Saturday, April 14, 2007

Wrong turn for our rights

JALAL ALAMGIR

The right to due process is afforded to citizens to ensure protection from abuses of authority, intentional or unintentional. It is neither a constitutional footnote, nor a mere convenience. It is uncompromisingly fundamental to securing justice.

The interim government is cracking down on corruption, and doing so apparently in a spectacular fashion. Six Islamist extremists have also been hanged recently. Although—suspiciously enough—they were not allowed to speak and reveal the names of their patrons, the government has promised to try and uncover the kingpins.

But alongside, there is a simultaneous subversion of justice that will exact a heavy toll on the integrity of our legal system and political institutions.

In the last three months, according to Odhikar, 79 citizens have been killed extra judicially, an average of about 26 per month.

Supporters of hard power—and there are many—may be tempted to think that this is not a big number, given the rampant corruption and violence the country had experienced in the past five years.

Actually it is higher than the record of most previous years since democracy was established in 1991.

The 2001-2006 tenure by BNP, which far surpassed its predecessors in such deaths, averaged about 12 extrajudicial killings per month. Only the average in 2005 is higher, about 30 a month. But 2005 was really the Year of the RAB, the worst year of extrajudicial killings in Bangladesh since human rights records are available systematically.

Is this the standard to which we should be holding our caretakers?

The right to life is inviolable by our constitution, even in a state of emergency. Such killings also contravene several international conventions on human rights that Bangladesh has signed and is bound to uphold. The UN Special Rapporteur on Extrajudicial Executions was right to voice strong concern that these activities amount to ‘using murder as a policing technique.’

And what of the arrested? By Odhikar’s estimate, a staggering 1, 26,968 people have been detained across the country in the last three months. Most have been detained under the two ‘black laws’ of the country abused widely by every government: the Special Powers Act of 1974, and Section 54 of the Criminal Procedure Code.

Both of these allow arrest and detention without a warrant.

The way media headlines have run, one would think that most of these people are already guilty beyond doubt, just by virtue of getting arrested. But consider this sobering fact: in the nearly 11,000 petitions against arbitrary arrests filed in the High Court between 1974 and 1995, the Court found less than 9 per cent of detentions to be valid.

There is really no reason to expect that the proportion will be wholly reversed this time. For the innocent, however, recourse to law has been restricted severely.

The government wants speedy trials. Speedy trials are always suspected, since they favour efficiency over the protection of rights.

Moreover, it will be impossible to dispense justice for so many people quickly. Assembly lines may be good for producing cars but they are never defensible as a means of conviction.

With the increased powers given to the Anti-Corruption Commission (ACC), corruption charges can be brought against anyone on virtually any basis. The accused, once arrested, can be denied bail—a move that militates against long-standing international legal principles for such cases. While detained, they will then have to supply an accurate account of their entire life’s income and expenses within 72 hours, an impossible task for even the most meticulous.

Any discrepancy between the information supplied and what the government expects—and the government unilaterally decides what constitutes a discrepancy—can result in seizure of their properties, a provision which, under normal circumstances, would contravene a host of fundamental rights enunciated in Articles 26 through 43 of our constitution.

Most damagingly, there is no scope of appeal in a higher court against such seizure, which under normal circumstances would directly violate Article 44 of the constitution that guarantees a citizen’s right to move the High Court to protect his or her fundamental rights.

Now, one may argue that fundamental rights do not matter now, for we are in a state of emergency and we need to root out corruption.

But can corruption be rooted out by corrupting legal principles and citizens’ rights?

This is precisely when fundamental rights should matter the most; they’re the only institutional protection citizens have when authority becomes highly centralised. And the real test of a decent government is in the extent to which it can hold on to fundamental principles during times of crisis, when it becomes both tempting and convenient to jettison them.

Many of those arrested are guilty, no doubt. But many of them may also be innocent. It is not possible to guarantee integrity when thousands are being added to prison rosters every day. It is also apprehended that some cases have been motivated politically in order to silence the people.

The right to due process is afforded to citizens to ensure protection from abuses of authority, intentional or unintentional. It is neither a constitutional footnote, nor a mere convenience. It is uncompromisingly fundamental to securing justice.

And it is vital to creating a ‘level playing field,’ a goal to which this government has committed itself over and again.

But instead, the government has stacked the cards heavily in its own favour by cutting citizens’ rights and subverting due process. It is easier than ever before for the government to imprison and punish citizens summarily. By the same token, the government has put up extremely high barriers for citizens to mount a credible defence.Unless fundamental rights are put back on the right track, talk of a ‘level playing field’ will remain mostly a rhetorical ploy. #

Dr Jalal Alamgir is assistant professor of Political Science at the University of Massachusetts, Boston