Finding fact in the crossfire
AS extrajudicial killings continue to dominate news in Bangladesh, the National Human Rights Commission's first probe into a crossfire death provides some respite. The report, submitted to the home ministry last week, identifies serious discrepancies in the police's version of 41-year-old Rajab Ali's death in the early hours of 16 February 2014. The police have trotted out their usual crossfire narrative: Ali was arrested for armed robbery and taken to a village to recover the firearms used. Ali's accomplices then opened fire on the police team and he was shot in the gunfight when the police returned fire. Ordinarily, this would be the end of Ali's story; there would be no further investigation, his case would be closed and yet another signal would be sent to the police fraternity that they may act with impunity. Thanks to the unprecedented actions of the NHRC, however, Ali's story may break the mould.
In a society governed by rule of law and the right to life, every suspicious death warrants investigation. The law in this area does not discriminate. The Penal Code provides that any person who kills another is guilty of culpable homicide unless it is established that such killing was not an offence. This applies as much to a police officer as it does to an ordinary citizen.
No doubt, police officers may encounter circumstances that justify the use of lethal force. As in Ali's case, a police officer who has caused the death of a citizen might claim he was acting in self-defence. This is all well and good. However, a police officer cannot simply assert such a defence -- he must prove it in court. Section 99 of the Penal Code specifically provides that the right of private defence in no case extends to inflicting more harm than was necessary. This element of necessity needs to be proven through evidence at trial. It is only when such claims are investigated and their veracity confirmed, that the police will enjoy the public's confidence. Otherwise, doubts will linger that purported crossfire deaths are concocted and, at worst, mask pre-meditated killing.
The reality, as we all know, departs wildly from legal procedure. In purported crossfire incidents, there is no attempt made to ascertain whether the police officers who fired bullets resulting in death were legally justified in doing so. Instead of following well-established legal principles, the police officers' claims are taken at face value: no FIR is registered against the police officer concerned, no investigation ensues and the police officer gets off scot-free. The insularity of the system allows the police institution to protect its brethren: it is the police that will decide whether to register a case and it is the police that will conduct the investigation, if at all.
Despite this insularity, the law provides only a small measure of external oversight. Under the Code of Criminal Procedure, when a person has been killed under suspicious circumstances, a district magistrate may hold an inquiry to ascertain the cause of death. This inquiry may be instead of or in addition to the investigation held by the police. The law must go much further. Firstly, the inquiry is not mandatory and, as a result, few such inquiries actually take place. Secondly, it is conducted by the executive. Other jurisdictions and international standards call for a judicial investigation into suspicious deaths to ensure true independence. The law in Bangladesh falls short by not requiring this level of scrutiny.
To add to this grim state of affairs, the NHRC -- ostensibly designed to check against human rights violations by the State -- is not even empowered to conduct an investigation when it concerns the police. Under Section 18 of the National Human Rights Commission Act, 2009, the most the NHRC can do with respect to the so-called "disciplined forces" is to request investigation reports from the home ministry, which oversees the police. The NHRC has sent around 200 letters related to crossfire deaths and other human rights violations to the ministry this year alone. Of course, no action has been taken in a single crossfire case.
It is in this context, then, that we must view the NHRC's actions of last week. In Ali's case, instead of submitting a letter expressing its concerns, the NHRC submitted a full-blown fact-finding report. The report was prepared after a three-member committee visited Jessore and met with Ali's relatives and members of law enforcement agencies. The committee also examined the FIR filed by the police, the general diary of the police station and the hospital's post-mortem report. After a four-day mission, the NHRC came to a disturbing conclusion. It found that the circumstances surrounding Ali's death did not involve a gunfight and his shooting by the police was not done in self-defence.
It is this kind of pro-active approach that we look to the NHRC for. There is nothing in its constituting legislation which prevents it from taking cognisance of a case suo moto and conducting a fact-finding mission. Between a police institution unwilling to investigate killing at the hands of its officers and an inadequate legal framework, it is heartening to know that at least one institution is searching for the truth. Now that the home ministry has the NHRC's report, one can only hope Ali's death will be thoroughly investigated and that, one day, the police's engrained culture of impunity will be replaced with one of integrity.
The writer is Programme Officer, Commonwealth Human Rights Initiative.
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