PM will be wise to withdraw the ordinance

A place in the Guinness Book of World Records is now virtually assured for us. Once again Bangladesh is about to become (we speak in the future tense because it is still not a law but only an ordinance, and we hope that the prime minister will withdraw it) perhaps the only country in the present-day world to have a law to protect killing, torture, jailing of thousands and random beating and public humiliation of many. A great boost to Bangladesh's image abroad is all but assured now. We obviously should not ask ourselves what the world will think when it sees that we indemnify crimes which the rest of the world tries so hard to punish. (Just a side story. The outgoing President of South Korea Kim Dae-jung on November 5 accepted the resignation of the justice minister and the prosecutor general, comparable to our attorney general, for the death in custody of a murder suspect. "How can such a thing happen in a democratic society?" he asked angrily. "As the President I feel wretched that the prosecutors, who should defend the law and human rights, tortured a suspect to death." - Source: Joong Ang Daily, November 5, 2002.)

Obviously, our prime minister had no such compunctions, nor did our law minister, home minister or attorney general think of resigning for the custodial deaths and torture happening under their very nose. The 'stupid' Koreans are just too sentimental and obviously don't know how to promote international image for their government and the country.

Before we discuss the issue at hand, we must say a few words about the president himself. A well respected academician that he is, couldn't he have sent it back (as the constitution permits him to and as was done by President Shahabuddin Ahmad in the case of the Public Safety Act), considering the ordinance's questionable nature? If that is too much to expect, he could have at least counselled rethinking.

Alternatively, he could have suggested why pass it in the form of an ordinance when the parliament was to come into session within two weeks anyway. (The link between the timing of the withdrawal of the joint forces and the chief election commissioner's request for the presence of the army for the Union Parishad elections is not lost on discerning observers). Instead, he signed it just as fast as it was sent to him. Doesn't our scholar president have any idea of the moral authority, and of the 'moral duty' of the position he holds?

We took a while in writing this commentary because we decided to discuss with a cross-section of our readers before penning our views. We talked to jurists, human rights activists and several retired senior army personnel, not to mention eminent civil society members. Everybody seems to understand why the Joint Drive Indemnity Ordinance 2003 was imposed but nobody accepted it as the correct course of action.

The assumed justification was that the armed forces wanted it, the logic being since the army was called to do the 'dirty' work of the civilian force, therefore it must be given special 'protection'. 'We did your bidding, therefore you have to do ours' was the sort of quid pro quo the armed forces were supposed to have asked for.

However, there were others who felt that the 'army-wanted-it' argument was being used as an excuse. The real demand is from the government itself which fears future prosecution. Some cabinet members and ruling party high-ups have pointed out that the government itself could be held responsible for the custodial deaths and other violations of the law as it was the prime minister who had ordered the operation in the first place. So, though the deaths may have been caused by the joint forces the onus lies with the government, especially as it was done in the 'aid of civil' authorities.

Who wanted the indemnity ordinance is only relevant up to a point. What is far more important is what the indemnity ordinance does to our democracy, how it impacts on people's future respect for law, and what will be the image of our country as a result.

It is also important to understand what the passing of the ordinance reveals about the mindset of the government as to how seriously it takes the constitution and the concept of the rule of law. Finally, what does the indemnity ordinance do to the image of our armed forces?

In a democracy can an elected government, oath-bound to uphold the constitution, govern by indemnifying 43 deaths in custody, widespread torture, random physical abuse and jailing of nearly 11,000 people without warrant or specific charges? Let us not have any illusion that if we pass such a law we can still be considered a functional democracy. If some people die and nobody is answerable, if people cannot seek justice for harm caused to them, if each citizen cannot be treated as equal before the law and if deaths, torture and illegal arrests get protection of the law and if the ruling party can use its brute majority in the parliament to pass any law it wants, regardless of the fundamental rights guaranteed in the constitution, then we become nothing more than a mockery of a state under law. Our freedom, rights and our democracy cease to have meaning.

Once the indemnity law is passed in the parliament, we cannot expect our own people to have any faith in the "law of the land" anymore. Why? Simply because, people will have seen that our laws can be changed anytime to suit the political exigencies of the day.

There is a 'sacred covenant' between each citizen and the state. That 'sacred covenant' is the fundamental rights enshrined in our constitution. If those fundamental rights are taken away then the framework of law, which is the bulwark of democracy, within which we live today will have no meaning because it can be taken away tomorrow. If law can be changed to protect murder, illegal deaths and all sorts of crimes then what 'moral value' of law remains? How can one have faith in the future if universally acknowledged "wrongs" are suddenly made "right" by a stroke of a pen?

We are belabouring this point of "law" simply because some of us, especially if we are in power, often tend to underestimate its importance. Yes, we have trivialised our "laws" in the past. That is precisely why there is so much of law breaking in our society today. The constant side-stepping, bending and breaking of established laws for partisan reasons by all our past governments have wrought havoc to every institution. This has led to a collapse of governance in most areas and unbridled corruption in some of the key institutions of our state. Every aspect of criminalisation today, can be traced to wilful trivialisation of laws yesterday.

This brings us to the question of the mindset of the government regarding the most fundamental aspect of governance - accountability under law. A government does many things - some good and some bad. But it never consciously does "illegal" things. That is a fundamental characteristic of any 'legal' government. (Military dictators obviously do many things illegal, and that is why we have fought so hard to restore democracy.) Because if a government starts doing illegal things then where and how will it end? (That is why "Watergate" was so important and Nixon had to resign.)

The indemnity ordinance is the biggest proof - if proof is still necessary - that the Operation Clean Heart contained many actions that were violations of our laws. It also proves that whatever was said as explanations of the custodial deaths were deliberate lies. So the government today stands accused, in addition to having violated established laws, of 'consciously and continuously lying to the people' as regards what were said through the principal information officer (PIO) about the custodial deaths. The question therefore arises that if the government can lie once, it can lie again; if it can lie yesterday, it can lie tomorrow. By its very deed the government has brought a climate of suspicion to bear over all its intentions and actions. (Like, why it is refusing to grant the CEC his wish for army deployment for the UP elections.)

From the very outset, several newspapers, including ours, had continuously urged the government to think carefully about the legal aspects of the Operation Clean Heart. We made continuous pleas to make public the PM's executive order that had launched the operation. If it were done, the flaws, if any, in that order would have become public and, through subsequent amendments, the needs for a post-facto indemnity law could have been averted. The callousness of the government is also proven by the fact that nothing was done to stop the custodial deaths as they continued to occur every other day over a period of nearly three months. If 44 people died in a single incident, one could have argued lack of preparedness. But, no. The deaths occurred over several weeks and following numerous warnings in the press. Was anything done as the deaths rose to 5, 10, 15, 20 … except telling lies to the public? On the contrary, the unspoken message was that the media was doing "too much" and that they were "against the armed forces" or they were "siding" with the criminals or were part of a "conspiracy" to malign the government. Never was any attention paid to correct the wrongs of the Operation Clean Heart. If the government had listened to the free media and not ignored it like it did, we would have saved ourselves this predicament.

Finally, we think the indemnity ordinance is a big insult to our armed forces and will hang over them like a dark cloud, denting their reputation that they have so assiduously gained through their peacekeeping operations in the 'hotspots' of the world. The central question here is of army discipline. Have they carried out their task according to army law or have they violated them? If the former, then why is there a need for indemnity? If NOT, then how can the army high command overlook it without risking similar indiscipline in the future? The army, for its own sake, cannot overlook what happened during the Operation Clean Heart. How can they ever hold their heads high in front of the public if they need to be indemnified for their behaviour to their own people?

On the contrary, there are also genuine questions about how some of the 43 people really died. Serious questions about the role of the police have arisen since those events have occurred. The possibility that some of these deaths happened in police custody as claimed by the army needs to be investigated. The indemnity ordinance will focus suspicion only on the armed forces, which may not be a proper reflection of truth.

Then again, can such a 'law' really be expected to protect anybody? This 'law' is only as good as the next parliamentary majority. And injustice has a way of surviving for years and finally catching up with those who perpetrate it. In the meantime, the armed forces will suffer a stigma. We, therefore, suggest that the armed forces, for their own sake, should inform the government that they don't want to "hide" under the blanket of this ignominious law and that they want to come "clean" in front of the people, whose tax money sustains them, through a process court martial.

We urge the prime minister to not to place this ordinance before the parliament and thereby not tarnish Bangladesh's best face - democracy, and save the nation, her own government and the armed forces from living in ignominy.