No flowers for the birthday boy
December 2, 2013 was the birthday of Mahfuzur Rahman's—a Chhatra Dal leader of Bangshal—son. Mahfuz promised his son that he would bring him flowers on the occasion and went out to buy flowers in Shahbagh. Since then Mahfuz has not returned. Subsequently, his family learned that he was picked up from the floral market by a group of men in plain clothes. Mahfuz remains traceless to this day. Every year Mahfuz's two children join their mother Nilufa in commemoration of the International Day of the Victims of Enforced Disappearance on August 30.
On this day, scores of families of the victims of enforced disappearances get together to share their grief, but also their concerns at the indifference of the State. They exchange experiences of dealing with the state agencies. They raise their voice in unison demanding the return of their loved ones and for a credible investigation into every case of enforced disappearance, justice for the gross wrongdoings and punishment for the perpetrators. They draw support and strength from each other and from those who join them in solidarity.
The demands articulated by the families of the victims are not frivolous or outlandish. They should not be deemed as clamouring for favour or special treatment. The claims and assertions by the families are supported by the supreme law of the land—the Constitution—and by the plethora of international instruments that Bangladesh is a state party to.
The right to life and liberty tops the list of basic human rights. In addition, everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.
Article 31 of the Constitution unequivocally stipulates: "To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen". It states: "in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law" (emphasis added). This position is reinforced by Article 32: "No person shall be deprived of life or personal liberty save in accordance with law." Article 33 (1) specifies that no one shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest and nor shall he be denied access to legal counsel of his choice. The sub-para (2) further states that a person "arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest" and that "no person shall be detained in custody beyond the said period without the authority of a magistrate." These constitutional provisions ensuring protection of a person have been further augmented by Bangladesh ratifying a number of international instruments.
The right to life is often claimed to be the most important of all human rights because life is the precondition for the exercise of any other right. It is enshrined in Article 3 of the Universal Declaration of Human Rights (1948) and in all major general human rights conventions. Article 6 of the International Covenant on Civil and Political Rights recognises the inherent right of every person to life, adding that this right "shall be protected by law" and that "no one shall be arbitrarily deprived of life".
Moreover, Bangladesh ratified the Convention Against Torture (CAT) over 20 years ago but it refrained from submitting yearly reports for 19 years without any explanation. Enforced disappearance coupled with torture have been a common feature in almost all cases. Physical and mental torture leaves an enduring effect on the victims for the rest of their lives and most who go through them never speak up and reveal what happened to them. A common story tied with ransom flies in the air.
A close scrutiny of the experiences of alleged enforced disappearances and state responses to those amply reveal that state authorities have time and again not lived upto the above cited Articles of the Constitution. There is a great degree of commonality in the narratives of the families of victims. Most are relatively young active citizens with interest in politics, many belonged to opposition parties or their student, labour or youth wings, while others are trade unionists, journalists or social mobilisers and influencers. Most participated in political or civic actions and are committed to bringing about change as per their own ideological and political moorings.
Only a handful of them have prior police records; others are free from the "blemish". Most were picked up either from their homes (often in the wee hours of the day) or from public places by persons claiming to be members of law enforcement agencies. In some instances, they were in plainclothes; in others, they were in uniforms or donning jackets clearly identifying a particular branch of law enforcement, carrying walkie talkies. While some were taken in vehicles bearing the insignia of law enforcement agencies, in most cases, they were ferried away in white microbuses with tinted glasses. No single case was reported in which the captors produced any warrant of arrest.
It is presumed that if a law enforcing agency is making an arrest, then they would be doing it under the provisions of Section 54 of the Code of Criminal Procedure amended by the High Court division in 2003, later affirmed by the Appellate Division in April 2016. Fifteen-point directives were issued by the apex court in that judgment, which are the most ignored provisions of the law as far as it relates to the personal liberty of a citizen. In addition, in some cases, family members of the victims have claimed they were arbitrarily arrested by some agencies which do not even have the authority to arrest a civilian in any circumstances.
In some cases, deeply distraught family members were assured that their loved ones were being taken for questioning only to be returned shortly. The promise remained unfulfilled and the families' wait became perennial. Some were even threatened with dire consequences if they speak to the press about it. In almost all cases, distressed families are shocked when local police stations plead ignorance of any such arrest and detention. Most fail to secure any information even after running from post to pillar.
They are surprised at the reticence of law enforcement officials to register a General Diary, an otherwise routine practice. Those with social capital also have little success. Their friends and family members with access to the corridors of power can bring them little help. Days, weeks, months, and years pass by, they receive no update on the complaints they had registered. In some instances, family members are discouraged, even threatened, for demanding updated information.
In the meantime, in the absence of the only earning member, some families plunge into deep poverty, more so as the sources of loans dry up. Their children's education suffers and girl children are married off early. Young wives pass months and years without the company of their partners and often have to live in hardship at the mercy of extended families. The absence of documentation about the status of the disappeared makes it difficult for them to claim dues and entitlements from employers, banks, and insurance companies and settle family property issues.
In a few instances, after days, weeks or months, they are either released or their corpses with marks of injury are found in ditches or by the roadside, floating in canals or rivers. In other cases, they are found wandering in unlikely places such as border areas in distraught or disoriented conditions. In quite a few instances, they are shown arrested and produced before the court without anyone accounting for their whereabouts in the interim. A handful of those who are lucky to return maintain total silence about the experience they endured in captivity.
For more than a decade, the government of Bangladesh has been summarily dismissive of the claims of enforced disappearances made by the families, the media, rights groups and international organisations, and even by the National Human Rights Commission. In 2019 in a reaction to an OMCT-Odhikar report, the Home Minister claimed that "not even a single case" of enforced disappearance had occurred. Other senior functionaries viewed it as a "smear campaign" by vested quarters. The government says the so-called disappeared actually go into hiding of their own accord to "avoid arrest" or detection "after committing irregularities in business or engaging in extra-marital affairs". Thus, there is an absolute denial on the part of the Bangladeshi state.
The government argues that many of those who disappeared were later "shown arrested" or eventually "reappeared", claiming that these nullify the claims of enforced disappearance. However, the eventual release, "shown arrested" or reappearance of individuals in no way negate the fact that the period of their detention or abduction by the state or other actors constitutes enforced disappearance. There is no time limit, no matter how short, for an enforced disappearance to occur.
Enforced disappearance is an anathema to the rule of law. The Bangladesh state's position on enforced disappearance is belied by the lived experiences of hundreds of families of the disappeared. Such denial is an affront to the deceased whom the state had failed to protect as required under the law. If indeed the victims are hiding to cover their misdeeds, is it not incumbent on the state to trace them as per the law? Also, isn't the onus on the authorities to find out or explain where those individuals were during the period when they were reported involuntarily disappeared and their "re-appearance" or being "shown arrested" by the police?
The reticence of the authorities to register complaints and their dogged refusal to investigate only reinforce the perception in some quarters about the state's indifference to the practice. While it may be unfair to suggest enforced disappearance is state-sanctioned, denial and refusal to hold anyone to account only encourage the rogue elements to further perpetuate the practice, thereby corroding people's trust in law enforcement. Perhaps the time has come for the institutions to protect citizens' constitutionally guaranteed rights (such as the civil administration and the higher judiciary), robustly safeguard their mandated tasks and resist and rid extra-constitutional encroachment in their domains. The sooner that is done and the sooner the policymakers acknowledge this, the better it is for upholding the dignity of those institutions to ensure good governance and the rule of law and also for the much-touted image of the country.
CR Abrar is an academic. He acknowledges the insights gained from Barrister Jyotirmoy Barua and the support of Rezaur Rahman Lenin in writing this article.