Thursday, October 11, 2007

Unfair trial and continued imprisonment of former parliamentarian Sheikh Hasina

A case for intervention by the IPU
06 October 2007

I. Introduction
Asian Centre for Human Rights (ACHR) appreciates the decision of the Inter-Parliamentary Union (IPU) to consider its request to explore the possibilities for intervention against the arrest, detention and continued imprisonment of former parliamentarian and former Prime Minister of Bangladesh, Sheikh Hasina since 16 July 2007. She is also the President of Awami League, one of the largest political parties in Bangladesh.

Asian Centre for Human Rights (ACHR) has studied all the four complaints filed so far against Sheikh Hasina by three private individuals and the Anti-Corruption Commission (ACC) of Bangladesh. A cursory reading of the cases reveals that these complaints are trumped up.

After having studied the complaints filed so far, ACHR can assert that complaints of alleged corruption, which could have been considered as alleged cases of bribery, have been turned into “extortion” cases – non- bailable offences - by the Caretaker government. In addition, three cases i.e. two complaints of extortion filed by Noor Ali and Azam J Chowdhury and one case of corruption filed by the ACC - have been brought under the Emergency Powers Rules (EPR) of 2007 in order to deny her bail indefinitely. These measures have been taken in order to prevent her from carrying out political activities which pose formidable challenge to the Care-taker government. A Care-taker government, which has no mandate of the people, by definition, must function within the ambits of the Constitution of Bangladesh and other national laws to facilitate installation of a government with people's mandate. The Care-taker government has not only set aside the Constitution of Bangladesh but has also assumed the role of the judiciary by retroactively applying the Emergency Powers Rules of 2007 which violates the basic tenets of fair trial and rights guaranteed under the Constitution of Bangladesh and international human rights law.

Asian Centre for Human Rights appeals to the Committee on Human Rights of Parliamentarians of the Inter-Parliamentary Union to take a decision at its 117th Assembly to be held in Geneva on 6 to 9 October 2007 to intervene with the government of Bangladesh for immediate release of Sheikh Hasina and ensure full respect for internationally accepted principles on the right to fair trial.

In this submission, ACHR provides (i) the briefs of the cases filed against Sheikh Hasina, (ii) issues of concerns for the Inter-Parliamentary Union and (iii) ACHR's requests for interventions.

II. Briefs of the cases filed against Sheikh Hasina
Former Prime Minister Sheikh Hasina has so far been charged in four criminal cases – three relating to alleged bribery charges which have been turned into extortion charges - and one relating to alleged corruption filed by the Anti-Corruption Commission of Bangladesh which has been brought under the Emergency Powers Regulations of 2007.

Case No. 1: Complaint filed by Tajul Islam Farooq with Tejgaon Police Station, Dhaka
On 9 April 2007, one Tajul Islam Farook, Chairman of Westmont Power Company, filed a complaint (No.30) with Tejgaon Police Station against Sheikh Hasina for allegedly extorting Taka 30 million from him. The case was registered under Sections 385 (extortion), 386 (extortion by putting any person in fear of death or of grievous hurt) and 387 (extortion by threat of accusation of an offence punishable with death or imprisonment for life) of Bangladesh Penal Code. He claims to have taken Taka 30 million in one suit case to give them to Sheikh Hasina on 12 December 1998.

No evidence was provided by the complainant.

Case No. 2: Complaint filed by Noor Ali with the Tejgaon Police Station, Dhaka
On 13 June 2007, one Noor Ali, Managing Director of Unique Group of Companies filed a complaint (No 32) with the Tejgaon Police Station accusing Sheikh Hasina, her cousin Sheikh Helal and Helal's wife Rupa Chowdhury of extorting Taka 32 million from him for helping his firm win a power plant deal in 1997. In this complaint filed under Sections 385 (extortion) and 109 (abetment) of Bangladesh Penal Code, the complainant alleged that the money was paid between 8 June 1997 and 20 May 1999.

The signatures on the back side of the cheque which is mandatory for the withdrawal of the money from the Bank were reportedly neither of Sheikh Hasina nor of the other accused.

Though the case was filed under Bangladesh Penal Code, on 16 July 2007, the government decided to put the case under the Emergency Powers Rules of 2007.

In a related development, on 17 July 2007, the Anti-Corruption Commission (ACC) asked Sheikh Hasina to declare her wealth within seven days.

On 29 July 2007, Sheikh Hasina has been shown arrested in the case filed by Noor Ali. [1] She has been in detention since 16 July 2007.

On 5 August 2007, Sheikh Hasina filed a writ petition with the High Court against the ACC's order asking her to declare her wealth.

On 7 August 2007, the High Court granted interim bail to Sheikh Hasina and ordered the government not to try her under the Emergency Powers Rules of 2007. The High Court also stayed the ACC's order asking Hasina to disclose her wealth. [2]

The government immediately moved the Supreme Court against the High Court's order. On 14 August 2007, the Supreme Court asked the government to file regular petitions to challenge the order. [3] On 27 August 2007, the Supreme Court stayed the High Court's order of 7 August 2007, thereby the Supreme Court sanctified her continued detention under the Emergency Powers Rules of 2007.

Earlier, on 14 August 2007, Dhaka Metropolitan Magistrate Mohammad Ashraf Uddin ordered the Officer-in-Charge of Tejgaon Police Station to submit the investigative report by 30 August 2007. [4] On 25 September 2007, Magistrate Mohammad Ashraf Uddin again ordered the Officer-in-Charge of Tejgaon Police Station to submit the probe report by 23 October 2007. [5]

Case No. 3: Complaint filed by Azam J Chowdhury with Gulshan Police Station, Dhaka
The third case was filed on 13 June 2007 by Azam J Chowdhury, Managing Director of East Coast Trading Private Ltd with Gulshan Police Station, Dhaka against Sheikh Hasina and her cousin, Sheikh Fazlul Karim Selim for allegedly extorting Taka 29.9 million from him for the work of Siddhirganj Power Plant in Narayanganj. [6] The case (No.34) was registered with the Gulshan Police Station under Sections 385 (extortion), and 109 (abetment)of Bangladesh Penal Code.

On 16 July 2007, Sheikh Hasina was arrested by the joint forces and imprisoned in a makeshift jail at the premises of the Parliament. On the same day, the Home Ministry issued an approval to bring the case under the Emergency Powers Rules, 2007 considering “public importance” of the case.

On 24 July 2007, Gulshan Police Station Officer-in-Charge, Obaidul Haq, who is also the Investigation Officer of the case, charge-sheeted Hasina along with her sister Sheikh Rehana and cousin Selim under Sections 385 (extortion), 109 (abetment) and section 34 (criminal liability) of the Bangladesh Penal Code. The charge-sheet stated that Selim confessed before the police that he had taken money from the businessman, Azam J Chowdhury on the direction of Sheikh Hasina and later gave Taka 10 million to Sheikh Rehana.

On 29 July 2007, Sheikh Hasina moved the High Court challenging the government's decision to bring Taka 29.9 million extortion case against her under the Emergency Powers Rules of 2007. [7]

On 30 July 2007, the High Court granted bail to Sheikh Hasina and ordered the government not to try her under the Emergency Powers Rules. [8]

The government immediately appealed before the Supreme Court against the High Court order. On 2 August 2007, the Supreme Court deferred the hearing till 14 August 2007.

On 27 August 2007, the Supreme Court stayed the High Court order of 30 July 2007 thereby denied her bail and brought the alleged charges under the Emergency Powers Rules of 2007. The Supreme Court also asked her to submit a statement disclosing her wealth to the Anti-Corruption Commission within a week. [9]

On 19 September 2007, Dhaka Metropolitan Magistrate KM Ruhul Amin set the next date of hearing on 4 October 2007 to decide as to whether or not to accept the charge sheet filed against Sheikh Hasina and others. [10]

Case No. 4: Complaint filed by ACC
The fourth complaint was filed by the Anti Corruption Commission on 2 September 2007 with the Tejgaon Police Station under the Anti Corruption Law against Sheikh Hasina and six others alleging that Sheikh Hasina, who was then the Prime Minister had received kickbacks worth Taka 30 million from the two power companies between 24 October 1996 and 24 November 1997 in exchange for favour.

On 19 September 2007, Sheikh Hasina was shown arrested in this case.

On 19 September 2007, the Anti-Corruption Commission also permitted the authorities to include the corruption case against Sheikh Hasina and six others under the Emergency Powers Rules of 2007. The case has been brought under Section 15 and Section 19(j) of EPR, 2007 following an application by the Investigation Officer of the case, Deputy Director of ACC, Morshed Alam. [11]

It is clear that ACC is acting as the judge and jury. None of the accused will be granted bail.

III. Issues of concerns for the IPU
Asian Centre for Human Rights strongly believes that the arrest of former Prime Minister Sheikh Hasina has little or nothing to do with offences allegedly committed by her but more to do with silencing any opposition to the Care-taker government from the Awami League.

Asian Centre for Human Rights shares the following concerns:
First, the arrest of Sheikh Hasina violates the cardinal principles of administration of justice – the presumption of innocence until proven guilty as provided under Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR). Under the Criminal Procedure Code of Bangladesh, when complaints are filed by private individuals and not the State, the allegations made in the complaint must be first investigated by the police before making arrest, and the complainant has to mandatorily make out a prima facie case before the Court could take cognizance of an alleged crime. No such investigation was conducted before taking Sheikh Hasina into custody. The investigation started only after she was taken into custody on 16 July 2007.

Second, the complaints were filed under various sections of Bangladesh Penal Code. Be as it may, even if the allegations were true, these alleged offences should have been considered offences such as “corruption”, “abuse of official powers” etc but not “extortion”. The offence of “extortion” has been invoked to deny her bail.

Third, all the alleged offences took place prior to the Emergency Powers Rules, 2007 came into force. Under no circumstances, a law can be applied retroactively. Moreover as provided under Section 15 of the International Covenant on Civil and Political Rights “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.”

Fourth, the Emergency Powers Rules of 2007 violates internationally accepted principles on the right to fair trial and allows the government to assume the role of the judiciary. Under Section 10(2) of the Emergency Powers Rules of 2007, “offences under these Rules are cognizable, non-compoundable and non-bailable”. Section 19(D) of the Emergency Powers Rules further provides that “While the Proclamation of Emergency remains in force, notwithstanding anything contained in Sections 497 and 498 of the CrPC, 1898 or any other law, a person accused of any offence under these Rules or under any of the laws referred to in Rules 14 and 15 of the Rules, 2007, may not submit a petition for bail before any Court or Tribunal pending enquiry, investigation or trial of such offence”.

It is for the judiciary to decide whether any accused should be given bail or not. However, as stated above, in Bangladesh, the Care-taker government has assumed the role of the judiciary under the Emergency Powers Rules of 2007 and no justice can be obtained as the judiciary has been reduced to a rubber stamp.

IV. ACHR's requests for interventions
On 30 July 2007, Sheikh Hasina was granted bail by the High Court into the complaint filed by Azam J Chowdhury, Managing Director of East Coast Trading Private Ltd with Gulshan Police Station. There is seldom any precedence for the government to appeal against such order of bail of the High Court before the Supreme Court. Bail can normally be cancelled by the bail granting court if any of the conditions of the bail are violated. But in case of Sheikh Hasina, the Care-taker government instantly filed an appeal to the Supreme Court against the order of the High Court and also simultaneously showed her arrested in another case under the Emergency Powers Rules 2007.

The order of the Supreme Court of 27 August 2007 staying the order of the High Court is also bad in law. Under the common law system of criminal jurisprudence, which Bangladesh follows, bail is also usually not denied so long there is no possibility of the accused disappearing after the grant of bail or interfering with the process of investigation. There is no possibility of Sheikh Hasina disappearing and it is the Care-taker government which did not want her to return to Bangladesh. Nor can she interfere with the process of investigation.

Sheikh Hasina continues to remain imprisoned simply because the alleged cases of bribery have been turned into “extortion” charges which are non-bailable offences and these alleged charges have further been brought under the Emergency Powers Rules of 2007. This has been done primarily because Sheikh Hasina has been challenging the Care-taker government which has been crossing its brief, among others, by acting as law unto itself and putting aside the Constitution of Bangladesh.

Considering the blatant violations of the internationally accepted principles on the right to fair trial and the lack of independence of judiciary through interference by the Care-taker government and the restrictions put by the Emergency Powers Rules of 2007 on the judiciary, the Inter-Parliamentary Union must consider intervening for the immediate release of Sheikh Hasina.

Asian Centre for Human Rights requests the Committee on Human Rights of Parliamentarians of the Inter-Parliamentary Union to take the following measures:

First, send a team of the Committee on Human Rights of Parliamentarians to Bangladesh to meet Sheikh Hasina and study the case/complaint documents and bring out a report which will, inter alia, examine whether the prosecution, trial and continued imprisonment of Sheikh Hasina meet internationally accepted principles on the right to fair trial and submit the same for consideration by the Assembly of the IPU;

Second, send a team of the Committee on Human Rights of Parliamentarians or international legal experts representing the IPU to observe the proceedings of the trials of Sheikh Hasina to monitor independence of judiciary and report to the Assembly of the IPU; and

Third, take any other measures that the IPU deems fit. #

Reference:
[1] . Hasina challenges extortion case at HC, The Daily Star, 30 July 2007
[2] . Hasina gets bail in another case, Daily Star, 8 August 2007
[3] . SC asks government to file regular petitions, The New Age, 15 August 2007
[4] . SC rejects govt plea for stay on Hasina's bail, The Daily Star, 15 August 2007
[5] . Cop asked for probe report on Hasina by Oct 23, Daily Star, 26 September 2007
[6] . Two more extortion cases against Hasina, The Daily Star, 14 June 2007
[7] . Hasina challenges extortion case at HC, The Daily Star, 30 July 2007
[8] . HC grants bail to Hasina, The Daily Star, 31 July 2007
[9] . Hasina's bail stayed, The Daily Star, 28 August 2007
[10] . Court now to decide on trial of case against Hasina Oct 4, The Daily Star, 20 September 2007
[11] . ACC okays bringing Hasina's Tk 3cr graft case under EPR, The Daily Star, 21 September 2007