Star 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).
Photo:AFP |
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 law-enforcing
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 extra-judicial 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.
