Interpretation of Rights to Life Under the Constitutional Scheme

1. INTRODUCTION

This easy analyzes developments in 2006 relating to the fulfillment of the State’s constitutional and international obligations to respect, promote and protect the right to life, which was given by the advocate of the Supreme Coourt of Bangladesh, Dr Shirin S. Chaudhury. His view is that ‘this right has been expansively interpreted by the Court in other jurisdictions, to underscore the State’s responsibility for policies that protect women from violence or prevent economic scarcity which threatens human lives’. The essay argue for more balanced and humane laws, restraints on the use of force, effective deterrents to violence against women, and policy reforms that contribute to economic security.

2. STATE OBLIGATION

The right to life enjoys the status of ‘supreme right’[1] in international law. It has been accorded highest protection as a ‘peremptory/imperative norm’[2] from which no derogation is permissible, even in time of war or other public emergency.[3] Affording such protection to the right to life signifies that utmost importance has been attached to it in various articles of international instruments. So, for example, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

In international human right law, the right to life is perceived as a ‘right not to be killed’, affording protection to human life against arbitrary and intentional deprivation/ killing and imposing a correlative obligation on others to forbear or refrain from interfering with the life of the right-bearer. This right establishes an obligation on the State to afford protection to the life of the individuals against unlawful, unwarranted and arbitrary killing. The State is therefore under two countervailing obligations as follows:

2.1   To forbear or refrain from arbitrarily depriving or taking the life of an individual, and

2.2   To take reasonable steps and adopt appropriate measures to prevent the taking of life by police and security forces.

The State is further required to provide in its law for ensuring protection of human life. Thus the taking of life in the circumstances described above must generally be illegal under law.

[1] General Comment 6(16), UN GAOR, Doc.A/37/40, p. 93; Doc. CCPR/C/21?Add.I. Adoptedby the Human Rights Committee in 378th meeting (July 1982).

[2] Verdoss,”Forbidden Treatise in International Law,” American Journal of International Law,31, 1937, 571. W.P. Gromley,”the  Right to Life And The Rule of Non-Derogability: Peremptory Norms of Jus Cgens,” (ed.) B.G. Ramcharan, The Right to Life in International Law, Dordrecht: M. Nijhof, 1985, p. 14, 120.

[3] Article 4(2) of the ICCPR, 1966; Article 15,2 of the ECHR.

3. DUTY TO PROTECT THE RIGHT TO LIFE

The duty to protect the right to life considers the effective enforcement of law. Dr Shirin pointed the issue that if a claim is made that a person whose life is threatened by terrorists, is entitled to continual special protection from the State, it raises essential questions as to whether the scope of the right to life can be stretched to such an extent and be interpreted as imposing a duty on the State to give such protection for an indefinite period[4].However, there is no dispute on the issue that the state has an obligation to create an environment of security for individuals and to discourage a culture of immunity as well as impunity. There is an obligation on the part of the State to provide a reasonable level of protection against terrorist acts or other threats that pose risk to lives of individuals. Again, the duty to enforce law to protect life requires the State to conduct proper investigation of all suspicious death, deaths in custody, disappearance of individuals including political disappearances, and to ensure prosecution of offenders. The obligation to protect life also contains a ‘procedural aspect’[5].

Not every taking of life, however, is illegal under the law of the State. There are certain permissible exception[6].Liability applies to the taking of life by the State[7]. But permissible exceptions ought to be narrowly interpreted. Although capital punishment is permitted under the law and may be considered a permissible exception, it may be discouraged and not imposed except in the rarest of rare cases as has been directed in other jurisdictions.

4. EXTRA JUDICIAL DEATHS

Parvez, a suspected criminal, arrested from Johnson Road in Old Town of the city never returned home. He was killed in an encounter with the members of the Rapid Action Battalion (RAB) in Postogola area, Dhaka on 22 September[8]. RAB reports indicated that Parvez was wanted in a number of criminal cases. Parvez’s family members claimed that the victim, an Awami League activist, was innocent. His death, reportedly in an encounter with the RAB, is not an isolated incident.

A series of deaths in ‘ cross-fires ‘ and ‘encounters ‘ with RAB ha continued in Bangladesh since the creation of RAB with wide-ranging powers, including shoot to kill, under the Armed Police Battalions ( Amendment) Act, 2003.5 Setting up of this ‘ hybrid composite’ 6 force by the then BNP-Jamat Government for combating the deteriorating law and order situation has amplified the violation of human rights, particularly, that of the right to life, by way of adding yet another form of “arbitrary and extra judicial killing[9]”.

[4] See Chapter 2, p.22 and Chapter 5, p.92-96 of Human Rights in Bangladesh 2006 by Ain o Salish Kendra (ASK)

[5] Procedural aspect: Purports to include the minimum requirement of a mechanism whereby incidents of deprivation of life by the agents of a State may receive public and independent scrutiny.

[6] Such as the death penalty, or deaths resulting from use of force for permitted purposes in self defence, to effect arrest, prevent an escape, or to quell a riot.

[7] By government agents, for example police, soldiers, prison officers etc.

[8] See New Age, 23 September, 2006 “A RAB-10 team took him out to Postagola area early Friday to nab his accomplices. As the team reached near the Postagola crematorium at about 4.30 am, the aides’ o Parvez opened fire on the battalion members forcing them to retaliate, the Battalion claimed. After the gun fight, the Battalion members found Parvez riddled with bullet injuries while his accomplices managed to flee. He was taken to the Dhaka Medical College Hospital where the doctor declared him dead.”

[9] RAB started its official journey from 21 March, 2004, but went into action against alleged criminals from June 26, 2004. From 2004 till August 2006, 247 incidents of RAB ‘cross fire’ took place, resulting in 330 deaths.  A culture of  impunity – reinforced by legislation which largely shields the security forces from legal challenge and by Government praise for many of the backdrop of such violations, protection of arrestees and detainees in the custody of law enforcement agencies has emerged as a grave concern.

It is alarming to note that such derogation takes place while the right to life, the most basic human right, is guaranteed as a fundamental right under the Constitution of Bangladesh. Protection of right to life is expressly guaranteed under Article 32 of the Constitution in the following terms, “No person shall be deprived of life….save in accordance with law.”

4.1   Alleged Deaths in ‘Cross-Fire’ by RAB

Raihan Ahmed alias Nahid (28 years), allegedly a ‘top drug dealer’, was reportedly killed in ‘cross-fire’ by RAB in Classic Hotel in Ranibazar, Rajshahi on 18 September, 2006[10]. According to a report in the daily Janakantha, RAB-5 Unit sources had claimed that Nahid was killed in an ‘encounter’. An investigation report by a human rights organization further stated that the deceased died when RAB members fired at him from close proximity. According to the report, the deceased was faound holding an old pistol in his right hand, as if his finger had been placed on the trigger deliberately after the shooting, to make it look like a shootout[11].

Farooq, a renter, was reportedly arrested by RAB from the counter of S.A. Paribahan in Kakrail on 9 September. After his arrest he was sent to Boalia Police Station in Rajshahi and a case was filed. He was sent on remand for two days and subsequently handed over to RAB on 13 September. Farooq was then sent to prison on 14 September, where he was reported to have fallen ill and subsequently died in Rajshahi  Medical College Hospital[12].

Table III.1: Extra Judicial Deaths by Law Enforcement Agencies in 2006[13]

Deaths Due To

RAB

Police

RAB & Police

Kobra Cheetah

BDR/Army

Total

‘Cross-fire’ (without arrest)

53

7

2

–

–

62

‘Cross-fire’ (after arrest)

133

61

–

2

–

196

Physical Torture (without arrest)

–

7

–

–

–

7

Physical Torture (in custody)

4

21

1

–

–

26

Shoot out

5

52

–

–

4

61

Total

195

148

3

2

4

352

4.2 Alleged Daeths by the Plolice

There were frequent reports of deaths by police, when they fired at public demonstrators, or of persons in their custody, A few examples are given below:

Confrontation with police led to the death of a worker in Sreepur, Gazipur on May 20. When the workers of a sweater Factory were protesting the arrest of a fellow worker and demanding withdrawal of cases filed against other workers, police open fired resulting in his death[14].

[10] Janakantha, 1 October, 2006.

[11] Investigation Report of Bangladesh Institute of Human Rights (BIHR)

[12] Inqilab, 1 October,2006.

[13] Prothom Alo, Bhorer Kagoj, Sangbad Ittefaq, Janakantha, Inquilab, Shamokal, Bangla Bazar, The Daily Star, New Age, Sangram

[14] Bhorer Kagoj, 21 May, 2006.

An alleged terrorist/miscreant named Abdul Momen was arrested by police in Nowpara Village of Meherpur, Kushtia. He was taken to Lahini Old graveyard on 22 March 2006 araound 4 am and was reported to have died in ‘cross-fire[15].

In a similar incident, a notorious dacoit named Md. Alamgir Hossain (35 years) was arrested by police in Comilla and allegedly died in an ‘encounter’ with police in the middle of the night[16].

A daily wage earner named Kachem Uddin was reported to have been beaten to death by police in Kurigram in June,2006[17].

4.3  Deaths in Prison or Police Custody

In 2006, a total of 71 prisoners were reported to have died. Of this number, a majority of 31 prisoners reportedly died in Dhaka division jails. Thirty two persons were reported to have died in police lockups across the country. Some examples of custodial death reported in the media are given below:

‘Shokhi’ (17 years) died in custody in Sylhet Central Jail on 25 July, 2006[18]. The post mortem report disclosed that her death resulted from injuries. The Police had arrested Shokhi, daughter of Munaf Mia of Debiganj, Panchagar from Sylhet on 14 July, and sent her to Court. The Court sent Shokhi to Sylhet Central Jail. The prison authority lodged a General Diary with the Police Station stating that Shokhi died of illness and sent her body to Osmani Medical College Hospital for a post mortem.

Jashim (25 years) was reported to have committed suicide while in custody in Sirajdikhan Police Station lock up in Munshiganj[19]. According to police sources, Jashim was arrested by police on suspicion when he informed Sirajdikhan Police Station that there was a bomb in Shamsul Sheikh’s house in village Ichapura.

Kabiluddin Swapan (40 years), a convict, sentenced to life imprisonment, was reported to have died in Chuadanga Prison due to sudden heart failure[20]. His son claimed that his father’s death resulted from torture by prison authorities.

Former Union Parishad Chairman of Chokoria Upazilla and Awami League leader, S. M. Nurul Alam, was arrested by police from his house late at night and his dead body was found in Chokoria Heath Complex later on. It has been alleged that Nurul Alam’s death resulted from torture in police custody[21].

[15] Prothom Alo, 23 March, 2006.

[16] Ibid.

[17] Janakantha Sangbad Shamokal, 23 June, 2006.

[18] Shomokal,22 October,2006.

[19] Bangla Bazar, 17 January,2006.

[20] Jugantor, 17 January,2006.

[21] Janakantha, Shamokal, Prothom Alo, 31 August, 2006

5. LEGAL ANALYSIS

A brief analysis of the incidents of extra judicial killing in alleged cress fire/encounter deaths resulting from illegal use of force by law enforcing agencies or custodial deaths illustrates grave violations of the right to life. Every individual, even if s/he is a criminal or an accused, has a right to life, which entitles him to the protection of law. Regardless of the nature of crime either committed of allegedly committed, the accused is entitled to due process of law and thus must be brought to justice an awarded punishment for here/his crime in a court of law. Extra judicial killing of any individual including a criminal in the hands of law enforcing agencies amounts to handing dawn a death penalty withpout trial, which is a clear derogation from the peremptory norm and also the failure of the State to afford protection of the individuals against unlawful, unwarranted and arbitrary killing[22].

5.1   Police Firing on a Demonstration in Kansat

On 4 January, two persons were killed at Kansat in Chapai Nawabganj[23] when the police opened fire upon a village demonstration that demanded a regular supply af electricity. Within less than a span of twenty days, on 23 January, eight persons were killed at Kansat when police again opened fire on another protest march. About a hundred people including police were injured. This exemplified the unwarranted deprivation of life of ten citizens by arbitrary use of force by police, amounting to a gross violation of their fundamental right to life.

Taking of life by use of force is only permitted as an exeption to the right to life where the use of force is found to be absolutely necessary. In Kansat, the use of arms by police upon unarmed civilians clearly “was not strictly proportionate to the legitimate aim pursued[24]”

5.1.1 The force used in the circumstances raises pertinent questions as to whether:

Such use of force was disproportionate to the threat or risk of injury confronting the police;

Use of fire arms constituted use of force which was more than absolutely necessary.

It is to be considered whether the police personnel ordered to fire were trained and experienced in the use of fire arms or were under attack by hostile and violent crowd posing a threat to life. It is, therefore, important to ascertain whether in Kansat the use of force resulting in deprivation of life failed to meet the test of absolute necessity and, therefore, amounted to serious violation of the right to life. With regard to the test of ‘absolute necessity’ another question needs to be addressed: “Is it proportionate to continue to fire even when the suspect has been wounded or appears to be neutralized in order to ensure that no residual threat remains? Under what circumstances may fire arms be used to deal with persons armed with less dangerous weapons?[25]”

[22] The leagality of deaths in such cases needs to be examined on the touchstone of the fundamental right to life guaranteed under the Constitution and various international instruments. Use of force to effectuate an arrest or prevent an escape would only be deemed as a permissible exception if the fore so used was ‘ reasonable in circumstances’ to commit an offence and it is reasonably considered necessary to prevent her/him from committing the same. Deaths in ‘encounter or cross fire’ would amount to breach of the right to life. Use of deadly force cannot be considered as ‘absolutely necessary’ to prevent future, undefined criminal acts. The same reasoning is applicable to use of deadly force against a person who is escaping from prison or other custody.

[23] See Chapter 2, p.22 and Chapter 5, p.62-63 of Human Rights in Bangladesh 2006 by Ain Salish Kendra (ASK).

[24] Internatinal human rights law requires that any use of force must be strictly proportionate to the legimate aim pursued: “Proportionality is to be assessed having regard to the nature of the aim pursued, the dangers to life and limb inherent in the situation and the risk that the force employed might result in loss of life” source: Observation of the European Commission on Human Rights, Stewart v UK No. 10044/82, 39DR162 at 171 (1984).

[25] O’Boyle, The Use of Lethal Force under Article 2 of the European Convention on Human Rights,p5.

While it is permissible that the police or security forces may use deadly weapons when confronted with dangerous criminals or terrorists who are believed to be armed, the test of ‘absolute necessity’ necessitates that even then caution must be observed.

5.2 Police Firing in Phulbari

In August, 2006, six persons were killed when the police fired on protestors in Phulbari, Dinaipur[26], in circumstance which raised concerns regarding such action constituting a violation of the right to life. The justifications given for use of force by the police, and the basis of the claim of ‘absolute necessity’ and ‘proportionality’ of the same, needs to be carefully weighed to justify th legitimacy of use of such force vis a vis violation of right to life[27].

6. NON-COMPLIANCE WITH STATE OBLIGATIONS

State responsibility/oblgation in relation to the right to life is three fold: to respect, to protect and to fulfill/ensure.

6.1 To Respect: The obligation to respect requires the State and thereby all its organs and agents, to abstain from doing anything that violates the right to life of the individual, to refrain for killing or causing deprivation of life of the individual.

6.2 To Protect: The obligation to protect requires from the State and its agents adoption of measures necessary to protect the life of the individuals by way of law enforcement, so that no one is arbitrarily deprived of his or her life.

6.3 To Fulfill: The obligation to fulfill necessitates the State and its agents to take measures necessary for ensuring the enjoyment of the said right. In case of the right to life, the obligation to fulfill comprises within its fold taking action on the part of the State by way of some form of concerted effort to handle a situation of mass starvation. Such obligation does not necessarily require the State to provide food or other basic subsistence for guaranteeing survival but imposes an obligation upon the State to provide assistance by creating opportunities for the have-nots.

[26] See Chapter 13, p.172 of  Human Rights in Bangladesh 2006 by Ain o Salish Kendra (ASK) ‘ Monga’/’Akal’: The sufferings of Monga/Akal affected people raises crucial questions with regard to State obligations to uphold and ensure the right to life. Generaaly between September to December almost every year marginal and landless farmers in Northern Bangladesh face economic crisis and widespread hunger, known colloquially as Monga or Akal. This affects about three to four million people every year in Rangpur, Faridpur, Gopalganj, Jamalpur, Gaibandha, Panchagarh, Thakurgaon, Nilphamari, Lalmonirhat and Kurigram districts. 29 People living in char areas of Jamuna river were worst affected. Bangladesh is under an obligation under the Constitution as well as under international standards, to protect and ensure/fulfill the enjoyment of the right to life. This obligation calls for adoption of measures on the part of the State to make provision for the people in Monga affected areas and provide assistance to save them from starvation.

[27] Shamokal, 27 August,2006

In respect of any allegation of violation of the right to life, it is the responsibility of the Government to investigate the allegation. State parties are under an obligation to prevent arbitrary taking of life or arbitrary killing by its own security forces. Deprivation of life of individuals by the authorities of the State is a matter of utmost concern.Law must therefore, strictly control and limit the circumstances in which a person may be deprived of his life by such authorities[28].Moreover, deprivation of life due to inhuman, cruel and degrading punishments given by way of fatwa or killing resulting from domestic violence and dowry related violence are also grave violation of right to life and clearly reveal failure on the part of the State to fulfill its obligation to protect life[29]

7. RIGHTS TO LIFE: MYTH OR REALITY?

A cursory look at the year 2006 reveals that arbitrary and extra judicial killing has been allawed to go on with impunity in flagrant violation of the right to life. Indiscriminate killing of individuals in the hands of law enforcing agencies in the name of ‘cross fire’ and ‘encounter’ cannot be justified in any legal system. The State has possibly failed to ensure its obligation to respect and protect the right to life and also to carry out effective, prompt, impartial and speedy investigations into incidents of deaths caused by methods of law enforcement or lack of effective law enforcement.

[28] In the face of grave violations of the right to life, individuals have time and again turned to the Court as a last resort, by challenging violations and seeking enforcement to the right to life. In 2006, several attempts were made to seek legal redress by filling public interest litigations under Article 102 to protect the right to life of individuals. The judiciary played a pro-active role in protecting and upholding the rights of individuals in such case. A public interest litigation was filed in the High Court Division by Human Rights and Peace of Bangladesh (HRPB), challenging the failure of RAB to protect the lives of the arrestees or detainees in its custody. The High Court Division issued a Rule Nisi calling upon the Government, police and RAB to explain why they should not be directed to ensure protection to the people arrested or detained in custody as per law. The hearing on the writ petition is pending. No significant rogress was made in the hearing of appeals against the death sentences and convictions of individuals responsible for killing of Bongobondhu Sheikh Mojibur Rahman and members of his family on 15 August 1975. A similar stalemate situation prevailed in respect of the Jail Killing Case of 3 November 1975, in which former Prime Minister Tajuddin Ahmed and three other national leaders were murdered. Trials in various cases of deaths resulting from recent bomb and grenade attacks, including the grenade attack on Al’s public meeting in Dhaka on 21 August, 2004,(in whch Ivy Rahman, its former Women’s Affairs Secretary, and 21 others were killed) and so SAMS Kibria, the former Minister of Finance and AL Member of Parliament, in January 2005. In order to fulfill its obligation to respect, protect and ensure the right to life, the state is called upon to dispose of cases involving violation of the right to life without inordinate delay.

[29] Deaths resulting from dowry related offences are indicative of the State’s failure to protect life by adopting, investigating and implementing proper legislative measures to restrain the violators and afford adequate protection to women. Similarly, cases of material mortality due to lack of adequate reproductive health care also come within the purview of the right to life.

8. CONCLUSION

To sum up, Dr Shisin S. Chaudhury’s interpretation on right to life guarantees a minimally decent life to the individual. He concluded that “ In a world wherein deprivation of life takes place due to hunger, starvation, malnutriation, the right to live with human dignity would be meaningless unless right to life is viewed as a right guaranteeing fulfillment of basic necessities, which are essential not only for bare survival but for a minimally decent life. The right to life, therefore, not only guarantees protection against arbitrary killing but also requires State to take measures to reduce infant mortality, maternal mortality and increase life expectancy; to adopt measures to eliminate malnutrition and epidemics. Much emphasis has been given to this wider interpretation of the right to life.” The Human Rights Committee (HRC) observed:

“… quite often the information given concerning the right to life has been limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly.”

“…the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot be properly understood in a restrictive manner, and the protection of this requires that States should adopt positive measures ….it would be desirable for State parties to take all possible measures to reduce infant measures to eliminate malnutrition and epidemic[30].

This wider interpretation attached to the right to life raises the crucial issue regarding the responsibility/obligation for implementation of the same. There is a universal consensus that primary responsibility vests on the national governments not only to formulate, design and adopt appropriate policies but also to create conductive environment for its implementation. Every government must support and help to increase production of food both in quantity and quality. Adequate precaution and counter famine initiatives must be taken. Measures like discouraging increase of cash crop production for exportation instead of food crop production must be given priority. Equal opportunities between rural and urban poor must be ensured. Formulation and implementation of appropriate policies and development strategies affecting the life of the population such as promotion of appropriate technology etc. are crucial measures to be adopted by the governments.

[30] General Comment (GC) 6 (16)