Towards Responsible State Care

Focus Keywords: Extrajudicial Killings and Constitution of Bangladesh, Enforced Disappearance, Crossfire, Right to Life, Torture and Custodial Death, Remand, Human Rights Violation.

It has been a matter of great concern that, the existing authorities have not accomplished enough to appropriately deal with the extrajudicialkillings and the current increasing tendency of disappearances and that passiveness of the concerned authorities has brought about a culture of impunity in which even more extrajudicialkillings and human rights violations can take place.

The concept of ‘right to life’ and ‘personal liberty’ are the most esteemed and pivotal fundamental human rights. Therefore, Article 32 of the Constitution of Bangladesh occupies a unique position as a fundamental right. It is considered to be a prestigious provision. Thus, it ensures right to life and individual liberty not only for Bangladeshi citizens but also to the aliens. It is enforceable against the state. In Ekushay Television Ltd and others vs. Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD) 130, it has been held that ‘All the persons within the jurisdiction of Bangladesh are within the Bangladesh rule of law. The foreign investors in ETV are no exception to this principle.’ Furthermore, Right to life and individual liberty is the contemporary term which has traditionally been called ‘natural right’. It is the ancient right essential for the improvement of human individuality. It has also been mentioned in Magna Carta of 1215 Clause + (39) and + (40). Afterwards, John Locke articulated that the government is morally indebted to serve people by protecting life, liberty, and property and the views were mostly developed in his famous ‘Second Treatise Concerning Civil Government.’ Subsequently, Article 3 of the Universal Declaration of Human Rights (UDHR) reinforces the same. Moreover, it allows a man or woman to make his/her own life within the manner he/she likes most.

In Bangladesh, the right to life and individual liberty has not only mentioned in the Constitution of Bangladesh but also recognized and even expanded in the verdicts of the Higher Courts by including a number of Economic, Social and Cultural Rights in its purview. In Gias Uddin, son of Rahimuddin vs. Dhaka Municipal Corporation and others 49 DLR 199, it has been held that ‘Protection of life means that one’s life cannot be endangered by any action which is illegal, but it does not mean protection of an illegal action of any person’. Hence, Article 31 of the Constitution of Bangladesh refers ‘to enjoying the protection of the law and to be treated in accordance with the law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.’
Although it is widely appreciated among other fundamental human rights guaranteed in Bangladesh constitution, but there is an emerging tendency of extrajudicial killings taking place in the name of ‘crossfire’, ‘gunfights’ or ‘encounters’ in the last few years which has left this right in a fragile state.

Moreover, the incidents of ‘enforced disappearances’ have increased alarmingly. Such extrajudicial killings and alleged state-sponsored crimes disregard some universally accepted human rights norms, and it depicts an unwelcome lengthy exercise of impunity and a weak criminal justice system. Therefore, it goes against Article 35 (3) (5) of the Constitution of Bangladesh that ensures ‘Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.’ Even it has been held in Anwar Hossain Md and others vs. State and others 55 DLR 643 that, ‘A preventive detention is the deprivation of the liberty of a citizen, which should not be taken away in an arbitrary manner. So the court enjoys the power to review the actions of the detaining authority under article 102 (2) (b) (i) of the Constitution and under section 491 of the Code.’

It has been a matter of great concern that, the existing authorities have not accomplished enough to appropriately deal with the extrajudicial killings and the current increasing tendency of disappearances and that passiveness of the concerned authorities has brought about a culture of impunity in which even more extrajudicial killings and human rights violations can take place. Though the concerned authorities in Bangladesh have repeatedly assured for introducing an inquiry about such illegal killings and disappearances, no effective steps had been taken yet to analyze the same leaving a myriad of causes unaddressed. Therefore, who can be held accountable and who has the responsibility to take practical actions to stop such current incidents of extrajudicial killings and the recent tendency of disappearances?

State’s responsibility to analyze any issues concerning extrajudicial killings, which has done by the law enforcing institutions of the nation is also supported by international law. In The Universal Periodic Review (UPR) in 2009 and 2013, Bangladesh reaffirmed its stand on ‘zero tolerance’ against extrajudicial killings in the name of ‘crossfire’, ‘gunfights’ or ‘encounters’ and ‘enforced disappearances’ by law enforcement agencies and against their impunity. Even, the higher judiciary in Bangladesh has given guidelines on arrest without warrant in BLAST vs. Bangladesh 56 DLR 324. Similarly, Article 4 of the African Charter on Human and Peoples’ Rights, Article 6 (1) of the ICCPR, Article 2 (1) of the ECHR and Article 4 (1) of the American Convention on Human Rights restated right to life, and the same shall be protected by law. Moreover, Articles 1 to 6 of the ICCPR imposes an obligation on ratifying states to take necessary measures to defend the right to life and offer remedies for such violations. The right to life is the most stoutly covered rights of all fundamental human rights and broadly achieved the status of customary law. These can lead a reasonable interpretation that nations have a responsibility to analyze extrajudicial killings under the customary international law.

Furthermore, Bangladesh has ratified all the basic human rights treaties. Although Bangladesh has some reservations in some core human rights treaties, no reservations have been made in respect to the right to life and liberty. Moreover, the government of Bangladesh enacted Torture and Custodial Death (Prohibition) Act, 2013 which makes torture and custodial violence a criminal offence in compliance with the UN Convention Against Torture (CAT). But, there is no record available yet regarding the use of this new legislation in an active manner to bring the perpetrators in the criminal justice system. The right to life is the essential human right because it is a precondition for all different human rights. In BLAST vs. Bangladesh, it has been held that “It is not understandable how a police officer or Magistrate allowing ‘remand’ can act in violation of the constitutional provisions of other laws including this Code and can legalize the practice of ‘remand’.” So the failure to competently inspect extrajudicial killings and disappearances infringes the right to life. The effective inquiry in this regard will be the basis for the implementation of the rule of law and will work as a shield to the right to existence.

However, the government of Bangladesh seems to fail to ensure the right to life or to comply with the international instruments on Human Rights and the provisions of the Constitution of Bangladesh. The existing legal framework, as enshrined in the constitution, does not allow ‘crossfire’, ‘gunfights’ or ‘encounters’ and ‘enforced disappearances’. As a civilized nation, the government has to meet its legal responsibility under the basic principle of natural justice (Audi Alteram Partem- No man shall be condemned unheard); the principle of Presumption of Innocence according to article 14(2) of ICCPR; Article 31, 32, 35 (3) and 35 (5) of the Constitution of Bangladesh; under Articles 3, 5 and 9 of UDHR; under the ‘Due process of law’; to take affordable steps to stop extrajudicial killings and disappearances and use all methods to perform effective inquiry of alleged cases and to impose an appropriate punishment and to make sure that victims adequately reimbursed with a purpose to convey a give up to extrajudicial killings and disappearances from democratic soil of Bangladesh.

Related Article:   Extra Judicial Killings in Bangladesh – A Critical Analysis

Cite this article as: Mazharul Islam, 'Towards Responsible State Care' (Bangladesh Law Digest, April 6, 2018) <http://bdlawdigest.org/extrajudicial-killings-and-constitution-of-bangladesh.html>

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