Extrajudicial Killings and Culture of Impunity: ‘Right to Life’ in danger

Focus Keyword: Extrajudicial Killings in Bangladesh

An observation about right and liberty of a person by Thomas Jefferson, third US president, is that, “Under the law of nature, all men are born free, everyone comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given by the author.” Indeed, everybody of us is born free with the right to lead the life with dignity until he breaths his last.

Any interference with regard to his right to lead normal life is unexpected. If anyone does anything wrong which he is not permitted to do under the law of land, then there is a state organ, named judiciary, which only task is to hold trial of the offences. Article 27 of our constitution enumerated that, “All citizens are equal before law and are entitled to equal protection of law.” So, there is no division as to that, citizens who are in the opposite party or who are accused of any offences shall not be entitled to equal protection of law.

If, any accused person is convicted in a trial and gets capital punishment, after considering the offence made against him, then it is called ‘judicial killing.’ Although, there is a lot of controversies against this execution and some country also banned capital punishment already in their jurisdiction. In last couple of years, probably the most uttered word in the political arena is “extrajudicial killing.”

An extrajudicial killing is the killing of a person by governmental authority (such as Police, RAB, BGB etc.) without the sanction of any judicial proceeding or legal process. Culpable homicide is a heinous and disdainful offence in any civilized country. The punishment of the culpable homicide may be imprisonment for life or death penalty, which varies country to country. Any act done for the purpose of causing death of any person is called culpable homicide. It is considered as murder when it is a punishable culpable homicide. As the extrajudicial killing is not permitted by law, it will be considered as culpable homicide. So, until otherwise proved that the act was not done for the purpose of killing, an extrajudicial killing shall be deemed to be a culpable homicide.

Under Article 33(2) of our Constitution and section 61 of the Code of Criminal Procedure, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. But, in most of the cases of extrajudicial killing, the date, place and time are kept hidden by law enforcing agencies, as claimed by the victim families. The law also prescribes as regarding the extension of inflicting force for self-protection or self-defense by the law enforcing agencies whenever they are attacked by the accused or any other person[1]. So, self-defense cannot be a proper excuse in every case of extrajudicial killings. We often see the law enforcing agencies are getting impunity by showing the cause of ‘self-protection’ or ‘self-defense.’

Extrajudicial killings often target leading political, trade union, dissident, religious and social figures and listed top-terrors, carried out by the state government or other law enforcing authorities. Extrajudicial killings like crossfire, gunfight or encounters have reached such an alarming situation that various human rights organizations in and outside Bangladesh expressed their concern repeatedly. This situation getting worse when the law enforcing are getting impunity as there is an implied authority or support of ruling-party behind these unlawful killings. Moreover, the opposite parties do not raise their voice strongly against this as they also use this unlawful means of killing to suppress the opposite party when they go to the ruling position. Thus, the culture of impunity is growing up. The recent statistics showing death in police custody, disappearing of persons, finding death body of any accused person or political leader or businessmen terribly frighten us.

There are a number of human rights organizations in our country like Ain O Salish Kendra (ASK), Odhikar, National Human Rights Commission, Bangladesh etc. which publish reports regularly regarding human rights situation. The report and statistics carried by these organizations show that the occurrences of crossfire, gunfight, and encounter are getting boosted day by day.

In a recent statistics published by Ain O Salish Kendra (ASK) showing that, in 2014- death-toll amounted to 128 in number as a result of cross-fire, gunfight and encounter with law enforcing agencies, whereas the number was 72 in the calendar year 2013. In this year i.e. 2015, from January to July, the number of death in crossfire is 87. More lamentably, according to daily newspaper, the death-toll as a result of extrajudicial killings has reached to 20 approximately in this particular month of August 2015. It is more regrettable when our honourable Home-minister and IGP (Inspector General of Police) claim that, ‘the law and order situation of the country is stable in this moment,’ despite these heinous occurrences throughout the country on daily basis. In a recent interview with the electronic media, IGP of police department said that, ‘Police has the right of self-protection.’ Does the self-protection mean to the killing of mass people whose right to life is protected by our supreme law i.e. the Constitution of Bangladesh?

In the renowned case of Dr. Mohiuddin Faruque vs Bangladesh[2], it was 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.” By Articles 31 and 32 of our constitution, right to life of every citizen is protected. Besides, the very term ‘right to life’ has been expanded in a number of cases held in the Supreme Court[3]. We know that, constitution is the yardstick of any existing and future law. So, if anyone, by threatening the life of other person, tries to legalize his action under any law or any provision, then that should not be acceptable and that particular law or provision should be void as per Article 26 of the Constitution as those are conflicting with the provisions of Article 27, 31 and 32 of our Constitution. Because, right to life is a fundamental right, protected by our constitution.[4]

But, if any citizen goes pervert and does anything which is an offence in the eye of law, then there is law which prescribes regarding the procedure of arrest and detention, and definitely there is the court which adjudicates trial and punishment of the culprit. Beside other penal and procedural laws, Articles 33 and 35 of our Constitution lays down the criterion upon which arrest and detention, trial and punishment of the accused and convicted should be made. Among those provisions, it is of immense importance to mention here that, “No person shall be subjected to torture or to cruel, inhumane or degrading punishment[5].” On the other hand, Articles 3, 5, 9, and 22 of the Universal Declaration of Human Rights (known as UDHR) are also deal with the provision regarding arrest and detention, trial and punishment in the same manner as of our constitution. As a charter-party, Bangladesh also bound to follow the provisions of this international instrument.

So, in no way, extrajudicial killing (in the name of ‘0’ tolerance) is a permanent solution. The policy makers who give the power of crossfire to the elite forces most of the times pleaded that the weaknesses and lapses of the existing criminal justice system in the country could not be overcome overnight, and that, given the socio-political reality in the country, god-father backed and under-world oriented crimes would not be easy to deal with in any short-term duration. According to them, crossfire is an easy process to suppress the criminals. But they do not think about the general people, what will happen when general people died under such crossfire. They are ready to give excuses that they acted in lawful self-defense, or suspect ‘x’ and ‘y’ were the victims of crossfire due to some en-counter or engagement or exchange of fire with armed goons. Immediate results are some relief in the community, for some hardened criminals fall in the line of fire. Another argument in favor of extrajudicial killings is that the criminal is so dangerous for the nation that security of the citizens and the state are in grave situation. Actually, those accounts of incidents are in harmony with what those at the helm of affairs of the state and that the law enforcement agencies want the citizenry to digest and believe their concocted stories behind these killings. The reasoning they often try to bring forward that the politically motivated miscreants and terrorists armed with incendiary devices are looking for an opportunity to disrupt normal life in the city. Application of reason and logic on the facts (pieced together) would make any discernible observer conclude that claims made by the police are sham and are nothing but attempts of a botched cover up of extrajudicial killings.

The idea that the people accused of criminal offences should be presumed innocent until proven guilty beyond all reasonable doubt is a core tenant of criminal law doctrine. Extrajudicial killing is the violation of this presumption of innocence. The most harmful and dangerous effect of these extrajudicial killings is the hardening of the public mindset that tends to see such killings as an acceptable form of justice and a speedier alternative to the current judicial system. Following the Supreme Court’s suo moto intervention and the NHRC’s recommendation for the formation of an independent probe commission to investigate the extrajudicial killings, the government should have taken action without failure or delay. It should be ensured that the RAB and other law enforcement agencies promptly communicate information on all persons taken into custody to relatives and legal counsel, and make sure that all persons detained are brought before a court within 24 hours of arrest, as required by Bangladesh law. It should be ensured that the nongovernmental human rights organizations have unfettered access to all RAB stations and detention cells to ensure that the practice of torture ends. Criminal investigations should be efficient, impartial and independent from the regular police. The prosecution needs to be independent and permanent instead of the current practice of politicised recruitments followed by dismissals depending on which political party is in power. Judges occupying the judiciary’s various branches need to exhibit competence and judicial skills and be supported with adequate resources. The deeply-entrenched system of corruption in the policing system must be rooted out as a priority. It is extremely damaging to the maintenance of law and order and requires significant reforms to be carried out. So, it is high time to stand together against this social curse i.e. extrajudicial killing.

Our creator gave us life and only our creator has the right to return it back. The Holy Quran also declares our life as sacrosanct. Allah, Most Gracious, Most Merciful, said that-“Do not take life which Allah made sacred, except just cause. If anyone slew a person unless it be a murder or for spreading mischief in the land, it would be as if he slew the whole people, And if anyone saved a life, it would be as if he saved the life of whole people.[6]”

Footnotes:

[1] See the section 97 of the Penal Code,1860.

[2] 49 DLR (SC) 199.

[3] Such as in the cases of (1). Dr. Nurul Islam vs Bangladesh 33 DLR(AD)201, (2). S.A Sabur vs Returning Officer 41 DLR (AD) 30, (3). H.M Ershad vs Bangladesh (4) Kazi Mukhlesur Rahman vs Bangladesh 26 DLR (SC) 44, (5). BLAST vs Bangladesh WP no. 5915 of 2005 etc.

[4] Life within the meaning of art-31 means something more than mere animal existence, Munn v People of Illinois, 94 us 113 (per field J) as cited in Mahmudul Islam, Constitutional Law of Bangladesh”, Mulick Brothers, Dhaka, 2012. p.167.

[5] Art. 35 (5) of the constitution of Bangladesh.

[6] Al-Quran 17:33 & 5:55.