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When the police break the law

  • Published at 10:58 am November 16th, 2018
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Can we trust them? RAJIB DHAR

We need legal safeguards against the abuse of police power

In the recent past, Bangladesh has witnessed a noticeable propensity of the use of police force in achieving political goals. It was certainly present in the history of Bangladesh, but the trend is more notable now. 

Many of these actions have been caught on camera, shown on national and international television, and also subjected to strong criticism by reputed newspapers. The pictures and videos have gone viral on social media, and as a result of these, possibly few are left in the dark about these unlawful actions by the police. 

Such conduct by the police violates the fundamental rights of the victim, namely, the right to life and bodily integrity (Article 31), protection from torture, cruel, inhumane, and degrading treatment and punishment (Article 35), or freedom of assembly (Article 37).

It is already very unjust that the fundamental rights of the victims are being violated -- what makes it worse is when the victim has to pay for his/her treatment, and suffer other monetary losses.

Monetary compensation can ease that pain somewhat. Also, compensation can serve to ensure and reassure the people of the fact that they live under a legal system, which values their fundamental rights, and works toward protecting it.

Prosecution of police officers is often tainted with negligence by public prosecutors, since the public prosecutors in Bangladesh are selected through a political process by the ruling party. For example, in July 1997, four police officers accused of raping Shima Chowdhury were acquitted by a trial court in Chittagong. 

The prosecution was reportedly criticized by the judge for presenting a weak case. Awarding monetary compensation under Article 102 of the constitution can serve as a much more efficient way of addressing the suffering of the victim.

A probable question which may arise is whether the High Court Division (HCD) has the jurisdiction to award monetary compensation in this type of cases. In Bangladesh v Ahmed Nazir (1975), the Appellate Division held that it is left to the discretion of the court to decide what remedy shall be granted after considering the circumstances. 

Such a question was dealt with by the Supreme Court on various occasions. For example, in Bilkis Akhter Hossain v Bangladesh (1997), the High Court Division held: “It is a long drawn tradition, custom, or discretion of the High Court Division that in every writ case this court always passes judgment either with cost or without cost. 

“Since this court has got extraordinary and inherent jurisdiction to pass any order as it deems fit and proper, we are of the view that this court has the power to award simple cost of the case as well as monetary compensation considering the facts and circumstances of each case.” 

In the same case, the High Court Division also remarked that competency to grant monetary compensation not only gives the rights strength, it also serves to amend the wrong done with bad intention by the state in the name of public interest.

Some may argue that the practice of claiming compensation for the violation of fundamental rights may open the floodgates to numerous public interest litigations (PIL). In order to claim monetary compensation under the writ jurisdiction, the petition must be filed by the victims or the family of the deceased victims.

Since in Bangladesh we are still lacking legislation for torture claims, granting monetary compensation under public law can help the victims of fundamental rights violations. 

Article 32 of the Indian constitution and Article 44 of our constitution are often found to have similar applications. 

Justice JS Verma rightly opined that: “The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights.”

It is high time for us to apply this principle of public law in our legal system in order to protect our citizens, and fix the liability for wrong done by the state. 

Nafiz Ahmed is a Teaching Assistant at Department of Law, NSU.

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