OPERATION CLEAN HEART : HC declares actions of operation illegal [ Tritiyo Matra News ]

OPERATION CLEAN HEART : HC declares actions of operation illegal

Local September 14, 2015

The High Court on Sunday 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 court also struck down the Joint Forces’ Operation Indemnity Act 2003 which gave immunity to the participants of the Operation Clean Hear as void and ultra vires to the Constitution.
The court said in the verdict that the dependants of those killed during custody or those who survived with injuries ‘can invoke writ petition for monetary compensations to be paid to them by the government for the illegal, unlawful and unjustified State action’.
The aggrieved persons would be at ‘liberty’ to file cases against the perpetrators, the members of the joint-force or the law enforcement agencies both under civil and criminal laws and the victims may also invoke the writ jurisdiction of the High Court for compensation in addition to relief under the civil and criminal law, said the verdict.
A bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal delivered the verdict in a public interest litigation writ petition filed by lawyer ZI Khan Panna challenging the constitutionality of the Joint Forces Operation Indemnity Act 2003.
‘Since there was a public interest litigation and no affected persons or victim personally invoked writ petitions for awarding the compensations we refrained from passing any order of compensations to the victims or the dependant in the case of custodial case,’ said the court.
The verdict said that adequate compensations could be awarded to the victims of human right violations in the custody of law-enforcement agencies or theirs dependents in the cases of custodial deaths.
The quantum of compensation to be award to victims or their dependants could vary from case to case, said the verdict.
It said there were no hard and fast rules regarding compensations.
Section 3 of the indemnity act that bars any court from initiating any legal proceedings for any damage to life, liberty or property of any person caused by actions taken by the disciplined forces in pursuant to the operation had demeaned the authority of the court and denied the separate powers of the judiciary.
The verdict said that the indemnity provided to the actions of the joint forces was contradictory to Articles 26,27, 31, 32 and 35 of the Constitution .
The verdict said that none was above the law and there could be no wholesale or blanket immunity to the law-enforcement agencies for violating the fundamental rights.
The indemnity act negates the separation of powers of the three organs of the state, said the court.
Life and liberty of an individual being sacrosanct the members of the law enforcement agencies cannot be allowed to interfere with it under the law, said the verdict.
Even the hardened criminals cannot be killed by the law enforcement agencies without trial for their crimes, said the verdict.
Taking the laws by the law enforcement agencies in their hands tantamount to violation of the laws of the land, it said.
Anyone subjected to torture by the law enforcement agencies has the right to seek the protection of the law, independent courts or tribunals, said 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, said the court.
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, caused financial losses to them and arrested over 11,000.
Appearing for the government deputy attorney general Motahar Hossain Sazu supported the writ petition challenging the indemnity law but vehemently opposed payment of compensations to the affected persons saying that the government cannot be made liable for the offence committed by the joint forces.