When Democracies Make Wrong Decisions

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By Shilpa Rao

Recent events in India and the US have threatened the very ethos of those torch-bearer democracies. 

The two countries have, over time, successfully played up the threat to democracy from terrorism to an extent where both countries have been bending laws to suit the prevailing attitudes towards the convicted or accused. In the last six months, India has secretly hanged two terrorism convicts after eight years on death row and, in the US, Obama’s Department of Justice pushed for of a suspect in the Boston Marathon bombings to be questioned before he was read his rights.

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 as in times of turbulence?

India secretly 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 2008 Mumbai attacks, while Afzal Guru, hanged in February 2013, was one of those accused of an 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 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.

According to Indian and international 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. 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 rejected a clemency petition from Guru in February 2013, a decision that was not immediately 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 informed 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 information 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, makes the execution an obscene affair.

In the US, Miranda Rights were put in place to prevent any mistreatment of the accused in the hands of investigators. Withholding 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.

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. This, according to lawmakers and investigators, would help in acquiring critical information which could be used to prevent further attacks.

In the wake of the Boston bombings, influential lawmakers 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.

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?

Defending their decisions, both India and the US have said 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 Miranda Rights to be retracted in certain cases for ‘public safety’.

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 marginalises the accused even further. Such abuse of the law can result in disenchantment among marginalised sections of society, making it easier for terrorist organisations to recruit from them.

The democratic ethos needs to be protected, even in times of crisis. Every time governments are allowed to bend legal provisions on a case by case basis, it paves the way for them to take further liberties. Laws are meant to protect civil rights absolutely, not opportunistically.

 

Shilpa Rao graduated from SOAS with an MA in International Studies and Diplomacy. Her research areas include traditional and non-traditional aspects of security in South Asia.

 

3 May 2013