Unaccounted for: enforced disappearances and other issues

Enforced disappearances should not be confused with kidnappings or abductions or people who go ‘missing’.  Even though the latter are all serious criminal offences, enforced disappearances are far more serious and are even considered crimes against humanity, and rightly so.

Delwar Hossain is a 30 year old trader of trader of scrap paper, metal and plastic, who lives in Madaripur municipality. His family alleges that at around 9.30 pm on  June 23, 2011 Delwar was taken away by some people who identified themselves as members of the Rapid Action Battalion (RAB) from the boat terminal of Gachbaria market at Mostofapur. There were witnesses who saw Delwar being taken, but who refrained from approaching the men, after being shown RAB identity cards.

Thirty-two year old Mohammad Jamal Ahmed from Tongi Model Thana, Gazipur went to the ‘Dhaka Electric Supply Company’ situated in Cheragali Squib Road for a new electricity connection for his home on the afternoon of May 4, 2011. When he approached the gate of the company, some people identifying themselves as law enforcement officers, took him away. Jamal is a vital witness in the murder of Ahsanullah Master, former Member of Parliament (MP) from Gazipur.

Habibur Rahman Haoladar is a 48 year old fishmonger of Bagerhat district. At around 5.30 am on July 6, 2011, the police of the local police station, members of the Armed Police Battalion, and District Detective Branch (DB) police, with the help of some local people, arrested him from his house. The local police later denied involvement in his arrest and claimed that he had some influential enemies who may have abducted him wearing police uniform.  However, his daughter recognised one of the men as being the sub inspector of the local police station.

 The three men have nothing in common except for the fact that they were taken away by men claiming to belong to law enforcement agencies.  Some of these men were not in uniform, but in civilian dress; some allegedly showed identity cards; some were recognized as local police officers.  Law enforcement deny involvement in these incidents of enforced disappearances, but the questions remain, as people start to doubt the credibility of law enforcement and resort to mob violence and taking the law in their own hands; and as families of those who ‘disappear’ receive little assistance from the police.

In order to clear the confusion as to what entails ‘enforced disappearance’, we need to look to the international definition of this crime, so as not to confuse it with the crimes of ‘abduction’ or ‘kidnapping’. In order to give a lucid understanding of the issue, I have taken the liberty of breaking down Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, to make it more understandable: Thus, the term ‘enforced disappearance’ is: the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorization, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person,

which places such a person outside the protection of the law. 

Thus, enforced disappearances should not be confused with kidnappings or abductions or people who go ‘missing’.  Even though the latter are all serious criminal offences, enforced disappearances are far more serious and are even considered crimes against humanity, and rightly so. The confusion as to who perpetrated the crime, the lack of assistance given to the family of the disappeared and the reluctance of the law enforcement to offer any insight or assistance, all ensure that this crime against humanity continues with impunity and that the families of the disappeared are denied justice and denied the knowledge of where the victim is.  In such a crime, there is no closure till the victim is recovered.  Sometimes, as in the case of Kalpana Chakma, the closure never comes.

However, enforced disappearances are not a new phenomenon in the history of Bangladesh.  During the Liberation War, many notable intellectuals were abducted and their whereabouts remained unknown till their bodies were found. After liberation, the crime continues under various regimes.

Criminal Law in Bangladesh has no provisions for the crime of enforced disappearance, just as it has none for the crime of torture. However, there are penal provisions for crimes such as abduction, wrongful confinement, murder and grievous hurt.  The Code of Criminal Procedure lays down all the paths to be taken to ensure a proper investigation and prosecution. There is, however, a hitch; since criminal procedure also has it that government sanction is required prior to suing a public servant.  As a result, it is difficult to make accountable, law enforcement officers, for crimes amounting to torture, ill treatment and other violations to human rights. If that is the case, does that mean that public servants are above the law? If a public servant commits a crime, he becomes a common criminal. He has no more right to call himself a servant of the people, and in my humble opinion, he should be treated in the court just as any other criminal is treated – with no need for the government to stew about whether he ought to be tried or not.

The Government of Bangladesh has ratified the Convention against Torture, but has yet to accede to the International Convention for the Protection of All Persons from Enforced Disappearance. Article 4 of the Convention states: ‘Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.’  Article 3 obliges member states to take measures to investigate acts of enforced disappearance, committed by persons or groups of persons acting without the authorisation, support or acquiescence of the State and to bring those responsible to justice. So it does not matter who perpetrated the crime of enforced disappearance – it is the State responsibility to investigate and bring to justice all perpetrators. Clause 2 of Article 6 also states that no order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.

As one can infer from the international definition of ‘enforced disappearance’, the perpetrator does not have to be an agent of the State to be liable. The crime could also be perpetrated by a ‘group of persons’ acting with the acquiescence of the State.  Even though the Government of Bangladesh has not acceded to the Convention, given the attention and activism recently generated by the human rights community around enforced disappearances, and the statements issues by the Ministry of Home Affairs, the State is now in no position to deny that it does not know that the crime is being perpetrated and thus it has a high level of responsibility to ensure that this crime is controlled, put to a stop and the perpetrators taken to task. It also has the responsibility to return those who have been disappeared to their families – in whatever condition.

Successive governments of this country have ratified most of the major international instruments – including the ICCPR and the Convention against Torture.  That does not mean that torture and cruel and degrading treatment has vanished from the country or that the government has made any serious drive to eliminate the practice.  It has also ratified CEDAW, the convention to eliminate discrimination against women and the convention that protects the rights of the child.  That does not mean that violence against women is taken into very serious consideration or that the rights of street children are protected and they are cared for by the state. More recently, the state finally ratified the Rome Statute for the International Criminal Court – but that does not mean that any VIP will be taken to the court any time soon.  Then why sign, ratify or accede to these international standards and guidelines?  Why not?  It shows that the state has taken note of violations of human rights and has the commitment to do something to rectify matters, when and if it can. Acceding to the International Convention for the Protection of Persons from Enforced Disappearance will add to the commitment of Bangladesh – the same commitment it showed when it ratified the other international conventions; when it was elected to the Human Rights Council for two successive terms ; and when it decided to put in place a National Human Rights Commission. Signing an international human rights instrument does not mean that the violation will disappear overnight, but it does add to the state’s commitment to do something to rectify the matter and control it.

Reports of enforced disappearances, regardless of who perpetrated the crime, are becoming a common topic in the news papers.  Almost as common as the issue of torture and deaths in ‘cross fire’, which seems to have ‘mysteriously’ taken a back seat.  The media and human rights defenders must continue to investigate and highlight all these issues, to ensure that no one loses out on a fair trial.  As a signatory to many important international human rights conventions, and a member of the UN Human Rights Council, it would be, in my humble eyes, in the best interest of the Government of Bangladesh to accede to the International Convention for the Protection of all Persons from Enforced Disappearance, in order to further its commitment to preserve, protect and enhance the human rights of the people of Bangladesh, to ensure that everyone gets a fair trial and to maintain its balance on the path to effective democracy and democratic practices.

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Govt missteps put burden on people

While the government may have indeed succeeded in increasing power production and the supply of power to the national grid, its errant policies in trying to achieve the increase may very well deprive people in the end of enjoying the access to power. The Bangladesh Energy Regulatory Commission on Thursday, as reported in a news item published in New Age on Friday, increased retail power price by a staggering 20.67 per cent, in two phases, starting December and February next year. Only last February, the government had increased the retail price of power by five per cent. After the changes, the five power distribution agencies will be realising Tk 5.02 on an average up from Tk 4.16 in November. It is pertinent to remember that the government in November hiked the bulk price of power by 33.57 per cent to cut down on government subsidy to the power sector and the present retail power price hike is an effect and continuation of the bulk rise. Since February, bulk power price has already gone up by 57.81 per cent. The government is indeed putting an unprecedented level of burden on retail users of power, within a very short time in which none of the income indicators of ordinary people have improved, and the fear is, over the next of couple of years, bulk prices will see further large scale increases, all of which will later fall upon retail consumers. The BERC has indeed stated its intentions, according to previous reports published in New Age, to double retail power prices in three years time.

The power price hikes, as is common knowledge by now, is being done to cut subsidy to the power sector, which has reached unbelievable proportions ever since the incumbents assumed power and decided to go fuel-oil powered rental power plants to increase the supply of power in the country. Till date, the government has approved 18 quick rental power plants since January 2009. In the first fiscal year of the incumbents assuming power, the expenditure of the Power Development Board alone shot up by 343 per cent.      According to a report published in New Age in November this year, the government spent a staggering Tk 4,000 crore in the preceding 14 months to subsidise rental power plants. According to another New Age report in December, while Tk 30 billion has been allocated as fuel oil subsidy in the budget for this fiscal year, the finance ministry has estimated that the subsidy will eventually stand at Tk. 110 billion.

Needless to point out, these subsidies are causing a huge burden on the public exchequer and foreign currency reserve, as a result of rising import bills accrued through the import of fuel oils, and in effect, has virtually jeopardised the economy. At the retail end, the power price increases are having an adverse impact on the general price index, and inflation in the country has been hovering around the 12 per cent mark over the last six months – one of the highest in Asia.

The government has belatedly decided in December to not go for any more rental power plants, however, it would seem, given that the country’s fuel oil consumption is slated to go up by 33 per cent even this year, the damage has already been done. Under the circumstances, the government would be well-advised to take steps to phase out its dependence on rental plants and reinvest in power plants in the public sector, something that has been sorely missing from their agenda.

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Does president have power to appoint CEC, EC members?

While commencing a dialogue with political parties on Thursday at Bangabhaban, President Zillur Rahman in his written speech stated: "You are perhaps also aware that the constitution of the People's Republic of Bangladesh in article 118 dealing with formation of the Election Commission, empowers the president to appoint the chief election ommissioner and other election commissioners."

He further stated that he wants to take a decision on this matter upon holding discussions with the leaders of major political parties.

However, we observed some serious anomalies between the president's claim and the provisions of the constitution. 

The president in his written speech referred to article 118 of the constitution as the source of his power to appoint the EC. 

But article 118 cannot be read in isolation from the constitution's article 48 (3) that clearly says: "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister." 

Even in these two cases, his discretionary power is very nominal. Because he has no option but to appoint the leader of the majority party in parliament as the prime minister. 

And in case of the appointment of chief justice, the president is expected to appoint the senior most judge of the Appellate Division. 

When article 118 is read along with article 48 (3), it becomes clear that the president's claim that the constitution empowers him to appoint the CEC and other EC members is misconstrued. 

His statement that after discussions with political leaders he "will decide…" is also beyond his power, as he must act on the advice of the prime minister in all cases except the two mentioned above.

It is only natural that the president's written statement was drafted by his staff. So we want to ask did the president's staff do their homework, and are they well versed in the constitution? 

We feel that the president was misguided in this matter which should be immediately looked into, as otherwise the president might be dragged into unnecessary and undesirable controversies that must be avoided to maintain the prestige of the high office that he holds. 

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Killings at the border, again

Why do these keep recurring?

We wonder why Bangladeshi citizens continue to be shot by the Indian BSF despite assurances from the highest level of the Indian government that firing would not be resorted to by the BSF. 

Over a period of two days recently, as many as four Bangladeshis were killed in three different districts bordering India. Coming as the deaths do on the heels of the four-day DDG level meeting of the border forces of the two countries that ended last Thursday the killings are even more unacceptable.

The recent killings raise several questions. It was reportedly claimed by the BSF that they had opened fire only in self defence. What was the BSF defending against? Were they being attacked by armed people? 

It is also relevant to ask where the BSF was when they were allegedly under attack, behind or in front of the border fence. If behind the fence, how did the Bangladeshis manage to cross the fence, which is constantly under BSF observation throughout the day and night, both visual and electronic, in the first place, and more so when the BSF capacity to oversee the border is far greater than that of Bangladesh's. Did the BSF recover any lethal weapon that had supposedly threatened their lives? Reportedly, one of the Bangladeshi killed might have been strangle.

It appears that the harmless rubber bullets are not really harmless and apparently the Indian Home Minister's assurances during his visit to Dhaka in July that New Delhi had ordered BSF not to shoot anyone crossing Indo-Bangladesh border, no matter whatever the circumstances were, have not percolated down to the level of the Indian border outposts. 

Every border killing widens the trust deficit, unfortunately. It only helps the cause of the detractors of the efforts to take the pitch of bilateral relations to a new level. And thus there is urgent need for the Indian authorities to strictly enforce what it has committed to Bangladesh. The message to freeze weapons must go down to the last jawan as was committed by Mr. Chidambaram not very long ago. 

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Appointment of administrators as councillors – unconstitutional and ill-intended

The government’s decision to appoint administrators to 61 district councils – the top tier of the local government system – instead of constituting the local bodies with elected representatives appears to have opened up a floodgate of constitutional, legal and political questions. According to report front-paged in New Age on Thursday, the government decided to revive the district councils, which have remained dysfunctional around two decades, on the back of the government decision to appoint two additional secretaries as administrators to the newly formed city corporations of Dhaka only two weeks back. It is pertinent to remember that the previous Awami League-led government enacted the Zila Parishad Act 2000, repealing the Zila Parishad Act of 1988. The law stipulates that the chairman, 15 members and five women members of a zila parishad would be elected by an electoral college consisting of the upazila chairmen concerned, municipal mayors and councillors and union parishad chairmen and members. The three-tier local government system,  introduced by the government of Ziaur Rahman through the Local Government Ordinance 1976, provided for a zila parishad  that was to consist of elected representatives and nominated women members, including a chairman and a vice-chairman to be elected by them from among themselves. In 1988, the Jatiya Party government of HM Ershad enacted the Zila Parishad Act, which provided for a chairman appointed by the government to each zila parishad. The act was made inoperative after the fall of Ershad regime in December 1990 as the chairmen were removed and deputy commissioners were made ex-officio chairmen.

According to Article 59, clause (1) of the constitution of Bangladesh, ‘Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law’ and according to Article 152 (1) of the constitution, ‘administrative unit means a district or other area designated by law for the purposes of article 59.’ The government decision to appoint administrators has come under strong criticism from constitutional and local government experts who see the decision as contradictory with the constitution of the country. Pertinently, according to a report published in a leading Bengali daily on Saturday, within two weeks of the enactment of the Zila Parishad Act 2000, a then member of parliament filed a writ petition with the High Court challenging the legality of two clauses in the act, concerning the electorate and the provision for the appointment of administrators. With the regards to the petition, a bench of the High Court division has already issued a rule asking the government why these two clauses would not be declared unconstitutional and illegal. The rule is yet to be disposed off. Furthermore, according to a Supreme Court directive on July 30, 1992, signed by five Appellate Division judges who had served as chief justices at different points of time, ‘All current local government institutions must be immediately reconstituted with ‘elected’ representatives replacing ‘unelected representatives’ ’. Needless to say, all these leave the government decision appoint administrators on very shaky grounds.

What is evidently more worrying is that almost all the 61 appointees of the government, are either president and general secretaries of the district chapter of the ruling party.  This would indicate to a clear and ominous intent on the part of the government to politicise the local administration. Given all these, the Awami League-Jatiya party government would be well-advised to immediately withdraw the appointment of administrators to local government bodies in contradiction to the constitution and social and political mores, and immediately arrange for elections to be held at the district councils.

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