Roksana Akhter, Senior Lecturer, Department of Law, Dhaka International University, writes in Daily Star.
ONE of the most atrocious occurrences in the history of Bangladesh has taken place in the downtown of the capital where nation has lost many of its bravest army officers from this barbaric bloodshed at Pilkhana, BRD Headquarter. The unanimous demand has been raised throughout the nation that the perpetrators be punished. But due to inadequate provisions in the existing Bangladesh Rifles (BDR) legislations the administration is in quandary as to which law to be followed in bringing the executor to justice. The Government has announced to set up a special tribunal to try the criminals but this procedure might face challenges in terms of its validity. In this connection I would like to appraise the existing legislations under which the culprits can be punished effectively within quickest possible time and thereby expectation of the nation can be materialised.
The Bangladesh Rifles has been raised and maintained as a Force in accordance with the provisions of the Bangladesh Rifles Order, 1972 (P.O. 148 of 1972) and defined as 'disciplined force' within the meaning of Article 152 of the Constitution. But the application of BDR law in the situation in question seems to be futile as it does not provide for the trial of Superior Officers namely, Deputy Assistant Director, Assistant Director & Deputy Director, or the civilian employees serving in BDR. However, P.O. 148 of 1972 contains provisions on trial of Subordinate Officers and Riflemen only for offences like mutiny through Special Court but maximum punishment is up to seven years rigorous imprisonment.
If the Director General (DG), Bangladesh Rifles is vested with the power of first class Magistrate by the Government under Article 16A of the said Order, he may try the offences under the Penal Code, which are committed by the Subordinate Officers and Riflemen against other Subordinate Officers or Riflemen or Signalmen of the force, but the same does not apply to offences against the Army officers.
The Bangladesh Rifles (Special Provisions) Ordinance, 1976 (Ord. no. 85 of 1976) deals with only the departmental proceedings whereby penalties of dismissal, removal, discharge or compulsory retirement from the service can be imposed on all the members including civilian employees. But the offences committed by the unruly rebels, as it appears from the initial investigation, deserve capital punishment and as such the above Ordinance does not meet the requirements of proposed trial.
It is pertinent to note that the army officers serving at BDR on deputation remain subject to the Army Act, 1952 until duly retired, released, discharged, removed or dismissed from the service. The DG, BDR is already empowered to convene General Court-Martial under the Army Act and such courts have power to try any offence punishable under the Act and to pass any sentence, maximum being death, authorised by the said Act.
As per Section 5 of the Army Act, the Government may, by notification, apply all or any of the provisions of this Act to any force raised and maintained in Bangladesh under the authority of the Government. It is fitting to mention here that the term force has not been defined anywhere in the Army Act. However, Section 5, sub-section (2) clearly contemplates that the force referred to in sub-section (1) of section 5 must be a force organised in line with the army rank structure. So far BDR is concerned, there can be no doubt that it is a force organized on army pattern with units and sub-units and rank structure.
The composition, administration, organisation and role of BDR clearly show that it is an integral part of the Armed/disciplined Forces being the prime paramilitary force intended primarily to support the army in its operational requirement. Army officers are posted in BDR units according to a carefully planned manning policy so that BDR units can in time of war or hostilities be able to provide effective support to the army. Nevertheless BDR personnel are given training at Army training centres & schools in their different levels of career in line with Army training. Thus the functions and duties of BDR are indivisibly connected with operational plans and requirements of the Army.
There can be no doubt that without the efficient and disciplined operational role of BDR the military operations in border areas during peace as also in times of war will be seriously hampered and a highly disciplined and efficient BDR is absolutely essential for supporting the operational plans and meeting the operational requirements of the Army or Armed Forces at large.
Therefore, the members of BDR can be described as the members of the Armed/disciplined Forces within the meaning of the Article152 of the Constitution and consequently the application of Army Act, 1952 to the members of BDR could be said to have been not barred by that Article and the fundamental rights of the BDR personnel are also validly restricted under Article 45 of the Constitution and Article 16C of the P.O. 148 of 1972.
In view of the above, if the Government may, by notification, apply all or any provisions of the Army Act to the members of BDR in ensuring speedy dispensation of justice and to that end the concerned Ministry may issue necessary notifications/SROs for smooth discharge of duties of the officers concerned with military tribunal (Court-martial) including their jurisdiction, powers and duties incidental to the operation of the Act.
It is also significant to bring up here that if the Army Act is applied to the members of BDR, the mastermind of the mutiny can also be brought to trial under section 2(1) (d) (i) & (ii) of the Army Act. As soon as the mutineers become subject to the Army Act, their right to move to the Supreme Court for the enforcement of fundamental rights shall be automatically restricted and the trial can be completed at the quickest possible time by several courts martial.