Atrocities in law enforcement:
A liability for the state?
Professor M Rafiqul Islam
The recent custodial torture of Kadar, police filing criminal cases against him, and the High Court order to discipline the police perpetrators repeat the same sequence of events that happened in the Limon case of Rab atrocities only few weeks ago. The NHRC chair termed it an 'ominous sign' following the HC decision of 28 July 2011, to which the Attorney-General reacted by asserting that 'the whole state is not liable for any incident committed by a few law enforcers' (Star, 29 July 2011). The Attorney-General's assertion does not appear to be borne out by facts and law. One can prepare an endless list of brutalities by law enforcing agencies, which invariably make up stories and frame false charges to shield their guilt and defend criminality. If taking the law in their own hand by the law enforcers is covered up in anyway, it weakens the faith in the rule of law and strengthens the rule of the jungle and vigilante justice, a sign that is discernible, if not 'ominous'. It is in this context that the NHRC chair's remark may not be seen as 'out of emotion' but 'an inconvenient truth'.
The culture of custodial brutalities is deeply rooted among the law enforcers, who, not just 'a few law enforcers' but too many engage in atrocities beyond the limits of law and often with impunity. Legally, albeit these police officers involved in the Kadar case are individually liable. But they did not commit this heinous act as ordinary citizens but as employed agents of the state and under its mandated law, which they abused. Being this act was done by designated state agents, the state is vicariously liable. This is precisely because of the breach of public duty by the state to protect its citizens from the abuse of its own agents. The safety of the people is the supreme law. The famous Latin maxim salus populi suprema lex lies at the root of the liability of the state in both Limon and Kadar tragedies. Article 9(5) of the ICCPR, of which Bangladesh is a party, may be cited to support the liability of the state.
Government responses, both present and past, to such atrocities has been ambivalent at best and dismissive at worst. The Limon case suggests that the authority toed to the line of the involved law enforcers' claims. Prime Minister's Defence Advisor publicly claimed on 19 May 2011 that both Limon and his father have been members of a criminal gang. This claim was defended as the government position by the Home Minister on 22 May 2011. Surprisingly both claims were made when the home ministry's own probe committee investigation was still continuing. The probe report, submitted to the ministry on 6 June 2011, found 'no crime link'. The Adviser's claim entails dual legal implications. First, if he had reasonable and admissible evidence for the claim, Limon's father, along with Limon, should have been brought to justice. Any failure amounts to knowingly condoning, if not aiding and abetting, criminal acts and association. And secondly in the absence of credible evidence, the claim amounts to an act of defamation, which may be open to damages claim in a civil suit. The Home Minister's claim was nothing more than a fait accompli. How could the government adopt an official position when its own investigation was in progress? Was this public statement intended to influence the probe report? None has legally pursued these matters in the public interest. Both the Adviser and Minister made their public statements with impunity (not even a public apology) despite the principle of ministerial responsibility and accountability one of the foundation pillars of the parliamentary system of government.
Mounting concerns of the public and human rights group about custodial tortures and deaths led the HC on 5 July 2010 to severely criticise police acts causing custodial tortures and deaths and issued directive for the government to stop, and conduct an independent probe into, such acts. Whilst there were at least 229 custodial deaths and 23 deaths in police and Rab encounters in 2009 (Ain O Salish Kendra, Star, 9 July 2010); 127 deaths occurred in the hands of law enforcers in 2010 (Odhikar, Star, 28 January 2011). Looking at a snapshot of the near past, the HC in 2001held that the police harassed innocent people on a massive scale rendering the law counterproductive; that the chain of command in the police force collapsed and corrupted; and that they no longer truly worked as a law-enforcing agency but committed serious offences at their convenience. As a result, unlawful arrest and detention by police and custodial rape, torture, violence, and death increased alarmingly (judgement of 12 July 2001, The New Nation, 13 July 2001). Ironically one year later on 17 June 2002, the Court had to reiterate the identical indicators of police excesses in the Rubel custodial death trial (Star, 18 June 2002). In 2002, 105 arrestees were tortured and 54 of them died in custody (Janakantha, 23 May 2002). There are instances where victims died after arrest even before they were presented to the courts as required by Article 33 of the Constitution and section 61 of the Code of Criminal Procedure. Nipu Rani was mercilessly tortured by police employing third-degree methods and took her to doctors before producing her to the court (Janakantha 12 June 2002). Kawser, a 14-year old minor was arrested on 4 February 2002when he was playing cricket. His father was given two stark choices at the police station: pay Taka 20000 for Kawser's release or he be placed under remand. His father could not pay and his son died in custody on 14 February 2002 (Odhikar, From Playground to Morgue, 2002). Jamal who died of physical torture in custody is also a case in point (Star, 30 April 2002). These are few of innumerable examples to show the endemic and systemic culture of law enforcers' brutalities.
Compelling judicial precedents unequivocally hold the state liable for said atrocities. The Indian Supreme Court in D K Basu v. State of West Bengal held that the state is liable to compensate victims for the breach of public duty to protect; and that the sovereign immunity of state as a defence is unavailable for the tortuous acts of public servants/agents (1997 AIR 624-25). This decision mirrors: Neelabati Bahera v State of Orissa (1993 Cri L J 2912); Rudul Sah v State of Bihar (1983 AIR SC 1086); Sebastian M Hongrey v Union of India (1984 AIR SC 1026); Bhim Singh v State of Jammu and Kashmir (1985, 4 SCC 677); Saheli v Commissioner of Police Delhi (1990 AIR SC 513); M P v Shyamsunder Trivedi (1995, 4 SCC 276). The Irish CJ O'Dalaigh explained the rationale for state liability in State v Ryan (1965 IR 70) and Byrne v Ireland: 'where the right is once guaranteed by the State, it is against the State that the remedy must be sought' for its failure to discharge the constitutional obligations (1972 IR 262). The decisions of the Privy Council in Maharaj v Attorney General of Trinidad and Tobago (1978, 2 All ER 670) and New Zealand Court of Appeal in Simps v Attorney General (1994 NZLR 667) may be cited to the same effect.
The inability of successive governments to maintain law and order through ordinary laws led to the enactment of various draconian special powers, public safety, and speedy trial acts to combat crimes. In so doing, absolute priority was accorded to legitimise wide-ranging arbitrary and discretionary powers of the Executive and law enforcing agencies regardless of their marginalising effects on the constitutionally recognised rights of the citizens. These all-embracing laws are susceptible to human rights abuses. Departmental and in-house probes, which are often found to be self-serving cover-ups to insulate wrong doers and sectarian interests have worsened the plight of citizens' rights. Conducting these probes at arm's length by neutral third parties, such as judicial, is imperative to overcome the problem.
It is the fundamental duty of the state to protect its citizens and their lawful rights by preventing its law enforcing agents from any unlawful exercise of authorised power. A failure to perform this duty renders the state and its governing authority liable for atrocities and excesses perpetrated by its agents in incidents like Limon and Kadar. The need for crime combating sweeping power may not entirely be gainsaid in any crime-infested country. But it is incumbent upon the state to adequately guard against its enforcers becoming violators and protectors turning predators. This duty cannot be discharged on the face of pervasive culture of executive arrogance, patronage, and condescension as a covert strategy to cover-up. It would be rewarding for the administration of law and justice, should the authority self-reflect, not react, by turning its curative attention to the record of law enforcers' violence in which citizens like Limon and Kadar despair.
The writer is Professor of Law, Macquarie University, Sydney, Australia.