Are enforcers of law and dispensers of justice beyond accountability?
Rule of law as a principle of governance involves that all persons, institutions and entities, public or private, including the state itself is accountable to laws. Law enforcement agencies are responsible to ensure that violators of the law are apprehended and brought to justice. Among other tasks judiciary is mandated to ascertain if laws have indeed been breached, and if so, punish the perpetrator. In pursuing their respective functions it is imperative that the state agencies act only within the purview of the law. The country's constitution, comprehensive codes of civil and criminal procedure, and a plethora of laws have been framed essentially to ensure that all actors operate and behave within the broad parameters of the law.
Over time, the alienation of the ruling elite of Bangladesh from the masses is manifested in the intolerance of opposition and dissent, and the pursuit of a zero-sum approach in governance. In such a scenario, enforcement of the law and dispensation of justice to an extent at least, become the elite's handy tools. This leads it to rely more and more on the coercive apparatuses of the state and thus begins the process of chipping away of the foundation of this important precept. Granting impunity to errant members of law enforcement agencies on political and other considerations becomes a breeding ground for extrajudicial killing and disappearances, illegal detention, custodial torture and death, extortion, and disproportionate and excessive use of force.
In the recent past the heavy-handed approach of the state agencies has been particularly disconcerting during the civic movements for quota reform or road safety. While no effort was made to bring the perpetrators of violence to account, including the helmeted ones, peaceful protestors or social media activists exercising their constitutional right guaranteeing freedom of expression were picked up, detained, remanded and charged. In the process some were brutalised. This unbalanced enforcement of the law erodes public trust and further compromises professionalism and impartiality of the concerned agencies. For covering the event live and posting statuses on Facebook, award winning photographer Shahidul Alam incurred the state's wrath, forcibly detained on August 5, and was only granted bail after 102 days of incarceration and released after 107 days.
In the same vein with the forthcoming general elections and the realignment of political forces as the otherwise sterile political landscape has been revitalised, the propensity to exercise arbitrary power by the state agencies have become more pronounced. Two individuals, a pioneer in alternative healthcare and freedom fighter Dr Zafarullah Chowdhury, and Barrister Mainul Hossain, became the latest victims. Both were associated, albeit in different degrees, with the process of building a platform of united opposition parties and efforts to limit unchecked and arbitrary power.
It is not the intent of this article to delve into the merits of the charges pressed against these three individuals. Its purpose is to see if those involved in the process of enforcement of the law and dispensation of justice have acted within the remits of the law.
A series of breaches of the law took place in the case of Shahidul Alam. Witnesses recount and allege that around 10 pm Shahidul was forcibly picked up by an organised contingent in a white van; subsequently he was blindfolded and handcuffed. The group vandalised the CCTV camera system and seized the cell phones of the guards of the building in which Shahidul was residing. No warrant of arrest was produced, nor was the victim informed of the charges against him. Under the law, the family was entitled to be informed about his whereabouts within 12 hours but that never happened. Earlier, the local police station refused to entertain the First Information Report when the family went to register his abduction. In court Shahidul, unable to walk unaided and, barefoot, alleged that he was beaten during interrogation, a violation of the Torture and Custodial Death (Prevention) Act, 2013, which this government had enacted, and the relevant Supreme Court directives. No investigation was instituted to ascertain the veracity of this grave charge. The Attorney General's doggedness in opposing the bail petition of an individual who has no prior criminal record, does not have the power to interfere with the judicial process and is no flight risk, is mind boggling. The bias against dissenters in the judicial process becomes stark when a Jubo League activist accused of culpable homicide is given bail within 24 hours, whereas Shahidul had to languish in prison for 107 days.
The involvement of Dr Zafarullah Chowdhury with the Oikyafront initiative has resulted in a series of attacks of retribution on the Gonoshasthaya Kendra or GK (People's Health Centre) from October 15 to 24, 2018. The attacks came after filing of five cases, which the GK claims to have been filed with "malicious intent". According to news reports, the attackers forcibly broke the gate, gate outpost and perimeter wall, occupied tracts of land, fell trees and erected walls. Those assaults were followed by another assault of an armed group of about 200 men on October 26. They vandalised and looted furniture, computers, televisions, air conditioners and many other items. They reportedly also assaulted and threatened women students, and hit and injured Limon, a young LLB student, who had already survived extreme injustice after being shot in the leg by RAB years earlier in a case that had been championed by the NHRC and other human rights defenders. The total loss was estimated by GK at Tk 75,00,000. If the failure of law enforcing agencies in protecting GK property is worrisome, inaction of the police present in the vicinity is alarming.
On October 23, 2018 about 100 members of Rapid Action Battalion (RAB) and police entered the GK premises and conducted a detailed search. In a written statement read out at a press conference, GK authorities levelled serious allegations of irregularities committed during the almost five-hour search. Included among those are: among the items seized were expired culture discs that were already placed in a refrigerator earmarked for "discarded items" and were awaiting standard disposal procedure; tablets and bottles of medicine that were already in the "discarded section" of the room of central store of GK, and some other medicine and injection vials that had not crossed the expiration date.
More disconcerting was the allegation, according to GK's statement, of securing "forced admission" of GK employees under Section 7(2) of the Mobile Court Act and the imposition of on-the-spot fine of Tk 25,00,000. Their plea for paying the fine by cheque (GK financial rules approved by the government do not allow cash transaction) was summarily rejected and after a lot of prodding, RAB agreed to accept the payment of the fine within the first hour of bank operation in the following working day. GK further claims that three of their employees were detained for not complying with the on-the-spot fine order and that no cash receipt was furnished by the authorities after the payment was made. Thus far, there has not been any official rebuttal of the GK claims.
In the matter pertaining to Barrister Mainul Hossain, a number of cases were lodged against him in different parts of the country for "defamation" under both the ordinary Penal Code as well as the new Digital Security Act, after he termed a fellow guest in a TV talk show as "choritroheen" (questioning her character). On October 22, he was arrested from an opposition leader's residence. Hossain secured bail in the case filed by the aggrieved journalist but later, his bail petition on cases filed by other unrelated parties were denied. While the barrister's act is surely inexcusable, and could and should have been followed by an immediate apology as demanded, there is every reason to question the state response in handling his case. Law professor Asif Nazrul pertinently reminds us that under Section 198 of the Criminal Procedure Code it is only the aggrieved party who can register a defamation case. Despite this unambiguous provision persons associated with the ruling party or its affiliate organisations having no locus standi were allowed to file cases, severely compromising the legal maxim "no person should be vexed twice" (Prothom Alo, October 26, 2018). Nazrul points out there is hardly any instance of more than one case filed for heinous cases such as murder, whereas evidence is aplenty, including the ones against the editors of The Daily Star and Prothom Alo, where a number of cases have been entertained for a single minor offence of defamation.
Until recently, in defamation cases, only summons were issued instead of warrants of arrest and judges were generous in granting bail. Decriminalising defamation has been the general trend the world over, whereas Bangladesh appears to be treading a reverse path. Needless to say it is the dissenters who are paying a disproportionate price for this backslide.
As Bangladesh, the people's republic by nomenclature, prepares to celebrate the golden jubilee of its statehood, active citizens may wish to ponder if indeed there has been much progress in attaining the lofty ideals of rule of law, equity and fair justice for all. While the ruling elite, citing a number of economic indicators, claims to have achieved miracle and smartly pitches the choice of "democracy or development", time has come for the people, the owners of the state, to reflect if indeed the state has been respectful in enforcing the law and dispensing justice.
CR Abrar teaches international relations at the University of Dhaka.