THE DEPRIVATION CAUSED BY AUTHORITARIANISM: AN ANALYSIS OF THE MIDDLE EAST AND AFSPA IN INDIA Pranav Menon* Power corrupts.

Absolute power corrupts absolutely Lord Acton Abstract Authoritarian structures have often believed in pure application of Austins theory of law. It is an autocratic form of absolute and arbitrary rule without any restrictions and accountability. Law in such structures is the will of the monarch or dominant individual or group without the consent of the governed. Its policies function on the premise of suppressing the rights and freedoms available to its citizens which is in violation of the principle of internal self determination as recognized in international law as a peremptory norm. The people of Middle East countries have been subjected to such a rule for the past few decades. Similarly, the inhabitants of Jammu and Kashmir and North Eastern States of India, due to the prevalent Armed Forces Special Powers Act have been denied basic human rights. In the enumerated scenarios, as the people are denied their right to choose their government and political participation, which can be equated to their right to liberty, their capability to self government is affected, thereby making them relatively poor to people who are provided with the same. This paper wishes to elaborate on how the deprivation of basic human rights such as the right to participation in political affairs amounts to a kind of poverty among those people as compared to those who enjoy democratic rights in other structures, using the aforementioned illustrations. Introduction Over the past few months, the world has been witness to either the fall of most of the major dictatorial regimes or the continued form of agitation by the people for change in leadership, in the

Middle East. The wave of uprisings, which began in Tunisia in January 2011, has had a domino effect across the neighborhood resulting in the dethroning of the powerful authoritarian rulers of that region.1 The gruesome killing of the tyrant dictator of Libya, Muammar Gaddafi, who had ruled over his subjects for 42 long years, by the rebels of his own regime, is a clear indication of the prevalent dissatisfaction among his citizens who were subjected to his restrictive policies, which facilitated terrorist activities and denied them the freedom of speech and expression. 2 One of the major causes for the ongoing Jasmine Revolution is the denial of liberties to its citizens by the autocratic rulers of these countries for the last few decades. This vigorous rebellion by these determined people has been vastly supported by the international community, as the regimes in these countries have been continuously depriving them of their basic democratic rights. Similar structures, though unintentionally, are also prevalent in certain parts of large democratic nations such as India3 and have witnessed discontent from the people therein due to the persistent denial of rights. A right is considered as a basic right only if the enjoyment of that right is considered as essential for the enjoyment of all other rights.4 A right to participate in political activities and functioning of the state, which forms a part of the right to liberties, is considered essential for the enjoyment of other political, social and economic rights. Since most of the authoritarian regimes do not provide its citizens with this right to participate, it denies them this basic right and deprives their capability
1*

The author is a IIIrd Year Student of NALSAR University of Law, Hyderabad.

Simone Cantarini , Secularism, globalization and poverty feed crisis in Arab States, ASIA NEWS, www.asianews.it (last updated Feb 1, 2012).
2

Tim Gaynor and Taha Zargoun, Gadaffis death - who pulled the trigger? REUTERS NEWS AGENCY, The application of the Armed Forces Special Powers Act in certain parts of India such as Jammu and Kashmir and

http://in.reuters.com/article/2011/10/20/idINIndia-60031120111020 (last updated Feb 10, 2012).

3

the North Eastern States and the State Police Acts with wide powers such as in Chhatisgarh has resulted in creation of such dictatorial structures.
4

HENRY SHUE, BASIC RIGHTS: SUBSISTENCE AFFLUENCE AND US FOREIGN POLICY 19 (2nd ed. 1996) (Hereinafter SHUE).

to exercise this right in comparison with democratic structures, making their citizens relatively impoverished. This paper seeks to analyse the poverty caused by the deprivation of the right to participate in political activities in authoritarian structures and tries to illustrate the same on examining the cause of the current Middle East turmoil and the effects of the arbitrary Armed Forces Special Powers Act in the state of Jammu and Kashmir. For the convenience of the reader in understanding the central argument of this paper, the author has divided it into four principle sections: Part I enunciates about the denial of basic rights in an authoritarian government; Part II analyses the deprivation of capability as a result of such rule; Part III examines the contemporary Middle East revolution in light of this aspect of poverty; and Part IV discusses the arbitrary Armed Forces Special Powers Act5 (AFSPA) and the resulting deprivation to the people of Jammu and Kashmir after its enactment, as an example to substantiate on the aforementioned aspect of poverty and its prevalence in India. Although similar structures are prevalent as a preventive measure in the insurgency rampant north eastern states of India and Maoist hit regions of Chhattisgarh and Jharkhand6 depriving the basic rights of the people therein, the author wishes to only analyze the situation in the state of Jammu and Kashmir in the course of this paper. Denial of the right to liberty in an authoritarian regime An authoritarian rule is generally understood as government, in which there is concentrated political power at the hands of the ruler, with no system of checks and balances through a constitution, laws or an opposition and people are expected to have an absolute obedience to such authority.7 Such regimes are also characterized by limited political pluralism with restrictions on
5 6 7

Hereinafter referred to as AFSPA. The prevalence of Salwa Judum as a counter to naxalism in these areas. Authoritarianism, Merriam-Webster Online Dictionary, (2012) http://www.websters-online

dictionary.org/definitions/authoritarian+regimes?cx=partner-pub-0939450753529744%3Av0qd01 tdlq&cof=FORID

the activities of interest groups and parties, a low level of social mobilization and popular political participation, a dominantly subject or parochial political culture, and usually a personalized form of leadership.8 Its policies thus, function on the premise of suppression of civil and political rights of its citizens in governance related activities, in order to maintain status quo. These governments involve themselves in the acquisition of unbridled power and often mismanage this power by restricting freedoms to its masses. The principle of self determination, although an ambiguous term, is recognized as one of the essential and peremptory norm of contemporary international law and as a right has an erga omnes character.9 The right to internal self determination, a sub classification of the aforementioned principle, can be equated with self government, territorial integrity and autonomy.10 It reiterates the principle of participatory democracy, which provides its citizens not only the liberty to decide the identity of the ruler but also the right to effective participation in the decision making of the state. 11 If this right is properly invoked, it arms a population to freely choose their own political, economic and social system.12 However, in an authoritarian and repressive regime, the citizens right to participate in the determination, methods of governance and functioning of the government in power is absent. As Henry Shue aptly explains, if the right to participate effectively in governance to its citizens is ignored by the government, it does not provide for a channel through which their demands are made known in order to guarantee its fulfillment. Unless the government is made aware through
%3A9&ie=UTF-8&q=authoritarian+regimes&sa=Search#922 (last updated Jan 3, 2012).
8

Dirk Berg Schlosser, Authoritarianism: Overview, NEW DICTIONARY

OF

THE

HISTORY

OF

IDEAS,

http://www.highbeam.com/doc/1G2-3424300067.html (last updated Jan 30, 2012).

9

Case Concerning East Timor (Portugal v. Australia), 1995 I.C.J. Rep. 90, 102 (June 30). S JAMES ANAYA, INDIGENOUS PEOPLE IN INTERNATIONAL LAW 79 (2nd ed. 1996). Ed McCaughan, Human Rights and Peoples' Rights: An Introduction, 16 SOCIAL JUSTICE 1, 1 - 14 (1989). IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 553 (7th ed. 2003).

10

11
12

such a right, it will not perform the correlative duties that it has to perform for securing other basic socio economic and political rights.13 Such a regime neither fulfills its duty to protect its citizens from deprivation by itself nor provides any aid to them for the fulfillment of other rights, since it is ignorant about their citizens demands. A right to participate effectively forms an integral part of the right to liberty and can be considered as a basic right which is necessary for the enjoyment of other rights viz. rights to security and subsistence.14 However, majority of the dictatorial regimes deny their citizens such basic human rights which are considered to be the bare minimal protection given to people so that they can fulfill other rights.15 Most of these totalitarian regimes justify such denial and believe in the possibility and necessity for exchanging liberty for economic growth, especially in a poor country. This tradeoff theory is at times even justified by someone like Rawls, whose contribution towards understanding liberty is immense.16 However, in a regime which excludes a right to liberty to its citizens, ends up denying them with basic civil, social and economic rights, since it directly supports or is partly constitutive of these rights.17 Thus, no tradeoff can be made between two basic rights. The consideration that people are not interested in participation in fundamental choices about social institutions or policies is also not a valid justification to deprive them from this basic right.18 The deprivation of the right to liberty, more than the presence of it, makes the right intrinsically valuable, irrespective of whether the people want to exercise it or not. The government in such a

13 14 15 16

SHUE, supra note 4, at 76. Ibid, at 76. Ibid, at 21. JOHN RAWLS, THE LAW OF PEOPLES 79 (2nd ed. 1999). Monique Deveaux, Normative liberal theory and the bifurcation of human rights, ETHICS & GLOBAL POLITICS JOUR., 172, 171191 (2009). SHUE, Supra note 4, at 77.

17

18

situation must perform its duty to provide people with the right and leave it for them to decide whether they actually want to enjoy the right by exercising it. None of these structures however, provide their citizens a right to participate in political activities of the state in order to retain the prevalent authoritarianism and power they possess. Thus, the citizens in such a government are denied their basic right to liberty and in turn are deprived of their other rights too. The resultant deprivation of citizens capabilities in dictatorial regimes The capabilities approach makes an account of the space within which we make appropriate comparisons between individuals and across nations as to how well they are doing.19 It tries to interpret deprivation by providing the people directly with the ends they want to pursue and freedom to satisfy them.20 It provides a government with a goal to bring all citizens up to a certain basic minimum level of capability. Human rights, which are deeply embedded in the concept of human dignity, can be considered to as genus of the capability approach since they both consider people and their rights as goals which are central to development efforts.21 Aristotle used a notion of human capability and functioning to articulate some of the goals of good political organization.22 However, the Aristotelian theory was grossly defective because it lacked a theory of basic human rights, especially rights to be free from government interference in certain areas of choice. Nussbaum has rightly used the language of

19

Martha C. Nussbaum, Capabilities, Human Rights and the Universal Declaration, 66 Fordham L. Rev. 273, 270 AMARTYA SEN , POVERTY AS CAPABILITY DEPRIVATION 87 - 96 (1st ed. 1999). Saikiko Fukuda Parr, Towards a Wholistic Approach to Human Rights, 1 Social Dev. Rev., 3 5 (1997);
AND

278 (1997).
20 21

AMARTYA SEN, Rights and Capabilities, in MORALITY ed., 1985).

22

OBJECTIVITY: A TRIBUTE

TO

J.L. MACKIE, 130 (Ted Honderich

MARTHA C. NUSSBAUM, Nature, Function, and Capability: Aristotle on Political Distribution, in OXFORD STUDIES

IN

ANCIENT PHILOSOPHY 145 (Julia Annas & Robert Grimm eds., 1988)

rights, or the related language of liberty and freedom, in fleshing out the basic capabilities in her list which classifies the Central Human Capabilities.23 In this list, she includes the right to control ones political environment, participate effectively in political choices regarding governance and other political activities. She emphasizes on the importance of liberty for capability development and provides the major liberties a central and non negotiable place on her list. An authoritarian regime, as mentioned earlier, functions on the premise of suppressing the right to participation, a basic right, to its citizens, which is one of the Central Human Capabilities. The citizens are subjected to capability deprivation as their right to internal self determination is not provided by their rulers. Since their political choices regarding governance and policy making are not provided for, they become relatively poor compared to their counterparts in democratic structures. No opportunity of political participation may not make these people be poor in the strict sense, but deprives them of an essential freedom which others enjoy. The citizens of most authoritarian regimes have been subjected to this continued form of impoverishment over decades and are no longer willing to bear with the same. The effect of such capability deprivation is being seen and will be seen in the future, resulting in the toppling of most of these regimes. The Middle East scenario Authoritarianism causing deprivation of basic rights Most of the authoritarian regimes in the Middle East were formed either after the decolonization or after military coups. These regimes have been continuously ruling its citizens for over decades without providing them the right to participate in the governance and policy decisions. The support provided by developed countries like the U.S. and region specific organizations like the European Union are one of the primary reasons for the growing power authoritarian regimes in the Middle East.24
23 24

MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE DISABILITY NATIONALITY SPECIES MEMBERSHIP 87 96 (1st ed. 2006). The developed countries often had friendly ties with these regimes since they are rich in oil and natural resources.

The spontaneity of the people powered revolts, through use of technology for asserting their basic democratic rights, in Northern Africa and Arab countries in 2011 have led to the instability or downfall of most of the local dictatorships.25 The success of the Jasmine revolution in Tunisia has acted as a catalyst and set a precedent in the other Middle East countries to challenge the authority of such oppressive rule.26 The social media and the internet have made an important contribution in portraying this revolution as a demand by the citizens for a western style liberal democracy in order to create egalitarian society.27 This agitation has been primarily encouraged the awakened educated youth, who were previously disinterested in political affairs, to rally against the denial of their right to participation in government related activities.28 Even though such protests may not usher in democracy immediately and make it a libertarian haven, it could be the cultural and political tipping point for the region. There has been substantial debate regarding the cause of such immediate protests in these regions among the international community. Some believe that these uprisings were linked to the lack of freedom, human rights and opportunities by the continuous repressive character of the authoritarian regimes in the region, when the whole world was changing around them.29 Others identify the protests as a popular frustration against rampant corruption, lack of prosperity, lack of free press, rise in unemployment etc. The Libyan government, for instance, in their claim in being anti imperialist, has been banning dissent and formation of any other political party, committing state
25

Seyoum Tesfaye, The Egyptian People demand for Liberty and the Anemic Response of the US Government, ASMARINO, http://www.asmarino.com/articles (last updated Feb 3, 2012).

26

D&B Special Report, The global fallout from the Middle East crisis, BUSINESS STANDARD, http://www.businessThe uprising in Egypt is being described as the Facebook revolution or Twitter revolution. Anup Shah, Middle East and North Africa Unrest, GLOBAL ISSUES, http://www.globalissues.org/article/793/libya

standard.com/india/ (last updated Feb 7, 2012).

27 28

(last updated Feb 6, 2012).

29

Lecture by Dr. Abdullah Baabood, Middle East leaders unable to cope with changes, Director of the Gulf Research Foundation, Cambridge University (2011).

sponsored terror acts, amassing all the revenue from oil export etc which has resulted in creation of discontent among the masses.30 According to Ban Ki Moon31, the contemporary Middle East situation is driven by insecurity among the masses regarding poverty, dashed hopes, democracy deficit and lack of good governance.32 It must however, be noticed that all these causes are exist since the government of these states are unaware of the demands of the people. The thoughts and expressions of citizens from these regimes have been suppressed since decades which are now bubbling to surface when combined with other issues. In other words, since the basic right to participation is denied to the people by the Middle East governments, they are unable to fulfill their correlative duties with regard to other rights. These regimes, which are supposed to protect its citizens, are in fact depriving them by denying them by not allowing them to participate in the functioning of the state. This is amounting to the deprivation of these citizens for exercising their right to make political choices, making them relatively poor in comparison with people in democratic setups. This lack of freedom and liberty is making the citizens of such countries deprived of their capability to control their environment. The resultant of this capability deprivation is the commencement of the Jasmine Revolution by the masses. Countries like Egypt and Bahrain are perceived by the world community as westernized with people that had founded their expectations on development.33 Majority of these countries have a high Gross National Product (GNP) and Human Development Index (HDI), which reflects on the
30

Anup Shah, Crisis in Libya, GLOBAL ISSUES , http://www.globalissues.org/article/793/libya (last updated Feb 6, United Nations Secretary General. UN Secretary General, Munich Security Conference, Germany, SG/SM/13392/Rev.1 February 2012, published by

2012).
31 32

Department of Public Information, News and Media Division, New York (2012).
33

Dimitrios Lais, Middle-East Crisis: Rethinking the deeper causes and the current interpretation, FREEDOM TO DISCUSS, www.freedomtodiscuss.org (last updated Feb 9, 2012).

economic advances and achievements in the field of health and education made by the government.34 These statistics show that these governments have provided their citizens with a right to subsistence and other socio economic rights. However, the rallying protests by these people against such a political regime which they opined was insular, arbitrary, corrupt and did not allow them to lend an adequate voice.35 Despite the economic advances, these Middle East regimes continued to be ruled by a small group of cronies, with clientelism and nepotism running rife. The rankings on political freedoms and corruption clearly indicate the glaring contrast with their rankings in the development indicators.36 These despotic rulers were of the opinion that by facilitating a tradeoff between rights to liberties for right to subsistence, it is efficient in its duty to protect the rights of its citizens. As previously explained, there can be no trade off between two basic rights.37 As Streeten also emphasizes indicators like Human Development Index (HDI) and Physical Quality of Life Index (PQLI) use arbitrary weights and do not include any measure of basic rights such as security, freedom, human rights etc. 38 Thus in the instant scenario, good economic development in these countries need not mean good political development. This revolution has been instrumental in sobering the message across to other authoritarian regimes like China to solely rely on the economic progress to remain in power. With similar kinds of revolution in the future, the world will witness end of dictators era.
34

Tunisia and Egypt ranked 6th and 14th respectively in the Human Development Index among 135 countries as per Dani Rodrik, The Poverty of Dictatorship, PROJECT SYNDICATE , www.projectsyndicate.org (last updated Feb 6, Tunisian authorities, prior to the revolution, continued to harass, arrest and imprison journalists, human rights

the United Nations Human Development Report.

35

2012).
36

activist who used to demand for political participation. The Egyptian government was ranked 111 out of 180 by Transparency Internationals 2009 survey of corruption.
37 38

SHUE, Supra note 4, at 21. PAUL PATRICK STREETEN, Poverty: Concepts and Measurement, in THINKING ABOUT DEVELOPMENT , 409, (Paul

Strassman ed., 1995).

The Indian Equivalent The Armed Forces Special Powers Act in Jammu and Kashmir The Armed Forces Special Powers Act, which is virtually identical to the existing law in the north eastern states, was passed by the Parliament for the state of Jammu & Kashmir 39 on 13th September 1990, in disturbed areas of the state for tackling insurgency and terrorism.40 The determination of which areas are disturbed is the discretion of the governor and the armed forces are deemed to aid the civil authorities in order to maintain law and order.41 This legislation has been criticized to be draconian since it provides the army with unrestricted, unbridled and unaccounted powers to carry out their operations, which are often misused under the pretext of maintaining public order. 42 After the enactment of the AFSPA in J & K, there have been innumerable instances of atrocities by the army officials like arbitrary detention, torture, rape, disappearances, looting, practices of harassment and even fake encounters by security personnel.43 This act contravenes both national44 as well as international law45 standards by providing the armed forces sweeping powers, which cannot be challenged unless sanctioned by the central government.46 The prolonged application of the AFSPA has legitimized a series of gross human rights violations, institutionalized a climate of impunity and alienated the public and fuelled a cycle of violence,
39 40

Hereinafter referred as J & K. Amnesty International Public Statement, Parliamentarians must repeal the Armed Forces (Special Powers) Acts, Section 3, The Armed Forces (Jammu & Kashmir) Special Powers Act, 1990: Power to declare areas to be Section 4, The Armed Forces (Jammu & Kashmir) Special Powers Act, 1990: Special powers of the armed forces. South Asian Human Rights Document Centre, Armed Forces Special Powers Act: A study in National Security This act is (a) violative of articles 14, 21, 22 of the Constitution of India, (b) does not follow procedure laid down This act violates various international humanitarian conventions such as the UDHR, ICCPR and also certain Section 7, The Armed Forces (Jammu & Kashmir) Special Powers Act, 1990: Protection of persons acting in good

ASA 20/022/2009, www.amnesty.org (last updated Feb 9, 2012).

41

disturbed areas.
42 43

Tyranny, www.southasianhumanrights.com (last updated Feb 11, 2012).

44

in the Code of Criminal Procedure regarding arrests, searches and seizures, (c) provisions of the army act.
45

principles of customary international law.

46

faith under this Act.

increasing insurgency rather than dampening it.47 Civil society in India, many non governmental organizations, political parties and judicial committees have been demanding the government to repeal this inhumane legislation which has drawn criticism worldwide, since almost a decade now. There have been a string of protests throughout the Kashmir valley, especially after the recent encounter killings and wikileaks disclosure about torture in civilian jails by army personnel, for repealing the AFSPA in totality.48 Although the state government has been considering their plea, the centre and armed forces are of the opinion that this legislation is important for security reasons to stop the existing insurgency problem from Pakistan.49 The government, however, has been making promises to the people to reduce the excessive powers granted to the army and amend it to make it more humane and non arbitrary. The draconian AFSPA owes its reviled existence to an abysmal concoction of authoritarian political fallacies, misapprehension of the justice system and circumstantial socio-political exigencies, apart from its declared objective to stemming resistance movements.50 In simpler words, the existence of the AFSPA for the last two decades in J & K has resulted in the deprivation of basic right of security, which is essential for the enjoyment for other rights like right to participation. Thus, there exists a dichotomy in the state of J & K, since even though there is a democratic set up in place, the prevalence of this legislation makes it an authoritarian regime. This situation in the state can be rightly compared with the authoritarianism in China, which functions on the same premise of suppressing freedoms of its citizens.
47

World Group on Human Rights in India and UN, WGHR Calls for the Repeal of the Armed Forces Special Powers Act, www.wghr.org (last updated on 11th February 2012).

48 49

Baba Umar, Screams from the valley, 7 Tehelka 52 (2011). Special Correspondent, Unfair Law, Armed Forces Special Powers Act, DAILY NEWS
th

AND

ANALYSIS ,

www.dnaindia.com (last updated 12 February 2012).

50

Syed Tazkir Inam, Armed Forces (Special Powers) Act, 1958: A Draconian Law, (2009), SOCIAL SCIENCE RESEARCH

NETWORK, http://ssrn.com/abstract=1681499 (last updated on 10th February 2012).

As explained by Shue, the people of the state may be satisfied because they believe that they have opportunities to participate in making political choice, but when in fact they try to exercise this opportunity, they will be subjected to standard threats.51 The people of J & K do not in fact enjoy such liberties which they could if the AFSPA was repealed. The citizens of the state are under an illusion of the existence of the basic right of liberty and cannot enjoy this right, as the prevalence of the AFSPA makes it difficult to exercise it. This denial of basic right to liberty and security deprives the citizens of their capability to control ones own environment. Since these citizens are not able to exercise their right to make political choices and participate effectively in the functioning of the government, they are impoverished in comparison to their counterparts in the other Indian states. This capability deprivation will continue to exist for the citizens of J & K, unless the AFSPA is in toto repealed. Conclusion To conclude this analysis of authoritarian regimes as a major cause for depriving people their basic rights, the researcher would like to opine that, unless these regimes do not provide their citizens with participatory rights, they future existence is bleak. As the world has already been witness to one such revolution already in the Middle East regimes, such revolutions will be a common affair with citizens revolting against these autocratic rulers for their continuous deprivation of basic rights. Authoritarian governments must make serious amends to their policies and make it more liberal by providing its people with at least some basic rights. They should use the power they possess in an effective manner in order to prevent the resultant deprivation of rights or else they will face the wrath of their frustrated citizens and will eventually be ousted from power. As it has been rightly

51

SHUE, Supra note 4, at 78.

said by Martin Luther King, I am not interested in power for powers sake, but I am interested in power that is moral, that is right and that is good.