|Volume 6 | Issue 10 | October 2012 ||
Rethinking 'The Fear'
Our elite force should function within its legal limits, state BARRISTER TAPAS K. BAUL and SULTAN MAHMUD RIPON.
Rapid Action Battalion (RAB) is considered to be the elite force of Bangladesh. Almost all the countries of the world have such elite forces. From inception till today, RAB has allegedly been violating human rights through various actions, hence, their activities are popular discussion in the domestic as well as international arena. RAB first came into the limelight in relation to crossfire killings, and later made the news for its involvement in abduction. Recently it was alleged in Human Rights Watch Report that RAB conducted its investigation of the BDR massacre through physical and mental torture. It is also in the news in relation to Limon in Jhalakathi. A Jhalakathi court on September 16, 2012 deferred for the fifth time the date of framing charge against Limon in a case filed against him by RAB (The Daily Star, September 17, 2012).
The subject matter of this article is neither to justify how RAB has been violating human rights through crossfire, abduction or torture during the inquiry, nor to discuss why RAB should be eliminated. Instead, we will be focusing on analysing ultra vires (beyond authority) actions performed by them. For this purpose, we would like to refer to two stories. Story 1: Suraiya and Yasmin (not their real names) work together in a private organisation. Suraiya accused Yasmin of misappropriating more than 5 lac taka using Suraiya's debit card and pin. Suraiya's elder brother is an Army Officer. He, exploiting his connections, lodged a complaint with RAB and thus RAB investigated into the matter.
After taking over, without handing over the case to the police, RAB kept harassing Yasmin and her family by pressurising them to repay the money in the name of investigation. Story 2: On the basis of information from National Human Rights Commission (NHRC), on June 18, 2012, RAB arrested a woman from Uttara who tortured her housemaid. RAB rescued the said housemaid and also freed the said housemaid from the household.
These two stories raise a few questions in our mind. Firstly, who gets priority for giving primary information about a crime or criminal investigation or as a custodian of law? It is stated in Section 154 of the Criminal Procedure Code that primary information should be given to police and afterwards police will start investigation as per Section 154. Not only in Bangladesh, this is the generally accepted norm around the globe. Now the question arises, on what basis is primary information to be given to RAB or under which law can RAB investigate?
During its last tenure, the BNP-led government enacted The Armed Police Battalions (Amendment) Act, 2003 amending The Armed Police Battalion Ordinance 1979. By inserting 2(hh) in the said Act, RAB was established. Further, after Section 3 Sub section (2), sub sections (3), (4), (5), (6) were incorporated. Under Section 3 Sub section (3), provision was made to establish more than one unit of RAB.
In the Ordinance, under Section 6 the duties of the Armed Police Battalion are stated as under:
a. Ensure internal security
b. Confiscate illegal ammunition, bullets, explosives and government-declared illegal items from time to time
c. Prevent criminal gangs
d. Assist law enforcing agencies including Police to protect law and order situation
e. To perform other duties from time to time as directed by government By the amendment introduced in 2003, two new responsibilities were added:
aa. Drive detective operations to inquire into crime and criminal activities
bb. Run enquiry on any crime based on government order Now, if we analyse the abovementioned provisions, RAB is distinguished from Police (6Ka); at any time RAB can investigate on any crime on government order [6Kha(1)], not voluntarily though and in case of such orders the concerned commanding officer of RAB shall lead the investigation [6Kha(2)], the commanding officer may investigate himself or delegate his subordinate to inquire into the allegations placed before it [6Kha(3)]. For such investigations, rules had been made [6Ga] and like Police, RAB shall follow the provisions as described in the Code of Criminal Procedure. It means, RAB shall handover the report to In-charge of the respective police station after the investigation and Police shall submit such reports to concerned Court or Tribunal within 48 hours [6Ga(2)]. Police's authority has been acknowledged in criminal investigation and only Police can submit the report to Court even if RAB conducts the investigation. Although there is no description in the Act of 2003 on the scope for re-investigation by the Police on the investigation report handed over by RAB, however, Police can re-investigate if necessary under Section 154 of the Criminal Procedure Code or under Section 3 of the Police Act 1861. Investigating officer of RAB cannot exercise more power than the powers stated for the investigating officer of the Police as per the Criminal Procedure Code. In reality, RAB exercises more power than Police and uses torture more often during criminal investigations. Sometimes the police are brought to justice for abuse of power during investigation. In the case of RAB, however, when its members relentlessly harass the accused, the latter sometimes become crippled for life or even die. Limon is a living example. RAB wasn't satisfied merely by crippling him but also harassed him by filing two false cases (Prothom Alo, July 11, 2012). In the recent report published by Human Rights Watch (“The Fear Never Leaves Me”, Human Rights Watch, July 4, 2012) and also John Sifton, (Asia Advocacy Director, Human Rights Watch) in his testimony given in front of the Tom Lantos Human Rights Commission of USA (http://www.hrw.org/ news/2012/07/19/
bangladesh- rights-abuses-under- washington-spotlight) reiterated that the abuse of power by RAB during investigation is increasing day by day and they are being exempted from being legally accountable and on this ground, Human Rights Watch urged RAB's withdrawal.
If we analyse the Ordinance of 1979 and the amended Act of 2003, it is understood that RAB can perform five responsibilities: protection of internal security, detective operations on crimes, assisting in protection of law and order, recovery of items or commodities declared illegal and prevent criminal gangs. RAB also has one implied responsibility, i.e., to execute government orders. Thus, if we recall Story 1 above, it is apparent that RAB has no jurisdiction to investigate such crimes, unless directed by government. In the absence of such a government order, receiving such complaints and investigating such crimes on request of someone influential constitutes clear violation of the Ordinance of 1979 and the amended Act of 2003. RAB's investigative authority and scope cannot go beyond sections 156 and 157 of the Criminal Procedure Code in any manner and they can only investigate cognizable offences. The violation of the Criminal Procedure Code will eventually violate the Constitution whereby common people of the country will be deprived of the fundamental rights protected in the Constitution.
RAB should be more cautious while receiving complaints or primary information as they have no authority to investigate except the five types of crimes mentioned above unless ordered by government. In this context, the NHRC ought to inform the police instead of RAB in Story 2. However, if the NHRC is considered as a part of the government, then it can be said that RAB rescued the housemaid based on government instructions.
Readers may wonder what the public can do if RAB acts beyond its authority or ultra vires, as it often does. Firstly, a person can consult a lawyer or the NHRC or any legal aid organisation and assess whether RAB has the authority to investigate or not. If the lawyer opines that RAB is investigating ultra vires in any manner, then the matter should immediately be lodged as a general diary with the local police station. At the same time, Director General of RAB should be requested in writing -- mentioning the involved RAB officer's name, designation and workplace -- to hand over the matter to the police and if this is done, the public will be saved from harassment.
Now, let's take a look at the condition of armed police forces or battalions in other countries of the world. We will also evaluate their jurisdiction and see whether they usually act ultra vires or not. In India, there are presently two types of armed police forces, the Rapid Action Force (RAF) and the Armed Police Forces under Provincial governments. RAF was formed in December 1991 as a part of Central Reserve Police Force and started its operation in October 1992 [http://www. globalsecurity.org/ military/world/india/raf.htm]. Primarily, 10 battalions of RAF were engaged in combating riot or religious conflicts in politically sensitive areas. Currently, 100 battalions of RAF are operating only in Ahmedabad and they won two prizes in October 2011 [http:// articles. timesofindia.indiatimes.com /2011-10-03/ahmedabad/30238087_1_rapid-action-force-gujjar-agitation-blood-donation-camp]. From inception till now, RAF proved their worth in combating riots. Searching in Google engine or the sites of international NGOs like Human Rights Watch, no negative news was found against RAF. Surprisingly, Human Rights Watch, in their Annual Report, did question the activities of different Indian institutions like Border Security Force (BSF), but not RAF [http://www.hrw.org/world-report-2012/world-report-2012-india]. The Central government of India is not interested to engage RAF beyond government control, as such, the Provinces were discouraged in forming internal RAF for the Provinces, for example, both the Government of the West Bengal and Kerala had to answer for using the same dress and the name for their own RAF and also had to clarify that their RAF is quite different from the RAF under Central Reserve Force [http:/ /www.indianexpress.com/ news/ crpf-worried-as-states-create-their-own-rapid-action-force/283242/2]. On the other hand, we can see a different picture in the Armed Police Forces under Provincial governments. These provincial forces are known as Central Police Organizations (CPO's), Central Para Military Forces (CPMF's), Para Military Forces (PMF's), Central Police Forces (CPF's), etc. [http:// reportmysignalpm.blogspot. com/ 2011/07 / central-police- forces and state -armed. html.] Lieutenant General Bibek Oberoy [PVSM, AVSM, VSM, Former Vice Chief of Army Staff (VCOAS), Former Director Centre for Land Warfare Studies (CLAWS)] in his article 'Restructuring the Central Police Forces and the State Armed Police to Combat Internal Insurgencies' published in South Asia Defence & Strategic Year Book 2011 claimed that the Armed Police Force is used for political causes in India. They failed to protect law and order situation. They are suffering from scarcity of required arms, ammunition and functional training. They lost confidence of the public by abusing power. In these descriptions, our RAB appears similar to that of Provincial Armed Police Force, not RAF. The only difference is that RAB is well-trained and well-equipped with arms and ammunition. However, the activities of RAB have become questionable because of their abuse of power entrusted by law.
In England and Wales, the Army and Navy also have many elite forces; however, they are only engaged in peacekeeping. Police too have various elite forces and they combat riots and terrorism [http://www.eliteukforces.info/police/]. 'Counter Terrorism Command' was formed in October 2006 in combination with former Special Branch and Anti-Terrorist Branch to prevent terrorism [http://content. met. Police. uk/ Article/ Counter-Terrorism Command/1400006569170/ 1400006569170]. They too are not beyond criticism. They usually don't abuse their power, even though it is sometimes reported in the media that they harass or torture people in the name of investigation. The lesson we can learn from them, is, government does not favor them if any complaint is raised against any of the officers. They are subject to public trial and if found guilty not only the officer but also the concerned force publicly apologise and compensate the victim or his/her family. In 2005, police killed Brazilian citizen Jean Charles De Menedez at a tube station, suspecting him to be a criminal. In the end, however, the responsible officials were tried in open court and British Police compensated the victim's family with 100,000 pounds [http:// www.guardian. co.uk /uk /2009/ nov/ 23/ jean- charles- de- menezes- settlement]. But in Bangladesh, let alone compensation, cases are filed one after another against the victim, either by RAB or instigated by them and the government does not protest. We believe the incident of Jean Charles De Menedez is a good example for RAB and the government of Bangladesh.
We asked the NHRC Chairman Professor Dr. Mizanur Rahman why NHRC asked assistance from RAB instead of the police in Story 2. “For positive and quick steps,” he replied. Earlier, NHRC forwarded such complaints to the police, but those went in vain. In response to the abuse of power, he stated that the government was requested several times by the NHRC to remove army officials from RAB as they are “trained to kill”. He further stated, in different NHRC investigations, it was observed that if in a case, the accused RAB official is a member of the army, he was taken back to cantonment before he could be interrogated by the NHRC. Therefore, the army officer remains out of reach of the law. Dr. Rahman stressed that the police force should be made modern and free from corruption so that people can trust them. RAB is surely playing a key role in combating terrorism in the country. They should be made accountable for violation of human rights, constitutional rights and ultra vires actions. Convicted RAB officers should be given exemplary punishment and victims should be compensated.
It is pretty clear that from inception, RAB is violating human rights and abusing their powers entrusted by law. Despite a clear direction (BLAST vs Bangladesh, 55 DLR 363) against arrest without warrant under section 54 of the Criminal Procedure Code, RAB is regularly calling people to their headquarters in the name of investigation. In most of the incidents, the offences are not cognizable. RAB must be made accountable to the public. They should act within their limit and authority. Otherwise, society will be plagued by arrests without warrant, crossfire, abduction and similar offences. The government should also ensure that RAB is working within their legal limits and not violating human rights.
Barrister Tapas K. Baul and Sultan Mahmud Ripon practise law in the lower court.
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