Reviewing the views
Right to encounter?
Tapos Kumar Das
CONSTITUTION as the supreme law of the land enumerates the rights of its citizens. Rights embodied in a written constitution can be categorised as absolute or restricted, immediate or deferred, subject to progressive realisation. Right to life is such undeniable right that all the written constitutions so far the world has witnessed, invariably guaranteed it as immediate and absolute right and restricted its deprivation except with the due course of law. Though, the will of Bangladeshi people has been echoed in resemblance in article 32 of the constitution, right to life has become blurred due to frequent arbitrary deprivation of life by the law enforcement agencies.
In our country the trend of extra-judicial killing by the law enforcers has received a mixed appreciation. In one side, apparent failure of the criminal administration of justice to ensure punishment of the habitual offenders stimulating popular support for the raft measure like extra-judicial killing by the law enforcers. On the other side, the believers of rule of law realising the far reaching risk of lawlessness opposing the idea of deprivation of life in absence of due process. In the backdrop of huge outcry against the arbitrary deprivation of life by the law enforcers, this articulation has ventured to come across the legal basis for the actions and reasoning led by their spokesman soon after each and every incident.
Curiously of late, the law enforcement agencies of Bangladesh have started to term the extra-judicial killing as 'encounter' in place of 'crossfire'. It is doubtable whether they are using it deliberately or not. But, certainly the term encounter has an implication to legitimise the deprivation of life by the law enforcers.
The term 'extra judicial killing' has been defined by no statute in Bangladesh. It is the killing without the permission of a court or legal authority, generally carried out by a state apparatus needing to get rid itself of a dangerously disruptive situation. Extra-judicial killing is generally perpetrated in the name of crossfire or encounter. Killing in crossfire takes place when a person falls into line of fire of two opposing groups namely, police and miscreants. Police encounter is the term used to describe the death of an individual who was in custody at the time of his/her encounter and died of cross fire as he/she had tried to escape the legal custody. It denotes an event where an individual has been killed by any law enforcement agency while exercising the right of self-defence to retaliate an attack on them.
Duties of the law enforcement agencies are to serve the mankind, to safeguard lives and property, to protect the innocent against deception and to respect constitutional rights of all man to life, liberty, equality and justice. Instead, our law enforcement agencies are charged with the blame of extra-judicial killing. However, in each and every incident of killing the law enforcement agencies submit an explanation to legitimise their action in the name of self-defence. Their statements lack credibility as the descriptions are alike with simple modification of name, place and date.
Law enforcers have no right to self-defence?
With an open mind, the claim for the self-defence by the law enforcers can be assumed to be true. Now, the issue to be decided is, whether, killing is justified in exercise of the right to self-defence. Section-96 of the Penal Code states that an act done in exercise of the right of self-defence is not an offence. Section-97 of the same provides every person with a right to defend his own body, and the body of any other person against any offence affecting the human body. Right of self-defence is based mainly on the principle that it is the first duty of a man to help him-self. As the right of self defence is the statutory right of every individual, members of the law enforcement agencies are not denied of this right, because Article-27 of the Bangladesh Constitution recognises all citizens as equal before law and are entitled to equal protection of law.
However, as per section-99 of the Penal Code the Right of self-defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. So, the law enforcers cannot use the firearms for self-defence unless they face the dilemma of firearms from the part of criminals. In addition, section-153 of the Police Regulation of Bengal empowers the police to use firearms for self-protection and protection of property, for foiling illegal gathering and, in some cases, for making arrest. Thus, in exercise of the right to self-defence encounter killing by the law enforcers cannot be termed to be illegal.
Exception of right to life
Though the right to life is the supreme right of every human being, it is subject to the exceptions pointed by national and international laws. Right to self-defence is one such exception recognized by the Penal Code. Derogation from right to life has also been authorised by most human rights instruments including the International Covenant on Civil and Political Rights (ICCPR). 'The Human Rights Committee' (HRC) established under the ICCPR, is entrusted with the surveillance of compliance of civil and political rights by the member States and to receive individual complaint from their citizens in case of gross and persistent violation of civil or political rights. Guerrero v. Colombia (1982; 1 Selected Decisions of H.R.C. 112) is one such case where complaint was made for violation of right to life by the police.
The case revealed that the Colombian Police raided a house in which it was thought that a kidnap victim was being detained. The victim was not found, but the police hid in the house awaiting the arrival of the suspected kidnapers. Seven persons, who were never proved to have been connected with the kidnapers, were shot without warning as they arrived at intervals at the house. The police action was justified on the basis of the Legislative Decree No. 0070 which provided the police with a defence to any criminal charge arising out of acts committed in the course of operations planned with the object of preventing and curbing kidnapping.
Views of the HRC
In Guerrero, it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police, that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary to effect the arrest or to prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the ICCPR.
In Guerrero the HRC gave prior magnitude on the right to life and strictly prohibited arbitrary deprivation of life except in three exceptional cases, namely, i) self-defence, ii) to give effect to lawful arrest, and iii) to prevent escape from lawful custody.
Article 2 of the European Convention of Human Rights also provides that deprivation of life does not constitute extra judicial killing in three exceptional cases , namely- i) in defence of any person from unlawful violence, ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, iii) in action lawfully taken for the purpose of foiling a riot or insurrection;
Burden of Proof
In Abeam et al v. Surinam (1983) the HRC viewed that the burden of proving that the killing fell into an exempted category is on the State, when law enforcement agencies are responsible for killing. In Bangladesh sction-105 of the Evidence Act, 1872 also provides that, the burden of proving existence of circumstances which bring the case of an accused within any of the general or special exceptions in the Code is upon the accused and the Court shall presume the absence of such circumstances. Thus, in case of encounter killing the law enforcement agencies have to satisfy the existence of the circumstances justifying the exercise of right of self-defence. They have to satisfy the gravity of urgency compelling them to use firearms resulting in the death of the accused.
In the backdrop of image crisis of the law enforcement agencies, the home ministry has made departmental investigations in many incidents of encounter killing with the findings of no irregularity. As a man cannot be a judge of his own cause, an investigation committee composed of the members of the home ministry and police will never be trustworthy. An independent investigation committee free from police and home ministry, if constituted as per the recent direction of the High Court Division will be an acceptable solution to sweep the stigma of extra-judicial killing.
The writer is Lecturer, Department of Law, University of Rajshahi.