Shipping Law Practitioner In Bangladesh

Does Extra Judicial Killings diminish public faith on judicial system of Bangladesh? Do you agree with this statement? – Explain & Illustrate.”

Introduction

Recently it has been seen extra judicial killings news has became very common in Bangladesh. This extra judicial killings issue diminishing public faith on judicial system of Bangladesh rapidly. Now a day’s people of Bangladeshis thinking that law enforcement agencies can do anything without justice or not by following the rules. However, Killings by law enforcement agencies are common in Bangladesh from its birth as a nation. In the year 1972, the paramilitary group Jatiya Rakkhi Bahini which was made to defend the nation from outside threat, which was made as a defense force and had become infamous for its extrajudicial executions until it was absorbed into the army in 1975. Now at present, since the formation of the elite force Rapid Action Battalion (RAB) in March 2004, such killings are again on the rise and are being categorized under a new vocabulary of crossfire, extrajudicial killings, encounters, etc

After the British Empire first started wielding more control and influence on its colonies in South Asia, it modeled police force after the more militaristic Irish Constabulary model rather than the more civilian London Metropolitan model. This was meant to subjugate very large and hostile indigenous populations with a relatively small force. Unfortunately, even after achieving independence in 1971, Bangladesh retained its Police Act of 1861 and its colonial structure of policing that has resulted in woefully unprofessional and deficient law enforcement. As pointed out by a former Inspector General of Police (IGP), many committees and commissions have been formed since 1971 to diagnose the problems with the police and formulate specific recommendations. “These initiatives have been fruitful to the extent that the reports were compiled, but unfortunately the recommendations they carried have not been implemented. Scarce resources, mixed incentives and vested interests prevented the reform agenda from being implemented.”

***This policy note is the product of a consultation, involving police experts, civil society, academics and donors, which took place at the Radius Centre in Dhaka on 11 July 2009.

***Shahjahan, A.S.M. (2006), “Police Reform: A Bangladesh Concept”, Report from the ADB Symposium on Challenges in Implementing Access to Justice Reforms, p.40.

They all have been the subject of consideration by Commonwealth Human Rights Initiative organized a consultation in conjunction with the Institute of Governance Studies (BRAC University) and the BRAC Human Rights and Legal Services Program that sought to formulate specific recommendations on how the Bangladesh Police can improve its delivery of services.

1. Independence

Extra judicial killing is the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process. Extrajudicial punishments are by their nature unlawful, since they bypass the due process of the legal jurisdiction in which they occur. Extrajudicial killings often target leading political, trade union, dissident, religious, and social figures and may be carried out by the state government or other state authorities like the armed forces and police. For policing in Bangladesh to work in an efficient and unbiased manner, the powers and responsibilities of each entity involved has to be properly articulated.

The problem is that terms such as “superintendence” and “control”, although included in the governing legislation of the Police Act of 1861, have never been clearly explained or unpacked. As a result, the political control of policing in Bangladesh has eroded internal chains of command, obstructed competent functioning of the policing, and ensured that responsibility for wrongdoing is hard to pin on any one body or individual. Therefore, a careful distinction is required to demarcate the limits of “political superintendence” and “operational responsibility”.

Political Superintendence

• The general principle is that the law enforcing agency, no less than any other state employee, must be subject to democratic superintendence, control and accountability for their activities, through the usual political, judicial and administrative processes.

• law enforcing agency, politicians and the public must understand that: (a) legitimately and democratically elected governments serve as the principal guardian of the public interest; and (b) the exercise of democratic governmental supervision and oversight of the police are an essential aspect of a free society, and these do not prima facie constitute “improper political interference”.

2. Recommendations

Bangladesh is instigating to extra judicial killings. Bangladesh is constitutionally committed to protecting and promoting human rights. Not only that, Bangladesh has signed many international treaties to protect the human rights. In spite of it is violating continuously. Even the Prime Minister, Foreign Minister, Home Minister and State Minister for Home are instigating to the extra judicial killings. On the other hand, in the investigation conducted by the Ministry of Home Affairs, such evidence has been found, which supports the allegations of extra-judicial killings against the RAB. Present grand alliance government led by Hasina had pledged in its electoral manifesto that once in power extrajudicial killing will be brought to an end. But it has not been stopped. Rather it is being continued in different names like gun-fight, encounter, crossfire etc.

Following corrective method can be used to stop extra judicial killings by the law enforcement agency:

1.1 Replace the 1861 Police Act with something akin to the Draft Police Ordinance, 2007.

1.2 Ensure that updated police legislation includes a penalty for political interference.

1.3 Ensure that updated police legislation curtails political interference by clearly articulating the IGP’s responsibilities. ****

***Section 16, Policing Act 2008 (New Zealand): http://www.legislation.govt.nz/act/public/2008/0072/latest/DLM1102125.html as on 17 October 2009.

1.4 Conduct a workshop for lawmakers on the distinction between political superintendence and operational responsibility.

1.5 Establish a National Police Commission (NPC).

1.6 Put pressure on the Bangladesh Civil Service (BCS) to accept reform.

2. Accountability

Article 31 of the constitution of Bangladesh states: “To enjoy the protection of law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” The constitution’s Article 32 ensures the protection of the right to life and personal liberty in accordance with the law. Because of the consequences of such deprivation, the drafters of the constitution made this specific provision of protection even though these rights were already covered by Article 31.

Bangladesh does not have a functional external accountability mechanism or a permanent internal mechanism that is adequately resourced. In addition, parliamentary oversight is practically non-existent in the country. Although Parliament should constantly be overseeing the law enforcing agency, it in fact spends little time examining their performance.

***BLAST v Bangladesh, 55DLR (2003).

***“Court concerned over extrajudicial killings”, The Financial Express, 19 December 2009: http://www.thefinancialexpressbd.com/more.php?news_id=87226 as on 27 December 2009.

Recommendations

2.1 Create a Parliamentary Committee to oversee police functioning.

2.2 Encourage civil society organizations to employ Public Interest Litigation (PIL)

2.3 Ensure that the PIO functions more transparently and that it becomes institutionalized.

2.4 Establish a Police Complaints Commission (PCC).

2.5 Provide adequate resources to the Human Rights Commission of Bangladesh (HRCB) so that it may review police misconduct.

2.6 Bolster community based policing (CBP) by improving community policing forums (CPFs) where possible and consider disbanding non-functioning CPFs.

2.7 Encourage the proliferation of “lay visitor” schemes.

3. Efficiency

In order to properly consider whether the Bangladeshi law enforcing agency is efficient, it is important to assess what resources are at their disposal. There are two types of financial budgets in Bangladesh: the revenue budget and the development budget. The revenue budget is meant to pay for the running of government (i.e. salaries). The development budget is meant to pay for major investments in the country (i.e. infrastructure). Interestingly, foreign aid given to Bangladesh finds its way to the development budget. Yet, notwithstanding the importance of the law enforcing agency, they are always under the revenue budget. As a result, there is very little money to invest in better policing.

4. Effectiveness

“Effectiveness” is a quantitative assessment of how well the results obtained by the Bangladeshi law enforcing agency relate to its desired objectives. Thus, it is first important to understand what the Bangladeshi law enforcing agency objective ought to be. A law providing for the deprivation of life or personal liberty must be objectively reasonable, and the court will inquire whether for an ordinary prudent person such a law is reasonable, having regard to the compelling, and not merely legitimate, governmental interest. It must be shown that the security of the state or of society necessitates the deprivation of one’s life and personal liberty. When the recent incidents of crossfire are studied, a common pattern that can be found is that victims were arrested and killed in what is termed as crossfire, an encounter or a shootout during crackdowns on illegal firearms or the arrest of criminals in deserted places, mostly in the early hours.

Conclusion

The biggest stumbling block in achieving a reorganized and more effective police service has been the failure to pass legislation that updates the 1861 Police Act. All told, there are 935 laws in Bangladesh that touch on the issue of policing in some way, shape or form. Consequently, the system is highly irrational. Inevitably, there are contradictions and gaps in the legislative framework.

Extra judicial killing already damaged public faith about judicial system of Bangladesh. When law enforcement agencies do extrajudicial killing, people know that victim family will not get justice.  So for the regain of public confidence in judicial system of Bangladesh extra judicial killing have to stop.

***Interview with Mr Hubert Staberhofer, Programme Manager of Police Reform Programme (UNDP), Dhaka, 10 August 2008.

BIBLIOGRAPHY

1) This policy note is the product of a consultation, involving police experts, civil society, academics and donors, which took place at the Radius Centre in Dhaka on 11 July 2009.

2)Shahjahan, A.S.M. (2006), “Police Reform: A Bangladesh Concept”, Report from the ADB Symposium on Challenges in Implementing Access to Justice Reforms, p.40.

3)United Nations Development Program (2004), Needs Assessment Report 2003: Towards Police Reform in Bangladesh at p.2.

4) Section 16, Policing Act 2008 (New Zealand)

5) BLAST v Bangladesh, 55DLR (2003).

6) “Court concerned over extrajudicial killings”, The Financial Express, 19 December 2009:

7) WAY FORWARD: BANGLADESH POLICE

Published by the Commonwealth Human Rights Initiative

In association with the Institute of Governance Studies (BRAC University) and BRAC Human Rights and Legal Services ,Supported by the Friedrich Naumann Foundation

8) HUMAN RIGHTS COUNCIL, 2ND SESSION, DAILY UPDATE, 20 SEPTEMBER 2006

9) Emmerson, B, and Ashworth, A (2000), Human Rights and Criminal Proceedings, Sweet & Maxwell

10) Farrington, D, and Langan, P (1992), ‘Changes in Crime and Punishment in England and America in the 1980s’, 9 Justice Quarterly 5.

11) Floud, J, and Young, W (1981), Dangerousness and Criminal Justice, Heinemann.

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