Friday, August 10, 2007

Dr. Payam Akhavan international counsel for Sheikh Hasina

Statement by Dr. Payam Akhavan International Counsel to Sheikh Hasina


IT is my privilege and honour to speak on behalf of Sheikh Hasina. I have undertaken to represent her with great aforethought and fully aware of the far-reaching importance of her struggle. Like every other human being, Sheikh Hasina is entitled to the protection of her fundamental human rights under international law. But it is obvious that the campaign by the military-backed caretaker government to eliminate her as a political leader has grave consequences not just for her, but also for the future of democracy in Bangladesh. As such, her political persecution through the perversion of justice may be the most significant measure of whether this nation will continue to have free and fair elections, to continue on a historical path of developing a mature democracy through trial and error, or whether Bangladesh will go the way of other countries in the region, where unchecked military rule, political radicalization, and religious violence prevail.

While outstanding local counsel in Bangladesh struggle to protect her rights before national courts, the caretaker government must be reminded that this case also implicates the government’s obligations under long-standing United Nations human rights covenants. It is in this respect that I have assumed the position of international counsel, to ensure that Bangladesh abides by its obligations under international law, to remind the government that its actions are being watched closely by the world community, that it cannot establish a military dictatorship under the cover of an anti-corruption campaign, that it cannot engage in such flagrant abuse of power with impunity.

The conduct of the government over the past several months leaves little doubt that the prosecution of Sheikh Hasina is a thinly masked political trial with no merit whatsoever. Those of you who have followed her case are well aware that when the government first accused her of corruption in April of this year, it was Sheikh Hasina that insisted on returning to Bangladesh to challenge the accusations. You will recall that it was the government that vigorously attempted to prevent her from returning from her travels abroad, threatening to impose heavy penalties on any airline that would dare fly her to Dhaka. And it was only after considerable international pressure that the government relented, allowing her to return. Sheikh Hasina returned, as the Economist wrote, to a “rock star’s welcome”, as tens of thousands of Bangladeshis welcomed her back, a testimony to her overwhelming popularity as a leader, and an indication of why the so-called caretaker government is so intent on eliminating her from the political scene. Surely, Sheikh Hasina’s return is inconsistent with the slanderous image of a corrupt Prime Minister that the government tries to portray.

But it is the government’s case itself that most clearly betrays the merit-less accusations against her, and the lengths to which the police and prosecution have been manipulated to use the judiciary as an instrument of political assassination. I refer here to the accusations of businessman Azam Chowdhury, whose information report forms the basis of the current charges against Sheikh Hasina. It cannot go unnoticed that in his original statement to the police, Mr. Azam did not in any way implicate Sheikh Hasina in his allegations of corruption. He only accused her cousin Sheikh Selim who was the Minister of Health at the relevant time. It was only after Sheikh Selim was arrested, detained, and interrogated under questionable circumstances, that a case against Sheikh Hasina could be made. The sole evidence is Sheikh Selim’s supposed “confession” that he approached Sheikh Hasina concerning illicit payments, and that she advised him that those payments should go to her sister Sheikh Rehana. Now what were the circumstances that led to such an incredulous admission by Sheikh Selim? There are credible indications that while in custody, he was subjected to serious physical and mental abuse. His interrogators reportedly threatened that if he did not collaborate with them, his family would “die a slow, painful death”.

Should there be any doubt about the veracity of such allegations of torture, should I be accused of hyperbole in advocating Sheikh Hasina’s case, I draw your attention to the August 1st letter that Human Rights Watch submitted to Mr. Fakhruddin Ahmed, Chief Advisor of the caretaker government of Bangladesh. In this letter, coming from one of the most distinguished human rights organizations in the world, Mr. Fakhruddin is advised that: “Serious and systemic human rights abuses are taking place on your watch.” In addition to torture and extrajudicial executions, Human Rights Watch notifies the Chief Advisor that “emergency rules that do not respect basic due process rights, or the large number of arbitrary arrests and detention without proper judicial oversight or public accountability, are a direct result of your government’s policies” and that “the rule of law appears to be breaking down under your administration.” The letter goes on to state that “Because the sweeping regulations under the state of emergency now in force do not comply with international requirements and have been misused in practice, we urge you to repeal them immediately.” As indicated by a recent hearing in which the High Court Division of the Supreme Court of Bangladesh granted bail to Sheikh Hasina, the use of the Emergency Power Rules by the government reflects a deliberate policy to deny her basic due process rights. Under the Rules, those accused of corruption may be held without bail. It is regrettable that the Appellate Division of the Supreme Court has stayed the grant of bail following an appeal by the Attorney-General, and that the government has initiated new cases in order to continue Sheikh Hasina’s unlawful and arbitrary detention. It is also telling that she has been given only a few days in which to prepare a Wealth Report under the Emergency Rules, while in prison, without access to her papers or other records, which were all confiscated at the time of her arrest, and without the cooperation of the banks.

Notwithstanding these gross abuses of due process, it is the evidence obtained through the torture of her cousin Sheikh Selim that stands out as the most egregious violation of human rights. Consider the following statement by Human Rights Watch to the government concerning the use of torture in order to obtain “confessions”: “Bangladesh’s military forces have become notorious for taking people into custody, torturing them to death or executing them in faked ‘crossfire killings.’” Indeed, this letter refers to the case of Mr. Tasneem Khalil, a consultant for Human Rights Watch and stringer for CNN, who in May of this year was “taken from his home in front of his wife and child, blindfolded and driven to an interrogation centre, where he was tortured and questioned … Mr. Khalil saw sophisticated torture equipment and could hear other detainees screaming in pain. … Before his release, [he] was forced to make false confession, and asked to sign documents and testify on video admitting to acts that could be considered treasonous.” It is in this dire context that the so-called “confession” of Sheikh Selim has to be assessed, and I will also note that since he is still in detention, the full extent of his mistreatment may be difficult to divulge.

One of the most fundamental human rights norms is the prohibition of torture. This includes the inadmissibility of confessions obtained through torture as evidence in judicial proceedings. The government of Bangladesh must be reminded that the use of torture in the trial of Sheikh Hasina is a particularly serious violation of international law. It is in fact an international crime that the government is under an obligation to prevent and punish under United Nations human rights treaties which it has signed. Torture gives rise to individual criminal responsibility not only of those who perpetrate it, but also of those in positions of authority that legitimize it by failing to prosecute perpetrators. Those that are acquiescing in this travesty of justice against Sheikh Hasina should consider the doctrine of command responsibility, not least in a case with such a high-profile and intense international scrutiny. It was after all in the Pinochet case before the House of Lords in this country that the consequences of tolerating such conduct became apparent for once untouchable Heads of State. The message should be clear for the current leaders of Bangladesh. Instead of prosecuting Sheikh Hasina on trumped up charges of corruption, those responsible for the torture of Sheikh Selim should be put on trial, otherwise those that are condoning such conduct may themselves be in the dock one day.

As part of our initial campaign to hold Bangladesh accountable to its international human rights obligations, we have last week communicated the details of Sheikh Hasina’s case to the Office of the United Nations High Commissioner for Human Rights in Geneva. In particular, we have sent information to the Special Rapporteur on Torture, Professor Manfred Nowak of Austria, and to the Special Rapporteur on the Independence of the Judiciary, Leandro Despouy of Argentina. We will ensure that the United Nations system, and more widely, the international community, is fully appraised of the legal proceedings against Sheikh Hasina, and hope that the government will appreciate that its human rights violations, its attempt to subvert democracy, will exact a heavy cost. It is especially regrettable that Bangladesh, a nation with a proud tradition of internationalism, a nation whose military have served as United Nations peacekeepers throughout the world, must now become a symbol of a military bent on usurping the power of democratically elected leaders. We are certain that there are those amongst the ranks of the military that realize the grave consequences for Bangladesh of becoming an international pariah, of losing the tremendous hard-won prestige and influence that the armed forces have brought to this nation.

In charting its course of action, the international community must also realize that the laudable goal of fighting corruption cannot be at the expense of human rights. Surely, Bangladesh’s deterioration into a military dictatorship will only increase the abuse of power, will only increase the corruption that comes with the absence of accountability. Democracy and respect for the rule of law is a long and arduous process that is achieved in over time. While Sheikh Hasina herself supported the assumption of power by the caretaker government in January of this year, it was based on the desire for free and fair elections, for an end to the turmoil that had gripped the country, and not for the elimination of democracy. And those that believe that the military-backed government should be given yet more time to prepare for elections now postponed till 2008 should consider how with the most popular political leader in prison, and with rights of assembly and free speech severely curtailed under emergency laws, it is possible to hold free and fair elections. This amounts to denying democracy in the name of attaining democracy. We therefore appeal to the international community to adopt a principled policy that upholds human rights and the rule of law, lest Bangladesh fall prey to the same authoritarian forces that have resulted in a steady deterioration of peace and stability in neighbouring countries.

And most of all, our message to the government of Bangladesh is that we will not allow this travesty of justice to go unchallenged. We will use every means at our disposal to enlist the support of the United Nations, and to expose the trial of Sheikh Hasina for what it is: a military coup masquerading as an anti-corruption campaign. #

London, August 6th, 2007