HC allows Operation Clean Heart victims to sue army-led joint force

The High Court on Monday released its full verdict, the summary of which had on September 13, 2015 declared the actions taken by army-led joint forces under the code name Operation Clean Heart between October 16, 2002 and January 9, 2003 as ‘illegal’.
The verdict also declared the Joint Forces Operation Indemnity Act 2003 as ‘illegal’.
It says, Parliament cannot make any law contrary to the fundamental rights as enshrined in the Constitution. 
The full verdict states that the victims or the dependents of those killed in custody during the Operation Clean Heart ‘will be at liberty’ to file both civil and criminal cases seeking justice against the concerned members of ‘the joint forces or law-enforcing agencies’ who committed the crimes.
It states that the aggrieved ‘may also invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution for compensation’, in addition to seeking reliefs under prevalent civil as well as criminal laws.
The verdict states that ‘the quantum of compensation’ to be assessed and awarded to the victims or to the dependants or family members of the deceased’, as the case may be, would vary from case to case depending upon the facts and circumstances of the actions. 
Since no victim has personally filed writ petitions demanding compensation, the court refrained from passing wholesale orders for the payment of compensations to the victims of brutalities or torture or to the dependants/family members of the victims in the events of their deaths in the custody of the State.
‘Nevertheless, they will be entitled to call in aid’ in the High Court Division for pecuniary compensation ‘to be paid to them by the State for the unlawful and unconstitutional State actions during the ‘Operation Clean Heart,’ says the verdict. 
It says, ‘Besides, the State may take necessary steps for enactment of a law like the Philippines Human Rights Victims’ Reparation and Recognition Act of 2013 to provide for reparation and recognition to the victims/affected persons of human rights violations during the ‘Operation Clean Heart’, if deemed fit and proper.’
Anyone subjected to torture by the law enforcement agencies has the right to seek the protection of the law, independent courts or tribunals, says the verdict.
It is the legitimate duty of law enforcement agencies to arrest and interrogate an accused during investigation of an offence but the law does not permit the use of third degree tortures in custody during the investigation, says the verdict.
A bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal delivered the landmark verdict in a public interest litigation writ petition filed by Supreme Court lawyer ZI Khan Panna.
The petition challenged the constitutionality of the Operation Clean Heart’ and giving immunity of the joint forces through the Joint Forces Operation Indemnity Act 2003.
The PIL writ petition said that the BNP-led government on October 16, 2002 formed the armed forces-led joint forces.
Petitioner’s lawyer Shahdeen Malik cited newspaper reports on the drives carried out by the joint forces to illegally arrest, harass and kill people in custody, trespassing in their homes, seized and damaged their properties.
He submitted that no blanket immunity could be given to the joint forces who killed at least 58 people, left hundreds of others injured, maimed and caused financial losses to them besides arresting over 11,000 people.
 

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