Md. Ashrafuzzaman, Programme Coordinator
Asian Legal Resource Centre, Hong Kong
The ‘rule of law’ appears to be one of the most frequently used terms in Bangladesh, without regard to what inherent meanings the phrase poses and what obligations it creates on the State authorities. In academic texts, civil society seminars, and political rhetoric, the term abounds in the form of citing provisions of the Constitution and government pledges to argue that rule of law prevails in Bangladesh. Does the rule of law, however, really govern the lives of the Bangladeshis today? What does it look like when measured on the scale of normative standards of the rule of law? Given more than four decades of political deceitfulness on the part of their politicians, this is expected that the people of Bangladesh now take the benefit of hindsight to avert a more dreadful future. Let us consider the basic question when it comes to the rule of law. Are all persons and authorities bound by the same laws? The Constitution of Bangladesh, in Article 27, for instance reads: “All citizens are equal before law and are entitled to equal protection of law.” Reality says an entirely different story.
Gradually Bangladesh has turned into a difficult place for the dissident voices and for those who oppose the successive regimes’ unabated embezzlement of public funds. Beyond the crimes, consider how victims of custodial torture are always denied access to the complaint mechanism once they approach the police stations with a complaint against the police officers. Cases of extrajudicial executions and enforced disappearances face the same impunity. The police do not record complaints against the law-enforcement agencies. Ergo, military officers are above the law and the criminal justice system.
Whatever the law states becomes pointless, when the crimes of high profile politicians of ruling parties are concerned. For instance, the Anti Corruption Commission (ACC) has covered up the scams of the former Railway Minister Suranjeet Sengupta. The World Bank brought the Padma Bridge corruption issue1 to the notice of the government, providing evidence against high profile ministers, bureaucrats, and relatives of the Prime Minister. But the ACC and the government have pushed the issue under the carpet. The Prime Minister publicly declared the then communications minister Sayed Abul Hossain a ‘true patriot’ when Hossain’s name surfaced as one of key accused in the scam and public criticism was at its peak.
One should also try to understand the existence and functionality of the rule of law by checking whether all persons and authorities are entitled to benefit from all laws. This point deserves that one focus on the reality of the gross abuses of human rights in Bangladesh. The right to protection of law2 is guaranteed in the Constitution as an ‘inalienable right of every citizen’. Likewise, the protection of right to life and personal liberty3 and the safeguards related to arrest and detention4 are guaranteed in the same document.
Yet, hundreds of people have been extrajudicially murdered while in custody of the police, the Rapid Action Battalion, and other paramilitary and security forces, within the last decade. Numerous people have been and continue to be illegally arrested and arbitrarily detained, mostly in fabricated cases. The law, in general, does not benefit any of the victims.
On the other hand, Bangladesh promulgates considerable legislation that cannot be considered as ‘law’ according to basic legislative norms. For example, a law titled ‘Joint Drive Indemnity Act5, 2003′ protects officers of the armed forces and the other paramilitary forces from prosecution if they were to commit a large scale violation of human rights6. This so-called legislation has denied thousands of victims the right to seek justice. The judiciary, including the Supreme Court, has maintained silence about this law. Another law titled “Father of the Nation’s Family Members Security Act7, 2009″, only benefits the family and the relatives of the incumbent Prime Minister of Bangladesh, Sheikh Hasina. Such laws are anathema in a state that abides by the rule of law.
Considering further whether the rule of law exists in Bangladesh one may check to see whether all laws are made publicly or not. Since independence many laws have been made arbitrarily in Bangladesh, without public knowledge and consent. For example, the Special Powers Act8, 1974, was made to arrest people without any Court’s order or a warrant. The government was thus empowered to put citizens under ‘preventive detention’ for so-called ‘prejudicial acts’. And it allowed government officials to determine which act is ‘prejudicial’ and which one isn’t, bypassing and undermining the judiciary.
The Fourth Amendment9 to the Constitution of Bangladesh was passed in the National Parliament in less than 15 minutes. There was no discussion in Parliament regarding the Amendment, let alone any public discussion in the country. The Fourth Amendment, thus, is known as a ‘parliamentary coup’ in Bangladesh.
The Fifteenth Amendment10 to the Constitution of Bangladesh had the same fate as the Fourth Amendment. The Parliament rubber-stamped the Fifteenth Amendment Bill in under 15 minutes. The people of the country were in the dark regarding this Amendment, which introduced the grand provision for punishing persons with the death penalty for criticising the Constitution, labeling such criticism an act of ‘sedition’11. The Amendment has also inserted an Article that prohibits all the future Parliaments of the country to amend the ‘Basic Provisions’12 of the Constitution, making future amendments punishable for sedition. This Amendment also repealed the Fifth Amendment of the Constitution. But, it did not renumber the successive amendments to the Constitution, and also did not clarify how it would justify actions of the State performed under the erstwhile Fifth Amendment.
The Information and Communication Technology Act13, 2006, the Anti-Terrorism Act14, 2009, and the Mobile Court Act15, 2009, are among other draconian laws created without public knowledge. Furthermore, all the laws made by military and military controlled regimes were imposed as ordinances with immediate or retrospective effect. The people of Bangladesh did not have any knowledge about such laws prior to their promulgation. Therefore, on the whole, Bangladesh fails this rule of law norm as well.
In a rule of law state, citizens should also have knowledge of the existence, the contents, and the full texts, of all laws promulgated and put in force. Everyone should have easy access to the laws as well.
Is this the case in Bangladesh? The law-making process solely depends on the wish of the head of the Bangladesh government. Forget theory, this is the reality. From beginning to end in the law- making process, the people are kept isolated from the discussion about both the necessity and the impact of the potential law. The government drafts a Bill using bureaucrats, who always oblige the regime, ignoring the welfare of citizens. On rare occasions are opinions collected from select members of civil society. Either way, at the time of enactment, the Parliament rejects16 the views of ‘civil society’.
Different regimes, out of the arrogance that comes with absolute authority, and ignorant of existing laws, have ended up duplicating laws. New laws often overlap, or contradict, existing laws and constitutional provisions. Article 2A, which establishes
‘Islam’ as the ‘state religion of the Republic’17 and Article 12, wherein ‘Secularism’ 18 is adopted, as the ‘Fundamental Principles of State Policy’, is case in point. When the Constitution is riddled with such amendments, one can comprehend the state of domestic laws. What is more, the President promulgates ordinances acting upon the wishes of the office of the Prime Minister. Such legislation and its process remain hidden from the public.
What is true for the process is true for the laws promulgated too. Access to the laws is not a reality for the ordinary public; rather, it is the legal practitioners and law-enforcement agencies that mostly deal with the laws, with or without a correct version and interpretation of the law.
The application of all laws prospectively is another significant feature of the rule of law. And, in Bangladesh, constitutional amendments and domestic legislations have been put in effect retrospectively. The Fifth Amendment to the Constitution of Bangladesh was passed by Parliament on 6 April 1979. It was, however, put into effect from 15 August 1975, with retrospective effect. Likewise, the Eleventh Amendment to the Constitution is another example. This Amendment validated the oath and office of Mr. Shahabuddin Ahmed, Chief Justice of Bangladesh, as the Acting President of the Republic from 6 December 1990 to 9 October 1991. During this period Bangladesh’s Chief Justice Shahabuddin Ahmed became the Acting President of the Republic on political consensus, since military dictator Ershad’s downfall. The constitutional amendment justified Justice Ahmed’s desire to return to the Office of the Chief Justice. After Acting Presidency he served as the Chief Justice until the end of 1994 as a result of the Eleventh Amendment to the Constitution of Bangladesh.
Apart from the Constitution, the International Crimes Tribunal Act19, 1973, has been one of the most debated examples of laws having been applied with retrospective effect. This particular law was made in 1973 for bringing to justice perpetrators of war crimes and crimes against humanity committed during the Bangladesh war of independence. For political reasons, the due trials did not take place for a long time.
In 2009, the Bangladesh Awami League, after assuming office, initiated trials of the alleged perpetrators. The government amended the Act on 14 July 2009, and again in 2012 and 2013. Trials of a number of alleged perpetrators commenced; the government kept targeting new persons by choice, instead of finalising the entire list of perpetrators. In the middle of the trial, the government amended the Act with retrospective effect. Section 2120 of the Act, for instance, was substituted by a provision enabling the State to secure its ‘Right to Appeal.’ This amendment took place after a few judgments had already pronounced by ICT Tribunals. This Amendment was made following protests by a section of the public, who demanded the death penalty21 for one of the convicts punished with life imprisonment. This law excludes the applicability of the Evidence Act, 1872, and the Code of Criminal Procedure, 1898. Therefore, the prospective principle has been and continues to be breached in Bangladesh.
In a country where the rule of law exists, another feature must be present: all the laws should be administered in the courts of law. In Bangladesh, the powers of the Courts have been curtailed in certain laws. Consider the example of the Speedy Trial Tribunal Act22, 2002. This law was made with the purported aim of ensuring quick trial for five specific offences: murder, rape, and the possession of illegal firearms, explosives, or narcotics. Initially, it came into force via a Presidential ordinance. Later, the Parliament ratified it. Section 6 of the Act authorises the government to select particular cases involving crimes falling into the five categories and to transfer them, by gazette notification, to the Speedy Trial Tribunal for holding quicker trials. The law has thereby allowed executive authorities to arbitrarily pick and choose cases for trial under this law. The executive authorities rather than the judiciary usually decide the fate of these cases.
The Mobile Court Act, 2009, was first introduced as an ordinance by the military controlled emergency regime23. This law authorises the government to assign an ‘Executive Magistrate’ or ‘District Magistrate’ to conduct trial of offences24 under this law. At least 85 separate laws were put into the schedule25 of this Act. Sections 6 and 11 empower the ‘Executive Magistrates’ and ‘District Magistrates’ – both being administrative officers of the Executive branch of the state – to punish the so-called accused instantly, with a maximum imprisonment of two years26 and monetary penalties, as per the laws listed in the Schedule of this Act. Such instant punishment is executed without the accused being able to avail legal representation. This Act imposes obligations on law-enforcement agencies and concerned institutions of the government to assist the ‘Mobile Court’ in its operation. This law has mostly been used to punish opposition activists for alleged violence in particular, though all manners of citizens have met with instant ‘justice’ in this way for a variety of alleged crimes. Thus, Bangladeshi executive routinely undermines and jettisons the courts to try certain alleged crimes.
Anyone wishing to gauge the functionality of a rule of law system in a given territory should also ask another critical question: Is the investigative system under the police adequate to enable the courts to administer justice? In the context of Bangladesh, the answer is resounding no. The investigation system maintained by the police is notorious. Torture and corruption are inseparable from the investigation system27 in Bangladesh. The police do not have the required efficiency and commitment to investigate cases with any credibility. Rather, the police maintain a ‘chain of corruption’ 28 for building individual fortunes. The forensic medicine examination and medico-legal investigation system is still primitive29. As a result, ‘confessional statements’ extracted through torturing an accused or a witness is a key technique of criminal investigation30. Corruption is inseparable from every stage of a criminal case31.
As far as the rule of law is concerned, it also important to consider whether the prosecution system is adequate, to allow for laws to be administered by the Courts. Bangladesh has never had an independent and competent prosecution system. Rather, the country has a ‘disposable’ 32 prosecution system. Every regime appoints a group of lawyers of their choice to act as prosecutors or state attorneys. These lawyers get this opportunity because of their political loyalty – not professional skills – and often by corrupt means. The prosecutors partake in riotous corruption, the result of which reflects in their subsequent lifestyle. The prosecutors do not delegate their responsibilities or skills to any successors. The transfer of prosecutorial responsibilities does not take place; once a regime assumes office, a new set of prosecutors occupy the office of the prosecutors; predecessors stop coming to the office once they know their own party is not returning to power.
A common feature of Bangladesh, in terms of considering the status of the rule of law, is that the Courts face constant interference by the government, other political pressures, and pressure from powerful lobbies. Direct intervention in the functioning of Courts is a way of life in Bangladesh33. Since the birth of Bangladesh and up to October 2007, the Magistrate’s Court was directly under the Ministry of Home Affairs. Executive officers of the state used to sit in the Courts to adjudicate criminal cases. All adjudications used to depend on administrative and political interference. Since November 2007, the ‘separation of judiciary’ has taken place on paper. In reality, although the ‘Judicial Magistrates’ have replaced the ‘administrative officers’ to adjudicate law, the traditional practice of the executive monopolising judicial functions continues. The recruitment, posting, promotion, or elevation of judges controlled by the executive branch of the state. As a result, the judiciary, at all its levels, entertains the instructions of the executive and persons close to the rulers34.
As a result, public confidence in the competence and impartiality of the Courts in administering justice is absent in Bangladesh. The people do not trust the judiciary35. The popular perception is that if any person becomes party to any litigation this involvement has arrived in their life as an unfortunate blow. Being involved in litigation is assumed to be the result of misdeeds or sins committed by someone in the family. The judicial process is itself assumed as a form of punishment in society.
Next, is the procedure for the appointment, promotion, and dismissal of judges made through an objective process that inspires public confidence in a rule of law system? In Bangladesh, the appointment, promotion, and dismissal process has been greatly politicized and subject to corruption. The Ministry of Law, Justice, and Parliamentary Affairs deals with the process of appointment, promotion, and dismissal in a whimsical fashion, prompted by the wishes of the incumbent political regime. This occurs despite the Rules directing that such actions should be conducted through ‘consultation with the Chief Justice’. That said, the Chief Justice also happens to be appointed on political considerations36. And, thus, what is in practice and the procedure in terms of normative standards do not match.
It may be understood that once judges are recruited, promoted, and posted on the basis of their political ideology and loyalty37, the position of judges can never be secure from interferences into judicial decisions. The notion of impartiality and independence of judges has no place in the actions of such an institution. Due to large-scale politically determined appointments and postings, judges that wish to maintain normative principles get demoralized. Undeserving judges damage any vestige of the rule of law by entertaining matters that are unlawful, unethical, and corrupt38.
There is no means provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which parties themselves are unable to resolve. Today, disputes cannot be resolved without intervention and support from locally influential persons belonging to the ruling party. In Bangladesh, the litigation cost is prohibitive, and it is not affordable to ordinary litigants. Besides, there is an option of receiving ‘legal aid’, which is almost inaccessible to them. Inordinate delays in disposing the criminal and civil cases contribute to public frustration about the judiciary’s competence in administering justice. In absence of any kind of ‘witness protection’ mechanism the people face multiple challenges. Those who dare contest cases against the law-enforcement personnel, influential persons associated with the ruling parties, and economically powerful persons, face dire threat to their lives, liberty, and property.
The adjudicative processes provided by the state are not fair. Many decisions of the judges are made behind closed doors, particularly when opposition activists and human rights defenders are made accused in fabricated cases. Due to corrupt practices and politicization, decisions are made behind closed doors. There is no functional process of holding the judges accountable. There is perpetual fear of contempt of court proceedings, i.e. vindictive actions by the judiciary39.
Additionally, the role of lawyers, as integral part of the adjudicative process, is negative. By and large, the lawyers have acted to their own personal advantage and not for the preservation of litigation practices complying with norms of the rule of law.
Furthermore, there is no guarantee that the Court’s decisions will be implemented in Bangladesh. Those having the capacity to influence a powerful authority of the state can undermine a judicial order40. The institutions that responsible for upholding the rule of law are constrained. The police, the prosecution and attorney services, the forensic medicine examination system, and the courts are not allocated adequate financial, technical, and human resources41. This inadequacy guarantees the inefficiency of these institutions and increases corruption. The possibilities of corruption are not prevented within the institutional systems as far as Bangladesh is concerned. Rather, the possibilities of corruption are promoted. The culture of impunity amongst the offenders is thus entrenched. As a result, the police and law- enforcing agents do not care about the quality of service that they are legally obliged to render to the people. The police officers are, in practical terms, not answerable to anyone for distortion of facts, evidence, and for illegal arrests and arbitrary detentions, due to the ‘chain of corruption’ having replaced the ‘chain of command’.42 Likewise, corruption has been made inseparable from prosecutorial affairs and adjudication43.
A functioning rule of law system makes all laws accessible to all citizens. In the case of Bangladesh, the laws are not accessible to the people. Subsequently, the people have to rely on brokers, who are often representatives of local government entities, such as the municipality. These people, at the same time, may be police sources or may be working with a particular lawyer hunting for cases or clients for litigation. For registering a complaint, a litigant has to follow what the police dictate or be subject to how a client-hunting lawyer imposes himself and ignores the needs of the client. The police and the lawyers habitually add fictitious stories to the facts relating to a complaint when complainants approach them to register a case. They tempt complainants and argue that exaggerated complaints will help fit the case to stronger provisions of law that may bring harsher punishment to the alleged perpetrators. Due to the complainants’ lack of knowledge about legal provisions and the lack of access to law, the complainants agree with the police and lawyers, who extract extra money from complainants for such ‘service’. Challenging the police, or the lawyer, may only increase the insecurity of the person already struggling to get legal remedy44.
All laws are not clearly intelligible and predictable in Bangladesh. For example, in Section 7, the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982, states that doctors have to publicly display their charges and fees45. The same ordinance, in Section 14, makes the entire law useless by barring the courts’ authority to take cognizance of a case unless there is ‘a complaint in writing from the Director General of Health’ 46. Take the example of the Motor Vehicles Ordinance, 1983. In Section 189, the law authorizes police officers to punish the ‘offenders’ with monetary fine47. In fact, the amount is not mentioned in the law. As a result, the police do business of extortion, and charge fine arbitrarily, by using this law. Also, the Information and Communication Technology Act, 2006, with its vague definition48 of offences, gifts immense power to the police to arrest and harass any citizen the state. In addition, the Police Act, 1861, is made non-applicable in metropolitan areas, according to Section 3 of the Dhaka Metropolitan Police Ordinance49, 1976; this causes chaos in the policing system itself, not to mention citizens caught up in its legal web.
When one talks about the rule of law, it is important to consider how the question of legal rights and liabilities is resolved – by ordinary application of the law or by discretion of any authority? The closure of the Daily Amardesh, a vernacular pro-opposition daily newspaper, and detaining its Editor, Mr. Mahmudur Rahman, is a glaring example that exposes the truth about abuse of discretionary power. On 11 April 2013, the police arrested Mahmudur from his office. He was shown arrested as an accused in two cases of car vandalism, despite him not having stepped out of his office for several months in order to avoid state repression. The newspaper was shut down forcibly and the printing press sealed by the police the same evening without lawful reason50. The action was challenged in the High Court Division of the Supreme Court of Bangladesh. The High Court gave a partial hearing to the newspaper’s writ. To delay the process, or to deny normal legal redress, the state attorneys made a request for further hearings in the presence of the Attorney General. Subsequently, the hearing has been pending for nearly a year. The writ has still not been included in the cause list of the Court at the time of writing. The editor remains in detention without trial. The case shows how the laws of the land apply on the basis of political identities and socio-economic status51.
There is no scarcity of law in Bangladesh. But, when the question of protection under law arises – either in the cases of ordinary crimes or gross human rights violations – a diabolical picture takes shape. Take the example of enforced disappearance and extrajudicial killings by the RAB and the police. Not a single incident involving such crimes has led to prosecution since the RAB was created in 2004. The denial of access to the complaint mechanism closes all doors for seeking justice; forget about credible investigation or prosecution regarding the matter52. The government covers up cases of fundamental human rights violations through so-called inquiries by Executive Magistrates (administrative officers), delay, and intimidation of victims. The laws, not to mention implementation, are inadequate for preventing discriminations.
The people of Bangladesh have struggled for many years for a legislation that criminalizes torture. In October 2013 such a law53 was enacted. ‘Custodial death’ is a punishable crime under this law. In reality, however, the law is not being put into practice for registering cases of torture and custodial deaths. For the cases of disappearance, the government argues that ‘disappearance’ is not criminalized in penal law; thus, the crime does not take place and is not considerable as well54. Such a position contradicts the fundamental rights enshrined in the Constitution of Bangladesh55. The excuse of not having a legal provision on any particular issue, in fact, does not matter at all. The Constitution clearly prohibits ‘torture’, and a new legislation criminalizes ‘torture’ and ‘custodial death’. Yet, torture is endemic and custodial death flourishes unabated in Bangladesh. This is so for cases of illegal arrest and arbitrary detention too. Prohibition in the Constitution or in law does not prevent the law-enforcing agencies from committing these crimes. Illegal arrests and arbitrary detentions are the normal way of law-enforcement in Bangladesh.
Such a system is, in fact, incapable of guaranteeing the right to fair trial. Incompetence of judicial officers, prosecutors, and defence lawyers, and the absence of judicial mindset amongst legal professionals, is sufficient to deny the right to fair trial. Besides, politicization in all institutions including the police and judiciary contribute to worsen the situation. Also, delays force many persons not to pursue cases and to enter into compromises. The absence of witness protection puts many lives at risk if they pursue cases. Unprincipled practices of settlement, and granting of suspended sentences by presidential clemency56 to the ruling party cadres, also undermine the concept of fair trial.
In a functioning rule of law system, the people’s freedom of expression is guaranteed. In Bangladesh, the freedom of expression guarantee is the other way around: the middle- class population is apparently politically polarized in favour of, or against, two major political camps. The mainstream media professionals have, by and large, made themselves slaves to one political camp or the other. The freedom of propaganda against the critics of the government is guaranteed at the cost of the ordinary people’s aspiration. For example, a person who criticized the Prime Minister, Sheikh Hasina, and her family members, for enjoying undeserving advantages from the state, have been harassed by the government57. A university student58 was detained for expressing disgust about the disappearance of opposition leader Ilias Ali. A university teacher was convicted with 7 years imprisonment in June 2013 for updating a Facebook status59 that was ‘threatening the Prime Minister with death’. Another university teacher, who was studying abroad, was given six months imprisonment by a High Court Bench for ‘disregarding’ the Court’s summon’ regarding a facebook post expecting ‘death’ of Prime Minister60. The closure of the Daily Amardesh and the imprisonment and detention of its editor and journalists transmits the message that publishing corruption scandals involving the Prime Minister’s family will lead to repression. The use of the intelligence services against dissident voices – intimidating the critics by visiting their houses late in the night – has created tremendous fear in the country. Telephone conversations are taped, ‘legally’, in Bangladesh61. The same law allows authorities to use such taped information in Courts62.
There is restriction on the freedom of movement of member of the primary opposition parties, and other perceived opponents of the government. There are official and unofficial bans on persons and organizations. Members of the opposition have particularly been persecuted in attempts to render them incapable of effectively contesting elections against the government. A one party concept prevails. There are severe restrictions on NGOs that document and expose the misdeeds of the government; they are often portrayed as traitors through the pro-government media. The government blocks the fund disbursement of such organizations. The Anti- Corruption Commission and the NGO Affairs Bureau are used to harass NGOs63. Freedom of association for the civil society organizations, including NGOs, schoolteachers, and members of the opposition are denied; rallies face crackdowns by the police and security forces64.
What is more, the peoples’ right to elect a government has been severely restricted with the passing of a constitutional amendment. A fake election has been subsequently staged in order to renew dictatorial power65. There have been no measures taken to prevent absolute power66.
Those who occupy high profile portfolios in government, and public officials in general, do not exercise official powers reasonably, in good faith, in a normal situation, due to the lack of checks and balances. Abuse of power reigns supreme. In an abnormal condition, having created a government through a fake election, no Bangladeshi expects that ministers or public officers will perform honestly for the purpose of which the powers have been conferred. The people also do not believe that the ministers and public officers are exercising their powers reasonably and in good faith due to extreme form of politicization. Often, ministers and public officers exceed limits of their power, by, and for, taking political advantage.
The irony is that a State system in such a mess is expected to comply with international obligations. There is nothing wrong in being hopeful and expecting good. What is wrong is that such expectations exist without a basis in the realities of the people’s everyday life, and the reality that not even the vestige of rule of law exists in Bangladesh. What exists, thinly disguised under the façade, is an extremely repressive system, devoid of any potential of redress for the average citizen. A state that by default denies the basic human dignity of its citizens cannot be generous enough to comply with international obligations67.
1 The Padma Multipurpose Bridge Project for Bangladesh was designed to connect the isolated southwestern region with the rest of the country. The World Bank, which agreed to finance for the project, cancelled the same on January 31, 2013 due to corruption scandals.” Details can be accessed at: http://documents.worldbank.org/curated/en/2013/08/18127694/ bangladesh-padma-multipurpose-bridge-project
The World Bank’s full report can be accessed at: http://www-wds. worldbank.org/external/default/WDSContentServer/WDSP/IB
/2013/08/21/000442464_20130821100930/Rendered/PDF/ NCO27970ICR0Ba000PUBLIC00Box379808B.pdf .
2 Article 31 of the Constitution of BANGLADESH: Right to protection of law: “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” Accessible at: http://bdlaws.minlaw.gov.bd/sections_detail. php?id=367§ions_id=24579
3 Article 32 of the Constitution of BANGLADESH: Protection of right to life and personal liberty: “No person shall be deprived of life or personal liberty save in accordance with law.” Accessible at: http://bdlaws.minlaw.gov.bd/ sections_detail.php?id=367§ions_id=24580
4 Article 33 of the Constitution of Bangladesh enshrines safeguards regarding to arrest and detention. Accessible at: http://bdlaws.minlaw.gov.bd/ sections_detail.php?id=367§ions_id=24581
5 The original Bangla version of the Joutho Ovijan Daimukti Ain, 2003, (Joint Drive Indemnity Act, 2003) can be accessed at: http://bdlaws.minlaw.gov. bd/bangla_all_sections.php?id=897
6 Nick Cheesman, “Fighting lawlessness with lawlessness (or) the rise & rise of the Rapid Action Battalion” paragraph 4, “The 86-Day Tragedy a.k.a. Operation Clean Heart”. The article can be viewed at: http://www.article2. org/mainfile.php/0504/244/. It was part of article2, Vol. 5, No. 4, published Special Report titled “Lawless Law-enforcement and the Parody of Judiciary in Bangladesh”, 2006. A detailed report can be viewed at: http://www. article2.org/mainfile.php/0504/
7 The original Bangla version of the Jatir Pitar Poribar-Sadoshojoner Nirapatta Ain, 2009, (Father of the Nation’s Family Members Security Act) can be viewed at: http://bdlaws.minlaw.gov.bd/bangla_all_sections.php?id=1028
8 The Special Powers Act, 1974, enacted on 9 February of that year, without any discussion inside or outside Parliament. This Act empowers the government to arrest citizens for ‘prejudicial acts’ and put the arrestees in ‘preventive detention’, denying them the right to liberty. The Act is accessible at: http:// bdlaws.minlaw.gov.bd/pdf_part.php?id=462
9 The Fourth Amendment to the Bangladesh Constitution was passed on 25
January 1975, bringing radical changes in the governmental and political systems. Multiparty parliamentary democracy was replaced by a one party presidential dictatorship. The Amendment banned all political parties, keeping only the ruling party in the country. The Prime Minister Sheikh Muzibur Rahman declared himself President of the Republic. The tenure of the President and the Parliament was extended for five years from the date of the Amendment, despite Parliament having already been constituted for two years following the 1973 election. Altogether 19 Articles of the Constitution were amended, i.e. 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117,
119, 122, 123, 141A, 147, and 148. As a result: articles 44, 70, 102, 115 and 124 were replaced; Part III of the Constitution was repealed; the Third and Fourth Schedules were altered; Part VIA, a new part, was inserted; and the articles 73A and 116A were inserted. The Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. The appointments of the judges of the Supreme Court came under the control of the President, while the subordinate judiciary (Sessions and Magistracy) was already under the direct control of governmental ministries. All newspapers were banned and shut down save for four: the government snatched ownership of two private newspapers by an order and retained two previously government-owned newspapers. And, all public employees were automatically made members of the ruling party.
10 The Fifteenth Amendment of Bangladesh Constitution, enacted on 29
June 2011, made great changes to the Constitution by repealing the “non- party caretaker system’ for holding general elections. It made provisions of holding general election without dissolving the sitting Parliament. It inserted an Article declaring the country ‘secular’ while keeping Islam as the state religion.
11 Article 7A: “Offence of abrogation, suspension, etc of the Constitution: (1) If any person, by show of force or use of force or by any other un-constitutional means- (a) abrogates, repeals or suspends or attempts or conspires to abro- gate, repeal or suspend this Constitution or any of its article; or (b) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article, his such act shall be sedi- tion and such person shall be guilty of sedition. (2) If any person- (a) abets or instigates any act mentioned in clause (1); or (b) approves, condones, sup- ports or ratifies such act, his such act shall also be the same offence. (3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws. Accessible at: http://bdlaws.minlaw.gov.bd/sections_de- tail.php?id=367§ions_id=41503
12 Bangladesh Constitution’s Article 7B: “Basic provisions of the Constitution are not amendable: Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article
150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.” Accessible at: http://bdlaws. minlaw.gov.bd/sections_detail.php?id=367§ions_id=41504.
13 The original Bangla version of the Totho O Jogajog Projukti Ain, 2006 (Information and Communication Technology Act) http://bdlaws.minlaw. gov.bd/bangla_pdf_part.php?act_name=&vol=%26%232537%3B%26%2325
41%3B&id=950
14 The original Bangla version of the Sontrash Birodhi Ain, 2009, (Anti- Terrorism Act) can be accessed here: http://bdlaws.minlaw.gov.bd/bangla_ all_sections.php?id=1025.
15 The original Bangla version of Mobile Court Ain, 2009 (Mobile Court Act, 2009) accessible at: http://bdlaws.minlaw.gov.bd/bangla_all_sections. php?id=1025
16 A Parliamentary Committee was formed prior to the introduction of the Fifteenth Amendment Bill of the Constitution. The committee had few discussions with members of NGOs, media, Supreme Court lawyers, and some politicians. As per most everyone’s suggestion, the Committee recommended retaining the ‘non-party caretaker governmental system’ for holding general elections in the country. Prime Minister Sheikh Hasina alone wanted to repeal the ‘non-party caretaker system’ for perpetuating her power. Fifteenth Amendment Act, 2011, satisfied Sheikh Hasina, ignoring 90 percent of the people.
17 Article 2A: The state religion: ‘The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.’ See: http://bdlaws.minlaw. gov.bd/sections_detail.php?id=367§ions_id=24549
18 Article 12: Secularism and freedom of religion: ‘The principle of secularism shall be realised by the elimination of – (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or persecution of, persons practicing a particular religion. See: http://bdlaws. minlaw.gov.bd/sections_detail.php?id=367§ions_id=24560
19 The official version of the International Crimes Tribunal Act, 1973, can be
accessed here: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=435
20 Section 21 of the International Crimes Tribunal, “Right of Appeal: (1) A person convicted of any crime specified in Section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence. (2) The Government or the complainant or the informant, as the case may be, may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal or an order of sentence. (3) An appeal under sub-section (1) or (2) shall be preferred within 30 (thirty) days from the date of conviction and sentence, or acquittal or any sentence, and no appeal shall lie after the expiry of the aforesaid period. (4) The appeal shall be disposed of within 60 (sixty) days from the date of its filing. (5) At the time of filing the appeal, the appellant shall submit all documents as may be relied upon by him.”
21 The death penalty was executed on 12 December 2013.
22 The original Bangla version of the Druto Bichar Tribunal Ain, 2002 (Speedy Trial Tribunal Act) can be accessed at: http://bdlaws.minlaw.gov.bd/ bangla_all_sections.php?id=896
23 On 11 January 2007, the armed forces snatched power from the President, who was forced to impose a state of emergency. The army was in the driving seat, while civilian bureaucrats at the forefront acted as puppets of the army. This regime stayed in office until Sheikh Hasina took over power on 6 January
2009. The military-controlled regime promulgated dozens of ordinances to secure their control over institutions and the people in general.
24 Section 5 of the Mobile Court Act, 2009, accessed here: http://bdlaws. minlaw.gov.bd/bangla_sections_detail.php?id=1025§ions_id=39548
25 Schedule of the Mobile Court Act, 2009, details of which (in Bangla) are accessed here: http://bdlaws.minlaw.gov.bd/pdf/1025 schedule.pdf
26 Section 8 of the Mobile Court Act, 2009, available at: http://bdlaws.minlaw. gov.bd/bangla_sections_detail.php?id=1025§ions_id=39549
27 Asian Legal Resource Centre, Hong Kong, “Bangladesh, a tortured and corrupted nation”, paragraph with sub-title: Torture, the Third Degree Method, can be accessed at: http://www.article2.org/mainfile.php/0504/242/, published in Special Report “Lawless Law-enforcement and the Parody of Judiciary in Bangladesh”, article2, Vol. 5, No. 4, August 2006. Available at: http://www.article2.org/mainfile.php/0504/
28 Asian Human Rights Commission’s Statement on 9 August 2012: “BANGLADESH: People pay more to the police than the government”, accessible at:http://www.humanrights.asia/news/ahrc-news/AHRC- STM-160-2012
29 Asian Human Rights Commission, Urgent Appeal Case: AHRC-UAC-149-2008, ADDITIONAL COMMENT, Paragraph: 4. Details available at: http://www. humanrights.asia/news/urgent-appeals/AHRC-UAC-149-2008/
30 Asian Human Rights Commission’s Open Letter to UN High Commissioner for Human Rights, 26 June 2013: “BANGLADESH: Torture-friendly & Corrupt Policing Needs Urgent Reform”, accessible at: http://www.humanrights. asia/news/ahrc-news/AHRC-OLT-011-2013/
31 Chapter III: “Corruption at Investigation/Inquiry Stages”, Pg. 23. In Md.
Shariful Islam’s book, “Politics – Corruption Nexus in BANGLADESH: An empirical Study of the Impacts of the Judicial Governance”, published by Asian Legal Resource Centre, Hong Kong, 2010. Accessible at: http://www. humanrights.asia/resources/books/ALRC-PUB-001-2011/ALRC-PUB-001-
2010-BN-Politics-Corruption.pdf
32 Md. Ashrafuzzaman, The Disposable Prosecutors of BANGLADESH: http://
www.article2.org/mainfile.php/0701/309/, published in article2, Vol. 7. No.
1., in 2008: “Focus: prosecution in Asia”, accessible at: http://www.article2.
org/mainfile.php/0701/.
33 Asian Human Rights Commission’s Statement: “BANGLADESH: A lady parliamentarian obstructs investigation into a rape of a nine year old girl”, accessible at:http://www.humanrights.asia/news/ahrc-news/AHRC- STM-174-2010/
34 Asian Legal Resource Centre’s Statement titled “BANGLADESH: Incommensurable with the rule of law”, accessible at: http://www.alrc.net/ doc/mainfile.php/alrc_st2014/789
35 Asian Legal Resource Centre’s Statement titled ” BANGLADESH: Incommensurable with the rule of law”, accessible at: http://www.alrc.net/ doc/mainfile.php/alrc_st2014/789
36 Asian Human Rights Commission’s Statement: “BANGLADESH: Culture of supersession in Supreme Court will undermine rule of law”, published 26
May 2010, accessible at: http://www.humanrights.asia/news/ahrc-news/ AHRC-STM-147-2008/
37 The posting of Md. Jahangir Hossain (Badal) as the District and Sessions Judge of Dhaka in 2010 was decided by the government at a time when he lagged behind 200 judicial officers on the merit list of judges that could vie for the same position. Later, on 20 October 2011, he was elevated as Additional Judge of the High Court Division. On 7 October 2013, the government made him a permanent Judge of the High Court Division of the Supreme Court of Bangladesh. Mr. Jahangir is related to an ex President of Bangladesh, the late Md. Zillur Rahman.
38 Asian Human Rights Commission’s Urgent Appeal Update: “BANGLADESH: Magistrate violates law, while the government’s goons attempt to brand college student as a criminal after the Rapid Action Battalion took his leg away”. The full text can be accessed at:http://www.humanrights.asia/ news/urgent-appeals/AHRC-UAU-028-2012/
39 The Daily Amardesh editor Mahmudur Rahman, and journalist Oliullah Noman were imprisoned in a ‘contempt of court’ case initiated by the Supreme Court of Bangladesh. The Court imposed extralegal punishments to these two persons. Details can be found in Asian Human Rights Commission’s “The State of Human Rights in Eleven Asian Nations –
2010”, Pg. 47–50. Accessible at: http://www.humanrights.asia/resources/
hrreport/2010/1%20Bangladesh_2010.pdf
40 Asian Human Rights Commission’s Urgent Appeal Case: “BANGLADESH: Rights activists and inhabitants of Mayadip are under threat by illegal sand-miners in connivance with the police and civil administration”, available at:http://www.humanrights.asia/news/urgent-appeals/AHRC- UAC-033-2012/
41 Md. Shariful Islam “Politics – Corruption Nexus in BANGLADESH: An Empirical Study of the Impacts on Judicial Governance“, published by Asian Legal Resource Centre, 2010, Chapter VI: The Plights of the Judges, Pg. 97, and Chapter VII: The Plights of the Police, Pg. 107. Accessible at: http://www. humanrights.asia/resources/books/ALRC-PUB-001-2011/ALRC-PUB-001-
2010-BN-Politics-Corruption.pdf
42 Asian Human Rights Commission’s Statement: ” BANGLADESH: Chains of Corruption Strangle Nation”, available at: http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-085-2014
43 “AHRC case study: Accused in Bangladesh forced to pay bribe to the Special Public Prosecutor and Judge“, Pg. 50. In Asian Legal Resource Centre’s Report of the Fourth Consultation on an Asian Charter on the Rule of Law, 2008, “The Inability to Prosecute and Failure to Protect Human Rights in Asia“, accessible at: http://www.humanrights.asia/resources/books/AHRC-PUB-003-2009/ InabilityToProsecuteAndFailureToProtectHR.pdf
44 Asian Human Rights Commission’s Urgent Appeal: ” BANGLADESH: Police pressure the victim of an acid attack to withdraw her case and marry her attacker”, accessible at:http://www.humanrights.asia/news/urgent- appeals/AHRC-UAC-144-2009
45 The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982, Section 7: Display of charges and fees: Every registered medical practitioner carrying on private medical practice and every private clinic and private laboratory shall prominently display in the chamber, clinic or laboratory, as the case may be, a list of charges and fees that may be [demanded by him or it.]. The full text of the Ordinance is available at: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=620
46 The Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance, 1982, Section 14: “No Court shall take cognizance of an offence under this Ordinance except on a complaint in writing made by the Director- General or an officer authorised by him in this behalf.”
47 Motor Vehicles Ordinance, 1983, Section 159, accessible at: http://bdlaws. minlaw.gov.bd/sections_detail.php?id=654§ions_id=22552
48 The original Bangla version of Tottho O Jogajog Projukti Ain, 2006 (Information and Communication Technology Act, 2006) is available at: http://bdlaws. minlaw.gov.bd/bangla_all_sections.php?id=950
49 Dhaka Metropolitan Police Ordinance, 1976, accessible at: http://bdlaws. minlaw.gov.bd/print_sections_all.php?id=511
50 Asian Human Rights Commission’s Statement: ” BANGLADESH: Intervene immediately to save the life of detained journalist Mr. Mahmudur Rahman”, accessible at:http://www.humanrights.asia/news/ahrc-news/AHRC- STM-076-2013/
51 Asian Legal Resource Centre’s Report of the Fourth Consultation on an Asian Charter on the Rule of Law, 2008, “The Inability to Prosecute and Failure to Protect Human Rights in Asia“, page 24, paragraph 3 & Bangladesh Desk of Asian Legal Resource Centre, “Bangladesh, a corrupted & tortured nation“, article2, 2006, Vol. 5. No. 4, accessible at: http://www.article2.org/mainfile. php/0504/242/
52 Asian Human Rights Commission’s Asia Report 2013: “BANGLADESH: Lust for Power, Death of Dignity” accessible at: http://www.humanrights.asia/resources/hrreport/2013/AHRC-SPR-008-2013.pdf/
53 Torture and Custodial Death (Prohibition) Act, 2013, was drafted by Asian Human Rights Commission in 2009. After nearly five years’ continued campaign, the Bill was enacted on 24 October 2013. The full text can be accessed at: http://www.humanrights.asia/countries/bangladesh/laws/ legislation/Torture-CustodialDeath-ActNo50of2013-English.pdf/
54 Asian Legal Resource Centre and Odhikar‘s Joint Statement: “BANGLADESH: Government suppressed truth to the UPR Session”, accessible at: http:// www.humanrights.asia/news/alrc-news/ALRC-STM-002-2013
55 Constitution of Bangladesh, Article 32: Protection of right to life and personal liberty: “No person shall be deprived of life or personal liberty save in accordance with law.”
56 Asian Human Rights Commission’s Statement: “BANGLADESH: Clemency must not be a political game”, accessible at: http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-037-2012/
57 Mr. A. K. M. Waheduzzaman, a lecturer at the National University of Bangladesh, was arrested for his Facebook status in August 2013. He allegedly made sarcastic comments about the education of the son and daughter of Prime Minister Sheikh Hasina. The Prime Minister’s son is officially introduced as an Information Technology expert, while the daughter is introduced as an expert regarding persons with physical disability. Both of them do not have any educational or professional background to support the government’s description. In October 2013, a pro-government man filed a complaint with the Magistrate’s Court in Dhaka. An arrest warrant was issued against Waheduzzaman, who later surrendered before the Court following anticipatory bail from a High Court Bench. The Magistrate’s Court ordered that Waheduzzaman be detained in prison. He was detained for more than six weeks, i.e. until he could secure another bail from a High Court Bench.
58 Mr. Sohel Raj Mollah, also known as Sohel Rana, updated his facebook status as, “The Premier cannot digest Ilias Ali; and people will attack her for abducting the BNP leader. Vomit Ilias Ali.” As a result, he was detained in prison. The New Age, 4 June 2012, “Molla to face sedition charge over facebook post”, available at: http://newagebd.com/detail.php?date=2012-
06-04&nid=12619#.U3tCInbzcQo. Last accessed, 20 May 2014.
59 Mr. Hafizur Rahman, lecturer in the Mechanical Engineering Department of Bangladesh University of Engineering and Technology (BUET), updated his facebook status by typing, “Hey Hyena, you have destroyed the country, now you are trying to destroy our BUET… We the general students are the hunters. We will shoot in your head…and hang your head at the gate of BUET to avoid further aggression of hyenas.” A pro-ruling party man filed a General Dairy Entry with the Shahbagh police in Dhaka. Hafizur was charged under Section 57 of the Information and Communication Technology Act,
2006, and Section 506 of the Penal Code, 1860. A Sessions Court of Dhaka convicted him with 7 years imprisonment. The media published reports on his conviction. See The Daily Star, 27 June 2013. Report last accessed on
20 May 2014 at: http://archive.thedailystar.net/beta2/news/buet-teacher- gets-7yrs/.
60 Mr. Muhammd Ruhul Amin Khandaker, a teacher of the Institute of Information Technology of Jahangirnagar University, wrote a facebook post while studying in Australia. He wrote, “The death of the five including Tareque and Mishuk Munier is a result of issuing driving licences without test. Everyone dies, why not Hasina?” This post was published after the death of five persons in a road traffic accident in 2011; the deceased included a celebrity filmmaker and a journalist. A High Court Bench issued ‘suo motu’ Rule against Khandaker, asking him to appear before the Bench. Being in Australia for study leave, Khandaker did not appear before the Court, which imprisoned him for ‘disregarding the Court’s order’.
61 Section 97A of Telecommunications Regulatory Act, 2001 (Amended in 2006 & 2010)
62 Section 97B of Telecommunications Regulatory Act, 2001 (Amended in 2006
& 2010): accessible here: http://bdlaws.minlaw.gov.bd/bangla_pdf_part. php?act_name=&vol=%E0%A7%A9%E0%A7%A9&id=857
63 The NGO Affairs Bureau, a department under the Office of the Prime Minister of Bangladesh, cancelled Odhikar‘s projects on torture and blocked the disbursement of project funds granted by a Danish organization and the European Union. The NGO Affairs Bureau and the Anti-Corruption Commission have been harassing Odhikar in the name of investigating financial embezzlement, secretly filing a case of money laundering against Odhikar.
64 On International Women’s Day, 8 March 2014, the government did not allow women rights organizations to hold a street rally in Dhaka. Schoolteachers were brutally beaten by the police, who used pepper spray and water cannons. One schoolteacher, amongst numerous injured, died. The New Age published a related report on 17 May 2012, accessible at: http://www. newagebd.com/detail.php?date=2012-05-17&nid=10569#.U3wrynbzcQo.
65 Asian Human Rights Commission’s Statement: ” BANGLADESH: Fake election will cause further bloodshed”, accessible at: http://www.humanrights.asia/ news/ahrc-news/AHRC-STM-004-2014.
66 Asian Human Rights Commission’s Statement: “BANGLADESH: Authoritarian obstinacy wins, democracy loses”, available at: http://www.humanrights. asia/news/ahrc-news/AHRC-STM-008-2014
67 The Bangladesh Government has not submitted its national reports to the Special Procedures and Committees of the UN Human Rights Council or the formerly Commission of Human Rights. They only took opportunity to lie before the international community while the Universal Periodic Review process was ritualized at the UN in 2009 and 2013.
