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By Md Azhar Uddin Bhuiyan
Z I Khan Panna v Bangladesh (‘Case’) is a landmark judgment in Bangladesh, wherein the Supreme Court interpreted the indemnity clause in the Constitution in a progressive and harmonious manner. This case relates to the infamous ‘Operation Clean Heart’ ordered by the then Bangladesh Nationalist Party (BNP) – Jamaat alliance led government, during the period between October 2002 to January 2003, with a view to allegedly end countrywide violent crimes.
Non-governmental sources argue that 44 people died in custody and hundreds sustained injuries following torture during the operation, whereas the government confirmed only 12 deaths, arrest of 11,245 people, and claimed that “all the victims” died of “heart attacks in hospital” after being handed over by the police. In 2003, the Joint Drives Immunity Act 2003 (‘Act’) was enacted, indemnifying the members of the joint forces (consisting of Army, Navy, then Bangladesh Rifles (BDR), and another auxiliary force named Ansar) for such acts of torture.
When the constitutionality of the Act was challenged in 2012, the Supreme Court was asked to decide whether, and under what circumstances, a wholesale indemnity could be given for violation of human rights in Bangladesh. Article 46 of the Constitution enables Parliament to indemnify anyone by law for violations of human rights in the guise of maintaining or restoring order in any area in Bangladesh. This seems to create a conflict with the provisions of Articles 31 (right to life and liberty) and 32 (right to equal protection of law) of the Constitution.
A comparative constitutional lens makes apparent that the power granted to the Parliament of Bangladesh under Article 46 of the Constitution is extra-ordinary in nature among countries in the Indian Subcontinent. Article 46 of the Constitution of Bangladesh is a verbatim transplantation of Article 237 of the Constitution of Pakistan. The Indian Constitution contains a similar indemnity clause under Article 34, however it puts in place an additional requirement of there being martial law in force at the time of the commission of an act that may be indemnified. On the other hand, there is no provision to indemnify someone’s act in connection with whatsoever in the Irish Constitution (the Constitutional Model of Ireland was specifically referred to during the constituent assembly debates of Bangladesh in terms of protection of different types human rights) and in the Constitution of other sub-continental country like Nepal, Maldives and Sri Lanka, while the South African Constitution, often regarded as the best model of protection of human rights, expressly provides that no law may indemnify the ‘state’ or any other person in respect of any unlawful act. The constitutions of other sub-continental countries including Nepal, Maldives and Sri Lanka do not contain indemnity clauses. Beyond the subcontinent, the South African Constitution (Article 37.5) expressly provides that no law may indemnify the ‘state’ or any other person in respect of any unlawful act.
In this Case, the Court declared that there is no scope for providing any blanket indemnity to the perpetrators of crimes under Article 46. While unanimously holding the Act to be unconstitutional, Justice Ashraful Kamal explained the meaning of “in connection with the maintenance or restoration of order in area” in Article 46. He was of the view that “the question of maintaining or restoring law and order system comes only when the law and order system is destroyed. Destruction of ‘law and order’ or ‘law and order less’ situation purports to mean such a situation where anarchy is existent, and general people aggregately become reckless or violent, where no one respects the law and acts according to one’s own will…. or where a civil war starts in the country or where the country is fighting a war with another country.” The Court thereby narrowed down the scope of Article 46 to a situation of anarchy, civil war or external war.
The Constitution of Bangladesh gives the authority to declare war, in respect of both external and civil war, to Parliament. Therefore, indemnity can be granted by an Act of Parliament under Article 46, only if there is a prior declaration of war by Parliament. Such a requirement can only be waived when there is anarchy, i.e. the law and order system is completely destroyed.
The interpretation of the Court in narrowing down the ambit of the power granted under Article 46 is well reasoned, and a landmark development of indemnity law jurisprudence. However, the Court should have further narrowed down the provision, by adding that “even in case of civil war or international armed conflict, the provisions of the Geneva Convention cannot be violated.” Bangladesh is a signatory to the Geneva Convention, and this Case presented an opportunity for the Court to interpret Article 46 in compliance with Bangladesh’s international legal obligations.