Column by Mahfuz Anam: Why is individual freedom such a plaything in our legal system?
We are delighted that Jhumon Das finally walked out of prison on Tuesday, after being incarcerated for nearly seven months for a Facebook post in which he criticised Hefazat-e-Islam leader Mamunul Haque. Ironically, Mamunul is himself now in detention and has nearly 27 cases against him, including those for instigating violence, terrorism, torching vehicles, vandalising shops, etc. So why was a citizen of Bangladesh who criticised a person, against whom the state has lodged more than two dozen cases, sent to jail in the first place, and why would his bail take six months to materialise—and that, too, necessitating his coming to the High Court for it?
Here is a brief account of events that led to Jhumon's months in jail. On March 15, Hefazat organised a rally in Derai upazila of Sunamganj. The following day, Jhumon posted a status on Facebook criticising the Hefazat leader, whose supporters later demanded his arrest, threatening to attack his village—inhabited by a Hindu community— otherwise. The local UP chairman obliged the protesters and handed Jhumon over to the police.
Still, Jhumon's village was attacked on March 17 and several houses were looted and four temples damaged. On March 20, one UP member from Sarmangal union was arrested along with 18 others.
The prime accused in the case over vandalising and damaging temples was released on bail after two months, on June 21. Eighteen other arrestees were also granted bail at different times. Jhumon, whose wife and community suffered the violence and terror on March 17, was kept in jail till September 28, making for almost seven months in detention.
While he was first charged under Section 54 of the Code of Criminal Procedure (CrPC), at some stage during his detention he was also charged under the notorious Digital Security Act (DSA), the majority provisions of which are non-bailable, greatly complicating Jhumon's chance of getting bail. He was refused bail six to seven times before it was finally granted.
When Jhumon was first arrested, it was said that he had been taken into police custody for his own safety and to protect his fellow villagers from attack by Hefazat activists. But his village was attacked, his wife faced assault, several homes including his own were vandalised, four of their temples were damaged. And yet, it was he who spent more than six months in jail, while his tormentors—who actually committed criminal offenses—were freed in two months, and are now roaming around posing further threat to Jhumon, his family, and his community. All this for criticising someone that the government itself has filed 27 cases against.
Individual freedom appears to account for so little in our system. More than six months of Jhumon's life has been lost forever for a "crime" he does not know about, and for a "guilt" that has not been established. Ultimately, he may be found not guilty. So, who will account for the loss of this period of his life, not to mention the cost, the hassle and the stigma of carrying on with this case, which may go on indefinitely? Cartoonist Ahmed Kabir Kishore was in jail for 10 months, and his bail was rejected six times before he was granted bail. Photojournalist Shafiqul Islam Kajol also came out 10 months after his arrest, while his bail petition was rejected 13 times. Sirajum Munira, a highly respected teacher of Begum Rokeya University, Rangpur, was arrested late at night from her home for an innocuous Facebook post, and got her bail after two months. She also lost her job.
Police have the unlimited power to arrest and detain a citizen, at least for the first 24 hours. During this period, how the police will treat him or her is anybody's guess. As cases of custodial deaths and torture have shown time and again, there is literally no guarantee of life, and certainly no certainty of personal safety while in custody. The Bangladesh Penal Code, Women and Children Repression Prevention Act, Explosive Substances Act, Arms Act, Narcotics Control Act, Human Trafficking Act, Special Powers Act, and the infamous DSA all give the police enormous power to arrest. Getting bail under all the laws above is difficult, complex and involves quite a lengthy process. Most of the punitive clauses under the DSA are non-bailable, which makes it extremely difficult for anyone to get bail once arrested under it.
Once Section 54 of the CrPC was known for its widespread abuse. This prompted the High Court to give clear directives on using this provision in order to reduce its misuse, including disallowing arrest by plain-clothed law enforcers—which emerged as a tremendous source of fear when people used to be picked up at the dead of the night, without warrant and without specifying the reasons as to why they were being picked up. These plain-clothed law enforcers would refuse even to identify which agencies they belonged to. Insistence on knowing would lead to threats of bad consequences later. The High Court directives greatly reduced the use of this provision. Of course, in cases of enforced disappearances, these High Court directives hardly seem to matter as the victims are unable to register their complaint.
The third paragraph of the preamble to our constitution says, "Further pledging that it shall be a fundamental aim of the State to realise through the democratic process … a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens." Part III of our constitution is titled "Fundamental Rights" and has many articles—26 to 47A—covering a whole range of freedoms, starting from equality before law and right, to protection of law, right to life and personal liberty, right to freedom of movement, freedom of assembly, freedom of association, freedom of religion, freedom of thought and conscience and speech, and many others.
There is Article 32 that says, "No person shall be deprived of life or personal liberty save in accordance with law," and Article 33 that deals with safeguards against unlawful arrest and detention. The latter article, in Paragraph 1, elaborates that every person arrested must be informed as to the grounds for his arrest and be allowed to be defended by a legal practitioner of his choice; in Paragraph 2, it states that every person detained in custody shall be produced before a magistrate within 24 hours of arrest, and that no person shall be detained in custody beyond that period without the authority of a magistrate.
With such clear guarantees for individual liberty, why is it that the citizens of Bangladesh have to suffer an unspecified amount of time in prison while their bail processes take place? With all these "rights" enshrined in our constitution, why are personal liberties such a plaything in the hands of our rulers, law enforcement agencies, and at the lowest practical level, in the hands of our police? The answer lies in some of the laws, but more so in their implementation. Like so many things in Bangladesh, what is written in the books is not what is practised on the ground.
Over the years, the sanctity of personal liberty, the place of individual freedom, the centrality of fundamental right to life and liberty, and the right to freedom of conscience, thought and speech have greatly corroded in Bangladesh. We are not even aware of our rights given in our own constitution, and not too bothered when these rights are violated. What is most tragic is that we are far less inclined to fight for them as we were before, leading to an overall sense of pessimism about our state of democracy.
Every time a person's liberty is denied, our constitution is violated. We seem to have forgotten that laws exist to strengthen the hands of the citizens, and not that of the government. Today, we have too many bad laws in our books, whose main purpose is to curtail freedoms. And with their arbitrary implementation, all our freedoms stand significantly compromised.
Mahfuz Anam is editor and publisher of The Daily Star.