Vol. 5 Num 112 Tue. September 14, 2004  

The Arms Act (1878) needs improvements

A recent newspaper report said that the country's Rapid Action Battalion (RAB) and the police have been competing against each other as to who can recover more illegal weapons from the hands of terrorists. This, indeed, is good news. The report, however, didn't mention what would happen to the recovered illegal weapons. In fact, no information has ever been made public regarding the weapons that usually are seized by the law enforcers.

Here arises the question of law enforcers' responsibility about what to do with recovered weapons from unintended hands. Where do they store these weapons? Is there any centrally maintained warehouse for them or are the arms kept in each police station? Do the law enforcers keep proper record of weapons that are recovered? The reason for mentioning these questions is, reportedly, weapons are very often lost from the police stations or from the custody of the police.

At this point, other pertinent questions also looms: while dealing with illegal arms, are the guidelines in the Arms Act (1878) properly followed? And is our Arms Act, enacted by the British way back in 1878, fit to meet today's needs?

Yes, we do have an Act under which unlicensed manufacture, conversion and sale of arms, import and export of arms, transport of any unauthorised arms over Bangladesh and possession of unlicensed firearms, etc. have been prohibited. Provisions have been made, giving power to the government, to make rules as to license, restriction on movements with arms, cancellation and suspension of license, etc. Committing any breach of the prohibitions would be an offence punishable with imprisonment of different terms. It is also a punishable offence to knowingly purchase arms from an unlicensed person or to deliver arms to persons not authorised to possess them.

We have another law in place: the Explosive Substances Act 1908. Explosive substance deems to include any material for making an explosive substance and also the apparatus, machine or any part thereof which may be used for causing or aiding in causing any explosion. Causing explosion by any explosive substance likely to endanger life, injury to person or property or with intent to commit an offence or to enable any other person to commit an offence are punishable under this Act with death, imprisonment for life or imprisonment of any other term with a minimum mandatory sentence of 2 to 5 years.

Bangladesh scene

Bangladesh has not made any amendments to the 1878 Arms Act. Therefore, the provision of permitting import or export of arms in "reasonable" quantity by anyone possessing a licence makes Bangladesh law concerning export/import the weakest in the region. On the other hand, the Sri Lanka Firearms Ordinance has the strictest limitations on export and import in South Asia, requiring an importer to have a valid permit and to bring the weapon through an approved port of entry.

The government of Bangladesh is yet to take steps to amend the Arms Act (1878), for classifying the sharp metallic lethal weapons like Chinese axe, slaughter knives, ramda, kirich, chapatti and such other implements and bring those under the ambit of the definition of "arms" in the law book.

A High Court Division Bench in November 2001 directed the government to amend the Arms Act to bring those weapons within the category of arms.

At present, the Arms Act or any other law of the land does not prescribe local lethal weapons as falling under the definition of arms. So, clinically speaking, those implements, which are frequently used in inflicting wounds and even fatality in criminal acts, do not qualify for arms, and hence the offenders or the suspects get off the hook. Even persons, possessing those lethal weapons and captured by the police, are going scot-free when charged under the Arms Act.

Earlier in 1988 another HC Division Bench in a judgement observed that such an amendment was a must.

The law minister told a newspaper last year that the government had already initiated the recommended amendment. The matter, he said, was under scrutiny with the home ministry. As soon as, he added, the home ministry sends its proposed amendment back with its comments, the law ministry will draft a bill for the amendment. Unfortunately, there's a complete lack of initiatives to complete "its" scrutiny.

The government was also supposed to enact the Chemical Weapons (Prohibition) Act, though Bangladesh does not produce, possess or use any such weapons. However, no one really knows what has happened to this process.

A regional approach

Carrying arms is not illegal under international and national laws. States have a sovereign right under the UN Charter to procure arms for their self-defence. Indeed, the primary responsibility for compliance with international human rights standards, international criminal law, and the international rules of war are borne by the user of the weapon; however, countries that produce and export arms do have some responsibility for the use made of their products, particularly when those weapons end up in unintended hands.

Four of the five South Asian countries have this common legislative history, Arms Act (1878), arising from colonial rule, although India amended it in 1959 and 1962 for inclusion of lethal weapons within the meaning of arms. The purpose of the legislation in each country is to prevent illicit trafficking and use. However, analyses have indicated that the existence of laws is not enough; proper implementation of existing regulations and the closing of loopholes is key to reducing the devastation caused by small arms.

There are areas of improvement of the law.

Since proliferation of illegal arms is a problem common to all regional countries, effective control thus requires consistency and coordination among the nations in monitoring legal trade and in setting penalties for illicit exchanges.

Such cooperation among the states could start with basic definitions: for example, the Sri Lankan legislation, although the most comprehensive and strictest law controlling small arms in the region, does not clearly define what is a firearm.

Export and import licenses and documentation has not been standardised, containing information such as the date of issue, name of country of export and import, description and quantity of firearms, etc. Furthermore, none of the national laws clearly specifies what law applies if a problem occurs at a transit point in the transfer of arms.

None of the national legislations addresses the issue of brokering, which is a lucrative part of the illegal trade in the region: legislation should stipulate registration of brokers, authorisation for brokering transactions and penalties for illicit brokering activities within the state's jurisdiction and control.

The unlicensed (read: illegal) cottage arms industries could be strictly regulated and face stiff penalties for selling arms to unauthorised buyers. However, the carrot approach of recognising the economic reasons why they produce arms and offering them alternative incentives would probably work better than the stick. For example, government manufacturing operations could be dismantled and the domestic producers could be designated the official small arms-makers for the state; or, alternate employment, such as being given the task of collecting and destroying weapons, could be offered to them.

It would be useful for all the countries of the region to extend mandatory record-keeping rules on arms manufacturers to government agencies and their own stockpiles, as well as to individuals holding licenses to possess guns for private use.

The criminal codes of all the South Asian countries should include the same offences relating to small arms and similar penalties to make deterrence uniform across the region.

As Nepal is the only country which has a legislation explicitly dealing with weapons and elections, the proliferation of political violence across the region would make the Nepali law a good model to be replicated by others.

Thus, only a coordinated approach on a regional basis may solve the problem of the scourge of small arms in all these countries.

Ekram Kabir, a Dhaka-based journalist, has published a study on Proliferation of Unauthorised Small Arms: Impediments to Democratisation in Bangladesh.