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    Lesson 1: Bangladesh's state of emergency and related legislation

    This lesson gives an overview of Bangladesh's (mis)use of repressive legislation under the state of emergency and how this affects basic human rights.

    A. State of emergency, January 2007

    On 11 January 2007, Bangladesh's President Iazuddin Ahmed proclaimed a state of emergency, and on the following day a group of bureaucrats and retired military generals took power in Bangladesh. This situation continues at the time of writing. The alleged justification for this takeover was the violence and instability plaguing the country due to clashes between the previous ruling party and its opposition. From October 2006 to January 2007 there were numerous deaths due to the violence, while transportation and other strikes rendered the entire country immobile.

    The present state of emergency bans all political association, as well as basic civil liberties. Moreover, the military is given the power of magistracy; military and other law enforcement officials now have the authority to make arrests without warrants. This has led to significant arbitrary arrests, detention, torture and ill treatment of ordinary citizens, from shopkeepers and agricultural workers, to human rights activists and professionals. Most persons are initially detained under the 1974 Special Powers Act, which allows police to propose to the district commissioner that any person shall be detained for a certain amount of time.

    The courts are unable to receive writ petitions under the state of emergency provisions. However, the Appellate Division of the Supreme Court spent over a month to hear cases protesting such arbitrary detention, after a series of debates between the government and the defendants regarding judicial authority. By the time the courts declared the detentions illegal, most of the victims had been implicated in fabricated cases, thereby keeping them in detention. Furthermore, the local magistrates responsible for their detention or release are under government influence. The government in turn, is under military influence.

    In actual fact, there is a parallel military administration in the country, without whose green signal the civilian administration does nothing. Controversial institutions such as the Elections Commission and the Anti Corruption Commission have already been reformed, with key posts given to persons with military backgrounds. This has led to around 30 former ministers from both political parties being held for corruption charges--unthinkable under previous administrations. Even Tarique Rehman, son of former prime minister Khaleda Zia, has been in detention for corruption since 7 March 2007. A number of laws--in the guise of ordinances--have been imposed, restricting normal activity and movement. While these laws are purportedly being used to detain politicians and other influential figures, all of whom have until now enjoyed blanket immunity for their illegal activities, the same laws are denying justice to innocent victims who are arbitrarily detained and tortured. Meanwhile, newspapers and electronic media have been warned not to publish any material deemed 'anti-nationalist'. Many media personnel have also been detained for illegal activities. In this way, the increasing repression and violence of the military is not widely spoken of.

    Constitutional provisions

    According to article 141A of the Constitution of Bangladesh, when “a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance” the president may proclaim a state of emergency. Such a state “shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it had been approved by a resolution of Parliament”. Bangladesh's state of emergency should therefore have ended in April. Moreover, the constitution further holds that a general election should be held 90 days after parliament is dissolved; this too has not occurred in the country.

    The constitution also provides for the suspension of fundamental rights during a period of emergency rule. However, the High Court Division of the Supreme Court held that citizens' legal rights are not suspended during the emergency period and concluded that it would begin to hear individual habeas corpus cases from February 26 (For more details, see AHRC UA-067-2007).

    Authoritarian governments, dictatorships and military regimes have become the norm around Asia. In September 2006, a few months before the state of emergency was imposed in Bangladesh, there was a military coup in Thailand. Without understanding the implications, there were some who claimed that the coup was in fact a good thing [see AHRC AS-229-2006 for further discussion]. No good can result from individuals in power ignoring the law and constitution that ultimately gives them their power. On the contrary, there is no longer any basis for rule of law, democracy and human rights protection. History is witness that any rule not legally legitimate brings only repression and abuse. If all power is corrupt, absolute power is that much more corrupt. By attempting to rule with absolute power, military and other dictatorships bypass all legal checks and balances, which were established to prevent the misuse of power and to protect the rights of citizens.

    B. Legislation

    It is important that legislation be progressive and adhere to international standards of human rights. The drafting and passing of legislation is therefore an important process, to be done by competent and intelligent bodies. In democratic societies, this process is usually undertaken by the national parliament or legislative body, with input from civil society as well as political parties. Public participation and rigorous debate work to prevent harmful legislation from being enacted.

    With the recent increase in draconian laws around the region, human rights are being systemically denied however. The following are a few such laws in place in Bangladesh.

    Emergency Powers Ordinance 2007 (unofficial translation)

    Section 5

    (1) Any order relating to any authority delegated by dint of, or under, this Ordinance shall not be challenged before any court.
    (2) Under certain circumstances if any authority, by dint of, or under this Ordinance, passes any order, or any order is considered as signed under this Ordinance, then the courts shall deem that order passed or signed under the Evidence Act 1872 (Act no. X of 1872).

    Section 6

    (1) Any action done or order passed under, or authorized by this Ordinance on good faith by any person designated by this Ordinance shall not be prosecuted or charged under any civil or criminal procedures, or any kind of litigation shall not be registered.
    (2) Unless any evident provision under this Ordinance,  no civil or criminal case, or any other legal proceedings shall be lodged against the government for any harm occurred as a result of any action, or any order done on good faith under the authority of this Ordinance.

    Emergency Powers Rules 2007

    Section 2 defines the “Law and Order Maintaining Forces” to include the Bangladesh police department, the Armed Police Battalion, Rapid Action Battalion, Ansar (village defence)  force, Battalion Ansar, Bangladesh Rifles (border security force), Coast Guard force, National Security Intelligence, members of the Defence Intelligence Agency and the Armed forces. This is a significant number of personnel given extraordinary powers of arrest and detention without warrant; section 16 gives the 'Law and Order Maintaining Forces' the power to arrest any person on suspicion without warrant, while section 20 explicitly states that all personnel can “take any step including the use of force” to carry out any orders under these Rules. Section 21 provides for the detention of these persons under the Special Powers Act of 1974. Moreover, according to section 10 all offences under the Emergency Rules are non-bailable. This provision is emphasized by section 19d, which states that regardless of sections 497 and 498 of the Code of Criminal Procedure, if any inquiry, criminal investigation or trial is in progress under sections 14 and 15 of the Emergency Rules, the accused persons shall not be entitled to appeal for bail before any court or tribunal.

    In other words, disregarding basic human rights and principles of fair trial, state security forces can arbitrarily arrest and detain individuals without warrant or evidence; in fact, they can 'produce' evidence through the use of force. Such circumstances are conducive to widespread human rights abuse and corruption. Many human rights defenders are also being targeted by security forces and implicated in false cases.

    While enormous power is given to security forces, basic rights of citizens are suspended. Section 3 of the Emergency Rules bans all rallies, processions and meetings, while section 5 places strict restrictions on news, photos, statements, opinions and comments, editorials, talk shows and other discussion forums. The suspension of their rights to freedom of expression, association and their right to seek remedies mean that victims suffer in silence. They are unable to voice their grievances through ordinary channels of communication. They cannot seek  relief from the courts or other agencies. With the ban on all political activity, as well as the fact that many political leaders and party members are detained in prisons and facing trials for corruption, there is no one to speak out against the military backed government. The few individuals left are too scared to do anything but praise the government.

    Even prior to to the state of emergency in Bangladesh, the country had numerous repressive pieces of legislation. Section 54 of the Code of Criminal Procedure 1898 permits arrest  on a 'reasonable suspicion' of a crime, and was the most commonly used provision by the police to arrest individuals and pry information out of them. 

    Section 54 of the Code of Criminal Procedure 1898

    Any police officer may, without an order from a Magistrate and without a warrant, arrest-

    First, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

    Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;

    Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the [Government];

    Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property [and] who may reasonably be suspected of having committed an offence with reference to such thing;

    Fifthly, any person who obstructs a police officer while in the execution of his duty, or has escaped, or attempts to escape, from lawful custody;

    Sixthly, any person reasonably suspected of being a deserter from [the armed forces of ];

    Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;

    Eighthly, any released convict committing a breach of any rule made under section 565, sub-section (3);

    Ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

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

    Section 86 of the Dhaka Metropolitan Police Ordinance was also frequently used by police in Dhaka to make arrests without valid reason after dark wherever someone is found without any 'satisfactory explanation'. It carries a one year penalty, fine, or both.

    Section 86 of the Dhaka Metropolitan Police Ordinance (unofficial translation)

    If any person is found between dusk and dawn

    a) Equipped with dangerous machinery without any satisfactory explanation; or,
    b) Covering the face or disguised or masked without any satisfactory explanation; or,
    c) Present in the house of anybody else or in a building of anybody else or on board a boat or in any vehicle without any satisfactory explanation; or,
    d) Lying or moving in or on any street, any yard or any other place without any satisfactory explanation; or,
    e) Entering into any house along with weapons without any satisfactory explanation; then, that person shall be imprisoned up to a maximum of one year or shall be fined up to two thousand Taka, or both.

    The Special Powers Act 1974 allows police to propose to the district commissioner--who is also the district magistrate--that any person shall be detained for a certain amount of time. This continues to be used in conjunction with the emergency regulations to arbitrarily detain individuals.

    Moreover, section 46 of the Constitution empowers the government to extend immunity from prosecution to any state officer on any grounds:

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

    Although this provision was originally intended with reference to the 1971 war for independence from Pakistan, it is now used to protect police and joint operations units from prosecution for human rights abuses. Notably, the Joint Drive Indemnity Ordinance 2003 removed from the hands of victims and their families the right to take legal action against soldiers, police and other security forces responsible for the gross abuses that occurred from 16 October 2002 to 9 January 2003 under Operation Clean Heart.
     
    The law legalizing the Rapid Action Battalion (RAB) is also problematic. The Armed Police Battalions (Amendment) Act 2003, which has its origins in the Armed Police Battalions Ordinance 1979, gives the RAB wide responsibilities, including "intelligence in respect of crime and criminal activities" and "investigation of any offence on the direction of the Government". Section 6B (1) further states that "The Government may, at any time, direct the Rapid Action Battalion to investigate any offence".

    The Rapid Action Battalion, which was inaugurated on 26 March 2004 and began its operations on June 21 of the same year, is depicted by the government of Bangladesh as an elite joint-operations crime-fighting force. In fact, RAB personnel operate as hired guns for whichever political party happens to have its hands on the reins of power. Through systemic violence and trademark "crossfire" killings, their great success has been the spreading of more panic and lawlessness throughout Bangladesh: the very things needed to justify the RAB's continued existence.
    The government of Bangladesh told the UN Special Rapporteur on extrajudicial executions that under the 2003 act the RAB is "guided strictly by the Code of Criminal Procedure" (E/CN.4/2004/7/Add.1, para. 26). In reality, nothing could be further from the truth:

    According to section 103 of the code, police who search a certain premises must first obtain two or more "respectable inhabitants" of the locality to witness the search and countersign any record of seized items. When RAB personnel take persons in their custody to search and retrieve weapons or other illegal objects from premises at 3am they completely ignore this obligation. It is under these circumstances that RAB personnel conveniently get into "crossfire" and the person in their custody dies. Perhaps the RAB members are not complying with the code out of concern for the safety of the respectable inhabitants. Anyhow, so far as Bangladesh is concerned the reference to the Code of Criminal Procedure is spurious for the reason that the code works primarily to block the possibility of any complaint against state officers [Nick Cheesman, 'Fighting lawlessness with lawlessness (or) the rise & rise of the Rapid Action Battalion', article 2, vol. 5, no. 4, (August 2006), p.32).

    Moreover, the mingling of both personnel and law in the RAB has intentionally caused confusion. The majority of RAB personnel are soldiers.

    Out of the nine of its 12 regional battalion commanders listed on its website at time of writing, eight are army lieutenant colonels. Only one is a police officer. Informed observers in Bangladesh tell that the overwhelming majority of the RAB command is from the military. In this, RAB is a replica of the joint-force used for the 86-Day Tragedy. However, RAB is part of the Bangladesh Police and technically under command of the police chief. Police personnel are obligated to follow the Police Regulation of Bengal and Police Act 1861. Yet the 2003 amended act makes no mention about whose guidelines it is meant to follow, and at the same time gives authority for the making of orders to the Ministry of Home Affairs rather than the chief of police. The multiplicity of persons apparently or actually in charge of the RAB, and duplication of command hierarchies, frees the RAB from any particular responsibility to anyone. Whereas the control of behaviour in law enforcement depends upon a sequence of functioning posts and departments, when these are jumbled up, maintenance of internal order is lost. All that is left is a RAB on the loose [Cheesman, 'Fighting lawlessness with lawlessness (or) the rise & rise of the Rapid Action Battalion', pp.32-3].

    The systemic use of military personnel for policing has been the cause of repeated tragedies throughout Asia. The people of Bangladesh need only look to Nepal, Sri Lanka, Burma and Indonesia, among others, to obtain their lessons. Sri Lankan police were once relatively well-disciplined and law-abiding. Then they were told to hunt down insurgents and terrorists. The lessons learnt have carried on until today in horrendous forms of torture and killing for the most trivial reasons. In Burma, an army general is police commander. His men understand their duties only in terms of "security of the state". In Indonesia the police force under the Suharto regime was a part of the military structure itself. Now the country faces the monumental task of teasing the two apart. And Nepal is just starting to come to terms with what was done by joint operation forces under the royal dictatorship there in recent years. None of these are desirable models to be followed by Bangladesh.

    While some laws are bad, others are non existent. For instance, although article 35(5) of the constitution prohibits torture and the country has ratified the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), there is as yet no law that prohibits and criminalizes the practice, as well as no means to lodge a complaint. The Bangladesh government said it will only apply article 14(1) of the UN convention--stipulating the right to redress, compensation and rehabilitation for victims--in accordance with existing laws. As there are no existing laws for redress, compensation and rehabilitation, it is not difficult for the government to say that it has fulfilled its obligation by doing nothing. This inaction also applies to Bangladesh's submission of periodic reports to the CAT Committee; its first report was due in 1999 and second in 2003, neither of which have been submitted.

    The adoption and enforcement of the above laws clearly indicates that torture and extrajudicial killings are deliberate government policy in Bangladesh. This is the case even though Bangladesh is a member of the UN Human Rights Council, as well as party to key international human rights covenants such as the CAT. These international obligations are routinely ignored, while state and government officials take care to protect themselves under laws like the Joint Drive Indemnity Ordinance, or now, under the emergency regulations.

    Questions For Discussion

    1. What is the role of the military in your country? How does this affect the human rights of citizens?
    2. Discuss any repressive legislation that you are aware of, and its effect on society.

    Human Rights Correspondence School
    Asian Human Rights Commission
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