Asian Human Rights Commission, Hong Kong
Bangladesh has struggled with poverty, environmental disasters, deeply entrenched corruption and a range of grave human rights violations since its independence in 1971. The lack of an independent judiciary has engendered a culture of impunity, which in turn increases the demoralization and fear in which those without power live. Furthermore, there is little interest at the international level for the plight of Bangladesh’s population, with the United Nations Human Rights Council, in which Bangladesh holds membership, remaining all too silent in the face of grave and widespread abuses.
Illegal arrests, arbitrary detention, ill-treatment and torture in police custody are commonplace and constitute the means through which the authorities exert their control. Torture and ill-treatment are a core component of interrogation and criminal investigation. The police routinely abuse their power to extract money and “confessions” from detainees by using force while a person is in their custody. The fabrication of charges against detained persons is also used to threaten and punish persons. This is enabled by the lack of institutional checks and balances, notably as concerns the judiciary. Colonial-legacy laws and institutions re at the root of many problems, but the failure by the authorities to reform these, compounded by their willingness to abuse the powers granted as a result, make for an incendiary combination.
This article consists of extracts from the Asian Human Rights Commission’s State of Human Rights in Asia 2008 report. Contents of the report are available in PDF format by country online at the AHRC website, www.ahrchk.net. Interested persons may contact the AHRC to obtain printed copies of the full report. Please also refer to the earlier special report published in article 2, “Lawless law enforcement and the parody of judiciary in Bangladesh” (vol. 5, no. 4, August 2006, 140pp), available on the article 2 website in PDF or HTML formats, www.article2.org).
The country has never had an independent judiciary; it has had a disposable prosecution, with many members of the judiciary being replaced each time of one of the two main competing political parties comes to power. The justice system, as is the case with the police and other state institutions, is used as a weapon by the group in power against the other, with the people of Bangladesh caught in the crossfire. In September 2008, the authorities announced the establishment of a National Human Rights Commission (NHRC). In reality, the top three appointments of the NHRC, including its chairperson and two members, were only made in late November. The institution lacks staff, other than a few bureaucrats who have been assigned to it, and, in addition, the law establishing the commission does not allow the body to function effectively and competently. Ultimately, there is no competent institution in the country that is functioning to provide redress to the victims of human rights abuses.
The country began its three-year membership as a founding member of the UN’s Human Rights Council (HRC) in June 2006. However, during this period, human rights have been seriously undermined in the country. In 2008, the human rights situation in the country has degraded to a new low due to an ongoing unjustifiable and unconstitutional state of emergency, which has enabled the military to gain a stranglehold on power and the further subjugation of individuals’ rights. Under the state of emergency, fundamental rights have been suspended; mass arrests have taken place, with thousands having been subjected to ill-treatment or torture; and the pervasive militarization of state institutions leaves Bangladesh on the verge of absolute military control. The state of emergency was actually imposed on 11 January 2007, and has caused a significant decline in the human rights situation throughout 2007 and 2008.
The country is party to six major international human rights instruments, but its implementation of the rights enshrined therein remains superficial and the victims of violations of these rights have virtually no access to remedies at the domestic level. For example, the country is party to the International Covenant on Civil and Political Rights (ICCPR), but has extrajudicially violated the right to life of hundreds of persons in recent years, with impunity. It has arbitrarily deprived hundreds of thousands of persons of their right to liberty. It is party to the Convention Against Torture, but torture remains endemic and perpetrators go unpunished.
Prior to its election to the HRC, Bangladesh pledged to protect and promote fundamental rights, but has since suspended many of these rights and violated many more. It pledged to separate the judiciary from the executive, but it has, in reality, consolidated the executive’s control. To promote its election bid, it cited constitutional guarantees, among them equality before the law, protection of life and liberty, and the freedoms of speech, assembly and association, but has since violated all of these rights on a grand scale and has severely undermined the constitution through the unjustifiable state of emergency, accompanied by illegal laws and actions.
The emergency has provided an opportunity for the military to consolidate its power and control in the country. For example, the National Coordinating Committee (NCC) was formed comprising senior generals of the army and several top officials. This included of a retired general occupying the position of adviser to the government. In this role, the retired general in question decides which allegations of corruption against politicians and businessmen will be filed and who will be charged. The NCC, which exercises supreme authority over all other institutions of the country regarding corruption cases, was established without any legal provisions enabling it to take up this role. In this way, the NCC illegally superseded the Anti-Corruption Commission (ACC), which is the legally-mandated body concerned with fighting corruption in the country.
The armed forces remain deployed across the country. Military officers have insidiously taken up roles in the civil administration, diplomatic offices and at the local level. The whole nation, from the local operational administration to the national policymaking levels, is now under the grip of the armed forces. The development activities of all sectors of public administration have been curtailed. The justice delivery system has effectively collapsed, notably concerning any illegal actions perpetrated by the armed forces during their crackdown on the population.
The police and paramilitary forces such as the Rapid Action Battalion have also been responsible for abusing human rights on a grand scale. Illegal arrests, arbitrary detention, fabrication of charges against detainees being held under emergency laws, denial of judicial remedy, torture, ill-treatment and extrajudicial killings of persons while in custody have increased during the state of emergency. The longstanding problem of overcrowding in prisons has also worsened.
The Ministry of Home Affairs, the ACC and the NCC have ordered massive arbitrary arrests and detentions. Criminal charges have been lodged against many of these persons, including around 200 politicians and heads of business institutions. Special Tribunals have been set up to prosecute persons targeted by the authorities, which are evidently incapable of providing public access and fair trials. Conversely, extra-constitutional bodies, such as the Truth and Accountability Commission, have been established to provide clemency to persons that the government is seeking to protect from prosecution. Furthermore, in 2008 the higher judiciary created controversy by abdicating its inherent constitutional power to provide legal remedies concerning cases lodged by the State under the emergency instruments. Judicial standards and the rule of law have repeatedly been undermined as the result of the releases of high-profile political persons through executive order that bypass the courts. The freedoms of expression and opinion have repeatedly been denied, notably for journalists and human rights defenders. The media has been monitored by the intelligence agencies and the armed forces, censoring any news and opinions critical of the actions of the government.
Failure of rule-of-law institutions
The chronic human rights problems that are encountered in Bangladesh stem from the failings in the institutions that are meant to protect the country’s citizens and instead contribute to their repression. On the frontline between the state and the people is the police force, which in Bangladesh is corrupt, violent and undermines rather than enables the rule of law.
The police
The members of Bangladesh’s police force are notorious for abusing their power in order to earn money. At the local level, the police regularly illegally arrest individuals without any specific complaint, justification or legal basis. The motive is to extract money from the detained persons or their relatives, who often, ironically, belong to the poorest sectors of society. Such persons are subjected to threats and ill-treatment during arrest. At the police station the police officers demand bribes, which are typically beyond the capacity of the arrested persons. Failure to pay typically results in severe ill-treatment or torture. Such abuses are not the exception but the rule.
Ill-treatment and torture is not the end of the victims’ suffering, but rather can be the beginning of a process of abuse. Beyond physical abuse, the police use intimidation and threaten to implicate arrested persons in pending cases or fabricated charges concerning serious crimes, if the bribes are not paid. In case of partial payment, the police use torture to compel the person to pay more. If the person survives this and his relatives manage to get more money to the police as well as the intervention of persons in a position of power, they may produce the person before a magistrate’s court on the basis of a minor offence, such as theft.
In many incidents, however, the police implicate innocent persons in pending serious cases, including robbery, murder, and possession of illegal arms or drugs. If there is considerable and irresistible pressure exerted by influential political groups or members of locally well-known rich families, the arrested person may be produced before a magistrate’s court under section 54 of the Code of Criminal Procedure, 1898, which allows the police to arrest people on suspicion. This can enable the arrested person to secure release more easily than if charged directly with a serious offence. At best, the person may be released from the police station without any valid records of the incident, with the victims having been forced sign blank papers ensuring impunity for those responsible.
The police abuse the powers to arrest granted to them under section 54 of the Code of Criminal Procedure. In most cases, the police officers appeal to the magistrate’s court seeking a person’s remand under section 167 of the code with the intention of detaining people to extract bribes by applying torture, ill- treatment and intimidation. The same police that conduct criminal investigations handle the prosecution in the magistrates’ courts. Magistrates generally grant the remand applications.
The police investigators interrogate the alleged accused per- sons under section 161 of the Code of Criminal Procedure. This is one of the most abused clauses of the law, under which the police routinely pressurize the detainees to give confessional statements. The police also intimidate the suspects to deliver a prescribed statement before the magistrate, when the Magistrate officially records statements under section 164 of the Code. In such prescribed statements the police implicate various persons, often arbitrarily and at the behest of those whose interests they serve.
At each step in the criminal investigation the police officers compel those involved to pay bribes. A police sub inspector who was assigned as an Investigation Officer in Narsingdi district told the Asian Human Rights Commission (AHRC),
I was asked to recover a dead body from some submerged land at around 10 o’clock in the night. The place was around 10 kilometers away from the police station. I went to the scene of crime on my personal motorbike. I found the decomposed body floating on the water. Nobody could go close to the body due to the bad smell. I called some local people to help me to recover the body. Everyone was avoiding me. Then, I shouted at the villagers that if they do not come to help me, I would fabricate cases against all of them. After the threat a few people came and I was able to send the dead body to the Narsingdi district hospital for a post mortem by rickshaw. Altogether I had to spend around Taka 1200 for transportation and other related costs like buying a mat to cover the dead body.
When the police officer was asked who paid the money, he replied, “The complainant of the case!” The policeman added,
I cannot pay money from my pocket. The government does not pay us sufficiently for accomplishing our official works. The authorities do not allocate an adequate budget for the fuel of our official car let alone my personal motorbike. The investigation officer has to buy paper and pen with his own money. So, we extract money from the parties involved in the cases. That’s the way!
Recently, the police have increased the use of extrajudicial killings and threats of such killings as an extreme form of extracting money from citizens. The hundred of extrajudicial killings carried out with impunity by the Rapid Action Battalion (RAB) have likely inspired this practice. An example of how this works is as follows: a man is arrested and accused of alleged involvement in a criminal gang or underground political party. The police threaten to kill him and cover it up by making it look like he was killed in a crossfire incident unless a significant bribe is paid. Insufficient payment leads to the man being killed.
By forcing victims to sign blank papers, the perpetrators of these abuses ensure they are protected from any legal proceedings initiated by the detainee. In many cases, especially in those involving the RAB, impressions of fingers and palms are taken in order to manipulate evidence against the detain- ees. Such methods are also used to ensure the continuing in- timidation of victims of abuse, leading to very few complaints being registered.
Corruption in the police is multifaceted. For example, a young man (whose identity shall not be disclosed here for security reasons) told the AHRC that his family had become worried about the security of his niece following sexual harassment that she had been subjected to on a regular basis. He went to the local police station to lodge a complaint out of concern for the security of his niece. At the police station he met a sub inspector and wished to lodge a complaint against the alleged perpetrators. In response, the police officer discouraged him from recording a complaint and offered to help him personally saying: “Just give me 20,000 Taka [USD 290] and the name, address of the culprit with photo, if possible; removing my uniform I’ll wear plain clothes, take a gun and finish the bastard within few days!”
Local feudal leaders can effectively use the police as hired guns to do their bidding, further their business interests or settle conflicts with rival persons or communities. The police can also withdraw their support from a particular person or group if they receive a larger amount of money from elsewhere, ensuring that law-enforcement in the country is nothing more than a mercenary force, working for the interests of the richest and most powerful. These arrangements particularly penalize groups from ethnic or religious minorities. There are numerous examples of the police intervening in land dispute cases upon receiving bribes from locally influential groups, and suppressing the poor or minority groups involved, despite the fact that there have been cases pending before local civil courts concerning which there had been orders for the maintenance of the status quo.
Political interference in the work of the police is another factor that prevents it from functioning as envisioned. In an official workshop held in late 2007, the commissioner of the Dhaka Metropolitan Police (DMP) accused politicians of exerting unwarranted influence and pressure on the police administration, jeopardizing its freedom. He also stated that the main cause of harassment by the police is the decades-old absence of rules, for which the police is not responsible. The officer also observed that one of the main causes of public harassment by the police results from the appointment of inefficient persons as police officers. The commissioner further admitted that professional inefficiency and lack of knowledge within the police department made things worse and that the police sometimes arrest people without reason, and they intimidate innocent persons with arrest and abuse of law, particularly section 54 of the Code of Criminal Procedure and the DMP Ordinance 1976.
Such interference is indeed a major contributing factor to the breakdown of policing in the country, and is not limited to high- profile cases. In fact, the police force makes use of this interfer- ence as an additional source for corruption and is therefore open to it being used in even petty cases.
In 2004, the United Nations Development Programme in col- laboration with DFID and the Government of Bangladesh initiated a USD 13,380,953 project called the “Police Reforms Programme” (PRP). The PRP “aims at improving the efficiency and effectiveness of the Bangladesh Police by supporting key areas of access to justice; including crime prevention, investigations, police operations and prosecutions; human resource management and training; and future directions, strategic capacity and oversight”. According to the information on the programme’s website, it
Complements other initiatives for reform in the broader justice sector and is designed to assist Bangladesh Police to improve performance and professionalism consistent with broader government objectives. Support to a functioning, accessible and transparent criminal justice system, institutions and services (including legal aid) means that poor people and other disadvantaged groups have protection, representation and recourse to hold the resource-rich accountable for commitments services included in the MDGs [Millenium Development Goals] and their targets.
In the rationale of the PRP, it was mentioned that
An accountable, transparent and efficient policing service in Bangladesh is essential for the safety and well being of all citizens, national stability and longer-term growth and development, particularly the creation of a secure environment which is conducive to consumer and investor confidence. The Needs Assessment Report clearly outlines the rationale for a PRP to support the Bangladesh Police. In summary:
·Significant problems exist with law and order, corruption, rule of law and access to justice in Bangladesh, and these issues adversely impact on the poor and vulnerable especially women and young people;
· The problems are so profound that they have serious implications for the social and economic well being of Bangladesh; and
· The police alone cannot solve these problems and need to work in close collaboration with the Ministry of Home Affairs, Government of Bangladesh, relevant Ministries, other agencies in the broader criminal justice sector, civil society and NGO and media, development partners and the community.
The Ministry of Home Affairs is now proposing a bill to address the problems in policing in Bangladesh and there are concerns that the powers provided to the police under sections 104 to 111 and the punishments proposed in sections 129 and 130 could easily be abused. In spite of the provision of a Police Complaint Authority under section 71 headed by a retired appellate division judge or a person having a high standing, and comprising four more persons, two of whom are to be retired police and civil officers, this system is unlikely to improve the situation concerning grave violations of rights. Complaints are to be dealt with as general complaints or serious complaints, but there is no definition concerning what these categories mean, which will leave room for the police officers to manipulate the complaints system.
Under the PRP, the authorities declared a number of police stations as “Model Thana [police stations]” with the aim of
Demonstrating how pro-people policing can benefit the community and ensure their needs and expectations can be met. Personnel of this model Thanas will be gender inclusive and trained to enhance skill levels and prepare them to implement a more pro-people policing approach in their engagements with the local community. Standard Operation Procedure (SOP) would be developed for the model Thanas through workshops that are being held at each model Thana. People from various walks of life, government officers, representatives from various NGOs and local government department have been participating in the Model Thana workshop and contributing in preparation of SOP. Usually all model Thanas would be conducted following the SOP.
To run the model Thanas effectively and efficiently logistic support such as vehicles, Motor Cycles, walkie-talkies, fax, computer systems, investigation kits, camera etc. are being provided. As per SOP regular training programme would be conducted to the model Thana officials.
In reality, the people’s expectations have not been met. Abuses of power, the use of torture in custody, and the fabricating charges have not diminished as a result of the PRP. The Boalia Model Police Station in Rajshahi city is an example among many. The officers of the Boalia Model Police Station recorded a fabricated charge against Jahanagir Alam Akash, a journalist and human rights defender based in Rajshahi, following instructions by the RAB, which illegally arrested, detained and tortured Akash in 2007.
The judiciary
The above methods of abuse perpetrated by the law- enforcement agencies are enabled by the failure of checks on their powers and activities, notably as a result of a lack of an independent and functioning judiciary. Bangladesh has never had an independent judiciary. The judiciary, from the Supreme Court down, has been weakened through politically-motivated appointments made by successive regimes, in order to ensure that the judiciary acts in the interest of those in power. In its pledges to the HRC in 2006, Bangladesh promised to “separate the judiciary and the executive as soon as is feasible.” Despite the directions of the Appellate Division of the Supreme Court on December 2, 1999, this has still not happened. Since the above pledge was made, the judiciary has instead been placed under greater control by the government, despite promises that it would separate the lower judiciary from the executive on November 1, 2007. The separation has been made on paper but not in reality.
Successive governments of Bangladesh have manipulated and rendered ineffective the criminal justice system by politicizing its institutions, notably through appointments of judges and magistrates. Selection and promotions of judicial officers depend on the interests of ministers and parliament members and the loyalty of the candidates to the incumbent regimes. This system undermines the establishment of justice and favours those who pander to the wishes of those in power in the executive. In par- ticular, judges and magistrates take care of the interests of law- yers belonging to the ruling parties as well as police officers work-
Bangladesh has three tiers of courts—the Supreme Court, judges’ courts and magistrates’ courts—with a long heritage of control by the executive branch over the judiciary. In October 2007, the government made a gazette notification that the subordinate judiciary—the magistrates’ courts and courts of sessions and district judges—would be separated from 1 November 2007. The Supreme Court of Bangladesh, which was established according to the provisions of articles 94 to 113 in chapter I, part VI of the country’s constitution, has retained some independence from the executive since the inception of the country.
The magistrates’ courts have been operated under the Ministry of Home Affairs. Recruitment to the Supreme Court has been through the Ministry of Law, Justice and Parliamentary Affairs. In practice, appointing or confirming judges in the High Court Division of the Supreme Court have been a political choice made by the incumbent regime. Following the separation of the judiciary from 1 November 2007, the Judicial Magistracy has officially been separated from the Ministry of Home. However, the same magistrates have been deputed or assistant judges have been transferred as judicial magistrates to fill up magisterial vacancies. There has been a fresh recruitment of around 200 magistrates since the separation.
There are frequent instances of arbitrary supersession concerning the appointment of Supreme Court judges in the Appellate Division and concerning the selection of a chief justice. The most recent instance was on May 25, 2008, regarding the appointment of M M Ruhul Amin as chief justice, superseding Justice Mohammad Fazlul Karim, who was the senior judge in the Appellate Division during this period and should therefore have been appointed chief justice. The Supreme Court Bar Association protested the supersession and abstained from its customary welcome to the new chief justice on the occasion of his assuming office.
The Supreme Court of Bangladesh has been divided in its rulings during the state of emergency, with the High Court Division ruling in line with the constitution and fundamental rights of persons detained under emergency powers, while the Appellate Division has stayed many of these orders upon requests by the attorney general, thus violating individuals’ rights.
Furthermore, there are allegations of military intervention in the proceedings of the Supreme Court. Senior barrister, Rafique- ul Haque, publicly stated that an army major had been occupying
a room on the second floor of the Supreme Court and had been deciding which case was to be heard by which judge. There has armed forces been no response to this allegation from the government or the armed force.
The prosecution
Bangladesh effectively has a disposable prosecution service. Whenever a new government has taken over power, all prosecutors have been removed from their offices, and new ones have replaced them.
The prosecution system in every district consists of the posts of public prosecutor, government pleader and special public prosecutor. These law officers are accompanied by assistants, whose numbers vary depending on the number of courts they must cover and the size and population of the district. There are no particular rules to appoint them. The recruitment process is based on the political choice of the ruling political party of the day. Local parliamentarians, influential political leaders associated with the ruling party or bar association leaders with political affiliations, or perhaps all of these, make lists of lawyers to serve as prosecutors. They send these lists to the Ministry of Law, Justice and Parliamentary Affairs through the office of the local deputy commissioner, who is the ex-officio district magistrate, or directly to the ministry by ‘selectors’, depending on the extent of their power and influence.
The government appoints prosecutors from among those recommended. Younger and less-experienced lawyers seek appointment as prosecutors through personal and political channels. Those persons with the right connections can get one for free, but otherwise a down payment, or at least a guarantee of suitable payments at a later date, is needed to secure a post. Prosecutors often have inadequate knowledge of law and experience in legal practice as a result, but have clear political affiliations. On the other hand, senior lawyers are reluctant to serve as prosecutors because of the lack of facilities and remuneration.
However, under the present military-backed interim government a slightly different type of procedure has been followed. In some cases, interested lawyers have sent applications to the offices of deputy commissioners to seek positions and the government has made its choices after inquiries conducted through the intelligence agencies as well as in view of the relationships between the applicants and officials in those agencies. The political affiliations of some prosecutors are less pronounced than before, although they are still screened in order to ensure a level of reliability concerning the government’s purposes.
The president appoints the attorney general under article 64 of the constitution and sections 492 to 495 of the Code of Criminal Procedure. The appointee must have the same qualifications as a judge of the Supreme Court, and serves the president. However, in reality the president has no power to select the appointee but merely formally approves the government nominee, who is selected for the same sorts of political reasons as ordinary prosecutors. The additional attorney general, assistant attorney general and a number of deputies serve the attorney general. As in other cases, there are few criteria for their selection and little screening. The only real condition is that they be lawyers capable of pleading cases individually.
Public prosecutors use their positions to advance their private practices, which results in unseemly events in court such as the appearance of a group of witnesses without any prosecutor on hand to examine them or prosecutors who have not prepared for a hearing who confuse and intimidate their own witnesses. Unsurprisingly, such cases result in acquittals. There are also frequent complaints of prosecutors having won a hearing in the lower court where they have pleaded for the state reappearing in the appellate court representing the other party as private lawyers.
Ironically, one cause of public prosecutors’ ill discipline and tendency to engage in private practice when they are supposed to be working for the state is that they are independent. They cannot be sanctioned or punished if they fail to appear at their offices or in court. Only assistant and additional prosecutors are liable to their immediate superiors.
Under sections 492(2) and 495 of the Code of Criminal Procedure, the government assigns police to conduct the prosecution in the magistrates’ courts, which deal with around 70 per cent of all cases in the country. A police officer at the rank of sub inspector normally deals with the prosecution of cases before the court, although these officers do not have law degrees or training in prosecution; they are just transferred from a police station to the job, sometimes as punishment. In cases that are tried with police as prosecutors, the battle is imbalanced because the prosecution either fails to prove the charges or the accused are convicted on faulty evidence and reasoning and are acquitted on appeal.
National Human Rights Commission established
Calls for the establishment of an institution to address human rights problems and provide effective remedies to the victims had led to the establishment of the National Human Rights Commission (NHRC) of Bangladesh. The military-controlled government promulgated an ordinance on 23 December 2007, announcing its establishment. On 1 September 2008, the government made an official announcement that the National Human Rights Commission had been in effect since that date. Amirul Kabir Chowdhury, a retired judge of the Supreme Court of Bangladesh, was made chairperson, and Professor Niru Kumar Chakma, a teacher of the Department of Philosophy of Dhaka University, and Munira Khan, former chairperson of the Fair Election Monitoring Alliance (FEMA), a local NGO, were appointed members. The government asked the newly appointed officials to begin their terms in office on 1 December 2008.
Many aspects on the methods of work and powers of this body give serious doubt as to whether it will be effective. The National Human Rights Commission Ordinance, 2007, which enables the government to establish the NHRC, allows the commission (under section 13) to give its recommendations to the government to file cases, if mediation or arbitration attempts fail. Section 14 allows the commission to recruit a mediator who will solve the problems of human rights abuses through arbitration between the perpetrators and the victims of abuses. Section 15 authorizes it to investigate allegations of human rights abuses through issuing summons to the respondents, without any obligation for the relevant authorities to provide evidence and information. There is also no clarity about what happens when the summons are ignored. The commission, under section 16, can make recommendations to the government based on its findings in an investigation; however, it is expected that these will be ignored, as there are hundreds of examples available in Bangladesh in which the authorities did not carry out the orders of the Supreme Court. Furthermore, under section 16(4), the government and relevant authorities can deny or express their inability to implement the recommendations in a reply letter.
Under section 17(2), any statement to the commission confessing the crime of human rights abuses cannot be used as evidence in any criminal or civil court against the person who confesses the crime. Under Section 27, the commission can formulate its own rules in order to perform its duties after getting approval from the president. This means that executive will dominate what should be included or excluded in the rules. Under section 20(3), the government will determine the salaries and benefits of the staff of the commission until the rules are finalized. This situation will likely compel it to make or agree to a weak set of rules instead of those that would enable independent functioning.
While a national human rights institution had been demanded by rights groups and victims for decades, this has now been established by a military-controlled government working beyond its legal jurisdiction under a state of emergency. The government, which is responsible for gross violations of human rights, is using the establishment of a toothless rights body as a shield to protect itself from criticism.
The state of emergency, biggest elephant in the
room
Although Bangladesh faces chronic human rights problems, an evaluation of the situation of rights in 2008 has to focus primarily on the state of emergency, as it and the ordinances and powers it provides to the authorities have been the main causes of abuses and impunity in 2008. At the international level,the government has repeatedly denied committing abuses, and has even attempted to threaten and harass non-governmental organizations that attempt to bring up these matters. Despite being a member of the Human Rights Council and a party to six major international human rights instruments, the government of Bangladesh is not only failing to live up to its obligations under these instruments, but is actively flouting them.
The state of emergency was proclaimed on 11 January 2007, ostensibly due to violence prior to elections scheduled for January 22. Elections were to take place six months later. Under the Constitution of Bangladesh, an emergency may last for a maximum of 120 days. However, after nearly two years, it remains in force and is creating a human rights and constitutional crisis in the country. It is now supposed to last until the end of 2008, with elections expected on 29 December 2008; however, there were concerns at the time of writing that these may again be pushed back. Regardless, any elections held under the emergency will likely not be free and fair. Local elections held on 4 August 2008 provide evidence of this, as many politicians from the past ruling party remain in detention, and there are numerous reports of vote manipulation by the authorities.
Under article 141A(1) of the constitution, a state of emergency can only be imposed under certain conditions, and it requires the counter-signature of the prime minister. This signature was not obtained for the current emergency, making it unconstitutional from the outset. Furthermore, an emergency may only last for 120 days, under section 141A(2)(c) of the constitution. However, due to a loophole requiring action on the part of the parliament (which was dissolved on 24 October 2006), this illegal emergency is still continuing.
Human rights violations have resulted primarily as the result of draconian powers provided by the Emergency Powers Ordinance, 2007, supplemented by the Emergency Powers Rules, 2007, and the Special Powers Act, 1974. On June 11, 2008, the military-controlled government also imposed the Anti-Terror Ordinance, 2008, supposedly to combat terrorism, under which further abuses are taking place.
The High Court Division of the Supreme Court of Bangladesh on 13 July 2008 ruled that the president of an unelected government such as that currently in power does not have the constitutional authority to promulgate ordinances unless such ordinances relate to general elections. The same court also declared all ordinances made by the present military-controlled government to be ultra vires and unconstitutional. However, the Appellate Division of the Supreme Court on 21 July 2008 stayed this order for one month. The military-government has promulgated at least 96 ordinances, most of which run contrary to the constitution.
During the state emergency all state actors that are perpetrators of human rights abuses are given impunity under Section 6 of the Emergency Powers Ordinance, 2007, which reads:
6. Indemnity
(1) no action, done by a person in good faith, according to this ordinance or any rule under this ordinance or any provision under such rule, may be challenged in civil or criminal court.
(2) no action, done in good faith by the government, according to this ordinance or any rule under this ordinance or any provision under such rule, and any resultant damage due to the action, may be challenged in civil or criminal court.
The AHRC has been informed that the military-controlled government of Bangladesh has been negotiating with the political parties prior to the general election, to ensure that any future elected government validates through the parliament the actions taken by the pro-military regime under the state of emergency. Bargaining with the major political groups vying for election has also reportedly centred on seeing who will ensure complete impunity to them following the elections. In the past, successive governments of Bangladesh have provided impunity to the perpetrators of human rights abuses by enacting laws in parliament. The reports of the current military regime’s pressure upon politicians raises serious concerns that impunity for current abuses will be secured regardless of the results of the planned elections.
Militarisation of civilian institutions
The emergency has been used by the military to permeate the state and its civil administration. This encroachment will likely have a significant detrimental effect on democracy, security and human rights in the country for years to come. Current and retired officers have been appointed to top public service positions and autonomous institutions. Even sporting bodies have not been spared. The militarisation of law- enforcement has taken place through new joint forces being established, comprising military intelligence agents alongside the police. The courts suffer from military surveillance and interference. High-profile individuals, including former prime ministers, ministers and legislators, have been detained for months for alleged corruption, often without specific charges against them. Some have been released through executive orders, bypassing judicial processes. For example:
1. AbdulJalil,theGeneralSecretaryoftheBangladeshAwami League was arrested on 28 May 2007 in the afternoon from his office and was released on parole on 2 March 2008. Jalil was reportedly released on parole for 30 days but the authorities imposed a number of conditions on him if he goes abroad for treatment. He has to communicate the Bangladesh mission every three days after his arrival in a country for treatment and must not be involved in political activities or business there.
2. Sheikh Hasina, former Prime Minister and President of the Bangladesh Awami League, was arrested on 16 July 2007, early in the morning from her house in Dhaka and detained in the official residence of the chief whip of the parliament declar- ing it a “sub-jail”. She was released on 11 June 2008, on parole lasting eight weeks
3. Arafat Rahman Koko, the younger son of former Prime Minister Khaleda Zia, was arrested along with his mother on 3 September 2007. The government released him on 17 July 2008 on parole. Local press reports claim that the government ordered his temporary release from prison purely on humanitarian considerations.
These releases resulted not from court decisions but rather from political negotiations. If courts release persons that the military government does not want released, they are usually re-arrested, often under fabricated charges.
Prior to the proclamation of the state of emergency, the armed forces were only deployed to aid the civil administration in dealing with political violence between rival groups. After the emergency was declared, the State of Emergency Ordinance, 2007 was promulgated and supplemented by the Emergency Power Rules, 2007 with effect from the date of imposing the emergency. Under these new instruments, the armed forces were redefined as a “law and order maintaining force” equivalent to the police. These laws have empowered soldiers to arrest whomever they wish, without a warrant from a competent court. The emergency laws also ensure blanket impunity to the armed forces for all of their actions. According to the government, around 60,000 soldiers have been deployed around the country, in all headquarters of the country’s 64 districts, since the beginning of the emergency. The deployed military frequently intervene in areas in which they have no competency and should have no power, including in the activities of the media and NGOs, leading to fear and demoralization amongst these sectors’ professionals. As a consequence of regular interventions by the armed forces in their work, they cannot contribute to society and in their respective fields.
The national deployment of the military was in place until 4 November 2008, prior to a presidential order to withdraw the military, which came as part of the government’s negotiation with political parties in the run-up to elections and international pressure, notably a in a joint motion for resolution on the situation in Bangladesh in the EU parliament in Brussels on July 9. However, at the time of writing, military re-deployment was expected on 20 December 2008, prior to the general election, which was scheduled for December 29.
In addition, the Rapid Action Battalion paramilitary force known for hundreds of extrajudicial killings in recent years has also been reinforced by officers from the armed forces and deployed extensively at the district and upazilla levels. In this way, the police, who are supposed to be responsible for main- taining law and order in the country, are being supported and supplanted by the armed forces and paramilitary forces that should not be engaged in policing, under the state of emergency.
This has unavoidably resulted in a large number of human rights violations. For example, concerning the massive arbitrary arrests that have taken place since the beginning of the emergency, common people only have access the police stations when enquiring about the whereabouts of arrested and detained persons. They rarely receive responses. When the armed forces and RAB arrest, detain and torture people, the police remain out of the picture and the police stations do not record information concerning such cases.
Given the climate of military supremacy and consequent fear, lawyers rarely agree to assist victims by drafting and lodging complaints with magistrates’ courts, which are the only other resort for people seeking redress following a denial of assistance by the police. According to reports, armed forces officers frequently make phone calls to magistrates and judges regarding pending cases, to influence them in favour of the military’s interests. Magistrates fear for their security and that of their relatives, and as a result only disclose such threats off the record. The situation of prosecutors is even worse than that of the judges and magistrates. Members of the intelligence agencies and, in special cases, officers of the armed forces, have been placed in the offices of prosecutors and attorneys, and direct them to lead proceedings in line with these agencies’ wishes.
Under the emergency, a so-called “task force” comprising of military officers has also been placed in the country’s courtrooms and relevant offices of the courts before, during and after trials, in order to monitor and direct the cases to suit their interests. There can hardly be a more blatant indicator of a lack of an independent judiciary than this. The provisions in the emergency ordinances and the control of the judiciary combine to ensure complete impunity for the military and those that serve its interests.
While civil servants find it difficult to enter into political roles, military officers of a similar rank are systematically included in mainstream political parties following retirement. A retired general would typically be included in the cabinet of the ruling party or in a policymaking forum when the party is out of power. The military-controlled interim caretaker government has gone further and increased the placement of members of the armed forces in the civil administration. Major General (retired) M A Matin heads the Ministry of Home Affairs. Major General (retired) Ghulam Quader, former director general of National Security Intelligence, has been made adviser to the Ministry of Communications. Brigadier General (retired) M A Malek is the Special Assistant to the Chief Adviser for Ministries of Social Welfare and Telecommunications. The founding Director General of the Rapid Action Battalion and former head of the Bangladesh Police, Anwarul Iqbal, who is allegedly responsible for hundreds of extrajudicial killings, has taken the position of adviser to the Ministry of Local Government, Rural Development and Cooperatives. Major General (retired), ASM Matiur Rahman, who previously occupied the Ministry of Health, was later asked to resign from his position for poor performance, although this should be seen as an exception, especially for someone from the military. The previous Army Chief, Lieutenant General (retired) Hassan Mashud Chowdhury, is the chairperson of the Anti- Corruption Commission, while Colonel Hanif Iqbal occupies the position of Director General (Administration).
Brigadier General (retired) Muhammad Sakhawat Hussain is in a key constitutional position as commissioner of the Election Commission. Through him, the Bangladesh Army has been given official responsibility to prepare the voter list for the whole country. The armed forces now know who is voting where under which constituency. If they want to intimidate any group or community to vote for someone or not to vote, they can do so easily. During the election, members of the military will be authorised to arrest any person they suspect of “anti-election activities” without a warrant of arrest issued by a court.
The army assigned its Principal Staff Officer (PSO) of the Armed Forces Division, Lieutenant General Masud Uddin Chowdhury, to the Ministry of Foreign Affairs where he had been serving as the chief coordinator of the National Coordination Committee and deciding on corruption cases. Following this, he was appointed as the High Commissioner of Bangladesh to Australia. On 2 June 2008, Lieutenant General Abu Tayeb Mohammad Zahirul Alams was assigned to the Ministry of Foreign Affairs and was appointed as an ambassador; however, before this could take place, he was also assigned to the position of force commander in the UN Peacekeeping Mission in Liberia, and returned to the service of the armed forces on 7 October 2008. Brigadier General Fazlul Bari was made Defence Attaché in the Bangladesh Embassy in Washington DC during October 2008.
Major General (retired) Manzurul Alam chairs the Bangladesh Telecommunication Regulatory Commission (BTRC), while Colonel Md. Saiful Islam has taken the position of BTRC director general and Lieutenant Colonel Shahidul Alam is the director of the BTRC’s Spectrum Management Department. Lieutenant Colonel Shahidul Alam has been appointed as the project director of a World Bank-funded project under the BTRC, while Major Rakibul Hassan is a Deputy Director of the BTRC’s Systems & Services Department.
Bangladesh Navy Captain A K M Shafiqullah has been appointed as director general of the Department of Shipping, while Commodore A K M Alauddin occupies the position of the department’s chief engineer and ship supervisor. Navy Captain Yeaheya Sayeed is a director of Chittagong Dry Dock Limited, an enterprise of the Bangladesh Steel & Engineering Corporation and also a member of the Chittagong Port Authority. Captain SY Kamal is a Member (operations) and Captain Ramjan Ali is deputy conservator of the Chittagong Port Authority. Captain Zahir Mahmood is deputy conservator of the Port of Chalna Authority in Khulna.
Brigadier General Md. Rafiqul Islam is the director (signals) of the Bangladesh Telecommunications Company Limited. Colonel the Dhaka City Corporation. Major General (retired) Manzur Rashid Chowdhury has been made a member of the newly formed Truth and Accountability Commission.
An alarming indicator of how deep this military encroachment has gone can be seen in sporting authorities. The current Army Chief, General Moeen U Ahmed, has taken the positions of chairman of the National Sports Council and president of the Bangladesh Olympic Association. The Chief of the Air Force, Vice- Marshal Ziaur Rahman Khan, heads the Bangladesh Hockey Federation, while Naval Chief Admiral Sarwar Jahan Nizam heads the Swimming Federation. Major General Ahsab Uddin, the General Officer Commanding of the 9th Infantry Division, is the president of the National Shooting Federation. The Army Chief of General Staff, Major General Seena Ibn Jamali, is the president of the Bangladesh Cricket Board, with Lieutenant Colonel (retired) Md. Abdul Latif Khan as vice president. Lieutenant Commodore A K Sirker is general secretary of the Basketball Federation. Colonel (retired) M A Latif was made vice president of the Squash Federation, while Major General Mr. Sadik Hassan Rumi was “elected” uncontested as president of the Archery Federation.
These are but a few examples recorded by the AHRC of the many military appointments that have been made under the aegis of the military-backed government and its unconstitutional state of emergency. Information about these appointments is being suppressed as much as possible by the authorities to avoid international criticism.
Increasing violations under the emergency
Rather than countering a threat or ensuring stability, the state of emergency has led to greater insecurity and human rights violations. Fundamental rights, including the freedom of association and expression, have been suspended; a significantly greater number of serious violations are being perpetrated; total impunity is being guaranteed for perpetrators; and avenues for victims seeking remedies have been virtually obliterated. All discussions of human rights that do not first address the state of emergency, the critical undermining of the civilian, democratic systems of the state, and the constitutional crisis in Bangladesh, are meaningless.
The government has forced the closure of at least 160 newspapers, and television news channel CSB News during the state of emergency. Any criticism of the actions of the government has been stymied in this way. NGO activists and journalists have been harassed, threatened, and detained by law-enforcement and the military, and faced fabricated charges, in order to discourage any criticism of the arbitrary actions and violations of rights and the constitution by the authorities under the emergency.
Arbitrary arrests and detention
It is estimated that since 11 January 2007, a staggering 500,000 individuals have been arbitrarily arrested and detained for differing periods. When questioned during the official proceedings of the Human Rights Council by a member of the AHRC’s sister organisation, the Asian Legal Resource Centre (ALRC), the representative of Bangladesh could only state that Bangladesh did not have enough space in its prisons to accommodate this many persons. Furthermore, the Inspector General of the Bangladesh Police (IGP), on 9 June 2008, publicly admitted that the police had been arresting an average of 1667 persons every day. This contradicts the attempt at a denial made by Bangladesh’s representative at the council and raises serious questions about further overcrowding in the country’s detention facilities, which was already a serious problem before the mass arrests under the emergency. In addition, the IGP admitted that the authorities are arresting persons under rule 16(2) of the Emergency Powers Rules, 2007, instead of under section 54 of the Code of Criminal Procedure, as under the former suspects cannot be granted bail.
Bangladesh’s law-enforcement agencies do not follow due process when arresting and detaining persons. Arrest warrants and information regarding the charges against persons are rarely, if ever, produced at time of arrest. Persons rarely have access to legal counsel following arrest. Under article 33(2) of the constitution, arrested persons must be brought before a magistrate within 24 hours. However, at present, individuals are being detained in police stations or military camp for days, weeks or even months, without any official records being kept or having any access to courts. This is resulting in endemic torture that in turn frequently leads to killings.
A High Court Division comprising Justice Nozrul Islam Chowdhury and S M Emdadul Hoque on 22 April 2007, declared that the High Court Division of the Supreme Court had the constitutional power to grant bail to the persons implicated and detained under the Emergency Power Rules, 2007. The court declared it following a writ petition filed by Moyezuddin Shikdar, a businessman of Khulna, who was arrested by the armed forces and detained in prison.
The Appellate Division abdicated the Supreme Court’s own power to entertain the bail petitions under the emergency rules. On 23 May 2008, the full bench of the Appellate Division, presided over by Chief Justice Mr. Mohammad Ruhul Amin, of the Supreme Court overturned the verdict of the High Court Division declaring that the highest court of the country had no jurisdiction to entertain bail petitions when the petition was charged under the Emergency Power Rules, 2007. The Supreme Court Bar Association and its senior members protested against the verdict and urged the Appellate Division to review its verdict.
Torture
The use of ill treatment and torture by the law-enforcement agencies is endemic in Bangladesh. This is perpetuated by the impunity that accompanies these violations. Torture is a tool of political and governmental repression and an inseparable part of methods of law-enforcement in the country. Torture is used in order to extract money, to force persons to sign false confessions, to repress the poor, and against persons in opposition to those in power, or their allies. All law-enforcement and intelligence agencies operate torture cells, where people are tortured as part of so-called interrogations.
The AHRC has recorded numerous cases of torture and assault, either by the armed forces, the police, paramilitary forces, or a combination of these actors, since the beginning of the state of emergency. Methods typically include: beating a person that has first been hung from the ceiling or a tree; electrocution; pouring hot and cold water into the mouth and nostrils (in the summer or winter seasons respectively); inserting nails or needles under the fingernails or toenails or other sensitive parts of the body. Persons are also typically subjected to humiliating and abusive treatment during arrest. Some examples of ordinary assault in public include:
1. On 19 January 2008,at around 10 am,an army team led by Major Mizan came to the Rahmania Offset Press at Paikgachha upazilla town in Khulna district. Major Mizan looked for the owner of the press. Md. Bayezid Hossain, a 32-year-old press staff member who was operating a machine inside came out and told the army officer that his boss was out of the office at that time. The major asked Bayezid to remove the signboard of the press. Bayezid told the officer that as an employee it was not possible for him to remove the signboard without the permission from his employer. He assured Major Mizan that he would inform his boss first and the owner’s consent would enable him to remove the signboard. As soon as Bayezid said this, Major Mizan and his colleague Warrant Officer Tajul Islam and several other solders started beating Bayezid with sticks and fists. Bystanders removed the signboard. Before leaving, Major Mizan told Bayezid to go to the army camp along with his boss. Locals then took Bayezid to the Paikgachha Upazilla Health Complex for treatment. Bayezid received serious injuries to his right hand, which had still not healed at the end of 2008.
2. On 5 February 2008, Altaf Hossain, a rickshaw puller, went to Kopilmuni Bazar, transporting goods and passengers. At around 10 am, Altaf was pulling his rickshaw through the main road of the rural commercial hub. Due to traffic congestion Altaf was late in giving way to an army vehicle. Soldiers got out of their car and proceeded to beat Altaf indiscriminately with a stick. He sustained serious injuries to his neck, back, hands and legs. Bystanders assisted Altaf to a local hospital, where he received treatment for months but has failed to recover from the injuries. To pay for the treatment, Altaf sold his rickshawn and he and his wife have borrowed Taka 40,000 from a rural microcredit association with 20 per cent interest. Kamrul Islam, a 38-year- old, was caught up in the incident and was also beaten despite being an innocent bystander, as a result of which he lost consciousness. He was taken to Kopilmuni hospital where he stayed for around a week to receive treatment for the injuries he sustained, notably to his spine.
3. On 15 February 2008, at about 8am,army personnel visited farmers Depak Nath (48) and Deleep Nath (45), who are brothers, in Kashimnagar village in the Paikgachha upazilla in Khulna district. The soldiers abruptly started beating Depak and Deleep in front of their wives and children, and then arrested them and took them to the army camp at Shovna in the Dumuria upazilla. The soldiers detained the two brothers for the night and tortured them. They were beaten with sticks and boots in several occasions. On the following day, the army officers handed them over to the Dumuria police. The police falsely implicated Depak and Deleep in a pending robbery case, resulting in them being detained in Khulna prison for six months, where they received no medical treatment. The Dumuria police forced the brothers to pay Taka 25,000 as a bribe to have them removed from the investigation report. Despite receiving the money, the police submitted a charge sheet to the court accusing the two brothers in the alleged robbery. Their family mortgaged three parcels of land to collect money for their release. In August 2008, they managed to get bail from court.
The officers of the Bangladesh Police claim that because there is only one policeman for every one thousand two hundred citizens, torture is acceptable. They argue that the police force is very poorly financed and has inadequate logistical capabilities and is therefore required to work tirelessly. Under such circumstances, they claim that the police’s performance cannot be faulted, justifying torture. The officers of the RAB and the armed forces argue with human rights defenders that law- enforcement and maintenance of peace and security in the society requires the use of torture.
The country’s politicians, legislators and civil servants repeat the position of the law-enforcement agencies and security forces concerning torture. The claim has also been made during discussions with civil society that torture is a useful tool for maintaining law and order in the context of Bangladesh. Defending the arguments of the police, they have even added that as criminals are well equipped and innovative, the only option for the police is to use torture. When, during discussions, the need to follow due process of law, notably concerning the police’s duty to inform persons being arrested about the reason for the arrest and to show them a warrant of arrest as per section 80 of the Code of Criminal Procedure, the politicians have commented that it is too ambitious in Bangladesh to expect the police to follow the due process of law. This is symptomatic of beliefs held more widely in the ruling elite.
The use of torture does not engender any prosecutions against or punishment of those who perpetrate it. Torture is not a crime in national legislation in Bangladesh. Any person serving in the law-enforcement forces are not prevented, and therefore are tacitly encouraged, to use torture by default as part of their professional responsibilities.
Extrajudicial killings
The number of extrajudicial killings has been increasing in Bangladesh during the state of emergency. In the 23-month-long emergency around 315 persons have been killed extrajudicially, out of which the deaths of more than 250 persons were blamed on “crossfire” incidents by the law-enforcement agencies, such as the Rapid Action Battalion, the police and the armed forces.
The RAB, which is dominated by the military but also comprises of the police and border security agency personnel, was created in 2004. It has perpetrated an estimated 500 extrajudicial killings since its creation. It attempts to justify these killings by claiming there were accidental deaths that occurred as the result of the victims being caught in the “crossfire” although the AHRC has documented numerous cases that instead show these deaths result from torture and extra- judicial killing (see further details in Nick Cheesman, “Fighting lawlessness with lawlessness, or, the rise and rise of the Rapid Action Battalion”, article 2, vol. 5, no. 4, August 2006, pp. 30-42). Shockingly, the authorities have shown their support for these killings by awarding the country’s Independence Day Award to the RAB on 23 March 2006, for “outstanding performance in maintaining law and order”. In 2007 the government awarded 28 RAB officers with police medals. All of these officers have allegedly been involved in grave human rights abuses, including extrajudicial killings. The RAB has continued to act with complete impunity as a result.
Interagency rivalry has led to the police seeking to compete with the RAB, and they have allegedly perpetrated several hundred arbitrary, extrajudicial killings. They also claim these resulted from crossfire, encounter, gunfight, in the line of fire, or shootout incidents.
During the state of emergency the police, RAB and the armed forces have been deployed across the country, ostensibly to “aid the civil administration” with maintaining the law and order. In this hierarchy, the military is the dominant force, the RAB is next and enjoys privileges over the regular police force, the latter of which is officially responsible for law and order.
Violations resulting from the counter-terrorism ordinance
Further to the already significant list of arbitrary powers granted to the authorities in 2007 under ordinances issued by the authorities under the state of emergency, on 11 June 2008, the military-controlled government imposed the Anti-Terror Ordinance, 2008, supposedly to combat terrorism.
Section 6 of the ordinance includes provisions for rigorous imprisonment of a minimum of three years to a maximum 20 years life-term, as well as the death penalty, for various crimes including: killings; serious attacks; abductions or kidnapping; causing damage to property; and possession of explosives, listed dangerous chemicals or firearms, with the “intention to harm the unity, harmony, security or sovereignty of Bangladesh and create panic among its people or any segment of the population”. Persons can be charged under section 7 with providing financial or other forms of support for loosely defined “terrorist activities” on the basis of mere “reasonable suspicion”. Section 39 asserts that the crimes under this ordinance are non-bailable.
Section 54 of the Code of Criminal Procedure and section 86 of the Dhaka Metropolitan Police Ordinance, 1976, already allow the police to arrest any person on suspicion. These powers have previously been abused to arrest people en masse. Under the new ordinance, the penalties and sentences for the various crimes are higher. The police can hold persons in remand for interrogation for ten consecutive days, which can be extended for a further five days by magistrates, under section 26. Magistrates typically follow the instructions of the government and other influential groups. Furthermore, multiple fabricated charges produced sequentially are used to ensure lengthier remand periods.
As with corruption charges that are being tried in special, military-government-appointed tribunals, charges under the Anti- Terror Ordinance are tried by Anti-Terror Special Tribunals. There are serious concerns about such tribunals’ ability to deliver fair trials, as they are held in camera, without the presence of the public even the accused persons’ relatives. Under section 32, a magistrate or judge cannot grant bail “unless satisfied with reasonable grounds that the accused person might not be convicted”. This suggests that the judge must pre-judge the case before it has been heard in full, which evidently goes against the fundamental principles of justice as accepted under international norms and standards.
According to section 41, the government may transfer, on “reasonable grounds”, any case relating to crimes under this ordinance, from any sessions court or tribunal to any special tribunal, or from any special tribunal to any sessions court, at any stage prior to the completion of depositions. This power allows the government to interfere in any case it wishes and completely erodes any notion of the independence of the judiciary. In a criminal proceeding, the government is a party to the dispute. If such a party is given statutory power to transfer cases at a whim, it is likely that it will exploit this power, resulting in delays and/ or travesties of justice.
Unconstitutional Truth and Accountability Commission
During the state emergency the government initiated a “fight against corruption”, detaining at least 170 politicians and businessmen under new powers, notably the Emergency Rules, 2007. The government is prosecuting them in closed Special Sessions Judges’ Courts, to which public and media access is denied. The government formed the Truth and Accountability Commission on 30 July 2008, headed by former High Court Judge Habibur Rahman Khan, with retired Comptroller General Asif Ali and retired Major General of the Bangladesh Army Manzur Rashid Chowdhury as members. Suspects are supposed to disclose information to the cabout any corruption they have committed and declare the amount of assets and money earned through illegal means. These assets are then handed over to the state and the commission issues a certificate, which acts as an exemption from any future criminal prosecution or punishment for these acts. Such persons are barred from contesting elections and holding public or corporate offices for five years. However, the whole process is confidential, apparently to preserve the persons’ social dignity.
The lack of transparency of this system is a serious concern, notably as the authorities have detained a number of politicians and businessmen during the state of emergency on charges of corruption, many of whom have been convicted for a minimum of three years by special tribunals in secretive trials, which are monitored by the military and do not meet international standards.
The Constitution of Bangladesh clearly asserts in article 27 that every citizen has right to enjoy equality before the law, but the military-controlled government manipulates the system with laws ultra vires to the country’s constitution. These commissions are designed in order to ensure impunity for current government officials and those connected to them for past corruption, ensuring they cannot be held responsible for any of their actions, while opponents of the regime continue to be pursued for similar offences.
On 13 November 2008, a High Court Division Bench comprising Justice Mir Hashmat Ali and Shamim Hasnain passed a verdict declaring the Truth and Accountability Commission under the Voluntary Disclosure Ordinance, 2008 “unconstitutional and void in its entirety”. After hearing a writ petition filed by local rights groups the court declared this verdict. The court did not give any legitimacy to the activities done by the quasi-judicial body. However, on November 16, Justice M A Matin, Appellate Division Chamber Judge, stayed the High Court’s verdict for one month after hearing a provisional petition filed by the government. Prior to the High Court’s verdict the Truth and Accountability Commission had received 389 applications for leniency regarding crimes of corruption; 192 applications forwarded by the Anti-Corruption Commission, 167 by the National Coordination Committee, 20 applied directly and 10 forwarded by courts. Human rights defenders and relevant professional groups are concerned about the fate of the decisions to come from the Appellate Division on this case.
“The constitution clearly asserts that every citizen has right to enjoy equality before the law, but the military- controlled government manipulates the system with laws ultra vires to it ”
article 2 December 2008 Vol. 7, No. 4
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