Minus-two conspiracy push Bangladesh into a corner with no legal exit

Photo: William Sloan addressing a press conference organised by Bangladesh human rights activists in New York on March 8, 2008

[An Observer Mission led by reputed Canadian jurist William Sloan, President of Canada Chapter of International Association of Democratic Lawyers (IADL). He was visiting Bangladesh during February 16-23, 2008 and was subjected to harassment and intimidation by state security intelligence. He release this statement at a press conference held in New York on March 8, 2008]

"The Army is not a good school for democracy" -Pierre Elliot Trudeau

AS A Canadian lawyer in private practice since 1984, specializing in Asylum and Immigration, I have traveled many times as a human rights observer since 1987, mostly in the Americas. I visited Bangladesh from February 16 -23 2008, invited by exiled Bangladeshis concerned about the Human Rights situation in their country since the Declaration of Emergency on January 11, 2007 (1-11). I had a mandate from the International Association of Democratic Lawyers (IADL). The IADL is a human rights organization founded in 1948 that advocates for socio-economic and cultural rights, as well as civil and political rights.

I have previously visited Bangladesh in February 2002 and August 2005. On all three occasions I have met with lawyers, journalists, professors, human rights activists, parliamentarians and political leaders from various parties. I have extensive knowledge of the situation in Bangladesh from documentary sources, as well as from my two previous visits.

Throughout the visit I was under overt surveillance by the intelligence services, from my interrogation on entry at the airport to my detention for 10 hours in my hotel room and police escort to the departure gate. For example, when I left Shahriar Kabir's home after dining there, it was almost comical to see the motorcycle and two cars start up to follow me back to the hotel. If I had been a Bengali, it would not have been comical, as I would probably have spent time in a Joint Forces interrogation cell.

On February 19, I attempted to visit the Special Court on the Parliament grounds where former Prime Minister Sheikh Hasina is on trial. I was allowed inside the security perimeter but denied access to the Court by Police.

As I exited the security perimeter I was faced with a wall of television cameras, microphones and photographers. I made a brief statement concerning the necessity of public hearings for due process. This was widely reported the next day in the newspapers, but TV stations were forbidden by intelligence agencies to run the audio of my statement.

Contrary to what appears to be suggested, when I appeared at the door of the building where Sheikh Hasina is on trial it was not a surprise for the authorities. On the previous morning, I met at my Hotel with Major Zakir of the DGFI, who assured me that as long as I stuck to due process issues, they had no problem with my presence or activities.

I planned to hold a press conference at the Sonargaon Hotel on the 22 with the Bangladesh Democratic Lawyers Association, the local IADL affiliate. Two hours before the conference, we were informed by hotel management that the authorities had cancelled the conference. A group of lawyers already present was expelled from the lobby, police escorted me to my hotel room and a police line prevented media access to the hotel.

The most obvious concern raised by these events is restriction of freedom of the press. ODHIKAR is the foremost human rights NGO at this time in Bangladesh. In their latest press release, February 1, 2008, the first concern they express is of media control by the Directorate General Forces Intelligence (DGFI). I must note that the DGFI has "he who shall not be named" status in Bangladesh – such is the fear that they generate, much like the Shah's SAVAK or Pinochet's CNI.

Another related concern raised by ODHIKAR in their 2007 Human Rights Report is the repression of human rights defenders. In May 2007, their acting Director, A.S.M. Nasiruddin Elan received death threats from Naval Intelligence at Naval Headquarters after he wrote reports on two deaths of local politicians in Naval custody. In December 2007, their Kushtia based observer was beaten in the local police station.

The following concerns are addressed in this report:
• Breakdown of the internal constitutional order; • Violation of due process rights; • Violation of right to counsel; • Judicial independence; • Abuse of Emergency Rule to repress workers and farmers rights, students and professors; • Impunity for human rights violators in the police and military

Minus Two Scenario
In August 2005, while Katrina was destroying New Orleans, I had conversations in Dhaka with an MP and a newspaper editor who told me about what they called a "minus two" scenario that they described as follows:
1. In the run-up to the 2007 elections, street violence, which is always present during election campaigns in Bangladesh, would be used to justify cancelling the elections. The decision would be taken by the "Caretaker Government" charged with running the country during the three month election campaign. 2. A State of Emergency would be declared and the Armed Forces would in effect take control. 3. An anti-corruption drive would be initiated to extract "the two Begums", Khaleda Zia and Sheikh Hasina, from the political scene. 4. The political landscape would be redrawn before the holding of elections, with a "new" political leadership more acceptable to the US State Department.

It appears that my interlocutors had crystal balls. The scenario has played out as written, with explicit public support from the US-UK-Canada diplomatic corps which seems to have assumed a 21st Century "White Man's Burden" of remodelling political life in Bangladesh. There is of course a disturbing parallel with US support for General Musharraf in Pakistan and the exclusion of Bhutto and Sharif.

During the few days I was in Dhaka, top man General Moeen was on the front page of the daily papers every day, calling for "honest men to come forward", announcing that the Westminster parliamentary system is not for Bangladesh, publishing his book on a new Bangladesh, distributing boats and nets to the Cyclone Sidr hit coast.

Following military rule from 1975 to 1990, Bangladesh experienced parliamentary democracy from 1991 to 2006, with Mrs. Zia as PM from 1991-1996 and 2001-2006, Sheikh Hasina 1996-2001. Both of them were placed under house arrest during the Emergency, then jailed in July (Hasina) and September (Zia). Both women are in their 60's, neither is charged with a violent crime, yet both are detained without even access to bail.

While on the one hand the government has formally decreed the separation of the judiciary and the executive, it has on the other hand created a Special Court with Special Rules and Powers to try both women for acts purportedly committed long before the Emergency was declared, and for events unconnected to the Declaration of Emergency. Mrs. Zia has yet to be charged, 6 months after her arrest, though there is much talk about numerous cases. Sheikh Hasina now faces 2 charges, though there is talk of perhaps two dozen more.

The Constitutionally mandated maximum duration of a state of Emergency in Bangladesh is 120 days, which expired in May 2007. The decision by the de facto government to prolong the Emergency has led them into a no-man's land where the only authority supporting their actions is the force of the Military.

We will of course leave to the Courts the determination of guilt, but police methods in gathering evidence raise serious concerns. Abdul Awal Mintoo, 58, a US-Bengali businessman was detained in Dhaka in May 2007 on the vague charge of "destabilizing", and held for 6 months. After his release and escape to the USA he told the press that he had been interrogated mostly about how he might give evidence against Sheikh Hasina. (NT Times 26-Nov-2007)

While I was in Dhaka, a proposal for a "Truth Commission" was floated in the daily papers, whereby businessmen could avoid prosecution by denouncing politicians for corrupt deals. Several persons popularly suspected of corruption appear to have thus far avoided arrest and prosecution by publicly supporting, even joining the government.

A shining example is the former BNP Minister of Local Government, Abdul Mannan Bhuiyan, whose ministry was identified by Transparency International - Bangladesh as the most corrupt one in the out-going government. He has no apparent problems holding political meetings to split the BNP, when such meetings are banned under the Emergency Rules. Strangely, neither has he been prosecuted.

ODHIKAR notes that reform of public institutions has thus far consisted principally in replacing civilians with military personnel. One of these, Lt. General Hassan Mossud Choudhury, Chairman of the Anti Corruption Commission, was Army Chief of Staff during the previous government. As Commanding Officer, he is responsible for dozens of deaths by torture in Army custody during Operation Clean Heart in late 2002.

The banning of political, trade union and similar activity has been violently enforced, resulting in nearly 200 extrajudicial killings in 2007, including 30 reported deaths by TORTURE in custody in 2007. Two more deaths by torture were reported in January 2008, among 8 extra-judicial killings.

An example is the April 23, 2007 death of Abdur Rahman Munshi, pump operator for 27 years at the Platinum Jubilee Jute Mills in Khulna, injured the previous day during a police attack on the "mill colony" where the workers live. A second raid on his home during the night led him to flee through a grilled window, causing further injury. His family took him to a private clinic, fearing that the soldiers posted at the Hospital during the night would kill him. The clinic refused to treat him as his family had no money. After daylight his family felt safe enough to take him to the Khulna Medical College Hospital, where he died a few hours later. He was three years from retirement.

Military authorities have not provided necessary medical attention to detainees, resulting in at least one death. BNP member Abdul Qayyum Khan, an elected City Councillor in Dhaka, was arrested on January 12, 2007. After a year-long battle in the Courts, he was released on bail on January 10, 2008. Police re-arrested him at the prison gate on a new charge. He had complained that his heart condition was not adequately treated in the jail. He collapsed in jail and died on February 8, 2008.

Right to Counsel
The importance of the right to retain and instruct counsel of one's choosing cannot be underestimated. Accused persons, especially those detained, depend totally on counsel to protect their Constitutional due process rights. Restricting or refusing access to counsel in effect leaves the detainee helpless, both psychologically and legally.

Defence lawyers have reportedly been threatened, including with detention, if they did not withdraw from cases. Some were pressured to go over to the prosecution side. Some lawyers who are members of a political party have been threatened with "or else" if they represent their party colleagues.

Sheikh Hasina has seen particular treatment. During the first six months of her detention, her senior counsels were allowed only three visits, though they sought many more. Mid-level counsel was allowed only one visit between October 29, 2007 and January 18, 2008. On a day when she was to appear in Court to answer charges, she was denied access to Counsel before actually standing up in Court. On one occasion she was interrogated by the military/police Team without prior notice and without the presence of Counsel. Such violations of such a fundamental right are reminiscent of Guantanamo Bay.

Imagine for a moment if ex-Canadian Prime Minister Brian Mulroney were subjected to such treatment! And Mr Mulroney admits having received hundreds of thousands of dollars in undeclared cash payments from an arms dealer, while in office.

Abuse of Emergency Rule powers
Farmers demonstrating for better access to fertilizers, jute-mill workers protesting privatization and closure of the mills, garment workers striking for unpaid back-wages, and even Cyclone Sidr victims protesting mismanagement of relief funds – thousands of people have been arrested and charged with violating Emergency Rules. The lists of detainees have not even been made public. Yet when it comes to assuring that government subsidized rice is delivered to the poor people in Dhaka to whom it is destined, half of the rice disappears from the government distribution scheme into the Black Market. From 7 Taka/kilo at the government price a year ago, workers are now paying 40 Taka/K. on the open market.

Campus repression
Dhaka University has been at the heart of many of the political movements in Bangladesh history. When Emergency was declared on 1-11-07, the Army occupied the campus, setting up an Army camp based in the D.U. gymnasium. About 14,000 full time students-in-residence depended on the Gym to blow off steam. There are no bars, no dance halls, no pool rooms in Dhaka.

During a soccer game on the campus between two faculty teams on August 20, 2007, a verbal altercation resulted in a scuffle and three students were beaten by soldiers. A spontaneous demonstration came out of the residences calling for justice. Police smashed the demonstration with riot sticks and tear gas. Many students were hospitalized, several were arrested.

The next day (21st), at an emergency meeting of the Dhaka University Teachers Association (DUTA), attended by 250 professors, resolutions were passed calling for:
• Army withdrawal from the campus • End to Emergency rule (over the 120 days mandated in the Constitution) • Dismissal of the Inspector General of Police because of the police action on campus • Compensation for student victims of police brutality • Restoration of fundamental rights of citizens
The following morning (22nd), professors marched on campus in a silent procession to press their five demands. After the march, several professors were visited in their campus residences by the DGFI for interrogation and threats. That afternoon, demonstrations broke out everywhere in the streets of Bangladesh, with many other sectors joining the students in the streets. A curfew was declared in 6 cities.

After midnight, on the 23rd, police arrested two leaders of the DUTA and 8 teachers at Rajshahi University. Prof. Anwar Hossain is Dean of Biology, President of DUTA. He states that he was physically tortured by his interrogators during the several days he spent in their custody. Prof. Harun-or-Rashid is Dean of Social Sciences at Dhaka U. He spent 12 days in remand custody, held in a death-penalty cell without a bed, subjected to sleep deprivation, 24 hour bright lights, blindfolding during interrogation, psychological torture and threats. Particularly disturbing is the fact that Prof. Rashid was twice brought before a Magistrate during that period, and twice sent back to the police cells. After this uplifting experience they were transferred to a new jail building for the next four months, where they were treated somewhat better.

The teachers were charged with inciting the students and damaging vehicles. Street vendors were coerced into testifying against them in what the Professors qualified as a kangaroo court. In January 2008, all the teachers and the Dhaka U. students were sentenced to 2 years imprisonment, but all were pardoned by the President the same day, though they had made no application for clemency. Apparently diplomatic pressure was brought to bear.

Students arrested at other universities have not yet been tried, are still detained, most without charge. One Dhaka U. student, Chattra League Gen. Sec. Mahfusal Haider Choudhury, has been detained without charge since January 2007 in Dhaka Central Jail under the Special Powers Act (1974).

After these incidents, the Army left the campus, but has been more aggressive since then, appearing to develop a siege mentality, according to some of the persons interviewed.

Judicial independence
Bangladesh's lower court system has been roundly criticized for its lack of independence, as the magistrates were civil servants under the Home Ministry, subject to the whims of politicians and senior bureaucrats, and to transfer to other civil service jobs. The present government has decreed that they are now under the Law Minister, which will hopefully be an improvement. Unfortunately, it has also decreed that all the corruption cases will be tried before a Special Court, with Special Rules and no Constitutional guarantees.

The Supreme Court is split into two divisions – the High Court which hears habeas corpus and other applications for constitutional remedies, and the Appellate Division. The High Court has long had a reputation for independence, regularly bracing whichever government is in power. The High Court judges have lived up to their reputation during the Emergency, declaring over 150 detention orders illegal since 1-11.

Almost all these orders have been stayed by the Appellate Court, some ex parte without a hearing, some after a five minute hearing. Over 100 habeas corpus appeals are pending in the Appellate Court, some since March 2007. The detainees remain detained. Justice delayed is justice denied, especially for persons deprived of their liberty.

Military Officers in uniform often "observe" hearings in the Appellate Court. There have been publicly acknowledged visits to appellate court judges by both prosecutors and law enforcement agencies. Such actions are in flagrant violation of the rule of law, as modern democracy depends on the independence of the judiciary. Justice must not only be done, it must be seen to be done.

On February 6, 2008, two courageous judges of the High Court, Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam rendered a judgment quashing one of the indictments against Sheikh Hasina. They found that the Emergency Power Rules (EPR) 2007 can not be used to prosecute for events having occurred before the Emergency was declared, that the EPR have no retrospective/retroactive effect, that penal provisions in the EPR are unconstitutional (ultra vires), especially the provisions removing the right to bail, and that the High Court retains the power and authority to guarantee fundamental rights enshrined in the Constitution, notwithstanding the Declaration of Emergency. It further found that the Attorney General had improperly applied the EPR 2007 basing himself on the personality of the accused rather than the nature of the alleged crime.

The government applied for an ex-parte stay, as usual, but was faced with a protest meeting by the Bangladesh Supreme Court Bar Association in front of the Appellate Court, proposing to repeat the exercise every day if the Court did not put an end to its rubber stamping of government applications. The Appellate Court decided to order the government to file a regular appeal. I was not able to attend the hearing of the stay application because it was postponed, but media reports that on February 26, 2008, the Appellate Court ordered both a stay of the judgment and a stay of the criminal proceedings before the Special Court, until it hears the Appeal itself on March 16, 2008. The media report nothing concerning the issue of detention.

By staying the multiple Orders of the High Court, without ruling on the merits of those cases, all involving detained persons, the Appellate Division has in effect rendered nugatory the protection of fundamental rights and freedoms guaranteed by Bangladesh's Constitution, avoiding its own constitutional responsibility to assure the Rule of Law.

Impunity
What ever his intellectual capacities, the choice of Lt. General Hassan Mossud Choudhury to head the ACC sends a terrible message to the population. Not only will he not be held responsible for the crimes committed by the men under his command during Operation Cleanheart, he is placed at the head of the body that will decide which politicians to prosecute.

One of the amendments that has been discussed is to ban from political office all persons who have committed war crimes or crimes against humanity. While this proposition is worthy of support, it is an empty one if there is no prosecution of those criminals, including those whose crimes were committed in 1971, or in later years. The South African model of Truth and Reconciliation Commission is worth studying as an alternative to prosecution.

RECOMMENDATIONS
The de facto authorities have painted themselves into a corner, with no legal exit. They must at least implicitly admit their error and return the country to the Rule of Law. That means lifting the state of Emergency, restoring Constitutional Rights, immediately setting the date for a Parliamentary election. The fallacy that a picture ID card will prevent fraudulent elections ignores Bangladeshi reality, where election fraud often occurs kilometres away from the polling booth, when Hindus are prevented from traveling to vote, or when violence prevents a party from campaigning. Election monitors are probably useful in the month preceding the vote, as well as on voting day. And last, stop trying to keep human rights monitors out of the country as though they were part of the problem.

This statement was released by William Sloan, Montreal, Canada, March 6, 2008