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Law Enforcing Agencies & Human Rights: Bangladesh Context

To strengthen the relationship between law enforcing agencies and common citizens and to reduce the gap between them law enforcing agencies need to be dedicated to human rights. This will be possible when they will consider themselves as placed not above the people rather as part of the people and as servants of the people. This can be achieved through radical change of the state character. Are we at all prepared to face this difficult task?

by Dr Mizanur Rahman
THE history of law enforcing agencies is inextri cably related with the history of law and state. Today it is well confessed that when Primitive egalitarian society due to the production of "surplus value" in consequence of the division of labour became divided into classes, when the distinction between the poor and the rich was created, when the poor became prey to extortion and deceit and when private property was created through extortion, state — a peculiar political institution, came into oeing. Thus state was created when the primitive egalitarian society was transformed into an unequal society of classes. Differently it can be said that when in the course of its evaluation society was divided into classes that division was reflected in the formation of state. State ensured the perpetuity of the society in the face of the continual struggle of different adverse classes for their own existence. In reality this abstract concept of state is nothing but a political means to safeguard the economic Interests of the class in power. Even though different attempts have been made to define "state" and all definitions reflected the Political Philosophy of their authors, popularly by "state" we understand a huge "force". This "force" can be seen in state laws, in institutions like police, ansar. BDR. armed forces, prisons etc. This huge force is inevitable in a state. Because all states establish the authority of one class over all other classes in the society. So it would not be improper to consider the concept of state as equivalent to oppression and suppression.
But with the developnfent and progress of knowledge the concept of state underwent radical changes in the course of social evolution. State has been seen to project Itself in welfare activities by concealing its traditional and preeminent role in order to keep the "social dialectics" in restraint. In the middle of the 20th century the concept of welfare state came into prominence. Prior to that the concept of socialist state as envisaged in Marxist ideology was realised with the hope and believe that this socialist state will enhance its wreckage through its own evolution from which a communist state will be created. But within seventy three years socialism as a political philosophy became ineffective. Nevertheless it is undeniable that socialist thinking greatly influenced all political philosphies before its downfall as a system. It even acted as the main catalyst in the radical trafrdfoVmation of the old coh-cept of- state. Cafr It'to? denied1 that the concept ■ofwe'lffo? State1 is the direct result of Socialist thinking?
Law enforcing agencies must be judged in the perspective of the newly acquired characteristics of state and its related institutions in such a changed situation.
Before entering into human rights the distinction between different social norms and law must be made clear. When primitive man started living united or group life he began to be regulated and protected by social norms. We all know this allegiance to social norms was very natural. Because everyone for his own needs and welfare considered these norms as emanating from his own self. But with the origin of state the characteristics of social norms became different, all norms were no more equally beneficial for all. rather to ensure the well-being of a few the large majority of the society was burdened with duties and obligations, and for obvious causes allegiance to norms which were the reflections of state will i.e. law. was not spontaneous and voluntary. Thus to ensure the allegiance of all. law enforcing agencies and penal systems were needed and in this way which previously was natural in the case of laws that became artificial, threat of punishment became essential for that which was observed voluntarily, law enforcing agencies were necessitated for the realisation of that which did not call for any control. For this reason in any modern society we see fear, doubt and suspicion in common people towards the law enforcing agencies. This suspicion reached a stage where the role of law enforcing agencies even in respect of protecting human rights makes us anxious and - worried.
Men talked about natural rights at the beginning of the civilisation. The dimension of natural rights also charged with the ages. In ancient Greek and Roman civilisations slaves were not treated as human-beings. In spite of being the subjects of law they were the objects of law and consequently always remained outside the purview of natural rights. Long after the dawn of human civilisation during the Renaissance, particularly owing to the influence of French Philosophers, the concept of "Human Rights" was familiarised. At the beginning human rights was a dilated version of natural rights and was linked with the concept of na tion state. Resorted to for safeguarding the position of the common people against the absolute power of the Monarch or Emperor "Human Rights" soon became a weapon for the realisation of the right to self-determination not only against the internal tyranny (as in France) but also against the colonial forces (as evidenced by US liberation war). Later the guiding principles of the great French Revolution — Liberty, Equality and Fraternity was proclaimed and adopted as the fundamental principles of human rights.
Consistently, after the realisation of the right to self determination the centre of the struggle for the realisation of the human rights acquired a new dimension. Before savour-
ing the taste of freedom by eject ing the external forces people became frightened by the antagonistic attitude of the inter-nal forces and eagerly looked for shelter. In these circumstances the universal concept of human rights came forward in aid of the common people. Even the legality of the state law as the expression of the state will was judged and examined by the touchrBlope of the, universal concept of human rights.
The, history of Bangladesh also supports the above mentioned statement. Pakistani neo-colonlalism was the common enemy of the Bengali nation. Hence to free the land water of Bengal the Bengalis unitedly waged a war against the common enemy and established the right to self-determination. But newly independent Bangladesh followed the laws of former Pakistan, by only substituting the word "Bangladesh" for the word “Pakistan". The aims and objectives of the liberation struggle was thus ignored in the independent Bangladesh. Even the pledge to establish and protect the dignity and worth of the human person — one of the fundamental aims of the Proclamation of Independence and the Constitution of the People's Republic of Bangladesh — remained confined in papers. The endeavour to involve people in the administration of the country though made at a later time was negated at the very beginning and situations were created where threat of law appeared in the countenance of a rival vis-a-vis the common people; consequently people became more alienated from the state and society. Laws were framed mechanically keeping a distance from the people and by encouraging detachment/alienatlon. Naturally this "foreign” law failed to understand the national spirit but to protect the interest of the state (i.e. the interest of a particular class) common people were compelled to abide by the law. The result was inevitable — one obeyed the law not due to the respect for the discriminatory law but for the accompanying threats. Malice and suspicion towards the law enforcing agencies and alienation from them increased proportionately. But is such a distance of a common citizen from
the law enforcing agencies desirable? Section 44 (1) of the Code of Criminal Procedure applicable in Bangladesh says: "Every person, aware of the commission of. or of the intention of any other person to commit any offence punishable under any of the following sections of the Penal Code namely, 121. 121A, 122. 123. 124, 124A, 125. 126. 130. 143, 144, 145, 147, 148, 302, 303, 304. 382, 393. 394. 395, 396, 397. 398, 399, 402, 435. 436, 449. 450. 456. 457. 458. 459 and 460, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate or Police Officer of such commissioner or intention".
Have our government and state been able to establish the mutual trust and confidence which is essential for the cooperation between police — the principal law enforcing agency and common people as envisaged here?
Let us have a look into some aspects of the aims, objectives and functions of our principal law enforcing agency — the Police.
According to the police Act of 1861 maintaining law and order is the principal function of the Police. Section 23 of the said Act provides: "Duties of Police-Officers: It shall be the duty of every Police Officer promptly to obey and execute
all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend al) person whom he is legally authorised to apprehend, and for whose apprehension sufficient Round exists: and it shall be
wful for every Police-officer, fot-any-of the purposes men- -tioned in this section, without a warrant, to enter and inspect any drinking-shop, gaininghouse or other place of resort of loose and disorderly characters".
Maintaining law and order has also been described as one of the main functions of the Police in section 31 of the Police Act of 1861:
"Police to keep order in public roads, etc: It shall be the duty of the police to keep order on the public roads, and in the public streets, thoroughfares, ghats and landing-places, and at all other places of public resort, and to prevent obstructions on the occasions of assemblies and processions on the public roads and in the publics, streets, or in the neighbourhood of places of worship, during the time of public worship, and in any case when any road, street, thoroughfare. ghat or landing-place may be thronged or may be liable to be obstructed."
Police, the Principal law enforcing agency has been given wide powers of perform the above functions smoothly. Particularly the power which is often subject of,criticism by the human rights activists is the special power given to the police by section 54 of the Code of Criminal Procedure. 1898. This section, therefore requires special consideration. Section 54 Provides:
"When Police may arrest without warrant: Any police-Officer may. without an order from a Magistrate and without a warrant, arrest —
first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
secondly, any person having
in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;
thirdly, any person who has been proclaimed as an offender either under this code or by order of the Government:
fourthly, any person in whose possession anything is found which may be reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing:
fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape from lawful custody, sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh:
seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed In Bangladesh, would have been punishable as an offence, and for which he is. under any law relating to extradition or under the Fugitive Offenders Act. 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;
eighthly, any released con-
vict committing a breach of any rule made under section 565. sub-clause (3);
ninthly, any person for whose arrest a requisition has been received from another police-officer. provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the pe'rson might lawfully be arrested without a warrant by the officer who Issued the requisition.’'
The Police of almost every state has the power of arresting Suspected pefsAns^crlmirtals. But this power given to the Police of Bangladesh often raises agitation and protest due to the abuse of the power. But is the Police solely responsible for the abuse of power?
In this regard a comparative discussion may be made. For example, in the United States any statement made to the Police may afterwards be used against the person making the statement. But according to our law any statement recorded under section 161 of the Code of Criminal Procedure, 1898 may afterwards be withdrawn by the person making the statement. Thus in reality the extent of using the evidence given under section 161 against the person giving the same is very limited. There are instances where the US Police resorted to torture in order to extract confession from the accused. Nevertheless as much allegations are not heard against the US Police as we hear against our Police. But why?
It should be remembered that law enforcing agencies never play an impartial role. Even if seemingly impartial they protect the Interest of the class in power under the false veil of impartiality. But in developed countries like the United States separation of powers reached a stage where the politicians who are mainly associated with the administration and the legislature can not interfere with the routine activities of the police. The class in power resorts to such limitation of its own power in order to maintain the “seemingly impartial character" of the state. Whereas in Bangladesh the main impediment in attaining the seemingly impartial character of the police, the principal
law enforcing agency, is the • politicians of the ruling party.
The police is often subject to illegitimate pressure. About a year ago the whole of Bangladesh witnessed an artistry of fotowabazes (persons who issue decrees purportedly in conformity with Islamic laws). Some self-seeking quarters tried to bring mediaeval darkness in the society by taking the law in their own hands in the name of religion in different regions of Bangladesh. In the name of establishing religious order human dignity was trampled by resorting to mediaeval barbarity. Farce of trial has been made by throwing stones, burying up to the neck or by amputating the hands. But we have not seen the police in the expected manner and role. Were not there orders of the then rulers and policy makers behind this role of the Police as silent spectators? Were not there tacit supports of the ruling politicians behind such negative role of the Police? Thus making the Police the scapegoat the politicians and the rulers realised their own interests.
Police remained the scapegoat even in the changed sce-. nario. Recently it has been observed that ignoring Government orders local politicians released identified and accused terrorists from Police custody. When protests arose punitive actions were taken against the concerned police-officer. But
was any action taken against the highly influential politicians even after committing illegal acts? Is it possible to expect even apparent impartiality from the police in these circumstances?
Here I cannot but mention one or two experiences of any own. After coming into power of the new Government when Police In, the process of disarmament of the Halls of the University entered in the, presence nf. the Provost into a Hall for ■ - Search they were obstructed by the student leaders of the Half. At one stage of argument a policeman said. "When you were in power we searched other Halls. This is our job. If you come to power again we won't come here, we ll search others." The agony of the helpless Police in not being able to ensure the welfare of the common students and maintain peaceful atmosphere for education — the precondition for the realisation of their right to education, is reflected in this comment.
It is unfortunate that our former rulers have failed to differentiate even between state Interest, class interest and party interest, and party interest always prevailed over the state or class interest. That is why we witnessed that secret informations of intended search of the Halls for disarmament were divulged beforehand and the terrorist went into hiding with arms, as a result the police recovered some toy-pistols. It is alleged that the secret informations were leaked out by the Police. According to a well circulated daily "One party is in the Government but another party is in power." Has not the law enforcing agency lost its credibility and acceptability due to such jxqKib? How can this be regained?
The Government must instead of giving priority to party interest give priority if not to public interest at least to state Interest. But is it the responsibility of the institution named Government alone?
Let us once again go back to some experiences of my place of work — the University. When after the coming into power of the new Government system of checking identity cards in the
presence of the authorities for entrance into the Students' Residence Hall was made with a view to overcome the deadlock situation in the University, some teachers engaged in the Hall administration, sometimes by compulsion and sometimes to safeguard own interests. allowed identified terrorists and non-students to enter and stay in the Halls. In the changed scenario of the state and the University many teachers are allegedly using terrorists. non-students and cadres to maintain their former image prestige and influence. Not the immense treasure of knowledge and the respect aroused by the same but the role of the cadres and student powers is being given priority for image and prestige. Teachers in many cases in spite of being teachers became politicians. The holy place for the pursuit of knowledge has become the place of party politics. All that is unfortunate and disgraceful in the politics of our country and should be renounced have found their way into the universities. Heis not the role of the law enforcing agency been curtailed proportionately in ensuring the peaceful atmosphere of education?
In this perspective it seems that the proposal of President Shahabuddln Ahmed to suspend the so-called student politics temporarily requires special consideration.
In the wider dimension of the state it should be remembered that no matter how impartially the laws are enforced in a society divided into classes it tends to perpetuate the inherent inequality. We. specially those who are students of law. often say that rule of law is the precondition for the realisation of human rights. But have we ever questioned rule of which law we are talking about? Is it the rule of law which is established on the basis of "unequal laws" and which perpetuate extortion and inequality or the rule of law which aims at establishing the rule of the majority and in the process "withering away" of the discriminatory laws?
Once again experience of harsh reality, recently the left side of the road in the Dhaka city has been marked in white lines for rickshaws. The intention was to avoid inconvenience for the motor vehicles by uncontrolled movement of rickshaws so that traffic jam can be mitigated. Not to mention, necessary step. But let us see the empirical aspect of this rule. The other day I was going through the Elephant road by ..lilJts.^^.OJd. rickshawpuller, said, at one night, When he crossed the whiteline and entered the area of motor vehicles a police sergeant stlapped and abused him. According to the rickshawpuller the road was vacant at that time and he created no obstruction for others. On the way I saw that the area reserved for rickshaws in the Elephant Road was full of private cars and motor cycles and it was impossible for rickshaws to proceed without encroaching on the area of motor vehicles. Unable to hide his anger the rickshawpuller said. "Where is the sergeant now? Why no action is taken against motor drivers?"
This question is eternal. Although the bias inherent in its subtlety in the laws of a society divided into classes may not be discernible in common eyes the bias of the law enforcing agencies can be easily pointed out. Who is primarily responsible? The agency or the biased law?
The precondition for apparently neutral law enforcing agencies is an apparently neutral state. Since at present the worldwide struggle for the establishment of human rights is directed against the state power, the complete realisation and establishment of human rights is possible only through the establishment of "people's state'. The essential material and idelogi-cal ingredients for the same are absent in the present Bangladesh. Nevertheless it is hopeful that the present Government for the first time acknowledged that the primary responsibility for the establishment of human rights is that of the Government and being inspired by this ideology the Government has established Bangladesh Human Rights
Commission. This step of the Government created new hopes. The positive role of the commission will help the state and the Government to take a comradely approach instead of their present hostile attitude to the struggle for human rights. A pro people state can ensure pro-people law enforcing agencies and only pro-people law enforcing agencies can ensure "Policing by consent". Recently a system of "partnership approach to Policing" has been established experimentally in the My-mensingh town. For the safely of the life. Property and honour of the people Town Defence Party has been formed there by the assistance of the Municipality and through the direct participation of people from all classes and walks of life. All expenses for the same are met locally. Crimes in the town have reduced due to such step. Social control has increased
and people's assistance is being available in the investigation of crimes. The relationship between people and the Police has become cardial and trustworthy. Thus the detachment of the Police from people has reduced to some extent.
To strengthen the relationship between law enforcing agencies and common citizens and to reduce the gap between them law enforcing agencies need to be dedicated to human rights. This will be possible when they will consider themselves as placed not above the people rather as part of the people and as servants of the people. This can be achieved through radical change of the state character. Are we at all prepared to face this difficult task?
The writer is an Associate Professor Department of Law University of Dhaka.