Bangladesh: The people do not trust the judiciary

Md. Ashrafuzzaman, Asian Legal Resource Centre;
Abu Sufian, Online Bangla Dot Net;
Adilur Khan, Odhikar

1.  Are all  persons and  authorities bound by the same laws?

No. Constitutionally, the President of Bangladesh is immune from any prosecution. Practically, it is impossible to register complaints against family members of the Prime Minister, ministers and the pro-ruling party activists who  are known to be close to the Prime Minister. Besides, complaints cannot be registered against the officers of the Rapid Action Battalion (RAB)  and  military officers for  criminal  offences, except the complaints arising out of family related affairs such as domestic violence and dowry allegations.

2.    Are all persons and authorities entitled to the benefits of all  laws?

No. The ordinary people are systematically deprived from the benefits of all laws. Instead, the laws are used to suppress the ordinary poor and marginalized people, political opponents, and the dissenting voices. There is  a law  titled  “Father  of the Nation Bangabandhu Sheikh Mujibur Rahman’s Family Members Security Act of 2009”, which only benefits the family of the Prime Minister of Bangladesh.

3.  Are all  laws publicly made?

Not  in  all  cases. Certain laws are not publicly made. The Government of Bangladesh headed by  Sheikh Hasina enacted/ratified a number of laws in 2009 without declaring them in  public. All those  laws were originally imposed as ordinances by the military regime during 2007 and 2008. After election, the government ratified many of those draconian laws in  the parliament without adequate information and public knowledge regarding the legislation. For  example, the Anti-Terrorism Act 2009 was made without public knowledge.

4. Are  all  laws promulgated so that all  persons can know what the laws are?

No.  There are instances  that  the Government made laws without informing the people. For example, the 15th Amendment of the Constitution of Bangladesh was made only in  less than 15  minutes without any debate in,  and out of, the Parliament regarding the contents and intentions of the amended version of the Constitution. Besides, there are many laws that were introduced as ‘Ordinances’ through the office of the President of Bangladesh, although the actual draft is made in the Ministry of Law, Justice and Parliamentary Affairs at the wish of the Prime Minister, who  wants the President to  impose the ordinances as an ‘announcer’. The  people  of Bangladesh remain in complete darkness about such laws.

5. Are all  laws applied only prospectively?

No.  All laws are not applied prospectively. For  example, the International Crimes Tribunal Act, 1973, which was amended in 2009, 2012 and 2013 with retrospective effect to add ‘death penalty’ as the capital punishment after completing the trial of one  of the alleged perpetrators for committing crimes against humanity in 1971.

6. Are all  laws administered in  the courts?

This principle is frequently violated in  various ways. The powers of  the courts  have been limited by  contradictory provisions. For  example, the Speedy Trial  Act,  2002, which has been amended in 2014, is used to prosecute perpetrators as determined by  executive officers of the Ministry of Home Affairs, leading  to  capital punishments. The  Mobile Court Act, 2009 is a law administered by the executive officers, who are shown to the public as ‘Executive Magistrates’, to punish people instantly with imprisonments and monetary penalties.

a.      Is the investigative system under the police adequate to enable the courts to administer justice?

Not at all! Any form of investigation – be  it a criminal, administrative, or civil matter – is subject to monetary corruption,  politicization, nepotism  (favoritism granted  to politics and businesses due to  family relations) and full  of unscientific methods and inefficiency.

b.     Is  the prosecution system adequate to  enable laws being administered by the courts?

Bangladesh has never had an independent and competent prosecution system. Rather, the country has a ‘disposable’ prosecution system. Every regime appoints a group of lawyers

of  their choice to  act as prosecutors or  state attorneys. These lawyers get  this opportunity because of their political loyalty, without any skill in the practical profession,  and often by corrupt means. The  prosecutors engage in rampant corruption, evidence of which is reflected in their subsequent lifestyle. Furthermore,  the  prosecutors  do  not delegate their responsibilities or  share  their knowledge with their successors. The transfer of prosecutorial responsibilities does not take place; once a regime assumes office,  a new  set of prosecutors start occupying the prosecutors’ office, while their predecessors stop coming to the office when they understand their own  party is no  longer in power.

c.      Are  the courts interfered with by  the government or  other political pressures or by pressure from powerful lobbies?

Intervention on judicial matters or directly on the Courts is a way of life in Bangladesh. This is mainly because historically, the Magistrate’s Court was directly under  the Ministry of Home Affairs, until October 2007. The executive officers of the state used to sit in the Courts to adjudicate criminal cases. All adjudications used to depend on administrative and political interferences.  Since November 2007,  the  ‘separation of judiciary’ has taken place on paper only, although in practice the ‘Judicial Magistrates’ have replaced the ‘administrative officers’ to adjudicate matters.

d.      Is  there public confidence that the courts competently and impartially administer the law?

The reality, as explained in the above paragraphs, is that the people do  not trust the judiciary. If they become part of any litigation, the popular perception is that it is an unfortunate blow  in  their life,  which might be  due to  some misdeeds or sins committed by someone in the family.

e.   Is the procedure for the appointment, promotion and dismissal of judges made through an objectively justifiable process that inspires public confidence?

The appointment, promotion and dismissal process has been greatly politicized and subject to corruption. The  Ministry of Law, Justice and Parliamentary Affairs deals with the process of appointment, promotion and dismissal at its discretion, at the wish of the political regime. The  Rules however, direct that such things should be  done through ‘consultation with the Chief Justice’, who   is  also politically appointed;  thus, normative standards have little meaning.

f.       Are the positions of judges secure from any interference into the making of decisions, impartially and independently?

For  reasons stated above the positions are not secure and political adventurism can damage the career of any judge by promoting the adventurer to  the disadvantage of those who want maintain their integrity.

g.      Once the court makes a decision, is  it  guaranteed that the decision will be  implemented?

There is  no  guarantee that a decision made by  a court will be  implemented.

h.    Are the police, prosecution services and the courts provided with adequate resources to  administer their services in  a competent and efficient manner?

Absolutely not!   The  resources  provided to administer  the services of the police, prosecution, and the Courts are very inadequate.

i.    Are all possibilities of corruption prevented?

Not at all! Rather, the possibilities of corruption are promoted, in reality. Due to the culture of impunity for State officers, the police and law-enforcing agents do not care about the quality of service they are legally obliged to render to the people. The police officers are not answerable to anyone for distortion  of facts, evidence, and illegal arrests and detentions, due to the

‘chain of corruption’ replacing the ‘chain of command’ within the police department. In the prosecutorial affairs and in the adjudication process, corruption is  entrenched within the system.

7. Are the laws accessible to all?

No.  All laws are not accessible to  all  the citizens. The  poor, targeted opposition activists, and persons who  are allegedly perceived to  be  involved in  political parties that are banned by the government, do not have access to all the laws or legal remedies.

8. Are  the laws, so far  as  possible,  intelligible,  clear and predictable?

There are some recently-made laws that are hastily drafted and enacted to  be  used against political opponents and dissenting voices. These laws are not intelligible, clear and predictable. For example, the Information and Communication Technology Act,  2006, which has been amended in  2013, has vague definitions about the crime under this law,  and attributes enormous power to the police to arrest and harass any citizen the state targets.

9. Are the questions of legal rights and  liabilities ordinarily resolved by  the application of  the law  and  not through the exercise of  discretion?

No. For  instance, the closure of the Daily  Amardesh, one  of the pro-opposition newspapers, and the arrest and detention of  its editor Mahmudur  Rahman,  is a glaring example where the laws are not applied without the discretion of the authorities. The  newspaper still  remains closed without any lawful grounds and the editor is arbitrarily detained without any trial for one  year.

10. Do  the laws of  the land apply equally to all  (save to the extent that objective differences justify a differentiation)?

No;  politicized accusations  and perspective while bringing charges against a person has become the key   factor in applying laws.

11. Do  the laws afford adequate protection of  fundamental human rights?

Not at all! The unabated extrajudicial killings are one  of many examples. The  extrajudicial killings are shown investigated by  ‘Magistrates’, who  are actually executive officers of  the government. These executive officers merely count how  many bullets are spent in an alleged incident of ‘encounter’. These so called investigations never try  to find  the truth relating to murder in custody, other than validating the acts and crimes committed by the police and the Rapid Action Battalion (RAB). Another example is the case of  enforced disappearances. Normally, the police never accept any complaint whenever the families of disappeared victims approach police stations to register cases against state agents. The  Magistrate Courts also do  not accept complaints of disappearances. The  only thing possible is to register complaints of abduction and missing of persons without accusing any state agency. If any aggrieved family can afford to  go to  the High  Court Division of the Supreme Court with a habeas corpus (state detention of a prisoner is valid)  writ  application, the petition might be heard once, yielding a Rule from that particular Bench amidst vehement objections and denials by  the state attorneys. Thereafter, that particular habeas corpus petition will be  in limbo.

For  example:

a.    Do the laws adequately prevent any form of discrimination?

Not in all cases and in all laws of the land.

b.   Do the laws prevent extrajudicial killings and disappearances and other methods of the extrajudicial deprivation of life?

The situation is contradictory and complicated. For example, the Constitution of  Bangladesh, in  Article 32,  prohibits

‘deprivation of life’. But, the penal laws do  not exactly criminalise ‘disappearance’, which has been used as one  of the excuses when Bangladesh’s Foreign Minister attacked human rights groups for raising the issue of enforced disappearance in the 16th Session of the Universal Periodic Review  in April 2013.

On   the other hand,  the Torture and  Custodial Death

(Prohibition) Act, 2013, a Bill originally drafted by the AHRC in

2009, makes ‘custodial death’ a punishable crime. In reality, the law  is  not put into practice due to  the unwillingness  of the state and the imminent threats on  the human rights defenders.

c.      Is torture and ill-treatment prohibited and prevented?

Yes, the Constitution of Bangladesh, in Article 35 (5), prohibits torture and ill-treatment. The  Torture and Custodial Death (Prohibition) Act,  2013 criminalises these acts. In  reality however, torture and ill-treatment are not prevented by  the state. Instead, these heinous (wicked and wrongful) crimes are patronized by  the state by  granting blatant impunity to the perpetrators and rewarding them with gallantry awards.

d.     Is illegal arrest and detention prohibited and prevented?

Illegal arrests and arbitrary detentions are prohibited in the laws and jurisprudence. They  are not, in  reality, prevented however. Rather, illegal arrests and arbitrary detentions are the normal way  of law-enforcement in Bangladesh.

e.      Is fair  trial guaranteed to everyone?

Fair trial has been hampered by  problems of  the judicial process mentioned above. Incompetence of judicial officers, prosecutors and defence lawyers, absence of judicial mindsets among the professionals involved in the criminal justice system,  and  politicization (bring political power to  favor) are major factors hampering fair  trial. Besides, delays force many persons to  not pursue cases and instead enter into compromises. The  absence of witness protection puts many people’s lives at risk if  they pursue  cases. Unprincipled practices of settlements and granting of suspended sentences by  presidential  clemency also hampers  fair  trial. Further corruption of the police, prosecution and the judiciary badly affect fair  trial.

f.       Is freedom of expression guaranteed?

Freedom of  expression is  one   of  the areas that has been violated severely. The  killing and detaining of  journalists,

closing of  newspapers and other publications, threats  to journalists,  blocking of  cyber space publications,  various prosecutions against journalists, many forms of blackmailing journalists and media people including blackmail through the state media, severe propaganda through the public media against all  dissident voices that  criticize the government, the use of the intelligence services against journalists and media people, abductions and the private vehicle syndrome, late-night visits of intelligence agencies to the houses of government critics and many other forms of violations have been reported by  international  media agencies for  a long period of time. The  government refuses to take any action on any of these instances. Impunity prevails.

g.      Is the right to freedom of movement guaranteed?

There are restrictions on  the freedom of movement on  the main opposition political parties, perceived opponents of the government. There are bans on  persons and organizations and also unofficial bans. Particularly opposition parties have been persecuted in  an attempt to  make them incapable of effectively contesting  elections against  the government.  The one  party concept prevails. There are severe restrictions on the NGOs  who  are often portrayed as traitors.

h.    Are  the freedoms of association and freedom of publication guaranteed?

Freedom of association is particularly curtailed for all those political parties who are opposed to the government. Similarly, it is curtailed for civil society organizations including NGOs. On  the International  Women’s Day, on  8  March 2014  for instance, the government did   not allow   women’s  rights organizations to hold a rally on the street in the capital city of Dhaka. A prominent journalist’s book publication ceremony was recently not allowed to  be  held at a five  star hotel in Dhaka. Persons have been jailed for Facebook posts criticizing the Prime Minister. There are many methods by which such freedoms are denied.

i.       Do  people have the right to elect the government of  their choice?

Not at all! The peoples’ right to elect a government is severely restricted by  making constitutional amendments (For example: the 15th Amendment of Constitution of Bangladesh removes the provision of Non-party Caretaker Government for  holding general election in  the country); by  generating state-sponsored rigging participated by public officials, law- enforcement personnel and ruling party cadres; grabbing the polling centers and fake voting. The  opposition parties have been prevented from participating in the election by making factions of political parties through intelligence agencies to

make those factions allies to the ruling regime. By persecuting these parties so  that they are not in  a position to  explain their ideas to  the people and to  offer  an alternative to  the government, the government gets an unfair advantage at the election. Actually speaking, the only  party really presenting itself before the people is  that in  the government coalition. Thus, the people do  not really have a chance for  a free  and fair  election.

k.     Are measures taken to prevent absolute power?

Instead of preventing absolute power the power of the government is protected in every possible way.

12. Are means provided for  resolving, without prohibitive cost, or inordinate delay, bona fide disputes which parties themselves are  unable to resolve?

Disputes cannot be  resolved without  interventions  and supports from the ruling party’s locally influential persons.

a.    Is the cost of litigation prohibitive?

Yes,  the litigation costs are prohibitive and there is no  legal aid.

b.     Are there inordinate delays?

Yes,  there are inordinate delays where cases may go on  for ten years or more.

c.   Can people have recourse to courts without suffering the risks of physical harm and other attacks or threats to their life?

The  people who  dare to  contest cases face  severe threats to their lives, liberty and property.

d.   Can a witness participate in  court proceedings without incurring risk to their life and liberty?

There are no  witness protection laws.

13. Do the ministers and  public officers exercise their powers reasonably and  in  good faith, for  the purpose for  which the powers are  conferred?

Not at all.  The  people do  not even believe that the ministers and public officers are exercising their powers reasonably and in good  faith due to the extreme form of politicization.

14. Do  public ministers and  public officers exceed the limit of  their powers?

Yes,  when it comes to political advantage.

15. Are the adjudicative processes provided by the state fair?

No.

a.    Are decisions made behind closed doors?

Many decisions are made behind closed doors, particularly when opposition activists are the accused in fabricated cases. Due to corrupt practices and politicization, decisions are made behind closed doors.

b.     Has the role  of lawyers become an obstacle to  fair  practices in adjudication?

The role  of lawyers is negative, and by and large lawyers have acted to  their own  advantage and not to  the preservation of litigation practices under the rule of law.

16. Does the state comply with its international obligations?

No.  For   example, the government has  not submitted its national reports to  the main mandates  and Committees of the UN Human Rights Council or the former Commission of Human Rights.

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