Whilst in the 2006 and 2009, for one reason or the other, the cases basically went nowhere, the situation was different in 2014 - with one court ordering the establishment of an inquiry committee into the Narayanganj killings and another court directing the arrest of three RAB officers who were allegedly involved in the deaths.
One article on the different judicial approaches is set out below - along with links to the four orders. It should be noted of course, that the risk of the application of Bangladesh's Contempt of Court laws does circumscribe what would otherwise be instructive and useful analysis.
The Government and the RAB arrests
However, another interesting aspect of the 2014 recent High Court orders - and in particular the one relating to the arrest of the RAB officers - was how the prime minister and law minister responded.
After the order was given, The Daily Star reported the prime minister saying this at the press conference:
"When we were still investigating the matter … and before that investigation was complete … you tell us how come a High Court bench orders arrest of the three [Rab officers] ?… Now if you want any evidence, seek it from the judges of that court … they must have evidence as to what extent they [the three] were involved … how much guilty they are, etc ... they [judges of the bench] can say it better. Collect information from them; give that [to us]. It will help us as well ... . If the two judges of the bench that gave the arrest order provide detailed information, it will help expedite the case."And then two days, the Law Justice and Parliamentary Affairs Minister Anisul Huq stated at a seminar, as reported by New Age:
She continued, "When we struggle to take one step, some of them there take two/four steps and create such a situation that does not allow conducting a probe properly. It is a problem. I know my words are getting a bit harsh … but what is real and true must be told."
‘As far as public interest litigation is concerned, we very much appreciate the interests the judiciary shows. But we would like to state that although we encourage judicial activism, it should not go beyond the limits and cause judicial anarchy .... That is why, we would like to say that caution should be maintained.'The government's irritation with the court order was also reflected in the dismissal of MK Rahman from his post of Additional Attorney General. It was he who had represented the Attorney General's office at the High Court hearing, following which the court ordered the RAB arrests
What to make of these comments?
Technically, of course, Hasina may well have a point, in that it not usual for the High Court to order someone to be arrested (though I believe it has done so in the past); this is usually the role of the police on the basis of their investigation.
However, if one was to take that position (which the prime minister has apparently done) one would have to assume that there would be an evidence-based investigation, unaffected by political interference - with arrests taking place as appropriate.
The very fact that not a single RAB officer had ever been arrested after the more than 1000 deaths in which they have been implicated over the last ten years does suggest that due to ineffective investigation and political direction, RAB officers have in practice got immunity from arrest. And these three RAB officers (subject to the court order) would no doubt have received the benefit of this same immunity, were it not for the High Court order.
Moreover, as the court noted, three RAB officers had been 'dismissed from their services' suggesting 'the government has information to suspect the aforesaid 3 former RAB personnels in the commission of the aforesaid heinous offence' - and the men had, at the time of the court hearing, not been arrested. So there was at the time of the hearing, good reason for assuming the three men were involved in the murders, and there was no sign that the authorities were going to arrest them.
Moreover, as the court noted, three RAB officers had been 'dismissed from their services' suggesting 'the government has information to suspect the aforesaid 3 former RAB personnels in the commission of the aforesaid heinous offence' - and the men had, at the time of the court hearing, not been arrested. So there was at the time of the hearing, good reason for assuming the three men were involved in the murders, and there was no sign that the authorities were going to arrest them.
Looked at in this perspective, one might suggest that the prime minister's comment (whilst technically correct) had little to do with police and criminal justice protocol - and more to do with a dislike of a high court order that prevented a 'business as usual' approach to RAB - that has of course existed not just in this government's period but during the BNP's period in power.
And what about the Law Minister's comments concerning 'judicial anarchy'? It is difficult to see where is the judicial anarchy in the High Court order. Whilst an order for arrest is unusual, it has happened before, and it took place in a situation where (a) the three RAB officers had been dismissed from their posts (suggesting some kind of complicity in the murders), and (b) where there was no sign that the police would arrest them, yet alone interview them. Again, it appears that the law minister's comment was a response to that fact that the High Court order had scuppered the government's 'business as usual' approach involving RAB. It is of course notable that the government (any government in Bangladesh) appears only concerned with 'judicial activism' when it goes against their interests - and is quite amenable to it otherwise.
In relation to MR Rahman, it appears he was pretty hard done by. He did apparently seek instructions from the ministry about whether he should seek a stay of the order, but the ministry did not respond - perhaps appreciating that if it did so, it would be a terrible PR disaster.
And what about the Law Minister's comments concerning 'judicial anarchy'? It is difficult to see where is the judicial anarchy in the High Court order. Whilst an order for arrest is unusual, it has happened before, and it took place in a situation where (a) the three RAB officers had been dismissed from their posts (suggesting some kind of complicity in the murders), and (b) where there was no sign that the police would arrest them, yet alone interview them. Again, it appears that the law minister's comment was a response to that fact that the High Court order had scuppered the government's 'business as usual' approach involving RAB. It is of course notable that the government (any government in Bangladesh) appears only concerned with 'judicial activism' when it goes against their interests - and is quite amenable to it otherwise.
In relation to MR Rahman, it appears he was pretty hard done by. He did apparently seek instructions from the ministry about whether he should seek a stay of the order, but the ministry did not respond - perhaps appreciating that if it did so, it would be a terrible PR disaster.
The court order
One interesting aspect of the court order directing the arrests of the RAB officials, is that it was not a prayer in the initial petition filed by the public interest petitioners. It was, as I understand it, the court that suggested that petition be amended to include this prayer, which was then reflected in the order given.
Below is an article on extra judicial killings and the high court. It refers to four court orders which can be accessed from the links below:
Extrajudicial killings and the High Court
THE Rapid Action Battalion has extra-judicially killed close to 1,000 people— and the police several hundred more—in the past ten years.
Killings by the battalion started soon after the Bangladesh Nationalist Party-led government commissioned the paramilitary organisation in 2004, and continued through the state of emergency between 2007 and 2008 and throughout the current tenure of the Awami League-led regime.
Investigations by journalists and human rights organisations into many such killings suggest clear-cut criminality in which the battalion or some other law enforcement agency detained a person, killed him and then claimed that the person had not died in its custody but in ‘crossfire’ or ‘encounter’, usually involving the alleged accomplices of the deceased.
After the killing of seven men in Narayanganj in April, the Supreme Court acted decisively. A few days after the bodies had been discovered, one bench of the High Court ordered the government to commission a seven-member inquiry committee and then, some days after that, another bench of the High Court ordered the immediate arrest of three RAB officers allegedly involved in the killing.
The issuance of these interim orders by the court, and their compliance by the state, mark a contrast with previous cases in 2006 and 2009 involving extrajudicial killing (see ‘No interim, final orders on extrajudicial killing cases’, New Age, June 16).
Public interest writ, August 2006
THE first of the public interest cases was filed at the tail-end of the BNP-led government in August 2006 by Human Rights and Peace for Bangladesh.
The petition, which referred to RAB responsibility for about 500 deaths, stated that the paramilitary force’s actions ‘in respect of killing the arrested person in the name of crossfire’ has deprived those killed of ‘their inalienable rights to be treated in accordance with law.’
‘If the extra judicial killing in the name of crossfire continues … confidence of the people in the criminal justice system may be lost,’ it added.
In response, the court of Justices Syed Muhammad Dastagir Hussain and Mamnoon Rahman issued a rule nisi ordering the home ministry, various RAB battalions and the inspector general of police to explain within three weeks why they ‘should not be directed to take necessary steps to ensure the safety and proper security of the arrested/detained person(s) in the custody in accordance with law …’ Three weeks should have meant the middle of September 2006.
Four months later, in January 2007, without the government responding, and without the matter coming up before the court, a state of emergency was proclaimed; fundamental rights were suspended and so petitions of this kind remained in abeyance.
When the AL-led government was elected in 2009, the lawyer in the case, Manzil Murshid, said that, as the jurisdiction of the initial court where they had filed the case had now changed, he had to get the case listed in another court.
On July 5, 2009, the court of Justice Md. Ashraful Islam and Moinul Chowdhury passed an order allowing the case to come up on its list for a final hearing.
According to Murshid, as the case rose from the bottom towards the top of the list, the court was reconstituted requiring him to start over again in another court where a similar thing happened.
Whatever the reason — and it could have been because the courts were extremely busy with other cases, or the lawyers did not put enough effort into getting the case higher up the list — the case never came up for further hearing.
Till now, neither the battalion nor the inspector general of police nor the home ministry has responded to the initial court notice.
Public interest writ, June 2009
THE second writ, filed by three non-government organisations, Ain O Salish Kendra, Bangladesh Legal Aid Services Trust, and Karmajibi Nari in June 2009, six months after the Awami League government came to power, sought ‘to prohibit the activities of the law enforcing agencies leading to extrajudicial killing in the name of crossfire/encounter.’
The petition stated that since July 2004 ‘the incidents of killing in the name of crossfire/encounter have been increasing at an alarming rate all over Bangladesh’ and provided details of the 527 people killed by RAB and 442 by the police.
The application provided details of eight specific incidents in which it claimed RAB had killed 13 people unlawfully.
The organisations stated that ‘the abuse of power and authority by the law enforcing agencies results not only in gross violation of the fundamental rights guaranteed by the constitution but is increasingly leading towards a situation in which the law enforcing agencies are seen to operate without accountability and transparency and they seem to serve immunity and often operate beyond and above the rule of law.’
The petition was heard on June 29 before Justices Syed Mahmud Hossain and Quamrul Islam Siddiqui, who passed a similar order to the 2006 one: ‘Let a Rule Nisi calling upon the respondents to show cause as to why the extra-judicial killing in the name of cross fire/encounter by the law enforcing agencies should not be declared to be illegal and without lawful authority and why the respondents should not be directed to take departmental and criminal action against the persons responsible for extra judicial killing …’
The rule was issued against the same respondents as the 2006 writ petition; this time they were given four weeks to respond, that is to say by the end of July 2009.
The rule added that ‘Mr MK Rahman learned Additional Attorney General submits that in principle this Government does not believe extrajudicial killing and that steps have already been taken to stop such killing. In view of the submission of the learned Additional Attorney General we are not inclined to pass any interim order.’
By ‘interim order’ the court was referring to petitioners’ prayers calling on the court to order the government and RAB authorities to ‘submit a comprehensive report of all extrajudicial killing in the name of crossfire/encounter’ since 2004, to appoint a ‘committee of experts to independently investigate’ the deaths, and to compensate the families of the victims.
Three months went by with no response from the government bodies, and without any further hearing.
In October the petitioners tried to file an ‘application for directions’ seeking the court to pass an interim order that it was unwilling to initially.
The petition pointed out that in the three months since their original application in June, 50 new incidents of ‘extrajudicial killings, crossfire, encounter’ had been recorded.
In addition to providing details of these deaths, the new application also provided copies of investigation reports into eight specific incidents, some involving RAB and others involving the police, all of which disputed the law enforcement agencies’ claims and providing evidence that instead the men were shot in cold blood.
The application stated that the circumstances showed that the killing ‘appears to have been adopted as a strategy’ and the government had ‘misguided the Hon’ble court’.
It also stated that the continuing incidents which was ‘manifestly illegal and without lawful authority’ was also a ‘flagrant disregard of the commitment of the government made before his Hon’ble Court on 29.06.2009 that on principle that this government does not believe in extrajudicial killing and that steps have already been taken to stop such killing.’
However, according to ASK’s lawyer, Saifur Rashid the court suggested that the issue should be dealt with at the time of the final hearing, and the application was not formally filed.
After some time, the jurisdiction of the original bench changed, and the petitioners sought to get the case fixed befores another bench of judges.
On July 7, 2010, Justice Mamnum Rahman and Sayeda Afsar Jahan agreed that the case could be heard six days later. However, on July 13, the attorney general’s office sought an adjournment, and did so a few more times on different dates.
Saifur recalls that the case did not come up again on the court’s list, and the petitioners gave up.
Suo moto, November 2009
IN NOVEMBER 2009 another High Court bench got involved in the issue of extrajudicial killings by issuing an order suo moto, i.e. without a third-party application.
The order, given on November 17, 2009 by the court of Justice Abdur Rahman and Justice Emdadul Hoque Azad referred to a newspaper article published in the daily Nayadiganta on the November 16, 2009 in which it was stated that a man called Bablu Khalashi had held a press briefing stating that his father Lutfor Khalashi and uncle Khairul Khalashi might be subject to ‘crossfire’ as they had been arrested by RAB 3 three days earlier and had not in the meantime been handed over to the police.
Bablu stated (as quoted in the order) that his father and uncle ‘may be taken to Madaripur on the false pleas of recovery of illegal arms from them’ and become a ‘victim of encounter killing’.
The order stated that on the following day, an article in the daily Prothom Alo was brought to their attention in which it was stated that the two men had ‘already been killed in crossfire’.
The order went on to say that following submission by a deputy attorney general and the leader of the bar, the court would ‘take cognisance of the entire matter and pass appropriate order against those persons who are liable for the killing of those two arrestee while they were under their custody to stop such heinous activity or some overenthusiastic member of the law enforcing agencies, especially the Rapid Action Battalion.’
The court stated: ‘It appears that despite the stern warning pronounced by the Hon’ble Prime Minister SK. Hasina against those sorts of extrajudicial killing, some Blackship member of the law enforcing agency are still continuing with this heinous activities in the guise of loyalty to the present government practically diminishing the image of the government in the estimation of the right thinking citizens of the country as these Blackships are actually implementing a mission to defame the government of the day sometimes through extrajudicial killing and sometimes through torturing arrested person in the name of the remand although the chief of Government of the day never ratified their action.’
The order concluded by calling on two RAB officers, the RAB director general and the home secretary to ‘show cause’ within 48 hours ‘as to why appropriate action shall not be taken against [two RAB officers] and their companion for the liability of killing’ the two men ‘along with an explanation by the Director General of RAB as to such heinous activity now continuing in his Battalion.’
RAB, in their affidavit in response to the rule nisi, states that the newspaper reports were ‘baseless, false and motivated’ and that no ‘operation whatsoever was conducted by the RAB 3 and RAB 8 at the alleged place of occurrence.’ The written response also stated that one of the RAB officers mentioned did not exist.
The affidavit also said that a police investigation was ongoing into the two deaths and that ‘if this Hon’ble Court passes any order in this instant rule the investigation process of the case will be frustrated’ and that a petition — the one discussed above — was already pending with the High Court.
On November 23, the court considered the affidavit and issued an order asking that RAB to provide details by December 9 of those officers involved in the detention of the two men.
At the next hearing on December 14, the government sought more time and the court set January 11, 2010 as the new date for hearing. In addition, at the hearing, the judge told the attorney general (though this was not part of any formal order) to inform the authorities not to kill any more people in the name of ‘crossfire’, ‘encounter’ or ‘gunfight’ until final hearing.
However, on January 7, five days before the court was to hear the matter again, the chief justice reconstituted some benches and these two judges were assigned to deal with different kinds of cases.
According to SM Kuddus Zaman, special officer at the Supreme Court, the practice is that in case of suo moto cases when a court’s jurisdiction changes, it is the responsibility of the office of the chief justice to assign the case to another court.
At that time, the chief justice was Justice Md Tafazzel Islam, though a month later he retired and there have been three more chief justices since then.
Apparently, no chief justice has yet assigned the matter to any other court. There was not any further hearing on the case, though technically the case remains pending.
The case file, however, cannot be found. The secretary to the chief justice told New Age that ‘the file is untraceable’ and the person in charge of the ‘criminal miscellaneous section’ where the case file should be located said they could not find it. ‘We have 3 lakh cases lying haphazardly,’ he said. ‘We are trying out best.’
Lessons to learn
WHAT can we learn from all of this?
First, the state’s unwillingness to respond to the initial orders of the court. In two out of the three cases, even in the face of the most serious allegations made against the battalion, RAB, the home ministry and the inspector general of police all failed to respond to the rules nisi.
Combined with the adjournments sought by the attorney general’s office in at least two of the cases, it is clear that state bodies respond to this kind of legal action by delay, procrastination, apparently hoping that the petitioners will not have the perseverance to continue.
Secondly, the practice of reconstituting courts appears to have an unintended side effect of making it more difficult for these kinds of cases to get heard by the courts, as it requires the petitioners to find another court to list the matter, which can result in additional delay (though, of course, other kinds of cases may well also be affected by any court reconstitution).
In relation to the suo moto case, the reconstitution had the unintended effect of bringing the case to a total halt.
Thirdly, these cases indicate the limits of human rights organisations. Having put considerable work in drafting and filing the case, it becomes difficult for them to sustain interest in the cases for month after month, year after year, when new matters in the meantime become a priority. When a court decides that interim orders are not appropriate, and with the attorney general’s office seeking adjournment after adjournment, and along with the huge backlog of cases that exists in the courts creating great pressures on the High Court benches, petitioner organisations require a huge amount of energy to keep the matter alive.
There are no doubt other lessons to be learnt. But what is certainly clear is that had these 2006 and 2009 cases run differently, perhaps hundreds of lives could have been saved, and the Narayanganj killing might never have happened.
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