Rule of law: Law and order Situation in Bangladesh

Abstract

 In the modern world state is an indispensable institution for ordered society and the necessity of the government cannot be gainsaid. At the beginning of the last century, people felt the presence of government only in post office and police. But with the passage of time, tremendous advancement of technology and the emerging concept of welfare State, there has been vast expansion of the role of the government. Today the functions of the government are, to say the least, all pervasive. From cradle to grave a man comes face to face with one or more statutes covering every aspect of life and all these statutes confer enormous discretionary power on the public functionaries. Every power and every discretion granted in favour of the governmental authorities makes a corresponding incursion on the freedom of individuals. Existence of unfettered and uncontrolled power of the government must have disastrous effect on the rights and liberty of the people.  So the concept of constitutionalism has been developed.  A  State may have constitution, but not constitutionalism. The Nazi regime in Germany provides the most obvious example. Constitutionalism recognizes the need for limited government with checks and balances on the exercise of power by the governmental authorities. And at the heart of constitutionalism is the concept of rule of law.

Today we see extreme abuse of power by the law enforcing agencies. Maintaining law and order in one of the fundamental duties and responsibilities of the law enforcing agencies. But for the ruling parties are using this power with their own shake. They use this to power to varnish opposition parties to hold power for next time or may be fore ever.

There are some positive provisions in the Constitution for ensuring the rule of law; there are also some provisions which are against the concept of rule of law. If the provisions of our Constitution which are against the concept of rule of law, are not amended, and in the present economic situation of the common people, who are very poor, if a meaningful legal aid scheme is not undertake to ensure access to justice to all people, the rule of law in Bangladesh will be meaningless. My research will discuss about this law and order situation in Bangladesh.

Contents………………

Abstract

Chapter One: Introduction: Setting and sense

            1.1 Introduction

1.2 Rational of the Study

1.3 Objectives of the study

1.4 Research Questions

1.5 Research Methodology

1.6 Data and data collection techniques

1.7 Chapter Plan

Chapter Two: Conceptual Framework

1. Conceptual definition of Rule of law

2. Constitutional Provisions regarding Rule of Law

Chapter Three: Case Study

1. Case Study One

2. Case Study Two

Chapter Four: Findings of the Study

Chapter Five: Conclusion

            Bibliography

 

 

 

 

Introduction: Setting and sense

 

1.1 Introduction:

 

Laws are made for the welfare of the people. So that, people can live independently in the society and feel secured. It will happen if rule of law can be ensured in the society or country. The rule of law is a one of the important feature of the constitution of Bangladesh. But at present we see a different condition against this rule of law. Especially, the ruling party is abusing this power for their own shake.

 

The rise of incidents of extortion, smuggling, political violence, torture and other problems faced by minority groups, extra-judicial killings and terrorism and use of illegal firearms has also increased and other sorts of crimes, mark deterioration in the law and order situation in the country recently which has worried and disturbed the people greatly.

 

But no indication of any improvement in the situation is visible yet. Today people feel unsecured and they can hardly belief and depend on police force as they can’t do their work according to the law. They need to satisfy their political leader. For this reason law and order situation of Bangladesh has become a contested issue. And it is so bad nowadays that you cannot ensure that you can get home safe and sound.

 

1.2 Rational of the Study:

 

One of the important duties of government is to maintain law and order. In a democratic state, every government has some duties to their people as they elect him to look after them. To maintain peace and security is one of the salient duties of a government. Every State has various law enforcement agencies for that end. Bangladesh is not exception in this regard and thereby she has also some agencies such as Army, Police, RAB and so forth.

 

Police along with other law enforcing agencies abusing their power and violate laws. Nobody to stop them and day by day it is increasing. Many others do not know clearly and legally about this situation and what to do against this situation. So at this time to give clear view and to get consciousness about the situation, I think this study will helpful for us. And if you get conscious it will be easy for us to raise voice against to get rid of the bad situation.

 

1.3 Objectives of the study:

 

The purpose of every research is to discover answers to the questions through the application of scientific procedures. (Kothari: 1989, p-24) In every research have some particular objectives. Every research goes through with these objectives. Researcher does every work in research in accordance with the objectives of research. The main aim of a research to find out the truth which is hidden and which has not been discovered yet. As each research study has its own specific purpose, so I have some objectives. Here I am disclosing the objectives of this research below-

 

  1. To identify and evaluate the present law and order situation in Bangladesh.

 

1.4 Research Questions:

 

A research question is the methodological point of departure of scholarly research in both the natural and social sciences. The research will answer any question posed. [[1]] The research question is one of the important methodological steps the investigator has to take when undertaking research. There are some research questions regarding the objectives of this study. So that I can easily collect information relating to my research and fulfill the objectives given above. Research questions are:

 

1.      What is the present situation of law and order in Bangladesh?

 

1.5 Research Methodology:

 

We know that science is a systematic study of the structure and behavior of physical and natural world. But social science deals with human behavior and the structure and process of human society. Method is the process of doing any work systematically. Research methodology means process of research work by which research objectives can be acquired. To make any research successful it is necessary to apply proper methodology for it.

It is not possible to get desired result from research without suitable methodology. Research methodology depends on the subject matters of research. Social research is scientific research methodology, by using some specific method we can collect data effectively from research field. There are various types of research methods.  Some of the methods of research are given below:

Historical method, Philosophical method, Anthropological method, Survey method, Comparative method, Functional method, Experimental method, Case study method, Content analysis method, Statistical method, Focus group discussion(FGD), Observation method etc.

 

In this research case study will be used. Case study is a comprehensive study of a social   unit a person, a group, a social institution, a district, or a community. (Young: 1998, P-249) It also explores the life of a social unit.(Hans: 1999, P-249)Law and order situation of Bangladesh is well known to all and it is has a huge application in the present society. So case study will be most helpful for collecting data and information regarding the law and order.

 

1.6 Data and data collection techniques:

 

 

Data is the main component of any research. A datum is what is observed, is manifest or phonotypical. It is the product of the process of recording response. The task data collection begins after a research problem has been defined and research method chalked out. (Gultung: 1967, p-27)

While deciding method of research to be used for the study the researcher should keep in mind two types of data-

– Primary data

– Secondary data

Wilkson and Bhandarkar said primary data as “People” and secondary data as “Paper”. (Wilkinson and Bhandarkar: 1997. P- 162)

I used secondary sources of data in my research. This research is qualitative and secondary data is collected from various sources like newspapers, magazines, websites, other research, books, and journals and so on.

 

1.7 Chapter Plan:

 

Chapter one

1.         Introduction: Setting and sense

1.1 Introduction

1.2 Rational of the Study

1.3 Objectives of the study

1.4 Research Questions

1.5 Research Methodology

1.6 Data and data collection techniques

 

Chapter Two

2.1       Conceptual definition of Rule of law

2.2       Constitutional Provisions regarding Rule of Law

 

Chapter Three

3. Case Study on Law and Order Situation in Bangladesh

3.1 Case Study One (Torture of Moni Begum in Police custody)

3.2 Case Study Two (Murder of Mohammad Shahadat Hossain Roni)

 

Chapter Four

4.         Findings of the Study

 

Chapter Five

5.         Conclusion

– Bibliography


[1]          Retrieved from  http://en.wikipedia.org/wiki/Research_question accessed on June 6, 2013

Conceptual definition of Rule of law

2.1 Introduction:

Developed countries and international organizations have spent more than a billion dollars over the last twenty years trying to build the rule of law in countries transitioning to democracy or attempting to escape underdevelopment. Like a product sold on late-night television, the rule of law is touted as able to accomplish everything from improving human rights to enabling economic growth to helping to win the war on terror. The rule of law is deemed an essential component of democracy and free markets.

The North Atlantic Treaty Organization (NATO) demands that all new members demonstrate their commitment to it, and the European Union (EU) requires its existence before a country can even begin negotiating for accession. Building the rule of law is a strategic objective of the U.S. Agency for International Development (USAID), a growth field for the World Bank, and a rhetorical trope for politician’s worldwide.[[1]]

We, however, often relate the concept of rule of law to some substantial principles such as liberal democracy, guarantee of fundamental human rights, existence of an independent and impartial judiciary to effectively protect the liberties of the pubic, openness as opposed to secrecy in the affairs of the governance, removal of past discriminations, insurance of human equality and dignity, and so on. To put it briefly, practical aspect of rule of law is to ensure a ‘just society’ or a ‘just government’ where everyone will get her/his due.

 

 

Rule of Law

“No free man shall be taken or imprison or desseised or exiled or in any way destroyed nor will we go or send for him, except under a lawful judgment of his peers and by the law of the land”.  –Article 39, Magna Carta (1215)

Rule of law is derived from the French phrase ‘La Principe de legality i.e. the principle of legality, which refers to a government based on principle of law and not of men. In this sense the concept of ‘La Principe de Legality’ was opposed to arbitrary powers. (Massey: 2001, p-21)

In the thirteenth century Bracton, a judge in the reign of Henry III wrote –‘the king himself ought to be subject to God and the law, because law makes him king’. (Halim: 1998; p-345). Edward Coke said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in his classic book ‘The Law of the Constitution.’ published in the year 1885. (Dicey: 1915,p- 202). Dicey’s concept of the rule of law contemplates the absence of wide powers in the hands of government officials. According to him wherever there is desecration there is room for arbitrariness. (Dicey: 1915,p- 98).

The rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power. The rule of law is opposed to the rule of arbitrary power. (Wade: 1971, p-6) The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is above the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law cannot be capricious.

2.2 Rule of Law According to Dicey:

According to Dicey, the rule of law is one of the fundamental principles of the English constitution he gave three meanings of the concept of rule of law.

2.2.1 Absence of Arbitrary Power or Supremacy of Law

Explain the first principle; Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. According to him Englishmen were ruled by the law and by the law alone; a man with us may be punished for breach of law, but can be punished for nothing else.(Dicey: 1915, p-350). In this sense the rule of law is contrasted with every system of government based on the exercise by person in authority of wide arbitrary or discretionary powers of constraint.

The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner. (Thakker: 1996,p-19)

2.2.2 Equality before Law

Rule of law, in the second principle, means the equality of law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law; that officials like private citizens are under a duty to obey the same law, and there can be no Special court or administrative tribunal for the state officials. (Dicey: 1915,p- 188).

2.2.3 Constitution is the result of the ordinary law of the land

The rule of law lastly means that the general principles of the constitution are the result of judicial decision of the courts in England. In many countries right such as right to personal liberty, freedom from arrest, freedom to hold public meeting are guaranteed by a written constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, dicey emphasized the role of the courts of law as grantors of liberty. (Thakker: 1996,p-21)

Wikipedia

The rule of law (also known as nomocracy) generally refers to the “authority and influence of law in society,” especially as a constraint upon behavior, including behavior of government officials. [[2]] This phrase is also sometimes used in other senses.(Garner: 2009, p-1448)

At least two principal conceptions of the rule of law can be identified: a formalist or “thin” definition, and a substantive or “thick” definition. Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. (Paul: 1997, p-467)

Michael Oakeshott, 1983

The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised. (Oakeshott: p-164)

Judith Shklar, 1987

It would not be very difficult to show that the phrase “the Rule of Law” has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter. (Shklar: p-1)

All people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law. [[3]]

The UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”[[4]]

Aristotle said more than two thousand years ago, “The rule of law is better than that of any individual.”[[5]]

Professor Wade gave three ideas-

i) it expresses a preference for law and order within a community rather than anarchy, warfare and constant strife,

ii ) it expresses a legal doctrine of fundamental importance, namely, that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decisions and

iii) it refers to a body of political opinion about what the declared rules of law should provide in matters both of substance and of procedure. Nowadays the rule of law means the rule by a democratic law which is passed by a democratically elected parliament after adequate debate and discussion.

The ‘rule of law’ according to Declaration of Delhi, 1959 relates to representative and responsible government; and there are certain minimum standards or principles for the law, including those contained in the Universal Declaration and the European Convention, in particular, freedom of religious belief, assembly and association, and the absence of retroactive penal law; An independent and impartial judiciary is a precondition to rule of law. Rule of law is meaningless unless there is access to justice for the common people. The courts must be accessible to all if rights are to be enforced. It is not sufficient that there exists a system of independent court; the cost of having recourse to the courts must be such that there is real access to the courts. The rich and powerful can always have their way; it is the poor and the weak that need the support of the law. The cost of litigation in Bangladesh is so high that most people cannot afford to seek remedies in courts. It is absolutely necessary to undertake a meaningful legal aid scheme to ensure access to justice without which it is idle to talk about rule of law.

2.3 Contents of the rule of law as understood today:

From the above statements we can deduce the elements which in liberal democracies constitute the rule of law. The rule of law requires –

(a)  A representative government which means that the government should be run by the representatives of the people;

(b)  The affairs of the government must be run in accordance with law;

(c)  By ‘law’ is not meant any law passed by the legislature, but law which is fair and not arbitrary or unreasonable;

(d)  The law should ensure basic human rights;

(e)  The law should be non-discriminatory;

(f)  Everybody irrespective of status or position including the public functionary’s must be subject to law;

(g)  No man should be adversely affected in his life, liberty or property without notice and opportunity of being heard;

(h)  The executive should be subject to judicial control;

(i)  There should not be any unfettered discretion and there should be adequate safeguard against abuse of discretionary powers;

(j)  The judiciary must be independent and impartial;

(k)  A citizen who is wronged must have remedy against the State and government;

(l)  The criminal process must ensure fair trial;

(m)  There should not be any retroactive penal laws;

(n)  There should be presumption of innocence;

(o)  There should be reasonable rules relating to arrest, accusation and detention pending trial;

(p)  There should be public trial and right of appeal;

(q)  The accused must have opportunity to seek legal advice;

(r)  There should be absence of cruel and unusual punishment. (Thakker: 1996,p-26)

 

Constitutional Provisions regarding Rule of Law

The rule of law is a basic feature of the constitution of Bangladesh. It can be seen from the preamble that fundamental human rights and freedom, equality and justice, political, economic and social have been mentioned after rule of law.

The Constitution of Bangladesh in the preamble proclaims ‘rule of law’ as the prime objective of the Constitution. Referring to the preamble, Syed Ishtiaq Ahmed submitted in the Eighth Amendment case, “These are so real that these have found a new habitat in the body of the Constitution itself as substantive provisions (Art.7 and 8)”. [[6]] In fact, the Appellate Division identified the rule of law as a basic structure of the Constitution. [[7]] At the beginning of the substantive provisions, notice is given in article 7 of the Constitution that rule of law is central to the governance of the Republic. If we analyze the provisions of the Constitution, we find that the entire constitutional regime is aimed at achieving the rule of law as it is understood in the present day.

2.4 Equality before the law

Article 27 proclaims that all citizens are equal before the law irrespective of their status and position and any person howsoever high and mighty is amenable to the provisions of law. All public functionaries are liable to be sued in the courts of law in the country when they infringe the rights and liberty of the individual citizens. The only exception is that of the President of the Republic who cannot be sued for actions taken by him or in his name. In such case the government can be sued by the individuals and article 146 of the Constitution clearly states the position.

2.5 Discrimination on grounds of religion, etc.:

The constitution of Bangladesh protects all kind of discrimination against any means. Article 28 follows.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.

(2) Women shall have equal rights with men in all spheres of the State and of public life.

(3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

(4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.

2.6 Right to protection of law:

Article 31 announces.

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, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

2.7 Protection of right to life and personal liberty:

According to article 32 No person shall be deprived of life or personal liberty save in accordance with law.

2.8 Safeguards as to arrest and detention:

Article 33

(1) No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person–

(a) Who for the time being is an enemy alien; or

(b) Who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:

Provided that the authority making any such order may refuse to disclose facts which such authority considers being against the public interest to disclose.

(6) Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4).[[8]]

2.9 Prohibition of forced labour:

Article no 34.

(1) All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall apply to compulsory labour–

(a) by persons undergoing lawful punishment for a criminal offence; or

(b) required by any law for public purposes.

2.10 Government to run in accordance with law:

Besides providing for representative government, article 7 clearly mandates all government actions to be taken in accordance with the provisions of the Constitution and laws of the land. Thus every governmental action must have a legal pedigree, particularly when such action impinges on the rights or liberty of citizens. We shall see later how the acceptance of public interest litigation by the Appellate Division, accountability of the public functionaries in running the affairs of the State has increased.

2.11 Rule against bias as an ingredient of ‘due process’: 

The ‘due process’ concept requires that any authority, whether executive or judicial, when conferred with power to decide certain things or matters, must be impartial and not biased towards any party. It is a jurisdictional principle recognised by the Supreme Court of Bangladesh that no one having any interest or bias in respect of any matter is competent to take part in the decision-making process relating to that matter.[[9]]

2.12 Protection in respect of abuse of discretionary powers:

In running the affairs of the State, the public functionaries must have discretionary powers. Parliament often passes law conferring discretion on the public functionaries in the widest possible terms and the public functionaries claim unfettered discretion which is an anti-thesis of the rule of law. As conferment of discretionary powers cannot be avoided, there must be protection against abuse of such discretionary powers.

When the government claimed unfettered and absolute discretion in compulsorily retiring a public servant in Dr. Nurul Islam v. Bangladesh, the Appellate Division rejected the claim stating that under our constitutional dispensation, an exercise of discretion cannot be sustained if it is found to be arbitrary or capricious[[10]]  or without any application of mind.

2.13 Protection of basic human rights: 

The framers of our Constitution were impressed with the formulation of the basic rights in the Universal Declaration of Human Rights. A comparison of the provisions of the Constitution with the Universal Declaration of Human Rights shows that most of the rights enumerated in the Declaration have found place in Part III of the Constitution and some have been recognized as Fundamental Principles of State Policy in Part II. We have already deal t with the equality clause and due process clause incorporated in the Constitution. Article 33 provides for safeguards as to arrest and detention, article 34 prohibits forced labour and article 35 provides protection in respect of trial and punishment. Freedom of assembly, association and freedom of thought.

2.14 Power of judicial review: 

Constitutional guarantees and declaration of rule of law are meaningless unless there is provision for making good those guarantees and ensuring rule of law.

There should be a body to supervise that the constitutional mandates are complied with. Therefore, the Constitution makes provision for judicial review of laws and governmental action and invested the Supreme Court of Bangladesh with the power of judicial review under article 102 and further providing for appeal before the Appellate Division under article 103.

2.15 Independence of judiciary:

Rule of law requires that the judiciary be independent. Article 94(3) declares the independence of the judges of the Supreme Court in discharge of their judicial functions. Article 96(5) provides that a judge of the Supreme Court can be removed from service only if he has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity or he is guilty of gross misconduct. He can be removed by the President only after inquiry and hearing by the Supreme Judicial Council comprised of the Chief Justice and two senior most judges of the Appellate Division.

Articles 96 and 147 provide the security of tenure and terms and conditions of service of the judges of the Supreme Court. However, independence of subordinate judiciary is equally necessary for rule of law to operate. The Constitution as originally adopted provided that the district judges would be appointed by the President on the recommendation of the Supreme Court and all other civil judges and magistrates exercising judicial functions would be appointed by the President in accordance with the rules made by him after consulting the Public Service Commission and the Supreme Court.

The control including the power of posting, promotion and grant of leave and discipline of the persons employed in the judicial service and magistrates exercising judicial functions vested in the Supreme Court. Paragraph 6(6) provides that the provisions of Chapter II of Part VI (which includes article 115 relating to the subordinate judiciary) shall be implemented as soon as is possible. Article 22 provides that the State shall ensure separation of the judiciary from the executive organs of the State. But the Fourth Amendment of the Constitution in 1975 pushed the matter in the opposite direction by providing for the control of the subordinate judiciary by the executive. Amended article 115 provides, “Appointment of persons to the offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in this behalf.” As a result, the President does not require a recommendation of the Supreme Court for appointment of a district judge, nor is he required to consult the Supreme Court and Public Service Commission in framing rules in exercise of power under article 115.

In fact, the President has not framed any rules under article 115 and the members of the judicial service and the magistrates exercising judicial functions are being governed by the rules framed  under article 133for all the services of the Republic. The Fourth Amendment of the Constitution amended article 116 to vest control of the subordinate judicial officer and the magistrates exercising judicial functions with the President in place of the Supreme Court and thereafter added article 116A declaring “Subject to the provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.”

By the Second Proclamation Order IV of 1978 article 116 was again amended to provide that the President shall exercise control over the subordinate judicial officers and magistrates exercising judicial functions in consultation with the Supreme Court. When the President exercised control over subordinate judicial officer and metropolitan magistrates in making transfer and posting the action of the President was held without lawful authority.[[11]] Control by the President means control by the executive government in the Ministry of Law. Thus though the judges of the Supreme Court are independent in relation to the executive branch of the government, subordinate judicial officers and magistrates exercising judicial functions are not so independent.

2.16 Access to justice:

One of the important requirements of rule of law is that people of all ranks and status must have access to courts for remedy against illegal and arbitrary acts impinging on their rights and liberty. The Constitution and the laws of the country have provided the access to justice to all people without any distinction.

2.17 Conclusion

The Constitution has made provision for establishment of rule of law in the country and if the Constitution is followed in letter and spirit, there is no reason why rule of law cannot be achieved. The above discussion makes it clear that though there are some positive provisions in the Constitution for ensuring the rule of law, there are also some provisions which are against the concept of rule of law. If the provisions of our Constitution which are against the concept of rule of law, are not amended, and in the present economic situation of the common people, who are very poor, if a meaningful legal aid scheme is not undertake to ensure access to justice to all people, the rule of law in Bangladesh will be meaningless.


[1]       USAID defines a strategic objective as “the most ambitious result that a U.S. Agency for International Development operating unit, such as a country mission, can materially affect, and for which it is willing to       be held accountable.” See GAO, “Former Soviet Union,” 3. For examples of rhetoric, see Tamanaha, “Rule           of Law for Everyone?”

[2]         Oxford English Dictionary, “Rule of Law, n.”, accessed April 27, 2013: “The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

[3]      Retrieved from http://dictionary.reference.com/browse/rule+of+law accessed on 18th   July 2013

[4]         Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))

[5]         Retrieved from http://www.unrol.org/article.aspx?article_id=3 accessed on 18th   July 2013

[6]       See the Summary of Submissions in Anwar Hossain Chowdhury v. Bangladesh, 1989, BLD (Spl) 1, (28)

[7]       Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Special Edition), 1, para  443

[8] Article 33 was substituted by section 3 of the Constitution (Second Amendment) Act, 1973 (Act No. XXIV of 1973)

[9]     Khandker Mustaque Ahmed v. Bangladesh, 34 DLR (AD) 222;Murari Mohan Das v. Banglagesh, 29 DLR 53

[10]   Presiding Officer v. Sadaruddin, 19 DLR (SC) 516

[11] Aftabuddin v. Bangladesh, 48 DLR 1; Idrisur Raman v. Bangladesh, 1999 BLD 291 (affirmed in Bangladesh v. Idrisur Rahman, 1999 BLD (AD) 291

 

 

 

 

Case Study One

Torture of Moni Begum in Police custody

 

The mother of two, Sharmin Aktar and Shabrin Aktar, Moni is the daughter of late Abdul Matin and Rumer Nesa. Her husband is late Shahid.

 

Members of the Sitakunda Police Station arrested Moni Begum on July 18, 2012 at around

9:00pm from her house ‘Bonoful’ at 343/344, Block # G, Bishwa Colony, Sitakunda. Eleven days after her arrest, the police formally took Moni on remand on July 29, 2012. Her family alleged she was tortured. Now we discuss this event as a series of action.

 

July 18, 2012:

On July 18, 2012 at around 9:30pm, few people knocked at the door of her ground floor. When she went downstairs, they identified themselves as police and asked her to open the gate. They wanted to know her identity after she opened the door. When she identified herself, they inquired for the mobile phone she used. When she gave her mobile phone, they asked her to accompany them to the police station. When she asked for a reason, they said that there was filed a case against her at the Sitakunda Police Station. A plainclothes policeman among them identified himself as SI Khaled Hossain. After reaching the police station, she came to know that one Ibrahim Sumon, whom she and her late husband Shahid knew, had been murdered and was found from an area under Sitakunda police station. Sumon’s wife filed a case accusing Moni Begum. The police arrested her based on the case. At around 3:00am, SI Khaled arrived at the police station and said to her that the police, based on her call list, found information about her involvement in the murder. He asked her to confess everything. Khaled left after a while.( Moni Begum , victim)

 

July 19-20, 2012:

Imam Hossain (32), nephew of Moni Begum told that on July 19, 2012 he contacted SI Khaled. He paid BDT 20,000 to SI Khaled on two occasions, the last on July20, 2012 at around 2:00am, requesting him not to harass her. Khaled said that if his Aunt was guilty, court will take its due course. After taking money, Khaled also told him, “give me some clue about the murder and I will not do anything”. Imam asked the policeman what clue he could provide. SI Khaled did not say anything in reply.

On July 20, 2012 at around 12:00am SI Khaled came again tied her hands and intimidated her to admit her involvement in the murder. At one stage Khaled slapped on her face and threatened to beat her while she was in remand. On July 20, 2012 at around 1:00pm, police sought a 7-day remand at the court of Farida Yasmin, Judge, Senior Judicial Magistrate’s Court (2). The Court approved two days for her remand and issued orders to transfer her to the Chittagong Central Jail.

 

July 29 to August 2012:

On July 29, 2012 at around 2:00 pm Khaled brought Moni to the Sitakunda Police Station from Chittagong Central Jail. At around 11:30pm she was moved to a different room in handcuff from where she was kept in custody. There, 8/10 police personnel, led by SI Khaled tortured her there (Some of them were in police uniform and rest were in plain cloth). A female police member was present there at that time. They pressed her to confess her involvement in the murder of Ibrahim Sumon. When she said that she did not know anything about it, they assaulted her. After a while, they inflicted electric shock on her elbow while she was seated on a chair. She dropped on the floor and again everybody beaten her. They kicked on her chest, back and abdomen. After a while they picked her up from the floor and inflicted electric shock on two thighs and burned her hand and back with a cigarette. They continued torturing her for about an hour. At one stage she lost her consciousness.

 

Next day on July 30, 2012 at around 8:00 am, she found herself at Sitakunda Hospital. She had no strength and could not move because of pain. She saw that the doctor of the hospital did not want to admit her but the police were insisting. After a while she was referred to the Chittagong Medical College from Sitakunda Hospital. On July 30, 2012 she was eventually admitted to the casualty department at the Chittagong Medical College at 1:00 pm.

 

Sharmin Aktar (19), elder daughter of Moni Begum told that she could not meet her mother till July 29, 2012. On July 30, 2012 she came to know from her uncle Abu Taleb that her mother was taken to the Chittagong Medical College. She went to the hospital at around 4:00pm with her younger sister Shabrin Aktar. She saw her mother lying in the bed handcuffed. The police on doctor’srequest, unlocked her handcuff. She noticed her mother’sbody and face were swollen. She saw marks of torture while Moni Begum was changing clothes. There were marks from electric shock inflicted on her and burn and physical injuries on her elbow, fingers, thighs, legs, back, chest and lower abdomen as well. The police wanted to take Moni back in custody on August 3, 2012 at around 11:00am. However, the doctors at the hospital refused the Officer in Charge (OC) and 3/4 other police members their requestto take Moni back.

 

Imam Hossain (32), nephew of Moni Begum said that, because of the torture inflicted upon her, Moni had to be treated at Chittagong Medical College Hospital from July 30, 2012 to August 7, 2012. The doctor released Moni on August 7, 2012 after the police insisted although she did not fully recover. In the release letter, the doctor stated that Moni Begum was tortured on 11 places of her body. Imam collected the copy of the release letter. Though Moni was released on August 7, 2012 at 10:30am from hospital, police produced her in front of the Chief Judicial Magistrate Farida Yasmin’s Court without release letterat around 3:00pm. SI Khaled did not visit the hospital that day, instead 3/4 members of the police took her to the court from hospital. As there was no release letter among the document presented to the court and by seeing the physical condition of Moni Begum, the Court Inspector did not receive Moni Begum and ordered her to come with a release letter. The police then took Moni Begum to the Kotwali Police Station. Next day SI Khaled brought a false release letter and produced Moni Begum tothe Court. At that time when Moni Begum’s lawyer showed the genuine release letter to the court, the Court ordered hospital authority to treat her aunt in the hospital. In the release letterthat was submitted by the police it was mentioned that due to diabetes Moni Begum became ill during the remand and as a result she required treatment in the hospital for 8 days. Moni however, did not have diabetes.

 

Moreover, diabetic patients are not treated inthe casualty ward, where Moni was admitted.

Though the Court ordered admitting Moni Begum at the Jail Hospital, jail authorities admitted her to the general ward.

 

Lutfunnahar Begum, jail police, eyewitness told that on July 29, 2012 when Moni Begum was taken to Sitakunda Police Station for remand, she was with Moni Begum as advised by the jail authority. But when Moni was taken to a separate room from the police custody for interrogation, she was not allowed to enter the room. SI Khaled asked her to stay at the inspector’s room. After approximately an hour later, Moni Begum was brought out of the room in an ill state and taken to the Sitakunda Hospital for treatment. Next day on July 30, 2012 at around 12:00pm Moni was taken to the Chittagong Medical College Hospital. Till July 31, 2012 she was at Chittagong Medical College Hospital on duty to look after Moni Begum.

 

Bidhu Bhushon Bhowmik, Upazila Health Officer, Sitakunda Hospital said that on July 30, 2012 at around 9:00am, Sitakunda Police brought Moni Begum in a sick condition tothe Sitakunda Health Complex for treatment. At that time Moni was suffering from severe breathing problem. So, she was immediately sent to the Chittagong Medical College Hospital. By seeing her condition it seemed to him that she needed a very good medical attention immediately. He did not find enough time to observe whether there was any mark of torture on her body.

 

Statement of the lawyer:

The layer of Moni Begum Mohammad Helal Uddin, Advocate, Judge Court, Chittagong told that police arrested Moni Begum within the two hour of a (case no. 19, dated: July 18, 2012, under Section 302/34) filed by the wife of late Ibrahim Sumon, Rehana Aktar. They kept her in police station for two days unlawfully. Later 8/10 police members tortured her in remands violating the state’s rule of law. They did not stop there; they even counterfeited the release letter and produced the accused to the Court. After Moni Begum became sick on July 29, 2012 while in remand, she was admitted at the Casualty ward of Chittagong Medical College Hospital for treatment from July 30, 2012 to August 7, 2012. On August 7, 2012 at around 10:30am, hospital authority issued the release letter mentioning that Moni Begum was tortured on 11 places of her body. SI Khaled brought Moni Begum to the court moments before the closing of the court, keeping her in an unknown place all day long and tried producing her in front of the Court with a false release letter.

 

But observing Moni’s physical condition, the Court Inspector refused to receive her and ordered tocome the next day with the real release letter issued by the hospital authority. SI Khaled kept Moni at the Kotowali Police Station on August 7, 2012. But the rule is: if Court did not receive an accused for any reason, the accused must be returned to the respective police station. So, rulewas also violated in this respect. Next day on August 8, 2012 at around 11:30am, police produced Moni Begum in front of the Court of Farida Yasmin, Judge of SeniorJudicial Magistrate’s Court (2) with a false release letter (which mentioned she was treated for diabetes). But diabetesis not treated in the casualty department where Moni Begum was admitted. When Moni’s lawyer drew attention on the matter to the Court, the Court ordered for her tobe sent to the jail and treated at the jail hospital. It also mentioned that she be produced to the court with a real release letter on August 14, 2012. Police did not submit the letter on August 14, 2012. The Court ordered the authority of Chittagong Medical College Hospital to produce the release letter.

 

Statement of police and Related Case:

Mohammad Aminul Islam, Officer in Charge (OC), Sitakunda Police Station, and Chittagong stated that although Moni Begum’s house at Bishwa Colony was 50 kilometres away from Sitakunda, her cell phone was traced within the range of Sitakunda tower at night of July 17,

2012. Besides, she talked several times with Ibrahim Sumon. He also told that after initial investigation he had information about her involvement of Moni Begum in the murder. Moni

Begum was suffering from diabetes and fell ill out of tension right after she was taken on remand. That was why she was admitted to the hospital. She was kept at the police station for few hours. It is not possible to torture in such a short time.

 

Accused police officer Mohammad Khaled Hossain, Sub Inspector (SI) and Second Officer, Sitakunda Police Station, Chittagong SI Khaled Hossain told that on July18, 2012 at around 7:00am; police retrieved a body, with hands, legs and mouth tied, from the east of Dhaka-Chittagong highway adjacent to the Koshaikhana of Shiekhpara under Sitakunda Police Station. At around 2:00pm, Rehana Aktar, resident of 1/pa, Block –G, Bishwa Colony under Khulshi Police Station came at the police station and identified the body. It was of her husband Ibrahim Sumon. That same day Rehana Aktar filed a case accusing Moni Begum, whose husband was late Shahidur Rahman, residentof plote-343/344, Block # G, BishwaColony, Khulshi as plaintiff (case no. 19, Dated: July 18, 2012, under Section 302/34). The plaintiff stated that Sumon had a financial dispute with Moni Begum.

 

On July 17, 2012 at around 6:00pm Moni called Sumon on his mobile phone and asked him to come at OlonkerMor at Pahartoli to take money. Sumon never returned after that. On July 18, 2012 his body was found at Sitakunda. The plaintiff talked to Moni Begum about the matter afterwards. From the conversation, the plaintiff suspected her and filed a case against her. In the same night SI Khaled arrestedMoni Begum from her house at Bishwa Colony. He said they received important information from her. But the investigation was not complete. Regarding the torture, SI Khaled said that Moni Begum’s character was not good; she was a shrewd and cruel person. It was proved that she had relation with miscreants and armed killers. She pretended to be sick from the beginning of the interrogation.

 

Latest condition:

According to the version of investigation officer of the case SI Mohammad Khaled Hossain the case was under High Court division of the Supreme Court (case no. 19, Dated: July 18, 2012, under Section 302/34) and Moni Begum was at the Chittagong Central Jail. He also said that police of Sitakunda Police Station arrested two suspects named Mohammad Jabed and Kalam Hossain. They admitted in their confessional statements the involvement of Moni Begum in the Ibrahim Sumon murder case.

 

Concluding Remarks:

As the constitution of Bangladesh is the safeguard of the people of Bangladesh. Torture is a clear violation of Section 35(5) of the Constitution of Bangladesh. Despite that, the long tradition of impunity of law enforcement agency is continuing. As a result, the rule of law is undermined. Bangladesh has the international obligation to ban torture in its domestic law. While the Constitution and Criminal Penal Code make several halting steps towards fulfilling these obligations, the process is not complete. Although the Constitution of Bangladesh expressly prohibits torture, Bangladesh fails to create a specific definition of torture and therefore allows impunity of law enforcement officials to engage in torture. The provisions criminalizing offences against a person, enshrined in Chapter XVI of The Penal Code of 1860 (offences causing physical pain in Sections 319 to 338A and offences relating to wrongful confinement in Sections 339 to 358), never specify what qualifies as torture.

 

Reference for this case study:

 

http://www.manabadhikarkhabar.com/index.php/country/7-2013-05-16-22-08-57

http://www.rtnn.net/newsdetail/detail/1/3/60329#.UgIqFX-2Em4

http://www.humanrights.asia/news/ahrc-news/AHRC-STM-120-2013

Odhikar Fact Finding Report /July, 2012

Case Study Two

 

Murder of Mohammad Shahadat Hossain Roni

Summary:

Members  of  the  Detective  Branch  of  police  (DB)  in  Dhaka  shot  16-year-old  Mohammad Shahadat Hossain Roni to death on October 13, 2012 at around 3:00pm in Ashulia, his family members have  claimed. Roni  is the son  Hazrat  Ali  and Anu Begum of Chanpur village under Savar  Police  Station  and  was  an  11th  grade  student  of  commerce  department  in  Government Bangla  College  in  Mirpur,  Dhaka.  His  family  members  claimed  he  was  shot  to  death  on  the Norshinghopur-Konabari road beside the Dhonaidh Eidgah field under the Ashulia police station.

 

Roni went to attend an  invitation on October 13, 2012 at Mehedi  Hasan Noyon’s  aunt Sahara Begum’s  house  in  Bagbari  village  of  Kashimpur  union  under  Joydebpur  Police  Station  in Gazipur.  He  went  to  the  invitation  with  Mehedi  Hasan  Noyon  (27),  son  of  Mohammad Sirajuddoula and Majlunnahar of Pachkani village of Kaundia union in Savar. Also, with them were Ripon, Mohammad Hossain, Mamun, Al-Amin, Rubel, Abdul Al Mamun alias Boro Babu and Hossain Babu alias Choto Babu. Noyon, Roni and others were returning home on a microbus through Norshinghopur-Konabari  road  from there.

 

At  that  time  the  Officer  in-Charge  (OC)  of  Dhaka  district  DB  police  Wahiduzzaman,  Inspector  Shahin  Shah  Parvez  and  a  few  other  DB personnel  were  stationed  on a  microbus  near  Dhonaidh  Eidgah  field.  At around 3:00pm when their  microbus  reached  near  Dhonaidh  Eidgah  field  on  Norshinghopur-Konabari  road,  the DB police stopped them and asked where Noyon’s cousin  Nurunnahar was. Thinking that they have been detained by Hijackers or miscreants, Roni, Noyon and others began screaming in fear and as a result the DB police officials beat them up. Fearing  further trouble, driver  Harun of their microbus  panicked  and  attempted  driving  away  when  the  DB  police  aimed  at  them  and  fired 30/40 rounds.

 

Roni was bleeding from his back and another friend Ripon was bleeding from his head. Noyon told the driver to go towards a hospital. However, the DB police were chasing them with their microbus and when their microbus reached Talukdar Filling Station on Ashulia-Baipal road the DB police stopped their microbus, brought down Noyon, Roni and the others and began beating them again. Roni died a few moments after this incident. After that the DB police filed a case in Ashulia Police Station against Noyon, Ripon and the others and showing them arrested on accusation of murder and possessing illegal arms.  They were sent to jail through a Court order. Meanwhile, Noyon’s cousin Nurunnahar has been receiving death threats ever since she had her father Kofiluddin’s inherited property lawfully rescued from illegal possession of their neighbor Amanullah. Amanullah is considered to be a very influential person in the area. Nurunnahar, daughter of Kofiluddin and Sahara Begum had filed a case against Amanullah and rescued the land in 2009. The opponents in the case became angry and vengeful after the incident and they began sending her death threats. In order to take possession of that land again, Amanullah even tried to get Nurunnahar killed using the DB police.

 

On October 13, 2012, Nurunnahar was supposed to return to Dhaka with Noyon, Roni and the others. Unable to find Nurunnahar, the DB police began beating up Noyon, Roni and the others and fired at their running microbus. Although Noyon was safe but Roni died in the police fire.

 

Description of Eyewitness:

 

Mehedi Hasan Noyon who was present at that moment told that on October 13, 2012 at around 12:00pm he and friends Roni, Ripon, Mohammad Hossain, Mamun, Al-Amin, Rubel, Abdul Al Mamun and Hossain Babu went to his aunt Sahara Begum’s house in Bagbari village of Kashimpur union under Joydebpur Police Station in Gazipur district on a NOAH microbus (Dhaka Metro Cha-13-1073). From there at around 3:00pm Roni, him and others were returning home. After crossing Dhonaidh Eidgah field a microbus  (HIACE)  with  tinted  glasses  came from  the  opposite  side  and  stopped  their  microbus. Some seven/eight men got out of the microbus, broke the windows of their microbus using the butt of the arms (he assumed that these were shotguns and pistols) while some also fired a few rounds of blank shots. One of them put a gun to his head while asking whereabouts of his cousin Nurunnahar in abusive words. He asked why she was not with them when she was supposed to be. When he did not have an answer, the DB men slapped him, punched him and even hit him with the back of their guns. After some time, one of the men fired at Noyon but he saved himself moving away quickly. The driver of the microbus Harun sensed trouble and started the van. The police used 30/40 rounds of fires as the microbus moved about 5/6 yards.  They began chasing the microbus Noyon and others were on.

 

Roni and Ripon were screaming out of fear. He noticed Roni was bleeding from his back and Ripon bleeding from his head. At around  4:00  in  the  evening  the  men  stopped  their microbus  again  in  front  of  M/S  Khan  Automobiles  and  Doladoli  motors  near  Talukdar  Filling Station situated beside Ashulia-Baipail road and assaulted them while calling them miscreants. He noticed that a few of the men who attacked him were wearing jackets of DB police. That is when he was certain that they were members of law enforcement. He repeatedly requested the DB to take Roni  and  Ripon  to  the  hospital  as  soon  as  possible  but  they  did  not  pay  any  heed  and  instead continued assaulting them. After some time the DB separated him from the group and dragged him onto another police car. The car travelled around places in Ashulia with him inside and while in the car the DB officials threatened to kill him. He saw one of the DB men asking someone on cell phone to arrange some arms and bring to them. At around 8:00pm, the DB police brought him out of the car and took him to a place behind the amusement park Fantasy Kingdom located in Jamgora of Ashulia.

 

Standing  there,  the  DB  police  officers  fired  around  4/5  blank  shots.  He was told that he is an infamous miscreant and he is involved in murder, extortion and land grabbing. That is why he will be punished. One policeman handed him a gun and told him to admit that he killed Roni with this gun. Since he did not agree to admit to the offence, they beat him with sticks. All the DB police personnel  present  there  beat  him  one  by  one  all  while  threatening  him  with  death  unless  he admitted killing Roni. One policeman held a gun to his chest and told him to say his final prayers as he would be shot to death then. One of them began slapping and punching him while another one was hitting him with a shotgun repeatedly. After torturing him physically and mentally for a long time in an attempt to get a confession out of him, they took a break.

 

During that break he heard the conversation among the DB members where they were saying that even though they were told not to shoot, they shot and killed someone for no reason. As a result their job might be in jeopardy. After that a few unknown men brought a bag there. They took out 5/6 large knives, 6/7 medium knives and a machete and placed them in front of him. Then he was told that if he said anything against the DB police he will be slaughtered with those knives. On October 14, 2012 at around 1:00am the DB police took him to Ashulia Police Station from the area behind Fanstasy Kingdom.  After  he  arrived  at  Ashulia  Police  Station  he  got  to  know  that Officer in charge (O.C) of DB police Wahiduzzaman and DB Inspector Shahin Shah Parvez were among those who tortured him and his friends in Dhonaidh Eidgah field, Ashulia-Baipail road and afterwards at Fantasy Kingdom.

 

He  also  informed  that  before  entering  Ashulia  Police  Station  OC  Wahiduzzaman  and  Inspector Shahin Shah Parvez threatened him that if he said anything against them, i.e. anything about Roni’s killing then he would also be killed. In Ashulia Police Station, he was again forced to confess that he shot Roni to death. Moreover, he was also being forced to admit that he grabs land in Ashulia for Fifty  Thousand  Taka  (50000)  and  on  that  day  he  went  to  his  aunt’s  house  with  some  hired miscreants to kill Roni. However, since he did not agree to what the DB police were telling him to admit he was tortured and threatened with death. Later, he was sent to the Dhaka Central Jail, he said.

 

Event related to Case:

 

Kamrunnahar Noyon’s paternal cousin informed that a few influential people namely Amanullah, son of late Abdus Sobhan, Ataur Rahman Saman, Shonaullah and Robiullah had illegally occupied about 82 decimal lands that they inherited in Baghbari village in Kashimpur Union under Joydebpur Police Station in Gazipur district.  To  prevent  those  influential  people  from  taking  ownership  of  their  land,  her younger sister Nurunnahar took legal action and they got back their ownership on the land in 2009. Amanullah and the others with him were harassing their family and giving them death threats since then, to get the property back.  When he was unable to occupy the land again after repeated attempts, he began bribing  the  DB  with  hefty  amount  of  money  to  take  revenge  on  her  family members.

 

On  October  13,  2012,  Nurunnahar  went  to  the  village  from  Dhaka.  On that day Ataur  Rahman Saman, Mohammad Nobi and their men along with DB police conspired to kill her younger sister Nurunnahar as she was the main person behind taking back ownership of their inherited land. The opponents had the DB attack them resulting in the death of Roni who had come to their house with Noyon to attend a programme.

 

On October 25, 2012, the Ashulia Police Station refused to take the case, her cousin and Noyon’s older brother Mahmudul Hasan Mamun went to file. So he filed it at the Chief Judicial Magistrate’s Court  in  Dhaka  against  Khalilur  Rahman,  Mohammad  Kabir  Hossain  Sarkar,  Motiur  Rahman, Saidur Rahman, Ataur Rahman, Monir Hossain, Atikur Rahman, Mohammad Nobi, Firoz Ahmed, Meherul Huda, Inspector of DB police Shahin Shah Parvez, OC Wahiduzzaman, ASI Harun-Ur–Rashid and 4/5 other people. Section- 148/149/325/326/307/302/34/1091[[1]] of the Penal Code, 1860.

 

The case number is 1003/12. She also informed that after that incident the DB police filed a murder case against Noyon and others under section 143/332/353/307/302[[2]] of the Penal Code, 1860. The case number is 54 and a case is filed under section-19/a [[3]] of Arms Act, 1878, Date 13/10/12. The case number is 55.

 

 

 

Medical Report:

 

Dr. Dipankar told that on October 13, 2012 at around 5:30pm the police of Ashulia Police Station  brought  a  man  named  Roni  into  the  emergency  department  of  the  hospital.  He  gave  the death  certificate  and  mentioned  that  there  was  a  bullet  wound  on  the  right  side  of  Roni’s  back which caused his death. He also mentioned in the death certificate that Roni had Cardio-respiratory failure due to severe haemorrhage.  The  members  of  police  brought  the  dead  body  to  the  Savar Model Police Station.

 

Post mortem report:

 

According to version of Dr. Kazi Golam Mokhlesur Rahman Head of the department, Department of Forensic Medicine, Dhaka Medical College Hospital, Dhaka, on October 13, 2012 at around 8:30pm the police of Ashulia Police Station brought the dead body of a man named Roni into the morgue. He carried out the post mortem of the dead body on October 14, 2012 at around 2:00pm.  The post mortem number is: 2043/12. There was a bullet wound on Roni’s back and a bullet was obtained from there. In  Roni’s  post  mortem  his  cause  of  death  was  mentioned  to  be  Cardio-respiratory failure due to severe haemorrhage. After completion of the post mortem the family members took the body away through the police.

 

Closing Remarks:

 

The incident of members of law enforcement agencies in plainclothes shooting someone to death is really alarming and is equivalent to taking a stance against the legal system of the country. Government has repeatedly failed to tackle this situation due to which the rule of law in the country is breaking down.

 

Conclusion:

Our constitution ensures that all human beings are born free and equal in dignity and rights. Everyone has the right to life, liberty and security. No one shall be subjected to arbitrary arrest. But at the end of our case study we have seen different situation from these statement. Ill-treatment and torture have become so entrenched in the country that once someone is arrested it can be assumed that he or she that will be subject to abuse. The culture of forcibly extorting confessions is deeply rooted within the law enforcement agencies in Bangladesh and is reportedly considered a normal practice. Furthermore, including politicians who were in prison, consider that members and sympathizers of opposition political parties who are arrested are almost systemically subject to ill-treatment and torture.

 

Reference for this case study:

‰`wbK Kv‡ji KÉ, 14 A‡±vei 2012

‰`wbK c«_g Av‡jv, 15 A‡±vei 2012

‰`wbK hvqhvq w`b, 2 b‡f¤^i 2012

‰`wbK evsjv‡`k c«wZw`b, 14 A‡±vei 2012

The Daily Star 14 October, 2012

The Daily Sun 14 October, 2012

Bdnews24.com, 13 October, 2012

http://primenews.com.bd/details/1722

http://rantburg.com/index.php?HC=2&D=2012-10-14&SO=Bangladesh

http://banglaphotonews.com/?p=23308

http://www.onnews24.com/?p=16814

http://crimebarta24.com/?p=840

International Federation for Human Rights (fidh) BANGLADESH: Criminal justice through the prism of capital punishment and the fight against terrorism.

Odhikar Fact Finding Report /October, 2012


[1] The following sections of the Penal Code, 1860 stated aboutSection-148: Rioting, armed with deadly weapon,

Section- 149: Every member of unlawful assembly guilty of offence committed in prosecution of common object,

Section-  325: Punishment for voluntarily causing grievous hurt,

Section-326 : Voluntarily causing grievous hurt by dangerous weapons or means,

Section-  307: Attempt to murder,

Section -302: Punishment for murder,

Section- 34: Acts done by several persons in furtherance of common intention.

Section-109: Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment

 

[2] The following sections of the Penal Code, 1860 stated aboutSection-143: Punishment for unlawful assembly

Section- 132: Abetment of mutiny, if mutiny is committed in consequence thereof

Section- 353: Assault or criminal force to deter public servant from discharge of his duty.

Section- 307: Attempt to murder

Section- 302: Punishment for murder.

[3] Section 19(a) of the Arms Act, 1878 stated about:

19. Whoever commits any of the following offences (namely):-(a)punishment for manufactures, converts or sells, or keeps, offers or exposes for sale, any arms, ammunition or

military stores in contravention of the provisions of section 5;

 

 

 

 

 

Findings of the Study

 

“…the sapling that the police have nibbled on even slightly neither blooms nor does it ever bear fruit. The saliva of the police is poisoned. I know a young man who was as intelligent and educated as he was good natured. He did emerge, albeit wounded, from the hands of the police. But now driven insane in his youth, he is spending his life at the Baharampur insane asylum.”

– “Chhoto Boro” Rabindranath Tagore

 

Tagore was well aware of the saga of the police; it was his good luck that never allowed him to come into contact with the Rapid Action Battalion (RAB) – the hybrid of the police and the army. If he had, he would have realized that these days if one falls into the hands of this species, one need not go through the hassle of ending up in an insane asylum. Instead one may get a one-way ticket and go directly to the afterworld.

 

Nevertheless, the quotation from Rabindranath Tagore allows us to infer that there is not much difference in qualitative terms between the police of the British Raj and the modern police of the “democratically elected government”. The nature of both is similar as are their activities. In fact, it is often heard that our modern police force uses the same 303 rifles that the British police used. The railway system, the judiciary and others – including the police system – are the processes which we have accepted from the British in absolute good faith.

 

Hence, reformations in this field have been scarce. Their uniform may have been changed, perhaps weapons other than the 303 rifles have been added to their repertoire, a canine force has been added; but their nature remains as it was in the past. Complemented by illimitable corruption, it has perhaps been possible to deal with the movement of the opposition party by using this force, but the law and order situation could not be kept in control. Thus, these special arrangements are necessary with the escalation in public discontent, and when the opposition makes law and order an issue in their campaign. The army arises as a liberating force, and the police, Ansar and BDR appear with them. The sum of these parts is the Rapid Action Battalion or RAB.

  4.1 Abuse of police power of arrest under section 54 of the Code of Criminal Procedure 1898:

Of the existing laws, section 54 of the Criminal Procedure Code continues to remain one of the most abused provisions of the legal system. Both the methods of policing in this country and the police power have been questioned over times.  The work of the police is often characterized by brutality. Abuse of power by the police under section 54 of the Code of Criminal Procedure and the Special Powers Act 1974 have been identified by different human rights watchdog agencies as the main sources of human rights violation in the country. We found this Abuse of police power of arrest under section 54 of the Code of Criminal Procedure 1898 by arresting Moni Begum. In second case we saw friends of Roni were affected by this abusing of power by police.

 

4.2 The Politics of Terrorism, the Terrorism of Politics:

The worsening law and order conditions that are cited as the reason for deploying these special forces have remained a problem for quite a few years. Whether or not the politicians admit the fact, this problem has become systemic and the major contributor in this context is politics, not terrorism. Although we have managed to establish a routine in national politics whereby we stamp a seal on a ballot every five years, it has not been possible to bring any qualitative changes. Hence, politics is still a matter of power. The politics of power does not require good politicians, not even popular ones. Instead it requires someone who is capable of seizing electoral victories at any cost. And such a strong and powerful leader demands a strong and powerful following. Thus it is difficult these days to find a “godfather” who is not simultaneously an active and renowned politician. We also witnessed “nationalist” “godfathers” who occupied important political posts during the rule of the last government. Now we are seeing Awami Leaguer godfathers. Instead of dealing with this enduring bond between politics and terrorism and corruption, creating a special force today, deploying a combing operation tomorrow and a bombing operation the day after will not do any good.

In our first case study, Amanullah who is considered to be a very influential person in the area, wanted to get possession the property of Nurunnahar. But Nurunnahar has been receiving death threats ever since she had her father Kofiluddin’s inherited property lawfully rescued from illegal possession of their neighbor Amanullah.


4.3 A culture of impunity consecrated by Bangladeshi law:

 

The Constitution of Bangladesh is ambiguous on torture. While Article 35 (5) prohibits torture, Article 46 allows the Parliament to enact law to acquit “any person in the service of the Republic or any other person in respect of any act done by him in connection with…the maintenance or restoration or order in any area in Bangladesh or validate any sentence passed, punishment, forfeiture ordered, or other act done in any such area”. In other words, Article 46 of the Constitution allows the Parliament to indemnify human rights violations of state officials, including torture, by enacting legislation. Moni Begum affected by this power. In second case Noyon friend of Roni was illegally tortured by the police violating the article 35(5).

 

4.4 Arbitrary Arrest or Detention:

 

Many detainees were detained arbitrarily, initially held under emergency rules, and then served with a detention order under the 1974 Special Powers Act (SPA). Some were then charged with politically motivated criminal offences. Some people held under emergency rules were accused of “extortion” or other criminal activity. Detainees included over 160 politicians from the main political parties, as well as some wealthy business people. A number of detainees held without trial under emergency regulations or the SPA were reportedly tortured or ill-treated.

 

Preventive detention is an abnormal measure whereby the Executive is authorized to impose restrains upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to public safety etc. Article 33 of the Constitution allows the government to use this measure in peace time. In one case study, we found Moni Begum was became the victim of this arbitrary arrest. Beside in the case two Nayon was also arrested illogically.

 

4.5 Absent of Independence of the law enforcement agencies:

 

Today law enforcement agencies don’t have any power given by the law; they have to follow the direction given by the ruling party or leader. In our case study we saw, Amanullah tried to get Nurunnahar killed using the DB police. Absent the independence of the law enforcement agencies and the Judiciary in all senses of the term, the ruling regime of any given time will legislate conveniently and enforce laws selectively to weed out opposition forces and to promote the interests of allies, and this will be done without judicial and law enforcement protection for the vast majority of citizens affected adversely and unjustly. Instead of bringing about this independence, ruling regimes in Bangladesh continue to exploit and abuse the lack of it.

 

4.6 Compliance with the principle of hearing:

 

We have also noticed that occasionally governmental authorities pass order affecting individual rights without giving a hearing to the affected persons. Many of the writ petitions have been filed complaining the breach of the principles of natural justice. Even we have found cases where the High Court Division passed summary order affecting the rights of persons who had no notice of the institution of such cases, not to speak of having opportunity of being heard. Moni Begum affected with this compliance with the principle of hearing.

 

4.7 Limited access to justice:

 

Overwhelming number of the population is too poor to seek justice in the courts of the country. To them rights and liberty carry no meaning and they suffer silently when their life and liberty are in danger. It is indeed a fact that in many cases, a person with substantial means play with the liberty and property of the poor. A legal aid law was passed by Parliament, but it remains in the statute book without any meaningful progress in executing the scheme envisaged by the Act.

 

4.8 Unfairness in the criminal process:

 

Under section 54 of the Code of Criminal Procedure, the police can arrest without warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information received or a reasonable suspicion exists of having been concerned in any cognizable offence. The police abuse this power and arrest persons without having any material to justify such arrest and on production before a Magistrate who, as a routine matter, passes order for detaining the person for a further period either in jail or in police custody. Moni Begum was arrested without cognizable offence or reasonable complaint. In our second case guilty of police wanted to impose Roni’s friend Nayon.

 

4.9 Contrary Provisions:

 

The Constitution of Bangladesh is ambiguous on torture. While Article 35 (5) prohibits torture, Article 46 allows the Parliament to enact law to acquit “any person in the service of the Republic or any other person in respect of any act done by him in connection with…the maintenance or restoration or order in any area in Bangladesh or validate any sentence passed, punishment, forfeiture ordered, or other act done in any such area”. In other words, article 46 of the Constitution allows the Parliament to indemnify human rights violations of state officials, including torture, by enacting legislation. In our case study Moni begum and Nayon friend of Roni was also arrested and tortured by law enforcing agencies.

 

Overall findings:

 

Bangladesh has the international obligation to ban torture in its domestic law. While the Constitution and Criminal Penal Code make several halting steps towards fulfilling these obligations, the process is not complete.

 

High Court of Bangladesh has found that the Bangladeshi government fails to uphold this obligation to prevent enforced disappearances, extra judicial killing, and custodial torture. Not only does the Code of Criminal Procedure fail to provide adequate safeguard from arbitrary arrest and enforced disappearances, but the government actively prevents media coverage of deaths in custody and has failed to grant visit requests to both the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and the Rapporteur on the Independence of Judges and Lawyers.

 

Although the Constitution of Bangladesh expressly prohibits torture, Bangladesh fails to create a specific definition of torture and therefore allows impunity of law enforcement officials to engage in torture as a result law and order situation of Bangladesh has become uncontrolled by the government and the constitution.

 

 

 

 

 

 

Conclusion

 

The law and order problem was not created in a single day, and the solution will not appear in a single day either. It is possible to keep a few “top terrors” busy in the interim by deploying some mixed-up force, and even to garner a few accolades albeit temporarily, but the root of the problem will remain. And it will leave behind countless memories of human rights violations perpetrated by the state.

 

As said above, rule of law is meaningless unless there be an unhindered access to justice. The present costly and prolonged/dilatory justice-delivery system does not match with the goals of ‘rule of law’. I am not giving the statistics, but it is well known that each court in the country is extremely overburdened and the people need to wait for years and spend almost the last penny to get justice. In order for the ‘rule of law ‘to prevail, there is no better way than to make reasonably prompt and affordable justice possible for the litigants. Closely linked with this is the recruitment of quality lower court judges and a selection scheme, based on merit, knowledge and integrity, for the top court judges.

 

The Constitution has made provision for establishment of rule of law in the country and if the Constitution is followed in letter and spirit, there is no reason why rule of law cannot be achieved. Rule of law cannot be established in the society unless the people in general and the people actively involved in politics have faith in the utility and effectiveness of rule law and have commitment for it. It is sad that respect for and commitment towards rule of law is wanting. Expediency has taken the center stage.

 

Added to this, pervasive corruption and pursuit of politicisation of the services and institutions have seriously undermined rule of law in this country. We have enumerated the instances where the rule of law has been undermined. But this enumeration is in no way exhaustive. If the rule of law is continued to be undermined, the ordered society, which a State stands for, will one day disintegrate. It is high time that we realize that this will not ultimately help anybody, not even those who are reaping benefit by undermining the rule of law.

 

Bibliography

Books/Articles

Craig, Paul P. (1997). “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”. Public Law: 467.

Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202

Dicey, A.V. Ibid, 188.

Dicey, A.V. Ibid,198.

Dicey, A.V. Op. Cit., 350.

Garner, Bryan A. (Editor in Chief). Black’s Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009). ISBN 978-0-314-26578-4. The lead definition given by Black’s is this: “A substantive legal principle”, and the second definition is the “supremacy of regular as opposed to arbitrary power”. Black’s provides a total of five definitions of “rule of law”.

Gultung. J., Theory and Methods of Social Research. 1967, London, p-27

Halim, M. A. Rule of Law.  Constitution, Constitutional Law and Politics: Bangladesh Perspective,Khan,           M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.

Kothari, C.R., Research Methods-Methods and Techniques, 1989, New Delhi: Wiley Eastern

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Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative  Law,5th Ed; Eastern Book Company: 34, Lalbagh, Lucknow-226001, India, 2001;21

Oakeshott, “Rule of Law,” 119 at 164.

Quoited from Raj. Hans., Theory and practice in social Research. 1999. P. 249

Shklar, “Political Theory,” 1

C.K. Thakker, Administrative Law:1996, Eastern Book Company 34, Lalbagh, Lucknow-226001

Wade, H.W.R. Some Constitutional Principles-The Rule of Law, Administrative Law,3rd Ed; clarendon Press: Oxford, 1971; 6

Wilkinson and Bhandarkar, Methodology and Techniques of Social Rsearch. 1997. P- 162

Young. P. V., Scientific Social Survey and Research. 1998.  P. 249.

The constitution of the people’s republic of Bangladesh

 

Cases

Aftabuddin v. Bangladesh, 48 DLR 1; Idrisur Raman v. Bangladesh, 1999 BLD 291 (affirmed in Bangladesh v. Idrisur Rahman, 1999 BLD (AD) 291

Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Special Edition), 1, para  443

Khandker Mustaque Ahmed v. Bangladesh, 34 DLR (AD) 222;Murari Mohan Das v. Banglagesh, 29 DLR 53

Presiding Officer v. Sadaruddin, 19 DLR (SC) 516

The Summary of Submissions in Anwar Hossain Chowdhury v. Bangladesh, 1989, BLD (Spl) 1, (28)

Report

AIN O SALISH KENDRA report, January 2013

Odhikar Fact Finding Report/Mohammad Shahadat HossainRony/ Ashulia, Dhaka/October 2012

Odhikar Fact Finding Report/Moni Begum/Bishwa Colony, Chittagong/July 2012

International Federation for Human Rights (fidh) BANGLADESH: Criminal justice through the prism of capital punishment and the fight against terrorism.

Website Link/Online news portal

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Newspapers

The daily Star, 8th January, 2013

The Independent, 8th January, 2013

The Daily Star, 14th October, 2012

The Daily Sun, 14th October, 2012

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‰`wbK c«_g Av‡jv, 15 A‡±vei 2012

‰`wbK hvqhvq w`b, 2 b‡f¤^i 2012

‰`wbK evsjv‡`k c«wZw`b, 14 A‡±vei 2012

 

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