Violation of Fundamental Rights and Remedy under the Constitution of Bangladesh & Role of Police
CHAPTER-1
1.1 Introduction:
Equal dignity cannot be ensured to lower caste community unless the community is integrated with mainstream democratic process, which reflects the non-communal and secular spirit of our liberation war. Exploitation by the ruling class over the years has deprived the Dalit community (lower caste) members of every fundamental human right. In the name of establishing religion or achieving some targeted objectives, the ruling class has been exploiting the lower caste community for at least over 3000 years. Exploiting the members of lower caste community has been used as a technique by the ruling class to ensure their own empowerment
For a human being dignity means accepting he/she as a human being at first and then ensuring all his/her rights.
1.2 Importance of this research topic:
The violation of fundamental rights is not new on this earth and has been being practiced from the early history of the human civilization. The awareness among people concerning the fundamental rights enhanced by the extreme violation the fundamental rights during the 2nd World War. But in the developing and under developed countries, people are still less concerned about their fundamental rights though they are the worst sufferers of the violation of these rights.
The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part Vl of the Constitution of 1972. But general people are not conscious enough about these laws.
To eliminate the violation of fundamental rights from the society, we should make the general people aware of these laws. Moreover, probably the most important step to be made is to effectively implement these laws.
1.3. Methodology
The whole research paper has been done in an organized way. First, necessary divisions have been selected. Then, we made every possible effort to collect information required for each section. The methodology followed throughout the research paper has been pointed out bellow:
Planning the whole research paper,
Dividing the research paper into four sections:
Taking advise from honorable course instructor regarding the collection of necessary information,
Interviewing several renown lawyers,
Conducting surveys,
Screening the gathered information,
Selecting the effective information that can be added in the paper,
Updating and modifying the paper for several times.
CHAPTER-2
Fundamental Rights in the Constitution
2.1 Basis of the Fundamental Rights
Fundamental Rights The fundamental rights of the people of Bangladesh have been enshrined in the Constitution of the country. All past laws inconsistent with these rights were made void by the Constitution, and it enjoined upon the State not to make any law inconsistent with these rights. Certain rights may, however, remain suspended under the provisions of articles 141(a), 141(b) and 141(c) during an emergency arising out of a threat to the country’s security or economic life[1].
Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. Modern judiciary is regarded as an excellent product of civilization to put the concept of justice to work in the midst of divergent forces with conflicting class or individual interests. Such conflicts make it difficult to bring about equilibrium in the society for a peaceful and orderly association of citizens for their common good[2]. An independent judiciary and strong democratic institutions are the best guarantee against assaults on the rights of the citizens.
2.2 Fundamental Rights:
The term fundamental rights is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are called fundamental rights. They are fundamental rights in the sense that they are placed in the supreme or fundamental law of the land, which has a supreme sanctity over all other law of the land.
The French declaration of Rights of Man and Citizen 1789, and the American Declaration of Independence 1776, and the Incorporation of a Bill of Rights in the U S constitution 1791 most of the democratic countries with written constitution are including a chapter for Bill of Rights or Fundamental Rights with special sanctity[3].
The Object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they cannot be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them. Justice Jackson pointed out the object of the incorporation of fundamental rights in the US Constitution —-
“The very purpose of Bill of Rights is to withdraw certain subjects from the vicissitude of political controversy; to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts[4].
In Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9, The Supreme Court of Pakistan held that,
“ The very conception of a fundamental right is that it being a right grunted by the constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by the law[5].’
The Pakistan Supreme court in reaffirmed the same view inthe case –State V. Dosso.
In Golak Nath Vs State of Punjab, The Indian Supreme court held that,
‘The declaration of the fundamentals rights of the citizens are inalienable rights of the people the constitution enables an individual to oppose successfully the whole community and the state to claim his right[6].’
Rights and freedoms from the bedrock of democracy. No can function successfully in the absence of some basic freedoms Again, modern democratic government is apart government .The party winning majority in the election from the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights for the people and oppressing the opposition. The aim of having a declaration of fundamental rights in the constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples basic rights according to its whims[7]. When rights and freedoms are placed in the constitution they become the part of 5 the supreme law and the government cannot take them away except by constitution amending process, which is always rigid one. This is why insertion of a bill of rights in a written constitution is considered to be one of the safe guards of democracy.
It is important to mention here that in Britain there is no Bill of rights; no formal declaration of any fundamental rights has ever been made, it neither does nor, of course mean that the rights of the people are less granted in Britain what are fundamental rights under written constitution are all ordinary rights in Britain. There protection of rights and freedoms rests not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law tradition s. though the British parliament , under the doctrine of parliamentary supremacy ,can any time abridge ,modify or abolish any rights of the people , it is the deep rotted democratic traditions and vigilant public opinion which act as a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of law and it is , under the doctrine of rule of law , answerable to the courts for any action which is contrary to the law.
2.3. Fundamental Rights Provisions the Constitution of People’s of Republic Bangladesh
The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part VI of the Constitution of 1972.
Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law, and the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth[8].
Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law[9].
Articles 29 provide that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic irrespective of religion, race, caste, sex or place of birth. Nothing in this article shall prevent the State from making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic.
Article 33 provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for preventive detention[10].
Article 34 guarantees that all forms of forced labor are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall apply to compulsory labor by persons undergoing lawful punishment for a criminal offence, or required by any law for public purposes[11].
Article 35 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law[12]. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
Article 36 provides that subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh[13].
As per Articles 37 and 38 every citizen shall have the right to form associations or unions, to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of morality, public order or public health.
Freedom of thought and conscience is guaranteed in Article 39 of the Constitution. Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence the right of every citizen to freedom of speech and expression, and freedom of the press are guaranteed[14].
Article 40 provides that subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
Article 41 provides that every citizen has the right to profess, practice or propagates any religion, and every religious community has the right to establish, maintain and manage its religious institutions.
Article 42 of the Constitution provides that every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
According to Article 43 every citizen shall have the right to be secured in his home against entry, search and seizure, and to the privacy of his correspondence and other means of communication.
Article 44 guarantees the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution.
Law Conflicting with the Fundamental Rights Provisions of the Bangladesh Constitution:
There has been much discussion in Bangladesh on legislation that may be deemed as being inconsistent with the provisions relating to fundamental rights, as set out in the Constitution. There has also been considerable discussion in Bangladesh about the absence of implementation of the fundamental rights granted under the Constitution. The problem is further compounded by the fact that the fundamental rights provisions of the Constitution have been afflicted by their suspension under military governments, and in one case, by the declaration of emergency[15].
Again, the Constitution has itself been of an unfolding nature in that several of the fundamental rights provisions are being continuously interpreted by the Courts, it also a feature that a particular legislation affecting fundamental rights was not challenged. In a series of decisions passed by the Supreme Court, laws, which were challenged in court, have been struck down. But in such instance the fact remains that the matter had to be presented before Court. It has also been a feature that several laws have not been taken to Court to date.
Any attempt to set out of a comprehensive list of laws, which would be conflictive of the fundamental rights provisions of the Constitution, would perhaps be of no evil, since there is both existing legislation and a continuous enactment of laws. Further, an aggrieved person may still not appear before the Court to assert their rights whereas at the same time a challenge in Court may take considerable time for a judicial declaration on the law[16].
It is against the background that the issues of laws currently conflictive with the fundamental rights provisions of the Constitution have been approached. In the research undertaken there has been an attempt to identify broad areas of conflict between the existing legislation and the fundamental rights provisions. However, before presenting our findings, an explanation is of the fundamental rights provisions themselves and the methodology used to arrive at our findings.
2.4. Conflicting Laws:
Most of the laws, which are conflictive with the fundamental, rights Provisions of the Constitution, violate the basis principles of Article 27 and 31. Some of the laws also come into conflict with other fundamental rights as well for the example, the right to personal liberty, and the right to property guaranteed by the Constitution.
My research reveals that the following laws are conflictive with one or more of the Fundamental Rights Provisions of the Constitution:
01. The vested and Non-Resident Property (Administration) Act 1974
02. The Special Powers Act 1974
03. Section 54 of the Code of Criminal Procedure 1898
04. The Bangladesh Citizenship (Temporary Provisions) Order 1972
05. The Indemnity Ordinance 1975
06. Order ??V, Rule 1(3) of the Code of Civil Procedure 1908
07. Various retrospectives legislation, including the Fifth and Seventh Amendments to the Constitution.
08. The Official Secrets Act 1923
09. The Secretarial Instructions, 1976 ad the Rules of Business, 1996
10. Certain Provisions of the income Tax Ordinance 1984
Under Section 8 of the Vested and Non Resident Property (Administration) Act 1974, a committee, may charge of any non-resident property within its jurisdiction. Section 9 of the Act gives the committee all rights and liabilities of the non-resident concerned in respect of the property[17]. Thus the right of a non resident who is not necessarily a foreign national, as defined in Section 2(d) is not treated equally with respect to his property and doesn’t receive equal protection of law. A non-resident whose property has been vested in a committee needs provisions permission of the committee to exercise his right to dispose of the property under Section 10. Thus his right to property guaranteed under Article 42 of the Constitution is curtailed.
Section 3 of the Special Powers Act provides that Government may, with a view to preventing a person from doing any prejudicial act make an order directing that such a person be detained[18]. Thus a person may detained before he commits any unlawful act just on the basis of suspicion that he might commit some prejudicial act and his right to personal liberty guaranteed by the Article 32 of the Constitution is curtailed.
Section 54 of the Code of Criminal Procedure provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person against whom a reasonable suspicion exists of his having been concerned in any cognizable offence. Therefore under section 54 there is reasonable ground for arresting a person without a warrant. Thus a person liberty may be curtailed by his arrest if reasonable suspicion exists as to his having been concerned in a cognizable offence[19].
Section 2(1) of the Bangladesh Citizenship (Temporary Provisions) Order 1972 states-
“Every person shall be deemed to be a citizen of Bangladesh – who or whose father or grandfather was born in the territories, now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March 1971, and continuous resident.[20]” The above provision violates the provision of equality before the law and is discriminatory against women.
Similarly Order ??V, Rule 1(3) of the Code of Civil Procedure does not ensure prohibition of discrimination on grounds of sex. The said sub rule provides On the application of any defendant in a suit for the payment of money, in which the plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such Plaintiff does not posses any sufficient immovable property within Bangladesh.
The above provision applies only to a female Plaintiff who does not possess sufficient immovable property within Bangladesh and is as such discriminatory.
The official Secrets Act 1923 in its section 5 make the communication of any official information by a Government Officer an offence punishable under the said Section and thereby prevents citizen from having access to official information[21]. Thus, equality before the law is not ensured by the Official Secrets Act 1923.
2.5. Absence of Laws:
Certain fundamental rights provisions of the Constitution suffer from non-implementation, the absence of laws providing for implementation of these provisions results in violation of the fundamental rights. Article 28 of the Constitution provide for non-discrimination only on grounds of religion, race, castes or place of birth. This Article also provides for making special provisions in favor of women or children or for the advancement of any backward section of citizens. But absence of laws ensuring the implementation of the above provisions results in violation of fundamental rights of women, children, religious or other minorities.
2.6. Effect Legislation violates of the Constitution:
Certain legislation has been held to be violating of the fundamental rights provisions of the Constitution. The Government Owned Newspaper (Management) Act of 1975, so far as it relates to item No. 1 (Al-Helal printing and publishing Co. Ltd) and item Np. 4 (associated printer Ltd) in schedule to the said Act, was declared to have been enacted and made in violation of the provisions of Articles 27 and 39(2)(b) of the Constitution. Accordingly these two items in the schedule of the Act are struck down.
Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190
—–In the above case it was held that the Government owned Newspaper (Management) Ordinance 1975 was violate of Article 39(2)(b) of the Constitution. The dissolution, taking over and vesting of the assets of the two companies of the petitioners, purported to have been done under Section 6 of the said Act, and specifying them in the schedule of the enactments therefore so far as they relate to dissolution of the petitioner companies and the vesting of their assets etc as had been provided under Section 6 of the aforementioned Ordinance and Act are liable to be struck down[22].
The Government (Servants Seniority of Freedom Fighters) Rules 1979 divided persons in the service of the Republic between freedom fighters and non-freedom fighters and granted two years antedated national seniority by legal fiction to freedom fighters. These Rule were held to be violate of the equality clauses of Articles 27 and 29 of the Constitution
Zainal Abedin Vs Government of Bangladesh 94 DLR 77
Conflict with rights may arise in other ways when a person becomes a licensor and license at the same time Conflict of interest may arise between the licensor and the licensee. Bangladesh Telegraph and Telephone Board (BTTB) and Rajdhani Unnayan Kartipakhya (RAJUK) grant license to other bodies to do business. At the same time they do business of their own. Thus the status of RAJUK or BTTB may create rights conflictive with other co-licensees. Such conflict may arise in cases where the government itself is the licensor and a para-statal is a licensee often the Board of Directors of such para-statal consists of people representing the government[23].
The laws, which would be, violate of the fundamental rights provisions of the Constitution may be categorized. Some laws are directly conflictive with fundamental rights for example, the Special Powers Act 1974. The vested and Non-Resident Property (Administration) Act 1974 some Martial laws.
Certain laws may derogate from the fundamental rights but they are not necessarily in conflict with the fundamental rights because they are protected by the Constitution itself – for example, personal laws.
There may be certain laws, which are not conflictive with the Fundamental Rights Provisions of the Constitution, but their non-compliance may cause a conflict with the fundamental rights guaranteed under the Constitution –for example the Secretarial Manual and Secretarial Procedures.
The absence of laws may create conflict with certain Fundamental Rights Provisions of the Constitution. Certain laws are not necessarily directly conflictive with the Fundamental Rights Provisions but their retrospective effect validated laws conflictive with the Fundamental Rights Provisions – for example the Constitution (5th Amendment) Act 1979 and the Constitution (7th Amendment) Act 1986. Both these Acts validated all actions taken under Martial Laws Proclamations.
2.7. Writ Petition under the Constitution of Bangladesh
If fundamental rights is violate the aggrieved party may take remedy by the Constitution of Bangladesh under Article 102.
According to Article 102 of the Constitution “The High Court Division on the application of any person aggrieved, may give such directions or order to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part 3 of this Constitution”.
The Supreme Court of Bangladesh can exercise this jurisdiction under Article 26 and 102 of the Constitution Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority violates any of fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution and it should be guaranteed as of an independent fundamental rights. This right is guaranteed in Article 44 and the High court division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh Constitution[24].
CHAPTER-3
VIOLATION OF FUNDAMENTAL RIGHTS IN BANGLADESH PERSPECTIVES
Fundamental Rights violated in all of the third world countries. All third world countries Constitution ensured this right but they cannot exercise it. In the view of our country fundamental rights violation is highly, today in the view of our country our executive body, our legislative body, our judicial body violates the fundamental rights.
3.1. Violation of Fundamental Rights by Government
Once again the government has promulgated an uncivilized ordinance that defies all norms of humanity and violates fundamental human rights. During the 87 days of the army operation that began on 16th of October 2002, a black chapter has been added in the history of Bangladesh. It may be mentioned that under direct orders from the Prime Minister. They Army operation known as ‘Operation Clean Heart’ has resulted in serious violation of human rights and political persecution.
The promulgation of this black ordinance denies the right to justice to 50 victims of army custodial deaths and to others who became handicapped and lame due to inhuman physical torture[25]. This discriminatory and unlawful ordinance gives immunity to the members of the joint forces and the administration for their action during the ‘Operation Clean Heart’ between October 16, 2002 and January, 2003. With this the door of justice has been shut for the people depriving them their right to equal justice and security[26]. No court of Bangladesh can try the forces for their acts.
It can be firmly said that the government is solely responsible for their rapid deterioration of law and order situation, wide spread violence, mismanaged economy and frustrating socio-political condition. Ever since the government usurped power through the rigged election of October 1, 2002, a reign of terror has been unleashed by terrorists belonging to BNP-Jamaat alliance[27]. The leaders, activists and supporters of Awami League and the minority community became the victims of the worst ever repression and political vendetta. Political persecution and the degree of atrocities intensified with the release of 45 thousand identified criminals who are the cadres of the ruling party.
In the last one year, it is not only the political activists who suffered, the common people having nothing to do with politics suffered gravely in the hands of the cadres of the ruling party alike. Terrorists having blessing of the government have taken a toll of life of 24 thousand innocent people. Women, young and old, were subject to gang rape. Mothers and daughters were assaulted and violated irrespective of their age throughout the breadth and length of Bangladesh. Widespread violence, extortion, forceful occupation, vandalism, nepotism became rampant throughout the country.
Failure and mismanagement in all spheres of life be it financial, commerce and industry, educational institutions have shattered the hopes of common people. The complete break down of law and order has created a state of chaos and anarchy. In the backdrop of the massive failure in all spheres of government had its civil administration called in the army to run the country[28]. Though, the 87 day-long anti-crime drive brought some relief to the people, the case of 50 deaths in army custody and the physical and mental torture of people in custody created a frightening situation in the country[29]. The ruling alliance used the army operation to oppress, harass and arrest leaders and workers of main opposition Awami League and other political parties.
The violation of fundamental human rights and cases of political persecution has led to widespread condemnation both at home and abroad. The bright image of Bangladesh has been tarnished in the international arena as a result of this. The role of armed forces that are meant to protect the country from external aggression and guarding its sovereignty has been made controversial. Though some respite from the terrorists was observed yet the hardcore criminals enjoying government blessing evaded arrests. Under political pressure the administration released criminals possessing illegal arms mysteriously, on the other hand no members of the fundamentalist party Jamaat was arrested during the army operation.
Though one would tend to believe that the army was withdrawn in the face of strong criticism of violation of human rights, in reality the sudden withdrawal of army was done to fulfill narrow partisan needs. The ulterior routine of this withdrawal is to capture the local government institutions during the ensuring UP polls. All previous elections held under this regime such as by-elections, city corporation elections were anything but fraudulent. This regime wants the local government election results in their favor this time as well. Hence the pullout of army is seen as a tactical ploy. Strangely enough the government is playing hide and seeks with respect to matters relating to army operation. No discussion was allowed on army deployments in the parliament despite strong demands. There is no explanation on the part of the government as to the legal basis for army deployment.
On its first anniversary on October 10, 2002 the Prime Minister claimed improvement in law and order situation. What happened within the next 6 days that the army had to be called in on the midnight of 16th October, 2002? The government neither cares for the voters or for accountability. It does not respect neither has faith in the constitution and in parliamentary democracy. This explains why the present regime promulgated speedy justice trial by passing the parliament and the current black Indemnity Ordinance.
Legal and constitutional experts believe that fundamental human right has been seriously violated with the promulgation of the ordinance. Article 27 of the constitution clearly spells out that, “Everyone is equal in the eye of the law and every citizen has the right to seek legal shelter”. No government can snatch away this fundamental right[30]. Prime Minister Khaleda Zia violated the constitution by deploying the army, which was her unanimous decision.
The ordinance was promulgated to indemnify her from the offense she made by violating the constitution and basic human rights. It is simply unconceivable that at the dawn of 21st century citizens can no longer take legal shelter of deaths that occurred in custody[31]. Once again the identify of Bangladesh as a nation of democratic and law abiding citizens has been seriously jeopardized through the promulgation of such a black and infamous ordinance.
3.1.1 Operation Clean Heart in Bangladesh:
The Article 11 of the Constitution of the People’s Republic of Bangladesh states that;
“The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.”
After the presumed failure of civil administration, in the name of restoring law and order in the country, the government of Bangladesh has launched a military lead operation commonly refereed to as “Operation Clean Heart”. Thus far, the operation remained unaccountable and is based upon the vague institutional boundaries among the civil administration and military as well as without clear internal guidelines. There had been numerous reports of serious human rights violations such as extra judicial killings, deaths in custody, torture and arbitrary action by the military during this operation. Newspaper report of 26 deaths in custody and hundreds of people arrested arbitrarily by the authorities[32].
A recent incident brought to AHRC s attention is of the arrest, harassment and intimidation of journalists in Bangladesh by the military and police. The arrests came after an intimidation campaign by state security police against the journalists and their two assistants. Directors of the Bangladesh Centre for Development, Journalism and Communication (BCDJC) have been also under surveillance and threatened for helping the foreign journalists[33].
In the current scenario, major reason of human rights violation is the involvement of non-civilian institutions in civil administration in a democratically governed country. In reality, the situation has worsened by the fact that civil administration is in the hard work of legitimizing the crimes such as extra judicial killings, deaths in custody resulted by torture and human rights violations committed during the Operation. AHRC fears that this action will have serious consequences on the democratic institutions and poses a sever threat to the democracy in Bangladesh. At the same time, the situation seems to be indicating towards the use of state institutions in eliminating political rivalry.
Countries with the worst human rights record have some basic indicators that deny individuals their basic legal rights. For example establishment of military courts to deal with criminal matters; lack of understanding among political leadership of the country in realizing the difference in Civil Disorder and National Emergency; military and police having overlap of activities, and many more of this nature.
AHRC is deeply concerned about the current operation and in the light of rights guaranteed by the constitution of the republic; AHRC voices the following concerns of the public of Bangladesh and of the international community[34].
01. Applicable law requires that in administration of justice Police should deal with criminal offenses. What is the level of police involvement and what are the legal guidelines to deal with this situation?
02. If such operation has been launched under the presumption on the failure of civil administration, has the government made enough efforts in reforming the police?
03. Has the government exhausted all means to improve the situation?
04. Under which applicable legal framework Military has presumed such a role in Law and Order and administration of justice?
05. If there is some legitimacy in Military’s mandate in administration of justice, then what exactly is the role of Military and police in Bangladesh?
06. Simultaneously, the people of Bangladesh and the international community are interested in knowing the future planning of the government in the administration of justice.
07. Which internal procedure, guidelines or directions have been followed by the military during the Operation Clean Heart?
08. Who has determined the criminality of people arrested, tortured and killed during the course of so called law and order restoration?
09. The military arrests and the current practices imply that the state institutions have gone through the processes of proving the criminality of listed individuals. Could the state make such information available to the public?
AHRC would appreciate if the relevant authorities take necessary measure to provide the public and the international community with the required information. In the absence of any answer, this operation is not only in violation of the applicable law of the country but is a serious breach of International Human Rights Law and international standards of the administration of justice.
As a regional Human Rights Network, AHRC appeals to the Bangladesh Judiciary and the international bodies to intervene and peruse an independent investigation into gross human rights violation committed by the state actors in Bangladesh.
01. Death of an old man on November 2nd at the Tangail General Hospital is among the many others reported and UN reported cases[35].
02. Arrest of Jatiya Party Leaders in Nilphamari District.
03. The national newspapers use the term-listed terrorists.
3.1.2 By Rapid Action Battalion of Bangladesh
Limon has lost his leg by the bullet of RAB
Rapid Action Battalion elite force of Bangladesh violates the Fundamental Rights in very highly. RAB has been exercising their activities beyond the Constitution. RAB has been violating the following Articles of Constitution.
Article 33 provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law.
Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 35 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
3.1.3. Harassment of Leaders of the Indigenous People:
Amnesty International is concerned about reports that four leaders of Bangladesh’s indigenous populations three of whom are from the Chittagong Hill Tracts (CHT) – have become the targets of official harassment and intimidation for demanding the fulfillment of the indigenous peoples’ rights. According to newspaper reports, Mangal Kumar Chakma, Mrinal Kanti Tripura, Ina Hume and Albert Mankin are to appear before the parliamentary Standing Committee on the CHT Affairs Ministry in Dhaka for comments they made at the United Nation’s Permanent Forum on Indigenous Issues in New York May, 2005[36].
A summons to this effect is reportedly being prepared by the standing committee. It is believed to have been prompted by allegations sent to the committee through the Bangladeshi diplomatic mission in the United States alleging that the statements of the indigenous leaders contained anti-state references. The committee has said that if the indigenous leaders did not provide satisfactory answers, legal action would be taken against them. Amnesty International has studied the statements of the indigenous leaders to the above-mentioned UN forum and has found nothing outside the remit of their fundamental rights to express their political views freely and peacefully. The issues they have raised are fully compatible with the purpose of the UN forum and with the provisions of the CHT peace accords, which were signed in December 1997 between the Government of Bangladesh and representatives of the CHT tribal people[37]. Their demands for the implementation of the provisions of the peace accords amounts to nothing more than a legitimate criticism of the government’s failure to fully abide by its obligations within the ambit of the Peace Accords.
The issues raised by the indigenous leaders and the manner in which they have been voiced at this UN forum are fully in line with the provisions of the International Covenant on Civil and Political Rights (ICCPR) to which the Government of Bangladesh is a party.
In particular, they fall within the ambit of Article 2 of ICCPR which states: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice[38].
The standing committees’ plan to summon the indigenous leaders may amount to a politically motivated measure aimed at suppressing the peaceful expression of their critical views.
The tribal people of the Chittagong Hill Tracts have for long been the targets of massacres, arbitrary detention, torture and extrajudicial executions during the years of armed conflict (mid-1970s to 1997). The signing of the peace accord between the Government of Bangladesh and tribal representatives in December 1997 appeared to provide assurances that their civil and political rights as well as their economic, social and cultural rights would be respected. However, seven-and-a-half years after the signing of the accord, the Government of Bangladesh has failed to implement fully some of the most crucial provisions of the accord[39]. These include the rehabilitation of all returned refugees and internally displaced families, settlement of land confiscated from the tribal people during the conflict, withdrawal of non-permanent army camps from the Chittagong Hill Tracts and transfer of power within the provisions of the peace accord to the local CHT administration.
3.1.4. Effect of Martial Laws:
By a Martial law Proclamation of 20 August 1975, the Constitution continued to remain in force but it was made subject to the Martial Law Proclamation and the Martial Law Regulations and Orders or other Orders made by President Moshtaque. All Courts including the Supreme Court ware denied any power to call in question or declare void or illegal Martial Laws the Second Proclamation Order No 3 of 1976 omitted the provision to Article 38 which provides for freedom of the said association. The provision was as follows.
“Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of any commercial or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.[40]”
4.Violation of the Ahmadya Community’s Rights
Members of the “Ahmadiyya Muslim Jamaat”, a religious community which considers itself a sect of Islam, has been the target of a campaign of hate speech organized by a number of Islamist groups in the country in recent months.
4.1Oppression upon Ahmadiyya Community
These groups have mobilized crowds to chant anti-Ahmadiyya slogans, have sought confiscation of Ahmadi mosques, and have demanded that the government declare the sect non-Muslim. Members of the Ahmadiyya community in Bangladesh, about 100,000 in number, have been living in fear of attack, looting and killing since around October 2003 when the Anti-Ahmadi agitations began[41].
The agitators have been involved in “excommunication” and illegal house arrest of Ahmadis, the killing of an Ahmadi Imam (preacher), beating of Ahmadis, and marches to occupy Ahmadi mosques.
While the Government of Bangladesh has acted to prevent the crowds from entering Ahmadi mosques, it has taken no action against the perpetrators of the hate campaign. Fundamental rights of the Ahmadis have been further violated by a government ban on their publications.
Amnesty International is urging the Government of Bangladesh to ensure the safety and security of the Ahmadiyya community; uphold its members’ right to practice their religion without fear of persecution; lift the ban on their publications; and ensure that those responsible for attacks against Ahmadis are brought to justice[42].
4.2 “Excommunication” and illegal house arrest of Ahmadi villagers
On 21 October 2003, an estimated 100 people including women and children belonging to 17 Ahmadi families in the village of Uttar Bhabanipur in Kushtia District were declared “excommunicated” by a local Islamist leader opposed to the Ahmadis. Under his edict, Ahmadis were forbidden from buying or selling goods in their village, from harvesting their crop, from talking to each other in the presence of other villagers, and from sending their children to school[43]. They were effectively held under illegal house arrest with anti-Ahmadi Islamist activists enforcing the edict. Their plight ended after about 25 days when the Home Ministry intervened following intense lobbying of the ministry by leaders of the Ahmadiyya community. However, no one has been brought to justice for these illegal acts.
4.3 Killing of an Ahmadi preacher
Shah Alam, the Imam of a local Ahmadi mosque in the village of Raghanathpur Bak in Jessore District was beaten to death on 31 October 2003[44]. He was killed in front of his family by a crowd of some 90 men led by a local Islamist leader. They attacked him because he did not yield to their demand to recant his Ahmadiyya faith. During this attack, two other members of the community were severely beaten and injured. A First Information Report – FIR, which is required for a criminal investigation to begin – was accepted by the local police on the same day, but reportedly only after the Intervention from the Home Ministry. In the FIR, Shah Alam’s family has named 16 people as being directly involved in the beating and murder of Shah Alam. No one, however, has been arrested even though there is no obvious doubt about the identity of the assailants. No charges have been brought against anyone for this murder. At the same time, the brother of one of the assailants reportedly filed a case on 16 November 2003 against members of the Ahmadiyya community in the village, accusing them of taking non-Ahmadis hostage even though there has been no evidence of any such activity by the Ahmadis[45].
4.4 Street agitations against Ahmadis
The largest of the anti-Ahmadiyya agitations in the past six months took place on 21 November 2003. Moulana Moahmud Hossain Mumtazi, the leader of an Islamist group called Khatme Nabuwat, reportedly led thousands of young men on a march attempting to occupy an Ahmadi mosque in Tejgaon area of Dhaka. This event was followed by another big march on 5 December on the same mosque. During these events, the marchers were armed with sticks and bricks and were shouting hate slogans against Ahmadis. The group carried out similar anti-Ahmadiyya agitations every Friday of the week for several months, persisting in their demands for the Ahmadis to be declared non-Muslim.
The police took action to prevent the crowds from entering Ahmadi mosques. However, it took no action against the agitators who chanted anti-Ahmadi hate slogans, threatened to attack Ahmadis, and created an atmosphere of fear and intimidation for them.
4.5 The banning of Ahmadiyya publications
In a press release issued on 8 January 2004, the government announced that the publications of the Ahmadiyya community, including the Koran and any translations or interpretations of it, would be banned from the following day. No further information was made available and no government communication explaining this announcement was sent to members of the Ahmadiyya community[46]. The government press release said the ban had been imposed “in view of objectionable materials in such publications that hurt or might hurt the sentiments of the majority Muslim population”.
The ban highlighted the possibility that the government had yielded to pressure from anti-Ahmadi Islamist groups. According to reports in Bangladeshi newspapers, it had been imposed at the instigation of Islami Oikya Jote, a political party and junior partner in the coalition government.
The ban openly defies international human rights safeguards guaranteeing freedom of religion. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a state party state:
“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching[47].”
In its General Comment on this article,, the Human Rights Committee (HRC) specifies that the freedom to manifest religion or belief —“Extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest.” The HRC further states that “the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
Similarly, according to the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the right to freedom of thought, conscience, religion or belief includes the freedom to write issue and disseminate relevant publications in these areas.”
The right to freedom of expression is another fundamental human right and is provided for in Article 19 of the ICCPR:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
c), or of public health or morals.”
There appears no basis for imposing the ban even under the Bangladeshi law. Fundamental rights including freedom of religion are guaranteed under Part 3 of the Constitution of Bangladesh. This is significant because the Constitution prohibits any laws inconsistent with the provisions of Part 3. Article 41.1 in Part 3 of the Constitution provides that:
“(a) Every citizen has the right to profess, practice or propagate any religion;
(b) Every religious community or denomination has the right to establish, maintain and manage its religious institutions;
In Part 3, the Constitution also prohibits discrimination on grounds of religion:
“28. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”.
The Constitution similarly guarantees freedom of expression. Article 39 of the Constitution provides that:
“(1) Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-
(a) The right of every citizen of freedom of speech and expression; and
(b) Freedom of the press,
Are guaranteed”
While provisions for both these rights are subject to restrictions, the government’s explanation for the ban, namely that the publications “hurt or might hurt the sentiments of the majority Muslim population of Bangladesh,” cannot be accepted as reasonable grounds for restricting these rights. Members of religious majorities may often wish minorities to join the dominant religion, and feel hurt if they do not. This may be so especially in the case of sects of the same religion or separate religions relying on the same sources. However, accepting such wishes or feelings by majorities as legitimate reasons to limit minorities’ religious freedom would legitimize widespread oppression of minorities. In its General Comment on Article 18, the HRC stated that it “Views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”
The ban has therefore been imposed in defiance of safeguards for freedom of religion and expression in both the Constitution of Bangladesh and intentional human rights law. It is also openly discriminatory: it has prevented members of the community from issuing publications or press releases to defend themselves in the face of hate speeches and accusations leveled against them by anti-Ahmadi Islamist groups.
4.6 The latest development regarding the Bangladesh
In early March 2004, it came to the attention of members of the Ahmadiyya community that the government had issued an official circular to central, divisional and district officers naming some 20 Ahmadi publications to be banned. It was indicated in the circular that it had been sent to the government official press for publication in the official gazette. As of mid-April 2004, it had not been published in the official gazette but instruction has reportedly been sent to the police to remove these Ahmadi publications from circulation. The police are not known to have implemented these instructions save in a few instances[48].
Amnesty International has obtained an unofficial translation of this circular. It names a number of Ahmadi publications including the Koran and its commentary, stating that they have “defamed Islam, social and political harmony”, and that their “publication, distribution, sale and preservation” are banned.
This action by the government has further aggravated the plight of the Ahmadiyya community. There are reports that local Islamist leaders in rural areas have been putting pressure on the local administration to allow them to enter Ahmadi homes and remove the banned publications[49].
4.7. Amnesty international’s recommendations
Amnesty International urges the Government of Bangladesh to rescind immediately the ban imposed on Ahmadi publications[50]. The organisation further calls upon the government to declare publicly:
i. Its full support for the right to freedom of religion in the country;
ii. That it would not yield to the demands of the Islamist groups which are discriminatory in natu