Sami SarkisTHE hon'ble home minister's apparently explanatory statement, describing the crossfire incidents as acts of self-defence by law enforcement personnel, brings into sharp focus the use and abuse of force by state organs. The question of proportionality in the use of force by those in authority has always been a vexing issue. Cynics, however, say that in finding out the justification or otherwise of the use of force, the bias has been against people and in favour of the governments.
One may have to appreciate that in an environment of large-scale institutional malfunctioning, particularly in developing societies, politics acquires an appetite for all spaces, both public and private. In such eventualities, violence becomes political in a sense. Our state response in such a scenario relies largely on the police machinery for both information relating to conflict and violence and analysis and interpretation of violence in terms of their nature, causes and solutions.
In Bangladesh, the political class has often shifted its burden of providing an adequate response to the extremist depredations, particularly in the south-western region, to the police. There has been, as yet, no serious effort to examine if terms like "law and order," "public order," or "security of state" have been used to deploy state violence with little accountability.
Similarly, it would appear that not much attention has been devoted to ensuring the lawful and legitimate use of prohibitory orders. There is a general specification to the effect that minimum force be used, but such use of force has often led to loss of life and property.
Governments in our environment have to appreciate that power should be exercised in the defence of rights rather than in their suppression. Care has to be taken to see whether lawful exercise of power may lead to civil tumult; one has to take cognisance of the fact that the first duty of the government is the preservation of life and property, and, to secure that, power is conferred by law.
State powers to be exercised should never be disproportionate, but should always be, as far as possible, commensurate with the exigencies of any particular situation. The power to cause physical harm ought to be exercised carefully, and interference with private rights reduced to a minimum and regulated by full observance of the legally imposed limitations.
The right of private defence cannot be unqualified because that would lead to vendetta, with resultant social disorder. Such right of private defence of the body extending to causing death is justifiable only upon the plea of necessity, and such necessity only arises in the prevention of forcible and atrocious crimes. The harm caused should be preventive and not punitive.
Some cardinal conditions, as listed below, have to be satisfied before the taking of the life of a person is justified on the plea of self-defence:
* The defender must be free from fault in bringing about the encounter;
* There must be presence of impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity;
* There must be no safe or reasonable mode of escape by retreat; and
* There must have been a necessity for taking life.
The person claiming the right of private defence extending to the causing of death must be under a bona fide apprehension or fear that death or grievous hurt would otherwise be the consequence of the assault on him if he did not defend himself.
The deaths in crossfire, along with the prevailing circumstances, need to be scrutinised in the light of the stipulations above to examine if such deaths actually resulted from acts of self-defence by security personnel.
Muhammad Nurul Huda is a columnist of The Daily Star.
SOURCE: The Daily Star
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Posted By Bangladesh Institute of Human Rights (BIHR) to BANGLADESH INSTITUTE OF HUMAN RIGHTS -BIHR at 1/02/2010 11:02:00 PM
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