Saira Rahman Khan1
Introduction
There is no denying that Bangladeshi politics is rife with conflict, violent confrontations, and vitriolic verbal battles. This has become only too evident in the last five years, with the media relaying not only to the people of Bangladesh, but to the whole world, pictures and events showing a political culture gone mutant2.
There is no doubt that the brunt of all this violence is borne by the long suffering people of Bangladesh, who have never ever been totally satisfied with the leadership they vote for and who have never had a say in the laws and policies created for ‘the country’s benefit’.
Freedom of speech has been gagged; newspapers and television channels have been shut down; human rights defenders have been hounded and persecuted; and law enforcement has continued to act in ever-increasing levels of impunity. Non government organisations, and print and electronic media that are still up and running, are either loyal to the government or have,for their own survival, becomevery ‘selective’ in their activities.
In this paper, I will attempt to show how political parties in Bangladesh havesystematically gnawed away the barriers that protect the human rights ofthe people of Bangladesh, eroding the very notion of the rule of law and judicial independence,and gagging freedom of speech.
Background
In order to proceed, we need to go back in time, back to 1970, for a brief history lesson.
In December 1970, national and provincial elections were held in Pakistanunder Yahya Khan. In East Pakistan, the Awami League won a majority of the seats, a result that greatly displeased Yahya Khan. TheNational Assembly was set to be convened on
3 March 1971; but, shortly before that, Yahya Khan postponed
the session indefinitely.
The Awami League reacted strongly to this decision. To counter this reaction, beginning 25 March 1971 the Pakistan Army unleashed terror in East Pakistan.
On 10 April, theProclamation of Independence was penned at
Mujibnagar, containing the phrase:
‘Whereas the people of Bangladesh by the heroism, bravery and revolutionary fervor have established effective control over the territories of Bangladesh, we the elected representatives of the people of Bangladesh, as honour bound by the mandate given to us by the people of Bangladesh whose will is supreme, duly constituted ourselves into a Constituent Assembly and, having held mutual consultation and in order to ensure for the people of Bangladesh equality, human dignity and social justice, declare and constitute Bangladesh to be sovereign Peoples’ Republic’.3
Thus, the basis on which the independence of Bangladesh was proclaimed was, in part, to provide the people of Bangladesh with basic human rights of equality, human dignity, and social justice – which they failed to receive as citizens of East Pakistan.
Bangladesh was liberated on 16 December 1971. The Constituent Assembly that was to be formed with the people’s involvement was actually declared through theConstituent Assembly Order 1972 on March 22, 1972. It consisted of elected representatives, elected in the National Assembly and the Provincial elections held in erstwhile Pakistan, in December 1970 and January 1971, respectively.
Thus, the Constituent Assembly was not a newly elected body; the citizens of a new country called Bangladesh did not elect it. This Assembly rapidly drafted the country’s Constitution, which was ready by November 1972. There was no involvement of the people in this exercise either and the Constitution did not reflect the will of the people who fought for liberation. This was the first blow to the principles of equality, human dignity, and social justice mentioned in the Proclamation of Independence. It sparked protests.
Those who protested against this fact and fought to establish the rights of the people were brutally repressed, tortured, and even disappeared. This occurred between 1972 and 1975, a period when the Constitution was undergoing stringent Amendments.
The second Amendment to the Constitution was introduced in September 1973, soon after the first Amendment in July 1973. It allowed for the declaration of a state of emergency, which also empowered the President to suspend all fundamental rights in such a state.
Shortly thereafter, a State of Emergency was declared in December 1974 on the advice of the Prime Minister, Sheikh Mujibur Rahman, and fundamental rights were suspended. During this period, in order to further quell opposition, the Special Powers Act of 1974 was promulgated. This is the first of the repressive laws passed in independent Bangladesh. It allowsmany crimes, from adulteration of food to smuggling, to be punished with the death sentence.
It has been used by successive governments to silence the voice of opposition, and has ushered in innumerable cases of illegal detention. Political parties, in election speeches, promise to repeal the Special Powers Act, 1974; but they have all used it, for their own gains.
In February 1972, a ‘national militia force’, the Jatiya Rakhkhi Bahini was formed, to quell and control all opposition.This force has beenaccused of disappearances, deaths in ‘crossfire’, torture, and other cruel and degrading treatment. According to Anthony Mascarenhas, the Rakhkhi Bahini was ‘an elite paramilitary force whose members had to take oaths of loyalty to Sheikh Mujibur. Despite its high-sounding name, it was a sort of private army of bullies not far removed from the Nazi Brown Shirts’.4 The Bahiniwas later absorbed into the Bangladesh Army through the Jatiya Rakhkhi Bahini Absorption Act, 1975. And, its legacy continues.
In 2004, the government of Khaleda Zia created a similar force, called the Rapid Action Battalion, to assist the police force
in combating crime. RAB, as it is commonly called, is made up of members of the police and the Joint Forces; and has become notorious for its acts of torture, corruption, and other crimes5.
Possibly the cruelest blow, during that period in time, to the provisions of ‘human dignity and social justice’ was the Fourth Amendment to the Constitution,introduced, in January 1975, by a government facing strong protests and demonstrations by radical left parties and by chaos in the wake of ahorrific famine. Under this Amendment, several repressive changes were made: the presidential form of government was introduced in place of the parliamentary system; a multi-party system was replaced by a single party – the Bangladesh Krishok Sromik Awami League (BAKSAL); the powers of the National Assembly were curtailed; and the Judiciary lost much of its independence, as the amendment allowed the Executive to control the lower judiciary6
The Fourth Amendment also ‘forced elected members of the first parliament to join the only national party within a time specified by the President, to save their memberships. One could not even contest in the presidential or parliamentary elections if he or she was not nominated by the national party… the Fourth Amendment also issued an order to dissolve all political parties in the country and take necessary steps to form the national party.’7
Furthermore, another blow was dealt to freedom of speech, when all newspapers, save four, were banned.
In 1975, there were coups and counter coups. In the first coup, on 15th August 1975, the President Sheikh Mujibur Rahmanand most of his family were assassinated. After the assassination of Sheikh Mujibur Rahman, Khandakar Mushtaq Ahmed, a former minister, placed Bangladesh under martial law8. The Constitution remained in force, but was made subject to martial law regulations and proclamations.
It must be noted here that constitutional changes and amendments have usually been made to favour the government or regime in power.‘Changes made to the Constitution in around four years after the 15 August 1975 changeover altered the fundamental principles of state policy, destroyed the secular character of the Constitution and allowed politics based on religion and replaced Bangalee nationalism with Bangladeshi nationalism. Article 8 of the original Constitution, which speaks of the four fundamental principles of state policy – nationalism, socialism, democracy and secularism – was amended with the omission of secularism and insertion of the words “absolute trust and faith in Almighty Allah”. The amendments omitted Article 12 which contained secularism and freedom of religion.’ 9 The Constitutional bar on war criminals convicted under the Bangladesh Collaborators (Special Tribunal) Order 1972, from contesting in elections and becoming voters was also lifted.
On 29 November 1976, Major General Ziaur Rahman, a decorated freedom fighter and confidante of Sheikh Mujibur Rahman, was handed the responsibilities of Chief Martial Law Administrator. And, on 7 April 1977, he became President of Bangladesh. This handing over of the responsibility of an entire country, based on martial law regulations, and in total disregard to constitutional provisions – deprived the people of Bangladesh the right to elect the leader of their choice, a right that they had yet to exercise.
Finally, in 1979, general elections were held in Bangladesh, and the Bangladesh Nationalist Party (BNP), founded by Ziaur Rahman, entered the second Parliament with over a two-third majority. This government passed the Fifth Amendment to the Constitution – which ratified all actions made and decisions taken under Martial Law Proclamations and Orders up to April 1979.
Subsequently, on 30 May 1981, Ziaur Rahman was assassinated in another coup. In 1982, a military dictatorship began its rule of Bangladesh, led by General Hussain Mohammad Ershad. As Chief Martial Law Administrator, he vested all executive powers in himself, and assumed the office of President in December 1983; ousting the President he had himself selected in March 1982. Ershad suspended the Constitution and dissolved Parliament prior to crowning himself. In was not until December 1990 that his reign of terror and repression was brought down by a people’s movement.
In 1991, under an interim government, elections were held. The BNP formed a majority in Parliament, led by Begum Khaleda Zia, Ziaur Rahman’s widow. In 1996, on the demand of Opposition parties, namely the Awami League,the Jatiya Party and the Jamaat-e-Islami, the Constitution was amended for the 13th time to introduce a caretaker government system.
This caretaker government, manned by Advisers and headed by a Chief Adviser, was set up toorganise the forthcoming national elections within a 90 day period. The concept behind the caretaker government was that that it would be able to ensure free, fair, and neutral elections.
There have been several elections since, under the caretaker government system. The Awami League won the next round of elections; and the people were led to believe that democracy had been established because martial law and dictatorships had ended, and their right to vote had been affirmed.
As is evident from this history, the rights of Bangladeshi citizens have been overshadowed by the immediate needs of political parties and vested interest groups that have constantly moulded the Constitution like a piece of putty. The Bangladesh Constitution contains a powerful chapter on fundamental rights – patterned on the Universal Declaration of Human Rights. But, this has been all but forgotten. The rights of the people of Bangladesh have been limited to voting every five years and suffering especially violent confrontational politics at the end of each tenure. The people of Bangladesh have learnt the bitter way that if human rights are not the constitutive foundation of the state, electing a government ends up being an exercise in suffering the brutalities and atrocities of the regime.
Present times, present issues
Rapid Action Battalion
The BNP regime that ruled from 2001 to 2006 was notorious for ‘Operation Clean Heart’ and for giving birth to the Rapid Action Battalion (RAB) in 2004by amending the Armed Police Battalion Ordinance, 1979. Operation Clean Heart commenced on 17
October 2002, as a drive to combat escalating crimes such as murder, crimes against women, such as rape and acid violence, and to combat deteriorating law and order. It became notorious; the press began calling it ‘operation heart attack’, ascitizens in custody were constantly dying of – what the law enforcement claimed were – heart attacks10. A statement by the Amnesty International highlights the extent of the violations: ‘Over 2000 people have been arrested and at least five people have died in custody since the government called in the army to ‘assist’ in
‘Operation Clean Heart’. More than a dozen detainees have been sent to hospital with severe injuries reportedly caused by beatings while in army custody. They include both members of the ruling Bangladesh Nationalist Party and the opposition Awami League’11.
After Operation Clean Heart, the government justified the creation of the Rapid Action Battalion by again pointing out the increasing number of crimes and ‘acts of terrorism’ occurring in Bangladesh that the police were, apparently, not able to combat alone. According to the laws governing RAB, the Armed Police Battalion (Amendment) Act, 2003, its functions include: internal security duties; intelligence in respect of crime and criminal activities; recovery of unauthorised arms, ammunition, explosives and such other articles as the government may, from time to time, direct; investigation of any offence on the direction of the government; apprehension of armed gangs of criminals; and assistance to other law enforcing agencies, including the police, for maintaining law and order.
However, since its creation, the RAB has gained notoriety for corruption and extortion and for committing human rights violations such as extrajudicial killings, disappearances, and killings in so-called crossfire. Like the Jatiya Rakhkhi Bahini that preceded it, the RAB has been used to combat opposition and dissent.
In the early 1970’s, the Committee on Civil Liberties and Legal Aid was formed to counter the excesses and human rights violations perpetrated by the Jatiya Rakhkhi Bahini, and to end the impunity enjoyed by them. Unfortunately, through the creation of RAB, another wave of violations has been introduced. As Mr. C.A. Abrar has noted:
‘The first Awami League government created this bahini. Since then Bangladesh’s human rights landscape has continued to be stained by the practice of torture and liquidation of political opponents through extrajudicial killings and disappearances under successive governments — civil, military and quasi-military. Impunity has thus become well-entrenched and is reflected in the total disregard of the rule of law. It is also manifested in the framing of repressive laws such as the Joint Drive Indemnity Act that provided impunity for human rights violations committed in the course of Operation Clean Heart instituted by the Bangladesh Nationalist Party government. The issue of making the law enforcement agencies accountable has figured high on the agenda of the rights activists for more than four decades.’12
Due to political violence between the Awami League and the Bangladesh Nationalist Party over the selection of a caretaker government and its Chief Adviser; at the end of the 2001–2006 tenure of the BNP-led regime, Bangladesh found itself in a State of Emergency. This Emergency was declared by a military-backed regime, and lasted from 11 January 2007 to 16 December 2008.
The transition to an elected government in January
2009,through the 29 December2008 elections, was positive;it signaled the end of the State of Emergency. The least the people expected from the elected government was a strengthening of the regained liberal sphere of politics from the clutches of a military backed system. However, the Awami League-led elected regime that came to power through the 29 December 2008 elections, was no different from its predecessors. It amputated people’s rights by enacting repressive laws, such as the Anti Terrorism Act
2009 and by drastically amending the Constitution; and set an unprecedented record of political repression, extrajudicial killings, and enforced disappearances. It did not do away with the Rapid Action Battalion, using the rabid agency to its advantage as well. Freedom of expression and the right to assemble peacefully were
– and still are – denied, creatingconditions for violent protest that were silenced by the use of brute force. Partisan violence between and within major political parties has not ceased13.
In order to continue its regime beyond its five-year tenure, this government, like its predecessors, with no referendum14, or public opinion, passed the 15th Amendment to the Constitution, possibly the most controversial and frustrating amendment yet. The Amendment reinstatedthe four fundamental principles of state policy (nationalism, socialism, democracy, and secularism) and recognizedthe need for protection of environment, biodiversity and cultural identity of ethnic minorities. However, its negatives far outweigh its positives in terms of human rights.
The 15th Amendmenthas retained a number of provisions of the martial law regimes with regard to tenure, mode of removal, and post-retirement opportunities of judges of the superior court. It has repealed the provisions for a caretaker government, thus barring all possibilities for ensuring free, fair, and transparent elections – the only actual manifestation of ‘participatory democracy’ practiced in Bangladesh. The introduction of a new Article, 7A, has declared abrogation, repeal, or suspension of the Constitution by any unconstitutional means an offence of sedition. This may be good for protecting the Constitution and preventing undemocratic transitions of power, but, according to Law professor and journalist, Dr. Asif Nazrul, it ‘also makes illegal the power and authority of future Parliaments in amending nearly one third of the Articles of the Constitution by providing that the preamble, fundamental principles, fundamental rights and the provisions relating to the basic structures of the Constitution shall not be amendable by way of insertion, modification, substitution, repeal or by any other means’.15 A contradiction in relation to
‘secularism’ and religion has also been introduced as a result. The amendment has replaced ‘Absolute Trust and Faith in Almighty Allah’ with ‘Secularism’ and revived Article 12 of the 1972
Constitution, which prohibits ‘granting by the State of political status in favour of any religion’. However, Article 2A provides a special status to Islam by declaring it as a State religion.
On 5th January, violent and controversial elections, riddled with accusations of rigging, were held in the wake of the 15th Amendment to the Constitution, in the absence of a caretaker government and with the main opposition and its alliance staging a boycott16. The Awami League was declared a winner in several constituencies where there was no opposition.As a result of this boycott, 153 candidates from the ruling Awami League and its alliance were elected uncontested out of the 300 parliamentary seats/constituencies, even before the elections were held – unprecedented in a democratic electoral system17. In this fashion, citizens were denied their right to vote.
‘According to the Election Commission, the voter turnout was
40.56 percent. However,various media and election observers reported much lower turnout. The Fair Elections Monitoring Alliance (FEMA) reported the voter turnout as 10 percent until 2 p.m. on Election Day, and after the polling ended, it stated that the voter turnout was 14 percent. The daily New Age reported that in most of the polling centres, the turnout was in the range of
10-12 percent, while the Daily Star reported a generous estimate of a 20 percent turnout.’18
Even after the January elections, there were incidents of gross violations of human rights perpetrated by both the supporters of the newly elected Government and that of the opposition. Such violations included deaths, acts of vandalism, repression against religious minority groups, and arson, perpetrated in retaliation for voters either going to the polling booths or for refraining from voting.19
Rule of Law
For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”20
Does Bangladesh maintain the rule of law? Are all ‘persons’,
‘entities’ and the ‘State’ accountable to laws? Are the laws equally enforced and independently adjudicated? On paper, yes. In practice, justice and rule of law are items reserved for mainly the rich and influential, having the power and/or wealth to manipulate the justice system. For the poor, just going to the police station to file a First Information Report is a fearful thought. The law enforcement is feared and is not seen in positive light. Their reputation for torture, corruption, and intimidation precedes them. Perhaps not all police fall into the ‘bad-cop’ category; but increasing reports of torture, ill-treatment, rape and extrajudicial deaths perpetrated by police and the fact that they are silent bystanders when opposing political activists clash, is not good for gaining the trust of the community. Lack of trust in the police has also given space to the practice of public lynching, where people take the law into their own hands.
Political parties are known to shield their activists who have perpetrated gross offences. A large number of the perpetrators belong to the youth and student wings of political parties. According to journalist Zahir Hassan Nabil,
‘Student politics, under the two major political parties, has gradually become synonymous with thuggery in the last 20 years. Most of the criminal activities on the campus, proven and alleged, have been invariably attributed to the Bangladesh Chhatra League (BCL) and Jatiyatabadi Chhatra Dal (JCD) with Jamaat- Shibir activists covering the rest. Killing; mutilation; rape; wielding weaponry; vandalism and mugging; establishing armed supremacy at public universities; invasion of dormitories; inter and intraparty feuds over tenders; government contracts and other means of making money – extortion, illegal trades including drugs; making a fortune and ending up in a lavish future – have all become parts of the development’21.
When the political party in power looks the other way as its activists perpetrate crimes, when the government machineryis told to ignore or not interfere, the issue becomes not only a criminal one, but also a human rights violation. Much of the violence takes place on the campuses of public universities and some colleges, and on the streets in times of uprisings and political protests. The general student body and population are often caught in the midst of the conflict.
There have been reports involving acts of violence against women, where the rape victims have not been able to seek justice, with theirattackersbeing sheltered by local political bigwigs. This happens particularly when the perpetrator is a party activist. The victim familiesare either too scared or threatened into taking no action. A glaring example of this occurred in 1998 when a series of rapes and incidents of sexual harassment took place at Jahangirnagar University, in Savar, just outside Dhaka. The perpetrators were a group of students with political backing. The administration showed reluctance in taking action against the known rapists. On August 17, the Daily Manabzamin reported that student activists of the Bangladesh Chhatra League22 had raped three female students of the University. Students of Jahangirnagar University demonstrated against rape and sexual harassment. A fact-finding committee later reported that a total of 20 JU students were raped in different locations on campus and members of this group sexually assaulted as many as 300. The Jahangirnagar University General Students Unity waged a continuous struggle against the rapists for months, while the then Vice Chancellor of the University claimed he could do nothing, as “under the law of the land, the victim has to lodge a complaint herself.”23
In April 2013, an eight-story building called ‘Rana Plaza’ collapsed, killing over one thousand people – most of whom were workers in the garment manufacturing factories housed there. Hundreds were retrieved alive from the rubble, maimed for life. It was later found that the building was constructed in disregard to planning laws. The owner, Sohel Rana, was known to be an active member of the ruling political party and was helped out of the collapsed building, unhurt, by the local (Awami League) Member of Parliament, who also helped him flee. He was later arrested while trying to cross the Benapole Border into India24. Even after one year, workers and victim families are yet to be properly or adequately compensated25 .
The Bangladesh police is one of the most corrupt institutions in Bangladesh.26Investigations and punishment against misconduct by a member of the police force are often biased. There is alsoa prevailing culture of impunity in the police and law enforcement agencies in Bangladesh. It is common knowledge that police will not accept information reports of offences where the perpetrator is a supporter of the ruling political party, i.e. unless the officer has been told to do so ‘from higher up’. All governments in Bangladesh have used the police force to maintain control of the political sphere.Police are used as a political tool, compelled to carry out illegal commands, harassing members of the opposition, political activists, journalists, and human rights defenders.
And what about the Judiciary? The Constitution of Bangladesh says, “The state shall ensure the separation of the Judiciary from the Executive organ of the state.”27 The Supreme Court, in a judgment delivered on 2 December 1999, detailed 12 directives on the Government on how the lower judiciary should be separated from the executive, from day-to-day working to financial matters, and ordered placing the lower judiciary under the supervision of the Supreme Court. The governments of the Awami League and the Bangladesh Nationalist Party-led alliances dragged their feet on implementation, repeatedly seeking extensions on deadlines. Finally, the military-backed caretaker government implemented the directives on 1 November 2007, amending the Code of Criminal Procedure and four sets of Rules on the service and salaries and financial benefits of the lower court judges.
Unfortunately, the Supreme Court does not have full control over the posting, transfer, and promotion of lower court judges and the Judiciary does not have a separate secretariat, although the Judiciary was supposed to have been legally separated from the executive branch of the state. The Law Ministry still carries out the posting, transfer, and promotion of judges in subordinate courts, albeit in consultation with the Supreme Court. Moreover, the Prime Minister’s Office has not yet responded to a letter issued by the Supreme Court in November 2012 for the inauguration of a separate secretariat for the judiciary. Yet, the Law Minister apparently sought to blame it on the higher judiciary, saying ‘the initiative is supposed to be taken by the Supreme Court.’28
Moreover, the lack of resources, the low salaries of judges and the poor working conditions are weakening the administration of justice in Bangladesh and remain the main reasons for corruption in the lower Judiciary. Transparency International, in its 2012 report, stated that these conditions “contribute towards eroding the moral and ethical standards of members of the Judiciary and create incentives for corruption.”29 In Transparency International’s Global Corruption Barometer 2012, released on July 9, 2013, the Bangladesh judiciary was found to beone of the most corrupt sectors in public administration.30 The practice of handing out bribes is widespread, and along with links with the Executive, stand for the main obstacles for free and independent administration of justice by the lower judiciary. In this context, citizens of Bangladesh are losing faith in the judicial system.
The higher judiciary is also suffering from indirect government supervision, in particular through the biased appointment of judges and state attorneys. While the politicisation of these appointments has been pointed out for several years, no government has enacted a law detailing the procedure, qualifications, and way of appointment of judges of the higher judiciary.
In the matter of Raghib Rauf Chowdhury vs. Bangladesh
and Others (Writ Petition 4403 of 2010), the Honourable Justice Md. Imman Ali issued a Rule Nisi, calling upon the government (respondents) as to ‘why guidelines should not be framed in respect of the process of the selection of persons for being appointed as Judges of the Supreme Court of Bangladesh and to publish the same in Bangladesh Gazette Extraordinary in order to bring transparency and competitiveness in such a process under the Constitutionby causing a wider pool of applicants to be considered through public notifications inviting application as mandated by the settled principles of Separation and Independence of Judiciary being the basis [sic] structure of the Constitution…’ 31
Successive governments/political parties in power have, since the independence of Bangladesh, manipulated the law enforcement and judicial mechanisms to serve their own purpose. They have created bad laws to control opposition and silence dissenters. The trend continues, and the general population has very little effective recourse to justice mechanisms. One must not forget that a very large percentage of the population in Bangladesh live in rural areas, where justice delivery, law and order, and development initiatives by the government are mostly still dreams.
How this affects human rights
In the opinion of human rights activists of the organisation, Odhikar:
‘The political culture of the mainstream political parties is relentlessly violent. Civil society could play a better role, but it lacks unity due to partisan sentiments. Surprisingly there was ambivalence with regard to human rights. To some, human rights are privileges only for those who are acceptable to them ideologically and politically. To them, protecting victims is also conditional to ideological acceptance and not free from personal bias. Failure of the human rights organisations to speak unitedly [sic] has further jeopardised the fate of victims. Unity could at least stall the appalling increase of vulnerability of victims by translating the human rights’ needs into a social network of protection’ 32.
As can be seen from the above discussions, the people of Bangladesh have fought for their right to live in an independent, sovereign country, but have not been able to enjoy ‘equality, human dignity and social justice’, the Proclamation of Independence promised to them. In fact, successive regimes in Bangladesh, over the last 43 years, have only thought of their own survival and their own ‘right to rule’ and concocted ways and means to do so by coups, takeovers, constitutional amendments and the creation of repressive laws. Even when people are allowed the right to vote, it is given with strings attached – the latest ‘string’ being contained in the 15th Amendment to the Constitution. The singular focus on an electoral process as the only means to march towards democracy has miserably failed in Bangladesh. The violence and abuse of human rights in the near past,which culminated in acontroversial election on 5th January 2014, with hardly any participation of voters, is a clear indicator of this failure.
In order to maintain the upper hand, the present government did away with the caretaker government system through the 15th Amendment to the Constitution and, by paving its way for another five years, declared that elections would be held under the present Constitution. The Election Commission was extremely cooperative and unilaterally declared the election schedule in November
2013, without the government and the opposition coming to a political solution and amidstwidespread political violence and human rights violations. The right to life, livelihood, health, and education were hampered. Normal citizens were caught up in the wave of violence and conflict as the two opposing political parties and their alliances waged war on the streets.
Even before the January 2014 elections, the government was walking down the path of repression. Opposition-owned and supported newspapers were gagged; freedom of speech was curtailed. Private television channels owned or supported by pro-opposition entities were also shut down between 2009 and
2013. Needless to say, new television channels have been given permission to air; they are owned by supporters of the party in power and are carefully crafted to glorify the present regime and denounce detractors and dissenters. Cases are launched against dissenters, mainly under the Information and Communication Technology (ICT) Act, 2006, (amended in 2009 and 2013), for criticising the Prime Minister or her family members in print and electronic form. Interestingly, when the leader of the opposition is criticised, the government and its law enforcement agencies remain silent. This shows that defamation laws and the provisions of the ICT Act are being used selectively.The ICT Act has become the primary repressive instrument in the hands of the government, to silence opponents and dissenters. First amended in 2009, the law was originally introduced in 2006 during the BNP led four-party alliance government. On 19 August 2013, the Cabinet approved a draft to the amendment of the ICT Act, strengthening its repressive purpose by amending sections 54, 56, 57 and 61, increasing the length of punishment and taking into cognizance new offences.This law is contrary to the freedom of speech and expression enshrined in the Constitution of Bangladesh.
Due to the fight to maintain power, blame-games have become common among political parties. Bangladesh, in the last several years, has metamorphosed into a society polarised along ‘secularists’ vs. ‘religious’ and ‘pro government’ vs. ‘anti government’ divides. This has become evident in the last five years, aggravate by government propaganda. Another method employed to cling to power is to shut down all opposition and maintain an atmosphere of fear. In the last 5 years, the numbers of extrajudicial killings, reports of torture, enforced disappearances, and abductions have reached levels of grave concern. The police and RAB reportedly perpetrated these acts. From 18 reported victims in 2012, the rate of extrajudicial killings by the police jumped to 175 victims in 2013. There were no incidents of BGB33 being involved in extrajudicial killings jointly with police from 2009 to 2012, but in 2013 the BGB and the police banded together to kill 32 people extrajudicially. BGB alone killed 11 people in
2013, compared to 8 during the 2009–2012 period. Similarly, between 2009 and 2012, there were no incidents of killings by joint operations involving the police, Armed Police Battalion, RAB, and BGB. However, in 2013, such joint operations killed 64 people34.
Next to the rule of terror, another tactic used by the government to suppress dissenting voices and repress opposition is the use and abuse of the judicial process. Judicial magistrates maintain the practice of sending detainees to remand, whenever police seek remand. This generally implies torture of the accused, often brutal torture. The purpose is mainly to terrorise the subject. Detainees are forced to admit a crime that they may or may not have committed; this releases the police from carrying out thorough investigation. Remand is also needed for extracting information to deliver to the media, something that adds to the propaganda strategy of the regime.The common practice is to manipulate the judiciary is by appointing judges based on political considerations.
It is not only human rights that are at risk from political parties warring for power and control. Human rights defenders are not spared either. There have been several instances where defenders, including journalists and NGO workers, have been harassed and physically assaulted.
Mahmudur Rahman, the Acting Editor of the Bangla newspaper, Amar Desh, has been languishing in jail for over a year. He was arrested in April 2013 and physically and mentally tortured for writing against the government and judiciary. His newspaper has been shut down. Local journalists have also faced assault and threats for reporting criminal activities in their areas. On January 5, 2013, Chhatra League activists beat and illegally detained Reuter’s reporter Andrew Biraz; New Age reporter Sony Ramani; Bangla News photojournalist Harun-ar-Rashid Rubel; and Prothom Alo correspondent Hassan Raja, when they were taking photos of crude bomb blasts at the Dhaka University campus. Chhatra League activists held the journalists captive after beating them and deleted the photographs after snatching away their cameras.35
However, the most glaring example is the abduction of Supreme Court lawyer and Secretary of the human rights organisation, Odhikar, Adilur Rahman Khan. Adilur Rahman Khan was picked up late in the evening of 10 August 2013 from in front of his residence. He was returning home with his family after visiting relatives. Men who showed no arrest warrant or any form of identification took him away. His family was unable to confirm where he had been taken. His family and Odhikar staff searched for him in police stations and the headquarters of the Detective Branch of police; they were met with denials, despite television channels reporting that he had been arrested and taken to the Detective Branch Office.
He was produced before the Magistrate’s Court the next afternoon, from the Detective Branch Headquarters (much to the relief of his family), and charged for crimes committed under the ICT Act for fabricating information and pictures concerning violence at a Hefazate Islam gathering in Shapla Chottor, Dhaka, in May 2013.36 The government initially denied any deaths, violence and atrocities committed against the Hefazate Islam assembly.37 Odhikar verified 61 deaths during the time period and demanded the government set up and Inquiry Committee. The arrest and framing of charges against Odhikar is simply a repressive measure to stop any further investigation into claims of deaths and injuries during the incidents of May 5 and 6, 2013.
On September 4, 2013 Odhikar’s Secretary Adilur Rahman Khan and its Director ASM Nasiruddin Elan were formally charged under section 57 of the ICT Act. They were both granted interim bail by the High Court Division of the Supreme Court of Bangladesh in October and December 2013 respectively. Human rights defenders at the grass roots level associated with Odhikar have also been threatened and intimidated by law enforcement agencies.
The trial of Adilur Rahman Khan and the persecution of Odhikar have sent a warning signal to all human rights organisations working in Bangladesh.
Conclusion
Unless political parties can steer away from their blinkered view of elections as merely a means to stay in power and misuse and manhandle the rights given to them by virtue of their victory there is no way human rights conditions in Bangladesh will take on a rosy hue. The people are deprived of their constitutional rights, their right to fair trial and justice, and other civil, political, social, and economic rights, through political manipulation and corruption. Merely giving the people the right to vote is not a sign of a democracy. Democracy is a form of state and not merely the electoral practice to select a ruler every five years. So, in a community where people are yet to constitute themselves as a democracy, with effective and strong institutions to defend their dignity and rights, human rights violations will continue unchecked.
Finding an effective method or process to elect a government in a free, fair, and transparent manner is of course important, but if the state itself is constructed by a Constitution that has littleto do with a democratic polity, and run by political parties who have no regard for the human rights of the general population, electoral rituals end up a reproduction of powers inimical to citizens and human rights.
1 The writer teaches Law at a private university in Bangladesh.
2 See http://www.hrw.org/node/117675/section/5 for a small example of this.
3 The Proclamation of Independence, 10 April 1971 (www.banglapedia.org/ HT/P_0309.htm).
4 Mascarenhas, Anthony. ‘Legacy of Blood’. Hodder and Stoughton (1986), page
37.
5 For case studies and data on human rights violation perpetrated by RAB, visit www.odhikar.org.
6 The Fourth Amendment amended ConstitutionArticles 11, 66, 67, 72, 74, 76,
80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148. It substituted Articles 44, 70, 102, 115, and 124 of the Constitution; it amended part III of the Constitution; it altered the Third and Fourth Schedule; it extended the term of the first Jatiya Sangsad. The Fourth Amendment created special provisions relating to the office of the president and its incumbent; it inserted a new part, i.e. part VIA in theConstitution. And, it inserted articles 73A and
116A in the Constitution.
7 Liton. Shakhawat, Of Chaos, Confusion and our Constitution. Forum, Vol.3, Issue 11, November 2010. Published by The Daily Star.
8 The Indemnity Ordinance, 1975, was promulgated by Khondkar Mostaq Ahmed, to provide immunity from legal action to the persons involved in the assassination of President Sheikh Mujibur Rahman. Later, it was ratified and enacted by the Bangladesh Parliament, constituted in 1979, under the leader- ship of Ziaur Rahman; and, it became an Act. Through the 5th Amendment to the Constitution, brought about on 9 July 1979, the Indeminity Act became enshrined in the Constitution of Bangladesh. After the Awami League formed a government, with Sheikh Hasina Wazed, the daughter of Sheikh Mujibur, as Prime Minister of Bangladesh, the Parliament scrapped the Indemnity Act on 12 November 1996. This paved the way for the trial of the killers Sheikh Mujib. However in February, 2010 the 5th Amendment to the Constitution was declared illegal by the High Court of Bangladesh.
9 Supra note 6.
10 ‘Soon after the BNP-Jamaat coalition government took office, the military ran ‘Operation Clean Heart’ from Oct 16, 2002 to Jan 9, 2003 to ‘restore’ law and order. Many people died during the operation slated by rights groups but the authorities claimed the deaths were due to ‘heart attacks’. Then the BNP-led coalition government claimed the operation was conducted to check terrorism, while chief opposition Awami League alleged it was to annihilate the opposition leaders and supporters. According to New York-based Human Rights Watch, 60 people were killed during the operation. Then government admitted that 12 of the detained people died of ‘heart attack’. On Feb 24,
2003, the BNP-Jamaat government passed a law, providing indemnity to the military officials who took part in the special operation’. Operation Clean Heart Indemnity Questioned. http://bdnews24.com/bangladesh/2012/07/29/ operation-clean-heart-indemnity-questioned
11 Amnesty International. Bangladesh: Accountability needed in Operation Clean Heart. 24 October 2002. http://www.amnesty.org.uk/press-releases/ bangladesh-accountability-needed-operation-clean-heart
12 Abrar CA. Towards Curbing Impunity. The daily New Age. Wednesday
November 6 2013. See http://www.newagebd.com/detail.php?date=2013-11-06&nid=71903#.U1UHnHYxgic
13 See www.odhikar.org annual reports from 2009 to 2013 for information and statistics. Also visit the website of Amnesty International and Human Rights Watch for information on human rights violations in Bangladesh during this period.
14 Incidentally, the 15th Amendment denies the rights of the citizen’s to constitution-making by deleting the provisions of referendum on constitutional amendment.
15 Nazrul, Asif. 15th Amendment Transition of Power. The Daily Star, March 17,
2013. At http://archive.thedailystar.net/beta2/news/transition-of-power/
16 The opposition, led by the Bangladesh Nationalist Party demanded the reinstatement of the caretaker government and refused to contest the polls without a caretaker government.
17 Odhikar monthly report, January 2014.
18 http://newsworld365.com/2014/02/02/odhikar-reports-gross-violation- of-human-rights-in-bd-in-january-2014/. According to the National Democratic Institute (NDI) ‘With the credibility of the elections in question, the United States declared on Dec. 22 that it would not deploy observers for the elections. International observer missions from the European Union, the International Republican Institute and the Commonwealth similarly cancelled their international monitoring activities. Rising tensions between the ruling AL government and the BNP-led opposition, and the resulting deterioration in the security situation, also proved to be a complicating factor for Bangladeshi citizen election monitoring organizations. Due to the constricted political space, many of these groups were hesitant to comment openly on the electoral environment, fearing reprisals. Voter turnout on election day was low by Bangladeshi standards, and many of Bangladesh’s citizens have lost confidence in the ability of country’s political process to deliver credible, participatory and democratic elections’ See https://www.ndi.org/bangladesh
19 See Odhikar’s statement at odhikar.org/statement-of-odhikar-10th- parliamentary-elections-unilateral..and newsworld365.com/2014/02/02/ odhikar-reports-gross-violation-of-human-rights-in-bd-in-january-2014/
20 Report of the Secretary-General: The rule of law and transitional justice in
conflict and post-conflict societies23 August 2004.
21 Nabil, Zahir Hassan. Boys with Guns. The Star. Vol 12, Issue 5, February 01, 2013. Seehttp://archive.thedailystar.net/magazine/2013/02/01/politics.htm
22 The student wing of the Awami League
23 See archive.thedailystar.net/magazine/2008/08/01/cover.htm
24 See http://www.bbc.com/news/world-asia-22366454
25 Sohel Rana is currently being tried for several crimes committed as a result of the collapse of his building.
26 http://www.transparency.org/files/content/corruptionqas/316_Judiciary_
and_law_enforcement_Bangaldesh.pdf
27 Article 22, the Constitution of the People’s Republic of Bangladesh
28 The daily New Age, 01/11/2013, http://www.newagebd.com/detail. php?date=2013-11-01&nid=71305#.Ut4QKvtxXIU
29 See http://www.transparency.org/files/content/corruptionqas/316_ Judiciary_and_law_enforcement_Bangaldesh.pdf
30 The daily New Age, 10/07/2013, http://www.newagebd.com/detail. php?date=2013-07-10&nid=56453#.Ut4WS_txXIU
31 Raghib Rauf Chowdhury vs. Bangladesh and Others (Writ Petition 4403 of
2010)
32 Odhikar Human Rights Report, 2013 at http://www.fidh.org/IMG/pdf/
odhikar_ahrr_2013.pdf
33 Formerly Bangladesh Rifles (BDR)
34 Odhikar Annual Human Rights Report, 2013. http://www.fidh.org/IMG/
pdf/odhikar_ahrr_2013.pdf
35 The daily Manabzamin, 06/01/2013, http://mzamin.com/old_archive/ oldarchive_details.php?nid=MzczMjI=&ty=MA==&s=MTg=&c=MQ==&seco= MjAxM3wxfDZ8MA
36 More on this issue will be found later in this report.
37 They later stated that 11 persons had died of which one was a policeman and three pedestrian. The government also shut down two television channels, Islamic TV and Diganta TV, which were covering the events of 5 – 6 May live.
