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LAW alter views

Extra-judicial killings: Some issues

Barrister Harun ur Rashid
THE right to life is the most important of all human rights. The Bangladesh Constitution of 1972 has emerged as an epitome in championing the cause of human rights and has been a watershed in the direction of protecting and promoting human rights in the country. Right to life is guaranteed in the Constitution as one of the fundamental rights (Part III of the Bangladesh Constitution).
Article 32 of the Constitution states: " No person shall be deprived of life or personal liberty save in accordance with law". Two
elements are significant to note in the right to life in terms of the Constitution. First, the word "person" is employed. This includes not only a Bangladeshi citizen but also a foreigner living in Bangladesh. Second, there is no qualification or limitation to the right except that life or liberty can be taken away in accordance with laws of the country.
This implies that there must be set of laws by which right to life may be denied. This brings the question that the executive or government has to abide by the laws enacted by Parliament.
Extra-judicial killings are those that are
not committed by orders of a judiciary or court under laws of the land. They include executions or killings by law-enforcing agencies or deaths in custody. Any deaths that are not executed by the order of judiciary in accordance with laws are designated as extra-judicial killings. And they are constitutionally illegal as they violate the fundamental rights to life, guaranteed by the Constitution.
Alleged criminals of murders are human beings and unless they are found guilty and convicted by a court and sentenced to death, they are entitled to enjoy the fundamental rights to life and no governmental agency can take away that right.
Article 9 of the UN International Covenant on Civil and Political Rights made it clear and states that " No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."
Democracy and extra-judicial killings
One of the most fundamental characteristics of democracy is the existence of rule of law in the country. Rule of law means fairness and justice. Rule of law means strict
accountability. Rule of law means that all citizens are to be treated equal in law and there is no fear or favour in executing laws in the country. Rule of law encompasses judicial transparency and means that justice must be open for public to see and be subject to rigorous and impartial review.
Another dimension of the rule of law is that there is no discrimination of persons on grounds of birth, wealth, or position in society. No person, how high a person may be within or outside the government is beyond accountability to his/ her actions or omissions. Rule of law is based on the principle of equality and accountability. In Western democracies, it is not unusual that even a Prime Minister of a country has been fined by an ordinary police constable for breaches of traffic offences. Such action is the practical demonstration of rule of law in a country.
In the light of democratic traditions, extra-judicial killings have no place in democracy because they are not only illegal but also unconstitutional and therefore alleged perpetrators must be accountable to their actions.
In Latin America, in the 70s, there were instances of numerous extra-judicial killings, in particular in Chile and Argentina. The former Chilean President General Pinochet (an octogenarian) is still being pursued in his country by the relatives of victims to put him to trial and the case is pending in the Supreme Court on the question whether Pinochet is entitled to legal immunity from criminal prosecution. In fact he was arrested in Britain in 1998 but was freed because of his poor mental condition.
interventions by courts
The High Court and the Supreme Court in India have been very vigilant on deaths at the legal custody and on crimes at the hands of the law-enforcing agencies. While deciding the cases of such deaths, the Supreme Court has not restricted itself to just punishing concerned personnel of the lawenforcing agencies but also has shown judicial activism by asking the government to pay compensation to the relatives of the victims
On 3rd February, 1995, the Supreme Court directed the Harayana government to pay an ad-hoc relief of Rs. Two lacs (200,000) to the relatives of a 22-year old youth of Delhi who died at the police custody in 1993.
In another case of Joginder Singh vs State of Uttar Pradesh ( 1994: SC: 3 JT), the Supreme Court held : " An arrested person being held in custody is entitled , if he so
requested, to have one friend, relative or other person who is known to him or is likely to take an interest in his welfare and told as far as practicable, that he has been arrested and where he is being detained".
uN Declaration on the code of conduct for law enforcement officials
The 1979 UN Declaration on the Code of Conduct of Law Enforcement Officials sets out a code of conduct for law enforcement officials, consistent with the high degree of responsibility required by their profession.
In the commentary, the Declaration states that the use of firearms is considered "an extreme measure". Every effort should be made to exclude the use of firearms. In general firearms should not be used except when a suspected offender offers armed resistance. In every instance in which a firearm is discharged, a report should be promptly to the competent authorities.
Article 2 of the Declaration states: " In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons".
Article 5 of the Declaration states among others: " No law enforcement official may inflict, instigate, or tolerate any act of torture, or other cruel, inhuman, or degrading treatment or punishment". Article 6 provides: " Law enforcement officials shall ensure the full protection of the health of persons in their custody and in particular, shall take
immediate action to secure medical attention whenever required."
All the above Articles of the Declaration lay down the strict conduct of law enforcement officials in dealing with suspected offender and in no case death or killing is contemplated by the Declaration because the primary duty of the law enforcement officials is to serve the community by protecting their human rights and protecting them against any illegal acts. Extra-judicial killings go against the spirit and letter of the 1979 Declaration of the Code of Conduct for Law Enforcement Officials.
Bangladesh, in terms of Article 25 of the Constitution, is obliged to respect international law and the principles enunciated in the UN Charter. Therefore it may be argued that Bangladesh is required to abide by the 1979 UN Declaration on the Code of Conduct for Law Enforcement officials.
concluding remark
The above paragraphs show that extrajudicial killings are against the norms of constitution, law-both domestic and international- and justice. Right to life can only be taken away in accordance with the law. In the Holy Qu'ran, Surah Anam ( IV): Verse 151 proclaims:
" Take not life which Allah Has made sacred, except By way of justice and law."
The author is former Bangladesh Ambassador to the UN, Geneva.