BANGLADESH: Administrative, legislative and judicial measures needed to stop enforced disappearance and ensuring justice
Honorable guests and friends:
I would like to thank you for the invitation of Odhikar to this important meeting to advocate for the Accession to the International Convention for the Protection of All Persons from Enforced Disappearances.
Enforced disappearance is among the most serious violations of human rights.
According to the International Convention for the Protection of All Persons from Enforced Disappearances, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
In fact, it violates many of a person's rights, including the right to recognition as a person before the law, the right to personal liberty, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and the right to due process and constitutes a grave threat to the right to life. When persons are disappeared, when their identity is callously taken away, a gross act of abuse is committed. This abuse is suffered not only by the disappeared individuals, but also by their families and loved ones.
Unfortunately, enforced disappearances are still pervasive and prevalent in many Asian countries. The Asian Human Rights Commission has been receiving information on many cases of enforced disappearances in Asian countries. Victims of disappearances include social activists and community leaders on various issues and sectors (such as labour, peasant, land and environmental issues), journalists, political leaders, human rights activists, lawyers, etc. The perpetrators are agents of the police, the military, intelligences agencies and other law enforcement agencies.
In some Asian countries, enforced disappearances have become a routine practice by these agencies. Under the pretext of national security and anti-terrorism, governments invested the law enforcement agencies and the military with enormous unchecked power in arrest and detention that reinforce the practice of enforced disappearances. Enforced disappearances have been used as tool to suppress dissent and opposition. It creates fear in society to take part in public protests; the fear of abduction, followed by torture and many other forms of harassment, probably ending in an enforced disappearance and in the worst case extrajudicial killing.
The practices of enforced disappearances are maintained by the dysfunctional criminal justice systems in most Asian countries. What commonly happens is that the police refuse to register complaints whenever allegations arise against law-enforcement agencies and the military. Instead, further harassment, intimidation, and death-threats become part of the lives of the families of disappeared that wish to complain about the violations. The judiciary, which has the obligation to protect the fundamental rights, has failed to provide legal remedies to victims and their families. The right to habeas corpus is largely disregarded.
The adoption of the International Convention for the Protection of All Persons from Enforced Disappearances by the United Nations General Assembly in 2006 represented a milestone of combating enforced disappearances. The Convention entered into force on 23 December 2010. The Convention contains an absolute prohibition on enforced disappearances in both peace and war time. It provides the basic principles and frameworks for establishing effective legislation and mechanisms for the prohibition of enforced disappearances as well as redress and reparation for victims. It also establishes an international mechanism to supervise the compliance of states with their obligations and an urgent appeals procedure that can be used where forced disappearance is suspected.
The Asian Human Rights Commission has been calling upon all Asian states to ratify or accede to the International Convention for the Protection of All Persons from Enforced Disappearances. Here we particularly call upon the Government of Bangladesh to accede to the Convention.
In Bangladesh, the above problems of enforced disappearances also exist. In particular, the Asian Human Rights Commission is concerned about the increase of the incidents of enforced disappearances in Bangladesh. The law enforcements agencies and paramilitary forces, particularly, the police, the Rapid Action Battalion and the armed forces, are allegedly involved in the abductions of persons and their subsequent disappearances.
The Government of Bangladesh has the constitutional obligation to ensure the right to protection of law and the protection of right to life and personal liberty enshrined in Article 31 and Article 32 of the Constitution. As a State Party to the International Covenant on Civil and Political Rights, Bangladesh is obliged to ensure administrative, legislative and judicial measures to protect the rights of individuals as the Article 2 of the ICCPR enshrines. As a longstanding member of the UN Human Rights Council, Bangladesh has the obligation to promote and protect human rights as committed in its pledge to be elected as a member of the council.
Therefore, the Government of Bangladesh should take resolute measures to stop enforced disappearances. The accession to the International Convention for the Protection of All Persons from Enforced Disappearances will show a clear and strong commitment of the Government to fulfill its constitutional obligation and international obligations to protect human rights, in particular, the right to personal liberty and the right to life, to stop enforced disappearances.
However, the accession to the Convention is not enough. In order for this convention to be successful, it is essential that all those countries that ratify it enact corresponding domestic legislation. Without this, there is no way for the conventions' provisions to be taken seriously.
Domestic legislation must also ensure that there are credible and functional criminal justice institutions. The country's criminal justice institutions need to be equipped with their fullest capabilities to address such heinous crimes and related problems with credibility and independence, especially institutions of investigation. In the majority of Asian countries, criminal investigation is largely carried out by the police, in a shoddy manner. There are no independent bodies with the resources or authority to conduct proper investigations. Without such institutions however, there is no way to fulfill the obligations undertaken by ratifying the convention; not only must laws be enacted, but institutions and personnel to enforce those laws must also exist. It is also essential to set up effective witness protection mechanism to ensure the safety of witnesses as well as victims.
The prevention of torture should be a key component of the prevention of enforced disappearances. In Bangladesh, the Bill titled "Torture and Custodial Death (Prohibition) Bill-2011" has been reviewed and recommended by the relevant Parliamentary Committee one and half a year ago. The bill criminalizes torture according to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is now pending for adoption as law. The Government should seek for the earliest adoption of the bill.
Reparation is an important aspect of providing remedies. For this reason, it must also be codified in law, with the relevant procedures set out to decide on suitable amounts of reparation, taking into account financial and other concerns. At present, reparation for human rights abuses in the majority of Asian countries is awarded arbitrarily, and tends to be a trivial amount. It is also important for society to recognize the wrong that was done to certain individuals, not only for the rehabilitation of the victims and their families, but also to remind society of how it failed in protecting them. Preserving the memories of these persons and the events that occurred is thus essential. This is particularly important in the cases of disappeared persons, whose families have no physical remains of their loved ones, which is very traumatic.
To end my sharing, I wish for the success of the conference and look forward to develop mutual support and solidarity for the elimination of enforced disappearances.
Thank you very much.
*Mr. WONG Kai Shing is the Executive Director of the Asian Human Rights Commission, based in Hong Kong. The above article is his speech delivered on 15 September 2012 at a meeting held in Dhaka, Bangladesh, on Advocacy Meeting on Accession to the International Convention for the Protection of All Persons from Enforced Disappearance, organised by Odhikar-Bangladesh and AFAD.