Shamsuddin Chowdhury Manik:

As the occurrences of extra-judicial homicide have, quite cogently, become a peak area of general discussion and scrutiny, it is apt to trace the origin of this infernal malignancy.

History gives us to believe that in the olden days invaders of gruesome ferocity like Alexandar, Chengis Khan, Timur Lang, Sultan Mahmood and Nadir Shah ordered mass killing of guileless people at whim, sometimes to ignite panic amongst  the vanquished, but more often to demonstrate their  bigotry and prowess disposition.

Heads of several thousand people rolled at the caprice of paranoid and tyrant British Monarch Henry- VIII, whose victims included two of his wives on trumped charges of adultery and incest. His equally nefarious daughter, Elizabeth Tudor, was no less inappeasable in quelling dissent.  Historical track depict large scale extermination by the Tsar regime in   pre Bolshevik Russia with the connivance of Rasputin. Innumerable opponents of Jacobins were guillotined during the Reign of Terror following the French Revolution. Incidents of extensive carnage of innocent people by the   Pakistani occupying forces and their native poodles, during the period of our glorious liberation war, exceeded all instances of genocide in the recorded history.

In the relatively recent time, episode of extra-judicial killings to thwart popular upsurge characterised the despicable reign of Suharto of Indonesia and Pinochet of Chile. Both were indicted for extra judicial mass homicide, but the trial against Suharto had to be disenrolled because of his frail health, while despised Pinochet’s perilous sins are still haunting him.

Harrowing executions beyond judicial sanctions, as narrated above, were ordered either by ruthless conquerors, monarchs or despotic authoritarian or totalitarian rulers. There exists no evidence to prove that such killings without judicial scrutiny had ever taken place in  any democracy at the specific and publicity announced extra legal order of the head of the government, except the order to kill at will, the erstwhile Prime Minister , Begum Khaleda Zia  passed on 16th October, 2002. That order was totally devoid of any legal sanction. No legislative process was resorted to (no such law to kill without any judicial dictates, could legally be passed anyway). The Parliament was not intimated.  She deployed a joint force, composed of around 40000 people, picked up from the army, navy, BDR (now renamed BGB) and the police. They were ordered to kill chosen people without recourse to any judicial process. That killing venture was fancifully named by Khaleda Zia as “Operation Clean Heart”, which nomenclature borne amazing similarity with the horrendous genocidal mission Pakistan army perpetrated in Bangladesh with effect from 25th March, 1971. Visibly that killing spree was geared to annihilate as many politically opposing people as possible without any accountability. Reliable independent accounts confirmed extra-judicial killing of people in excess of a couple of hundreds and those lay slay were invariably from the opposing political spectrum.  Even the officially announced figure of the slain people were, by no account, insignificant. In prevarication, the   government purported to justify the barbarity with the pretence that such moves were inevitable to contain hooligans. Such pretext could, however, hold no water in the backdrop of the age old tradition of our judicial institutions, which have been following the tradition of English Common Law with absolute perfectitude , since their inception at the Fort Williams in Kolkata in the year 1774. Futility of such perfidious tales remained obvious to all eyes, even to those who were made to participate under compulsion in the killing rage, being in state of bewilderment.   According to the subsequent High Court Judgment, number of People placed in unlawful confinement, subjected to savage torment, mutilation etc could be computed in hundreds. This extra-judicial killings frenzy subsisted for a period of 85 days i.e. till 9th January, 2003. Credible national dailies reported that hundreds of innocuous people, in addition to those who were reduced to pitiable mortuary, were illegally rounded up, were subjected to mutilation and had their properties, both movable and immovable, seized. Human rights violation, as mentioned by the High Court, by reference to unimpeachable media reports, were widespread and rampant.

The   vile strangulation of human rights did not end in the dreadful murderous frenzy and other forms of mischiefs, as noted by the Hon’ble High Court, in multiplication of the culpable  events, their aftermaths and cruel ramification, Khaleda Zia took a decision to insulate the perpetrators, who had to carry out her executive orders with some degree of enigma though, from all sorts of criminal and civil liabilities and then translated her diabolic resolve to reality by purportedly enacting a law, under the name and style. “Joutho Bahini Daymukti Ain” (in Bengali) (Act 1 of 2003) which was published in Bangladesh Gazette Extraordinary dated 24th February, 2003. By that infructuous enactment, she attempted to provide immunity and sanctuary against legal process of all sorts to those state functionaries who implemented her obnoxious orders to kill in breach, not only of our constitutional guarantee, civil and criminal legislations, but also in flagrant violation of the provisions that stand stipulated in the Universal Declaration of Human Rights, Convention against Cruel and Inhuman torture and other UN human rights instruments.

Translated from the vernacular, not verbatim, into English, section 3(Kha) of the  purported  legislation, would, succinctly read as follows; “No prosecution or suit, whether civil or criminal, or no other kind of action or proceeding in any Court shall be maintainable against the government or any member of the government or any government official or any functionary of the law enforcing forces or against them who ordered them to enforce  the government order dated 16th October 2002 or at any subsequent time or against any such order passing agencies, if such moves resulted in the loss of any life, damage to any person’s life, or in the violation of any person’s rights or if such moves harmed anybody financially, physically or mentally or engendered any situation to air  any grievance by any person in any other manner,  and no question can be agitated in  any Court in connection with anything done as stated above, provided that if any action or proceeding is initiated in any Court or if any Court passes any judgment, order or decision, such shall be deemed void and ineffective.”

Salient part of section 2 of the purported legislation, succinctly translated, reads, “All persons who passed orders and all those who implemented such orders in compliance of the government order passed    on 16th October 2002, and all such personnel of the disciplined forces who participated in implementing the said government order dated 16th October 2002, are hereby indemnified from all kinds of liabilities.’ In summary, attempts were by the vitiated legislation to accord wholesale indemnity and free passage from all kinds of legal process and liabilities to all those who were involved in the atrocities and let loose the hell on innocent citizenry. Those brought under the purported shield, included the government, government functionaries, members of the forces and those personnel who passed orders upon the members of the forces, if in  implementing such orders, people were put to death, maimed, subjected to physical mental or financial injuries or damage or if their rights were torn apart. The infructuous Act stipulated that “No legal proceeding shall lie in any court due to any harm to one’s life, liberty or property or any mental or physical damage stemming therefrom, if such injury was caused by the actions taken by the disciplined forces pursuant to the order dated 16th October, 2002 and other subsequent orders. Section 2(Kha) further provided that any proceeding initiated in any court relating to the actions taken pursuant to the said orders within the said period of time and any decision rendered by such court shall be considered void, ineffective and abated. It deserves to be illustrated that the aforementioned futile legislation at the instance of a democratically elected Prime Minister, was unprecedented in any democracy, as much as the executive order under the name “Operation Clean Heart” itself was, which was, for all purposes, a license to kill at will. Example of immunity and indemnity from legal process for such felonious crimes, as cold blooded murders, is rarely traceable in the modern days, except that similar indemnity was purportedly granted by Khondokar Mostaq and General Ziaur Rahman to protect  the killers of the Father of the Nation, Bangabandhu Sheikh Mujib in September, 1975. An indemnity law was passed as President’s Order 16 of 1973, to provide protection to those who acted to liberate Bangladesh during our glorious war of Liberation. Hence that indemnity law, quite a valid one, inherently and conceptually does not stand to be compared with any other purported indemnity attempts.

The said depraved legislation was quite congruously challenged before a Division Bench of our High Court Division, comprising their Lordships Justices Moyeenul Islam Chowdhury and Md. Ashraful Kamal and the challenger was none other than Advocate Z.I. Khan Panna, a senior and eminent lawyer of our Supreme Court, who rose to acclamation by pursuing many pro-human rights litigations. The challenge was founded on the constitutional provision that allows judicial review of legislation. The High Court Division had no enigma in declaring the said purported legislation void, ab-initio (from the very inception) as being repugnant to the provisions figured in our constitution.

Parts of their Lordships deliberations are reproduced below, verbatim, for undistorted   understanding of the extent  and the savagery  of human rights violation that were perpetrated during the period in question at the instance of none other than  the democratically elected former Prime Minister of the Republic herself; “The petitioner is an advocate of the Supreme Court of Bangladesh. Over the years he has tried his best to uphold the supremacy of the constitution and the fundamental rights of the citizens of the country. Anyway, “Joutho…Bahini Daymukti Ain 2003” was promulgated on 9th January 2003, providing for the indemnity of all disciplined forces and government officials for the detention, arrest, search, interrogation and such other actions taken against the citizens between 16th October 2002 and 9th January 2003 pursuant to the order dated 16th October, 2002 and other subsequent orders of the government. Thereafter “Joutho Bahini Daymukti Ain 2003 (hereinafter referred to as the Act no 1 2003) was enacted by the House of the Nation and was published in Bangladesh Gazett Extra Ordinary on 24th February 2003 to provide for the indemnity of the members of all disciplined forces and public functionaries to that effect. Section 3 (kha) of Act no 1 of 2003 purports to stipulate that no legal proceeding shall lie in any court due to any harm to one’s life, liberty, or property or any mental or physical damage stemming therefrom if such injury was caused by the actions taken by the disciplined forces pursuant to the order dated 16th October 2002 and other subsequent orders made by the government. Section 3(kha) further purports to stipulate that any proceeding initiated in any court relating to the actions taken pursuant to the above mentioned orders during the said period of time and any decision rendered by such court shall be considered void , ineffective and abated. However, on the plea of maintenance of the law and order situation of the country, curbing terrorism and recovering illegal arms miscreants etc, the government issued an order on 16th October, 2002 to the disciplined forces to conduct drives under the name and style “Operation Clean Heart” all over the country as and when required and accordingly they conducted drives till 9th January 2003.  During the drives of the Joint forces during the period under reference, there were rampant allegations of violation of human rights and unlawful acts. Horrendous crimes such as harassment of people, illegal arrests, trespasses, illegal seizure of property, torture, mutilation and killing of a considerable number of people in custody were committed. During that period there were reports appearing almost every day in the national daily newspapers and electronic media about the widespread human rights violation and heinous crimes committed by the joint forces. The Daily Prothom Alo, the Daily Star and other daily news papers carried the reports of victimisation of the people and the brutalities perpetrated upon them and custodial deaths. As per those papers clippings, during 85 days (eighty five) of the drives conducted by the joint forces, at least 43 (forty three) people were killed in their custody. The losses suffered by the victims of the so called Operation Clean Heart could be redressed both under civil and criminal jurisdiction of the courts of law.”

“It transpires that under Section 3 ( ka)of the impugned Act no1 of 2003, all the orders made by the government from 16th October ,2002 to 9th January, 2003 ; all acts and orders done or given by the joint  forces within such period and all arrests, detentions, searches, seizures and interrogations and all other such acts done by the joint forces during that period have been given an absolute and unqualified indemnity; but type of indemnity to any person or force or personnel is totally unknown and foreign to the notion of the rule of law, which is a basic feature of our constitution and fundamental to the governance of  Bangladesh. As such, Section 3 (ka) of the impugned Act no1 of 2003 is repugnant to and inconsistent with the Constitution. By way of according absolute and unqualified indemnity under Section 3(ka) of the impugned Act no1 of 2003 the members of the joint forces and all their actions during the period between 16th October 2002 and 9th January 2003 have been put above the law of the land, thereby creating a supra-law entity purportedly above and beyond the Constitution which itself destroys the very foundation of the rule of law and equality before law as enshrined and guaranteed in the Constitution.”

“As we see it, Section 3 (kha) of the impugned Act no1 of 2003, imposes an absolute prohibition on the citizens of the country to seek any legal redress, whether civil or criminal, in any court against any member of the joint forces involved in any kind of operation during the aforesaid period, purporting to violate their legal and constitutional rights. Such an absolute prohibition is inconceivable, unjustifiable and barbaric and is destructive of the Constitutional scheme of the rule of law and the fundamental right to protection of law as guaranteed by the Constitution.”

“It is explicitly clear from Annexure -B series to the writ petition, that during the period from 16th October 2002 to 9th January 2003 hundreds of thousands of citizens suffered financial losses by being vandalized or ransacked. Furthermore the families of those killed were deprived of the earnings of the deceased. As such they were subjected to pain, suffering, anguish and other mental or psychological trauma for all of which those citizens have the right to compensation stemming from the violation of their fundamental rights guaranteed by Articles 27,31, 32,35(3) 35(5) and 40 of the Constitution.”

“From the discussions made above and regard being had to the facts and circumstances of the case, we find that the impugned Act no1 of 2003 is not a valid piece of legislation and it is liable to declared  void ab initio and ultra vires the Constitution.”

By declaring the abortive legislation void, the High Court Division  plunged into oblivion Khaleda Zia’s unholy and grotesque venture to   insulate from the clutches of law those people who indulged in the   pageantry of extra-judicial killings, tortures, unlawful detention, mutilation, seizure of property and other  forms of  feculent human rights violation (sometimes with reluctance), thus ended in fiasco.

In declaring the so-called indemnity legislation void, the Hon’ble High Court were not oblivious of the mandates that emanate from such international instruments as the Universal Declaration of Human Rights and the Convention against Torture.

The writer is a retired justice of the Supreme Court of Bangladesh