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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: 254
September 16, 2006

This week's issue:
Rights Investigation
Star Law Analysis
Law Vision
Human Rights Monitor
Court Corridor
Law Week

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Rights Investigation

An articulate compilation on law enforcers and extrajudicial killings

Elyus Rahman

Extrajudicial killing by the law enforcing agencies is becoming a common incident in our country. Such indiscriminate killings in the name of crossfire cannot be justified by any legal system. Every person is entitled to the protection of law. A person may be a criminal but that does not give law enforcers a licence to kill him just ignoring the judicial process.

In the year 2004, we spent an evening with Abdullah Abu Sayed, head of Bishwa Sahittya Kendro, in a programme at Rajshahi University. At that time, RAB was very popular. On enquiring about his opinion of RAB, he said “When you had no alternative but to face the present demand you have to do something which gives you an instant result. However, this cannot be a permanent solution.”

Rights groups and human rights defenders have questioned the legitimacy of this kind of killing and RAB as a whole. They were also opposed to the Jatia Rakkhi Bahini when it was formed in 1972 which, as claimed by victims, alienated 30,000 leftwing political activists. However, governments are always indifferent in this regard.

We have attempted to briefly discuss three of Odhikar fact-finding reports to find out whether all the victims who were killed in so-called crossfire were criminals and, if so, whether they were killed in the exercise of due judicial process.

From Odhikar's documentation it was found that from January 2001 to December 2005, law enforcers were responsible for a total of 872 extrajudicial killings. These killings were officially recorded as 'death' by 'encounter', 'suicide' or 'heart attack'.

Case study-1
Ismail Hossain, a business man was killed in 'crossfire' in the Kamrangir Char area on May 21, 2006. His family members learnt that Ismail's body was in the Mitford Hospital morgue but police did not allow them to see it. A reporter from electronic media (NTV) informed them that Ismail was killed in crossfire while he was in fetters. The dead body was handed over to the family at 5 pm on May 22, 2006. There were fetters on Ismail's feet at that time.

Abdul Matin, Officer in Charge of Lalbagh Police Station, informed Odhikar that Ismail was a dangerous criminal. On May 21, 2006 he was brought in on two days' remand (although the court granted one day remand). Based on his statement, a police team took Ismail to the Shahidnagar Dhal area to recover arms. As the team reached the area, Ismail's associates opened fire on the policemen and prompted them to retaliate. While trying to escape, Ismail sustained bullet wounds after being caught in the cross fire, the Officer in Charge claimed. Later he was taken to Mitford Medical College Hospital where doctors declared him dead. In answer to a question, he said that Ismail was in fetters but not locked with rods at that time and that the rods were unlocked in custody. However, Odhikar learnt that the rods were actually opened at Mitford Medical College Hospital when Ismail's body was delivered to his family.

Case study- 2
A day labourer, Bacchu Mia, was arrested for robbery by Sherpur police and he later died in Sherpur police custody.

The Second Officer, S.I. Nibaran Chandra Barman of Sherpur Police Station said that Bacchu Mia was arrested on the night of June 07, 2006 (actual date was June 06, 2006). He said that Bacchu admitted his involvement in a robbery. On June 08, 2006 at 5.45 p.m. duty officer Oporna Biswas found that Bacchu had hung himself. After seeing this, she shouted out and other officers then came and cut the rope and pulled him down.

Case study- 3
Kasim Uddin, a day labourer, was allegedly tortured to death by Kurigram police. Abdus Sattar, an eye witness, told Odhikar that people gathered on a bridge near Kasim Uddin's house on June 21, 2006 to watch on TV the football match between Argentina and Holland. As the match started at 1 a.m., some people including Tajul, Kasim Uddin's brother, were playing cards to pass time, not staking money. By that time, police were passing over the bridge to arrest Alam and Abed Ali of the same village. Seeing the police, they tried to run away but the police stopped four people, including Tajul. The police handcuffed them and put them in their pick-up van while they went to arrest Alam and Abed Ali who were the accused in a specific case. Having arrested them and on the way back when they came under a bamboo-clump, Kasim Uddin grabbed the legs of SI Hakim to help his brother escape. SI Hakim kicked Kasim Uddin in groin and chest. Kasim Uddin fell on the ground and shouted 'I am dying'. After a while, he died on the spot.

SI Nurul Islam Munir, Second Officer of that police station, said that SI Abdul Hakim told him that he did not touch Kasim Uddin but that he went to Mirerbari to arrest the two accused. Having arrested them on the way, they found somebody gambling on the bridge. Then SI Abdul Hakim arrested four people from the spot. At that time he heard a shout and came to know that a man named Kasim Uddin had died from a cardiac arrest.

The above-mentioned case studies indicate alleged violations of the law by the law enforcing agencies. These are-

  • violation of laws in remand
  • violation of laws inside custody, and
  • violation of laws outside custody

In case study 1 it was noticed that the victim Ismail Hossain was in irons in police custody. However, the law is silent on whether an accused should be in irons while in custody. As a number of police officers were present, it was not possible for Ismail to flee. No proof was found that Ismail tried to flee from jail custody. Besides, he was allegedly beaten while on remand and it was impossible for him to walk without the help of others. How could he then be a dangerous criminal who could flee from custody?

A question was asked to an official of high rank (prison) about whether an accused could be taken in on remand wearing fetters. He replied that, for security reasons the police could sometimes do this.

The High Court Division issued a rule demanding why the extrajudicial killing of Ismail, when he was in fetters and unable to walk, was not illegal. The rule ordered the Home Secretary, Inspector General of Police, DIG of Dhaka Zone, Police Commissioner of Dhaka City and the Officer in Charge of Lalbagh Police Station to reply.

A table of reported incidents of extra-judicial killings from January 1 to August 31, 2006 is given below. The victims were all in the custody of the law enforcing agencies: Death caused by Law Enforcing Agencies: (January 1 - August 31, 2006) [from Odhikar's documentation]

What does the law say?
In BLAST v Bangladesh 55 DLR 363, the High Court Division gave 15 directives on how the police should deal with an arrestee. To fetter prisoners in irons is inhumane and unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons is considered barbaric and hostile to human dignity and social justice.

Prisons Act 1894
Rule 486
When a prisoner shall be put in irons, his name and his prison number, date of wearing fettering irons and date of removing them must be recorded.

Rule 719 and 720
The maximum period in fettering irons would not exceed more than three months and, if it is necessary to continue the process, ten days break is needed.

Jail Code 1864
Section 56
Where the superintendent considers it is necessary for the safe custody of any prisoner, they should be confined in irons.

Section 57
(1)Prisoners under sentence of transportation may, subject to any rules made under section 59 [which provides that the government may make rules consistent with this Act], be confined in fetters for the first three months after admission to prison.

(2) Should the Superinten-dent consider it necessary, either for the safe custody of the prisoner himself or for any other reason, that fetters should be entrained on any such prisoner for more than three months, he shall apply to the Inspector General for sanction to their retention for the period for which he considers their retention necessary, and the Inspector General may sanction such retention accordingly.

Section 58
No prisoner shall be put in irons or under mechanical restraint by the jailor of his own authority except in case of urgent necessity in which case notice thereof shall be forthwith given to the Superintendent.

In this connection, a writ petition was filed in the High Court by Ain O Salish Kendro on February 25, 1998 asking why the rule to fetter in irons would not be unconstitutional. The hearing was forwarded from April 19 to April 27, 2006. The High Court ordered the jail authority to go through the Prisoner Act 1984 in this regard.

In case study 2 it was found that a day labourer was allegedly tortured to death in police custody where police tried to prove it as a suicide case. He was arrested on June 06, 2006. However, he was not produced before the court the following day and died on June 08, 2006. He was kept in police custody for two days. He was not taken in on remand.

Article 33 of the Constitution provides that a person must be produced before a magistrate within 24 hours of arrest. Section 324 of Police Regulations of Bengal, 1943 says the same thing. A police officer failing to produce a person before the magistrate within 24 hours of the arrest is guilty of wrongful detention.

Clause (4) of Article 35 of the Bangladesh Constitution clearly provides that no person accused of an offence shall be compelled to be a witness against himself. In this case, the accused was not in remand. Therefore, according to Sections 25 and 26 of the Evidence Act 1872, confessions given before a police officer or in police custody cannot be used against an accused. According to Section 27, the confession will acquire evidentiary value only when something is recovered according to his confession. In this case such type of process was not found.

For security reasons, the accused was kept in the female custody but the reasons why his security was threatened were not told. Nobody could give any satisfactory answer about why a travel bag's strap and rope were in the female toilet, what was the reason for Bacchu wanting to commit suicide and how an adult of 5'6'' height could hang himself with such a thin rope. Police Officers cannot ignore their responsibility in this regard.

Section 29(7) of Police Act 1861 provides that, if any police officer is guilty of unwarrantable personal violence against any person in custody, he will be produced before the magistrate.

In case study 3 it was found that the victim was a day labourer. He was allegedly killed by a police officer outside the custody. There was no GD and no case was filed against him in the police station. Generally, police are engaged to ensure the safety of life and property of the people but in reality this is often not the case.

Approximately five hundred extrajudicial killings have been carried out by law enforcing agencies during one and a half year period. Judicial inquiry of more than two hundred extrajudicial killings must be ordered. Inquiry of three hundred cases has already been made but we do not know the nature of these enquiries or whether any of the law enforcers involved has been convicted.

Why the government is responsible
While Bangladesh has ratified the Convention against Torture and Other Cruel, Inhuman or Degra-ding Treatment or Punishment, it has a reservation on the application of Article 14 of the Convention. Article 14 stipulates that “the state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including means of full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture his dependents shall be entitled to compensation.”

In an Open Letter to the UN Human Rights Council on August 09, 2006, the Asian Human Rights Commission once again criticised the Government of Bangladesh for its failure to address “widespread and institutionalised torture, extrajudicial killings and corruption, and to make the country's judiciary independent of the executive”. Further, the AHRC highlighted the Government of Bangladesh's pledge that it would establish the National Human Rights Commission as soon as possible.

From the above mentioned reported incidents of torture and death of arrestee, some recommendations can be made to prevent such abuses of human rights:

  • Form special investigating units functioning preferably under the direction of the Attorney General.
  • Speedily and effectively investigate all complaints of extrajudicial killings.
  • Establish an independent Human Rights Commission.

The author is fact-finding officer of Odhikar.


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