There are two types of murder in the world that are not illegal. One is sentencing someone to death by means of a fair trial. The other is killing in self defence. But these have all sorts of conditions attached in the penal codes of various countries.
Our country’s penal code also has strict conditions concerning killing in self defence. For example, I can only do so if sometime is trying to kill me and if the only I can prevent this is by killing that person. The most important condition for manslaughter in self defence is to use equal force. If someone comes to hit me with a stick, I cannot shoot him in the head with a gun. I will first threaten him with the gun, open blank fire and then, if compelled, shoot him in the leg. If I kill someone without adhering to these conditions, I will be charged with murder and may even be hanged.
In the case of the law enforcement agencies, these conditions are to be followed even more stringently. Along with the right to self defence, the law also provides the right to defending others. In this light, the police’s responsibility is not just self defence, but also to use force, if necessary, to protect the lives and property of others and state property as well.
However, there is a general question as to whether this force is always used lawfully. In recent times, during rallies and demonstration against the visit of Indian prime minister Narendra Modi, around 17 persons died in police fire and many more were injured. Many cases have been filed regarding Hefazat’s violence and mayhem during these programmes and a huge number of unidentified people have been made accused in these incidents. The police has warned them of even sterner action. Such violence and mayhem must certainly be brought to book and the persons involved must be punished. At the same time, the killings in police fire must also be investigated and the government has the responsibility to ensure justice in this regard.
The Bangladesh law supports the use of force by police, but on certain conditions. Section 128 of the Code of Criminal Procedure gives the police the power to disperse any unlawful or dangerous assembly, but Section 130 (2) requires the use of as little force as possible with as little injuring as possible to the people.
Police Regulation of Bengal (PRB, Section 154-158) gives the police the authority to use firearms on three situations — for self defence, to disperse unlawful assemblies and, in special cases, to ensure arrest. In the case of self defence, excessive force cannot used. There is permission to resort to shooting as an extreme measure is tackling an assembly that places public safety at risk, but only if it is impossible to disperse the assembly in any other manner. If firearms are to be used, this must be done in a controlled and careful manner so that there is no avoidable damage. The PRB also says that a full-fledged executive inquiry must be made to look into whether the use of firearms was justified or not.
International laws and practice in this regard are even stricter than these laws (penal code, CrPC, PRB) drawn up in colonial times. In 1990 the UN law enforcement agency took up 26 basic principles on the use of firearms. There it says that force cannot be used except against the imminent threat of death or serious injury, damage and injury must be minimised and human life must be respected and preserved, the least possible force must be used, adequate warning must be given before using firearms and non-lethal weapons must first be used to protest the protesters’ lives. It also says that the government must have guidelines for the use of firearms, speedy and proper treatment of the wounded must be ensured and the person subject to force must be ensured of the right to legal action.
In the developed world, a large portion of the police are not even given firearms in order to limit their use of force. Less lethal or non-lethal equipment (like pepper spray, rubber bullets, stun guns and smoke and sound sponge grenades) are used to disperse rowdy mobs. In tackling the angry protesters in the Black Lives Matter demonstrations in America, no one was killed in police fire. It was in a different incident to resist the frenzied crowd that that attacked the Capitol Hill, that four people died. A police officer was killed and many policemen injured in trying to control the mob. There was all signs of police action being justified in dealing with the mob’s armed attack, their threats to loll the US vice president and speaker, the police death and injuries. But that did not prevent the inquiry into the death of the for protesters.
The police force is a state institution, not of any government. The police’s wages and livelihood is paid with public funds, not with that of any party or particular government. No police official should make any statements contrary to this.
In Bangladesh, too, there is necessity to inquire into police fire. It is not clear when and under what circumstances the police opened fire over the past few days in Hathazari, Brahmanbaria and other areas. However, the details appearing in media reports give rise to certain questions. For example, we saw pictures of brickbats being hurled from Hefazat’s procession in Hatharazi, breaking the windows of the police station. The home minister later said that a police cadet was injured in the incident. The question is, was the killing of four persons and injuring of many more in police retaliation and proportionate application of force? Before opening fire, did the police give any warning, use blank fire to try to disperse them, and aim at their legs rather than their bodies?
On the previous day, even after police opened continuous fire, no one was killed. The question is, couldn’t the death of the four persons be avoided in brining the demonstration under control in Hathazari? It was predictable that there would be a backlash in the extremely dangerous area of Brahmanbaria. Despite there being an adequate number of police and BGB members there, it is alleged that they initially did not take proper measures to resist the gathering. When the situation spiraled out of control, the 13 people were shot dead by the police. Hefazat puts this number at 15. This includes death allegedly caused by injuries to the head by police bullets.
Bangladesh law necessitates an inquiry into whether the police had taken timely action and whether the police’s use of force was proportionate. The law also necessitates an inquiry into allegations of the threats of pulling one’s liver out of any protest against Modi was launched, the attack on the peaceful rally of the left student organisations and Chhatra Odhikar Parishad, and the attack on the madarassa on the night before the mayhem took place in Brahmanbaria. The government must perform these duties.
Above all, the police must act lawfully in tacking a riot situation. The police’s competence in tackling such situation must be increased (such as the use of non-lethal or less lethal equipment), their neutrality must be established in taking adequate preventive measures (enforcing Section 144, arresting in advance instigators of trouble or possible troublemakers, regardless of party affiliation), the police must be adequately trained in riot control, and they must development an awareness of human rights.
It must be kept in mind that the police cannot shoot anyone dead in an controlled manner. The police force is a state institution, not of any government. The police’s wages and livelihood is paid with public funds, not with that of any party or particular government. No police official should make any statements contrary to this. There must be an assurance of investigating the incidents of killing by police fire alongside the trial of the Hefazat mayhem over the past few days. Rather than carrying out these responsibilities, if statements are made to the effect that the police will turn even sterner, this may place human rights and public safety at further risk.
* Asif Nazrul is a professor of law at Dhaka University
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir