Subjugated Bangladeshi legal independence and human rights violation in Bangladesh

Kanish Fatima : Freedom of Speech:Bangladesh is not unique in facing the threat of terrorism, which is now a global issue, but it is sadly the only country where writers and publishers are specifically on the hit lists of the killers.

Recent years have seen a serious decline in respect for freedom of expression and the associated rights of freedom of association, assembly, and of religion or belief in Bangladesh. Legislative changes, poor law enforcement, lack of governmental support for the principle of freedom of expression, attempts to undermine independent media, and a justice system ill-equipped to provide recourse to victims of rights violations have all contributed to the silencing of dissenting voices through murder, legal charges and imprisonment, self-censorship, or exile.

In 1970’s:- Free speech in the country, however, is not new to scrutiny and undermining. In 1973, poet DaudHaider was taken into “protective custody” after one of his poems — critical of religious beliefs — brought him death threats. Two months later Haider was asked to leave the country and consequently became a stateless person in neighbouring India.

Throughout the ’90s:-there have been several others who faced various degrees of intimidation and threats for speaking and writing their views, most notably TaslimaNasreen, a writer in exile with a number of her books banned in the country; and one of the leading Bangla poets, Shamsur Rahman, who was attacked in his home in early 1999.

In 20’s:-February 2004 a fatal attack on Humayun Azad, a well-known writer and a professor of Dhaka University, which proved to be a turning point in the nature of threats against writers in Bangladesh. So the attack on freedom of expression had changed between the ’90s and the early 2000s.In February 2015,Avijit Roy, a Bangladeshi-American online activist& founder of Mukto-Mona was hacked to death during the EkusheyBoiMela.

Case study-01:Daily Samakal Journalist killing

On 2 February 2017, Abdul Hakim Shimul, a journalist for the daily Samakal newspaper was reporting on a clash between two factions of the local Awami League inShahzadpur,Rajshahi division. According to eyewitnesses, Abdul Hakim Shimul was taking photos of the clash but when the Awami League arrived at the residence of the mayor of Shahzadpur municipality, HalimulHaqueMiru, the mayor emerged with a shotgun and opened fire. During the shooting, the mayor noticed Abdul Hakim Shimul while he was taking photos of the incident and subsequently shot the human rights defender. He was hit by several bullets and died on 3 February 2017. Abdul Hakim Shimul had recently spoken out against the mayor’s decision to raise municipality tax which is believed to have resulted in the targeting of the human rights defender.

Case study -02: Dilip Roy arrested for Facebook Post

Dilip Roy is studying at Rajshahi University in western Bangladesh, where he is the General Secretary of student organisation BiplobiChhatraMaitri. He was arrested by police on 28 August after criticising Prime Minister Sheikh Hasina in two Facebook posts. The posts focused on Sheikh Hasina’s support for a proposed coal-fired power plant in Rampal in southern Bangladesh, which many environmental activists oppose as it could have a damaging effect on Sundarbans, the world’s largest mangrove forest.

After Dilip Roy was arrested, a member of the local chapter of the Chhatra League – the student wing of the ruling party Awami League – filed a case against him under Section 57 of the Information and Communications Technology (ICT) Act for making “derogatory remarks” about Bangladesh’s Prime Minister and the Awami League.

Case study 03: journalist arrested under section 57 of ICT ACT

In 1st September 2016, Siddiqur Rahman, the editor of education specialist website DainikShiksha.com, was arrested over a news item. Rahman was arrested after Prof.FahimaKhatun, wife of a ruling Awami League parliamentarian ObaidurMuktadir and a sister of Food Minister Kamrul Islam, filed a case under Section 57 of the ‘notorious’ ICT Act. Khatun, Rahman worked as staff reporter of the Daily New Age, Bangladesh largest English daily, before joining the website.

Legal Environment:           Although the constitution provides for freedom of expression, subject to “reasonable restrictions,” the press is constrained by national security legislation as well as sedition and criminal libel laws, which are occasionally used to arrest and prosecute journalists. Legislation adopted in 2013 to amend the Information and Communication Technology (ICT) Act—which covers online crimes including defamation and blasphemy—upheld the right of law enforcement agencies to arrest and indefinitely detain suspects without bail, and imposed no limits on officials’ power during the investigatory period. In addition, penalties for online offences are set at between 7 and 14 years in prison, regardless of whether the crime is related to defamation or national security. The ICT Act has been used to arrest and charge a number of individuals for online expression in recent years, including bloggers and mainstream journalists.

The Ministry of Information controls broadcast licensing for both commercial and community outlets. In 2014 the cabinet approved a draft broadcast policy that contained a range of potentially restrictive provisions, including a prohibition on programming deemed excessively critical of state priorities or threatening to national security and sovereignty. The measure called for the establishment of a nominally independent regulatory commission to oversee its implementation, but it also empowered the Ministry of Information to revoke the broadcasting licenses of noncompliant outlets An official government committee was formed in March 2014 to monitor blogs and socialmedia sites and to identify individuals who produced or posted anti-Islamic content. An official government committee was formed in March 2014 to monitor blogs and socialmedia sites and to identify individuals who produced or posted anti-Islamic content.

In November 2015, the government announced that all online news portals would be required to register with the authorities by December 15, and that the accreditation of journalists with unregistered media outlets would be cancelled.An official government committee was formed in March 2014 to monitor blogs and socialmedia sites and to identify individuals who produced or posted anti-Islamic content.

Real life case study:-

Ekushey TV chairman Abdus Salam and former staffer Kanak Sarwar were arrested and charged with sedition in January and March 2015.

The opposition daily Amar Desh has faced a barrage of legal and regulatory threats over the past several years. In August 2015, acting editor and majority owner Mahmudur Rahman was sentenced to three years in prison.A ban on the newspaper’s print edition that had been enacted two years earlier remained in place throughout 2015.

In August 2015, the editor of the online portal Uttaradhikar 71 News, ProbirSikdar, was arrested for “tarnishing the image” of a cabinet member from the ruling Awami League after he wrote on Facebook that he had been threatened by the official.

The government at times interferes with journalistic work through surveillance. Some journalists’ e-mail correspondence is reportedly watched by police, and those brought in for questioning have been asked to supply personal internet passwords to intelligence officers.

Legal System of Bangladesh:

As a common law country, Bangladesh’s Supreme Court has the power not only to interpret the Constitution (articles 103(2) (a) and 110, the Constitution of Bangladesh, 1972) and the laws made by the Parliament, but it can also declare them null and void when they are found inconsistent with any of the provisions of the Constitution and to enforce fundamental rights of the citizens (articles 7 (2) and 44, the Constitution of Bangladesh, 1972). Although founded on the English common law system, the laws of Bangladesh take a statutory form, which are enacted by the legislature and interpreted by the Supreme Court.Besides, article 111 of the Constitution of Bangladesh, 1972 provides that the law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it. Therefore, the statutory laws, secondary legislation and judgment laws or precedent along with customs and usage all from the sources of law in Bangladesh.

Section 57 of the ICT (Amendment) Act, 2013:The Law says if any person deliberately publishes any material in electronic form that causes law and order to deteriorate, prejudices the image of the state or person or causes hurt to religious belief, the offender will be punished for a maximum of 14 years and minimum seven years of imprisonment. It also suggested that the crime be non-bailable. The petition placed before the High Court, challenging the section, noted that the provisions there conflict with Articles 27, 31, 32 and 39 of the Constitution.The ICT Act is often used by the Bangladeshi authorities to target, harass and imprison critics.

Journalist harassment in year 2016

Digital security ACT:

The draft Digital Security Act 2016, intended to address the need for cyber-crime legislation, according to the authorities, was approved on August 22, 2016, by the Cabinet. But members of civil society, media and activists have already expressed their concerns over the draft law impinging upon people’s freedom of expression. “Subject to any reasonable restrictions”, our constitution guarantees as a fundamental right, “the right of every citizen to freedom of speech and expression”. The draft Digital Security Act, 2016, may unreasonably deny this right and restrict critical thinking, the questioning of the status quo, and take away from individuals one of their most powerful weapons — the right to speak freely without fear.  Drawbacks of the digital security act:

• Unnecessary new law:The offences are not new, section 3 states that the law is supplementary to existing laws. Primary concern about the Digital Security Act is whether there is indeed the need for such a law to tackle the technology based offences. The law is serving the purpose of the government. 

 

• Vague definitions: The draft of the law has been made in Bangla, which is for the convenience of the people. But the definitions of the various legal and technical aspects given in Section 2 are a curious mixture of Bangla and English, which people without technical expertise will not understand.
• Disproportionate Penalties: From 1-14 years fo jail sentence due to taking intent into consideration, crimes are not clearly defined.

• Excess power to DG, DSA:  The act gives the director general of the proposed digital security agency interlocutory powers to take punitive measures, by passing court procedures

• Digital Security Agency:The law also proposed the creation of a Digital Security Agency. The BTRC is the main regulatory body of the ICT law, there is no need for a new agency. The powers given to the agency under the new law are sweeping and contradictory with existing laws.

 

Rule of Law:

In Bangladesh, the law says minimum force should be applied to arrests and every person has the right to seek a trial. In the cases of “crossfire” and “encounters,” however, we find that these legal provisions are being totally ignored.

Article 31 [7] of the constitution of Bangladesh [8] states: “To enjoy the protection of law, and to be treated 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.”

The constitution’s Article 32 [9] ensures the protection of the right to life and personal liberty in accordance with the law. Because of the consequences of such deprivation, the drafters of the constitution made this specific provision of protection even though these rights were already covered by Article 31. Each case of encounter killing causes hamper to democracy and the rule of law. The existing legal framework does not allow encounter killing. Such a concept cannot co-exist with constitutionalism, rule of law and the principles of democracy.

Judicial system and people’s belief:

Judicial system should be symbol of justice. Every people should keep faith and believe on the judicial system. But in Bangladesh, the picture is different. People do not have faith and believe because of the extra-judicial killings. They think, our judicial system are not execute properly. Government always says that they are against those killings, but their work and attitude do not show that picture. That actually indicates that extra judicial killings diminish the faith and believe of the general people in Bangladesh.

The constitution of Bangladesh also safeguards the right to life. The government of Bangladesh has been violating the constitution and Universal Declaration of Human Rights since 2002 [11] .Bangladesh does not ensure the right to life and has not complied with the Universal Declaration of Human Rights and the constitution of Bangladesh.One of the principles of law is that “man cannot be the judge of his own cause.” Extrajudicial killing, i.e., crossfire’s, shootouts and encounters, would violate this legal principle. There is no guarantee for an impartial investigation into alleged misdeeds of law enforcement agencies which are part of the executive.

 

Human rights violations In Bangladesh:

It is unfortunate that many people in Bangladesh today still experience violations of their human rights that include custodial torture, extra-judicial killing and various other abuses of authority and power. On the one hand, the government has guaranteed a ‘Zero tolerance’ [10] to extra-judicial killings, but on the other hand, it doesn’t take any action against the personnel of security forces that violates these rights. Every case of murder at the hands of the law enforcement agencies is an act of crime committed by the state and it is a negation of the principles of natural justice. Encounter killing is a violation of the fundamental rights.

Statistics of human rights violations; January – December 2016

Political violence:
Political Violence: January – December 2016
Extra-Judicial Killings in Bangladesh:

The government of Bangladesh has been violating the constitution and the Universal Declaration of Human Rights day after day since 2002 especially when did the operation clean heart starts. Now the situation is more complex day by day. We see any government doesn’t seriously work to stop those kinds of extra-judicial killings in Bangladesh.

Since the formation of the RAB, there has been a rising trend of “deaths in crossfire.” The number of deaths in RAB custody is also alarming. People have been killing in the name of “crossfire.” The police have also such ‘Extrajudicial killings’,’ encounters’, etc. killings are again on the rise and are being categorised under a new vocabulary of “crossfire”. The government tries to justify the killings by using the term “crossfire,”

The police and Special Forces, established to reduce the crime rate, have stated that these deaths were the result of crossfire and that it was the victims who fired first. Many questions are rounding in our minds. Because, High Court orders, national and international voice against extra-judicial killings, Constitution, Universal Declaration of Human Rights nowhere allowed killings and torturing.

The media’s role regarding extrajudicial killings covered up under reports of “crossfire”, “gunfights” or “encounters” is negative and constrained. A few human rights organisations have long been asking the government to stop the killings. Moreover, the High Court of Bangladesh, asked the government to explain why killing people without a trial, in the form of extrajudicial killings, is not being declared as illegal, and why measures are not being taken against the people who are related with those killings.
Statistics on Form of Repression by security forces from 2012-2016

Total victims of enforced disappearances (2012-2016)

Concern:

There have been several attempts to choke free thinking and writing in the cyber sphere. Several bloggers and cyber activists have been brutally murdered. Many more left the country in fear of further assaults. Still the cyberspace remains vibrant and young people are expressing their minds on various national issues despite the risks.

All those incidents clearly show that the ICT Act, particularly Section 57, has been used mainly to stop any criticism against the government. Following this experience, we cannot be hopeful about the Digital Security Act. If this trend continues, there will be no space for critical voices in the digital sphere in future.”

In relates to the security forces conduct towards its own citizen such as Extrajudicial killing have been going on by the violating of highest court ruling ordered. Not only have that by this killing the Bangladesh government is violating the Constitution and the Universal Declaration of Human Rights. We therefore recommend a systemic criminal justice mechanism in Bangladesh in order to ensure establishment of the rule of law and promotion of human rights and also stop those extra-judicial killing.

Reference:

PEN America, freedom house, GlobaLEX, The daily star, Ain o Salish Kendra (ASK), Odhikar, the world report, the wall street journal,UNDP,CIVICUS.

Kanish Fatima (Human Rights Activist)