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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 190
May 21, 2005

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Reviewing the views
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Reviewing the views

Cross-examination of Crossfire

Dr. M. Shah Alam

I sometimes wonder who first conceived of the idea of crossfire to give it to an elite force specially created to cope with deteriorating law and order situations in the country. The person who so conceived of the idea must have deeply observed the conditions in the country and felt alarmed at their possible outcome. I want to believe even a sense of patriotism may have moved him to put forward the idea of crossfire to be implemented by a special force. Logically, master-mind of the doctrine of crossfire must have great influence and authority on the party in power. He must have pleaded with the policy makers and convinced them 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. Alternatives, therefore, must be found at least for temporary healing of the disease to arrest onrushing catastrophe.

The person who foresaw such a short-cut to taking care of the hardened criminals must also be well-versed with legal and linguistic meaning and implication of the terms like self-defence, crossfire, encounter, engagement, exchange of fire, line of fire, skirmishes, raid etc. He must have well prepared his arguments in defence of various use of his fire power. These terms on occasions may have been misapplied or even misused by the executing agency, but the founder of the entire idea believes these terms provide some ground for defence. His men can always say they acted in lawful self-defence, or suspect 'x' and 'y' were the victims of crossfire, or the victims were the results of 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.

Notable, the word crossfire has now acquired new connotation to symbolise all other forms of fire. Also notable, Rapid Action Battalion (RAB) as well as some other law enforcing agencies who aspire to catch up with RAB in firing competition got kudos for their action. On the other hand, many members of the civil society, newspaper columnists, experts, human rights groups, both national and international, have expressed grave concern over long-term outcome of emerging crossfire culture. Reasons for concerns are obvious, for it is anybody's guess and common knowledge that in most cases crossfire is planned killing of criminal-suspects, and hence it is extra-judicial elimination. We believe policy makers are not unware of the risks the nation faces for such killing. Yet, they are blinded by short-term gains and some immediate bahbas that may accrue to party in power. Abnormal method of eliminating suspected or socially identified wrong-doers cannot serve any panacea as operation clean-heart tried earlier has so proved.

To take a fresh view of crossfire, let us be reminded of the following.
1. One of the measures of civilisation is that killing cannot be retaliated by killing. Killer has to be apprehended by executive organ of the state to be prosecuted and brought to justice by judicial organ. This is a fundamental demand of constitution as well as of any civilised society. Punitive measures taken at executive level would mean ignoring and discrediting the judiciary seriously undermining the imperatives of rule of law.
2. One of the fundamental principles of criminal law in any legal system is that accused is presumed innocent unless proved guilty beyond reasonable doubt after litigation has been conducted in a competent court under due process of law, which, inter alia, includes, accused's right of defence.
3. To provide all opportunities of defence to a 'popularly identified criminal' who may have committed gross violations of human rights is not merely protecting his right of defence, but it also means upholding a principle violation of which would put at jeopardy human rights of many more.
4. Executive elimination of suspected criminals also eliminates witnesses to crimes who could provide valuable information about actual commission of crimes and other accomplices including god-fathers, if any.
5. Crossfire is virtually sort of license to kill almost without accountability, and with impunity. This would one day induce the individuals and agencies authorised to use crossfire to settle personal scores with others, and more alarmingly, could be used by the government to settle political scores cutting the trees of democracy at the roots.
6. There is in essence little difference between public beating of the suspected criminals to death and death by crossfire.
7. We are a part of a civilised and globalised world. There are definitely terrorism, violence and killings in other parts of the world as well. However, to our knowledge, no country in the contemporary world has officially sanctioned or condoned crossfire sort of killing. We as a nation-state has not broken down, but we are passing a wrong message to outside world.
8. Killing the killer without trial has brutalising effect on the society, which could be catastrophic in the long-rune. Crossfire killing has created panic not only amongst criminals, but has engendered general fearsome atmosphere and a sense of uncertainty in the society which does not contribute to growth of healthy citizenry.

Crossfire indicates many ills of our polity and society. First of all, it is a desperate attempt to keep crimes under control. Second, it points to serious failing of our criminal justice system. Third, many of the hardened criminals the so called top terrors enjoy political shelter, and are able to manipulate law enforcing agencies to evade justice. Fourth, victim-support and witness-protection is a formidable problem in our criminal justice system. Fifth, god-fathering of crimes is becoming a part of our politics. Sixth, even despite good intention and sense of urgency of bringing the criminals to justice, the government does not feel sure that it can do so after law enforcing agencies have arrested the suspected criminals.

There have been many suggestions, and these are widely discussed issues, to improve governance in general and criminal justice system in particular, which would render resorting to any abnormal method like crossfire unnecessary. First, separation of judicial magistracy from executive to stop political interference in the administration of justice; second, taking investigation and prosecution of crimes out of executive control, and formation of independent agencies or services to investigate and to prosecute; third, effectively addressing the problem of delay in the dispensation of criminal justice, if necessary, by further amending Cr.PC, one such proposed amendment being to use the experiences of inquisitorial procedure as practised in civil law system in the Continental Europe which provides more initiative and freedom to trial judges in the process of litigation; fourth, providing for summary trials in selective cases by way of forming special tribunals; fifth, preserving a special force like RAB, but taking care to ensure that they only arrest and do not kill, and hand over the arrestees to appropriate authorities.

Suggestion has even gone such length as to put under question one of the cardinal principles of administration of criminal justice that onus of proof always lies with the prosecution, and it shall never shift to defence. The question is whether under certain circumstances the accused may be compelled to produce evidence in support of his defence. We believe the fundamental principle of onus being on prosecution ought to be upheld. However, some benefits of onus being shifted in special cases may be derived from giving more power and initiative to the trial judges as mentioned above.

To conclude, extra-judicial killing by way of crossfire is the unfortunate outcome of intervention of various socio-political forces during the period between arrest of the suspected criminal and the time when he is to be committed to administration of justice, which result in many escapes from justice, leaving many hardened criminals at large. Extra-judicial killing is no alternative. It is rule of gun. We need rule of law. However idealistic it may sound, only alternative that remains is to abide by the basics of good governance, to make necessary reforms of the administration of criminal justice and to implement them by honest efforts made by various agencies and organs of the government.

The author is a professor, Department of Law, University of Chittagong.


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