Introduction:
Imagine someone, sitting at his residence, browsing internet and
relaxing after a long exhaustive period of works. All of a sudden, the doorbell
sound is heard. He opened the door and got arrested by the police without any
warrant and no knowledge of that accusation. Imagine someone, rushing from work
to hospital to pay his mother’s operation bill so that the operation can take
place. Right in the middle of the road, he got scammed by scammed by the
scammers who wearing fake police dresses and having false identification.
Identifying the fake police badges, he asked for the reason and warrant of that
allegation. But without any further interrogation, the police officers showed
you the Section-54 of The Code of Criminal procedure, 1898. Well, these all are
not the imagination at all. In recent days and in the past histories, it is
found to be very common in our country. The activities of law enforcing
agencies is going out of control day by day. They are called the safeguard of life
but now a days they are becoming furious to people. They are continuously
abusing their power everywhere. By using section 54 and 167 of The Code of
Criminal Procedure, 1898 which contains the power of police to arrest without
warrant due to reasonable complaint and credible information, they are
arresting people and making harassment people without any reason. Sometimes
they arbitrarily arrest innocent individual and injured them and caused harm
just to show their power which is not in favor of human kind and justice,
freedom, right to life ensured by the constitution. Even, several custodial
death and torture had taken place due to this abuse of this power of Section-
167 of CrPC, taking the accused into remand, which violates the fundamental
rights of the citizens. BLAST and Others and Bangladesh and Others. CIVIL
APPEAL NO: 53 of 2004, is a landmark case of the Appellate Division of
Supreme Court in which the citizens seek for the protection of Section- 54, 167
and 176 of CrPC while the government seek for its power of legislature which is
free from the all body of administration enshrined by the constitution.
Fact of the Case:
On 23rd July, 1998, a student
named Samim Reza Rubel studied BBA in Independent University, Dhaka got
arrested under Section-54 of CrPC and was cruelly beaten up into the police
custody. Then the police took him to Dhaka Medical college and the doctor
declared him as death. Following the abuse of power of police, his father
demanded a judicial inquiry. Afterwards, the government through the Ministry of
Home Affairs made a judicial inquiry commission. The commission asked for the
execution of a set of recommendation made by them but no action was taken by
the government to prevent custodial torture.
This news was published in almost all
national daily newspapers, political parties, students, human rights activist,
teachers, lawyers, NGOs were deeply shocked and protested against the system.
Under that circumstances, three national organizations namely The Bangladesh
Aid and Service Trust, Ain O Shalis Kendra, Shommilito Samajik Andolon and
others filed a writ petition to the High Court Division in 1998. The petitioner
referred several allegations of custodial death, torture, inhuman treatment and
gross abuse of these power specially killing of the young boy Rubel under
Section-54 of CrPC.
Subsequently, The High Court Division
pronounced its judgment on 7th April, 2003 in which it determined
that Section-54 and 167 of CrPC seek for the amendment on the ground of police
arrest without warrant and take persons to the custody(remand) and found it
inconsistent with the constitution. The court then issued some recommendation
to parliament for amending these sections and issued 15 guidelines to be
implemented immediately by the magistrate and The Law Enforcement Agency to
prevent the misuse of power.
The government got aggrieved by the
decision made by the High Court Division and has referred an appeal to The
Appellate Division of the Supreme Court afterwards in 2004 against those
guidelines.
Arguments of the Petitioners/Appellant:
In the submission of arguments before the appellate division,
Learned Attorney General, Mr. Mahbubey Alam, placed that the directions which
was given by the High court division is unconstitutional. To the authentication
of his saying, he presented that there are three organs of the state and one of
those the most crucial one is The Legislature which enacts law. The power of
court is to interpret the said laws and to ensure the said laws in the facts on
the part of given cases. But no power is belonging to the court to direct the
government to legislate the law. In this connection, The Learned Attorney
General has referred an unreported case of the Supreme Court of India named
Subramaniam Swami vs. Union of India, W.P no:8 of 2015.
On the other side, Mr. Murad Reza, The Additional Attorney General,
makes some satisfactory arguments. In his saying, he placed that the direction
of the High Court Division is a futile direction in the consequence that the
executive has no power legislate law. Even more, he enunciates that the word
parliament has not been mentioned in Article-112. Some of his arguments are in
the following:
- The High Court Division has exceeded its jurisdiction by giving unsolicited guidelines as to what the parliament should do or should not to do. As the rule making power of the President is identified by the parliament only so that the court cannot direct the President to make rules.
- Wisdom of parliament cannot be subject of
judicial review.
- In this case, there cannot be any presumption of misuse of power rather there is a presumption of the order as to the constitutionality of the statute. He has referred to some cases on the part of his contentions, Novva Das vs. Secretary of department of Municipal Administration and Water Supply (2008), Bangladesh vs. Shafiuddin Ahmed, 50 DLR(Ad) 27, Kesavananda Bharati vs, Kerala AIR 1973 SC 1461, Siddique Ahmed vs. Bangladesh, 33 DLR(AD) 319, Khondakar Delwar Hossain vs. Italian Marbel Works Ltd. ,62 DLR(AD) 298.
Argument of the Respondents: In the
counter context of the appellant, Dr. Kamal Hossain and Senior Advocate Mr. M.
Amirul Islam makes some momentous arguments which were about the efficiency of
the power of the Supreme court enshrined by the constitution. Besides, they
also preferred some important precedents over the Asian hypothetical judgments
and orders. The submission on behalf of the respondent before the Appellate
Division are as follows:
- The respondent placed that the previous 15 guidelines which was declared by the High Court Division has not performed effectively and The Law Enforcement Agencies have failed to comply and to compliance of those 15 guidelines. Due to the failure of those directions, continuing incidents of custodial violence has occurred.
- The respondent presented some components
around the supreme court jurisdictions. In its saying, the Supreme Court
has the authority to issue directions and to prefer recommendations regarding
amendment of the law to ensure the rule of law. As a guardian of the
constitution, it has the power to nurture with the safeguards of arrest
and detention and the prohibition on torture following the provisions of
the constitution.
- It also puts forward to the fact that the
existing legal measures including revision, appeal or individual
prosecution of culpable homicide are not adequate remedy for the
prevention of custodial death, torture and ill-treatment.
- The punitive actions do not serve the same
purpose as the guidelines which are preventive in nature.
- The supreme Court, as the protector of the
constitution, is competent to direct the government to take such
legislative measures which are essential to implement its constitutional
safeguards.
- The supreme Court is within its
jurisdiction to bring back the Parliament and the executive body from
constitutional infringements and culture when they interfered with the
constitutional arrangements altered by the Parliament and give necessary
directions to follow the constitutional course.
- The respondent otherwise placed a
precedent which belongs to the Indian jurisdiction. In India, the Supreme
court gave directions as preventive measures in cases of arrest and
detentions and ordered the government to amend The Code of Criminal
Procedure in 2008 and 2010 to incorporate those requirements into the law.
It also provided some guidelines and norms to provide for effective
enforcement of basic human rights to gender equality and protection
against sexual harassment to be observed in every workplace.
- In case of any inaction of the executive,
the judiciary must exercise its constitutional obligations to provide
solutions.
- The duty of Supreme Court is to uphold the
constitution for the protection of right to life, the safeguards on arrest
and detention and the express of the prohibition of torture or the ground
of cruelty, inhuman treatment or punishment which are mentioned in article
32, 33, 35(5) of the constitution.
- Some South Asians court have also issued directions from time to time to ensure the protection against custodial violence and also made recommendations for the reformation of law.
In support of their contentions, they have presented some case
references of Secretary Ministry of Finance vs. Masdar Hossain, 20BLD(AD)104,
Kudrat Ilahi Panir vs. Bangladesh, 44DLR(AD)319, D.K. Basu vs, State of West
Bengal, (1997), Union of India vs. Association for Democratic Reforms. 2002 (5)
SC294, Raj Narayan vs. Superintendent of Central Jail, AIR 1971 SC 178, Saifuzzaman
vs. State, 56 DLR 324.
However, the respondent also presented an argument in the formation
of the view of authentication and effectiveness of the High Court directions
which was given in 2003. In its saying, the directions of the High court
Division are essentially to ensure that constitutional promises to citizens are
kept and that pre-constitutional laws such as The Police Act, The Code of
Criminal Procedure, The Police Regulations of Bengal are read, interpreted and
applied in line of the constitutional promises, and they may reframe and
revised to ensure the fullest protection of each person who faces arrest or is
taken into the custody in order to ensure the human dignity and a society based
on rule of law.
Opinion of Judges:
In the view of the formation of judgement, the concerned judges,
Mr. Justice Surendra Kumar Sinha (The Chief Justice), Mr. Justice Syed Mahbub
Hossain, Mr. Justice Hasan Foez Siddique and Mr. Justice Mirza Hussain Haider
have placed their opinion before the judicature based on different principles
of justice, relevant articles, treaties and laws. To provide the judgment of
this landmark case, the judges have taken the following rules and principles in
their matter of concern and describe the parts hereby relevant to the nature of
the case.
Rule of Law:
The judges describe the principles of rule of law in a wider sense
in respect of ensuring judgment. The rule of law is a foundation of democratic
society and the judiciary is the guardian of rule of law. So, if the judiciary
is performed its duties, functions and responsibilities ensured by the
constitution effectively and remain true to the spirit with dignity and
authority, then the courts are surely to be respected and protected at all
costs. The prime concept of the judiciary is to affirm the rule of law which
prevents the ruler from abusing its power. But at the same time, it is also a
matter of concern that the judiciary alone is not possess a magic wand to
establish rule of law in the country. The nature of rule of law is all organs
of a state shall maintain the rule of law including the in all spheres if
executive and administrative branches, the government, its officers, the law
enforcement agencies, as well as the legislative.
It is an essential principle of rule of law that “every executive action, if it is to operate the prejudice of any person must have legislative authority to support it”. Following the 8th amendment case of the constitution (Anwar Hossain Chowdhury vs. Bangladesh 41DLR(AD)165), it has to be observed that the rule of law is one of the basic features of the constitution and it cannot be abolished even by any constitutional amendment.
Rule of law is the subordination of all authorities, legislatives
and executives which would basically be accepted as the characteristics of law.
The rule of law requires the protection of fundamental rights of the citizens
enshrined by the constitution. The protection of right to life, right to
freedom and speech, safeguards of police arrest and detention of an individual,
custodial violence including torture and death in the lock-ups are protected by
the constitution and in order of to verify its protection for the beneficiary
of public, the principle of rule of law will be a matter of concern.
Natural law or observance of Principle of natural justice:
In the context of natural law and principle of natural justice, the
judges stated Sir Henry Maine's words. He says, “The law of nations came to be
identified with the law of nature”. The judges also placed a paraphrase of the
actual words of ca. 29 of Magna Charta, which reads, “The body of no free man
shall be taken, nor imprisoned nor disseized, nor outlawed, nor banished, nor
destroyed in any way and the king shall not got or send against him by force
except by the initial judgment of his peers”.
International Covenants and treaties:
The judges also proceed some treaties around all over the universe.
There are several international treaties for safeguarding civil and political
rights, torture, cruelty, ill-treatment or punishment. In our constitution,
some of those rights and freedoms are enshrined and some of those are not. The
following international treaties and safeguards are concerned in the matter of
giving judgment by the judges.
- International Covenant of Civil and
Political Rights, 1966 (article-9)
- Body of Principles for the Protections of
All Persons under any form of Detention or Imprisonment Adopted by General
Assembly Resolution 43/173 0f 9 December, 1988.
- Code of conduct For Law Enforcement
Officials Adopted by General Assembly Resolution 34/169 of 17 December.
1979.
- International Covenant of Civil and
Political Rights Adopted and Opened for Signature, Ratification and
Accession by General Assembly of Resolution 2200A (XXI) of 16 December,
1966 entry into force 23 March, 1976, in accordance with Article 49.
- Laws Safeguarding Human Rights as per constitution of the People’s Republic of Bangladesh (Article- 7, 26, 27,28,29,30,31,32,33,35 and 39)
Decision:
To the formation of a fair judgment, the respected judges of the
Appellate Division had taken a close look into judgement of the High Court
Division. They formulate that it cannot be said that the High Court Division
directed the government to amend the existing sections 54,167,176,202 of the
Code of Criminal Procedure and some other provisions of the penal code. Rather,
it noticed infringement of power and performance of police officers, law
enforcement agencies, magistrates and tribunals due to false interpretation of
relevant clause or misleading of those grounds. For example, the police
officers taking advantages of the language used in section-54 and arresting
innocent citizens in a gradual manner without any compliant be filed or making
any investigations of those complaints. The High Court also observed that no
person shall be subjected to torture in inhuman dignity or degrading punishment
and treatment. If an offender is taken to the police custody for the purpose of
interrogation, the law does not give the law enforcement agencies to any right
to torture him.
Finally, the Appellate Division comes to the part of 15
recommendations given by the High Court Division. The Appellate Division
preferred that most of the recommendations given by the High Court Division
have harmonious interpretation regarding the Part-III of the constitution. But
some of the recommendations are excessively redundant, some of them are viable
and some of them are exaggeration.
Even in addition, the Appellate Division said that they found no
merit in the contention of the Attorney General and Additional Attorney General
by considering the facts and circumstances. So, in the part of their judgment,
they had dismissed the appeal and formulates some responsibilities for the Law
enforcement agencies. On the other side, they had given some guidelines to the
Magistrates, Judges and Tribunals having power to take cognizance of an offence.
Observation:
In this leading case, the judges have made some remarkable
observations throughout the all-administrative body on their existing power and
performance. In addition, they have also formulated the responsibilities of the
Law Enforcement agency to be observed by them at all level. The Law Enforcement
Agencies have ensured by the following responsibilities in the judges' orders:
- The main responsibility of The Law
Enforcement Agency shall be to fulfill their duty imposed by law at all
times by serving the community to protect all persons from illegal acts
and detention.
- The Law enforcement Agency shall respect
and protect human dignity and respect the human rights of all persons in
the performance of their duty.
- They can use force only in that time when
if found to be necessary in the part of their performance.
- The Law Enforcement Agency shall not only
respect the fundamental rights of the citizens guaranteed by the
constitution but also protect the rights.
- The Law Enforcement Agency will have to
place its highest authority for the protection of human life.
- The Primary mission of The Law Enforcement Agency will be to prevent crime. It is far better to prevent crime than to take steps after a crime has been committed.
Furthermore, they have also directed some guidelines to the
Magistrates, Tribunals, Courts and Judges to take cognizance of an offence in
order to ensure their observance. The guidelines are about how to treat a
person inside into the custody of police whether he has convicted as a criminal
or not. Besides, these guidelines have also directed to the said authorities
ensuring that a person although he has committed something violent, shall get
the justice and have the permission to place his innocence in all grounds with
the help of the Law Enforcement Agency.
Conclusion:
In the memorable phrase of President Abraham Lincoln, “Democracy is
a government of the people, by the people and for the people”. A democracy
means rule by the people. It means that every citizen of a country shall have
the right to meet to decide about new laws and changes to existing ones.
However, from the earliest 16th century and even from the ancient
times in Bangladesh, different kinds of laws, orders, powers have made and each
of them is served for the beneficiary of the citizens, for the betterment of
the administration of justice. According to our constitution, the government
works as a servant of the nation for the protection of each and every citizen.
In this leading case, it has been proved that in case of any part of contrary,
the fundamental rights of the citizens shall prevail in every sector of
administration body and if any necessary has arrived to change or modify the
existing laws of the territory which demands the protection of individuals and
for ensuring justice then it shall be prevailed without any second thought of
judicature.
Tanwee Saha
Department of Land Management & Law
Jagannath University, Dhaka, Bangladesh
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