FOR IMMEDIATE RELEASE
August 24, 2006
AS-196-2006
A Statement by the Asian Human Rights Commission
BANGLADESH: Lawless law-enforcement & the parody of judiciary
The Asian Human Rights Commission (AHRC) and its sister organisation the Asian Legal Resource Centre (ALRC) have today released a landmark new report on the collapsed and primitive policing and judicial systems in Bangladesh. The report consists of accounts that also reveal the country’s politicised and decrepit prosecution service, its total lack of witness protection, primitive forensic facilities and a whole range of other obstacles that together are all but insurmountable for the victim of human rights abuse seeking to obtain redress against a state agent there.
The full 140-page report can be read in full online at the website of the bimonthly ALRC publication, article 2: www.article2.org. Some extracts from the report follow.
ON POLICING
That the basic institutions for maintenance of law and administration in Bangladesh are in a serious state of collapse cannot be denied. It follows that agencies which are responsible for the prevalence of killings, abductions and torture, notably the police and special paramilitary groups, take advantage of conditions and become increasingly corrupt and dangerous. The overall effect is to generate heavy demoralisation and cynicism about state agents, especially the police and their cohorts.
The popular view of police in Bangladesh today is that they either use investigations to make money for themselves or conduct illegal services on behalf of politicians, or both. This opinion is heard everywhere, and among people in all parts of society. It is also accepted as normal that the police demand money from complainants, from alleged perpetrators and from third parties. And in order to raise money, police torture people and threaten them with death. To escape torture or death, people pay. Those unable to pay are in fact tortured, may have cases fabricated against them, or perhaps fall in “crossfire”.
Crossfire: one of two closely-related expressions which above all others bring abject fear to people in Bangladesh. The other is “Rapid Action Battalion” (RAB), which refers to a joint military-police unit that has since 2004 brought terror to the country. Its legal function is to act as a special anti-crime unit. Its actual function is to arrest and kill at random: hence, “crossfire”. Like the expression “encounter killing” used elsewhere, “crossfire” is a term that people employ with their tongues in their cheeks. The sinister connotations associated with it imply the powerlessness of people in Bangladesh to respond to extrajudicial killings, of which anyone could be a victim. As one senior lawyer expressed to me, the word “crossfire” is itself a form of mental torture: “One is living with the fear all the time that he or she can be the next victim of crossfire.”
The policy of killing through crossfire has been reaffirmed by members of government. Minister for Law, Justice and Parliamentary Affairs Maudud Ahmed, the overseer of Bangladesh’s lower judiciary, made clear in a press briefing on 30 November 2004 that death in crossfire under RAB or police custody could not be considered custodial death. This, he reasoned, was so because the state officers would only be opening fire to save themselves. Since that time, no member of the RAB has ever been prosecuted for a killing. Most families of victims do not even bother to complain as they are aware that it will be a fruitless waste of money, time and energy, entailing risks to their own security. Only those with some personal involvement in a political party or other outside assistance and support try to raise their voices.
ON THE RAPID ACTION BATTALION
The mingling of both personnel and law in the RAB has intentionally caused confusion. The majority of RAB personnel are soldiers. 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 to introduce the RAB 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.
Another important aspect of the RAB is that its personnel are not permanently appointed. Rather, they are seconded to the battalion, and after a period return to their original units in the armed forces, border security force, police and the village defence units, often with promotions. So the lessons learned from RAB–i.e. that abducting, killing and robbing are permissible–get carried back into other parts of the security forces.
The creation of the Rapid Action Battalion is an implied admission by the government that Bangladesh has descended into lawlessness. Despite the external appearance of some courts, police and administrators, most state institutions are today without public legitimacy. By choosing to fight lawlessness with lawlessness, the government has also admitted that these institutions cannot be relied upon, lending credence to the popular view.
ON THE LAW & JUDICIARY
In Bangladesh today, the prospects of punishing the perpetrators of “crossfire” killings, torture and other grave abuses is remote, to say the least. Sometimes internal inquiries may lead to transfers or dismissals, and very occasionally, limited action in the courts. But legal redress cannot go far, and nor can it be expected to do so for some years to come. Torture, for instance, has not yet been made a crime in Bangladesh. There are also no independent mechanisms for investigations of complaints against police or other state agents: not even a national human rights commission. At present to get the most rudimentary investigation opened often requires a huge effort through the media, demonstrations and lobbying. After that, the entire legal process is so slow that it is almost unendurable for the average litigant. There is no witness protection scheme to shield victims from the inevitable pressure and harassment by the accused. Nor has the state acknowledged its responsibility to rehabilitate victims. Compensation is undermined by the lack of a specific fund for that purpose. And the slowness and inefficiency of all levels of bureaucracy makes the pursuit of complaints very difficult.
Although section 22 of the Constitution of Bangladesh directs the government to ensure an independent judiciary, in fact the entire lower judiciary in Bangladesh moves on strings extending from government departments. Successive governments have for the last 15 years promised to cut the judiciary loose from the executive. In 1999 the Supreme Court ordered that the earlier election promises be made reality. Meanwhile, the government has kept playing the Supreme Court for time. After its order, the government began applying for extensions. Like a schoolboy coming to class with one implausible excuse after the next about why he could not do his homework, it applied for more time on no less than 23 occasions. Finally, the Supreme Court lost its patience. On 5 January 2006 it rejected the government’s latest request for an extension, and said that it would not entertain any more. A contempt of court case has now been opened against the government over its failure to implement the 1999 order. How long that takes remains to be seen. Meanwhile, people in Bangladesh are left to suffer injustice heaped on injustice by their ridiculous lower judiciary.
ON THE PROSECUTION
As if the deliberate non-independence of judges alone was not enough of a problem, the government of Bangladesh also plays havoc with the way that cases are prosecuted. Public prosecutors are political party playthings. Each time a new government comes to power–that is, each time power rotates from one of the two main parties to the other–all of the public prosecutors and assistant public prosecutors in the country are replaced, from attorney general down. They carry on until the next power flip-flop, and again the other side puts its own people in. Prosecutors are also thrown out during a government’s tenure if they dissatisfy the whims of a local member of parliament, a minister, or some other political heavy. Their appointment and job security is not determined by their ability or professionalism but by the extent to which they have served the financial and political interests of the appointing party, its leaders and followers.
The obvious consequence of this mad system of appointment and promotion is that there is no building of a functioning institution and tradition of good prosecutors. They do not accumulate experience or build a legacy to pass from generation to generation, as they are in and out the door every few years. The skills needed for proper prosecuting do not develop, and instead political bias is the sole determining factor. Prosecutors simply make the most of the time that they have in their positions to benefit themselves and their patrons.
ON CORRUPTION
In Bangladesh corruption is the one and only god of all public institutions. Each and every person has to think about how much money will be needed to get something done. Corruption starts from the top political leaders and runs right down to the most junior functionaries. The ruling party, whichever it may be, wallows in it: being in government is first and foremost a chance to make money illegally, and for one’s supporters to make it too. There are few exceptions to this rule, and there is not a single institution in the country that is corruption-free. Whether recruiting, training or transferring staff; purchasing, deciding or investigating anything; collecting, registering and recording land or goods; auctioning or transporting something, bribery and other corruption is present.
ON THE DANGER TO SOCIETY OF USING VIOLENCE AS THE PRIMARY MEANS OF SOCIAL CONTROL
The boundaries of freedom in Bangladesh are clearly demarcated by the use of crossfire, torture and other potent threats. This use of terror for social control–optimistically referred to by the state as “law and order”–is not only a human rights issue: it is also a fundamental development problem. Widespread loss of faith in rational state behaviour hampers all possibilities of social progress. When money-motivated police or politically-driven officials constantly upset the lives of millions, successful ventures fail to develop. Fear kills initiatives, including those for investment. All strategies are warped by panic and corruption. Qualified people who want to live decent lives find no prospects for prosperity or its enjoyment in Bangladesh. Either they adapt to the utterly corrupt institutions and agents around them or they leave.
Talk about lawless law-enforcers, or parodies of judges, is talk about much more: it is talk about the survival of the state. Bangladesh’s formal democracy is in the balance. A functioning democracy depends upon working institutions for the rule of law. Bangladesh’s is contradicted by the absence of such institutions. It lacks well-founded bodies upon which it can itself stand with any measure of certainty. This contradiction exists in many countries where weak jurisdictions are unable to meet the demands of constitutionally-accepted democratic forms of governance. In Bangladesh it is the size of the contradiction that is alarming, and which is creating gigantic problems that require more concerted responses.
The contradiction between democracy and weak rule of law manifests itself most sharply in the violent conflicts between the ruling political party (whichever party may be in power at a given time) and the opposition. For years, it has been an acknowledged feature in Bangladesh that the ruling party uses its power to violently suppress the opposition. The party in power not only typically harasses but even physically attacks senior leaders of the opposition. Still no serious attempts have been made to address the use of torture and law enforcement for political repression, as each side hopes that once it is in power it will be able to use the same methods to obtain revenge. The agents in this bloody game of tit-for-tat are meanwhile promoted, extolled and enriched, encouraging others to follow their examples. And so the cycle goes on, and in recent years has worsened with the introduction of new agencies for violence and bloodshed, with even fewer controls or ideas about who is in control.
This report, “Lawless law-enforcement & the parody of judiciary in Bangladesh”, is important because it discusses individual cases of killing, torture, assault, arbitrary arrest, rape and non-investigation with reference to the overwhelming contradiction between constitutional provisions and reality in Bangladesh. None of the stories that it contains will be of any surprise to anyone in Bangladesh. Some have already been widely reported. Others are not well-known. But what are needed are more critiques of how the arbitrary arrest and assault of a young woman by the police is directly related to national stability. The survival of Bangladesh and its people depends upon acknowledgment of this relationship, and a newfound resolve to do something about it.
ON THE RESPONSIBILITIES OF UNITED NATIONS AGENCIES
The UN Human Rights Council should at the nearest possible time suspend the government of Bangladesh’s membership and prohibit it from reelection until it
a. Completely detaches the judiciary from the executive, as required by both domestic and international law;
b. Removes all political control of public prosecutors and establishes an independent prosecution department;
c. Ends its policy of extrajudicial killings through “crossfire” and investigates and prosecutes all perpetrators;
d. Criminalises torture in accordance with international standards and removes its reservation on article 14(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
e. Repeals law that is contrary to international standards of human rights, including section 46 of the Constitution of Bangladesh; sections 54, 132, 197 of the Code of Criminal Procedure; section 86 of the Dhaka Metropolitan Police Ordinance; the Joint Drive Indemnity Ordinance 2003; Special Power Act 1974 and, the Armed Police Battalions (Amendment) Act 2003;
f. Establishes a properly independent and powerful anti-corruption agency;
g. Designates an independent body to receive and investigate complaints against the police and other state officers; and,
h. Sets up a national human rights commission.
The UN Special Rapporteurs on the independence of judges and lawyers, extrajudicial executions, torture, and violence against women should request to make visits to Bangladesh at the nearest possible time and assess conditions there for themselves.
The UN Secretary General should consider appointing a Special Representative on Bangladesh to monitor and report on the country until such a time that there has been a marked improvement in conditions, with reference again to the points listed above upon which the Human Rights Council should act.
The UN Under Secretary General for Peacekeeping Operations should review the participation of Bangladeshi personnel in all future missions and suspend the country from sending further troops or police abroad until the Rapid Action Battalion is disbanded and victims of extrajudicial killings and other gross rights abuses are given access to a fair means for obtaining redress in accordance with international standards.
