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A Statement by the Asian Human Rights Commission
FOR IMMEDIATE RELEASE
AHRC-STM-264-2008
October 14, 2008
The media reports alleging that it is in fact a military officer who decides the case lists in the Supreme Court of Bangladesh is a shocking revelation which sharply brings to light the militarised political context in the country. Barrister Rafique-ul Haque who is defending two former prime ministers of Bangladesh in graft cases revealed to the Bar and the media that an army major is occupying a room on the second floor of the Supreme Court Building and deciding which judge should decide what case in the country.
It has also been revealed that three senior lawyers, Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M. Amir-Ul Islam have received letters from anonymous sources stating that they are national betrayers and threatening the lawyers and the members of the judiciary with cross fire, which in the local context means assassination.
The Asian Human Rights Commission (AHRC) and several other national and international civil society organisations have reported that the current administration in the country is trying to smother judicial independence in Bangladesh by all possible means. The incidents cited above are the latest in a series of revealing acts where the army has infiltrated the judiciary to an alarming level. The recent reconstitution of High Court judges at the behest of the army is yet another example of this increasing interference.
Interference of any nature, however minor it may be, with the administrative and adjudicating function of the judiciary is a major setback for any country. Bangladesh need not look anywhere else to find shocking examples of how bad such interference could be. Pakistan, Burma, Nepal and Sri Lanka are immediate South Asian neighbours that have suffered severely from such interference with the function of their judiciaries. In Pakistan, however, the Bar was bold enough to challenge this interference when the independence of the judiciary and that of the lawyers was threatened by General Musharraf’s military regime.
The recent history of the administration of justice in these illustrates the fact that the judiciary is weak, subjected to executive control and sometimes even corrupt. The situation of Bangladesh in this regard is no different.
It is obvious that the judiciary in Bangladesh is fully aware of such interference by the executive and the military. In the context of the widespread fear psychosis in the country and the practice of impunity the judiciary may be unwilling to want to put up resistance against such interference. However, there is a widespread feeling among the lawyers and the people that executive and military interference must be resisted.
Threats received by lawyers and senior judges and even the recovery of explosives and explosions in the residences of sitting judges who challenge the current administration is proof that the current administration is bent upon silencing all opposing voices. Even the Bangladeshi media has fallen victim to this tragedy. Unfortunately some senior jurists within Bangladesh rally along with the administration, condemning anyone who opposes the current government and even directly and indirectly support the administration.
It appears that as of now the armed forces of Bangladesh is in absolute control of the government. The armed forces have literally transformed the administration into a puppet that dances to their tune.
So many of the important government posts are occupied by members of the armed forces that demilitarizing the country’s administration will take years. It is unfortunate that most of the country’s politicians are facing graft charges or have such tainted backgrounds that none of them dare to challenge this new status quo that is pulling the country into deeper corruption and nepotism. The support given by the World Bank and some other European countries to the military regime strengthens the militarization process in the country and makes the transformation into democracy and rule of law even more difficult.
The present situation can easily degenerate and the whole country may come under the grip of the military as has happened in countries such as Burma. It is the duty of all to prevent such a situation and it is particularly the duty of all civil society organisations and the international community to ensure that the militarization process should be brought to an end. In this context it is most important that the military presence in the Supreme Court office and other offices such as Sessions judges office, the Special Tribunal on Anti Corruption and the Judicial Magistrate’s Court should be brought to an end immediately.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
RATER ZONAKI
HONG KONG, China, October 14, 2008
The judiciary in Bangladesh is being seriously undermined by the military, to the point that it can no longer carry out its functions. Judges and courts are subject to illegal, unconstitutional and even criminal practices.
Among the more serious recent incidents, two handmade bombs were discovered in the residence of Justice Sharif Uddin Chaklader, who until last week was head of a High Court Division dealing with petitions challenging detention orders against politicians and businessmen. In late September a bomb exploded in front of the house of Justice Tariqul Hakim, another Supreme Court judge. Luckily neither judge was injured.
Anonymous letters threatening assassinations were also sent to three senior lawyers – Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M Amir-ul Islam – as well as the present and past presidents of the Supreme Court Bar Association.
Rafique-ul Haque, who is a former attorney general of Bangladesh, lamented the situation during an urgent meeting of the Supreme Court Bar Association last Sunday. “An army major sits in a room on the second floor of the Supreme Court building where no one is allowed to enter,” he said. He explained that this major handles the case list for the Supreme Court judge – meaning that only those cases the military-backed government approves of will be given a hearing.
Barrister Haque also explained that the chief justice has reconstituted the benches of the High Court Division, assigning junior judges to deal with sensitive criminal cases and sidelining more competent senior judges. It is generally understood that this was done under military pressure.
These incidents expose the vulnerability of judges and lawyers at the highest levels of the judiciary. Not even the Supreme Court of Bangladesh can confront the military authoritarianism in an organized manner.
These incidents have occurred whenever the military-controlled government has faced serious challenges from the highest levels of the judiciary, especially regarding enquiries into the legality of its actions in the past 21 months of emergency rule in Bangladesh.
The government, which grabbed power illegally, has no legitimate authority to rule the country. It is already unhappy with the decision of the High Court that declared its promulgation of ordinances to be beyond its constitutional powers. Also, under emergency laws, the current rulers have disallowed decisions by the Supreme Court on granting bail to certain accused persons.
It appears that over-ambitious high-ranking officers of the armed forces are behind these incidents. The armed forces of Bangladesh shamelessly believe that by invading the civil institutions they can achieve more, especially if a powerful institution like the judiciary is sufficiently suffocated. The people of Bangladesh seem headed for an even more disastrous era under the grip of the armed forces.
If the armed forces dictate to the highest judiciary, how can their abuse of power be curbed? Should the judiciary entertain or tolerate these ongoing military invasions? What role is the chief justice of Bangladesh playing to stop the humiliation of the judiciary at the hands of the military? Why is the lawyers’ community silent while its professional dignity and sanctity are under serious threat? Why does the Supreme Court not hold the armed forces accountable for grabbing power and occupying civil institutions illegally?
People who are aware of the situation in Bangladesh know that corruption and abuse of power with blanket impunity are among the biggest setbacks to the country’s journey toward democratic stability. At the same time, the existing system allows people to become involved in corruption, either by choice or by force, due to the lack of transparency and accountability by civil servants and politicians who are close to the military rulers.
This does not mean that only a few members of a specific professional community are responsible for leading the country toward disaster or capable of improving things overnight.
Officers of the armed forces are accustomed to taking orders and following commands. However, such practices are useless in civil institutions. Many decisions taken by the military in civilian circumstances are not based on rationality or on a constructive assessment of the consequences of these decisions. This is true because the military officers have no respect for civilians and civil institutions. Most people agree that the armed forces are absolutely incompetent to solve civil problems by adopting military rules and regulations.
The Bangladeshis and the international community who are committed to the rule of law should think seriously whether it is time to remain silent or to act to ensure the survival of Bangladesh’s judiciary and other civil institutions. Remaining silent could kill all hope of justice ever being restored to its rightful place in Bangladesh.
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(Rater Zonaki is the pseudonym of a human rights defender based in Hong Kong working at the Asian Human Rights Commission. He is a Bangladeshi national with a degree in literature from a university in Dhaka. He began his career as a journalist in 1990 and engaged in human rights activism at the grassroots level in his country for more than a decade. He also worked as an editor for publications on human rights and socio-cultural issues and contributed to other similar publications.)
Source: upiasiaonline.com
A Statement by the Asian Human Rights Commission
FOR IMMEDIATE RELEASE
AHRC-STM-227-2008
August 29, 2008
BANGLADESH: Military must not dominate civil administration
The government of Bangladesh has directed its civil administration to work in collaboration with the officers of the “Joint Forces” stationed across the country.
The government made the decision on August 25, after having reshuffled its administration by appointing 35 new Deputy Commissioners (DCs), the apex bureaucratic authorities in the district administrations. The government briefed the media on its policies on the proposed local and general elections, implementation and monitoring mechanisms and emphasized the need for friendly relations with the local people. Cabinet Division Secretary Mr. Ali Imam Mazumdar chairing the meeting on 25 August directed the officers to work together with the SPs (Superintendents of Police) and the commanders of the Join Forces across the country.
The direction to the administrators asserting collaboration with the Joint Forces which comprises of officers of the armed forces and which is dominated by the army, practically renders the civil administration officials subordinate to the army. It also generates multiple suspicions regarding the government motives behind such controversial directives. This adds to the already adopted government policy of placing the armed forces over the civil administration. This is a small picture of the ongoing disaster in the governance in Bangladesh. Here are some facts:
The Ministry of Home Affairs is headed by Major General (Retired) M A Matin. Major General (retired) Ghulam Quader, former director general of National Security Intelligence, has been made adviser to the Ministry of Communications. Brigadier General (Retierd) M A Malek is the Special Assistant to the Chief Adviser for Ministries of Social Welfare and Telecommunications
Founding Director General of the Rapid Action Battalion, allegedly the arbiter of hundreds of extra judicial killings, and former head of the Bangladesh Police Mr. Anwarul Iqbal has grabbed the position of the adviser to the Ministry of Local Government, Rural Development and Cooperatives. Another Major General (retired), ASM Matiur Rahman previously occupying the Ministry of Health was later asked to resign from his position for poor performance.
Immediate past army chief Lt. Gen. (Retired) Hassan Mashud Chowdhury is the chairperson of the Anti Corruption Commission while Colonel Mr. Hanif Iqbal occupies the position of Director General (Administration).
Brigadier General (Retired) Muhammad Sakhawat Hussain is in the constitutional position of Commissioner of the Election Commission. Bangladesh Army has been given official responsibility to prepare the voter list for the whole country. The army deputed its Principal Staff Officer (PSO) of Armed Forces Division Lieutenant General Masud Uddin Chowdhury to the Ministry of Foreign Affairs when he had been serving as the Chief Coordinator of the National Coordination Committee for deciding the corruption cases.
Major General (retd) Manzurul Alam chairs Bangladesh Telecommunication Regulatory Commission while Colonel Md. Saiful Islam takes the position of the Director General and Lieutenant Colonel Shahidul Alam is the Director of its Spectrum Management Department. Lieutenant Colonel Shahidul Alam is the Project Director of a World Bank funded project while Major Rakibul Hassan is a Deputy Director of its Systems & Services Department.
Captain of Bangladesh Navy Mr. A.K.M Shafiqullah is occupying the position of the Director General of the Department of Shipping while Commodore Mr. A K M Alauddin occupying the position of the Chief Engineer and Ship Supervisor.
Navy Captain Mr. 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 Mr. SY Kamal is Member (operations), Captain Mr. Ramjan Ali is Deputy Conservator of the Chittagong Port Authority, and Captain Mr. 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 Ltd.
Major Gen (retd) Manzur Rashid Chowdhury has been made the newly formed Truth and Accountability Commission’s member.
Even the sports sector is not safe from their interference. The current army chief General Moeen U Ahmed grabs the positions of the Chairman of the National Sports Council and the President of Bangladesh Olympic Association. The chief of air force Vice Marshal Ziaur Rahman Khan heads Bangladesh Hockey Federation while the 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 chief of general staff of the army Major General Seena Ibn Jamali is the President of Bangladesh Cricket Board with Lieutenant Colonel (Retired) Md. Abdul Latif Khan as Vice President. Lieutenant Commodore A K Sirker is occupying the post of General Secretary of the Basketball Federation.
These are very few out of the numerous positions occupied by the officers of the armed forces in the civil administration and autonomous institutions of Bangladesh. All information on such events is not available as the authorities suppress information to skip criticism.
Moreover, the armed forces have been deployed in all the district headquarters of the 64 districts of Bangladesh since the state of emergency besides the decades’ long full-fledged militarization of three districts in the hill tracks of Chittagong region. Initially, the government deployed armed forces in all the upazillas (sub-district units) as soon as the emergency was imposed.
The DCs have been severely humiliate because army Majors being much junior to them have been placed in the districts levels. These Majors hurl abusive and exert illegal influences before the DCs, making the district heads embarrassed and frustrated. “People should no longer have patience and resist the audacity of these uncivilized Majors”, commented a DC, who did not wish to be identified.
All the national level policy decisions are made, changed and influenced by the top officials of the armed forces. The “National Coordinating Committee”, which oversees the corruption issues staying atop all administrative setups, recommends the Anti Corruption Commission as to who will be charged and who will not be. The top officers of the armed forces occupy the coordinating body.
The Rapid Action Battalion, also drenched with the officers of the armed forces on deputation, is extended to the district and upazilla levels with their own setups besides the regular police force.
The police who are supposed to be responsible for maintaining law and order in the country have excessively been supported by the Rapid Action Battalion (RAB) and the armed forces during the state of emergency. So, in reality, all the forces arrest people. The common people have access only to the police stations for enquiring on the whereabouts of the arrested and detained persons, and none of the law-enforcing agencies explain to anyone whenever arrests are made. When the armed forces and RAB arrest, detain and torture people the police remain out of the picture and none of the police stations record any case regarding such incidents. Even the lawyers rarely agree to assist the victims by drafting and lodging a complaint with the Magistrate’s Court, which is last resort for the vulnerable people to seek redress following a denial by the police.
According to reports, the armed force officers frequently make phone calls to the Magistrates and Judges regarding pending cases to address the issues meeting the interest of the officers. Magistrates also cannot ignore fearing the security of themselves, their families and relatives. However, none of these magistrates agreed to disclose it officially other than “off the record”. The condition of the prosecutors is worse than that of the judges and magistrates. The offices of the prosecutors and attorneys are filled up with members of the intelligence agencies and in special cases the officers of the armed forces, who insist and direct them to lead the proceedings as the agencies wish.
Surprisingly enough, under the coverage of emergency provisions, officers of the armed forces remain present in the courtrooms and relevant offices of the courts during, before and after the trials as members of “Task Force”. They visit the courts and the relevant offices to monitor, dictate and insist the staffs for the cases they are more interested.
The military remains far away from any mechanism of accountability unlike any other organizations of Bangladesh. Thus, the armed forces enjoy absolute impunity for their unlawful actions supported by the laws made by the government during the state of emergency.
The existing situation evidently shows the silent but gradual, and eventually complete, militarization in Bangladesh. The joint forces deployed across the country frequently intervene into many local and private institutions including the activities of the media, NGO, and human right activisms though they are not eligible and competent to do so. These unlawful attempts have already demoralized the concerned professionals. As a consequence of regular interventions by the armed forces into their work, they cannot contribute to the society and to their respective fields by accomplishing their official responsibilities.
The Asian Human Rights Commission (AHRC) is highly concerned about the all out militarization in Bangladesh. The military cannot be capable or substitute of the civil administration in any place of the world because of their training with arbitrariness. The armed forces are accustomed to command rather than being accountable to any civil authority. The ongoing huge militarization has been destroying the fabrics of democracy and rule of law in the country. AHRC urges the civil society and human rights groups in the country and the international community to insist the authorities of Bangladesh to immediately demilitarize all institutions the armed forces have been occupying illegibly.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
Rater Zonaki
HONG KONG, China, September 2, 2008
The High Court finally compelled the military-controlled government of Bangladesh to release an imprisoned businessman on Aug. 28, after the authorities ignored the court’s order for more than a week.
The army-led Joint Forces arrested Salman F. Rahman, a top businessman and former president of the Federation of Chambers of Commerce and Industries, on Feb. 4, 2007, under the Emergency Powers Rules-2007. He was subsequently charged in seven cases of corruption and land-grabbing. Salman managed to receive bail in six of the cases during his prolonged detention, none of which has yet come to trial.
On Aug. 20 the High Court granted bail to Salman in the last case against him, in which he is accused of corruption in connection with the International Finance Investment and Commerce Bank. The prison authorities received the court order but took no action.
Salman’s counsel, Barrister Rafique-ul Haque, a former attorney general of Bangladesh, had been contacting the prison authorities every day until Aug. 25, while the concerned officials kept assuring him that his client would be released on the following day. However, eight days passed and Salman was not released. Haque brought the issue to the notice of the court, which summoned the attorney general and held him accountable for failing to release the prisoner.
On Aug. 28 Salman’s counsel attempted to lodge a contempt-of-court complaint against the responsible officials. The court asked the attorney general to produce Salman before it within one hour, unless the top public servant wished to be summoned for contempt of court. The authorities soon released Salman from the Kashimpur jail after this strict intervention.
The day Salman was arrested, and at one point detained in the cantonment police station in Dhaka, this writer witnessed him moving around in the office of the police station, which was surrounded by police and other forces. In contrast, the poor who are regularly arrested by members of the same forces face radically different treatment.
A person like Salman F. Rahman, who could afford to pay for attention at the Supreme Court level, was able to manage bail for the cases against him lodged by the military-controlled government. He had access to a high-profile lawyer, a former attorney general, and enough money to spend on arranging his bail. Still it took around one-and-a-half years for him to be freed.
Similar intervention from the High Court does not happen to the poor like Mohammad Ripon, a hosiery worker who earned only 3,000 takas (about US$44) per month, despite working hard from 8:00 a.m. to 10:00 p.m. every day at a tiny factory in Dhaka. He lived in a dormitory in a slum adjacent to the Turag River.
One day before the state of emergency was imposed, when Ripon was walking home late in the evening, the Shah Ali police arrested him. He was detained in police custody overnight and was sent to jail via a Magistrate’s Court that implicated him in a case of petty theft.
Mosharaf Hossain, owner of the factory where Ripon was employed, told this writer in front of the Dhaka Central Jail that he had been waiting for Ripon’s release. Mosharaf reasoned that Ripon, the only hosiery producer of his factory, had no relatives except his elderly mother, who lived in a shelter in Pabna district, around 300 kilometers from the capital. Due to Ripon’s detention Mosharaf’s factory was closed, and there was no trusted substitute for him.
Mosharaf spent more than 4,000 takas (US$58) on a lawyer for five days, excluding his transportation and other expenditures, such as bribes to court staff so they would allow him to stand in the queue to present a petition for bail. Every day the lawyer assured him that Ripon would be released, and suggested that Mosharaf wait in front of the jail’s gate to receive him. But Ripon did not come out.
Mosharaf was counting the money he spent, planning to deduct it from Ripon’s salary once he was released. He needed his employee back for the survival of his hosiery factory. The 4,000 takas he had spent was more than one month’s salary for Ripon; but it was not enough to secure his release or get the attention of the High Court.
Around 500,000 people were arrested as part of the government’s crackdown under the state of emergency. Among them, about 200 are very rich, like Salman. Perhaps 1,000 could afford the cost of legal proceedings in the Supreme Court. On the other hand, the huge majority of those who were arrested cannot afford even the minimum expenses for justice at a district level court.
The victims of arbitrary arrest and detention have been facing unimaginable suffering while large amounts of money are wasted in the process of trying to obtain justice, apparently for nothing. It may require special research to expose the whole situation concerning economic losses incurred in the futile attempt to secure due legal process.
The courts of Bangladesh, especially the Supreme Court, seem unable to remedy this situation. The courts should be competent enough to address the serious problems the nation is now facing. It is not debatable that courts exist to ensure effective and prompt compliance with the law. They should ensure that no one, including legal professionals, is allowed to avoid or ignore their responsibilities. The century-old habits, attitudes and mindset of the judiciary must be changed if the nation is to be saved from the dirty ditch of arbitrary behavior and survive with dignity.
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(Rater Zonaki is the pseudonym of a human rights defender based in Hong Kong working at the Asian Human Rights Commission. He is a Bangladeshi national with a degree in literature from a university in Dhaka. He began his career as a journalist in 1990 and engaged in human rights activism at the grassroots level in his country for more than a decade. He also worked as an editor for publications on human rights and socio-cultural issues and contributed to other similar publications.)
Source: http://www.upiasiaonline.com/Human_Rights/2008/09/02/random_rule_of_law_in_bangladesh/8404/
August 28, 2008
ALRC-CWS-09-01-2008
Language(s): English only
HUMAN RIGHTS COUNCIL
Ninth session
Written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status
BANGLADESH: Prolonged State of Emergency threatening the judiciary and human rights defenders’ ability to work.
Under a 20-month-long State of Emergency, which began on January 11, 2007, Bangladesh has been plunged into a period in which human rights have been severely undermined and serious violations have increased significantly. These include widespread and massive arbitrary arrests and detentions, estimated at numbering over 500,000, as well as rampant ill-treatment and torture, and a significant increase in extra-judicial killings. Furthermore, the military-controlled government has been promulgating arbitrary laws that have lead directly to further abuses of human rights and further obstruction of all avenues available to victims seeking remedies. The authorities have been institutionalising extra-constitutional practices that undermine the institutions of the rule of law, causing damage to the fabric of the State that will remain for years. Despite the scale of this crisis, the international community has been silent thus far.
Mass arbitrary arrests and detentions
Astounding numbers of persons have been arrested since the State of Emergency began. The unconvincing response of the government to these allegations has been to deny that they have space to detain this number of persons. Bangladesh already has a well-documented track record of serious over-crowding in its prisons. Persons are arrested en-masse in order to intimidate, and, in general, are not detained for long periods.
An example of the scale of the problem is the four-week crackdown that started on May 28, 2008, resulting in the arbitrary arrest and detention of more than 50,000 Bangladeshis. During this, the Inspector General of Police (IGP) admitted to the media, on June 9, 2008, that the police have to use the emergency laws, as these do not permit bail, therefore avoiding courts releasing suspects. The ALRC notes that courts typically release suspects when there is no evidence against them. The IGP also admitted that an average of 1,667 persons have been being arrested in the country each day since the beginning of the emergency. The detention of so many individuals, even for relatively short periods, is leading to severe overcrowding in the country’s prisons. Reports indicate that most persons arrested are subjected to some form of ill-treatment, including beatings, and that torture is also being used on a significant number of detainees, during which the police extract money or confessions.
Extra-judicial killings on the rise
Reliable reports indicate that over 300 persons have been extra-judicially killed since the State of Emergency was imposed. The authorities justify these as encounter, crossfire, shoot-out, gun-fight, or “in the line of fire” killings. However, many such deaths documented by the ALRC result from torture in custody. Other examples include the case of two alleged underground political activists, Mr. Abdur Rashid Malitha, alias Tapan Malitha, (aged 48) and Ms. Nasima Akhtar Rikta (aged 18), that the Rapid Action Battalion woke up and then shot in their beds on 18 June. There have been no effective investigations or criminal prosecutions concerning any of these killings to date.
Unconstitutional counter-terrorism ordinance leading to abuses
On June 11, 2008, the military-controlled government imposed 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-1898 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, however.
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 in 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. This is being seen in Bangladesh under the State of Emergency.
Despite the Special Power Act-1974, the Emergency Power Ordinance-2007 and the Emergency Power Rules-2007, which already give the government wide powers to arbitrarily arrest and detain people, the government has armed itself further with the Anti Terror Ordinance-2008 to increase its crackdown, with further abuses expected to be perpetrated. For this reason, the international community, which has thus far remained eerily mute, must immediately begin to act to pressure Bangladesh’s government – a member of the Human Rights Council – to lift the emergency and repeal all such ordinances.
The government has also begun having select persons released, using executive orders from the Ministry of Home Affairs, completely bypassing and further undermining the courts and judiciary. The courts, in which charges have been laid against these persons, did not grant bail. These include prominent persons, such as former Prime Minister Sheikh Hasina and Khaleda Zia’s son Arafat Rahman Koko.
The subordinate magistrates and sessions courts are being used as tool by the government to arrest and detain targeted persons, and release whomever the government wishes. All courts, including the Supreme Court, are under regular supervision by the intelligence agencies and personnel of the armed forces, who dictate what prosecutors and attorneys must do to comply with the military-government’s wishes. If, despite this, the High Court grants bail to targeted persons, the law-enforcement agencies arrest and detain such persons again, literally in front of the main gate of the prison, upon their release, and charge them with “breaching emergency laws”.
The High Court Division of the Supreme Court of Bangladesh on July 13, 2008, ruled that the President of an un-elected government, such as that currently in power, does not have the constitutional power to promulgate ordinances, unless such ordinances regard the general election concerning which the government was brought to power to organise. 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 July 21, 2008, stayed this order for one month. The government has promulgated at least 79 ordinances, most of which run contrary to Bangladesh’s Constitution.
Truth and Accountability Commissions
Truth and Accountability Commissions were set up on July 30, 2008, for five months, under the Voluntary Disclosure Ordinance 2008, to give amnesty to corruption suspects. Suspects are supposed to disclose information to the Commission about 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 that do not meet international standards of fair trial. 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.
Increased insecurity for human rights defenders
Human rights defenders and professionals, including from the media, are regularly being monitored, threatened and intimidated by the personnel of the country’s armed forces and various intelligence agencies. Numerous human rights organisations that have been critical of the government and are seeking redress for victims have been visited by the intelligence agencies’ officers, who check their project proposals, activities and funding sources. Dozens of human rights defenders are facing fabricated criminal charges, which have been lodged either by the law-enforcement agencies or by their allies.1 Many of them have been detained and tortured.2
While there are a large number of NGOs operating in Bangladesh, providing services that the State is failing to provide itself, the great majority of them are reduced to working on non-threatening issues, as working on serious rights violations such as torture, extra-judicial killings and the like results in severe repercussions.
The Asian Legal Resource Centre remains deeply disappointed by the Human Rights Council’s lack of action concerning the serious human rights crisis that has been unfolding in Bangladesh since early 2007. The Council must show that it does not operate with selectivity and double-standards, and take all necessary actions to ensure that Bangladesh halts the ongoing wave of gross violations of human rights, including arbitrary arrests and detention, the fabrication of charges, ill-treatment, torture and extra-judicial killings. In order to do this, the unjustifiable and counter-productive State of Emergency must immediately be lifted and all ordinances promulgated under it must be repealed, as they are in violation of the Constitution and are at the root of many rights abuses. Bangladesh’s membership in the Human Rights Council continues to be an embarrassment to the world’s apex human rights body.
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Footnotes:
1 For example, please see urgent appeal at http://www.ahrchk.net/ua/mainfile.php/2008/2713/.
2 Please see here for examples: http://www.ahrchk.net/ua/mainfile.php/2008/2713/;
http://www.ahrchk.net/ua/mainfile.php/2007/2369/;
http://www.ahrchk.net/ua/mainfile.php/2007/2262/;
http://www.ahrchk.net/ua/mainfile.php/2007/2247/;
http://www.ahrchk.net/ua/mainfile.php/2007/2223/.
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About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia
