Introduction:

The right to be heard is an important part of a fair and impartial justice system. Essential rights of litigants can be ensured only by protecting the right to be heard. The right to be heard by a free and neutral tribunal must be applied at all times and. It is a right contained in article 14(1) of the International Covenant on Civil and Political Rights, which provides that “in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.[1] Therefore the right to be heard is a very important right and one which deserves serious consideration.  Defendants have a right to make any statements they believe appropriate to the Judge prior to the imposition of the sentence.[2]  This may include a request for mercy, an explanation as to what led to their actions or how they have changed since the crime.  The defendant’s attorney may also make persuasive opinion regarding sentencing. So according to constitution and human rights consideration every person deserves a fair trial.

But in Bangladesh the institutions for upholding law and administration are in a serious collapse. The police and law enforcing institution are heavily corrupt. Besides, another law enforcing institution is exercising violation of the civil rights by killing so-called “criminals” without any trail. The right to be heard which should be ensured by law enforcing institution are seriously violated by themselves.

Violation of human rights & judicial system in Bangladesh:

Violations of human rights still a big problem for the democracy in Bangladesh. The present reality of Bangladesh proves that a representative government is can not be succeed if the Executive, Judiciary and the Legislative departments  fail to play their respective roles to ensure constitutional and international aspects of human rights. In this kind of situation an undemocratic and autocratic nature of power appear in many different ways and abuses the state resources for supporter and his own political gain.

The Bangladesh Awami League[3], in its election manifesto promised to ensure good governance, transparency and accountability. The party also promised to stop extra-judicial killings. The Foreign Minister made commitments of ‘zero tolerance’ regarding extrajudicial killings in the Human Rights Council on March 01, 2010 and at the Universal Periodic Review Session (UPR) in Geneva in February 2009 and also when Bangladesh got elected for a 2nd term to the UN Human Rights Council[4]l on May 12,  2009. However, the actions were never implied and these are now mere words without action.

What is especially worrying for the democracy and human rights of Bangladesh is that the politicization of the Judiciary. Even though Judiciary has been formally separated from the executive, it has still failed to prove to the citizens its independence and resistance from extrajudicial manipulation.  Violence against journalists, interference in electronic and print media, extra-judicial killings[5], custodial torture, violence against women and children is still continuing in Bangladesh.

The laws governing the activities of the National Human Rights Commission and the Information Commission restrict the autonomous functioning of these two institutions. The Judiciary is also becoming more and more bound in a web of politicization. Law enforcement agencies engaged in torture and abuse, in total confidence that their actions would be over looked. Government representatives in 2010 publicly denied the occurrence of extrajudicial killings. The practice of torture and humiliating behavior by the law enforcement agencies is nothing new and the lack of concern shown by every government regarding this practice, have only strengthened their use. In 2010, statistics show that the Rapid Action Battalion (RAB)[6] was the main executor of extrajudicial killings this year. And the police were the main executor of torture.

 Right of a Fair trial:

Every citizen has the right to a fair trial. It has been defined in numerous regional and international human rights convention. It is one of the most extensive human rights. The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite many variations in placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms.  The aim of the right is to ensure the proper administration of justice. As a citizen the right to fair trial includes the fair trial rights in civil and criminal proceedings which ensure the right to be heard by a competent, independent and impartial tribunal, the right to a public hearing, the right to be heard within a reasonable time, the right to counsel, the right to interpretation. A government of a country may limit the right to a fair trial or change from the fair trial rights only under circumstances specified in the human rights conventions[7]. Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. In criminal proceedings the right to a fair trial include the following fair trial rights: the right to be notified of charges in a timely manner, the right to adequate time and means for the preparation of a defense, the right of the accused to defend him or herself, or the right to a counsel chosen by the accused and the right to communicate privately with the counsel, the right not to incriminate oneself, the right to appeal at first instance to a higher court, the prohibition on double jeopardy.

 Extra-judicial Killings in Bangladesh: Present Scenario:

Occurrences of extra-judicial killings continued despite the government’s repeated declaration that this would be stopped. The law enforcement agencies have continued killing suspected criminals, members of the fundamental left political parties without due process of law. In 2010, 127 people were killed by extra-judicially killing. The data shows that on average 1 person was killed in extra judicial killing in every 3 days. Out of those killed in 2010, 09 persons jointly killed by RAB and police; 68 were killed by RAB, 43 by the police, 03 by the joint operation of RAB and Coast Guard; 03 by the joint operation of RAB, Police and Coast Guard and 01 by BDR. The chart below shows the state of extrajudicial killings in 2010. Of those 127 killed in this year, only 64 were alleged criminals.

Extrajudicial Killings in 2010

 Crossfire is very common in Bangladesh now. It has been reported that of these 127 reported killed extra-judicially, 101 were killed in crossfire. The data shows that RAB took the top position of killing in crossfire[8]. After lengthy investigations, the Ministry of Home Affairs, in two cases, concluded that the deaths caused by RAB-Police were extra-judicial killings. On the basis of accusations made by the victims’ families, two separate investigations were conducted by two Investigation Committees led by the Deputy Secretary, Law Section of the Ministry of Home Affairs. The Investigation Committees made recommendations to punish the perpetrators under the law. Such investigations however are not routine, but an exception exhibit that the government has the capacity to investigate to determine the true cause of death, given the political will.

 In 2010, 22 persons were reportedly tortured to death by different law enforcement agencies.  As per records, police crowned the torture list this year.  After a suspect or accused is arrested, he must be presented before a Magistrate within 24 hours. At this time, police routinely seek remand of the accused or suspect for further questioning. The remand wanted can be for a period of 3 to 15 days and sometimes can be occasionally more. Once taken into remand, the physical and mental abuse and torture begins. Families have been known to pay police not to torture an accused in remand. Often in remand, police carry out different degrees of torture for various reasons, including taking out a confessional statement, implicating others, and also to extract money. Although remand has now become the same to torture, Magistrates still allow remand with no warning to the police and still record the statements of accused persons who show mental and physical effects of torture.  Meanwhile in 2010, two persons were allegedly beaten to death by RAB and BDR[9]. During this period it is alleged that two persons were shot dead by police in Dhaka and Habigonj district. These incidents fall outside crossfire shootout, as the two victims were reportedly shot point blank.

 Reaction from the international and national agencies:

 The whole time the year, killings in so-called ‘crossfire’s’ drew most attention, nationally and internationally. The crossfire exemplifies the awful state of human rights, where security forces kill with license. Reports from international human rights organizations have demanded an end to the practice of crossfire and other forms of extrajudicial killing in Bangladesh. The High Court too has issued a directive to stop crossfire killings, following the ‘crossfire’ killing of two brothers from Madaripur on November 15, 2009[10]. A bench of the High Court Division (HCD) consisting of Justice A F M Abdur Rahman and Justice Imdadul Huq Azad issued a Suo Moto Rule on the Government asking it as to why the High Court Division should not declare the crossfire killings of the two brothers illegal. When the Government prayed for time on the date of hearing on December 14, 2009, the Bench issued the direction to stop crossfire killings until the Rule was disposed of. Later on, when the Chief Justice reconstituted the concerned Bench, the hearing of the Rule issued was disposed of. Nonetheless, killings in the name of ‘crossfire’ continue in violation of the High Court Division directive. On May 28, 2010[11], Law Minister Shafique Ahmed claimed that crossfire killings had stopped. On July 8, 2010, he further said, “Action will be taken against the perpetrators if any further incidents of extrajudicial killing occur.”49 On June 1, 2010[12], a  Division Bench of the High Court Division consisting of Justice AHM Shamsuddin Chowdhury and Justice Md. Delwar Hossain during the hearing of a Contempt of Court case against Chittagong Police Commissioner Moniruzzaman stated “Incidents of torture and death in custody will not be tolerated. The judges have taken a Constitutional pledge to protect the rights of the people.”50

Despite repeated and consistent assurances by the Government, extrajudicial killing did not end in 2010, rather, members of the law enforcement agencies continued to kill so-called ‘criminal suspects’ and others outside the purview of the judicial process.

Recent leakes by the wistleblower website Wikileaks[13][14], and reports in UK daily The Guardian[15], highlights US Embassy cables sent by the US Ambassador about a discussion between the US Embassy with the UK High Commission in Dhaka on issues of counter-terrorism. The cable reveals the involvement of these governments with RAB, and in particular, that the “British have been training RAB for 18 months in such areas as investigative interviewing techniques and rules of engagement.” The cable also said that the training had been widely disseminated within RAB.

 Bearing in mind the number of extrajudicial killings attributed to RAB, it raises serious questions about the nature and content of such trainings, and whether trainings on ‘rules of engagement’, ‘interviewing techniques’ have helped improve RAB’s practice or contributed in violating rights.

 Laws Being Ignored by Extra-judiciary Killings:

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 of the constitution of Bangladesh 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.”[16]

The constitution’s Article 32 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.

What is implicit in Articles 31 and 32 is the right to access to justice, and it cannot be said that this right has been dealt with in accordance with the law unless a person has a reasonable opportunity to approach the court in vindication of their right or grievance. Even a fugitive is entitled to a legal defense when the death penalty is involved.

A law providing for the lack of life or personal liberty must be reasonable. The court will query for whether an ordinary sensible person such a law is reasonable, having regard to the compelling, and not merely genuine, governmental interest. It must be shown that the security of the state or of society demand the law to protect the deprivation of one’s life and personal liberty.

When the recent incidents of crossfire are studied, a common pattern that can be found is that victims were arrested and killed in what is termed as crossfire or an encounter during crackdowns on illegal firearms or the arrest of criminals in deserted places, mostly in the early hours. Still, according to the police regulations of Bengal (PRB), firearms should not be used other than in emergencies. The use of firearms is applicable in three situations: for self-protection and possessing of property, for foiling an illegal gathering and, in some cases, for making an arrest. The PRB mandates a full executive probe regarding any use of firearms. Investigators are required to send the report to the government and submit a copy to the police’s top leadership.

Even the Universal Declaration of Human Rights (UDHR[17]) declares in Article 3 that “everyone has the right to life, liberty and security of person.” Bangladesh is also a signatory to the International Covenant on Civil and Political Rights (ICCPR)[18], which carries provisions in Articles 6 and 14 to protect a person’s rights to life and fair trial and to be presumed innocent until proved guilty according to the law.

One of the principle maxims of law is that “man cannot be the judge of his own cause.” The recent government decision to conduct an executive probe into every extrajudicial killing, i.e., crossfire, 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. To avoid any conflict of interest or cover-ups and to safeguard the rights of the people, independent judicial inquiries into these killings should be carried out instead.

 Recommendation:

The Bangladeshi government should take all necessary measures to end the involvement of RAB in extrajudicial killings, torture, and other human rights violations. It should ensure that all accusations of human rights violations by RAB are thoroughly investigated and put on trial all those responsible, regardless of rank or position. The government of Bangladesh should establish an independent commission to assess RAB’s performance, identify those responsible for serious violations such as extrajudicial killings, including those at the highest level prosecuted. The commission should also develop and direct implementation of an action plan to transform RAB into an agency that operates within the law and with full respect for international human rights norms.[19] The Bangladeshi government should ensure that anyone detained by RAB or police has prompt access to lawyers, medical personnel, and family members.

  Conclusion:

People in Bangladesh are demanding for change. The human rights can not be ignored such a long time. People want their free living with the ample opportunity to exercise their rights. This can come in a rational and systematic way, or a chaotic way. Bangladeshis have a history of rising up against autocrats when excesses of oppression and abuses of fundamental rights have crossed the limits of their tolerance. The authorities of Bangladesh should take the lessons of history as a warning. There are still ample opportunities for change by rational and orderly means.

 Bibliography:

Ackerman, Susan Rose. Corruption and Government: Causes, Consequences  and Reform. Cambridge: Cambridge University Press, 1999.

Ahmed M, ‘Challenges in Implementing Access to Justice Reforms in Bangladesh’ in Asian Development Bank, Challenges in Implementing Access to Justice Reforms, (ADB, 2005)

Almond,  M.  A.,  and  S.  Syfert.  “Beyond  Compliance:  Corruption,  Corporate  Responsibility  and  Ethical  Standards  in  the  New  Global  Economy.”  North Carolina Journal of International Law and Commercial Regulation 22 (1997): 389-447.

Alsop,  R.,  ed.  Power,  Rights  and  Poverty:  Concepts  and  Connections.  World  Bank/DFID, 2004. Alston,  Philip,  and  Mary  Robinson,  eds.  Human  Rights  and  Development:  Towards Mutual Reinforcement. Oxford: Oxford University Press, 2005.

Amnesty International, Bangladesh: The Ahmaddiyya Community – their rights must be  protected, (Amnesty International, 2004). <http://asiapacific.amnesty.org/library/Index/ENGASA130052004?open&of=ENG-BGD>,  accessed 13 April 2008.

Anderson,  Michael.  Access  to  Justice  and  Legal  Process:  Making  Legal  Institutions  Responsive  to  Poor  People  in  LDCs.  IDS  Working  Paper  No. 178, 2003. http://siteresources.worldbank.org/INTPOVERTY/Resources/ WDR/DfiD-Project-Papers/anderson.pdf

Aubut, Julie. The Good Governance Agenda: Who Wins and Who Loses. Some  Empirical Evidence from 2001. London School of Economics, Development  Studies Institute, 2004. www.lse.ac.uk/collections/DESTIN/pdf/WP48.p

 [1] United Nations Compilation of General Comments, p. 123, Para. 5