AFSPA is a sure prescription for violence and taking law in the hands of the soldier. It is NOT because of any evil intention, but because of human nature. Just think about it. the soldier is implanted among the civilians. Soldier sees himself as superior to the civilian whom he looks down upon, uses pejoritive names and adjectives bordering on slurr, considers him as traitor, considers him as colluding with the terrorist and trying to kill him at the first opportunity. And he is armed to the teeth and has his other soldiers equally well armed to impose his will on the citizen!
The civilian sees soldier as imposed by the King Emperor in Delhi to impose the colonial rule, and in doing so imposes his own will. No respect for law but his own will is law!
The relationship is extremely adversarial. And soldier's word is law, his decisions are law and he himself is immune to all laws and due process. So there is no rule of law but rule of the soldier.
Enter houses, search for any thing, arrest suspected men, intimidate women, crosses gentle behaviour, even rape and loot.
Soldier is there to bring law and order and the situation above is perfect for mayhem and will of the soldier and not the rule of law.
And AFSPA provides total immunity and no judicial review for any actions.
Is this what we want? If parliament and the Prime minister is not immune to judicial review, is not above laws, why should the soldier be immune to law and above all laws and judicial review?
Does the soldier know what is law? Does the officer know? Does he respect the citizen's right to be left alone? No. Does he respect the rights the citizen obtained from the King Emperor in 1603? No.
Does the soldier understand the import of:
"The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail�"its roof may shake�"the wind may blow through it�"the storm may enter, the rain may enter�"but the King of England cannot enter�"all his force dares not cross the threshold of the ruined tenement."
Does the Army Commander understand the import of the above?
Use of soldier for law enforcement is fundamentally flawed.
You have the civilian who is subject all criminal laws and soldier not subject to any of the criminal laws except his benevolence. He is a benevolent dictator, more dictator than benevolent. Why should Kashmiri suffer dictatorship of the lowly soldier while we all enjoy the rights of democracy? Is it fair?
The Army Commander who advocated no protection of laws and due process for the Kashmiri ( i.e AFSPA) and want protection of all laws, fairness and justice when it comes to his own job appraisal and promotion and compensation and pension. That means he is prepared to deny right to property, and life to the Kashmiri but want all the rights for himself. If he is overlooked for promotion,he will be the first to approach the protection of AFT!
What does that mean? Kashmiri's right to life, liberty and fundamental and human rights can be easily sacrificed but his own right to promotion and due process can not be sacrificed!
Does it sound right? Is it fair? Is it justice?
I think we need posse comitatus act (PCA)
In 1878, US Congress passed the PCA in response to the large military presence in the southern
states during the Reconstruction Era.1 The intent of the ACT was clear and remains today as the
primary statutory guardian against the use of the military in domestic law enforcement. As
passed it stated:
Title 18, US Code, Section 1385: “Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army of Air Force as a posse comitatus or otherwise
to execute the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.â€
The Posse Comitatus Act is an often misunderstood and misquoted United States federal law (18 U.S.C. § 1385) passed on June 18, 1878, after the end of Reconstruction. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the Army from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order"; it simply requires that any orders to do so must originate with the United States Constitution or Act of Congress.
People are having second thoughts, but then, that is another story.
Another point you raise is AFSPA is required for military assistance. That may be questionable. Magistrate order is required for searches, executive or its agents (police or military) can not carry out searches because constitution protects this to the citizen. All police violate law in order to impose law and order! Should't the police ( and military when employed in the police role) provide the protection of law to the citizen? To say the soldier is above all laws and his actions can not be reviewed by the judiciary is indefensible.
Lastly, it is in the interest of the Army that AFSPA is abolished because it is a sure prescription of its NCOs taking law in its own hands and commit atrocities on the citizen and spoil the name of the Army.
Army should be advocating:
That is invasion of territory of the elected political leaders, because it reflects the will of the people.
The state CM is elected to decide what is right ( a political decision) for his people and Army Commander or the Corps commander is NOT elected by the Kashmiris!
Does it contain exotic political philosophy of Edmund Burke that the military fails to understand?
The civilian sees soldier as imposed by the King Emperor in Delhi to impose the colonial rule, and in doing so imposes his own will. No respect for law but his own will is law!
The relationship is extremely adversarial. And soldier's word is law, his decisions are law and he himself is immune to all laws and due process. So there is no rule of law but rule of the soldier.
Enter houses, search for any thing, arrest suspected men, intimidate women, crosses gentle behaviour, even rape and loot.
Soldier is there to bring law and order and the situation above is perfect for mayhem and will of the soldier and not the rule of law.
And AFSPA provides total immunity and no judicial review for any actions.
Is this what we want? If parliament and the Prime minister is not immune to judicial review, is not above laws, why should the soldier be immune to law and above all laws and judicial review?
Does the soldier know what is law? Does the officer know? Does he respect the citizen's right to be left alone? No. Does he respect the rights the citizen obtained from the King Emperor in 1603? No.
Does the soldier understand the import of:
"The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail�"its roof may shake�"the wind may blow through it�"the storm may enter, the rain may enter�"but the King of England cannot enter�"all his force dares not cross the threshold of the ruined tenement."
Does the Army Commander understand the import of the above?
Use of soldier for law enforcement is fundamentally flawed.
You have the civilian who is subject all criminal laws and soldier not subject to any of the criminal laws except his benevolence. He is a benevolent dictator, more dictator than benevolent. Why should Kashmiri suffer dictatorship of the lowly soldier while we all enjoy the rights of democracy? Is it fair?
The Army Commander who advocated no protection of laws and due process for the Kashmiri ( i.e AFSPA) and want protection of all laws, fairness and justice when it comes to his own job appraisal and promotion and compensation and pension. That means he is prepared to deny right to property, and life to the Kashmiri but want all the rights for himself. If he is overlooked for promotion,he will be the first to approach the protection of AFT!
What does that mean? Kashmiri's right to life, liberty and fundamental and human rights can be easily sacrificed but his own right to promotion and due process can not be sacrificed!
Does it sound right? Is it fair? Is it justice?
I think we need posse comitatus act (PCA)
In 1878, US Congress passed the PCA in response to the large military presence in the southern
states during the Reconstruction Era.1 The intent of the ACT was clear and remains today as the
primary statutory guardian against the use of the military in domestic law enforcement. As
passed it stated:
Title 18, US Code, Section 1385: “Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army of Air Force as a posse comitatus or otherwise
to execute the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.â€
The Posse Comitatus Act is an often misunderstood and misquoted United States federal law (18 U.S.C. § 1385) passed on June 18, 1878, after the end of Reconstruction. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the Army from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order"; it simply requires that any orders to do so must originate with the United States Constitution or Act of Congress.
People are having second thoughts, but then, that is another story.
Another point you raise is AFSPA is required for military assistance. That may be questionable. Magistrate order is required for searches, executive or its agents (police or military) can not carry out searches because constitution protects this to the citizen. All police violate law in order to impose law and order! Should't the police ( and military when employed in the police role) provide the protection of law to the citizen? To say the soldier is above all laws and his actions can not be reviewed by the judiciary is indefensible.
Lastly, it is in the interest of the Army that AFSPA is abolished because it is a sure prescription of its NCOs taking law in its own hands and commit atrocities on the citizen and spoil the name of the Army.
Army should be advocating:
- Abolition of AFSPA
- Non involvement of Army in civil police duties.
That is invasion of territory of the elected political leaders, because it reflects the will of the people.
The state CM is elected to decide what is right ( a political decision) for his people and Army Commander or the Corps commander is NOT elected by the Kashmiris!
Does it contain exotic political philosophy of Edmund Burke that the military fails to understand?
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