Reviewing the views
Cross-examination
of Crossfire
Dr.
M. Shah Alam
I
sometimes wonder who first conceived of the idea of crossfire
to give it to an elite force specially created to cope
with deteriorating law and order situations in the country.
The person who so conceived of the idea must have deeply
observed the conditions in the country and felt alarmed
at their possible outcome. I want to believe even a sense
of patriotism may have moved him to put forward the idea
of crossfire to be implemented by a special force. Logically,
master-mind of the doctrine of crossfire must have great
influence and authority on the party in power. He must
have pleaded with the policy makers and convinced them
that the weaknesses and lapses of the existing criminal
justice system in the country could not be overcome overnight,
and that, given the socio-political reality in the country,
god-father backed and under-world oriented crimes would
not be easy to deal with in any short-term duration. Alternatives,
therefore, must be found at least for temporary healing
of the disease to arrest onrushing catastrophe.
The
person who foresaw such a short-cut to taking care of
the hardened criminals must also be well-versed with legal
and linguistic meaning and implication of the terms like
self-defence, crossfire, encounter, engagement, exchange
of fire, line of fire, skirmishes, raid etc. He must have
well prepared his arguments in defence of various use
of his fire power. These terms on occasions may have been
misapplied or even misused by the executing agency, but
the founder of the entire idea believes these terms provide
some ground for defence. His men can always say they acted
in lawful self-defence, or suspect 'x' and 'y' were the
victims of crossfire, or the victims were the results
of some en-counter or engagement or exchange of fire with
armed goons. Immediate results are some relief in the
community, for some hardened criminals fall in the line
of fire.
Notable,
the word crossfire has now acquired new connotation to
symbolise all other forms of fire. Also notable, Rapid
Action Battalion (RAB) as well as some other law enforcing
agencies who aspire to catch up with RAB in firing competition
got kudos for their action. On the other hand, many members
of the civil society, newspaper columnists, experts, human
rights groups, both national and international, have expressed
grave concern over long-term outcome of emerging crossfire
culture. Reasons for concerns are obvious, for it is anybody's
guess and common knowledge that in most cases crossfire
is planned killing of criminal-suspects, and hence it
is extra-judicial elimination. We believe policy makers
are not unware of the risks the nation faces for such
killing. Yet, they are blinded by short-term gains and
some immediate bahbas that may accrue to party in power.
Abnormal method of eliminating suspected or socially identified
wrong-doers cannot serve any panacea as operation clean-heart
tried earlier has so proved.
To
take a fresh view of crossfire, let us be reminded of
the following.
1. One of the measures of civilisation is that killing
cannot be retaliated by killing. Killer has to be apprehended
by executive organ of the state to be prosecuted and brought
to justice by judicial organ. This is a fundamental demand
of constitution as well as of any civilised society. Punitive
measures taken at executive level would mean ignoring
and discrediting the judiciary seriously undermining the
imperatives of rule of law.
2. One of the fundamental principles of criminal law in
any legal system is that accused is presumed innocent
unless proved guilty beyond reasonable doubt after litigation
has been conducted in a competent court under due process
of law, which, inter alia, includes, accused's right of
defence.
3. To provide all opportunities of defence to a 'popularly
identified criminal' who may have committed gross violations
of human rights is not merely protecting his right of
defence, but it also means upholding a principle violation
of which would put at jeopardy human rights of many more.
4. Executive elimination of suspected criminals also eliminates
witnesses to crimes who could provide valuable information
about actual commission of crimes and other accomplices
including god-fathers, if any.
5. Crossfire is virtually sort of license to kill almost
without accountability, and with impunity. This would
one day induce the individuals and agencies authorised
to use crossfire to settle personal scores with others,
and more alarmingly, could be used by the government to
settle political scores cutting the trees of democracy
at the roots.
6. There is in essence little difference between public
beating of the suspected criminals to death and death
by crossfire.
7. We are a part of a civilised and globalised world.
There are definitely terrorism, violence and killings
in other parts of the world as well. However, to our knowledge,
no country in the contemporary world has officially sanctioned
or condoned crossfire sort of killing. We as a nation-state
has not broken down, but we are passing a wrong message
to outside world.
8. Killing the killer without trial has brutalising effect
on the society, which could be catastrophic in the long-rune.
Crossfire killing has created panic not only amongst criminals,
but has engendered general fearsome atmosphere and a sense
of uncertainty in the society which does not contribute
to growth of healthy citizenry.
Crossfire
indicates many ills of our polity and society. First of
all, it is a desperate attempt to keep crimes under control.
Second, it points to serious failing of our criminal justice
system. Third, many of the hardened criminals the so called
top terrors enjoy political shelter, and are able to manipulate
law enforcing agencies to evade justice. Fourth, victim-support
and witness-protection is a formidable problem in our
criminal justice system. Fifth, god-fathering of crimes
is becoming a part of our politics. Sixth, even despite
good intention and sense of urgency of bringing the criminals
to justice, the government does not feel sure that it
can do so after law enforcing agencies have arrested the
suspected criminals.
There
have been many suggestions, and these are widely discussed
issues, to improve governance in general and criminal
justice system in particular, which would render resorting
to any abnormal method like crossfire unnecessary. First,
separation of judicial magistracy from executive to stop
political interference in the administration of justice;
second, taking investigation and prosecution of crimes
out of executive control, and formation of independent
agencies or services to investigate and to prosecute;
third, effectively addressing the problem of delay in
the dispensation of criminal justice, if necessary, by
further amending Cr.PC, one such proposed amendment being
to use the experiences of inquisitorial procedure as practised
in civil law system in the Continental Europe which provides
more initiative and freedom to trial judges in the process
of litigation; fourth, providing for summary trials in
selective cases by way of forming special tribunals; fifth,
preserving a special force like RAB, but taking care to
ensure that they only arrest and do not kill, and hand
over the arrestees to appropriate authorities.
Suggestion
has even gone such length as to put under question one
of the cardinal principles of administration of criminal
justice that onus of proof always lies with the prosecution,
and it shall never shift to defence. The question is whether
under certain circumstances the accused may be compelled
to produce evidence in support of his defence. We believe
the fundamental principle of onus being on prosecution
ought to be upheld. However, some benefits of onus being
shifted in special cases may be derived from giving more
power and initiative to the trial judges as mentioned
above.
To
conclude, extra-judicial killing by way of crossfire is
the unfortunate outcome of intervention of various socio-political
forces during the period between arrest of the suspected
criminal and the time when he is to be committed to administration
of justice, which result in many escapes from justice,
leaving many hardened criminals at large. Extra-judicial
killing is no alternative. It is rule of gun. We need
rule of law. However idealistic it may sound, only alternative
that remains is to abide by the basics of good governance,
to make necessary reforms of the administration of criminal
justice and to implement them by honest efforts made by
various agencies and organs of the government.
The
author is a professor, Department of Law, University of
Chittagong.
