Laws without order & courts of no relief in Bangladesh

Md. Ashrafuzzaman, Researcher, Asian Human Rights Commission, Hong Kong

While the whole of Bangladesh is struggling for some justice, the country’s laws and judiciary are compromised and incapable of meeting the people’s needs. At every point there are contradictions and inconsistencies. Meanwhile, the police and other security forces kill and torture with impunity, and there is no relief in sight for the victims or their families.

Laws are designed to protect officials, not citizens
Section 46 of the Constitution of Bangladesh empowers the government to extend immunity from prosecution to any state officer on any grounds:

Notwithstanding anything in the foregoing provisions of this part, Parliament may by the law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration or order in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area), to make the above-mentioned law.

Although this provision was originally intended with reference to the 1971 war for independence from Pakistan, it is now being used to protect police and joint operations units from prosecution for human rights abuses. Notably, the Joint Drive Indemnity Ordinance 2003 removed from the hands of victims and their families the right to take legal action against soldiers, police and other security forces responsible for the gross abuses that occurred from 16 October 2002 to 9 January 2003 under Operation Clean Heart (see further: Nick Cheesman, “Fighting lawlessness with lawlessness [or] the rise & rise of the Rapid Action Battalion”, article 2, vol. 5, no. 4, August 2006).

But aside from the passing of special laws under section 46, there are barriers built into ordinary criminal procedure that prevent people in Bangladesh from making a complaint against an official. Sections 132 and 197 of the Code of Criminal Procedure 1898 are those that prove the best defence.

Under section 132, no criminal complaint can be lodged against any official without prior sanction from the government. This means that complainants must first lodge a case with a magistrate, argue the case and have it investigated simply in order to get it opened. Furthermore, an accused person who is found to have been acting “in good faith” or on orders from a superior shall never be charged and his actions shall never be considered a crime. These provisions appear to have been incorporated into Bengal’s criminal procedure by the British colonial regime to protect its personnel at all costs from being pursued into a court by a “native” whom they had wronged. It is also an article that seems to have much more in keeping with antiquated French administrative regulations than with the common law tradition.

Even as Bangladesh’s criminal procedure was being established, the eminent British legal scholar A V Dicey wrote of the “essential opposition” between the idea that a government official should have special protection from a court on the grounds that they were merely carrying out an order and the basic principles for the rule of law and justice in England:

The personal immunities of officials who take part… in any breach of law, though consistent even with the modern droit administratif of France are inconsistent with the ideas which underlie the common law of England. (A V Dicey, Introduction to the study of the law of the constitution, 8th ed., Liberty Fund, Indianapolis, 1982 [1915], p. 267)

The government of Bangladesh has never sought to make changes that would overcome this inconsistency. On the contrary, it has exploited the section to an extent that perhaps even the British regime would never have imagined. And although section 132 runs contrary to decades of development in international jurisprudence aimed at establishing that to claim to have simply been following orders is no excuse from responsibility, still in Bangladesh it lives on.

The courageous attempts of Shahin Sultana Santa and her husband to overcome these massive obstacles are illustrative (Lawless law-enforcement & the parody of judiciary in Bangladesh, article 2, vol. 5, no. 4, August 2006, story 16). Santa was assaulted in front of television cameras and mercilessly tortured by the police in Dhaka during March 2006: she was pregnant at the time, but lost her child shortly afterwards. In any sane and properly functioning society, such an incident recorded for the whole world to see would lead to swift and severe punishment of the perpetrators, and probably high-level inquiries to determine what went wrong and make legal and structural changes to prevent similar atrocities in the future. But the police, judiciary and administration of Bangladesh are neither sane nor properly functioning. What happened when Santa went to lodge a complaint? The Mohammadpur police refused to record it: not once, but repeatedly. Her husband, a lawyer, lodged two cases directly in the court. One of the cases was investigated by a judicial probe commission, on an order from the judge. The probe did not finish the job. The judge then ordered a supplementary report. The report concluded that “the victim was excessively tortured unnecessarily, which is a punishable crime under the Penal Code, if it is sanctioned by the authority according to the section 132 of the Code of Criminal Procedure”. So far so good, but what happened? The judge dismissed the case on a technicality: that the probe had not established the intent of the police as required under the Women and Children Repression Prevention (Special Provision) (Amended) Act 2003. Never mind that the judicial investigator had concluded that there was a case to be answered under the Penal Code, the whole thing was thrown out even before anyone was taken to trial. Santa and her husband are now pinning their hopes on the Supreme Court. But few others would have the know-how and determination to carry on if in their shoes.

Section 197 for its part iterates that a court must obtain government approval to hear a case against one of its officers, and then, that even if it is approved the government has complete control over how the case is heard:

(1) When any person who is a Judge within the meaning of section 19 of the [Penal Code], or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the [Government], is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the [previous sanction of the Government]-

(2) [The Government] may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, [Magistrate] or public servant is to be conducted, and may specify the Court before which the trial is to be held.

Under these circumstances it is no exaggeration to say that the notion of redress for rights abuses by state agents is non-existent in Bangladesh. Where politicians use the police, magistrates and prosecutors for personal gain, what approval can be expected from them when an ordinary person alleges torture, death by “crossfire” or some other terrible wrong committed by police or other security officers? All claims by the government that there is justice and enjoyment of human rights in Bangladesh are made farcical when viewed through the lens of these laws.

Who’s afraid of a judicial probe?
A judicial probe is an investigative inquiry into an active case by a magistrate under the Code of Criminal Procedure. According to its section 202(1), it is possible for

Any Magistrate, on receipt of a complaint of any offence of which he is authorized to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, of the purpose of ascertaining the truth or falsehood of the complaint;
[Provided that, save where the complaint has been made by a court, no such direction shall be made unless the provisions of section 200 have been complied with.]

In Santa’s case, a judicial probe found that she had been tortured and prosecutions could follow under the Penal Code, but still the judge found a way to enforce the wishes of the police rather than due process. This is the usual fate of a judicial probe in a human rights case.

Take the brutal assault on journalists on 16 March 2006 in the Chittagong stadium at the start of a test cricket match between Bangladesh and Australia. This police attack also was televised and could not be disputed (story 14). Under heavy pressure, a judicial probe commission was set up under the District and Session Judge of Comilla. The State Minister of Home Affairs, Md. Lutfuzzaman Babar, promised that the probe report would be published in the media the day after it was submitted to his ministry and the alleged perpetrators would be prosecuted in accordance with its findings. The minister subsequently forgot all about these promises. The report was never published and nor have any perpetrators ever been punished, apart from some departmental disciplinary action.

Ultimately, most probe commission reports are useless documents that anyhow are ignored or manipulated by the authorities to reach whatever conclusion they would have come to in the first place: i.e. one that will ensure that the perpetrators escape punishment. Sometimes the failure is due in part to the work of the person heading the probe, who may deliberately distort and delay the findings to protect the accused, or who may simply have a lack of genuine commitment and interest in the needs of the victim. In other instances, it is the efforts of other authorities to undermine the probe that are its downfall. Many times it is due to both. In either case, most reports end up gathering dust on a shelf or in a wastepaper basket.

In fact, whereas a judicial probe is intended to reveal truths that may cause the case to progress, it can also be used to dispatch a case without giving the complainant any chance to speak. This is because under section 202(2B) if the police are entrusted with the probe, “When the police submit the final report, the magistrate shall be competent to accept such report and discharge the accused.” This is what happened in the case of Abdur Razzak, who died in Bogra district jail on 27 June 2005 after illness and an assault which was allegedly on the orders of the jail authorities (story 32). When Razzak’s mother lodged a complaint in court about the death of her son, the magistrate instructed the officer in charge of the local station, Police Inspector Mansur Ali Mondol, to investigate the case. Mondol lodged a final report with the court without investigating and recording the complaint as required. The case was closed without Razzak’s mother being informed. She was thereafter forced to open another case against the alleged perpetrators. Other human rights cases where judicial reports have come to little or naught include the assault of Rashida Khatun (story 9); the mass killings and assaults in Nawabganj (story 20), and the shooting deaths of two men and a boy and injury of at least 16 others on the orders of a magistrate in Kustia (story 24).

No rule of law + non-separation of powers = No independent judiciary
In his 2004 report, the UN Special Rapporteur on the independence of judges and lawyers described how the rule of law and separation of powers are the pillars of the independence of judiciary:

The rule of law and separation of powers not only constitute the pillars of the system of democracy but also open the way to an administration of justice that provides guarantees of independence, impartiality and transparency. These guarantees are… universal in scope… (E/CN.4/2004/60, para. 28)

Although section 22 of the Constitution of Bangladesh directs the government to ensure an independent judiciary, in fact the entire lower judiciary in Bangladesh moves on strings extending from government departments. The components of the special rapporteur’s equation–rule of law, separation of powers, independence of judiciary and for that matter, genuine democracy–are all missing from Bangladesh today. To understand why, it is necessary to look in more detail at the structure, work and characteristics of its judges.

The judiciary in Bangladesh has three major parts, starting with magistrate’s courts and then judge’s courts in each of the country’s 64 districts, and at its peak, the Supreme Court, which comprises of a High Court Division and Appellate Division.

To open a case, it is necessary to go through a magistrate. Here a complainant will find the first problems, particularly if the complaint is against a state official. Magistrates are not independent of the government. In fact, they are petty administrators-cum-judges. All magistrates throughout the country, and at the four metropolitan cities, where they work in Chief Metropolitan Magistrate’s Courts, are answerable to the local district deputy commissioner. This person is the chief executive officer of the area. The deputy commissioner will also hold the position of district magistrate, who is in turn the boss of the additional district magistrate. The latter handles the assigning of duties to the sitting magistrates throughout the jurisdiction together with the district magistrate/deputy commissioner: these may include revenue collection and other administrative functions. So magistrates work for not only the Ministry of Home Affairs but also the Ministry of Establishment and the Ministry of Finance. They can also at any time be assigned duties from other ministries. A “magistrate” may at 9am start work as a revenue collector, after 11am go to sit in court and conduct trials and after lunch be engaged in some other government business. Needless to say, the first priority of these so-called magistrates is to implement government orders, rather than adhere to any notion of judicial integrity. They also are actively involved in investigations of cases as well as arriving at verdicts: an executive magistrate and judicial magistrate rolled into one, but less efficient than two separate persons.

Judge’s courts are the second line of defence for the state and its functionaries. Each is headed by a district and session judge, accompanied by an additional district and session judge and a number of sub judges, senior assistant judges and assistant judges. Perhaps the titles are intended to be ironic, or to convince the public that through reiteration of the word “judge”, one can be found somewhere. In fact, none can be properly called a judge in the sense that the word is understood in developed jurisdictions or international law. Instead, these are just a higher level of state agents. The Ministry of Law, Justice & Parliamentary Affairs oversees their recruitment, posting and promotion. Although the “judges” may not have to run around collecting taxes and looking after government property like magistrates, still they are subject to the dictates of the executive, not any judicial authority.

It is obvious to any intelligent onlooker that when judges are under executive control, the government can interfere in under-trial cases whenever it feels like it. And it does. Much of the time this is done through various indirect means. But sometimes also it is direct, particularly where a politician from the ruling party needs to be rescued from prosecution.

The case against Bangladesh National Party (BNP) leader Mirza Khokon in connection with a series of bomb blasts on 10 November 1998 is a good example. Khokon, the brother of BNP Joint Secretary General Mirza Abbas (later a government minister) was leading an opposition rally through the Khilgaon area of Dhaka when bombs went off in the vicinity, killing one person. Participants in the rally were blamed. On 21 September 2000 six persons, including Khokon, were charged. After the BNP took power, the case was kept pending. Then, Sheikh Momen, a Senior Assistant Secretary of the Ministry of Home Affairs wrote to the Additional District Magistrate of Dhaka on 19 June 2006 “recommending” that the court drop Khokon from the charges. On July 3, the magistrate asked the prosecutor to comply and, not surprisingly, on July 17 an application was lodged to drop Khokon’s name from the case. Finally, on July 25 the Metropolitan Session Judge’s Court did as instructed. The Ministry of Home Affairs said that the murder case had been politically-motivated and that by removing Khokon from the charge sheet they were saving an “innocent” man. Apparently the ministry felt qualified to decide the question of guilt or innocence of the accused on the court’s behalf. Whether or not Khokon had anything to do with the blasts will never be known as in either case there is no means under the present judicial system to try such a person without political interference one way or the other.

The Supreme Court of Bangladesh, including both of its divisions, is the only genuinely independent court in the country. In fact, in contrast to other parts of Bangladesh’s odd judiciary, it has up to the present obtained public respect for its uprightness and non-partisan decisions. Among its historic verdicts in recent times was its order to the government to cleave off the two lower tiers from the various ministries to which they are answerable (in State vs. Mr. Mazdar Hossain, 2 December 1999). That order included 12 directives to the government, including to establish a Judicial Service Commission for recruitment of judges of the subordinate courts and to ensure financial upkeep of the courts. The problem is that as the one island of relative coherence and consistency in a sea of corruption and maladministration, the Supreme Court judges have difficulty enforcing these directives. Even the staff members of the Supreme Court offices, such as bench clerks, are known to compel litigants to pay bribes every step of the way, and offer extra services, such as pushing cases up the queue, for more money.

Hollow commitments to cut loose the judiciary
Successive governments have for the last 15 years promised to cut the judiciary loose from the executive. In 1991, when the BNP won the election after nine years of military rule, this was among its key pledges. It was such a fine-sounding pledge that after five years of having done nothing about it, not only the BNP but all of the major political parties made the same commitment before the general election in 1996. The new administration, led by the Awami League, took a leaf from the BNP’s book and also let five years pass without any evidence that it could recall having made such a promise. In 2001 a caretaker government led by a retired chief justice of the Supreme Court gave signs for hope. Freed from the usual party political shackles, it began steps to make good on the government’s now legal obligations for an independent judiciary (keep in mind that the Supreme Court in 1999 had ordered that the earlier election promises be made reality). But the former chief justice was advised on the phone by the subsequent prime minister, Begum Khaleda Zia, to leave the job for her “elected people’s government”. As her BNP-led four-party alliance had put the separation of the judiciary at the forefront of its pledges, the caretaker government took Khaleda’s word for it, and left the job to the “people’s representatives”. The opportunity was lost. Nearly five years have passed and the government has again, predictably, done nothing.

Meanwhile, the government has kept playing the Supreme Court for time. After its order to separate the judiciary from the executive branch, the government began applying for extensions. Like a schoolboy coming to class with one implausible excuse after the next about why he could not do his homework, it applied for more time on no less than 23 occasions. Finally, the Supreme Court lost its patience. On 5 January 2006 it rejected the government’s latest request for an extension, and said that it would not entertain any more. The government had taken almost five years to formulate the Judicial Commission and the Pay Commission, while the Rules of Bangladesh Judicial Service (Formulation, Recruitment, Transfer, Suspension, Termination and Removal) 2006 and the Rules of Bangladesh Judicial Service (Posting, Leave, Grants, Discipline and other conditions of service etc.) 2006 have been prepared after the imposing of the Rules of the Judicial Service Commission by the president. A contempt of court case has now been opened against the government over its failure to implement the 1999 order. How long that takes remains to be seen. Meanwhile, people in Bangladesh are left to suffer injustice heaped on injustice by their ridiculous lower judiciary.

The politics of prosecutors
As if the deliberate non-independence of judges alone was not enough of a problem, the government of Bangladesh also plays havoc with the way that cases are prosecuted. Public prosecutors are political party playthings. Each time a new government comes to power–that is, each time power rotates from one of the two main parties to the other–all of the public prosecutors and assistant public prosecutors in the country are replaced, from attorney general down. They carry on until the next power flip-flop, and again the other side puts its own people in. Prosecutors are also thrown out during a government’s tenure if they dissatisfy the whims of a local member of parliament, a minister, or some other political heavy. Their appointment and job security is not determined by their ability or professionalism but by the extent to which they have served the financial and political interests of the appointing party, its leaders and followers.

The obvious consequence of this mad system of appointment and promotion is that there is no building of a functioning institution and tradition of good prosecutors. They do not accumulate experience or build a legacy to pass from generation to generation, as they are in and out the door every few years. The skills needed for proper prosecuting do not develop, and instead political bias is the sole determining factor. Prosecutors simply make the most of the time that they have in their positions to benefit themselves and their patrons.

The prosecuting and investigating branches also are completely detached. If the police do not investigate a crime, the prosecutor has no responsibility. Most of the time public prosecutors accept charge sheets prepared by police officers solely because of bribes or other external pressure. They will only challenge the police when there is a direct conflict between the police and their political masters. Under any circumstances, in most instances the police will also simply choose to go along with whatever the political party in power at the time wants and expects of them. As long as they can keep making money and getting away with whatever else they are up to, they adopt a mercenary approach.

The March 1999 bomb blasts case is a good example of all these problems with prosecutors and politics in court cases. Around midnight on March 6 that year, two explosions killed ten persons and injured around a hundred attending a cultural programme in Jessore. More than ten of the wounded suffered permanent injuries. The same night Sub Inspector Abdul Aziz lodged two cases with the district police station. Assistant Superintendent of Police Dulal Uddin Akand in the Criminal Investigation Department was assigned to investigate. Finally, in December ASP Akand laid charges against 24 persons, including a top leader of the BNP (later a government minister), Tarikul Islam. Other persons connected to the BNP, which was then in opposition, were also named. In response, Islam submitted a petition to the court seeking to be removed from the charge sheet, which was done by the Appellate Division of the Supreme Court on 12 August 2003. Only then could the trial proceed. On 28 June 2006, with the BNP in power, the Special Tribunal of the Session Judge of Jessore released all of the other alleged perpetrators unconditionally. Judge Abul Hossain Bapari said that the prosecution was completely “evidence-free” and proposed that “the investigating officer should be prosecuted for preparing a false charge sheet”, the accuracy of which the prosecutor had failed to verify. He gave as an example that on 19 January 2006, ASP Akand admitted in court to having forced five of the accused and seven witnesses to sign blank papers which were used to construct fake testimonies. None of those persons were ever produced before magistrates. The officer also admitted that he had intended to use the case to frame Tarikul Islam and other BNP members. After the verdict, a discouraged victim who saw that among the group there were persons who got off because the police messed up the case by dragging in political opponents of the government was reported as saying that, “I have lost one of my legs, ten people died and more than 100 were injured like me. Now the killers are doing a victory lap around the town. What have we got out of the trial?” This is the question that each and every helpless person in Bangladesh asks as they repeatedly watch killers, torturers and rapists leaving the court, or cases destroyed by political interference, while the jails are packed to the ceiling with innocents.

Although the judge in this case sanctioned the investigating police for wrongdoing, there was nothing to be said of the prosecutor. The prosecutor has no obligation to check facts and allegations before taking a case to court. Even if a prosecutor goes in “evidence-free”, it is other people who have the problems. The prosecutor feels answerable only to his party bosses. He does not share blame when truth is distorted. Nor do politicians who get targetted by such practices take initiatives to change the system: after all, when they are in power, they hope to use it to do the same to their rivals.

The only sure things in Bangladesh: Death and impunity
Impunity and death are the only sure things in Bangladesh today. Both come in many forms, but whereas one is an inevitable part of the natural order, the other is part of the country’s unnatural and degenerate political, legal and administrative goings-on.

The unfortunate thing about impunity is, of course, that it just keeps creating more impunity. A person who assaults another on behalf of a political party and gets its protection when it is in office becomes more committed to keeping that party in power at whatever cost. A police officer who kills for a superior and is protected by him afterwards has entered into an extralegal contract that will be far harder to break than anything the country’s pathetic legal system can enforce, if it ever had the inclination. A politician who steals government money and is protected by his appointee in the court will do her best to see that judge brought up through the ranks. In fact, everything is about the movement of officials from this post to that, through chains of command from political patrons: an entirely different structure in reality from the charts drawn up on paper for the sake of bureaucracy, and international organisations and donors.

This is the legacy that is being left to the children of Bangladesh. The legacy of scratching backs, of give and take. It is a legacy that causes enormous frustration to the millions who suffer from impunity, rather than benefit from it. These people have lost trust almost completely in those claiming themselves to be police, judges, prosecutors and administrators. As a result, they do not go to seek help from the police, or lodge a case in a court. If worse comes to worse, they find their own way of dealing with problems, or withdraw completely. The entire nation is filled with mistrust, fear and hatred; democracy, human rights and the rule of law are figments of the imagination in today’s Bangladesh.