Cutting Off the Head to Mitigate Headache! : A Legal Insight to Extrajudicial Killing

Evnat Bhuiyan :

One of the grave concerns of Bangladesh is the rise of extrajudicial killings in recent years. A terrorizing tool of State that creates nothing but violence to the civil society, be it ‘Extrajudicial killing’, ‘lynching’, ‘fake killing’, death during ‘crossfire’, ‘encounter’, and ‘gunfight’- the list goes on. A new addition to this glossary is ‘vigilante killing’, an apparently similar kind of killing, spreading its bloody scratches in the face of the society now-a-days. Before we dive into the roots of deaths by both of these killings, it would be convenient to throw a searchlight upon the scenario of extrajudicial killing of our country in a nutshell.

Extrajudicial killing is unconventional and injurious to societal tranquility, a serious shock to the independence of judiciary and threat to the immutable and sacrosanct ‘right to life’ of a citizen. State is under a statutory obligation to protect its citizens’ lives that has been enshrined in many law provisions heightening the essentiality of right to life. One of the best Constitutions, along with finest law provisions, we have, like Article 31 and 32 of the Constitution of Bangladesh or an international one like Article 6(1) of the International Covenant on Civil and Political Rights, 1966 , of which we are a State party. But when it comes to the reality, the beauty of law does not always charms us and the irony here, turns the expected ‘savior’ of the people, State, into a ‘monster’. A statistics of the human rights organization ‘Odhikar’ shows that, the nation faced an outbreak of extrajudicial killing in 2018 where 465 people have been killed (much higher than any of the year for the last 10 years) among which 136 were killed by RAB and 276 by Police. A total 3,452 people have been killed extrajudicially in between 2001-2018, among which 1,074 people by RAB and 1,879 people by Police. 36 people have been killed in between January- June of 2019, an Ain-O-Shalish Kendro statistics says. Some other statistics of Odhikar also revealed 498 were shoot to death, 350 were torture to death, 42 were beaten to death, 2 were suffocated to death and 1 was hit to death from 2001- 2018 by LEA ( Law Enforcing Agency).

The prime dilemma of such alarming figure, is the complexity, legal uncertainty and absence of clarity in the law languages determining a reliable standard as to what basis and extent the killing by State will be permissible. Yes, law enforcers are empowered to apply force for preserving the public order, saving innocent lives and public property, but a good many ‘Why’ evolve around such empowerment when ‘killing’ is not used for saving the innocents and not used by the police as the ‘last resort’ or only in dire necessity. While exercising the power, police must apply ‘PLAN Principle’ that is- principle of proportionality, legality, accountability and necessity. Even if it is done legally, there is no visibly sufficient test to check the law enforcing agencies’ accountability to show a ‘just’ cause that, a person of a particular incident is actually killed in ‘good faith’ or ‘for the sake of keeping public order and peace.’ As a result, most of the extrajudicial killings are justified by the statutory agencies in the aforementioned grounds. Such loophole creates a room for the misusers of law language and so, committing ‘lawful killing’ for ‘unlawful’ purposes, fails to satisfy the criteria of being lawful.

Another reason according to many law-critics, is the practice of not questioning rather justifying or indemnifying the activities of police and RAB by the State. The statutory explanation of extrajudicial killings was always eyebrow-raising and has never been satisfactory so far. Like the extrajudicial killing of the accused in Rifat murder case, Noyon Bond, some of the heinous criminals are often killed without being tried in court and as usual a bunch of unspoken truth gets buried with the perpetrator, which would be subject to investigation if they were alive. Meanwhile, the killing of Noyon Bond has been warmly welcomed by public portraying it to be an example of establishing justice instantly. But it will act as a ‘Pandora’s box’ in the long run because Court is the only ‘shrine’ of ensuring justice and examining an accused applying Court procedures duly is the tonic to fasten that process.

Thinking extrajudicial killing a ‘First Aid’ to control crime rates, specially dealing with rape and murder cases, in the society, can be suicidal, because this killing itself is an impediment to ensure justice. Supporting such killing is a sheer disrespect to the Court and judicial body of a country. Killing a person will be as easy as pie and anyone, based on false presumption might be killed, once such killing get established as a norm. The reflection is already seen what the society is facing now in the form of mob killing. This is the fact why supporting extrajudicial killing is suicidal to State and society. It is akin to the denial of the entire legal system and a big question mark to the existence of Court. Such executive intervention has lead to a massive crackdown in the backbone of independence of judiciary resulting in an overall disastrous situation for national law and order system as well as social security.

The public perception of ‘instant justice’ provides a latent encouragement or an indirect facilitation to the extrajudicial killing, the ultimate consequential effect is being seen today in the form of mob killing. ‘Mob’ here denotes to a flock of agitating people acted upon a rumour with a doubt that someone has or may have involvement in any wrongful activity and killed an innocent out of anguish, instead of informing police. ‘Peace’ is being broken into ‘pieces’ now-a-days by mass killing, creating a social anarchy. The 2011 Aminbazar mob killing case has not been disposed of, where all the 60 accused are on bail.

Public glorification of killing in the name of ‘instant justice’ works as a ‘lifeline’ for both mob killing and extrajudicial killing because of the superstitous notion, the common people have about judiciary. Public anguish fluctuates while social injustices get increased that pushed them to give a thought to think negatively. They prefer to ‘kill’ a suspect rather than entering into the ‘cage’ of Court and police.

The case backlog, lengthening period of disposal of case, complicated Court procedures of getting remedy, political influence, lack of fairness in police investigation- torn up the trustworthiness of people upon the existing legal justice system. Thus, ‘justice’ is thought to be a rotten term for them and killing the accused has gained a ‘grant’ psychologically, as a right method to do justice. But law does not approve ‘instant justice’ as it cannot be done overnight. It does not mean killing a wrongdoer, even if he did a ‘wrong’ or killed a suspect based on mere assumption, without the actual fact analysis. That is the exact point where law has something to perform because such attempt can cause injustices to other party. To avoid injustices to person, to detect the actual wrongdoer, to determine the exact cause of action and to adjudicate fairly without being biased, the ‘Court’ was established. This is the first, last and the only place to seek justice and to get a fair decision over a matter of dispute. But whenever the Court is being neglected and people take the responsibility of judging a matter, it creates instability, insecurity, irreparable damages to a society.

Social media is another influential tool acting here because of the indiscriminate availability of electronic devices to people and uninterrupted internet usages, where there is no fixed guideline to the social media users in our country, anyone can circulate anything they wish. An outrageous disseminating a misinformation via facebook of dedicating ‘human head’ for Padma Bridge construction, very recently has snatched 8 innocent lives, who were suspected to be child kidnappers ,beaten and killed by the mob.

The main similarity between mob killing and extrajudicial killing is that in both cases, there is an extreme possibility of innocent people being killed, so both of these should be highly discouraged and the only difference between the two is, extrajudicial killing is being done by State organ and mob killing is done by mass people. So, applauding extrajudicial killing means ‘certification of illegality’ and if it becomes a norm, it will give ‘license’ to kill any people without reason, irrespective of being innocent or guilty and the sufferings then will not be able to be alphabetized! Then, what is the way-out?

The doctrine originated from the famous English case R v Sussex justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233), denotes that – “Justice should not only be done, it should manifestly be seen to be done”. Law enforcers need to introduce a Constitutionally-defensible and legitimate mode of investigation as well as prosecution, where the grounds of use of force must be direct and irrefutable. This will ease to determine the credibility of evidence against anyone’s spreading false propaganda amounting to public order offence. The Supreme Court of Bangladesh has a supreme duty to keep a check on the executive organ and the security forces of any Government to control abuse of power. Thus, judicial independence is a must. Application of section 57 of the Information and Communication Technology (Amendment) Act, 2018 should be cautious as well as other black laws like Special Power Act, 1974 or The Public Safety (Special Provision) Act, 2000. If we want the true reflection of the memorable saying of Martin Luther King Jr. – “Injustice anywhere is the threat to justice everywhere “, we must the concern extrajudicial killing and make appropriate fruitful action plans to reduce it.

The writer is a Student, Department of Law, Jagannath University.