A recent notification has conferred the status of ‘Special Executive Magistrate’ upon the Commissioned Army Officers (CAOs) under Section 12(1) and Section 17(1) of the Code of Criminal Procedure, 1898 (CrPC 1898). Section 12(1) of CrPC 1898 naturally grants this authority to the government to confer executive magistracy, wholly or in part, to any person. The CAOs have been authorised to exercise powers under Sections 54, 64, 65, 83, 84, 100, 105, 107, 109, 110, 127, 128, 130 and 142 of CrPC 1898. Although legality is evident, the legitimacy of such a policy warrants scrutiny.
Article 61 of the Constitution of Bangladesh integrates the Armed Forces into the executive organ by vesting the supreme command of the defence services in the President. The government bears the primary duty of maintaining law and order, with Bangladesh Police serving as the core law enforcement agency. In contrast, the foremost role of the Bangladesh Armed Forces is to neutralise ‘external’ military incursions. Nevertheless, grave internal turbulence may at times necessitate military aid to civil power. Such situations are taken care of by Sections 129 and 130 of CrPC 1898, under which the military disperses unlawful assembly in aid and under the command of an Executive Magistrate or a Police Commissioner. Hence, the military’s role is strictly operational, and civil officials command the use of force. Keeping military force subjugated to civil authorities in terms of magistracy is an entrenched part of constitutionalism and in line with the constitutional culture of other vibrant democracies. Unlike these provisions, CAOs authorised as Special Executive Magistrates can now function independent of civil command in respect of the relevant provisions.
- M. Hope identified two sets of circumstances requiring military intervention in a democratic polity: ‘(a) when the police forces are unable to contain violence or to ensure the prevention of violence; and (b) when what is required to be done is not properly within the police role but is properly within the role of the Defence Force.’
The country is now struck in the middle of an island of anarchy and lawlessness. A news-report indicates that 450 police stations have been attacked, many vehicles vandalised and a good number of officials went into hiding. Resultantly, police have become unable to restore order, and when the military stepped in, it lacked the authority to arrest. Given the volatile situation, the CAOs have been authorised as ‘Special Executive Magistrate’ for 60 days, invoking the two age-old maxims – salus rei publicae est suprema lex (safety of the state is the supreme law) and salus populi suprema lex (safety of the people is the supreme law).
A similar provision can be traced in Section 4 of the Armed Force (Special Powers) Act 1958 (AFSPA 1958) of India by which in any ‘disturbed area’ (declared by the governor of the state or the central government), the Army has been authorised to fire upon or use force without civil command against any person acting in contravention of law, to arrest without warrant in certain cases, and to conduct search operations. In Naga People’s Movement of Human Rights v Union of India (1998), section 4 was challenged on the ground that alternative provisions under Sections 130 and 131 of CrPC 1973 (identical to Sections 129 and 131 of CrPC 1898) being available, more drastic provisions contained in Section 4 were violative of the right to equal protection of law. The Indian Supreme Court, however, distinguished the two scenarios, maintaining that sections 130 and 131 of CrPC 1973 deal with isolated cases while Section 4 is concerned with a situation where whole or a part of a State is in a disturbed or dangerous condition. Sections 130 and 131 of CrPC 1973 cannot thus be treated as comparable and adequate to deal with the situation envisaged in Section 4. The distinction can squarely be attributed to our jurisdiction, as the deterioration of law and order now extends beyond isolated incidents. Furthermore, the inactivity of some executive magistrates has rendered general provisions of CrPC 1898 difficult for the army to operate under.
However, the Indian model of identifying ‘disturbed places’ first and then equipping the army with special powers holds little water in our current context. While AFSPA is permanent in operation and is intended to suppress the anti-nationalist activity in the north-east of India, the temporary magistracy given to CAOs in our jurisdiction is only to facilitate joint military operations being carried out throughout the country to restore the status quo.
Unlike Section 6 of AFSPA 1958, CAOs do not enjoy blanket immunity. Moreover, executive magistrates surprisingly exercise some judicial functions under the Mobile Courts Act, 2009. The HCD declared the same unconstitutional in Kamruzzaman Khan v Bangladesh (2017), but the AD stayed the judgment which still stands pending in the apex court. Notably, the CAOs have not been authorized to function under any sections of the Mobile Courts Act. To conclude, the onus rests on CAOs to ensure that they uphold fundamental human rights and adhere to the basic norms of democracy.
About the author :
Md. Ashifuzzaman Anik is a third-year law student at the University of Dhaka. His research interests include jurisprudence, constitutional law, and criminal law.