arrested two persons who were both declared dead in police custody, one allegedly shot while trying to attack the officers, and the other having taken cyanide while in police custody. Later there were reports of two further suspects in the kidnapping having been killed by the police. Thus, there was no public trial into Varshas case and what really happened will remain a mystery. The police failed to protect her; they also failed to find her after the kidnapping; and finally they denied the rights of the family and the public the details of what happened by summarily killing the suspects. Similar deaths of suspects are routinely reported in the Sri Lankan press. A fair trial is the means by which society is informed about what happens in their society and finds ways to intervene in order to avoid future occurrences of similar type. Fair trial is an important ingredient of the peoples participation in ensuring justice as well as in dealing with issues of law and order. Assassinations of alleged criminals results in the obstruction of popular participation and, in fact, creates alienation between the law enforcement agencies and the population.
During the discussions on both cases a lot of information has come out about the frequent practice of kidnapping, both in Bihar as well as Sri Lanka. Businessmen, professors and many other groups of persons have been kidnapped often for the seeking of ransom. There are also kidnappings that take place for political reasons such as revenge or intimidation of opposition members, journalists, human rights practitioners, lawyers and others. Sometimes, kidnapping is also used to intimidate and blackmail persons who may leave political parties or engage in any activity that may be considered disloyal to a particular political group. What is even more important is that such frequent kidnappings create a psychological condition in everyone. People even fear to think independently, to talk freely or to take any initiative to be of assistance to someone else for the fear of being a target of a kidnapping, which often end up as forced disappearances.
Frequent kidnappings are a clear symptom of a breakdown of social relationships and also a serious collapse of the institutions of rule of law and democracy. Kidnapping in this sense is a form of stealing of human persons with a view to make money out of such transactions. Societies where kidnappings take place in this way are also ones in which other threats to life and properties are also routinely practiced. Extrajudicial killings, physical harassment of all types and the grabbing of private property, including also illegal occupation of lands are part of the normal behaviour in such societies.
The loss of protection
When a system based on rule of law exists there are many safeguards on the rights of persons built into the legal system. Within such a background arrest and detention are subjected to basic safeguards in order to prevent abuse of powers by those who have the power to arrest and detain. In order to safeguard the proper application of these limits on the police and military (who exercise powers of arrest and detention) lawyers are also provided with powers to intervene on behalf of the individual. The assumption is that an individual by his or herself may not know all the legal provisions that may operate against them, and even if they do know they may be too timid and afraid to assert their rights in the face of state officers who have the power to use force. Effective interventions by lawyers are therefore an essential component of protection.
When a society becomes militarized, the lawyers role is minimised and may even completely disappear. The following excerpt from the report of the UN Special Rapporteur to Burma (2009) reflects the virtual loss of the role of lawyers in that country.
None of the prisoners with whom the Special Rapporteur spoke had been represented in the court by legal counsel. Many of them did not even know the definition of the word lawyer.
In the Burmese context although lawyers may wear black coats and ties, like most lawyers elsewhere in the former British colonies, in reality they have hardly any real capacity to intervene for the protection of their clients. In such circumstances lawyers become a mere decoration. Their incapacity to assist the client means that these clients are at the mercy of those who arrest and detain them. There is no legally authorised representative to intervene between the citizens facing such problems and the authorities.
The situation now prevailing in Burma differs only in a small degree in relation to other South Asian countries with regard to the role and authority of the lawyers. The lawyers complain of their being ignored, which happens due to many reasons. Sometimes with the increase of militarization, the legal space available for people to consult lawyers is drastically reduced. Emergency regulations and anti-terrorism laws (which are know by different names in different countries), allow long periods of detention with limited access to lawyers. Often, as the possibilities of bail are also limited, there is hardly anything that the lawyers can do during the periods authorised for detention by way of any applications to court. The courts themselves do not have the power to adjudicate on the legality of such detentions.
As militarisation spreads it grip the very concept of the fair trial is dispensed with in large areas of the law. Particularly those who are charged with offenses under special laws may not face trial at all. Thus, the decision on guilt and innocence is made, not by the courts, but by other authorities such as the police, the military and the rest of the defence establishment. Naturally, once the fair trial is dispensed with there is hardly any room for the lawyers to play their role for the protection of individuals, however unfairly they may be treated.
When the powers of the court are diminished, the impression is also created that the real decision makers are these other authorities, and therefore if anything is to be done it is those other authorities that need to be approached and not the courts. This realisation leads to a widespread practice of corruption. The people affected by threats to their protection look for various connections to the police, military and intelligence establishments in order to influence them to make decisions in their favour. For example, if a person is in detention the relatives of the prisoner may think it wise to get the release of the person by way of paying bribes to those officers who have the power over the detainee. In terms of lawyers, this means that those lawyers who rely on professional capacity are undermined and those who may engage in all types of unseemly behaviour gain the upper hand. Many lawyers complain that their would-be clients first inquire into their connections to the authorities before seeking their assistance. If the lawyer shows professional disinclination to be an intermediary for a corrupt practice, the would-be client may look in other directions.
It has been said that you know the value of lawyers only when they no longer exist. In real terms this is the situation in many parts of South Asia. Lawyers with real powers ensured by law virtually do not exist anymore.
The absence of a legal profession with the capacity to ensure effective protection itself enhances the power of the military. For that reason the military also takes extraordinary steps to attack lawyers and to intimidate them so that no serious attempts will be made to regain the lost systems of rule of law. Often lawyers who appear in cases which are against the ruling regimes are subjected to assassinations or other forms of serious attack.
In some countries grenades have been thrown into the houses of lawyers; their offices have been subjected to arson attacks; their names have been exhibited in government websites such as the defence ministry websites, portraying them as traitors because they have made representations in courts on behalf of alleged terrorists.
Thus, throughout Asia, we are witnessing a common phenomenon of the diminishment, and sometimes the complete loss, of the role of the lawyer.
A law student attended a lecture regarding the prevention of corruption given by a senior lawyer. The senior lawyer mentions many ways of avoiding corruption. The junior lawyer asked a question at the end of the lecture: Sir?” he asked, when I join a chamber to practice law – which is soon I expect- if I am given some money by my senior lawyers to carry to the judge, what do I do?”
All over Asia there are complaints about corruption in the judiciary. The increase of such complaints coincides with the increased use of emergency and anti-terrorism laws that suspend the operation of normal laws. In places where there has been a complete or nearly complete takeover of power by the military, the possibilities for corruption are even higher.
The link between militarisation and the increase of corruption among the judiciary is the very undermining of the separation of powers, which is implied in militarisation. The power shifts more or less entirely to the executive, and the executive itself begins to begin to come under military pressure. This change in relationships undermines the judiciary, and the people also begin to understand the diminished power of the judiciary. Externally the courts may go on as they used to be but internally things change substantially.
With such change, those who are more used to stricter professional habits may find that they are being displaced within the judiciary. More ambitious and adventurous persons may come to the top and may also develop relationships which enhance their own interests, while undermining the interests of justice.
Political changes are often accompanied by psychological change. When judicial power diminishes, psychological changes take place within the judiciary and outside, and these are detrimental to any form of an independent judiciary. Within such a background corruption is possible, and in South Asia people have experienced such change.
Undermining of civilian policing
Militarisation impacts the local policing system in many ways. The police themselves are often called upon to do military actions or to assist the military. With this the habits of civilian policing, where certain laws and rules have to be observed in all operations, are undermined. For example, when a house is searched under normal criminal law, a warrant needs to be obtained from a magistrate and the reports have to be maintained about all the events and the police are expected to use minimum force if indeed force is used at all. However, military searches of houses are of a different nature. With heavy arms and many personnel, places are surrounded and the inhabitants may be challenged either to surrender or be fired upon. Such habits spread into all actions of the military, and the police who accompany the military acquire such habits.
In some instances the police and military are also used as death squads. Naturally, such operations are carried out secretly and without any regard to the law. When police officers are introduced to these habits they carry them also into their normal routines.
Military operations are often accompanied by impunity. In contrast, the police actions are supposed to be controlled by the law and scrutinised by the judiciary as well as the public. However, when the police begin to work within a military environment they also begin to taste impunity, and gradually impunity becomes a way of life within the policing system.
One of the primary functions of the police is to investigate crimes, and so to play an important role in the adjudication process. However, with the militarisation of the police one of the first aspects to suffer are the normal criminal investigations. Instead of carrying them out, the police engage either in operations or other activities, such as providing security to important persons like politicians.
The criminal investigation function is also discouraged by the operation of impunity. The police are often called upon to disrupt complaint receiving mechanisms, to intimidate witnesses to tamper with the books of record that they are supposed to keep, and in many other ways create obstacles for proper gathering of evidence in cases where the state itself is involved, directly or indirectly.
Further, there may be direct instructions from political sources or their own superiors not to investigate. In those circumstances persons with proper police training may face moral dilemmas. Within the institution a common mentality will develop in which the pursuit of integrity would be seen as a way to get into trouble.
When civilian policing is undermined the police officers begin to learn to use their uniforms as a means of making profit. The use of illegal arrest and detention and the misuse of the powers in filing charges for the purpose of making profit is a common feature within the South Asian context. The local police stations become places where there is wheeling and dealing and all sorts of unseemly behaviour for the purpose of making a profit. The police may develop shares in businesses, such as brothels and illicit liquor and drugs. They may become close associates with criminals, and often provide support for such crimes as abductions for ransom, harassment of political opponent, and the like.
When the police are transformed in such a situation, as has happened in many parts of Asia, they pose a serious threat to the lives of all citizens. Security in normal life becomes impossible when the police themselves become instruments of causing insecurity.
The diminishment of respect for women
In a militarised situation women are exposed to enormous forms of dehumanisation. At this conference itself one delegate quoted a Tamil woman from Sri Lanka saying, “I dont to be born a Tamil and even more I do not want to be born a woman.”
The very environment of militarism itself creates an atmosphere of extreme male domination with terrifying images of males enhancing their power with guns. In the roads and checkpoints women are often exposed to many forms of humiliation. Not only to male vulgarities of language and behaviour, but also deliberate acts of trying to take sadistic advantage of women, who simply have to bear such behaviour in order to get through their normal lives.
Rape also becomes a common feature in the militaristic environment. In order to keep boys for military purposes, a permissive atmosphere is created in relation to dealings with women. Encouragement of sexual adventures is also part of the psychological makeup in trying to keep morale among the armed men.
The stories of girls that have been abducted for sexual abuse and thereafter being disposed of by way of assassination is also often heard in the South Asian context. Sometimes the girls are abducted and kept for some time as sex slaves and thereafter disposed of in order to avoid any legal consequences or adverse publicity. Besides these problems for women, they also face problems arising from their loved ones, such as husbands, fathers, brothers and children being killed in the war. Single parent families run by women are a common feature in a militaristic situation.
Those who suffer the longest as a consequence of the disappearance of loved ones are the women. They face a twofold punishment. One is that in society where economic powers are unfairly vested in men, the loss of the male affects the economic life of the females. On the other hand, being mothers or wives means emotional bonds that are also severed arbitrarily by assassinations of males. The result of both is impoverishment as well as enormous forms of psychological problems caused by way of trauma.
The consequence of the war on women is not at all an issue taken up in public debates regarding the war. This aspect is always by-passed. As a result there is loads of unrecognized and undocumented suffering. Despite of being unnoticed, such suffering does not cease to have its social impact. Life within society becomes bleak when very large sections of women are exposed to this kind of suffering, frustration and depression.
The loss of the importance in the individual
When the Sri Lankan Secretary of Defence was questioned about the assassination of the well-known journalist Lasantha Wickrematunge by a BBC correspondent in a television interview, his quick response was: When thousands are being killed does the killing of one person matter?
When reports of killings are heard every day for years through media channels, the sensitivity towards such news is diminished. One more killing does not seem to make any difference. Murder is the issue on which the greatest sense of outrage is needed if a society is to remain sane. When outrage against killings is lost, this signifies an extremely downward transformation, both morally as well as psychologically. That also creates further space for killings to take place without the society even noticing it. Murder becomes one of those things that society does not take much notice of.
Any legal system based on rule of law is grounded on the idea of the importance of the individual. Every single wrong that is done to an individual is taken as a matter of prime importance in the development of laws relating to crimes. To define an act as a crime means that it is a wrong that is done against an individual, and that the society as a whole will take notice and will do everything in its power by way of just retribution. When acts done against individuals begin to be considered matters of no importance, the very foundation of criminology is thereby undermined. A criminal justice system cannot operate on the philosophy which declares that serious wrongs against an individual, such as murder, no longer count. Such declarations signal the abandonment of criminal justice.
When criminal justice is abandoned, society falls back into a situation where no control can be exercised on the behaviour of people collectively. This situation is one in which the collective controls and collective consensus breaks down. When the collective consciousness and collective control breaks down, there is nothing for one individual to rely on as measures of protection of himself from others, by way of collective responses from others, or collective support.
The emergence of extrajudicial punishments is rooted in such loss of collective consensus and collective controls. The extrajudicial punishments can take many forms. They can take the form of lynching, where people themselves decide on the punishments for whoever they find as alleged culprits of any offense. An alleged thief, rapist, or murderer may be dealt with by the affected people themselves, who will mete out whatever punishment they wish on such persons. What the punishment is it is left to the mood of the crowd and the way they feel about the situation. The proof of guilt or otherwise is of no importance and the proportionality between crime and punishment is also a matter of no significance. When people themselves take on the task of punishing alleged offenders the purpose is often to have some sort of psychological satisfaction that something is being done against crime which will intimidate others. Though this may not be an expectation which can be rationally justified, the people who are without the support of the state in controlling crime by way of law resort to such extrajudicial actions as their last resort. There is no way to measure the extent of the barbarity that this practice can lead to.
Another type of extrajudicial punishment is when authorities such as the police or military that have law enforcement functions themselves begin to engage in extrajudicial punishments, such as the killing of persons after arrest, torture of persons, and the like. In all South Asian countries killing of persons after arrest has become a frequent occurrence. In some countries this is called encounter killing while in others it is known as self-defence killing. The often-told stories are that the police went to arrest some person who resisted and therefore he was shot dead, or that the person under arrest was taken to some place for the discovery of some materials used for crime, and that on the way he tried to attack the officers, and therefore he was shot dead. There are also frequent stories of prisoners taking poison, for example cyanide, while in custody or hanging themselves inside their cells. Often after such occurrences the law enforcement agencies also give wide publicity to such killings, to create the impression that they do have this capacity to deal with anyone. Among other things, the capacity to cause extrajudicial punishments enhances the capacity of law enforcement agencies to engage in manifold forms of corruption and the misuse of power.
Once the life of the individual ceases to be a matter of importance, private property also becomes a matter of no importance. Theft and the grabbing of lands by powerful persons are frequently heard complaints in the South Asian context now. Like in the case of wrongs against persons, wrongs to property become trivialised. Legal redress for such wrongs becomes as difficult as redress for personal wrongs.
The serious obstacles to the realisation of contract and tort
In civil law dealing with agreements relating to properties and transactions take place on the basis of contract. The easy possibility to have a contract enforced when some party breaches it for some reason is very important in order to maintain trust, which is required for normal transactions as well as for commerce. However, with militarisation, when inroads are made into all aspects of property relationships the certainty of contracts begins to suffer seriously. When the law becomes arbitrary the courts can no longer inspire the confidence needed by people with different interests to hold others bound for things they have mutually agreed. When the law enforcement mechanism fails in this way the failure of the performance of obligations by one party can only depend on the ability of the other party to use greater force. Thus, those who are more powerful can break contractual obligations that they have with others. In a militarised society those who are more powerful are those who are connected with the military. Thus, those who are supported by one or another person from the military can act boldly to the disadvantage of another party to the contract. When this mentality spreads people begin to shun contracts. In this way those who are linked to the military benefit because they only can bid for various types of opportunities for contracts that have greater value. The very idea of equality of opportunity is undermined in this fashion.
Society tries to prevent negligence both on the part of the state agencies and the private sector by the use of the law relating to tort. The system of compensation for negligent actions on the part of the state or private sector acts as a deterrent when it is implemented through a system of law relating to tort. However, with militarisation when the power of those who are in charge of things is beyond the challenge of the law negligence begins to spread into all areas of life. For example a public health system left to the control of people who are themselves not subjected to legal scrutiny can result in many forms of medical negligence. Such negligence can spread into the purchase of medicine, storage of medicine, the treatment of patients, record keeping relating to treatment and so many other related matters. The same thing can be said of every other important social activity such as education, maintenance of roads and transport, distribution of electricity and power and the like. When negligence spreads into all these areas there is social chaos always.
In South Asian societies the negative impact of the failures affecting contracts and negligence following the loss of the proper application of tort can be seen very clearly. There is no way to overcome this without dealing with the overall situation of the militarisation itself.
Loss of memory, loss of language and loss of attitudes
Once collective consensus on basic norms and standards to be maintained within a society is lost for decades by way of militarisation, it causes permanent damage to the memory and the language of a society. This is well demonstrated in the experience of South Asia in recent decades.
The notion of a public officer that will not abuse power no longer exists in the social consensus in South Asian countries. While some of that can be attributed to long periods of abuse of power under feudal and colonial times, significant losses have occurred from the achievements made in the 19th and 20th centuries. Exposure to the outside world and the introduction of systems of administration of justice based on models that were developed after the period of enlightenment in Europe brought with it many juridical notions into the countries of South Asia. The western achievement of transforming the type of systems of social control which existed in medieval times is a significant human accomplishment. Subjecting a system of social controls to a process of reason, and developing jurisprudence as well as legal practices on that basis, is not just a western affair but the achievement of a humanity which has tried to develop justice to be based on rational principles rather than the wishes of the power holders. Within that context, achievements have been made to subject power to the control of reason.
The development of the administration of justice on the basis of reason requires enormous effort in any society. This means the education of generations of people on these notions, and the practices which are required to uphold these reasons. The education of civil servants, the intelligentsia and the population as a whole has taken the efforts of generations. In most South Asian countries this was achieved only partially. The introduction of these systems happened during colonial times, or with colonial influence. Naturally, restrictions placed on the basis of colonial interests conflicted with the extent of the transformation that was required to root a rational system of justice. Besides the colonial restraints there were also the powerful influences of the past, which continued to survive under colonial patronage. The colonial power required support from feudal power-holders for the very survival of colonialism. Therefore, the extent to which a rational system of justice could develop within the very context of colonialism that introduced such a system was limited.
If the newly born nations after acquiring independence wanted to continue to develop the rational systems of justice, there were unaccomplished tasks that had to be done by the new ruling regimes with the cooperation of the population. In South Asia new governments that came into power had to face many tasks that emerged within the new nations, which were so overwhelming that often the regimes did not pay much interest to the development of a rational system of justice that would become the foundation of their societies. Instead, various tasks often dictated by the need of winning popular votes began to dominate the newly formed political parties. The contest for power so completely consumed the political energies that the deeper interest of the society was lost sight of.
When crises emerged within the new nations the first casualty were the limited systems of the administration of justice that came into being during the colonial times. The modification of the system in order to deal with immediate problems often resulted in the removal of basic systems of protection worked out into the law in the past. Thus, at all levels of the administration of justice there was erosion of the very foundations of the rule of law.
It is in such backgrounds that militarisation emerged and began to undermine these systems of the administration of justice. The weakly established system could not withstand the pressures of the military, and succumbed. The story of how this happened in different countries of South Asia demonstrates a sad tale of abandonment of the struggle to base the administration of justice on rational notions of jurisprudence.
Once the practice of the administration of justice begins to suffer, the people very soon lose the limited knowledge that they acquired in the past about these systems of administration. When people no longer have the experience of a judiciary that will stand against the executive if the executive acts outside its boundaries, people often cease to have any notion of what the independence of the judiciary means, or what the separation of power means. The same transformation happens in regard to the police in the use of their powers of arrest, detention and fair trial. People often cease to know what all these things mean.
Though the same words are used these words cease to signify what they are meant to signify within a more rational system of justice. With the change of relationships there is also the change of the meaning of words. The word judge may begin to signify someone who rubberstamps the diktats of the government and a cynic who allows justice to be subjected to the rules of the marketplace. A policeman can begin to be seen as a terror and someone who could engage in any kind of immorality without suffering any consequences. Again, such a policeman too would subject justice to the rules of the marketplace. Similarly a trial may begin to mean an act of the mockery of the law, or a show trial. Legal procedures, one time held as strict rules that ensure fair play, may be treated as trivialities that could be dispensed with by anyone at any time.
Thus, with the loss of the memory of a rationally functioning system of the administration of justice, all the associated language and tones also change. The words associated with justice may only connote cynical meanings, and be used only as mockery.
Such change of memory and language affects attitudes. People begin to lose the attitude of respect for relationships based on laws. Offending others for ones benefit ceases to be seen as unacceptable social behaviour. Success of acquisition of material goods and power, by whatever means, emerges as legitimate social ideal. The crudest forms of selfishness cease to be considered socially denigrating. Thus, the ultimate transformation of attitudes within the militaristic context goes to the transformation of the deepest levels of human relationships for the worst.
The meanings of militarisation
If we compare militarism as against democracy (even in the third world sense), we find the following differences:
- The source of legitimacy in a democracy is a constitution based essentially on the separation of power model. This is true even when it is created such a constitution that does not have to abide by any of the basic principles of liberal democratic CONSTITUTIONALISM. Under militarism no such legitimacy is required.Under militarism, if there is a constitution at all it is just a paper on which the military ruler or clique can incorporate whatever they wish to have.
- Thus, the source of legitimacy is the direct capacity to use force without any mediation by way of any overriding principles and institutions. The gun is itself the legitimacy. The use of the gun is not subjected to any overriding rules or monitored by institutions.
In a democracy the entire system is subjected to the rule of law. This implies that:
- Laws arrived at by consensus are above everything else.
- The implementation of the law is subjected to a process the law lays down a process of implementation.
- The rulers, like everyone else, are subjected to this law and to the process. Under militarism the ruler is above the law.
- The implementation of law is also reviewed through an already known process. The process of carrying out orders of the ruler need not be subjected to any process the ruler can decide on whatever way his order is implemented.
In any study of the change from a democratic state to militarism we may notice the following stages:
- The stage at which, despite of militarism as having taken the upper hand, there is still resistance in varying degrees (strong or weak depending on historical circumstances).
- A lessoning of democratic and legal resistances and often serious weakening of the voices of the middle class.
- The virtual disappearance of any legal forms of resistance or opportunities for such resistance.
- The gaining of the militarys grip on society is accompanied by a gradual displacement of reason.
- The idea of building consensus on the basis of reason is displaced with more naked forms of propaganda which creates impressions of ARTIFICIAL CONSENSUS.
- The distinction between truth and the absence of truth is relativised to such an extent that all the rules of language and discourse to convey meanings is made irrelevant. Words can have whatever meaning that is given to them at that moment.
- Facts and figures loose significance some call this the NO-FACT ZONE.
- Auditing ceases to be a matter of significance in the military context, while in the democratic context almost everything hangs around accounting and auditing.
- The gradual disappearance of the distinction between the public and the private. This applies to property ownership as well as decision making.
Morally and ethically
- The absolute prohibition against murder ceases to be significant; murder becomes a lesser evil.
- The relativisation of the prohibition against murder extends to civil society also. Thus, murder appears as an easy form of the settlement of disputes.
- The relativisation of the prohibition of murder creates opportunities for making threats to life appear to be real. Thus, it contributes to the development of a fear psychosis that encourages silence and easy submission to any evil design.
- The cheapening of life extends also to all other aspects of life, such as personal relationships, family relationships, and every other relationship where under normal circumstances moral obligations play an important role. The very idea of guardianship changes. Moral abuse becomes normal even in relationships where guardianship is involved.
- The cheapening of all values within this climate also creates possibilities for horrendous forms of abuse, even to gain small advantages, such as a position in government or any institution, promotion or even in matters relating to properties.
- Reformers who wish to improve things are faced with such circumstances where they are uncertain of where to begin or whom to rely on for support.
- Distrust spreads into reliance on others, however close they may be.
- Powerlessness often becomes the excuse for compromise, however morally unacceptable it might be.
The way out
- Developing capacity to understand the shock and the shame that one suffers under these circumstances, and also such shock and shame as a collective phenomenon.
- In the aftermath of WWII in Germany, the people suffered from this kind of situation and that lead to various complaints of illnesses which came to be examined by psychiatrists. On the basis of these experiences Alexander and Margarete Mitscherlich wrote the famous book, The Inability to Mourn principles of collective behaviour. Individual recovery as well as social recovery depended on the capacity of the people to admit their plight and to be able to mourn, and thereby to find the path back to recovery. All types of pride that denies the depth of the crisis the people are placed in acts as an obstacle for developing personal and collective responses to such situations.
- Raising more fundamental issues relating to institutions of society and administration of justice. Although many may have given up any belief in such justice mechanisms, recovery requires bold attempts to raise these issues. Once these issues are raised, it is likely that the distrust and apathy of many will be broken and assertions of dignity, and the will to resist may resurface. This area is called post-conflict justice.
- Documentation of every single incident of abuse and the development of databases and information centres where such abuses are well-recorded and restored, play an important part in the recovery process. Elie Wiesel, the Nobel prize laureate, recalled the advice of the Rabbis at the height of the holocaust, when they told people to make records of everything that they see happening to others or themselves. The literature that survived in this way provided the basis for reflections later, and helped the recovery process legally, socially and spiritually. One remarkable piece of this nature is Anne Franks Diary.
- There is no alternative to dedicated documentation of injustice and abuse. The night, when it comes to any person, causes havoc – but faithful records of that havoc is an essential component for the recovery of the conscience.