Bangladesh top court declares indemnity law illegal

The High Court yesterday scrapped a law that had legitimised all actions under a controversial criminal hunt called Operation Clean Heart in 2003.

Declaring the Joint Drive Indemnity Act 2003 illegal, void abinitio (dead from the birth) and unconstitutional, the court ruled that any member of the families of victims of the operation can file cases with the lower court against those responsible for torture and custodial death of their relatives during the joint drive.

Families can also seek compensation from the government through the High Court or any other court, said the HC bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal.

The BNP-Jamaat led four-party government had passed the act to give immunity from prosecution all those who carried out the countrywide operation between October 16, 2002 and January 9, 2003.

Around 24,023 army and 339 navy personnel along with BDR, police and Ansar members were involved in the anti-crime drive.

As many as 57 people died in custody and hundreds suffered injuries in torture during the operation, according to the writ petition.

However, the then government put the toll at 12 and said all the victims died of heart attack in hospitals after being handed over to police.

The joint force had arrested 11,245 people, including some 2,482 listed criminals, and recovered 2,028 firearms and 29,754 bullets.

In the absence of a parliament session, the BNP-Jamaat government first promulgated an indemnity ordinance on January 9, 2003, hours before the operation ended.

The ordinance was signed into a law on February 24 the same year, drawing a barrage of flak from a cross-section of people, including eminent lawyers and rights activists.

Nearly a decade after its passage, Supreme Court lawyer ZI Khan Panna filed a writ petition with the HC in 2102 challenging the indemnity law, the second of its kind in the country.

On July 29, 2012, an HC bench issued a rule upon the government to explain why the act should not be declared unconstitutional. The court also asked the authorities to explain why they should not be directed to create a fund of Tk 100 crore to compensate the victims of the drive.

In its reply, the home ministry recently informed the court the government had no information that anyone died of torture in the joint force's custody during the operation, Deputy Attorney General Motaher Hossain Saju told The Daily Star. 

Giving its verdict yesterday, the HC observed that every human being had an inherent and fundamental right to life and that no one could be deprived of this constitutional right.

Torture and death in law enforcers' custody is not permitted by the law, the court said, adding that the Joint Drive Indemnity Act 2003 was against the rule of law.

The law was in violation of fundamental rights and constitutional provisions of equality before law and right to protection, the court said.

Although the Jatiya Sangsad is sovereign in making laws, this sovereignty is subject to the constitution and therefore it cannot pass any law against the fundamental rights of the citizens, the court noted.

All citizens are equal before the law and nobody, including members of law enforcement agencies, is above the law. Therefore, there is no scope for giving wholesale indemnity to the individuals or members of joint force or law enforcement agencies, the bench said.

It added any form of torture of citizens in custody of joint force and law enforcement agencies was illegal, as law did not permit physical or mental torture of any accused person during interrogation.

The HC observed that law enforcers could not take law in their own hands, and by doing so the members of joint force under Operation Clean Heart infringed the rule of law.

The court said hundreds of people had reportedly been injured and maimed and thousands of their family members suffered and were deprived of earnings due to the actions of the joint force during the drive.

The HC bench thanked ZI Khan Panna for filing the writ petition.

The court said another impunity law had been promulgated to stop trial of the killers of Bangabandhu Sheikh Mujibur Rahman and his family members, but nobody ever challenged that law.

The infamous ordinance had shielded the assassins of Bangabandhu, his family members and others.

The Khondker Moshtaque Ahmed regime issued the ordinance after assuming power through the coup and the bloodbath of August 15, 1975.

Later, the ordinance was ratified in parliament in 1979 through the fifth constitutional amendment that also legitimised the military rule of Ziaur Rahman.

The Awami League government led by Sheikh Hasina, one of the two surviving daughters of Bangabandhu, repealed the act in 1996.

Yesterday, petitioner's lawyer Shahdeen Malik told reporters that the members of the joint force had been kept above the law through formulating the Joint Drive Indemnity Act 2003, as nobody could file any case against them.

But through its verdict, the HC has brought the members of the joint force under the law, he added.