Laws alter views
RAB and a possible way out
Sheikh Hafizur Rahman Karzon
Commission of crime, its prevention, and punishment of criminals are an unending story of human society. Elements of crime are deeply rooted in the organisation of state. Anomalies of social structure play the key role in begetting increased number of crimes. The question is not to stamp out criminality completely, rather to keep the frequency of crimes under control.
Control of crime in Bangladesh
Broadly crimes are classified into two categories: those related to human body (such as assault, injury, hurt, rape, murder, acid throwing etc.) and those related to property (such as theft, robbery, occupying other's land, misappropriation etc.) The Penal Code defines different types of crimes and prescribes penalty for each offence. The Criminal Procedure Code provides the procedure to determine who have really committed an offence and penalise the reprobates. State has its own mechanism to bring the culprits before a court of law and ensure justice. Police, state attorneys, and courts are different organs of the state, which work to keep the society in an orderly condition.
Police is a very important agency of the government enjoined to maintain law and order situation, to arrest the accused, and to investigate the commission of offences. Police is the agency primarily responsible for crime control and its prevention. If this agency is itself corrupt, how we can expect proper crime control? Unfortunately that happens in Bangladesh. I am not fascinated to blame the police only. It has become a fashion to blame the police when the issue of law and order situation comes. In Bangladesh the whole criminal justice system is faulty, police being a part of it. Can we deny the fact that the state itself has been criminalised in Bangladesh? There are hundreds of evidences of politico-police-criminal triumvirate. The politicians, police and criminals have comprised a hard-core group patronising various types of crimes. Sometimes politician and criminal is the same person. Sometimes I cannot differentiate between police and criminal, one has government uniform, the other does not. In this context how far can we expect crime control and its prevention by police?
Before going to the issue of Rapid Action Battalion (RAB), I want to raise these questions because Operation Clean Heart, formation of RAB etc. are temporary measures like anti-biotic, which can withhold the increase of crime for the time being. If we want an orderly society, we need to address the criminal justice system and society as a whole.
Operation clean heart and heart attack
In the context of deteriorated condition of law and order the government deployed joint force (basically army officers and soldiers) to reinstate the orderly state of society. Armed officers arrested people including listed criminals. As many as 56 people died because of the torture ( 'heart attack' in their language) and many people became crippled. The operation continued from October 16, 2002 to January 9, 2003. Their activities were done in violation of articles 31, 32, 33, and 35 of the Constitution, so they required to be indemnified. The Joint Drive Indemnity Ordinance, 2003 was promulgated on January 9, 2003 to save the illegal and unconstitutional activities of the armed forces. If the joint force did everything by remaining within the boundary of law, they did not require any indemnity. The government invoked article 46 of the Constitution to save the armed officers. The activities of the joint force were indemnified in violation of the spirit enumerated in the Preamble and article 7 of the Constitution. The Joint Drive Indemnity Ordinance cannot hold good in the light of basic structure principle of the Constitution. The Ordinance also precluded any individual to make a petition before any court or tribunal to determine the validity of the activities of the joint force.
Rapid Action Battalion (RAB)
After the joint drive the government formed the Rapid Action Battalion by amending the Rapid Action Battalion Ordinance 1979. A separate force, comprising of army, police, navy, air force, BDR and Ansar, has been formed for the first time in Bangladesh. During some time after the formation the RAB was praised for their activities in controlling crime. But very soon they became controversial as they were accused to kill Sumon, eye witness of the murder case of Ahsanullah Master MP, and Mohammad Ali, an innocent document writer (Dalil Lekhok) . The RAB has created a culture of killing people during crossfire. All the killings are extra-judicial killing and are made in clear violation of the Constitution, the Penal Code and Criminal Procedure Code. Nowhere in the law, law enforcers have been given the authority to kill people during crossfire. How far the stories of crossfire are believable? It may cause in one or two cases, but if it happens in every case, then it no longer stands as an accident, rather it becomes an established fact.
Dilemma of RAB
Some people and some organisations are highly vocal about the activities of RAB as they are violating human rights, most importantly the right to life of the persons murdered during the crossfire. But at the same time they are not so vocal about the human rights violation by the terrorists, and about the faulty criminal justice system by taking advantage of which many terrorists remain free and continue their criminal activities. They trample human rights of many people in total negation of law and justice.
Some people also have a different opinion that listed criminals have kept many people captive of their criminal activities and criminal justice system cannot deter them, so the criminals should be killed during crossfire, which will then be labelled as committed when exercising the right to self defense and therefore justified. Probably the RAB is animated by this type of rationale.
In Bhagalpur of India police started to blind the notorious criminals when they were detained under the custody of police. This incident of blindings sent a shock wave throughout the world. But the surprising fact was that the people of Bhagalpur had hailed the police as a deliverance against rampant criminality in their area.
Here lies the dilemma of law enforcers. When human rights of mass people collides with human rights of terrorists, which rights should be upheld by the law enforcers? Obviously the law enforcers should ensure the human rights of mass people. Then the question comes--in doing so do the law enforcers entitle to commit extra-judicial killing? The answer is no, the law enforcers cannot be permitted to do it for even a temporary period. That may ameliorate law and order situation for the time being, but its aftermath has far reaching consequences leading to the breakdown of criminal justice system. Law and order situation has been deteriorated because of many reasons, which I have mentioned earlier. Operation Clean Heart, formation of RAB do not provide any anti-dote which will have healing effect on society. Criminal activities have taken strong hold in Bangladesh through a slow process where multifarious factors are inextricably related to each other. Politicians and state functionaries patronise criminals. Criminalisation of politics is a major factor of the deterioration of law and order condition. Without addressing this problem any initiative to restore law and order will go in vain. By crossfire RAB is terminating the criminality of field-level criminals, God Fathers remain beyond their reach. Taking shelter in big political parties these God Fathers engage field-level terrorists to commit crimes one after another. Elimination of God Fathers is a pre-condition to restore peace and tranquillity in a disturbed society like ours.
Activities of RAB may lead to anarchy as it challenges the existing administration of criminal justice. Though it is faulty and criminals are taking advantage of this administration, nevertheless it is an established system which keeps balance between the right of victim and the punishment of wrong doer. All the matters pertaining to the administration of criminal justice are administered by the Penal Code and Criminal Procedure Code, which were enacted by the British rulers around 150 years back. The incumbents ought to find out the drawbacks of the existing criminal justice system and take steps to improve the situation. Speedy tribunals are doing well in different parts of the country. Likely government may think of reforming police, appointing state attorneys through Public Service Commission, reforming the prison system, and ensuring speedy trial and punishment of the wrongdoers.
Elimination of crime requires rectification of all the principal institutions. Society, government, criminal justice system, police--all need to be subjected to scrutiny. A balanced state, properly characterised by separation of power, cannot keep law and order situation under control without value education. Family and educational institutions ought to impart ethical teaching to every citizen, who will effect the same in their real life situation. Only inner strength of society, together with the aid of civilised state apparatus, can restore the expected normalcy of life.
The author is a teacher, Department of Law, University of Dhaka.