Thursday, September 06, 2007

Bangladesh: The Caretaker’s Burden

RINEETA NAIK

THE imposition of emergency by Bangladesh’s caretaker government has seen the curtailment of civil liberties along with several human rights violations. Initially greeted with some approval, the excesses of the emergency have now evoked widespread apprehension amongst the people.

In the six months following the proclamation of emergency, Bangladesh’s military-backed government has morphed from caretaker to an aspiring “lord of the manor”. Having ostensibly whisked away the dirt, it now appears keen to settle in. It would do well to consider that a people who might exult over the downfall of their former guardians might not gladly suffer yet another warden riding roughshod over their rights.

As the New Age newspaper pointed out recently:

It is… not surprising that the people who whole-heartedly welcomed the incumbents six months ago, have started getting disillusioned about the commitment and ability of the government of the day. The pervasive atmosphere of fear, automatically generated out of the military-driven emergency, may keep the people quiet for some more days, but they might burst into anger any time – the symptoms of which have already surfaced in Khalishpur and Nachole. It is high time that the incumbents pause to review the deeds, and misdeeds, that they have committed so far.1

There is no doubt that the euphoria following the takeover was real. It was based on the hope that there would be more freedom, not less, and that those who had taken Bangladesh for granted would get their come-uppance. The current government’s gross disregard for due process and fundamental rights, however, echoes the excesses of the former regimes.

Everyone Loves a Clean-up
The state of emergency suspended most fundamental rights, including the right to file writ petitions for the enforcement of fundamental rights. Another presidential order suspended proceedings relating to writ petitions before the Supreme Court until the state of emergency was revoked.2 On January 25, 2007, the Emergency Powers Rules 2007 withdrew this bar, allowing redressal of violations of fundamental rights so long as they did not relate to “political issues”.3 The Rules are wide in scope, and in conjunction with the Special Powers Act 1974, proscribe, among other things, acts intended to “create panic and malice” against the government, acts affecting the country’s relations with other countries, acts against the state and public security, against economic life and law and order, and those obstructing the supply of essentials and services.4 In April 2007, the interim government amended the Emergency Powers Ordinance 2007, giving itself the power to frame rules to expedite and effectively conclude any inquiry, investigation, trial and appeal with regard to any offence committed under any law during the state of emergency.5

What’s That Stink?
Thousands of people are reported to have been arrested without charge under the emergency laws, purportedly as part of the new government’s efforts to tackle crime and corruption.6 As with other countries in south Asia, Bangladesh has had a long tradition of preventive detention. A constitutional amendment in 1973 authorised the country’s parliament to pass preventive detention laws that allow detention for as long as six months. The detainee must be produced before an advisory board within those six months7 and the board must report its decision on a detainee to the government within 170 days of arrest.8 Preventive detention laws such as the Special Powers Act were widely used to target political opponents by the previous Awami League and Bangladesh National Party (BNP) governments.

A number of custodial killings, euphemistically called “crossfire” deaths by security forces and by those in the media, have also been reported. Torture is routinely used in Bangladesh to extract information and also as a form of punishment. Extrajudicial executions are routine. The emergency laws have now given a carte blanche to the security forces who are known to hold and torture detainees in unofficial places of detention. Those arrested include a number of high-profile politicians and functionaries in the previous governments who have been detained mainly on charges of corruption. Due process in all this has been blithely ignored. No warrants were produced at the time of arrest, and family members not informed as to where those arrested would be taken and held. At least one person was reportedly blindfolded before being hauled away.9 Homes were searched and belongings taken way, again without a warrant, and without an accounting of the items being confiscated.

The Emergency Powers Rules provide that under the Anti-Corruption Commission Act, if a person is suspected of possessing property disproportionate to his/her “legitimate” income, he/she must provide a statement listing all movable or immovable properties within 72 hours of receiving a notice to this effect from the Anti-Corruption Commission. If such a statement is not provided, or if the investigation officer believes the statement is false, the Anti-Corruption Commission may bring charges against the detainee within 45 days. In some cases, this time limit has already been breached, with the suspects remaining in detention.

The Anti-Corruption Commission’s remit is shockingly vague. When asked about the working methods of the commission, its secretary was unable to explain the basis on which the list of suspects was prepared. Information about suspects, he told a media correspondent, is received “through our intelligence unit, other intelligent (sic) agencies and also from newspapers”.10

The potential for abuse of arbitrary determinations of this nature is even more appalling. Those who fail to submit a “wealth statement” after receiving 3541the official notice, or submit a “false” declaration or document can be imprisoned for a minimum term of three years or a maximum term of five years along with a fine or both. A conviction in such a case can be appealed, but the court of appeal cannot grant bail or stay the trial court verdict during the appeal period.11

The rule banning release on bail was later relaxed with regard to offences under the penal code. However, the government maintained that this did not apply to those facing trial under the Emergency Powers Ordinance and that all courts and tribunals, including the high court and the apex court, were barred from entertaining bail pleas by those charged under the Emergency Powers Rules. In April 2007, the high court ruled that the government could not bar it or the Supreme Court from hearing applications for bail. The Supreme Court appellate division has however stayed that decision as it takes up the matter for consideration.

The court should expeditiously rule and recognise the right to be free on bail those not judged to abscond or a danger to the community. Such a right flows naturally from the presumption of innocence and would ensure a meaningful opportunity for a detainee to assist with his or her legal defence. A right to be freed on bail is of particular salience in countries beset with massive criminal justice backlogs like Bangladesh, where the opposite rule – no bail allowed – would mean prolonged detention in overcrowded conditions without any judicial review. Finally, even as the number of those detained in prisons increases, little information is available on the conditions of detention. Several detainees are known to be seriously ill. The authorities claim adequate medical facilities are provided; the general public must take their word for it. The ongoing “crackdown” by the “caretaker” government has demolished any illusion of there being a clean break from the past.

Out, Damned Spot
Bangladesh is party to the International Covenant on Civil and Political Rights (ICCPR), which allows member states to derogate temporarily from parts of the covenant but only in extreme cases of declared public emergencies so dire that they threaten the very existence of the nation (Article 4). According to the UN Human Rights Committee, which monitors implementation of the covenant, “States parties (must) provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation”. Further, “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4”.

The UN Human Rights Committee has also reasoned that member states may not invoke article 4 of the covenant as justification for, among other things, arbitrary deprivation of liberty or deviations from fundamental principles of fair trial, including the presumption of innocence, because it found no compelling reason why such rights should be disregarded even in a genuine emergency.

It is unlikely, however, the any official communiqué has been delivered by Dhaka to the UN declaring an emergency of existential proportions. The army chief, meanwhile, is striving hard to show that he is an internationalist. He has made absurd noises about replicating the examples of other countries in the areas of institution-building and the right to information. He has also held forth on the steps taken by other countries to counter corruption and to review their constitutions, but is plainly not concerned with the fundamental incongruity of an unelected government claiming the mantle of legitimacy to bring about these changes.

Sanitised and Done
Meanwhile, “civil society” in Bangladesh has yet to rally its forces. The fear is evident from the tone of news articles in the Dhaka press. However, a few voices have dared to protest despite the inevitable pressure. As the spirited New Age pointed out soon after the declaration of the emergency:

Just as we do not support unabated crime and corruption under a jungle law in the guise of rule of law, of which some of the arrested have been frequently accused, we do not subscribe to any persecution in the name of prosecution under cover of a state of emergency.

Such voices are in danger of being stifled if not supported by a wider, more strident call for a restoration of human rights and democracy. This has not been forthcoming. In fact, the actions of Bangladesh’s interim government have received little international criticism. Reactions have ranged from cautious optimism, “Indian style”, to hushed encouragement for illusory “roadmaps”, western style.

Even as India and the US join hands to evolve a “strategic partnership” to promote, among other things, democracy throughout the world, it is clear that this generous ideal does not extend to India’s neighbourhood. It would not constitute interference in internal affairs, for example, to remind Dhaka of its obligations under international human rights law.

For now, however, it appears that the caretaker knows best, and the people must go by his rulebook. They must hand over suspects, see them indefinitely detained without trial, and not cringe when they are brought to courtrooms on stretchers, wearing oxygen masks. They must control their rising horror when the relatives of suspects, including their children, are harassed and threatened.

And they must refrain from speaking about these things, since that might weaken the caretaker’s resolve and demoralise his troops.

There is no doubt that these times – “when to speak of trees is almost a crime” – too shall pass. How much longer, is a question Bangladesh must ask itself. #

This article was first published in Economic and Political Weekly, India, September 1, 2007
http://www.epw.org.in/uploads/articles/10976.pdf

Rineeta Naik is with the New Delhi-based South Asia Human Rights Documentation Centre (SAHRDC). SAHRDC has Special Consultative Status with the Economic and Social Council of the United Nations. Email: rineeta@gmail.com


Notes
1. Nurul Kabir, ‘Time for Some Soul Searching’, New Age, July 11, 2007, at http://www.newagebd.com/2007/jul/11/front.html#2
2. ‘Writ Petitions on Fundamental Rights Put on Hold in Supreme Court’, New Age, January 15, 2007, at http://www.newagebd.com/2007/jan/15/front.html
3. ‘Emergency Rules Framed Restricting Politics, Media’, New Age, January 26, 2007, at http://www.newagebd.com/2007/jan/26/front.html#1
4. Ibid.
5. ‘New Changes Empower Government to Make Changes It Wants’, New Age, April 20, 2007, at http://www.newagebd.com/2007/apr/20/front.html
6. ‘Thousands Detained without Charges in Bangladesh’, India Abroad News Service, June 25, 2007, at http://www.indiaenews.com/bangladesh/20070625/57552.htm
7. ‘Dealing with Dissent: The “Black Laws” of Bangladesh’, Human Rights Features (HRF/8/99), South Asia Human Rights Documentation Centre, October 11, 1999.
8. ‘Bigwig Jailbirds Produced before HC Advisory Board’, New Age, May 18, 2007, at http://www.newagebd.com/2007/may/18/front.html
9. ‘Axe Begins to Fall on Top Leaders’, New Age, February 5, 2007, at http://www.newagebd.com/2007/feb/05/front.html#1
10. ‘Fifty Persons Issued Notices to Submit Statements of Assets’, New Age, February 19, 2007, at http://www.newagebd.com/2007/feb/19/front.html
11. ‘Convicts under Emergency Powers Rules Barred from Polls’, New Age, February 15, 2007, at http://www.newagebd.com/2007/feb/15/front.html#1