The law of lawlessness

With two recent deaths of suspected militants in crossfire, and 11,312 arrests in less than a week, the law enforcing agencies seem to have turned a blind eye to the Appellate Division’s directive on Section 54 and 167 that upheld a 2003 judgment of the High Court (HC) on Sections 54 and 167 of the colonial era Code of Criminal Procedure (CrPc) with some changes. They have other instruments to continue such mass arrests without any specific charge. Only 194 (2 percent of the arrestees), according to police, are suspected to have militant connection. As per the directive, all of them were supposed to be arrested on specific charges and follow some specific procedures during and after arrest. In 2003, the HC, in a bid to safeguard people’s liberty and fundamental rights guaranteed by the Constitution, gave 15-point directives and also proposed amendments to the Penal Code 1860, Police Act 1861 and Evidence Act 1872. It observed that the amendments were required to limit the arbitrary use of powers by the police and magistrates in relation to arrest and remand and to take necessary steps in case of custodial death. On May 24 this year, a bench of the Appellate Division consisting of four members led by Hon’ble Chief Justice Surendra Kumar Sinha observed that the application of Sections 54 and 167 were not in line with the Constitution, and thus reinforced and reinvigorated the values and principles of the Constitution of the People’s Republic of Bangladesh.

torture_3The latest victim of crossfire is Shariful alias Sakib, a prime suspect (according to police) in the Avijit Roy and Niladri Chattopadhyay Niloy murders. Just days earlier, another teen militant Golam Faizullah Fahim also succumbed to crossfire under police custody. Such a culture of denial of justice is nothing new and there are ample examples including the case of Shamim Reza Rubel, the then student of the Independent University, Bangladesh, who was picked up by the police and later died in their custody in 1998. Not only Rubel, Shima Chowdhury and Arun Chakrabarty were among those who met tragic ends in police custody. Shima, a young woman aged 18, was raped at Raojan in Chittagong in police custody and Arun, a youth, lost his life in police custody at Malibagh Police Station in Dhaka. The curious case of Abdul Kadar, now a teacher at Comilla Victoria Government College, is yet another example of the abuse of power and misuse of laws by police. In July 2011, he was picked up by plain cloth policemen, tortured by the then Officer-in-Charge of the Khilgaon Police Station without any charge, and finally implicated in three false cases. Thanks to media outcry, followed by HC’s order to the Inspector General of Police, to probe the incident. Kadar sued OC Helal Uddin for torturing and filing false cases against him after he was acquitted of all charges in 2012. However, he is still under pressure to withdraw the case.

When Rubel died, students and activists took to the streets to protest the murder and demanded justice; the media was flooded with reports that focused on the nature of abuse of power by a group of corrupt members of the police force and a woman allegedly affiliated with the then political party in power. Demands for legal reforms were also made by legal experts. But the path to justice was not smooth for Rubel and his family.

Starting from Rubel’s case to the more recent reports, we get a stark picture of abuse of power and the successive government’s unwillingness of successive governments to bring necessary reforms to the country’s laws. It is a pity that the Bangladesh Nationalist Party that often complains about abuse of laws, opted to challenge the 2003 verdict by filing an appeal with the Appellate Division. Instead of reforms, governments have been very keen to enact laws and policies in the name of good governance that ultimately undermine the spirit of the constitution. One such Act is the Information and Communication Technology (Amendment) Act 2013. It was first enacted in 2006 during the BNP era and later amended by the present government in 2013. Both governments earned sharp criticism from human rights activists, civil society and media. They sought amendment of different Sections, including Sections 57 and 80, creating abundant scope of misuse by law enforcing agencies and empowering them to arrest anyone, anywhere without any warrant. Like in the case of many other recent laws, this time too indemnity was granted to public servants involved in applying the ICT Act (Section 86). Starting from 2013 to February 2016, a total of 520 cases have been filed under Section 57 of this Act. A good number of cases have been filed by law enforcing agencies and party loyalists for, among other reasons, ‘hurting the image of the nation’ or ‘defaming individuals’, such as the Hon’ble Prime Minister or her family members. This once again highlights the same scenario as in Rubel’s case – the abuse of power by law enforcing agencies in a nexus with over-enthusiastic party loyalists.

Successive governments and law enforcing agencies have bypassed the HC’s directives and the earlier recommendations of the judicial investigation commission (JIC) to bring necessary amendments to laws and implementation guideline of Section 54. The JIC, led by Justice Habibur Rahman Khan, was formed to investigate the custodial death of Rubel. It made 11 specific recommendations, based on which a writ petition was filed by human rights organisations, including Bangladesh Legal Aid and Services Trust (BLAST), Ain-O-Salish Kendra (ASK) and the Joint Social Movement (Sommilito Samajik Andolon), alongside the wife of slain Arun Chakrabarty and others. The High Court issued a rule nisi on November 29, 1998, asking why law enforcing agencies should not be ordered to be restrained from arresting and torturing under suspicion in the name of investigation. Finally, on April 7, 2003, a High Court Bench, consisting Justice Hamidul Huq Chowdhury and Justice Salma Masud Chowdhury in a landmark judgment recommended amendments to Section 54 and 167 and gave 15-point directives. The government, instead of complying filed a petition for Leave to Appeal, which the Appellate Division accepted in 2003. Importantly, the highest court did not scrap or stay the HC order and finally, after 17 years, the matter came up for hearing in the cause list on November 23, 2015. Over these years, abuse of power by law enforcing agencies have tainted their credibility and resulted in loss and damage to many lives.

When the first Constitution of independent Bangladesh was adopted on December 16, 1972, it included two provisions – 7(2) and 26 (1) – that made it clear that all laws that are in conflict with the Constitution would be void. In view of the growing trends of misuse of law, this seems to have become a mere provision and laws meant to protect citizens are instead being used to hunt them down. With the Appellate Division’s judgment, we can only hope that the law enforcing agencies will act as directed and restore their dignity and the government will initiate the legal reform as per the directives.

This was originally published in Daily Star on 28th June 2016

 

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