Session #1: Friday, 9 January, 13.30 - 15.15 (CSLG)
Panel coordinator(s): Ujjwal Kumar Singh and Julia Eckert (ujjwalksingh@gmail.com/ eckert@eth.mpg.de )
Chair/discussant: Gautam Navlakha, Editorial Consultant, EPW (gnavlakha@gmail.com)
Panel description
Panelists, paper titles, and abstracts
This panel explores the extraordinary across a range of sites constituted by law. Through an exploration of the content and substance of such laws, the politics and ideology which informs the framing and working of extraordinary laws (viz., the specific ways in which such laws unfold), the relationship between specific constitutionalisms (viz., Nepali, Sri Lankan, Bangladeshi, Pakistani, Indian, Israeli, South African, Australian, USA etc.) and extraordinary laws, examining the relations between socio-cultural communities and state as they are mediated through extra-ordinary laws, the specific ways through which people support, negotiate and resist these laws, the extraordinary in ordinary law, and implications for the rule of law.
The forensic medical documentation of torture is essential to establish the legal disposition of cases alleging torture. How forensic sciences and forensic medicine are used in investigating torture claims and how are they accountable to human rights concerns/standards? The paper will investigate the medical and judicial interpretations of torture. Salus populis es suprema lex. In times of crisis, the safety of the republic is supreme. With the increase of terrorist strikes globally, Governments have expanded their anti-terror operations. Does that mean that all is permissible in investigating suspects accused of terrorism? Torture is generally defined as the intentional and systematic infliction of pain and suffering by public officials upon an individual for some purpose. However, there are several problems with devising benchmarks for establishing torture. These include the individual variability in physical and psychological findings of torture. In some cases, physical evidence may not be detectable because most medical evaluations are conducted after the resolution of acute signs and symptoms of physical injury. Psychological symptoms, on the other hand, are often enduring in nature but are harder to pin down. The paper assesses the following: What sorts of benchmarks do forensic practitioners adhere to in assessing torture allegations of physical and psychological nature? What are the laws that forensic scientists have to adhere to in their work? Do these laws meet human rights standards? How do judges balance security concerns with human rights ones when assessing the use of physical force in anti-terror cases? Where do they draw the line? I also plan to do a couple of case studies in India of how torture claims by a detainee was investigated by forensic practitioners, legally established/or failed to be established in cases registered under anti-terror laws.
This paper seeks to understand why sovereignty is unique in being the only form of power ‘legitimately’ able to kill or put to death. In Weberian terms, the sovereign has monopolies over law and legitimate violence. It is important to understand whether these monopolies are being eroded with the proclaimed decline of traditional, Westphalian sovereignty and, if so, with what implications. Since legal theory is of little help in comprehending the nature of this infinitely elastic and chimerical concept, it is preferable to approach the theory of sovereignty from a more philosophical perspective through the work of Schmitt, Foucault and Agamben. There is, however, a cleavage between the conceptual and material histories of sovereignty, which this paper explores. I argue, first, that Agamben was correct in calling for Foucault’s treatment of sovereignty to be amended in a form that makes it possible to better comprehend the relationship between sovereignty and biopower and, second, that Agamben himself needs to be corrected. Agamben’s logic is powerfully persuasive but insufficient: sovereignty is better understood in relation to the power to kill (which Foucault dismissed as pre-modern) rather than the production of bare life. The camp, which Agamben argues is the nomos and matrix of political modernity, must similarly be comprehended in relation to death which, far from being exceptional, is the unexceptional background of sovereignty and life – including bare life.
For over sixty years Pakistan has struggled to create what has come to be known as a civil-military balance of power. When the State emerged as a separate entity in 1947 the form of governance that was envisaged centered on notions of democracy borrowed from colonial times. Pubic imagination was seduced by the ideas of representative government, elected bodies, popular sovereignty and national independence. The notion of liberal freedoms and rights, prevalent at the time, provided a vision for a future that would be free of oppressive rule. There was a promise that people would be their own masters and their will, expressed through their representatives, would be supreme. However, Pakistan’s emergence within a multi-dimensional conflict encompassing religion, nationalism, communalism and ethnic difference, engendered security concerns underlined by existential fears. The most fundamental of these fears was re-annexation by India based on the widespread belief that India had never accepted Pakistan’s existence and would avail the first opportunity to re-absorb its territories and peoples back into a much larger Hindu-dominated world. The perpetual and persistent insecurity generated by such fears provided an impetus for strengthening the institution of the military to prevent what was perceived as a catastrophic eventuality. Pakistan’s romance with democracy and representative rule came into conflict with its imagined or real security needs and existential concerns. Increasingly over time the dominant paradigm in Pakistan became that of a Security State besieged from various sides by unrelenting enemies against whom the homeland had to be defended. National defence became the top priority of a newly-born country struggling to find meaning and identity, having shed the identity of the mother country as an alien and inimical one. Pakistan began to feed the lion’s share of its meagre resources into building, developing, expanding and enhancing its army to protect its multiple Western and Eastern borders. The colonial institution of a Standing Army became thus the hallmark of Pakistan’s political economy. Hungry for resources and greedy for power, the army eventually refused to be subordinated to a civilian dispensation and decided to directly capture political power. The civilian-military tussle over the exercise of political power that began in 1958 with the first martial law continues to the present-day with the country’s representative and elected institutions incessantly locking horns with the non-elected and unrepresentative ones. The periods of civilian democracy remained weak and lasted for shorter periods while military rule spanned over several years that add up to decades of martial law.
Military rule was buttressed by a civilian façade provided by eager collaborators within the ruling classes of landlord and industrialists. Bound by mutual interest and collective greed, many among Pakistan’s political parties were ready to support praetorian rule in return for money, power and privilege in the army-installed set-up. Apart from the ever-ready civilian collaborators, the judiciary became the mainstay of military governments by providing legal cover through recourse to the notion of the ‘doctrine of necessity’ invented by Justice Munir. Virtually every dictator abused this doctrine for his intervention and interruption of military rule. Then came March 9, 2007 when a defiant Chief Justice refused to bow down to an array of uniformed interlocutors in Rawalpindi’s Army House. He was unceremoniously suspended for refusing to take dictation. Thus began one of the most formidable, longest and heroic struggles by Pakistan’s legal fraternity for the establishment of the Rule of Law in place of the Rule of Force and Rule of Men. This paper is a remembering, recording and reiteration of this movement, its goals, aspirations and determination to establish constitutionalism in Pakistan.