Keynote address at the Conference on Human Rights Solidarity Bangladesh, May 2016, Bangkok, Thailand

Discussing Bangladesh’s situation from the human rights perspective is no doubt a difficult issue, given the chaotic situation that has developed in both the country’s political and criminal justice systems, during recent times. It may not be of much comfort to state that this chaotic situation has similarities in other South Asian countries, however, observing the similarities and differences may be useful to take a more sober view of the difficulties we are confronted with.

The purpose of such a discussion is neither to ascribe blame, nor to name and shame the government and authorities of Bangladesh.

To look into an issue from the point of view of solidarity is to look at even difficult problems compassionately, and also with the view to find ways to help the human beings involved. At the same time, it is also an attempt to think of solutions.

From a human rights perspective, looking for solutions into situations like that of Bangladesh requires patience for a long term perspective, while at the same time also pursuing short term objectives, particularly in terms of alleviating suffering and discouraging all those engaged in violence. A situation of violence is a situation of emergency. Thus, certain matters requiring an emergency approach, should, in my view, receive priority attention.

As persons interested and committed to human rights, we are committed to the liberty of all individuals, and the prime aim of our work is to protect this liberty.

From that point of view, the prevention of arbitrary killings (which includes every type of extrajudicial killings and enforced disappearances); prevention of illegal arrest, illegal detention, torture and ill-treatment; denial of fair trial; all forms of denial of free speech, freedom of expression and publication; and supporting people’s right to choose the government of their choice, I think, are high priorities for us.

The prevention of all forms of arbitrary killings should be one of our great concerns, with constant reports of such killings coming from Bangladesh. Amongst such killings, the greatest concern should be shown on the issue of enforced disappearances.

Let us therefore pause for a short moment to reflect on what enforced disappearances mean. In short, it means the denial of all the guarantees of individual liberties. In incidents of disappearance, arrest according to legal procedure is often displaced by abductions. Abduction is a crime, but law enforcement agencies are granted permission to engage in such criminal activity when arresting persons belonging to categories that the state has directed its wrath upon. Abduction is followed by illegal detention, often in remote or unlawful places. This manner of “arrest” and “detention” provides opportunities for torture and ill-treatment. It also allows the authorities to engage in these acts without keeping any records. Finally, arbitrary execution and the disposal of the bodies occur. Enforced disappearance is thus the total suspension of law, and the treatment of persons as legal non-entities. When the legal status of a person is removed, his or her citizenship comes to mean nothing. No state is ever empowered to reduce people into legal non-entities. The bond between the individuals living in a country and their state is one cemented solely on the basis of law. The state has no legal right to create this situation.

To counter this situation in Bangladesh, as well as elsewhere, there needs to be a greater response on the part of civil society as well as the human rights community. The total impermissibility of enforced disappearances must be raised locally and internationally in a much more strong and articulate manner. It is rather sad that despite the International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), coming into force on 20th December 2006, it is only in the Philippines that a law has been accordingly enacted, declaring enforced disappearances a criminal offence.

This year, the Sri Lankan government promised before the international community that it will enact a similar law to criminalise enforced disappearances. However, it has not happened so far. As for the civil society, and the human rights movement, we should humbly admit that what has been done in this regard is solely inadequate. We have not yet carried out our responsibilities as persons committed to the promotion of human rights, to ensure that this grave crime is abolished. Perhaps ways to improve the commitment of the human rights movement to the elimination of enforced disappearances in each of our countries can be discussed at this meeting. We can focus on Bangladesh, which is among the countries acquiring an ill repute for permitting such disappearances, together with Pakistan and Sri Lanka.

Moving to the issue of illegal arrest, it may be useful to re-instate the position of common law regarding arrest. The law relating to arrests in Britain was succinctly summarised by the great British jurist, A.V. Dicey, in the “Introduction to the study of the law of the constitution” (All Souls College, Oxford, 1885) as follows:

“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restrain is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial or because he has been duly convinced of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law i.e. (speaking again in very general terms indeed) under some legal warrant or authority and, what is of far more consequence, it is secured by the provisions of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus.”

Unfortunately, this position of the common law has been generally disregarded in South Asia, including Bangladesh. Reports of illegal arrest followed by prolonged periods of detention are commonplace. Of particular concern are the illegal arrests of persons who are seen as “hostile”, due to their commitment to express their views freely. Many reports of attacks against journalists and human rights activists are brought to public attention.

The participants of this meeting would be able to narrate many stories regarding the prevalence of these practices. As members of the human rights community, we should ask ourselves how to reinstate the position of the common law on arrests in our societies. Looking into the matter, we can see that our law enforcement agencies and our judiciary have not carried out their obligations as agents of the rule of law, particularly in the case of illegal arrests and detention. In fact, there is a primary failure of these institutions to protect the individual liberties of everyone living in these societies. The human rights movement has an obligation to observe and critique the negative transformations that have happened in our law enforcement agencies and judiciaries in recent decades.

Citizenship in any society acquires meaning only to the extent that the law enforcement agencies and the judiciary in that society play their role to protect individual liberties. What does citizenship mean, if the official protectors of individual liberties cease wholly or partially, to carry out their obligations to the people of their countries?

Thus, what we are witnessing is a profound threat to the existence of our societies as those based on rule of law and democratic norms. It is this threat that should alarm us all.

It is also the duty of the international community to take note of these profound changes threatening populations. The world has to some extent found ways to respond to natural disasters such as earthquakes and floods. However, the world has not yet given sufficient attention to the greater societal disasters caused by the upsetting of the structures of law and justice, which are the foundations of civilised societies.

Due to these institutions turning from their role of protector to predator, a profound catastrophe is taking place in our societies. Greater intellectual effort needs to be made towards articulating the gravity of these problems and the consequences of allowing them to continue. We are not only seeing chaotic situations being developed within our societies, but we are also seeing the possible consequences of these problems for the future.

What will the coming decades be like for people, if law enforcement agencies and the judiciary do not play their protective roles, or even worse, if they are transformed into their opposite role?

It is from this perspective that we should heed the warnings of the Chief Justice of Bangladesh, who said that “the Executive is attempting to steal away the judicial role”. This is a warning that the very basis of a society based on the separation of powers is being threatened. Even a little understanding of political theory can tell you that the replacement of a separation of powers set up will lead to an authoritarian state. The anarchy that we experience with our naked eyes is only a manifestation of the displacement of the very tectonic plates on which the nature of our societies rest, and it is from this point of view that the problems we are facing should be grasped and addressed.

Similar observations can be made on the issue of torture and ill-treatment. Like Sri Lanka, Bangladesh has also a law criminalising torture. However, also like in Sri Lanka, torture is an overwhelming experience for the people of Bangladesh. Torture for political reasons as well as torture as a means of enhancing corruption is widespread. It is so overwhelming that people accept it as a natural way of life. Such passive acceptance is often the result of terrible consequences that may follow any attempt to openly protest against torture and ill-treatment. Reporting on torture and ill-treatment, as well as arbitrary killings, is now considered treason. The very notion of loyalties to a nation is changing. The quality of a citizen is not judged on their commitment to the civilised values and principles on which the nation stands; a citizen is now expected to be silent, passive, and blind to the suffering of his fellow citizens. Thus, the very value systems on which a civilisation rests is being threatened.

With this brief bird’s eye view on human rights, we may now look into the crisis of the political system, which is the direct cause of this overall chaos. The multi-party system has been threatened in the attempt of one ruling party trying to devour the others. The very notion of representative government is being seriously disturbed. Details of the crisis can be described in detail by the participants with their own experiences; it is important for us to understand the meaning and implications of such a political crisis.

Our collective ancient wisdom tells us that understanding is the unavoidable first step towards solving a problem. We in Asia have inherited this long tradition of appreciation of understanding as the basis of meaningful action. Not to understand is also not to be able to act. We can therefore utilise this opportunity to understand our common plight in a spirit of cooperation and compassion. If there is an attempt to articulate a good understanding of our situation, we would be laying the foundation for a more profound and sustainable strategy to bring about a solution to our problems.

The Challenge

These kinds of problems, manifested in Bangladesh, as well as almost all South Asian countries, pose the greatest challenge to the human rights movement, locally and internationally. We must not give in to despair, as a response to these external conditions. It is clear that large sections of society facing these conditions do succumb to despair. This is expressed in various negative statements as well as negative actions, including a few extreme cases of suicide and the like. Others accept a type of psychological and mental suicide.

It is in this context that the challenge we are faced with now should be formulated. Members of the human rights community, both as individuals and as a community, should very consciously, deliberately, and purposefully, choose to fight for meaning and to build internal stamina – to individually find meaning, and at the same time to develop this stamina as a human rights community; to fight for change as our way of giving meaning to our own lives.

What is meant by “individually” is a deliberate thought process which would say that “yes, the external condition that we face is very grave”? There is a great likelihood of extreme suffering and extremely negative consequences arising, not only to the society in general but in our own lives. However, this situation is not going to deter us from using whatever little space that is available in order to escape the way we see things and the way we make out a meaning for the future, under such harsh circumstances. To be human rights activists under these circumstances is not merely a matter of engaging in some activities or protests; it is more than that. As human rights activists, we must carve out meaning from a meaningless and hopeless situation, and create hope for change.

I am not talking about something sentimental here. My thoughts are well based on the developments in areas of philosophy and psychology in the last century, which brought terrible moments for the whole world. Under such moments, there were many who struggled to recreate a meaning. Among them are the likes of Viktor Frankl, author of “Man searches for meaning”. Viktor Frankl was a victim of the holocaust, who survived the gas chambers. Later research and analysis showed that the chances of survival were 20 to 1. Viktor Frankl himself says that even as he continued to stay in the camp, he made the same assessment. He told himself, “Viktor, chances of escape are very slim.” However, he chose to use that slim chance, and formulated his entire spiritual and internal outlook with the idea of using that space and chance, rather than succumbing to hopelessness.

Therefore, it is of no use to deny the magnitude of the crisis. It is also destructive to enter into a mood of hopelessness and engage in ritual responses such as issuing an occasional statement, or making a visit by some UN agency and issuing a statement at the end of it, or in the Human Rights Council writing few paragraphs about the crisis. These types of responses are simply giving in to hopelessness and desperation.

What is needed, first of all is an attempt by the local human rights community as well as the international community to come to a common understanding of the magnitude of the dangers facing the entire people in their countries. It is with this common understanding, that the perspective can be developed to find ways to deal with the kind of crisis that is arisen in Bangladesh and also as I mentioned before, in many parts of South Asia.

On this basis we suggest the following measures so as to make the entry of the human rights movement including the High Commissioners Office, the Mandate holders and the Treaty Bodies, and also the local human rights community;

• The UN High Commissioner’s Office should find ways to come to a proper assessment of the deep political crisis in Bangladesh and how it affects the basic rights of individuals such as right against arbitrary killings of every sort including enforced disappearances, illegal arrests, illegal detention, denial of fair trials in many difference ways, the denial of the freedom of speech and publication and the freedom of association – all this culminating in the denial of Bangladesh people to elect a government of their own choice. This suggestion is based on the basis of the overall obligation of the Human Rights Council and the Human Rights Commissioner’s Office.

Without making this first step of grasping the entirety of the crisis, mere statements on the prevention of this or that will not carry much weight and, in any case, given the magnitude of the crisis these kind of measures will not make any tangible difference.

• The High Commissioner’s Office should seek the assistance of the international community in a way that it reaches out at the moment of serious disasters and crisis to the international community to assist the Bangladesh government as well as its people to strengthen their basic institutions for enforcement of law and also the judicial institutions. If the extent of the crisis of juridical institution in Bangladesh is not squarely faced, there is hardly anything that can be done for the protection of the people by way of upholding international norms and standards.

• The High Commissioner’s Office and the international community should take steps to provide a special programme of assistance to help individuals who are threatened in Bangladesh, such as the human rights activists, the journalists, and those who in one way or the other express legitimate public opinion, either on the basis of their political parties or as separate individuals concerned with their society.

• The UN Rapporteur for the independence of judges and lawyers should make an assessment of how the Judiciary itself feels about their independence in Bangladesh. When the Chief Justice himself has publicly spoken out and said that the Executive is bent on completely taking away the judicial functionm that is a warning of the highest nature. It is a kind of warning that it is not permissible to be ignored. The observers of the judicial scene over a long period also find that the Judiciary itself connived with the political forces to undermine judicial institutions. For whatever reasons, such compromises were made. Now, the Chief Justice himself is forced to admit that there is a real threat of judicial function not only being ignored but being erased in Bangladesh.

• Such is the situation, and it requires study, understanding, and the development of a strategy on how to deal with it. If such a strategy is developed in terms of Bangladesh, it could also help many other countries whose judiciaries are under serious threat, some of which are facing very serious danger of peril.

• The International community should develop a strategy as it did develop a strategy over a long period for Burma/Myanmar – for very many years, particularly after the 1988 election result being ignored by the Burmese military junta. The international community did intervene very proactively in order to ensure that the space for democracy and the rule of law should be restored to Burma. Such a strategy has not yet been developed at any time regarding Bangladesh. Bangladesh deserves such a strategy, and before it is too late, it is the duty of the international community to make a meaningful intervention based on a sound understanding of what is taking place in this country.

• It is also a time for all human rights activists and the democratic forces in Bangladesh to develop a uniform strategy based on a shared understanding of the threat that they are facing. A threatened people cannot find their way back without solidly getting together. Splitting and all kinds of petty strategies of NGOs or political movements for small gains will only further undermine the very foundations of Bangladesh society. The development of a uniform strategy should receive the attention of all opinion makers who should use all opportunities available in the media, and particularly in the internet related media where the censorship can be overcome at least to some extent, in order to develop thoughts, ideas and analysis to merge out a common understanding of the problems and at least some common strategies, to begin with the fight back for preserving their own meaning in terms of their citizenship in a democratic nation.

Thank you.