Is Bangladesh a ‘crossfire’-state?

We need to find a way out of this unfortunate political reality. We need to build a pluralistic and decentralised democracy so that the law enforcement forces & state mechanisms run with the people’s money cannot be used to kill or repress different sections of the citizens. Bangladesh will not be free from the scourge of destructive state power without transforming the colonial oppressive state structure into a people’s republic; into a state that is fully accountable to its citizens.

 

 

The prevalence of ‘extrajudicial killings’, popularly known as ‘crossfire’ killings in Bangladesh, is seen in different countries of the world as a matter of ‘state of exception’. But in Bangladesh, the pace of continuity of such state killings in the pretext of ‘crossfire’ is unprecedented when compared to other countries. The current culture of extra-legal killings can no more be called a ‘state of exception’; instead, ‘execution in crossfire’ is the rule in Bangladesh.

 

 The Breeding ground of crossfire

 Between January 2004 and June 2005, 421 people were killed by law enforcement agencies; 330 of them were killed in crossfire incidents. Since then, crossfire killings have continued in Bangladesh. According to Ain O Salish Kendra (ASK), a Bangladesh based human rights organisation, this number is increasing every year.

ASK’s report only takes into account the deaths in crossfire incidents that have been referred to in the newspaper as ‘crossfire deaths’.

The table depicted in the cover image gives a list of ‘extrajudicial’ killing from 2013 to 2019.  Deaths and crossfire deaths in police shootings are shown in the same category. Most of the deaths at the hands of law enforcement personnel are in crossfire incidents. Others include physical abuse, suicide, illness, or ‘mysterious death’. Most of those who died in the crossfires died even before they were arrested.

It is clear from the table that the number of deaths in crossfire has been steadily increasing for the last seven years. In 2016, this number increased by almost 3 times. Most of the deaths in crossfire between 2016 and 2019 were part of the so-called ‘anti-drug’ campaign.

 

 War on the people & ‘Crossfireism’

The most recent crackdown came after Prime Minister Sheikh Hasina made a speech pledging to curb drug problems. Many compared it to the Philippines’s controversial war on drugs that has triggered criticism from rights groups.

The ‘war on drugs’ has been a massive failure worldwide, a campaign first initiated by the Nixon administration back in the 1970s in the United States; its client states later followed suit. Noam Chomsky, an internationally acclaimed intellectual, thinks that “the war on drugs” provides a cover for intervention, globally; whereas, domestically it has little to do with drugs but a lot to do with distracting the population, increasing repression in the inner cities, and building support for the attack on civil liberties.

Brutal killings under cover of the ‘war on drug’ campaign do not end Bangladesh’s struggle to contain drug problems. Simultaneously, the killings of drug peddlers in anti-narcotics raids are continuing. More deaths in “gun violence” have been reported from different districts since the crackdown. Bangladesh’s law enforcement authority faces severe criticism over its treatment of the alleged drug lords as the killings violate the offenders’ right to life and a fair trial. As of today, the government is yet to pay heed to the criticism and opposition it faces.

However, the crossfire related deaths that regularly take place in Bangladesh should not be seen as ‘extrajudicial killings’; in the case of Bangladesh, the crossfire related deaths are, in fact, ‘judicial killings’. It transpires that that various sections and sub-sections of the existing constitution have paved the way to legalise ‘crossfire killings’. From crossfire deaths to the typical press notes circulated through media, to the relevant constitutional clauses and sub-clauses, there is a system that provides legitimacy to state killings, which can be termed as ‘crossfireism’: a scheme run with the fuel of crossfire. Thanks to my friend and comrade Sohul Ahmed for coining this term.

 

The ‘legal’ trap of crossfire

Many who are accustomed to the monotonous reading of the Constitution interpret the sentence of section 32 ‘No person shall be deprived of life or personal liberty save in accordance with law’ as a constitutional guarantee of life and personal liberty. However, when deconstructed, the section actually provides the leeway to deprive a person their right to life and personal liberty well in accordance with the law. The constitution clearly has confiscated the unconditional right to life and liberty under the grasp of the law. Under such a scenario, ‘in accordance with law’ simply becomes the carte blanche for the state authority to exert power. Laws such as these do not ensure justice.

Moreover, the conditional rights guaranteed in section 32 of the Constitution have blatantly been taken away in section 46:

 ‘Parliament may by law make provision for indemnifying any person in the service of the republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh or validate any sentence passed, the punishment inflicted, forfeiture ordered, or another action is done in any such area.’

This means that the state can do whatever it wants and indemnify ‘any deed’ by ‘any person’ in the name of maintaining or restoring peace and order. The ‘War on Drugs’ campaign is carried out in the pretext of maintaining ‘discipline’ within the country. As a result, even the killing of a drug peddler by another drug peddling group during a gunfight can be seen as restoring ‘law and order’, ‘discipline’ under this section.

Killing a citizen or depriving them their right to life is considered as ‘legal’. Section 46(3) of the Code of Criminal Procedure is a section that sets out what the law enforcing agencies can and cannot do to make an arrest.

‘Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.’

In other words, if a person is involved in a crime punishable by the death penalty or life imprisonment, then this particular section gives the law enforcing agencies the right to kill that person in the process of arresting them.

Under this section of the Criminal Procedure Code, judicial power has been given to law enforcement agencies. It is a blatant attempt to deny anyone the opportunity to delineate the crossfire or encounter related deaths as ‘extra-judicial’ killings.

Against this backdrop, a number of questions could be raised. What will be the method to determine whether the killing is done to ensure arrest or to exercise self-defence? Has the killing been executed ‘in good faith’?  Are such extra-legal executions the political decision of the government? Did the Police act as a mercenary force to satisfy someone’s personal grievances?

Section 76 of Chapter 4 of the Penal Code states that “Nothing is an offence which is done by a person who is, or who because of a mistake of fact and not because of a mistake of law in good faith believes himself to be, bound by law to do it.” This clause is further explained so that no confusion arises in understanding what it really indicates, “A, a soldier, fires on a mob by order of his superior officer, in conformity with the commands of the law. A has committed no offence.” The irony does not end here. Under Section 100 of the Penal Code, members of any law enforcement agency have the right to shoot or kill in ‘self-defence’.

All these arrangements to kill people with pure impunity have therefore been made under the constitutional framework. It is pertinent to note here that police regulation act, penal code, criminal procedure act all are regarded as ‘law’ under the constitution.

 

 The way forward

The ‘by law’ approach is a straightforward one for the government forces. Murder by police will be investigated by the police; at best an executive magistrate will approve the investigation report. If the investigation shows that the accused was forced to shoot or kill, it means that it was their ‘duty’ to kill.

What is alarming is the fact the authority of this investigation is the police’s alone, no one on the side of those who are murdered or an independent figure from the civil society, human rights organisation or other autonomous institutions has a chance to be a part of the investigation. Even Bangladesh’s supposedly ‘Independent’ Human Rights Commission lacks the mandate to intervene in the investigation.

Clearly, there is a legal provision in Bangladesh to kill anyone without trial and to exonerate the killers subsequently.

Those of us who are concerned about these heinous killings, those of us who cannot accept the indiscriminate slaughtering of people at the hands of the police or other state forces, those of us who want to put an end to such practice, what recourses do we have? The following steps should be taken immediately.

1. If the police or any other state agency is accused of extra-judicial killing, the police or that force will not be able to investigate.
2. Every extrajudicial murder case must be entitled to an independent investigation.
3. The state cannot legislate any indemnity to legalise murder.
4. The verdict of the court cannot be quashed by any executive order. The judiciary must be separated from the executive and legislative branches of the government. More specifically, the current pyramidal power structure must be brought under check & balance.

In addition to these immediate steps, in order to change the current murderous character of the Bangladeshi state, the colonial administrative laws and their bastion, the despotic structure of the constitution, should be reformed.

We need to find a way out of this unfortunate political reality. We need to build a pluralistic and decentralised democracy so that the law enforcement forces & state mechanisms run with the people’s money cannot be used to kill or repress different sections of the citizens. Bangladesh will not be free from the scourge of destructive state power without transforming the colonial oppressive state structure into a people’s republic; into a state that is fully accountable to its citizens.

 

 

Sarwar Tusher is an author and activist; interested in studying the state, power, authority, sovereignty, violence, and social relations.