The High Court could not issue any directive, guideline or observation on extrajudicial killings in law enforcers’ custody as no final hearings were held on two separate petitions and three rules over the last 14 years.
Had those petitions and rules been heard and disposed of, the HC would have been enabled to give directives to the authorities on ensuring protection and security of the accused in custody, legal experts say.
The HC issued three separate rules including a suo motu (voluntary) one at different times, questioning the legality of extrajudicial killings in the custody of law enforcers.
But no progress has so far been made since then as the authorities concerned are yet to reply to those rules.
No date was fixed for the final hearing either, court sources said.
The first HC rule was issued on August 6, 2006 following a writ petition filed by the Human Rights and Peace for Bangladesh (HRPB), asking police and Rab to explain in three weeks why they should not be directed to ensure protection of people held in custody.
Justice Syed Muhammad Dastagir Husain, one of the two judges of that HC bench, has now retired.
The second rule was issued on June 28, 2009, following a joint petition of three human right organisations, asking the government to explain within four weeks why extrajudicial killings in the name of “crossfire” or “encounters” should not be declared illegal.
The court also asked the government to explain why departmental and punitive action should not be taken against those responsible for such killings in custody or elsewhere.
That HC bench comprised Justice Syed Mahmud Hossain, now the chief justice of Bangladesh, and Justice Quamrul Islam Siddique, who is no more.
The third HC rule, a suo motu, was issued on November 16, 2009, asking the government to explain within 48 hours about the extrajudicial killings of two operatives of outlawed Purba Bangla Communist Party in the custody of Rab.
Justice AFM Abdur Rahman, one of the two judges of that bench, has now retired.
The long delay in hearing on the rules due to inaction from the government and apparent lack of perseverance from the petitioners has left the serious public interest issue in limbo.
And in the meantime, extrajudicial killings, which is a violation of human rights and against the constitution, continued, said legal experts.
A total of 1,426 incidents of custodial death took place since January 2017 to July 2020, according to a study report of Ain O Salish Kendra (ASK). It includes 207 deaths in “encounter”, “crossfire” and “gunfight” in the first six months this year.
The ASK findings are based on the reports published in different leading newspapers.
“Extrajudicial killing is a gross violation of the constitution and law and such incidents are not acceptable in any manner,” said Supreme Court lawyer and ASK chairperson ZI Khan Panna.
“The HC must not give any directive in favour of violation of the constitution and law,” he said, referring to the yet-to-be disposed of rules.
The lawyer also said they would take steps for holding of hearing on the HC rules over extrajudicial killings after the pandemic was over.
Manzill Murshid, another SC lawyer who moved one of the two writ petitions, said his clients sought HC directives for the law enforcers to ensure proper protection of a detained accused when he is taken away to recover arms.
He also observed that it is important for the government, political leaders and law enforcers to reach a consensus to stop extrajudicial killings in custody.
Khurshid Alam Khan, a Supreme Court lawyer and editor of Dhaka Law Reports, told The Daily Star that the HC might have given some guidelines about protection of the detained accused in custody had the rules been heard and verdicts delivered.
He said it has been a long since those rules were delivered.
“And when the hearing resumes, it might be the case of starting all over again due to the reconstitution of those HC benches concerned,” said Alam.
Contacted, Ministry of Law Secretary Md Golam Sarwar said on September 7 that he could not say about the issue without seeing the record.
Home Minister Asaduzzaman Khan Kamal could not be reached over their cell phones for their comments on this issue.