No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” — Theodore Roosevelt
Donald Trump and Boris Johnson are two of the most powerful men on Earth. While the former is facing an impeachment hearing, the latter has recently been “admonished” by his country’s Supreme Court for indulging in unlawful acts. If the citizens of the USA and UK had any doubts about whether the rule of law still proclaims in their respective countries, that nobody is above the law, then these events are likely to reassure them.
In Bangladesh the Constitution guarantees its citizens equality before the law. However, the general perception has always been that certain people are above the law. That their political and financial powers are so overwhelming that they comfortably remain beyond the reach of the law. Successive governments have found this challenge too insurmountable. Until now that is.
The government’s recent anti-corruption drive has proved to be more than a mere gimmick. People who have heather-to been roaming around with impunity, have been jerked into the realisation that in spite of reaching dizzying heights, the law has suddenly overtaken them. Whether this drive runs out of steam or whether the legal system is able to deliver justice while ensuring the rights of the accused, remains to be seen. Nevertheless, Bangladesh may, probably for the first time in its history, claim with some justification that nobody is above the law. But this is only part of the story.
While the idea that the rule of law proclaims that nobody is higher than the law evolved from Aristotle through the Magna Carta and other historical milestones, it was professor Dicey who articulated that the rule of law also guarantees that nobody is so low that they are outside the protection of the law. This principle establishes that under the rule of law, a citizen, regardless of how harmful or despicable his behaviour is, still has rights under the law which includes right to life that no state apparatus can take away arbitrarily.
It is the police force which is entrusted with apprehension of those suspected of crimes and safe delivery of them to the justice system. It is well recognised that on rare occasions a police officer, to save his own or others’ lives, may need to neutralise a suspect by killing him. But if a government has no credible mechanism, whereby every such incident is independently investigated, then that government’s credentials in upholding the rule of law is legitimately questioned.
In England the law requires that every death in police encounter is investigated and details published by a statutory body, called Independent Police Complaints Commission (IPCC). The information regarding deaths in fatal shootings shows that since 2007, such deaths have ranged from zero (in 2013 and 2014) to 6 (in 2016) with average of two deaths every year. If the IPCC finds that an officer has not used unlawful force then he is exonerated. In a minority of cases, recommendations are made for prosecution of the officer concerned.
In the USA the picture is more complex. A country with loose gun laws, on average 850 fatal shootings by police take place every year. A disproportionate number of victims are young black men. While investigations at various levels take place after each such incident and some officers are prosecuted, the objectivity of these investigations are widely questioned. The campaign “black lives matter” highlights these failures and demands corrective measures.
While figures for death by police shooting vary greatly from country to country (Iceland and Switzerland consistently score zero while the figures for Venezuela and Brazil are usually above 5,000), most countries have investigating mechanisms in place, albeit some of dubious credibility, to reassure their citizens that the police are not a law unto themselves. It is a matter of great regret, that that there is irrefutable evidence that this is where Bangladesh scores abysmally.
The Constitution of Bangladesh proclaims no person shall be deprived of life except in accordance with law. Bangladesh is also bound by its obligations under the Universal Declaration of Human Rights as well as several human rights treaties to protect the right to life. It is also obliged to bring to justice those responsible for unlawful killings. Human rights organisations have documented 466 deaths in 2018 as a result of “gunfights” with police (for the purpose of this article the term “police” includes rapid action battalions and border guards Bangladesh). The figure for this year thus far indicates that there has been no let up.
Carefully released information after each incident asserts that the police acted in self-defence, with no hint of an independent investigation to verify. Indeed, in many cases such investigations may exonerate the officer concerned, but lack of any investigation brings the government’s commitment in upholding the rule of law into question and damages the reputation of the police.
The carefully released information further asserts that the person killed was either a drug dealer, or had numerous criminal cases pending or they are dangerous dacoit. The underlying message is that these people are evil, they are somewhat beneath the law and the elimination of such people should not concern the law-abiding citizens,
Such messages may be categorised as an assault on the rule of law. It challenges the truisms that a person is innocent until found guilty by a court of law, and that every life matters. A suspect, regardless of how sure the police are of his crimes, remains innocent until a court determines whether he is guilty following the due process of law.
Killing of a suspect deprives society it’s right to see that that perpetrator of an alleged crime faces the justice system and is dealt with in accordance with the law. Also, the victims of such acts are not only the persons killed but the families they leave behind. The state fails them by failing to protect their loved ones and to provide any remedy or redress. Indeed there is no closure to their sense of being at the receiving end of state injustice.
The world’s understanding of Bangladesh’s records in this regard, quite predictably, is not favourable. The World Justice Project’s rule of law index for 2019 ranks Bangladesh at 112 out of 126 countries. Bangladesh’s ranking almost touches the floor at 119 out of 126, in respect of fundamental rights including the right to life. The UN High Commissioner for Human Rights has spoken out against Bangladesh authorities: “total disregard for the rule of law”. The recently published Amnesty International’s report on Bangladesh entitled “Killed in Crossfire” makes grim reading.
The government of Bangladesh would be well advised to take immediate corrective measures to ensure that all citizens have equal rights to the protection of the law and nobody is beneath the law. It should establish an independent body to investigate all deaths in police confrontation with powers to exonerate or recommend prosecution as the case maybe. A people that sacrificed 3 million lives for democracy, justice, and the rule of law deserves no less!
Najrul Khasru is a British Bangladeshi barrister, and a part-time tribunal judge in England.