Law Analysis
Crippled commons and regulating 'covert human intelligence sources'
Emraan Azad
Is law as much as necessary to redress any kind of human rights violation all the time? Definitely, we will find diverse comments and bunches of argument from the different strata of intellectuals. Laws that exist in a state are not sometime fine enough to redress all or the specific problem- an often-quoted verse of critics. But if the question is all about “no existence of law” on a recent burning concern, it would really face a huge span of criticisms incessantly. The reason behind talking all these is to plot out the dimensional predicament of “covert human intelligence sources” of disciplined forces such as Police, Rapid Action Battalion (RAB) and so on in Bangladesh. Before putting forward the details of this write up, at the very outset, it is needed to mention that in our country, no single law, even not the Police Act 1861, provides for the regulation of the organization and jurisdictional conducts of the covert human intelligence sources, as they are known officially in the United Kingdom (UK).
In all disciplined forces, covert sources are recognized as valuable, but their use carries a high voltage risks since they have no legal status in our country and it is needed to be managed justifiably. In the context of Bangladesh, we have different sets of covert sources those lack adequate training and proper supervision of superior officials. But in the UK, the Association of Chief Police Officers and HM Customs' manual of standards for covert human intelligence, created in 2004, is held by a police force's director of intelligence, and provides the standards to be adhered to and guidance for all police and customs staff.
Now and then, based on information provided by the covert sources the disciplined forces carry out search vis-à-vis arrest operation against an alleged person(s) and in some cases arrest without proper verification of the allegation another person only because of similarity of name. Even they shoot out and kill without the least evidence and proper care reporting it 'cross-fire'. Then a question whispers in our mind that who has given the authority to disciplined forces to shoot a man even if he is a criminal, because it is totally violation of the human rights and dignity enumerated in the Universal Declaration of Human Rights and the Constitution of Bangladesh. In the recent past, the awful story of Limon Hossain, a college student, is the glaring incident of modern day's atrocity done by disciplined force. The media reports that RAB shot Limon in the left leg at his village when he was taking his cows to the field. Afterwards, his injury was life threatening and irreversible resulting amputation of his left leg from the thigh as his leg tissues were totally damaged due to excessive bleeding. The latest nasty update, what we know, is that Limon along with his mother and brother were injured in an attack on the Eid day by a local source of RAB and his aides. This is not the end of story because a Jhalakathi court has already directed police to record a murder case against 10 persons including four family members of Limon, who was maimed by RAB on March 23 last year. Considering these, it is easy to canvass the tragedy of commons but difficult to tolerate it by ourselves in practice!
In the UK, a source can never have a licence to commit crime. They may, in an authorised operation, infiltrate a criminal conspiracy or be a party to the committing of criminal offences, within the limits recognised by case law and with the approval of the authorising officer. Acting beyond these limits could lead to prosecution. The system of covert human source must be within the continual oversight of designated controllers, supervisors and other assigned officials. The system must also be subject to analysis, security checking and constant review. In the UK, the use of informants or the sources is monitored by the Regulation of Investigatory Powers Act 2000 (RIPA), specifically Part II, since its inception into UK law on the 2nd October 2000. The provisions of this Act extend to cases where even a public authority authorises the use of a covert source. The legal definition of a covert human source is taken from s.28 (8) of RIPA as: 'A person who establishes or maintains a relationship with another person for the covert purpose of obtaining information or providing access to information to another person, or covertly disclosing information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.'
The RIPA's realisation coincided with the Human Rights Act 1998 (HRA) of the UK, due to its nature as an enabling piece of legislation. RIPA's purpose is not an obligation to carry out the operations detailed; it merely provides a framework with which public authorities may carry out such operations in a way, which does not intrude on human rights issues, namely a right to a fair trial, and a right to privacy. In the Constitution of Bangladesh, we also have the provisions of right to equality before law (Article 27), right to freedom of movement (Article 36), right to protection of home and correspondence (Article 43) and right to protection in respect of trial (Article 35). These constitutional fundamental rights are the core values of this constitution and are related to the issue of covert human sources' activities. These are the standards by which the legality of other statutes is justified. The ongoing debated activities of covert sources and those of disciplined forces based on the information of sources can never be mandated by the Constitution.
An argument could be put forward that the undercover officers acted as agent provocateurs. That is, to incite an act which would not have been committed otherwise. This argument, if relevant could be in breach of conception of fair trial provided in Article 35 of the Constitution. Instead, reference must be made to the previous character of the offenders in question. For example: with five previous offences of supplying forged documents by A, it is clear that A have a history of returning to commit similar offences on a number of occasions, and so it may well be the judge's decision that it is the nature of these defendants, to re-offend, regardless to whether any undercover sources are used. However, it is essentially the duty of an undercover source passively to observe but not to investigate criminal activity, and yet it could be deemed that instigation of the offence was too far for the undercover sources to go, and in turn, it could not be concluded that if they had not been present, an offence would have been committed.
To conclude, covert human source are now by practice have become an infusion part of the disciplined force in our country and there are many successful stories of arresting and prosecuting powerful gang/terrorist by the joint initiative of source and force. Today what we need to have is the legislation for the organization and conduct of the undercover human intelligence sources. Giving them legal status and slotting out their responsibility are more important. For the time being, the notion of human dignity and rights should be built up in their thinking and vision, so that there must be a reflection of idealistic human rights protection approach in their day-to-day secret agency.
The writer is Student of Law, University of Dhaka.
