(The writer was a third year law student of Dhaka University)
According to Amnesty International, more than 137 countries have already abolished death penalty and some other countries are examining to abolish it. In the present World, where the debate is going on regarding abolishing or practicing death penalty after completion of judicial proceedings, in the meantime, our State has been continuing killing extra-judicially over several years. Extra-judicial killing are those that are not executed by order of the judiciary or the court under laws of the land. It also includes killing by law-enforcing agencies or deaths in custody.
In cases of “Crossfires and Encounters” the official narrative follow a wearyingly familiar pattern – thus the story goes, “after the arrest of infamous terrorist “A” leads were found to an illegal arms location. And during a crackdown at this arms location other terrorists attacked and in that crossfire terrorist “A” was killed.” Such crackdowns at the arm locations invariably take place in the early morning and the neighbourhoods around these crossfire are unable later to confirm having heard any gun shots, and even if they did they were limited to only the number of people that were killed. There is serious and mounting concern that such incidents of “crossfire” are in fact deliberate killings.
Extra-judicial Killings and Right to Life:
The most important human right is the right to life. Right to life is guaranteed in the Bangladesh Constitution as fundamental right. Article 32 of the Constitution states, “No person shall be deprived of life or personal liberty save in accordance with law”. Two elements are significant to note in the right to life in terms of Constitution. First, the word ‘person’ includes not only a Bangladeshi citizen but also a foreigner living in Bangladesh. Second, there is no qualification or limitation to the right except that life or liberty can be taken away in accordance with laws of the country. This implies that there must be set of laws by which right to life may be denied. In our country, only Court of Sessions Judge and specially authorized Court or Tribunal can sentence a person to death penalty after satisfying the involvement of that person beyond any reasonable doubt. According to section 32(2) of the Code of Criminal Procedure, 1898, sentence of death penalty passed by the Session Judge shall be subject to the confirmation of the High Court Division of the Supreme Court. Under Article 103(2)(a) of the Constitution, any person who has been sentenced to death by High Court Division can appeal to the Appellate Division of the Supreme Court ‘as of right’. Then there is procedure of Review and at last the person can begs pardon from the President under Article 49 of the Constitution. By denying this process of taken away right to life of any person, Extra-judicial killing by law enforcing agencies only by shooting a bullet, is not only illegal and unconstitutional but also clear violation of International Human Rights Law; ofcource the State must be liable.
No Right for Criminals?
Some people argue that, criminals cannot have any right to life. Because this is nothing, but allowing criminals for committing crime in a easier way. So ‘crossfire’ and ‘encounter’ is needed. The government defends by saying that, the people killed in such ‘crossfire’ and ‘encounter’ was criminals. But criminal jurisprudence doesn’t support this weak and biased logic given by government. ‘Presumption of innocence’ is the basic principle of criminal proceedings. Accused person is presumed to be innocent unless it is proved his/her involvement beyond any reasonable doubt. Even before completion of these judicial proceedings, no accused can be called a ‘criminal’. So ‘who is a criminal’- it must be decided by the Judiciary; not by the any other authority or organ of the State. Person’s right to life cannot be taken away by so-called ‘crossfire’ or ‘encounter’.
How many people killed extra-judicially?
Since 2004, after formation of the State’s ‘elite’ force Rapid Action Battalion (RAB) the word “crossfire” has been increasingly resorted to by law enforcing agencies. RAB has said around over 570 people have been killed in “encounter/shootout” incidents with the elite force around the country in the five years since the formation of the elite force in 2004. There is serious and mounting concern that such incidents of “crossfire” are in fact deliberate killings. According to the data compiled by Ain o Shalish Kendra (ASK)’s Documentation Unit, in 2008 ,175 extra-judicial killings taken place, and 180 in 2007. Till 18 November 2009, a total of 105 suspected criminals were killed in crossfire since the Awami League led grand alliance assumed power on January 6, 2009. The Human Rights Monotoring Report on Bangladesh 1-31 MAY, 2009 by ODHIKAR, a human rights organization shows that Extra-judicial killing continues and one killed in every two days.
Government’s statements are always Paradoxical:
Formal state minister of Home Affairs Lutfuzzam Babar said ‘when criminals are being killed in encounters, human rights organizations speak out. But when Policemen killed by the criminals, no one speak about human rights’ at RAB’s first anniversary programme on March 26, 2005. He also said, ‘law enforcers fired in self defence’. But records do not show any of them having received any major injuries during the operations that caused such a large number of deaths. Formal Law Minister Moudud Ahmed said to the Media, ‘the criminals are dying when RAB men are opening fire to protect themselves from their armed attacks. He argued that, RAB has no alternative to opening fire, firstly, to save themselves and, secondly, to keep the arrested criminals in their control.’
Let us see the situation of country after Awami League assumed in power. During the Universal Periodic Review of Bangladesh, at the 3 February 2009 Human Rights Council in Geneva, the Foreign Minister Dr. Dipu Moni assured all present that the government would show ‘zero tolerance’ towards extrajudicial killings, torture and custodial deaths. On 5 May 2009, LGRD and Cooperative Minister Syed Ashraful Islam said “the government will not allow the law enforcing agencies to use ‘crossfire’ as a tool. The establishment of rule of law is a must for a democratic country and for this; no Extra-judicial killing will be allowed.” The day after this statement, the then State Minister for Home Affairs, Tanzim Ahmed Sohel Taj said, “the Awami League government will not allow any kind of extrajudicial killing, but the law enforcers have the right to self-defence as per the Constitution. They can do whatever is needed in accordance with law for self-defence against armed criminals.” Meanwhile on 16 May 2009, the Home Minister Sahara Khatun said, “the law enforcers should have the right to save themselves when they come under attack. Incidents of encounter occur only when members of the law enforcing agencies come under attack from criminals.” Contradictory statements by such Ministers holding the highest profiles, demonstrates the ambivalence of the present government with regard to extrajudicial killing. As a result, extrajudicial killings continue. Even the prime minister Sheikh Hasina told a news briefing in New York on September 27 that she was not for extrajudicial killing but if a criminal opened fire law enforcers could not sit idle. At recently the home minister Sahara Khatun, claimed on November 17, that ‘there has been no crossfire since our government took office’. Her statement is nothing but a sequence of designed and false statement of the ruling party.
Searching for Remedy:
The High Court Division on June 29 ordered the government to explain why killing without trail in so-called ‘crossfire’ or encounters should not be declared illegal. It is also asked why departmental and criminal actions should not be taken against those who perpetrate such killing or suspects in custody or others. However, almost five months on, the government is yet to respond to the rule. On 17 November, the deputy attorney general designated for the bench that had made the rule said to Media ‘we are yet to get comments from the government offices concerned needed to respond to the rule.’ Besides suspected criminals a number of innocent people have been killed by crossfire without having any allegation to police station. Some criminal cases have been filed against RAB. In reality, no departmental action has taken yet. Ironically, The home minister’s insistence that no crossfire has taken place in the past ten months so came on the same day (November 17) that the High Court issued a rule suo moto on the government to explain within 48 hours why the killing of two brothers in custody of the Rapid Action Battalion early Monday (November 16) would not be declared illegal. Ironically still, she made the statement on the same day that a suspected ultra-left operative was killed in ‘crossfire’ during a gunfight between his ‘associates’ and the police in Jhenaidah. By failing to rein in some trigger-happy members of the law enforcement agencies and, most importantly, initiate any comprehensive inquiry into any of the 126 extrajudicial killings that have taken thus far, the government has not only defaulted on its pre-election promise to put an end to such killings but also put its self-professed commitment to the rule of law in the land. So remedy is uncertain. Chance of ending extra-judicial killings is also uncertain. People may hope but it depends on the government’s sweet-will.
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