The
Purgatory of Arrest
Are
our laws adequate to meet human rights demand?
Kawser
Ahmed
Death of the accused
in crossfire while being arrested by the law enforcing agencies has
become a common phenomenon in Bangladesh. The recurrence of like incidents
has given rise to a kind of public controversy throughout the country,
most of which generally point to some extra-legal reasons. Whatever
may be the underpinnings of those reasons, inadequacy of normative sanction
as to safeguarding a person at the time of arrest is also a major cause
for all these incidents. There is no denial of the demand that at present
criminal jurisprudence as well as criminal law should haul in the same
line of Human Rights; otherwise the administration of criminal justice
will fail to move with the times.
How
to Arrest
The procedure and manner as to how an arrest should be effected are
dealt with by the Code of Criminal Procedure 1898 (Cr. P.C.). Section
46(1) of Cr. P.C. has described in general how an arrest should be made.
Section 46(2) of Cr. P.C. says, "If such person forcibly resists
the endeavour to arrest him, or attempt to evade the arrest, such police
officer or other person may use all means necessary to effect the arrest."
That the word "all means" includes the power to use force
can be discerned from section 46(3) of Cr. P.C. Section 46(3) says,
"Nothing in this section gives a right to cause the death of a
person who is not accused of an offence punishable with death or with
imprisonment for life." The general construction of section 46(2)
and 46(3) gives the impression that if any person does not submit himself
to the arresting authority may be arrested in any manner. Section 46(3)
puts a thin restriction on the power given to police in section 46(2)
that police officer is not allowed to use force morbidly (but may use
force to incapacitate him) to arrest an unruly offender who is not accused
of offence punishable with death or imprisonment for life. So finally
the meaning of section 46(3) stands as such, the police officer is given
the right (section 46(3) contains the word "Right") to shot
a person dead resisting the arrest if accused of offence (not convicted)
punishable with death or imprisonment for life.
The make-up of section
46(3) seems quite aberrant because it does not possess the meaning of
"arrest" in real sense, the simple reason is anywhere in the
world arrest means the process of bringing a person under police custody
alive, not to kill him. The matter of eyesore of this section is that
nothing is stated about the degree of force to be applied by the police
at the time of arrest. So a police officer can easily get away with
impunity if he injures an accused where it is not at all necessary,
or hurts any one grievously where a small injury would do the purpose.
After all these, even if a police officer is accused of abuse of power,
he can invoke section 76 and 79 of the Penal Code 1860 as a bulwark
against it on the excuse that whatever he did was in good faith and
by mistake of fact. About unlawful arrest, the position of law in relation
to a person is negative. A person cannot resist unlawful arrest as Section
99 of the Penal Code states no private defence is admissible against
any act done by a public servant, which does not cause apprehension
of death or grievous hurt, though the act may not be justifiable by
law. The net result is the police enjoy a general immunity under these
sections of Cr. P.C. and Penal Code.
A
glimpse of Jurisprudence
From the viewpoint of Jurisprudence, laws regarding arrest suffer from
an unbalanced combination of jural relation of power, liability, immunity
and disability. The police have the power to arrest the accused implies
that the accused are under liability (as jural correlative of power)
to comply with it, have no immunity (as jural opposite of liability)
against such power, and have absence power against police activities
(as jural contradictory of immunity). If we put it the other way round,
for example, the accused are liable to section 46 implies that the police
have power against the accused (as jural correlative of liability),
have no disability (as jural opposite of power) to act, and have absence
of liability (as jural contradictory of disability) for it. As we have
seen the police by deploying the provisions of the Penal Code as shield
can enjoy a kind of immunity; the effect will be, the penal laws will
suffer from disability (as jural correlative of immunity) to take account
of police responsibility, and will be powerless (as jural opposite of
disability) against the police. So it is clear that excess power of
police has largely wiped away their accountability. The ultimate question
is how to solve this riddle? The answer is straightforward; the said
jural correlatives, opposites and contradictories should be dovetailed
in a way in order that the balance of relationship between the police
and the accused dose not tilt so much in favour of the former. To this
purpose, the nearly unlimited power of police should be trimmed down
on the one hand and on the other some positive rights should be created
in favour of the accused to make the activities of police duty-oriented
(as jural correlative of right). In addition to that, the police may
be inundated with some positive responsibilities as to the manner of
carrying out arrests.
Constitutional
Viewpoint and Human Rights
The relation between the constitution of the People's Republic of Bangladesh
and the provisions of Cr. P.C. is solely incongruous. Article 31, 32
of the constitution have strictly spoken for protection of law against
any act detrimental to life, liberty, body, reputation or property of
any person save in accordance with law. As per the concept of natural
law, the word "law" does not remain to be mere legal procedure,
but fair and reasonable procedure of law. Now where does the honour
of these articles lie when the police have power under Cr. P.C. to apply
force indiscriminately to take away life or to injure anyone physically,
which is further strengthened by the provisions of Penal Code? The vires
of section 46 of Cr. P.C automatically comes into question. And what
is more, the section 46 of Cr. P.C. also constricts the enjoyment of
other fundamental rights enshrined in article 33(1), 33(2) and 35 of
the constitution because those rights have utility only for living persons.
If violation of fundamental rights is regarded as unconstitutional,
any impediment to enjoy them should also be regarded so.
As our constitution
has incorporated almost all civil and political rights as fundamental
rights, the leading edge interpretations of constitution are expected
to come from human rights approach. The right to life, liberty and security
against arbitrary deprivation embodied in the Universal Declaration
of Human Rights and International Covenant on Civil and Political Rights
has been already set forth as international standards for treating persons
all over the world. The sooner we will realize that a person who is
accused of an offence is at first a human being; before his guilt is
proved he is not an offender, the sooner we will step towards right
path.
Conclusion
Without much effort, it is possible to extrapolate that Cr. P. C. and
Penal Code were designed to serve colonial purpose. We have ceased to
be colony, yet our faith in colonial laws has remained more than those
of our former colonialist rulers. Contrary to our law, in UK the Criminal
Law Act 1967 says, "A person may use such force as is reasonable
in the circumstances in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders or
of persons unlawfully at large" (section 3). A similar provision
is present in section 117 of the UK Police and Criminal Evidence Act
1984. A clear reflection of article 2 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms is noticeable.
Misapplication of force by reason of mistake of fact is not excused
there. What should we do now? Our legislature is not bound to amend
or enact good laws for anyone's sake, yet our judiciary can declare
bad laws ultra vires. So the Supreme Judiciary can take it upon itself
to declare them void and set down guidelines as to manner of effecting
arrests. And by means of constitutional provision, they will have the
force of law as good as any statute. This may be an evasion, but sometimes
the end justifies the means.
The
author has graduated from Department of Law, University of Dhaka.
