FUNDAMENTAL RIGHTS

View with images and charts Violation of Fundamental Rights and Remedy under the Constitution of Bangladesh & Role of Police

CHAPTER-1 1.1 Introduction: Equal dignity cannot be ensured to lower caste community unless the community is integrated with mainstream democratic process, which reflects the non-communal and secular spirit of our liberation war. Exploitation by the ruling class over the years has deprived the Dalit community (lower caste) members of every fundamental human right. In the name of establishing religion or achieving some targeted objectives, the ruling class has been exploiting the lower caste community for at least over 3000 years. Exploiting the members of lower caste community has been used as a technique by the ruling class to ensure their own empowerment For a human being dignity means accepting he/she as a human being at first and then ensuring all his/her rights.

1.2 Importance of this research topic: The violation of fundamental rights is not new on this earth and has been being practiced from the early history of the human civilization. The awareness among people concerning the fundamental rights enhanced by the extreme violation the fundamental rights during the 2nd World War. But in the developing and under developed countries, people are still less concerned about their fundamental rights though they are the worst sufferers of the violation of these rights.

The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part Vl of the Constitution of 1972. But general people are not conscious enough about these laws.

To eliminate the violation of fundamental rights from the society, we should make the general people aware of these laws. Moreover, probably the most important step to be made is to effectively implement these laws.

1.3. Methodology The whole research paper has been done in an organized way. First, necessary divisions have been selected. Then, we made every possible effort to collect information required for each section. The methodology followed throughout the research paper has been pointed out bellow: •

Planning the whole research paper,

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Dividing the research paper into four sections:

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Taking advise from honorable course instructor regarding the collection of necessary information,

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Interviewing several renown lawyers,

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Conducting surveys,

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Screening the gathered information,

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Selecting the effective information that can be added in the paper,

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Updating and modifying the paper for several times.

CHAPTER-2 Fundamental Rights in the Constitution

2.1 Basis of the Fundamental Rights Fundamental Rights The fundamental rights of the people of Bangladesh have been enshrined in the Constitution of the country. All past laws inconsistent with these rights were made void by the Constitution, and it enjoined upon the State not to make any law inconsistent with these rights. Certain rights may, however, remain suspended under the provisions of articles 141(a), 141(b) and 141(c) during an emergency arising out of a threat to the country's security or economic life1.

Fundamental rights give the citizens dignity of life in an atmosphere of freedom and justice beyond the man-made fetters that had constricted their physical and mental horizons. Modern judiciary is regarded as an excellent product of civilization to put the concept of justice to work in the midst of divergent forces with conflicting class or individual interests. Such conflicts make it difficult to bring about equilibrium in the society for a peaceful and orderly association of citizens for their common good2. An independent judiciary and strong democratic institutions are the best guarantee against assaults on the rights of the citizens.

2.2 Fundamental Rights: The term fundamental rights is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are called fundamental rights. They are fundamental rights in the sense that they are placed in the supreme or fundamental law of the land, which has a supreme sanctity over all other law of the land.

The French declaration of Rights of Man and Citizen 1789, and the American Declaration of Independence 1776, and the Incorporation of a Bill of Rights in the U S constitution 1791 1 2

Parliament passed the Leagal Aid Ain, 1999 and the Government has adopted a scheme of lefal aid.

Maneka Gandhi v. India, AIR 1978 SC 597, 620.

most of the democratic countries with written constitution are including a chapter for Bill of Rights or Fundamental Rights with special sanctity3.

The Object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they cannot be taken away by ordinary process of law making. They are placed beyond the reach of the executive and the legislative to act in violation of them. Justice Jackson pointed out the object of the incorporation of fundamental rights in the US Constitution ---“The very purpose of Bill of Rights is to withdraw certain subjects from the vicissitude of political controversy; to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts4.

In Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9, The Supreme Court of Pakistan held that, “ The very conception of a fundamental right is that it being a right grunted by the constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by the law5.’

The Pakistan Supreme court in reaffirmed the same view in the case -State V. Dosso.

In Golak Nath Vs State of Punjab, The Indian Supreme court held that, ‘The declaration of the fundamentals rights of the citizens are inalienable rights of the people the constitution enables an individual to oppose successfully the whole community and the state to claim his right6.’

Rights and freedoms from the bedrock of democracy. No can function successfully in the absence of some basic freedoms Again, modern democratic government is apart government .The party winning majority in the election from the government. But coming into power the government may turn itself into a dictatorial one violating the basic rights for the people and oppressing the opposition. The aim of having a declaration of fundamental rights in the constitution is to prevent such a possible danger. In other words, they provide a restraint on the power of the government so that it cannot interfere with the peoples basic rights according to its whims 7. When rights and freedoms are placed in the constitution they become the part of 5 the supreme law and the government cannot take them away except by constitution amending process, which is always rigid one. This is why insertion of a bill of rights in a written constitution is considered to be one of the safe guards of democracy.

It is important to mention here that in Britain there is no Bill of rights; no formal declaration of any fundamental rights has ever been made, it neither does nor, of course mean that the rights of the people are less granted in Britain what are fundamental rights under written constitution are all ordinary rights in Britain. There protection of rights and freedoms rests 3

Ian Loveland – Constitutional Law, 1996, p. 560; see also H. W. R. Wade – Administrative Law, 6th ed. P. 30.

West Virginia State Bd. Of Edn. V. Barnette, 319 US 624, 639.

5 Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9 6 AIR 1967 SC 1643 (overrulled in Kesavananda Bharati v. Kerala, AIR 1973 SC 1461.)

7 9 DLR (SC)_ 21, 44; see also the odservation of Kaikaus J in Pakistan v. Syed Akhlaque Hussain, PLD 1965 SC 527, 580 4

not on constitutional guarantees but on supremacy of law, i.e. the rule of law, public opinion and strong common law tradition s. though the British parliament , under the doctrine of parliamentary supremacy ,can any time abridge ,modify or abolish any rights of the people , it is the deep rotted democratic traditions and vigilant public opinion which act as a constant check on the parliament to do that and the power of the executive is limited in the sense that it cannot interfere with the rights of the people without the sanction of law and it is , under the doctrine of rule of law , answerable to the courts for any action which is contrary to the law.

2.3. Fundamental Rights Provisions the Constitution of People’s of Republic Bangladesh

The fundamental rights in Bangladesh are listed under Articles 27 to 44 of Part III, and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in Article 102 of Part VI of the Constitution of 1972.

Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law, and the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth8.

Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law9.

Articles 29 provide that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic irrespective of religion, race, caste, sex or place of birth. Nothing in this article shall prevent the State from making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic.

Article 33 provides that no person who is arrested shall be detained in custody without being informed 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. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours 8 9

Part III, Art. 27 & 28 of the Constitution of the People’s Republic of Banglaadesh, 1972 Part III, Art. 31 & 32 of the Constitutionof the People’s Republic of Bangladesh; 1972.

of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for preventive detention10.

Article 34 guarantees that all forms of forced labor are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall apply to compulsory labor by persons undergoing lawful punishment for a criminal offence, or required by any law for public purposes11.

Article 35 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law12. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

Article 36 provides that subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh13.

As per Articles 37 and 38 every citizen shall have the right to form associations or unions, to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of morality, public order or public health.

Freedom of thought and conscience is guaranteed in Article 39 of the Constitution. Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence the right of every citizen to freedom of speech and expression, and freedom of the press are guaranteed14.

Article 40 provides that subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.

Article 41 provides that every citizen has the right to profess, practice or propagates any religion, and every religious community has the right to establish, maintain and manage its religious institutions.

10

Constitutional Law of Bangladesh; Islam Mahmudul; 2nd edition; p.283.

Opcit. 8.

12 Opcit. 10. p.284.

13 Art. 36 of the Constitution of the People’s Republic of Bangladesh; 1972.

14 Opcit. 8. p 285.

11

Article 42 of the Constitution provides that every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.

According to Article 43 every citizen shall have the right to be secured in his home against entry, search and seizure, and to the privacy of his correspondence and other means of communication.

Article 44 guarantees the right of every citizen to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of any of the fundamental rights conferred by Part III of the Constitution.

Law Conflicting with the Fundamental Rights Provisions of the Bangladesh Constitution: There has been much discussion in Bangladesh on legislation that may be deemed as being inconsistent with the provisions relating to fundamental rights, as set out in the Constitution.

There has also been considerable discussion in Bangladesh about the absence of implementation of the fundamental rights granted under the Constitution. The problem is further compounded by the fact that the fundamental rights provisions of the Constitution have been afflicted by their suspension under military governments, and in one case, by the declaration of emergency15.

Again, the Constitution has itself been of an unfolding nature in that several of the fundamental rights provisions are being continuously interpreted by the Courts, it also a feature that a particular legislation affecting fundamental rights was not challenged. In a series of decisions passed by the Supreme Court, laws, which were challenged in court, have been struck down. But in such instance the fact remains that the matter had to be presented before Court. It has also been a feature that several laws have not been taken to Court to date.

Any attempt to set out of a comprehensive list of laws, which would be conflictive of the fundamental rights provisions of the Constitution, would perhaps be of no evil, since there is both existing legislation and a continuous enactment of laws. Further, an aggrieved person may still not appear before the Court to assert their rights whereas at the same time a challenge in Court may take considerable time for a judicial declaration on the law16.

It is against the background that the issues of laws currently conflictive with the fundamental rights provisions of the Constitution have been approached. In the research undertaken there has been an attempt to identify broad areas of conflict between the existing legislation and the fundamental rights provisions. However, before presenting our findings, an explanation is of the fundamental rights provisions themselves and the methodology used to arrive at our findings.

2.4. Conflicting Laws: Most of the laws, which are conflictive with the fundamental, rights Provisions of the Constitution, violate the basis principles of Article 27 and 31. Some of the laws also come 15 16

Constitution and Constitutional Law of Bangladesh; Md. Abdul Halim p.99.

Ibid. 15. p. 101.

into conflict with other fundamental rights as well for the example, the right to personal liberty, and the right to property guaranteed by the Constitution.

My research reveals that the following laws are conflictive with one or more of the Fundamental Rights Provisions of the Constitution: 1. The vested and Non-Resident Property (Administration) Act 1974 2. The Special Powers Act 1974 3. Section 54 of the Code of Criminal Procedure 1898 4. The Bangladesh Citizenship (Temporary Provisions) Order 1972 5. The Indemnity Ordinance 1975 6. Order V, Rule 1(3) of the Code of Civil Procedure 1908 7. Various retrospectives legislation, including the Fifth and Seventh Amendments to the Constitution.

8. The Official Secrets Act 1923 9. The Secretarial Instructions, 1976 ad the Rules of Business, 1996 10. Certain Provisions of the income Tax Ordinance 1984 Under Section 8 of the Vested and Non Resident Property (Administration) Act 1974, a committee, may charge of any non-resident property within its jurisdiction. Section 9 of the Act gives the committee all rights and liabilities of the non-resident concerned in respect of the property17. Thus the right of a non resident who is not necessarily a foreign national, as defined in Section 2(d) is not treated equally with respect to his property and doesn’t receive equal protection of law. A non-resident whose property has been vested in a committee needs provisions permission of the committee to exercise his right to dispose of the property under Section 10. Thus his right to property guaranteed under Article 42 of the Constitution is curtailed.

Section 3 of the Special Powers Act provides that Government may, with a view to preventing a person from doing any prejudicial act make an order directing that such a person be detained18. Thus a person may detained before he commits any unlawful act just on the basis of suspicion that he might commit some prejudicial act and his right to personal liberty guaranteed by the Article 32 of the Constitution is curtailed.

Section 54 of the Code of Criminal Procedure provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person against whom a reasonable suspicion exists of his having been concerned in any cognizable offence.

Therefore under section 54 there is reasonable ground for arresting a person without a warrant. Thus a person liberty may be curtailed by his arrest if reasonable suspicion exists as to his having been concerned in a cognizable offence19.

Section 2(1) of the Bangladesh Citizenship (Temporary Provisions) Order 1972 states17

The vested and Non-Resident Property (Administration) Act 1974 Sec. of the Special Powers Act 1974 19 Sec. 54 of the Code of Criminal Procedure.

18

“Every person shall be deemed to be a citizen of Bangladesh – who or whose father or grandfather was born in the territories, now comprised in Bangladesh and who was a permanent resident of such territories on the 25 th day of March 1971, and continuous resident.20” The above provision violates the provision of equality before the law and is discriminatory against women.

Similarly Order V, Rule 1(3) of the Code of Civil Procedure does not ensure prohibition of discrimination on grounds of sex. The said sub rule provides On the application of any defendant in a suit for the payment of money, in which the plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such Plaintiff does not posses any sufficient immovable property within Bangladesh.

The above provision applies only to a female Plaintiff who does not possess sufficient immovable property within Bangladesh and is as such discriminatory.

The official Secrets Act 1923 in its section 5 make the communication of any official information by a Government Officer an offence punishable under the said Section and thereby prevents citizen from having access to official information 21. Thus, equality before the law is not ensured by the Official Secrets Act 1923.

2.5. Absence of Laws: Certain fundamental rights provisions of the Constitution suffer from non-implementation, the absence of laws providing for implementation of these provisions results in violation of the fundamental rights. Article 28 of the Constitution provide for non-discrimination only on grounds of religion, race, castes or place of birth. This Article also provides for making special provisions in favor of women or children or for the advancement of any backward section of citizens. But absence of laws ensuring the implementation of the above provisions results in violation of fundamental rights of women, children, religious or other minorities.

2.6. Effect Legislation violates of the Constitution: Certain legislation has been held to be violating of the fundamental rights provisions of the Constitution. The Government Owned Newspaper (Management) Act of 1975, so far as it relates to item No. 1 (Al-Helal printing and publishing Co. Ltd) and item Np. 4 (associated printer Ltd) in schedule to the said Act, was declared to have been enacted and made in violation of the provisions of Articles 27 and 39(2)(b) of the Constitution. Accordingly these two items in the schedule of the Act are struck down.

Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190 -----In the above case it was held that the Government owned Newspaper (Management) Ordinance 1975 was violate of Article 39(2)(b) of the Constitution. The dissolution, taking over and vesting of the assets of the two companies of the petitioners, purported to have been done under Section 6 of the said Act, and specifying them in the schedule of the enactments therefore so far as they relate to dissolution of the petitioner companies and the vesting of their assets etc as had been provided under Section 6 of the aforementioned Ordinance and Act are liable to be struck down22.

20

Section 2(1) of the Bangladesh Citizenship (Temporary Provisions) Order 1972.

Provisions No. 5 of the Official Secrecy Act. 1923.

22 Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190 21

The Government (Servants Seniority of Freedom Fighters) Rules 1979 divided persons in the service of the Republic between freedom fighters and non-freedom fighters and granted two years antedated national seniority by legal fiction to freedom fighters. These Rule were held to be violate of the equality clauses of Articles 27 and 29 of the Constitution Zainal Abedin Vs Government of Bangladesh 94 DLR 77 Conflict with rights may arise in other ways when a person becomes a licensor and license at the same time Conflict of interest may arise between the licensor and the licensee.

Bangladesh Telegraph and Telephone Board (BTTB) and Rajdhani Unnayan Kartipakhya (RAJUK) grant license to other bodies to do business. At the same time they do business of their own. Thus the status of RAJUK or BTTB may create rights conflictive with other colicensees. Such conflict may arise in cases where the government itself is the licensor and a para-statal is a licensee often the Board of Directors of such para-statal consists of people representing the government23.

The laws, which would be, violate of the fundamental rights provisions of the Constitution may be categorized. Some laws are directly conflictive with fundamental rights for example, the Special Powers Act 1974. The vested and Non-Resident Property (Administration) Act 1974 some Martial laws.

Certain laws may derogate from the fundamental rights but they are not necessarily in conflict with the fundamental rights because they are protected by the Constitution itself – for example, personal laws.

There may be certain laws, which are not conflictive with the Fundamental Rights Provisions of the Constitution, but their non-compliance may cause a conflict with the fundamental rights guaranteed under the Constitution –for example the Secretarial Manual and Secretarial Procedures.

The absence of laws may create conflict with certain Fundamental Rights Provisions of the Constitution. Certain laws are not necessarily directly conflictive with the Fundamental Rights Provisions but their retrospective effect validated laws conflictive with the Fundamental Rights Provisions – for example the Constitution (5 th Amendment) Act 1979 and the Constitution (7th Amendment) Act 1986. Both these Acts validated all actions taken under Martial Laws Proclamations.

2.7. Writ Petition under the Constitution of Bangladesh If fundamental rights is violate the aggrieved party may take remedy by the Constitution of Bangladesh under Article 102.

According to Article 102 of the Constitution “The High Court Division on the application of any person aggrieved, may give such directions or order to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part 3 of this Constitution”.

The Supreme Court of Bangladesh can exercise this jurisdiction under Article 26 and 102 of the Constitution Judicial enforcement, on the other hand, is provided for with a view to enforcing fundamental rights against the executive. In other words, if any public authority 23

Zainal Abedin Vs Government of Bangladesh 94 DLR 77

violates any of fundamental rights enumerated in the Constitution, the right to move the highest court of the land for enforcing that right must be specifically guaranteed in the Constitution and it should be guaranteed as of an independent fundamental rights. This right is guaranteed in Article 44 and the High court division of the Supreme Court is empowered to enforce fundamental rights under Article 102 of the Bangladesh Constitution24.

CHAPTER-3 VIOLATION OF FUNDAMENTAL RIGHTS IN BANGLADESH PERSPECTIVES Fundamental Rights violated in all of the third world countries. All third world countries Constitution ensured this right but they cannot exercise it. In the view of our country fundamental rights violation is highly, today in the view of our country our executive body, our legislative body, our judicial body violates the fundamental rights.

3.1. Violation of Fundamental Rights by Government

Once again the government has promulgated an uncivilized ordinance that defies all norms of humanity and violates fundamental human rights. During the 87 days of the army operation that began on 16th of October 2002, a black chapter has been added in the history of Bangladesh. It may be mentioned that under direct orders from the Prime Minister. They Army operation known as ‘Operation Clean Heart’ has resulted in serious violation of human rights and political persecution.

The promulgation of this black ordinance denies the right to justice to 50 victims of army custodial deaths and to others who became handicapped and lame due to inhuman physical 24

Powers empowered to the High Court Division under the Constitution of Bangladesh in Art.102.

torture25. This discriminatory and unlawful ordinance gives immunity to the members of the joint forces and the administration for their action during the ‘Operation Clean Heart’ between October 16, 2002 and January, 2003. With this the door of justice has been shut for the people depriving them their right to equal justice and security 26. No court of Bangladesh can try the forces for their acts.

It can be firmly said that the government is solely responsible for their rapid deterioration of law and order situation, wide spread violence, mismanaged economy and frustrating sociopolitical condition. Ever since the government usurped power through the rigged election of October 1, 2002, a reign of terror has been unleashed by terrorists belonging to BNP-Jamaat alliance27. The leaders, activists and supporters of Awami League and the minority community became the victims of the worst ever repression and political vendetta. Political persecution and the degree of atrocities intensified with the release of 45 thousand identified criminals who are the cadres of the ruling party.

In the last one year, it is not only the political activists who suffered, the common people having nothing to do with politics suffered gravely in the hands of the cadres of the ruling party alike. Terrorists having blessing of the government have taken a toll of life of 24 thousand innocent people. Women, young and old, were subject to gang rape. Mothers and daughters were assaulted and violated irrespective of their age throughout the breadth and length of Bangladesh. Widespread violence, extortion, forceful occupation, vandalism, nepotism became rampant throughout the country.

Failure and mismanagement in all spheres of life be it financial, commerce and industry, educational institutions have shattered the hopes of common people. The complete break down of law and order has created a state of chaos and anarchy. In the backdrop of the massive failure in all spheres of government had its civil administration called in the army to run the country28. Though, the 87 day-long anti-crime drive brought some relief to the people, the case of 50 deaths in army custody and the physical and mental torture of people in custody created a frightening situation in the country 29. The ruling alliance used the army operation to oppress, harass and arrest leaders and workers of main opposition Awami League and other political parties.

The violation of fundamental human rights and cases of political persecution has led to widespread condemnation both at home and abroad. The bright image of Bangladesh has been tarnished in the international arena as a result of this. The role of armed forces that are meant to protect the country from external aggression and guarding its sovereignty has been made controversial. Though some respite from the terrorists was observed yet the hardcore criminals enjoying government blessing evaded arrests. Under political pressure the administration released criminals possessing illegal arms mysteriously, on the other hand no members of the fundamentalist party Jamaat was arrested during the army operation.

25

Informations taken from the Newspaper; named THE DAILY BANGLADESH OBSERVER. Dated 25 January 2003.

26 BLAST Annual Report; 2002.

27 Ibid. 15 28 Ibid. 27.

29 Ibid. 15.

Though one would tend to believe that the army was withdrawn in the face of strong criticism of violation of human rights, in reality the sudden withdrawal of army was done to fulfill narrow partisan needs. The ulterior routine of this withdrawal is to capture the local government institutions during the ensuring UP polls. All previous elections held under this regime such as by-elections, city corporation elections were anything but fraudulent. This regime wants the local government election results in their favor this time as well. Hence the pullout of army is seen as a tactical ploy. Strangely enough the government is playing hide and seeks with respect to matters relating to army operation. No discussion was allowed on army deployments in the parliament despite strong demands. There is no explanation on the part of the government as to the legal basis for army deployment.

On its first anniversary on October 10, 2002 the Prime Minister claimed improvement in law and order situation. What happened within the next 6 days that the army had to be called in on the midnight of 16th October, 2002? The government neither cares for the voters or for accountability. It does not respect neither has faith in the constitution and in parliamentary democracy. This explains why the present regime promulgated speedy justice trial by passing the parliament and the current black Indemnity Ordinance.

Legal and constitutional experts believe that fundamental human right has been seriously violated with the promulgation of the ordinance. Article 27 of the constitution clearly spells out that, “Everyone is equal in the eye of the law and every citizen has the right to seek legal shelter�. No government can snatch away this fundamental right 30. Prime Minister Khaleda Zia violated the constitution by deploying the army, which was her unanimous decision.

The ordinance was promulgated to indemnify her from the offense she made by violating the constitution and basic human rights. It is simply unconceivable that at the dawn of 21st century citizens can no longer take legal shelter of deaths that occurred in custody31. Once again the identify of Bangladesh as a nation of democratic and law abiding citizens has been seriously jeopardized through the promulgation of such a black and infamous ordinance.

3.1.1 Operation Clean Heart in Bangladesh:

30 31

Taken from the Daily Star Newspaper; published as an article by Sahdin Malik, Journalist; p. 10.

Ibid. 30.

The Article 11 of the Constitution of the People's Republic of Bangladesh states that; "The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured."

After the presumed failure of civil administration, in the name of restoring law and order in the country, the government of Bangladesh has launched a military lead operation commonly refereed to as "Operation Clean Heart". Thus far, the operation remained unaccountable and is based upon the vague institutional boundaries among the civil administration and military as well as without clear internal guidelines. There had been numerous reports of serious human rights violations such as extra judicial killings, deaths in custody, torture and arbitrary action by the military during this operation. Newspaper report of 26 deaths in custody and hundreds of people arrested arbitrarily by the authorities32.

A recent incident brought to AHRC s attention is of the arrest, harassment and intimidation of journalists in Bangladesh by the military and police. The arrests came after an intimidation campaign by state security police against the journalists and their two assistants. Directors of the Bangladesh Centre for Development, Journalism and Communication (BCDJC) have been also under surveillance and threatened for helping the foreign journalists 33.

In the current scenario, major reason of human rights violation is the involvement of noncivilian institutions in civil administration in a democratically governed country. In reality, the situation has worsened by the fact that civil administration is in the hard work of legitimizing the crimes such as extra judicial killings, deaths in custody resulted by torture and human rights violations committed during the Operation. AHRC fears that this action will have serious consequences on the democratic institutions and poses a sever threat to the democracy in Bangladesh. At the same time, the situation seems to be indicating towards the use of state institutions in eliminating political rivalry.

Countries with the worst human rights record have some basic indicators that deny individuals their basic legal rights. For example establishment of military courts to deal with criminal matters; lack of understanding among political leadership of the country in realizing the difference in Civil Disorder and National Emergency; military and police having overlap of activities, and many more of this nature.

32 33

Annual Report of the Human Rights Commission, 2003 Ibid. 18.

AHRC is deeply concerned about the current operation and in the light of rights guaranteed by the constitution of the republic; AHRC voices the following concerns of the public of Bangladesh and of the international community34.

1. Applicable law requires that in administration of justice Police should deal with criminal offenses. What is the level of police involvement and what are the legal guidelines to deal with this situation?

2. If such operation has been launched under the presumption on the failure of civil administration, has the government made enough efforts in reforming the police?

3.

Has the government exhausted all means to improve the situation?

4. Under which applicable legal framework Military has presumed such a role in Law and Order and administration of justice?

5. If there is some legitimacy in Military's mandate in administration of justice, then what exactly is the role of Military and police in Bangladesh?

6.

Simultaneously, the people of Bangladesh and the international community are interested in knowing the future planning of the government in the administration of justice.

7. Which internal procedure, guidelines or directions have been followed by the military during the Operation Clean Heart?

8. Who has determined the criminality of people arrested, tortured and killed during the course of so called law and order restoration?

9. The military arrests and the current practices imply that the state institutions have gone through the processes of proving the criminality of listed individuals. Could the state make such information available to the public?

AHRC would appreciate if the relevant authorities take necessary measure to provide the public and the international community with the required information. In the absence of any answer, this operation is not only in violation of the applicable law of the country but is a serious breach of International Human Rights Law and international standards of the administration of justice.

As a regional Human Rights Network, AHRC appeals to the Bangladesh Judiciary and the international bodies to intervene and peruse an independent investigation into gross human rights violation committed by the state actors in Bangladesh.

1. Death of an old man on November 2nd at the Tangail General Hospital is among the many others reported and UN reported cases35.

34 35

2.

Arrest of Jatiya Party Leaders in Nilphamari District.

3.

The national newspapers use the term-listed terrorists.

The voices of AHRC taken from the Daily Star Newspaper.

Ibid. 20.

3.1.2

By Rapid Action Battalion of Bangladesh

Limon has lost his leg by the bullet of RAB Rapid Action Battalion elite force of Bangladesh violates the Fundamental Rights in very highly. RAB has been exercising their activities beyond the Constitution. RAB has been violating the following Articles of Constitution.

Article 33 provides that no person who is arrested shall be detained in custody without being informed 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. 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, and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested or detained under any law providing for Articles 27 and 28 of the Constitution provide that all citizens are equal before law and are entitled to equal protection of law.

Article 31 and 32 provide that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, and no action detrimental to the life, personal liberty, body, reputation or property of any person shall be taken except in accordance with law.

Article 35 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

3.1.3. Harassment of Leaders of the Indigenous People: Amnesty International is concerned about reports that four leaders of Bangladesh’s indigenous populations three of whom are from the Chittagong Hill Tracts (CHT) – have become the targets of official harassment and intimidation for demanding the fulfillment of the indigenous peoples’ rights. According to newspaper reports, Mangal Kumar Chakma, Mrinal Kanti Tripura, Ina Hume and Albert Mankin are to appear before the parliamentary Standing Committee on the CHT Affairs Ministry in Dhaka for comments they made at the

United Nation's Permanent Forum on Indigenous Issues in New York May, 2005 36.

A summons to this effect is reportedly being prepared by the standing committee. It is believed to have been prompted by allegations sent to the committee through the Bangladeshi diplomatic mission in the United States alleging that the statements of the indigenous leaders contained anti-state references. The committee has said that if the indigenous leaders did not provide satisfactory answers, legal action would be taken against them. Amnesty International has studied the statements of the indigenous leaders to the above-mentioned UN forum and has found nothing outside the remit of their fundamental rights to express their political views freely and peacefully. The issues they have raised are fully compatible with the purpose of the UN forum and with the provisions of the CHT peace accords, which were signed in December 1997 between the Government of Bangladesh and representatives of the CHT tribal people37. Their demands for the implementation of the provisions of the peace accords amounts to nothing more than a legitimate criticism of the government’s failure to fully abide by its obligations within the ambit of the Peace Accords.

The issues raised by the indigenous leaders and the manner in which they have been voiced at this UN forum are fully in line with the provisions of the International Covenant on Civil and Political Rights (ICCPR) to which the Government of Bangladesh is a party.

In particular, they fall within the ambit of Article 2 of ICCPR which states: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice38.

The standing committees’ plan to summon the indigenous leaders may amount to a politically motivated measure aimed at suppressing the peaceful expression of their critical views.

The tribal people of the Chittagong Hill Tracts have for long been the targets of massacres, arbitrary detention, torture and extrajudicial executions during the years of armed conflict (mid-1970s to 1997). The signing of the peace accord between the Government of Bangladesh and tribal representatives in December 1997 appeared to provide assurances that their civil and political rights as well as their economic, social and cultural rights would be respected. However, seven-and-a-half years after the signing of the accord, the Government of Bangladesh has failed to implement fully some of the most crucial provisions of the accord39. These include the rehabilitation of all returned refugees and internally displaced families, settlement of land confiscated from the tribal people during the conflict, withdrawal of non-permanent army camps from the Chittagong Hill Tracts and transfer of power within the provisions of the peace accord to the local CHT administration.

3.1.4. Effect of Martial Laws:

36

Annual Report of the Amnesty International, 2005.

Ibid. 36.

38 Article 2 of the International Covenant on the Civil and Political Rights, 1966.

39 Opcit. 22.

37

By a Martial law Proclamation of 20 August 1975, the Constitution continued to remain in force but it was made subject to the Martial Law Proclamation and the Martial Law Regulations and Orders or other Orders made by President Moshtaque. All Courts including the Supreme Court ware denied any power to call in question or declare void or illegal Martial Laws the Second Proclamation Order No 3 of 1976 omitted the provision to Article 38 which provides for freedom of the said association. The provision was as follows.

“Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of any commercial or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.40” 4.Violation of the Ahmadya Community’s Rights Members of the "Ahmadiyya Muslim Jamaat", a religious community which considers itself a sect of Islam, has been the target of a campaign of hate speech organized by a number of Islamist groups in the country in recent months.

4.1Oppression upon Ahmadiyya Community These groups have mobilized crowds to chant anti-Ahmadiyya slogans, have sought confiscation of Ahmadi mosques, and have demanded that the government declare the sect non-Muslim. Members of the Ahmadiyya community in Bangladesh, about 100,000 in number, have been living in fear of attack, looting and killing since around October 2003 when the Anti-Ahmadi agitations began41.

The agitators have been involved in "excommunication" and illegal house arrest of Ahmadis, the killing of an Ahmadi Imam (preacher), beating of Ahmadis, and marches to occupy Ahmadi mosques.

While the Government of Bangladesh has acted to prevent the crowds from entering Ahmadi mosques, it has taken no action against the perpetrators of the hate campaign. Fundamental rights of the Ahmadis have been further violated by a government ban on their publications.

Amnesty International is urging the Government of Bangladesh to ensure the safety and security of the Ahmadiyya community; uphold its members’ right to practice their religion without fear of persecution; lift the ban on their publications; and ensure that those responsible for attacks against Ahmadis are brought to justice42.

4.2 “Excommunication" and illegal house arrest of Ahmadi villagers On 21 October 2003, an estimated 100 people including women and children belonging to 17 Ahmadi families in the village of Uttar Bhabanipur in Kushtia District were declared "excommunicated" by a local Islamist leader opposed to the Ahmadis. Under his edict, Ahmadis were forbidden from buying or selling goods in their village, from harvesting their crop, from talking to each other in the presence of other villagers, and from sending their children to school43. They were effectively held under illegal house arrest with anti-Ahmadi Islamist activists enforcing the edict. Their plight ended after about 25 days when the Home

40

The Martial Law Proclamation and the Martial Law Regulations and Orders or other Orders made by President Moshtaque. All Courts including the Supreme Court ware denied any power to call in question or declare void or illegal Martial Laws the Second Proclamation Order No 3 of 1976 which also omitted the provision to Article 38 of the Constitution of the Peoples Republic of Bangladesh.

41 The Daily Star, March 25, 2003.

42 Ibid. 41.

43 The Daily Observer, 22, October. 200.

Ministry intervened following intense lobbying of the ministry by leaders of the Ahmadiyya community. However, no one has been brought to justice for these illegal acts.

4.3 Killing of an Ahmadi preacher Shah Alam, the Imam of a local Ahmadi mosque in the village of Raghanathpur Bak in Jessore District was beaten to death on 31 October 2003 44. He was killed in front of his family by a crowd of some 90 men led by a local Islamist leader. They attacked him because he did not yield to their demand to recant his Ahmadiyya faith. During this attack, two other members of the community were severely beaten and injured. A First Information Report FIR, which is required for a criminal investigation to begin - was accepted by the local police on the same day, but reportedly only after the Intervention from the Home Ministry. In the FIR, Shah Alam’s family has named 16 people as being directly involved in the beating and murder of Shah Alam. No one, however, has been arrested even though there is no obvious doubt about the identity of the assailants. No charges have been brought against anyone for this murder. At the same time, the brother of one of the assailants reportedly filed a case on 16 November 2003 against members of the Ahmadiyya community in the village, accusing them of taking non-Ahmadis hostage even though there has been no evidence of any such activity by the Ahmadis45.

4.4 Street agitations against Ahmadis The largest of the anti-Ahmadiyya agitations in the past six months took place on 21 November 2003. Moulana Moahmud Hossain Mumtazi, the leader of an Islamist group called Khatme Nabuwat, reportedly led thousands of young men on a march attempting to occupy an Ahmadi mosque in Tejgaon area of Dhaka. This event was followed by another big march on 5 December on the same mosque. During these events, the marchers were armed with sticks and bricks and were shouting hate slogans against Ahmadis. The group carried out similar anti-Ahmadiyya agitations every Friday of the week for several months, persisting in their demands for the Ahmadis to be declared non-Muslim.

The police took action to prevent the crowds from entering Ahmadi mosques. However, it took no action against the agitators who chanted anti-Ahmadi hate slogans, threatened to attack Ahmadis, and created an atmosphere of fear and intimidation for them.

4.5 The banning of Ahmadiyya publications In a press release issued on 8 January 2004, the government announced that the publications of the Ahmadiyya community, including the Koran and any translations or interpretations of it, would be banned from the following day. No further information was made available and no government communication explaining this announcement was sent to members of the Ahmadiyya community46. The government press release said the ban had been imposed "in view of objectionable materials in such publications that hurt or might hurt the sentiments of the majority Muslim population".

The ban highlighted the possibility that the government had yielded to pressure from antiAhmadi Islamist groups. According to reports in Bangladeshi newspapers, it had been imposed at the instigation of Islami Oikya Jote, a political party and junior partner in the coalition government.

44

Ibid. 28. 1st Novenber 2003.

Ibid. 29. November 17, 2003.

46 Ibid. 45. January 9, 2004.

45

The ban openly defies international human rights safeguards guaranteeing freedom of religion. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a state party state: "Everyone shall have the right to freedom of thought, conscience and religion.

This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching47."

In its General Comment on this article,, the Human Rights Committee (HRC) specifies that the freedom to manifest religion or belief ---"Extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest." The HRC further states that "the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications."

Similarly, according to the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the right to freedom of thought, conscience, religion or belief includes the freedom to write issue and disseminate relevant publications in these areas."

The right to freedom of expression is another fundamental human right and is provided for in Article 19 of the ICCPR: "1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order c), or of public health or morals."

There appears no basis for imposing the ban even under the Bangladeshi law. Fundamental rights including freedom of religion are guaranteed under Part 3 of the Constitution of Bangladesh. This is significant because the Constitution prohibits any laws inconsistent with the provisions of Part 3. Article 41.1 in Part 3 of the Constitution provides that: "(a) Every citizen has the right to profess, practice or propagate any religion; (b) Every religious community or denomination has the right to establish, maintain and manage its religious institutions;

47

International Covenant on Civil and Political Rights (ICCPR) 1966; Article 18.

In Part 3, the Constitution also prohibits discrimination on grounds of religion: "28. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth".

The Constitution similarly guarantees freedom of expression. Article 39 of the Constitution provides that: "(1) Freedom of thought and conscience is guaranteed.

(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence(a) The right of every citizen of freedom of speech and expression; and (b) Freedom of the press, Are guaranteed" While provisions for both these rights are subject to restrictions, the government’s explanation for the ban, namely that the publications "hurt or might hurt the sentiments of the majority Muslim population of Bangladesh," cannot be accepted as reasonable grounds for restricting these rights. Members of religious majorities may often wish minorities to join the dominant religion, and feel hurt if they do not. This may be so especially in the case of sects of the same religion or separate religions relying on the same sources. However, accepting such wishes or feelings by majorities as legitimate reasons to limit minorities’ religious freedom would legitimize widespread oppression of minorities. In its General Comment on Article 18, the HRC stated that it “Views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community."

The ban has therefore been imposed in defiance of safeguards for freedom of religion and expression in both the Constitution of Bangladesh and intentional human rights law. It is also openly discriminatory: it has prevented members of the community from issuing publications or press releases to defend themselves in the face of hate speeches and accusations leveled against them by anti-Ahmadi Islamist groups.

4.6 The latest development regarding the Bangladesh In early March 2004, it came to the attention of members of the Ahmadiyya community that the government had issued an official circular to central, divisional and district officers naming some 20 Ahmadi publications to be banned. It was indicated in the circular that it had been sent to the government official press for publication in the official gazette. As of midApril 2004, it had not been published in the official gazette but instruction has reportedly been sent to the police to remove these Ahmadi publications from circulation. The police are not known to have implemented these instructions save in a few instances48.

Amnesty International has obtained an unofficial translation of this circular. It names a number of Ahmadi publications including the Koran and its commentary, stating that they have "defamed Islam, social and political harmony", and that their "publication, distribution, sale and preservation" are banned.

48

The Bangladesh Today, April 19, 2004.

This action by the government has further aggravated the plight of the Ahmadiyya community. There are reports that local Islamist leaders in rural areas have been putting pressure on the local administration to allow them to enter Ahmadi homes and remove the banned publications49.

4.7. Amnesty international’s recommendations Amnesty International urges the Government of Bangladesh to rescind immediately the ban imposed on Ahmadi publications50. The organisation further calls upon the government to declare publicly:

49 50

i.

Its full support for the right to freedom of religion in the country;

ii.

That it would not yield to the demands of the Islamist groups which are discriminatory in nature and in violation of the rights of members of the Ahmadiyya community to practice their religion in an atmosphere free from fear, intimidation and persecution;

iii.

That no acts of intimidation and violence against members of the Ahmadiyya community would be tolerated, and that all perpetrators of such acts will be brought to justice; In addition, Amnesty International urges the Government of Bangladesh to institute an independent and impartial investigation by a competent authority into past attacks against the members of the Ahmadiyya community and the violation of their fundamental rights. In this regard: the inquiry should seek to identify the killers of Shah Alam, the Imam of a local Ahmadi mosque in the village of Raghanathpur Bak in Jessore District on 31 October 2003, and the beating of other Ahmadis at the time; it should make recommendations for the prosecution of those suspected of being responsible;

iv.

The inquiry should seek to identify those involved in the "excommunication" and illegal house arrest, for about 25 days, of 17 Ahmadi families in the village of Uttar Bhabanipur in Kushtia District in October 2003; it should make recommendations for the prosecution of those suspected of being responsible;

v.

The inquiry should seek to identify local Islamist leaders and others who have engaged in chanting antiAhmadi hate slogans, and have marched to occupy Ahmadi mosques since October 2003; it should make recommendations for the prosecution of those suspected of being responsible;

vi.

The inquiry should seek to establish if any police personnel has acted in connivance with those

Ibid. 48.

Annual Report of the Amnesty International, 2003.

attacking the Ahmadis, and make recommendations for the prosecution of those suspected of such connivance.

All the inquiry’s investigations and all subsequent judicial or other procedures must be carried out in accordance with relevant international standards.

CHAPTER-5 Urgent need for legal and other reforms to protect human rights in Bangladesh For decades, successive governments in Bangladesh have failed to curb serious human rights violations arising from the use of legislation and widespread practices in the law-enforcement and justice system which violate international human rights standards51.

These violations include torture, deaths in custody; arbitrary detention of government opponents and others; excessive use of force leading at times to extrajudicial executions; the death penalty; sporadic attacks against members of minority groups; and acts of violence against women. Over years, Amnesty International has reported on all these human rights violations.

In this report, Amnesty International is highlighting in particular its concerns with regard to two specific laws that facilitate endemic human rights violations in Bangladesh: the Special Powers Act (SPA) which allows arbitrary detention for long periods of time without charge, and Section 54 of the Code of Criminal Procedure (Section 54) which facilitates torture in police or army custody.

Amnesty International recommends that the Government of Bangladesh repeals the Special Powers Act. It is further urging the government to review the Code of Criminal Procedure in order to establish clear and enforceable safeguards against abuse of Section 54 resulting in torture; to ensure that law enforcement agencies understand that torture is a criminal act; and to bring perpetrators of torture to justice.

Amnesty International also believes that the government should urgently address factors which contribute to human rights violations, such as impunity and corrupt practices in law enforcement, and establish an independent, impartial and competent body, such as a national human rights commission, to investigate human rights violations. Amnesty International would welcome the creation of such a body with appropriate power to investigate, and forward their information to the prosecutors so that they undertake prosecution of offenders.

Such a body should, in collaboration with the Bangladesh Law Commission, review all laws that allow for impunity52.

51

K. Hossain CJ. and s. Ahmed J refrained from passing on the constitutionality of the statute as, in their lordships view, the case could be disposed of on ground of malice in law alone.

52 Proposal of AI, Published in the Annual Report of 2005.

The implementation of these recommendations would be a decisive and welcome step towards the fulfillment of Bangladesh’s human rights obligations under international human rights treaties to which Bangladesh is a state party. These include the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.

The current report also makes recommendations about the steps the government should take to ensure proper training of the law enforcement personnel and proper monitoring of their conduct so that they do not violate human rights.

5.1 Arbitrary Detention undermining the Judicial System Each year, thousands of people are arbitrarily detained under administrative detention laws which deny them access to judicial remedies. The most commonly used of these laws is the Special Powers Act, 1974 (SPA).

The SPA overrides safeguards against arbitrary detention in excess of 24 hours in Bangladeshi laws. It allows the government not only to detain anyone without having to justify the detention before a court, but also to keep the detainee in prison initially for up to four months or, in certain cases, indefinitely, without charge.

Amnesty International believes that states should not detain people unless they are charged with recognizably criminal offences promptly and tried within a reasonable period; or unless action is being taken to extradite or deport them within a reasonable period. Human rights standards relating to the rules of evidence and standard of proof to be applied in the criminal justice system have been prescribed in order to minimize the risk of innocent individuals being convicted and punished. It is unacceptable for governments to circumvent these safeguards and Amnesty International believes that it is a violation of fundamental human rights for states to detain people whom they do not intend to prosecute or deport.

The SPA was promulgated by the Awami League Government of Sheikh Mujibur Rahman on 9 February 1974. It allows the government to detain anyone on suspicion of involvement in a "prejudicial act", defined as follows: In this act, unless there is anything repugnant in the subject or context, (f) "Prejudicial act" means any act which is intended or likely (i) to prejudice the sovereignty or defence of Bangladesh; (ii) to prejudice the maintenance of friendly relations of Bangladesh with foreign states; (iii) to prejudice the security of Bangladesh or to endanger public safety or maintenance of public order; (iv) to create or excite feelings of enmity or hatred between different communities, classes or sections of people; (v) to interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;

(vi) To prejudice the maintenance of supplies and services essential to the community; (vii) To cause fear or alarm to the public or to any section of the public; (viii) To prejudice the economic or financial interests of the State;53" Two authorities can invoke the SPA - a) the Government Section 3.1 of the Special Powers Act, 1974 (SPA), and b) the District Magistrate or an Additional District Magistrate Section 3.2 of the SPA. A SPA detention order issued by either of these authorities has the status of a warrant of arrest and is applicable in all parts of the country. A SPA detention order made by the government can remain in force indefinitely subject to confirmation by an Advisory Board (see below) but an order made by the District Magistrate or an Additional District Magistrate remains in force for 30 days "unless in the meantime it has been approved by the Government". Section 3.3 of the SPA In practice, when the government invokes the SPA, it is invariably to detain members of opposition parties. For example, see Bangladesh: Senior Awami League politician in danger of torture.

When the district magistrates invokes the Act, it is usually to secure the detention of someone whose release - whether or not on bail - would, in their opinion, cause the commission of a "prejudicial act".

Under the act, the government can even determine the place and the condition of detention of the detainee: 5.2 Power to Regulate Place and Conditions of Detention Every person in respect of whom a detention order has been made shall be liable (a) to be detained in such place and under such conditions, including conditions as to discipline and punishment for breaches of discipline, as the Government may, by general or special order specify: and (b) to be removed from one place of detention to another place of detention by order of the Government."

The SPA provides that the grounds on which a detention order has been made should be communicated to the detainee "as soon as may be" but no later than 15 days from the date of detention "to enable him to make a representation in writing against the order". However, there is no requirement to supply all the information on which the order is based to the detainee so that he/she knows the basis for the detention. The authority can refrain from disclosing "the facts which it considers to be against the specific interest to disclose54".

The government is required to constitute an Advisory Board (AB) consisting of two persons "who are, or have been, or are qualified to be appointed as, Judges of the High Court" and a third person "who is a senior officer in the service of the Republic", all appointed by the government. It is also required to place before this AB, within 120 days from the date of detention under the SPA order, "the grounds on which the order has been made and the representation, if any, made by the person affected by the order". There is no right of legal representation before the Board.

53 54

Prejudicial act defined in the Special Powers Act, 1974.

Section 81 and 82 of the Special Powers Act. 1974

The AB shall consider material placed before it and seek further information from the government or the detainee if necessary and submit its report to the Government within 170 days from the date of detention. In this report "the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned" will be specified. If the AB approves the grounds for detention, the prisoner shall remain in detention indefinitely and the only remedy will be a review of the case by the AB every six months.

However, a detention order under the SPA may at anytime be revoked or modified by the government55.

The SPA provides immunity from prosecution for the use - or abuse - of the Act by the government even when this contravenes fundamental rights.

"34. BAR ON JURISDICTION OF COURTS - Except as provided in this Act, no order made, direction issued, or proceeding taken under this Act, or purporting to have been so made, issued or taken, as the case may be, shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against the Government or any person for anything in good faith done or intended to be done under this Act." To ensure the supremacy of the SPA, it provides: "34B. ACT TO OVER-RIDE ALL OTHER LAWS -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Code or in any law for the time being in force."

Although the SPA gives a wide discretion to the detaining authority to act according to its own opinion, in practice, most detention orders are declared unlawful by the high court - but only on procedural grounds. This is because the Constitution empowers the High Court to satisfy itself that a person is detained in custody under a lawful authority 56. Obaidul Huq Chowdhury, Special Powers Act, Case Law: Abdul Latif Mirza vs. Bangladesh 31 DLR (AD).

Lawyers seeking to overturn a SPA detention order identify omissions or errors in the application of the SPA which allow the High Court to declare such orders illegal. For example, the grounds given may not fit the definition of "prejudicial act", or the grounds for detention may not be communicated to the person within 15 days, as required57.

According to a parliamentary sub-committee studying the use of the SPA from its inception in February 1974 until December 1998, at least 69,010 people had been detained under the law during this period. Of these, 68,195 (98.8%) detainees were eventually released after their detention was declared unlawful by the High Court on the grounds, for example, that the SPA orders had been vague, issued by unlawful authority, not placed before the Advisory Board within 120 days, or that different reasons for detention were mentioned in the order and in the affidavit-in-opposition, or the detaining authority failed to communicate the grounds for detention to the detainee within 15 days, or it failed to produce the necessary papers in court, or because of delays in ordering an extension of detention. 58 The three member sub-committee submitted its report to Parliament in September 2000, but opposed a

55

Sections 9, 10, 11, 12, 13 of the Special Powers Act, 1974..

Obaidul Huq Chowdhury, Special Powers Act, Case Law: Abdul Latif Mirza vs. Bangladesh 31 DLR (AD) 1, Al-Afsar Press, Dhaka, 1996, p.15 57 Ibid. 56. p 25.

58 See: ‘SPA mostly misused’, Daily Star, 8 September 2000.

56

proposed amendment to the SPA which would provide for financial compensations in those SPA orders declared unlawful by the High Court59.

Calls for the repeal of the SPA have come from the Bangladeshi legal community and human rights organizations. It has also come from political parties but only when they are in opposition. When in government, they have defended the use of the SPA and maintained it.

Despite this pledge, the government continued to detain people under both the Special Powers Act and the Public Safety Act. Of these two laws, the Public Safety Act, which had been enacted by the previous government in February 2000 and which denied certain categories of prisoners the right to appeal for release on bail, was repealed by Parliament on 2 April 2002. However, the Special Powers Act still remains in force.

5.3. Lack of Independent Bodies to Investigate Human Rights Violations: Fundamental rights are guaranteed by the Constitution of Bangladesh. These include freedom of movement, assembly, association, thought and conscience, speech and religion. The Constitution also guarantees equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; equal rights for women and men in the public sphere; affirmative action "in favour of women or children or for the advancement of any backward section of citizens"; equal opportunities for employment save in areas where certain sections of the society are under-represented or in religious institutions which require "persons of that religion or denomination" or where the work "is considered by its nature to be unsuited to members of the opposite sex60.”

Articles,(26-29.) Article 31 of the Constitution states: "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."

The Constitution includes provisions against unlawful detention and unfair trials - but it does not oppose administrative detention. Article 35 of the Constitution specifically prohibits torture: “(4): No person accused of any offence shall be compelled to be a witness against himself. (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment."

The Penal Code the Penal Code (Act XLV of 1860) [as modified up to 30 September 1991], Bangladesh Government Press, Dhaka, 1998. Generally reflects the guarantees of fundamental rights set out in the Constitution. Nonetheless, violations that contravene some of the provisions of the Constitution as well as international human rights law continue to occur. Of these torture and arbitrary detention are widespread.

Government failure to protect people against human rights violations has followed a clear pattern. Except in cases where there is a public outcry - usually following the death of the victim as a result of torture or rape in custody by police or other security personnel 59

60

Ibid. 58.

Constitution of the People’s Republic of Bangladesh [as modified up to 30 April 1996],

Bangladeshi governments have hardly ever taken action to investigate the case. Under pressure from public opinion, the government may constitute a judicial inquiry but to Amnesty International’s knowledge, the terms of reference of such inquiries have never been made public. When the inquiry has been completed and its report submitted to the government, the authorities have not made the report public. Except in a few high-profile cases, successive governments have failed to prosecute the law enforcement personnel involved in acts of torture or other human rights violations.

The following case is a recent example: on 24 July 2002, police raided Shamsunnahar hall of residence at Dhaka University and subjected dozens of female students to brutal beatings.

More than 50 students were reportedly injured61. Following widespread condemnation of the action, the authorities ordered a judicial inquiry which submitted its findings in September 2002. The inquiry reportedly confirmed police brutality and recommended that the perpetrators should be punished. However, as in the past, the report of this inquiry was not made public and there has been no news of any action taken by the government against the police personnel involved in the attack62.

The failure of successive governments to address human rights violations in a consistent and effective manner points to the desperate need for an independent, impartial and competent human rights watchdog in the country - such as a National Human Rights Commission (NHRC). Human rights defenders and the international community have been urging Bangladeshi governments to set up a NHRC. Both the previous Awami League government and the present BNP government have acknowledged the necessity for its formation, but neither have taken the appropriate action to establish it.

In April 1995, the then BNP Government of Prime Minister Begum Khaleda Zia approved a project to assess the need for a NHRC and make recommendations on its establishment. This project was to start in July 1995, but it was delayed reportedly due to a political crisis in the country.

Work on the project formally began in July 1996 under the then Awami League Government of Prime Minister Sheikh Hasina. The project was supported by the United Nations Development Program which had assisted the establishment of such national institutions in a number of other countries.

In June 1997, Amnesty International published a report Bangladesh: Proposed standards for a national human rights commission,63, Amnesty International publication, June 1997. in which it reviewed the content of the "Action research study on the institutional development of human rights in Bangladesh" which had been completed within the above-mentioned project. Amnesty International made a series of recommendations aimed at ensuring that the body be fully independent, empowered and effective in the promotion and protection of human rights in Bangladesh and providing redress to victims.

In March 1998, Amnesty International received an updated draft of the "Bangladesh Human Rights Commission Act, 1998". The draft reflected most of the recommendations made by Amnesty International and Bangladeshi human rights groups. These recommendations were given in the Amnesty International report, Bangladesh: Proposed standards for a national human rights commission64 and subsequent letters to the authorities with further recommendations. It was understood that the draft would be approved by the cabinet shortly and would be sent as a bill to Parliament soon.

61

Newspaper 25 July 2002 Source: The Daily Star, 26 July 2002.

63 AI Index: ASA 13/03/97 64 AI Index: ASA 13/03/97 62

However, by early 2000, the government had not yet placed the bill before Parliament. On 27 April 2000, Amnesty International conveyed its concern to the then Government of Prime Minister Sheikh Hasina about the lack of progress with regard to the establishment of the NHRC. It expressed concern about reports that a draft bill finalized and approved by the cabinet in April 1999 had been sent to a special review committee because the Home Ministry objected to some of its provisions. Amnesty International sought clarification from the government about this delay but received no reply.

In late 2001, Bangladeshi newspapers reported that on 10 December that year a cabinet committee headed by Moudud Ahmed, Minister of Law, Justice and Parliamentary Affairs, had been formed to examine the prospect of setting up the NHRC. Throughout 2002, there were sporadic news reports that work on finalizing a draft bill for a NHRC was under way.

On 23 January 2003, it was reported that the cabinet committee formed in December 2001 had finalized the draft bill, and that it would be placed before parliament on 3 February 2003.

So far, however, there has been no further news about the status of the draft bill.

Amnesty International would welcome the creation of a National Human Rights Commission if it is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties. However, Amnesty International recommends that such an initiative should be accompanied by a determined government policy aimed at holding the perpetrators of human rights violations fully accountable, thus ensuring that those who violate human rights cannot do so with impunity.

Amnesty International reiterates that while the creation of a national human rights commission can be an important mechanism for strengthening human rights protection, it can never replace, nor should it in any way diminish, the safeguards inherent in comprehensive and effective legal structures enforced by an independent, impartial, adequately resourced and accessible justice system. The creation of a national human rights commission should, therefore, go hand in hand with a thorough review of existing legal and other institutions in order to make these more effective instruments of human rights protection.

In October 2001, Amnesty International published a set of recommendations for the effective protection and promotion of human rights with particular reference to the establishment of national human rights institutions. Amnesty International believes that these recommendations are essential elements to ensure the independence and effective establishment and functioning of such institutions65.

Amnesty International calls upon the Government of Bangladesh to incorporate these recommendations, alongside other guidelines such as the "Principles relating to the status of national institutions" (adopted in the UN Commission on Human Rights Resolution 1992/54, known as "the Paris Principles"), in the statute of the proposed national human rights commission in Bangladesh66.

CHAPTER-6 Torture in Bangladesh 65

See National Human Rights Institutions: Amnesty International recommendations for effective protection and promotion of human rights (AI Index: IOR 40/007/2001), Amnesty International publication, October 2001 66 Ibid. 65.

For many years, torture has been the most widespread and persistent human rights violation in Bangladesh but has been routinely ignored by successive governments since Bangladesh's independence in 1971.

Children, women, the elderly, opposition politicians, criminal suspects, and innocent bystanders in the streets, have all been victims of torture. Perpetrators are most often police personnel but members of the armed forces carrying out law enforcement duties have also been involved in torture.

Methods of torture have included beating with rifle butts, iron rods, bamboo sticks, or bottles filled with hot water so they do not leave marks on the body, hanging by the hands, rape, "water treatment" in which hose pipes are fixed into each nostril and taps turned on full for two minutes at a time, the use of pliers to crush fingers, and electric shocks.

6.1. The failure to curb torture and impunity Successive governments in Bangladesh have failed to prevent torture, despite provisions in the Constitution of Bangladesh and their obligation to provide durable and effective protection against torture to the people in the country under treaties which Bangladesh has ratified. These treaties - with the dates they were ratified - include: i.

the International Covenant on Civil and Political Rights (6 September 2000),

ii.

the Convention against Torture and Other Cruel,

iii.

Inhuman or Degrading Treatment or Punishment (5 October 1998),

iv.

Convention on the Rights of the Child (3 August 1990), and

v.

The Convention on the Elimination of All Forms of Discrimination against Women (6 November 1984).

Amnesty International has documented instances of torture in Bangladesh for many years. In November 2000, it published a report entitled Bangladesh: Torture and impunity , which concluded that law enforcement agencies used torture for a variety of reasons, including to extract money from detained suspects or their families; as favor to local politicians in return for a bribe; and to obtain confessions from detainees67.

Impunity is one of the major reasons why torture continues. Government authorities have persistently failed to bring perpetrators of torture to justice. Allegations of torture are rarely investigated, particularly when victims are members of opposition parties. On the rare occasions when allegations of torture have been investigated, this has usually been due to a public outcry generated by the death of the victim. In other cases, victims who have filed complaints about torture in police custody have been put under pressure by police to withdraw the case. This has most often been done by threats and intimidation, but in some instances, money has been offered to the victim in return for the withdrawal of the case as "out of court settlement".

67

AI Index: ASA 13/07/00

Furthermore, judicial proceedings against a public employee - including a police officer - can proceed only if the government authorizes that proceeding. Section 197 of The Code of Criminal Procedure (1898) [as modified up to 30 September 1993]. In practice, the government rarely does so.

In its November 2000 report, Amnesty International urged the Government of Bangladesh to establish clear and enforceable safeguards against abuse of administrative detention procedures resulting in torture; to ensure that magistrates do not ignore safeguards against unlawful detention when considering police request for prisoners’ remand; that magistrates ensure physical presence of the prisoner before them as required by law; that they do not ignore signs of torture on the prisoner’s body or the prisoners’ allegations of torture 68. It also urged the government to ensure investigation of every allegation of torture through an independent and impartial inquiry; to make public the findings of all such inquiries ensuring that perpetrators are brought to justice; to introduce training for police, including in professional methods of investigation which exclude torture and by making clear to them that torture is a criminal act punishable by law; and to ensure that victims or their families are compensated.

Amnesty International sent this report to the then Prime Minister and to various government authorities in Bangladesh. In addition, Amnesty International members brought the matter to the attention of the Awami League government through letters or in representations they made to a number of Bangladesh diplomatic missions.

However, by the end of the tenure of the Awami League government, Amnesty International had received no substantive response to its recommendations, nor was it aware of any effective measures taken by the government to address the issue of torture and impunity in the country69.

In January 2002, Amnesty International brought to the attention of the new BNP government its longstanding concern about torture. To date the organization has received no reply from the current BNP-led government either.

6.2. Government blocking judicial processes against torture In April 2002, Amnesty International raised serious concern about steps taken by the Government to stop disclosure of information about a case of torture to a court. The prisoner, an opposition politician, was reported to have been held in early March 2002 in army custody and severely tortured. See Bangladesh: Government to stop disclosure of information on torture to the court, Amnesty International 19 April 200270. The High Court ordered on 3 April 2002 that: ''To ascertain whether the accused was subjected to any torture as alleged, it is necessary to obtain a statement from the I.O. [Investigating Officer] who took the accused on remand and kept him in his custody for the purpose of interrogation for more than five days, for about seven days. So, he must 68

Report of the Amnesty Internatio0nal 2000, published by the concerned authority.

Ibid. 68.

70 AI Index: ASA 13/004/2002 69

explain in which places the accused was kept during this period of about seven days. Whether the accused was taken to the cantonment [military area] and if so, under whose order or authority''.

This High Court order was stopped on 8 April 2002 through a ''stay order'' issued by the Appellate Division of the Supreme Court on an appeal by the Attorney General on behalf of the government. The High Court had also ordered on 3 April 2002 that a new medical board should be set up to examine the prisoner as there were grounds to believe that a previous medical board had failed to record or disclose the details of the alleged torture to the court.

This order was also stopped by the same ''stay order'' issued by the Appellate Division, through an appeal by the government.

Amnesty International has serious concerns in relation to such developments. It is the obligation of the authorities to investigate promptly, effectively, independently and impartially all allegations of torture, and to bring perpetrators to justice. Stopping the process of investigation reinforces a climate of impunity, violating not only fundamental rights enshrined in the Bangladesh Constitution but also international human rights standards.

Article 12 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Bangladesh is a party, states: ''Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.''

Amnesty International was particularly concerned that the Government, instead of ensuring that Bangladesh's competent authorities proceeded to a prompt and impartial investigation of the allegations of torture, was effectively blocking such an investigation. To date, no investigation of the allegations of torture made by the prisoner has been carried out.

6.3 Legislation facilitating torture While the constitution of Bangladesh guarantees fundamental human rights and specifically forbids torture and while torture is a criminal act under the Penal Code, a number of laws in Bangladesh create the conditions which facilitate torture 71. The most commonly used of these is Section 54 of the Code of Criminal Procedure (Act V of 1898). Section 54 enables the police to arrest anyone without a warrant of arrest and keep them in detention for up to 24 hours on vaguely formulated grounds - for details, see Appendix 1.

Any person arrested by the police can be detained for up to 24 hours. At the end of this period, the prisoner should be either released or produced before a magistrate - either to be formally charged with a criminal offence or to be remanded in custody for further investigation. According to reports from many sources, detainees arrested by the police are usually offered the option to buy their release through a bribe72.

71

See Bangladesh: Torture and impunity (AI Index: ASA 13/07/00), Amnesty International, November 2000, section 7.1 72 Section 61 of the Code of Criminal Procedure (Act V of 1898) [as modified up to September 1993], Bangladesh Government Press, Dhaka, 1993.

There is reportedly a lack of due diligence by magistrates in exercising their powers. They do not scrutinize the case to ensure that there are objective and legitimate grounds for remand, and do not record the reasons for ordering further remand in police custody - although this is a requirement under the Code of Criminal Procedure. Section 167 of the Code of Criminal Procedure There is persistent reports that magistrates do not take allegations of torture seriously, and rarely seek an investigation of these allegations. Often, they do not even record them.

Exact statistics on the number of people arrested under Section 54 are not available, partly due to the fact that the detention of many detainees who are released after the payment of a bribe is never recorded.

In all cases of detention under Section 54 of the Code of Criminal Procedure reported to Amnesty International, the detainees claimed that they had been tortured and that torture began from the moment of their arrest.

6.4 Legal immunity from prosecution to perpetrators of torture On 9 January, President Iajuddin Ahmed issued "The Joint Drive Indemnity Ordinance 2003" which provided impunity to "members of the joint forces and any person designated to carry out responsibilities in aid of civil administration during the period between 16 October 2002 and 9 January 2003". Under the ordinance, no civil or criminal procedure could be invoked against "disciplinary forces" or any government official for "arrests, searches, interrogation and [other] steps taken" during this period.

The Ordinance related to "Operation Clean Heart" which started on 17 October as a campaign against crime carried out jointly by army and police forces. The campaign was the government's response to growing concern within Bangladesh and the international community about the continuing deterioration in law and order, including a rise in criminal activity, murder, rape and acid throwing.

As the campaign proceeded, there were mounting allegations of torture in army custody. At least 40 men reportedly died as a result of torture after being arrested by the army. The government acknowledged only 12 deaths and claimed they were due to heart failure.

Families of the victims and human rights activists, however, claimed the deaths resulted from severe torture while in army custody.

Amnesty International called upon the government to withdraw the Ordinance, institute an effective, independent and impartial investigation of the deaths and other allegations of torture, and bring perpetrators to justice. Bangladeshi media as well as human rights organizations in the country also expressed serious concern about the ordinance.

Far from withdrawing the ordinance, the government placed it before parliament as "The Joint Drive Indemnity Bill, 2003". The Bill was amended to provide the aforementioned immunity from prosecution in any "criminal or civil court or tribunal, including the Supreme Court" with the exception of "courts or tribunals constituted under laws governing the

security forces and their members". The "Joint Drive Indemnity Act, 2003" was passed by Parliament on 23 February 2003.

The legal status of the Act has been challenged before the High Court. Following a petition before the Court by a woman seeking compensation for her brother’s death allegedly as a result of torture in custody during "Operation Clean Heart", the Court ordered the government on 13 April 2003 to explain within four weeks why the Joint Drive Indemnity Act, 2003 should not be declared illegal. ‘Why indemnity is not illegal - High Court ask government’73.

Concern about the Act has continued to be raised within Bangladesh and internationally. At the conclusion of a four day visit to Bangladesh on 27 February 2003, a European Union parliamentary delegation stated: "The recent indemnity law limiting retrospectively the possibility to prosecute members of the armed forces but in court martial, and totally indemnifying police forces and political personnel from acts of murder, torture, illegal arrests and other Human Rights violations committed during the 'Operation Clean Heart' is a blatant violation of the responsibility of Bangladesh to abide the Rule of Law74."

To the best of Amnesty International’s knowledge, no army or police personnel has been brought to justice for acts of torture allegedly perpetrated by the joint forces during this period - 17 October 2002 to 9 January 2003.

Amnesty International is concerned that the Joint Drive Indemnity Act, 2003, together with other legislation which allows the government to block judicial proceedings against officials, will only perpetuate the climate of impunity which prevails in Bangladesh, giving yet another signal to those who use torture that they can continue to do so with impunity. v. High Court Ruling for Safeguards against Torture On 7 April 2003, the High Court announced its judgment on a writ petition in public interest filed before the court in November 1998 by three Bangladeshi human rights organizations and five concerned individuals following the death of a man in police custody in July 1998.

The petition sought mandatory guidelines to prevent torture in custody after arrest under Section 54.75 An authorized copy of the judgment is not available to Amnesty International at the time of writing. According to press reports and Bangladeshi lawyers contacted by Amnesty International, the judgment restricts arbitrary use of administrative detention law including the Special Powers Act. It makes it mandatory for the police to inform the family members of anyone arrested; for the accused to be interrogated by an investigation officer in prison instead of police interrogation cell, and behind a glass screen so that his/her family members 73

The Daily Star, 13 April 2003.

‘European team urges Bangladesh to respect human rights, democratic values’, Agencies France-Presse, 27 February 2003, 17:02:00 75 For more details about the petition, see Bangladesh: Torture and impunity (AI Index ASA 13/07/00), Amnesty International, November 2000, section 7.3, p.25 74

and lawyers can observe whether or not he or she is being tortured; and for the detainee to receive medical examination before and after remand into police custody76. It empowers the courts to take action against the investigating officer on any complaint of torture if it is confirmed by medical examination. It directs the government to amend relevant laws, including Section 54, within six months to provide safeguards against their abuse, and recommends raising prison terms for wrongful confinement and malicious prosecution.

Amnesty International welcomes these recommendations and urges the Government of Bangladesh to implement them without delay.

CHAPTER-7 Supreme Court Judgment in 2001- that Impinge Upon Fundamental Rights The judiciary of Bangladesh, particularly its superior tier, comprising the Supreme Court, has been seen as the most responsible organ of the State to ensure rule of law and justice. There is also a growing expectation that the judiciary, in administering justice, should not confine itself to municipal laws only, but should examine competent issues in the light of universal norms and principles of human rights and freedoms. This expectation has been advanced by the pronouncement of the Appellate Division of the Supreme Court that, ‌National Courts should not straightway ignore the international obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing Therein, the national courts should draw upon the principles incorporated in the international instruments77.

Since decisions of the Supreme Court set authoritative precedents, they complement statutory legislation. Thus developments in legal discourse, attained each year through interpretation, deliberation or pronouncements of the Supreme Court, demand close study.

This chapter reviews some of the most notable decisions of the Appellate and High Court Divisions of the Supreme Court, either passed or reported in 2001, from a human rights perspective to see how they protect constitutionally guaranteed fundamental rights and human rights principles.

Freedom of Expression: Contempt of Court. The most notable contempt proceedings before the High Court Division in recent years, that stimulated widespread discussion in the press and the political arena, were taken against the former Prime Minister, Sheikh Hasina. The judgment in Mainul Hosein & others vs. Sheikh Hasina78, was delivered on 24 October 2000 by a Division Bench of the High Court. Three petitions were filed seeking the drawing up of contempt of court proceedings against Sheikh Hasina 79. The common allegation in these applications was that on 26 July, 2000, Sheikh Hasina, in an interview with BBC, made an objectionable and contemptuous statement that both the lower courts and the High Court Division are the sanctuary of corrupt and accused persons; that whenever they approach the Court, they are released on bail after which they again commit murders; that both, the 76

Ibib. 50. . Per Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.

78 .53 DLR (2001) 138. Judgment delivered on 24 October, 2000 79 .One of these was by Mr. Mainul Husein, the then President of Supreme Court Bar Association, another by Mr. Rafique-ul Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the Parliament.

77

lawyers seeking bail and the courts granting bail, should be accountable. Mr. Mozammel Hoque J. disposed of all three applications with a note that, the Hon’ble Prime Minister shall be more careful and respectful in making any statement or comment with regard to the Judiciary or the judges or the Courts of Bangladesh in future 80.In doing so, he noted that the Court was taking into consideration the greater interest of the country, protection of the prestige and dignity of the highest executive post and avoidance of any possible political unrest over a sensitive issue. He further noted the need to prevent confrontation between the executive and the judiciary and to maintain and preserve harmonious coordination and cooperation between these two important organs of the State.

The other judge on the Bench, Mr. Abdur Rashid, J., in his concurring judgment, made some noteworthy observations with regard to the jurisprudence of ‘contempt of court’. He stated that the object of the proceedings for contempt is not to vindicate the character or conduct of a judge; it is rather to protect the Court from attack and to maintain confidence of the citizens, particularly litigants. He asserted that the true reason for initiating such proceedings ought to be in the public interest. He further observed that the alleged statements, even if based on inaccurate assessments of the situation, however gross and misleading they may be, cannot be tantamount to contempt of court, for without mens rea (a guilty mind), no contempt can be established. The Judge noted that the office of the Prime Minister has a special immunity with regard to the offence of contempt of court. He further noted that reading the questioned statements in the context of the entire interview and in the objective reality of the country, they appeared to be no more than the observations based on the Prime Minister’s own understanding and judgment of the situation. He stated that the judiciary couldn't dictate how the chief executive of the country should exercise his or her discretion. With regard to the filing of application by the members of parliament, the judge critically observed that the aggrieved members of parliament could have more opportunities and better scope to hold their leader to account in the Parliament for her statements. 'Such a novel [sic] step unprecedented in the constitutional history, I am afraid, would not create any good precedent81,'he observed. Justice Rashid examined the law of contempt of court in the context of freedom of speech and expression, as guaranteed by Article 39 of the Constitution 82. While recognising that the limitations imposed in the Article are necessary in the interest of administration of justice, he found: it necessary to remember …what could readily be read as contemptuous in 1900 or 1912 or 1936 is not so easily read now in the context of expanding rights guaranteed as fundamental to human existence under the Constitution83. He then observed that the Court must harmonise the constitutional values of free speech and expression with the issue of contempt and concluded this question with an illuminating statement by Lord Denning that addresses the position of the judge’s vis-à-vis contempt of court. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.This case demonstrates how an imminent tussle between the executive and the judiciary, which was apparently motivated by political considerations, was neutralized by the judiciary. In addition, some observations were made in the concurring judgment regarding 80

. 53 DLR (2001) 138, at p. 142, Para. 10. . Ibid, p.151, Para. 55.

82 . Article 39(2) reads, “Subject to any reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed.

83 . In Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 2 All ER 319: (1968) CA 150.

81

the extent of the authority of the head of the executive organ of the State to exercise discretion regarding any particular situation of the country, thereby according the office of the Prime Minister with a degree of immunity against contempt of court proceedings.

In the year 1999, as well, a judgment 84 by the Supreme Court had upheld the immunity of the members of the legislature for their statements made on the floor of the parliament. The Court had stated that '… had these statements been made outside the parliament the situation would have been otherwise and it would have been considered in a different way.'

However, these judgments have hardly restrained a recent trend of bringing political opponents to the dock using ‘contempt of court’. After resigning from the office of the Prime Minister, Sheikh Hasina has once again been accused of contempt of court for statements in an interview with a newspaper. The question, therefore, arises as to what should be the demarcation between freedom of expression and contempt of court, between immunity and contempt of court. What transpires from a discussion of these cases is that the notion of contempt of court, as it prevailed even a few years back, has undergone a change, and become a political ploy to humiliate opponents before the public and the Court. It is no wonder that the Courts, in the face of such disguised political rivalry, prefer an appeasing conclusion in each case.

7.1

84

Right to Life/ Right to Personal Liberty: Sex Workers’ Rights The High Court Division, in Bangladesh Society for the Enforcement of Human Rights (BSEHR) and others vs. government of Bangladesh and others85, on 14 March, 2000 addressed a broad spectrum of issues including the fundamental right to life and personal liberty and the rehabilitation of sex workers. The right of sex workers to an occupation, to a residence compatible with the worth and dignity of a human being and their rehabilitation has been viewed from a sensitive perspective in the judgment.

The facts of the case related to the incidents of 23 and 24 July 1999, when the police raided and barged into the rooms of the residents of Nimtoli and Tanbazar brothels in Narayanganj. The residents were asleep at the time, and, without giving them any time to organise their belongings, the police dragged them onto the streets. They abused and beat them and pushed them and their children into waiting buses. They were detained against their will in different vagrant homes and government shelters. According to the government authorities, this wholesale eviction was carried out with a view to 'rehabilitate the sex workers'. In the vagrant homes, the inmates were denied the right to meet their family members and were allegedly tortured both physically and mentally. A writ petition, in the form of a public interest litigation, was then filed in the High Court Division by several voluntary organizations86.In its judgment, the High Court acknowledged that ‘prostitution’ is not an unknown concept or trade but an age-old profession, 'perhaps as old as the dawn of human civilization',

. Ataur Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.

85 .53 DLR (2001) 1.

86 . These included the Bangladesh Society for the Enforcement of Human Rights (BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA), Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’ Forum) and Ain o Salish Kendra (ASK).

though, it is socially condemned in Bangladesh as in other parts of the world. The Court then held that the sex workers consent to sexual intercourse and while their profession might be socially looked down upon; it is not illegal under the law. The Court, however, cautioned that, 'Even if prostitution is not illegal in Bangladesh, it is never encouraged and State machineries are all out to prevent it by adopting various measures including rehabilitation schemes in consonance with our Constitutional mandate in its directive state policy that the State shall adopt effective measures to prevent prostitution87.'

The Court reiterated the fundamental right to equal protection of law and protection of life and personal liberty enshrined, respectively, in Articles 31 and 32 of the Constitution and unequivocally censured such eviction, since they were citizens of Bangladesh, enrolled as voters and exercised the right of franchise. The Court observed, Though prostitution is not a socially recognised profession in Bangladesh but implied the prostitutes initially get themselves enrolled with the local administration, sometimes swearing an affidavit expressing the desire to be a prostitute and get themselves confined to the place called brothel and get the required protection to continue in profession by the local civil and police administration, in spite of the provisions of Suppression of Immoral Traffic Act (1933) whereby they are maintaining their earning or livelihood which the State, in absence of any prohibitory legislation, has a duty to protect, and a citizen has the right to enforce the rights enshrined in Articles 31 and 32 of the Constitution88.

The Court also observed that even if Article 11 of the Constitution, which refers to the dignity of the human person, may not be enforceable as a fundamental principle, the sex workers as citizens were clearly entitled to invoke enforceable rights under Articles 31 and 32 of the Constitution. The Court upheld the fundamental right of the protection of privacy of the sex workers, saying, it should be remembered that nobody could violate the privacy of the inmates of any house or trespass into it except in accordance with law.

The Court then referred to the interpretation of the right to life in the Indian case of Olga Tellis vs. Bombay Municipal Corporation89 and stated that the inmates of Nimtoli and Tanbazar have a guaranteed right to life and livelihood. It then stated that an important facet of the right to life is the right to livelihood and the easiest way of depriving a person of a right to life would be to deprive him/ her of the means of livelihood.

The Court emphasized that the wholesale eviction of sex workers from Tanbazar and Nimtoli had deprived them of their livelihood, which amounts to deprivation of their right to life making the act unconstitutional and illegal. We painfully observe that though the police is the protector of the oppressed, in the instant case they have failed to fulfil their obligation in protecting the rights of the dwellers of Tanbazar and Nimtoli. Even if a particle of the allegations against the police is found to be true or has any basis in the instant case, it is a shame for the nation90.

87

. 53 D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J. .Ibid., in p.10, para.11, per Md. Fazlul Karim J 89 . AIR 1986 (SC) 180.AIR 1986 (SC) 180.

90 .53 DLR (2001) 1, in p. 18, para.35, per Md. Fazlul Karim J. 88

With regard to the detention of the sex workers in the Vagrants’ Home in Kashimbazar, the Court found that mere roaming around in any area would not bring the sex workers within the mischief of the Vagrancy Act unless they were also found for example, to be asking for alms in a public place. It held, without any hesitation, that these actions by the police, treating some of the evicted inmates of Tanbazar and Nimtoli brothel as vagrants, was done without any lawful authority. Lastly, with respect to the rehabilitation of the sex workers, the Court observed that any rehabilitation scheme must not be incompatible with the dignity and worth of a human person. Rather it has to be designed to uplift personal morals and family life, to provide for jobs giving them an option to be rehabilitated or to provide facilities for better education and economic opportunities in order to minimize the conditions that give rise to prostitution. This judgment occasioned much public discussion and was interpreted by the media as declaring prostitution to be a lawful profession. It was, however, acclaimed by human rights organizations for having provided a liberal interpretation to the right to life and personal liberty. The judgment is to be commended not only for expanding the scope of the right to life, but also for reiterating the fact that sex workers have the right to protection of their privacy against any unlawful infringement.

7.2 Right to Personal Liberty: Prisoners’ Rights The High Court Division in its judgment of 22 May 2000 91 directed the release of some 29 foreign prisoners who had been detained in Dhaka Central Jail, despite the expiry of their respective terms of imprisonment. The Court’s observations in this case regarding the provisions of the Jail Code and more generally, on the rights of prisoners has made judicial history in the country, because it installed a legal device in our judicial system, namely the Epistolary Jurisdiction. This has a potential for protection of the rights of the vulnerable sections of the society. This jurisdiction allows the Court to take cognizance of a matter concerning public interest of grave importance and initiate legal proceedings, not on the presentation of a formal plaint or petition but on receiving a letter or telegram or similar communication.

The facts of this case are that Dr. Faustina Pereira, Advocate of the Supreme Court 92 wrote to the Chief Justice of Bangladesh, bringing to his attention a report in the Bangla language national newspaper, Prothom Alo, concerning 29 prisoners of different countries who were languishing in jail for about five years after the expiry of their sentences. The Hon’ble Chief Justice then directed the Registrar of the Supreme Court to place the matter before a Division Bench comprising of Mr Mohammad Hamidul Haque J. and Ms Nazmun Ara Sultana J. The Bench suo motu issued a rule against the government and ASK swore an affidavit to assist the Court in disposing the matter.

The Court stated that it would have been proper for the jail authority and also the Ministry of Home Affairs to take appropriate steps for the release of the prisoners in question at the earliest possible time and it was unfortunate that no such steps were taken. It further stated that it had learnt from a letter of the Inspector General of Prisons that about 822 more prisoners were awaiting release even after the completion of their sentence. The Court apprehended that if timely steps were not taken in future, more prisoners would meet the same fate. The Court endorsed the statement of ASK’s lawyers that keeping any prisoner in 91

. Dr. Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR (2001) 414: 21 BLD (HCD) (2001) 499.

92 . Also coordinator of the Advocacy Unit of ASK.

jail after serving their sentences amounted to violation of fundamental rights as guaranteed by the Constitution. The Court then directed the government to take steps for release of such prisoners, at least three months prior to the date of their release, so that such prisoners do not languish in jail for indefinite periods through no fault of their own. The Court expressed its discontent regarding the activities of the concerned government departments, stating that the steps taken by them to solve the problem of repatriation of foreign prisoners after expiry of their terms of imprisonment were not at all sufficient. It noted the government’s absolute duty to ensure the immediate release of prisoners on the expiry of their sentences: It is natural that some time would be needed to complete formalities of their release because Embassies of the different countries require to be contacted, but even if after a reasonable time such prisoners cannot be released with the help and assistance of the respective Embassy, government should release such prisoners and under no circumstances the prisoners should be kept in jail…Further, we also think that it is the duty of the government to ensure their safety and security after their release93.The Court, on suggestions made by ASK, recommended that the government communicate with human rights bodies or international bodies such as the International Red Cross Society, the UN High Commissioner for Refugees and the International Organization for Migration, for repatriation of the prisoners. The Court recommended the setting up of separate cells in the Ministry of Foreign Affairs and the office of the Inspector General of Prisons to facilitate the timely release of the foreign prisoners and their repatriation. The Court further directed the release of 28 prisoners from the Dhaka Central Jail (one of the 29 prisoners had already died) within a month, whether or not the concerned embassies made a response. The Superintendent of the Dhaka Central Jail was directed to submit a report about their release within three months. The Inspector General of Prisons was also directed to furnish full particulars of the remaining 822 foreign prisoners across the country and to take steps for their release and report to the Court.

This judgment demonstrates the pro-active role of the Court in protecting and promoting human rights and fundamental rights of the vulnerable sections of society. In this case, the Court not only proceeded suo motu but also expressed its sincere intention for protection of the human rights of the prisoners, by reaffirming the strict responsibility of the government for the release of the prisoners and also by providing some guidelines for future handling of similar problems.

There has also been some action on the part of the executive in pursuance of the judgment.

The government contacted the concerned embassies regarding the release of their respective citizens and was partly successful in convincing them to take back their citizens. The Inspector General of Prisons informed ASK in a letter dated 18 October, 2001 that 136 prisoners had been repatriated or ‘pushed back’ to their respective countries since the pronouncement of the judgment. This information gives rise to another concern because it indicates that the government is resorting to forced repatriation of prisoners to neighboring countries. There is scope for serious apprehension that if prisoners are ‘pushed back’ across the border, their safety and security may be at stake and they may fall into greater jeopardy.

This also contravenes the Court’s observation that; '…it is the duty of the Government to ensure their safety and security after their release94.' Recently the Inspector General of Prisons informed ASK that the number of repatriated prisoners had increased to 250 95. The government was granted further time by the Court to complete the repatriation process. Even 93

. Ibid., at p. 416, Para 10, per Md. Hamidul Haque J. . Supra note 18 95 . He gave this information in response to a telephonic enquiry from an ASK lawyer.

94

before this case, following a report in the Daily Star, the High Court suo motu directed 96 the authorities of Dhaka Central Jail to produce a Nigerian citizen, Goddy Ochendo, before the Court. He had been languishing in jail for five years even after serving his sentence, but could not return home because the jail authorities said he had no passport. The Court afterwards directed the Nigerian Embassy to arrange for his repatriation and eventually Ochendo was sent home. This case, in fact, paved the way for the release of all foreign prisoners across the country who had served their term.

7.3. Right to Personal Liberty: Detention in Judicial Custody It has been a long practice in our country to detain victims, particularly women and children, in judicial custody without their consent. Though there is no law, which sanctions such detention, the victims are kept in government shelters, even in jails, for indefinite periods.

Only recently the Nari O Shishu Nirjatan Daman Ain, 2000 (Suppression of Cruelty to Women and Children Act, 2000)97 has provided for victims to be kept in shelters, other than jails, on the satisfaction of the concerned tribunal that it is in the interest of the victim. The confinement of victims in judicial custody against their will is contrary to the fundamental right to personal liberty guaranteed in Article 32 of the Constitution. The High Court Division, in Jesmin Nahar vs. the State and another98, accordingly held that keeping the victim-petitioner in judicial custody against her will was illegal. In this case, the petitioner Jesmin Nahar was kept in judicial custody according to an order passed by the Magistrate under the Nari o Shishu Nirjatan Daman Ain, 2000. It was alleged in the first information report that Jesmin disappeared from SOS Harman Minor School (sic), having been incited by the ayah of the school and some other persons. Police investigated the case and submitted a charge sheet against the accused persons. Later on, the police arrested Jesmin and produced her before the Magistrate and the Magistrate sent her to judicial custody. Thereafter, she recorded a statement under Section 164 of the Code of Criminal Procedure (1898), where she described a short history of her past life and stated that she went to the house of one of the accused voluntarily and that she did not make any allegation against any of the accused persons. Subsequently, a petition was moved for her transfer from jail custody to the custody of one of the accused persons, but it was rejected. This gave rise to the cause of preferring a criminal miscellaneous case under Section 49199 of the Code of Criminal Procedure.

The High Court, after considering the First Information Report, the statement of Jesmin and Section 491, held that the detention of Jesmin in judicial custody against her will was illegal and that the lower Court was wrong in rejecting the prayer for her release. The Court observed, a young woman at the age of 18 years cannot live in a hostile atmosphere. Every woman of her age has (sic) a dream and aspiration for home, children and a husband who could respect her feelings. But those hopes and aspirations shall be confined within her mind and these hopes will be evaporated if she is allowed to remain in judicial custody for further period. So long she will be in judicial custody; she will be obsessed by fear, tension and anxiety. There is no shadow of doubt that the climate of her life will be conducive if she is released from judicial custody. It is incumbent upon this court to take just and proper decision 96

. On 5 February 2001. . See Section 31.

98 . Criminal Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March 2001, and published in the Daily Star on 26 August 2001.

99 . Section 491(1): The High Court Division may, whenever it thinks fit, direct that a person within the limits of its jurisdiction be brought up before the Court; that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

97

in this regard taking into account about the well being of the petitioner. In the above ambiance and circumstances, it is neither desirable non[r] acceptable that a young girl of 18 years shall remain in an unwell environment for an indefinite period. Hence we feel that our effort in this regard may [be] able to create awareness in stopping social malady100.

The petitioner, accordingly, was set at liberty and declared free to go wherever she liked. The concerned Deputy Commissioner was directed by the Court to ensure her release.

This judgment not only ended the illegal detention of one particular victim, but also revealed the fact that judicial custody is a place where the detainee becomes more vulnerable and lives in a hostile environment for an indefinite period. It is a precedent, which lays down that the indiscriminate exercise of granting judicial custody without the consent of the victim is illegal.

7.4 Right to Fair Trial: Children’s Rights Children in Bangladesh become victims of unlawful trials leading to illegal conviction and punishment. This is largely because lawyers and judges are not sensitized to juvenile justice or aware about universal child rights embedded in the Convention on the Rights of Child (CRC) and other international conventions, ratified by Bangladesh. The Supreme Court has tried to redress such violations over the years. To further this, the High Court has reiterated in Bangladesh Legal Aid and Services Trust (BLAST) and another vs. Bangladesh and others 101 that the trial of a juvenile offender in a court or tribunal other than the Juvenile Court is without jurisdiction and unlawful; and in Monir Hossain (Md.) alias Monir Hossain vs.

State102, the High Court has upheld a child’s right to be heard in juvenile courts as provided in the Children Act, 1974 and the CRC.

In BLAST vs. Bangladesh, the child convict Alamgir Hossain was charge-sheeted under Sections 5(Kha) and 5 (Gha) of the Nari o Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995), for allegedly throwing acid on a girl. The Nari o Shishu Nirjatan Daman Bishesh Adalat (Special Court for the Suppression of Cruelty to Women and Children), Comilla took cognisance of the case and framed charges against Alamgir Hossain. The Special Court noted that Alamgir Hossain was below 16 years at the time of the commission of the offence; nevertheless the Court proceeded with the trial and he was convicted and awarded a punishment of imprisonment for life. Alamgir preferred appeal in the High Court Division against this judgment with the help of BLAST, a non-profit legal aid organisation.

The High Court held in its judgment that the Special Court erroneously tried and punished Alamgir Hossain as the tribunal itself was convinced that he was below 16 years at the time of occurrence and that the conviction violated the provisions of the Children Act, 1974, the fundamental rights guaranteed in the Constitution and also the directions of the Supreme Court given in various judgments. The Court noted that in Section 5 of the Children Act, it has been clearly laid down that a Juvenile Court has exclusive jurisdiction to take cognizance of the offences committed by a child103, and the jurisdiction of the Nari o Shishu Nirjatan 100

. Para 15. Per Mr. Altaf Hossain Khan, J. .7 BLC (2002) 85. Judgment delivered on 6 November, 2001.

102 .53 DLR (2001) 411, Judgment delivered on 9 July 2001.

103 . According to Section 2 (f) of the Children Act, 1974, a ‘child’ means a person under the age of 16 years.

101

Bishesh Adalat was excluded by this section as Alamgir was admittedly only fourteen or fifteen years at the time of occurrence.

The Court, in support of its decision, endorsed two earlier decisions cited by the advocate for the petitioners. In State vs. Deputy Commissioner, Satkhira and others 104 the High Court held that no child is to be charged with or tried for any offence together with an adult. Similarly, it was held in Shiplu and another vs. The State 105 that any order of conviction and sentence passed by any court other than the Juvenile Court in respect of an accused below 16 years is liable to be set aside for being without jurisdiction. The Court also took notice of an Indian case Sheela Barse and another vs. The Union of India and others106, where it was observed 'If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality.' In conclusion it declared the trial of Alamgir Hossain by the Special Court as 'without jurisdiction and without lawful authority' and the order of conviction as ‘void ab initio’, and accordingly ordered his release. However, the Court did not constrain itself only in passing the judgment; rather, it took an initiative to restrain such ultra vires exercise by trial courts. It directed the Registrar of Supreme Court to ask for an explanation from the author-judge of the impugned judgment as to how he could award sentence to a juvenile offender and ignore the Children Act, 1974, and further directed to send a copy of the judgment to all Sessions Judges advising them to discuss the Act with judicial officials. The Court also directed the government to instruct law officers to take due care in conducting the cases of juvenile offenders under the Children Act. In the latter case, Monir Hossain was convicted of raping a 9 year old girl by the Nari o Shishu Nirjatan Daman Bishesh Adalat (Special Court for Suppression of Cruelty to Women and Children), Comilla under section 6(1) of the Nari o Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995) and sentenced to life imprisonment. He preferred an appeal to the High Court Division. At this stage, his lawyer submitted that in view of a clear recital in the charge-sheet that the accused was over 15 years and in view of a clear statement by the accused himself that he was below 16 years, the Special Tribunal committed an error of law in not directing an inquiry to ascertain as to whether the accused was below 16 years and in proceeding with the trial. However, the High Court Division found that at the trial stage of the case, no objection was raised on behalf of Monir to the effect that he was a child and that he was entitled to be tried in a juvenile court, although it is an established rule of criminal procedure that the defense must raise specific objections before the trial court.In these circumstances, the Court stated that with the scant and inadequate materials on record, it was very difficult, if not impossible, for the Appellate Division to ascertain the actual age of the accused at the time of framing of the charge and consequently, any objection before the Appellate Division raised for the first time on the question of the age of the accused must be viewed with disfavor, unless it is found imperative in the interest of justice under given circumstances. It then went onto examine whether there was any basis for the claim that Monir had been a child below 16 years at the time of framing of the charge. The Court took account of the statement in the charge sheet that Monir Hossain was about 15 years on the day of submitting the charge sheet against him. The Court also found, from an order of the trial court, that the prayer for the accused was specifically grounded on the fact of his being a ‘minor’. Therefore, it held that although the question of Monir being a minor was raised before the trial court, it was not specifically pressed for an 104

.45 DLR 643. .49 DLR 53.

106 . AIR 1986 (SC) 1977.

105

answer and, given that a life sentence had been imposed and the age of the accused on the date of framing charges was a matter of great importance touching the jurisdiction of the Court, it was necessary in the interest of justice for the trial court to direct an inquiry to satisfy itself as to whether the accused was a child below 16 years. The Court, consequently, set aside the conviction and sent the matter back to the trial court for a fresh hearing of the case, in accordance with law and in light of the observations regarding the assertion that the accused was a child. The Tribunal was also directed to dispose of the matter expeditiously within two months from the date of receipt of the case-records.

This is a case where the Court manifested the need to uphold the right of juveniles in spite of apparent technical disadvantages. Internationally recognised developments in child rights and the rule laid down in the Children Act that a child (within the meaning of the Act) has to be dealt with only under the Children Act, in consonance with principles of juvenile justice, was given utmost importance in this case. It also set a precedent that the trial court had a positive, if not strict, obligation to ascertain, whenever there was a reason to do so, whether an accused was a child or not, regardless of whether it was specifically pleaded by the defence or not.

7.5 Workers’ Right to Safety: Fire Accidents in Garment Industries The High Court Division recognized the case to be in the nature of public interest litigation 107, stating that the application had been filed by the petitioner not for any personal relief, but in respect of an issue of public importance relating to workers engaged in factories in the country and, in particular for the safety of the workers in garment factories in cases of fire, accident or emergency. The specific context for the filing of the petition was some reports of fire accidents in the respondent-factories resulting in the death of a high number of workers, due to non-compliance with the provisions of the Factories Act, 1965 and the Fire Services Ordinance, 1959.The petitioner submitted that in the last few years, more than fifty-five separate incidents of fire in the garment factories had resulted in the deaths of about 134 workers and injury to more than a thousand others. Most of these incidents had been reported in the national media. The petitioning organization’s independent investigations into the reasons for the outbreak of fire in certain factories pointed to the failure of the respective factory management to comply with safety requirements as lay down by law. They also found that the Chief Inspector of Factories and the Director General of Fire Service and Civil Defence had failed to perform their duties regarding inspection of the factories. Specifically, the investigations revealed that: the gates of the factories were locked at the time of outbreak of fire, in direct violation of Section 22(3) of the Factories Act; free passage ways giving access to means of escape in case of fire as required by Section 22(6) of the Act were not maintained; no measures were taken to familiarize workers with means of escape in case of fire or emergency, in violation of Section 22(7);no means of warning as required by Section 22(5) of the Act were found in the factories; no emergency exits in case of fire were found in the factories, which was in violation of Section 22(1) of the Act and Rule 51(1) of the Factories Rules; no fire bucket, as under Rule 52(1), was found in the factories; no portable fire-extinguisher, as under Rule 52(2) was found; fire-extinguishers, as required by Rule 52(4), were not found; no trained officer was assigned for the proper maintenance and upkeep of fire-fighting equipment, in violation of 107

. Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) vs. Government of Bangladesh and others, Writ Petition No. 6070 of 1997, Judgment delivered on 31 May, 2001.

Rule 52(10);no ‘Fire Safety Plan’, as required by Rule 52(1), was prepared by the factories; no drum of water of 40/50 gallons or water bucket was found as required by Section 6 of the Fire Service Ordinance; the fire service license was not renewed under Section 8(3) of the Ordinance; and no sand bucket was found in the factories as required by Section 6 of the Ordinance.

The Court accepted these findings of lapses and negligence on the part of several authorities, including the owners of the garment factories, the owners of the premises on which the factories were set up; the Chief Inspector of Factories and the Director General of Fire Service and Civil Defence. It found each of them to be negligent in performing their duties and complying with the requirements of law providing for the safety and security of the workers. The Court also expressed the view that workers' deaths could have been avoided if the Chief Inspector of Factories, the Director General of Fire Service and Civil Defence, their concerned officials and the factory owners had performed their duties and obligations in accordance with the respective laws.

The Court proposed that the Inspection Committee constituted under the Director General of Fire Service and Civil Defence, which was to conduct regular weekly inspections in the factories and to give necessary advice to the management regarding safety and fire protection, should include representatives of workers and financial institutions. It observed that it would require some legal protection or coverage so that its recommendations would receive due weight and the authorities concerned would be bound to implement its recommendations and in default, to suffer consequences.

The Court also proposed the setting up of another committee by the government at the national level to supervise acts and omissions on the part of the factory owners, the factorypremise owners and the employees and officials of the offices of the Chief Inspector of Factories. This National Committee would oversee the implementation of relevant laws, the setting up and operation of factories, with authority to form regional committees if required, with necessary legal coverage binding all concerned to implement its recommendations and directions. Failure to implement the recommendations of the committee would result in punishments, including disability to obtain loan facility from financial institutions or banks in the form of running capital for carrying on any trade or business or for the operation of any industry. The Court also proposed the composition of the committee, which was to be led by the Director General of Fire Service and Civil Defence to consist of representatives from: 1. Ministry of Home Affairs, 2.

Ministry of Commerce,

3.

Ministry of Industries,

4. Board of Investment, 5. City Corporation, 6. Federation of Bangladesh Chamber of Commerce and Industries (FBCCI), 7.

Bangladesh Garments Manufacturers and Exporters Association (BGMEA),

8.

Export Promotion Bureau,

9. Chief Inspector of Factories,

10. Rajdhani Unnayan Kortripokkho (RAJUK), 11. Workers' Association and 12. Bankers' Association or Bangladesh Bank. However, the Court directed that the office space and the necessary staff, including a full-time secretary of the committee, were to be provided by the BGMEA out of its fund.

This judgment has upheld the workers’ basic right to safety and security, inasmuch as it did not limit its findings within the parameters of the duties and obligations of the respondent government offices and the factory owners only, but also gave directions for the establishment of a mechanism involving all concerned quarters, including both the public and the private sectors. The judgment has yet to be implemented because in the meantime BGMEA filed a Civil Petition for Leave to Appeal in the Appellate Division. The alleged grounds on which BGMEA has prayed for leave of the Appellate Division, among others, are that the High Court Division was wrong in requiring a valid fire license as a precondition for granting loan or credit; it was also wrong in directing that office space and the necessary staff of the proposed national level committee be provided by BGMEA. The hearing of the petition is still pending due to the huge backlog of cases in the Appellate Division, which will indefinitely defer implementation of the High Court judgment.

7.6. Environmental Rights The Appellate Division in Rajdhani Unnayan Kortripokkho (RAJUK) and another vs.

Mohshinul Islam and another108 gave directions for protecting the environment of Dhaka City and providing an environment-friendly interpretation of urban development.

Mohsinul Islam received an allotment of a plot from RAJUK (Dhaka city development authority) in Uttara Model Town on which he constructed a house for his family. The layout plan attached to the lease deed provided for a vacant space to be maintained for a park, playground, community centre and school, but subsequently RAJUK either converted the entire or part of the vacant space into plots, in violation of the promise made to the allot tees at the time of allotment. RAJUK, however, contended that Section 40(b) of the Town Improvement Act, 1953 empowered them to alter layout plans at any time and, in the instant case, the layout plan was changed converting some open space into plots in order to meet increased demand for residential plots by the large number of city dwellers. The High Court Division did not accept this contention and declared that the alteration in the original layout plan was made without any lawful authority; it gave a direction to RAJUK not to change the nature and character of the lands earmarked in the original layout plan for community purpose, recreation and other non-residential purposes.

Section 40 of the Town Improvement Act provides for improvement schemes, which may be undertaken by RAJUK. Sub-Section (h) provides for the formation, retention or enlargement of open spaces. The High Court held that it was clear that it was the duty of RAJUK to provide for parks, open spaces, playgrounds or similar amenities for improvement of a new township Uttara Residential Model Town. Therefore, although Sub-Section (b) provides power to RAJUK for the “laying out or relaying out of the land' in the area, it has to be for improvement and it cannot curtail or diminish open spaces kept for common use. Following an appeal before the Appellate Division, the judges referred to the Indian case Bangalore 108

.53 DLR (AD), 2001, 79. Judgment passed on 3 May 2001.

Medical Trust vs. BS Mudappa109 and to its own earlier judgment, in Giasuddin vs. Dhaka Municipal Corporation110, where it was observed that a public park is necessary for protecting health and hygiene of the inhabitants of the area by providing open space and gardens.

The Appellate Division upheld the decision of the High Court Division and observed that although under Section 2(h) of the Town Improvement Act, RAJUK may alter the layout plan, and this power must be exercised for the purposes of improvement. Parks and open spaces enjoyed by allottees of a planned township cannot be converted into residential plots.

The Court also stated emphatically that conversion of such open spaces and parks into residential plots is not an improvement by any means and therefore exercise of such power is contrary to the purpose for which it is conferred under the Town Improvement Act. This judgment not only provides a guideline for future environment-friendly urban planning but also gives a new interpretation to the term ‘improvement’, which will definitely go a long way in protecting and promoting the environmental rights of the citizens, in general and the inhabitants of the metropolitan areas, in particular. This decision is also an instance that our courts are sensitive to the protection of the environment and that the judiciary has a responsibility to see that administrative decisions are environment-friendly.

7.7. Right to Non-Discrimination: Citizenship Rights The High Court Division, on a number of earlier occasions, has given judgments persistently upholding the right of citizenship acquired by birth and the judgment given in Annada Prosad Das vs. DC, Khulna and others 111 reflects this trend.Annada Prosad was born in village Dasani, Bagerhat Police Station, formerly in Khulna District. His parents were permanent residents of that village. He owned both moveable and immovable property in Bagerhat. He went to India during the War of Liberation in Bangladesh to save his life and returned after independence in December 1971. The defendants alleged that he was an Indian citizen and the Police served a notice upon him directing him to leave the country by 10 July 1972. It was also alleged that Annada Prosad left the country in 1965 with his family members permanently, although it was admitted by the defendant that he returned to the country after the war and was staying in his village home ‘illegally’.

109

. AIR 1991 (SC), 1902. It was held in this case that '…when the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done, then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to persons affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly, but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the preamble itself, which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto.

To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority, any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only [if] it is resulted in improvement in any part of the scheme. As stated earlier, a private Nursing Home could neither be considered to be an amenity nor it could be considered an improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.'

110 . 1997 BLD 577. The Court observed in this case, 'The structure cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the corporation is under legal obligations to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.'

111 .53 D.L.R. (2001) 496. Judgment delivered on 28 June 2001.

The High Court Division, at the very outset of its judgment, cited Article 6(1) of the Constitution that the citizenship of Bangladesh shall be determined and regulated by law; and Section 2 of the Bangladesh Citizenship (Temporary Provisions) Order, 1972 (President’s Order No. 149 of 1972) prescribes the criteria for obtaining citizenship by birth 112. The Court then referred to two decisions determining citizenship, namely Mirza Shaheb Ispahani vs.

Bangladesh and Bangladesh113 vs. Professor Golam Azam114 and endorsed the view already taken by the Supreme Court that a person’s citizenship cannot evaporate simply because of a temporary absence from the country.The Court interpreted the provisions of the President’s Order No. 149 that the law makers had conceived that disputes regarding citizenship would only arise in the case of persons who were absent from Bangladesh on 25 March, 1971 and lived in any other country which was inimical to the War of Liberation in Bangladesh. The Court found that Annada Prosad was residing in India temporarily, so his activities could not be considered at all against the spirit of the war in Bangladesh. It also observed that India was not inimical to the liberation war but had a friendly relationship with Bangladesh.

The Court unequivocally stated that the right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that it has been given up and the person has acquired citizenship of any other country. Citizenship by birth is a complete legal right and a vested constitutional right which cannot be taken away or denied or lost with respect to a particular citizen due to temporary absence from Bangladesh or residence in any other country for a considerable number of years, unless and until it is found that s/he has abandoned or renounced her/his citizenship and acquired citizenship of another country.

The Court referred to the Indian case of Mohammad Ayub Khan vs. Commissioner of Police, Madras115 and endorsed its spirit that unless and until the citizenship of a particular person in the manner as prescribed by rules terminates, the original citizenship cannot be lost or denied to them. It also referred to another Bangladeshi case, government of Bangladesh vs. Abdul Hoque116, where it was held that temporary absence of a person from his country of birth and temporary residence in a foreign country at war or being engaged in military operation against Bangladesh, preventing him from returning home, shall not disqualify him from being deemed to continue to be resident in Bangladesh under the provisions of the President’s Order No. 149 of 1972.

7.8 Right to Life: Forced Eviction of Slum Dwellers The right of urban slum dwellers not to be evicted from their homes without sufficient notice and prior arrangement for their rehabilitation had been upheld by the Supreme Court of Bangladesh in several earlier cases. The case of Kalam and others vs. Bangladesh and Others117 is an instance where the Court, in line with those decisions, took a sympathetic view 112

. Section 2 of the Order states that every person shall be deemed to be a citizen of Bangladesh whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971 and continues to be a resident; or who was a permanent resident of such territories on the 25th day of March, 1971, continues to be a resident and is not otherwise disqualified from being a citizen by or under any law for the time being in force.

113 . 40 DLR (AD) 116.

114 .46 DLR (AD) 192.

115 . AIR 1965 (SC) 1623.

116 .1982 BCR (AD) 143.

117 .21 BLD (HCD) (2001) 446. Judgment delivered on 30 April 2001.

of slum dwellers’ right to shelter. The petitioners in this case resided in about 30 thatched shanty houses in Belalabad Bosti, located behind Holy Family Red Crescent Hospital in Dhaka. They had been living in that slum for about 30 years. On 16 April, 1994, the Ministry of Works and Urban Development, without any prior notice or announcement, started demolishing the shanty houses. At that time, a resident of Belalabad Colony and a journalist of repute rushed there, and at her request, the demolition operation was stopped. But the petitioners, being apprehensive of further attempts at forced eviction from the slum, filed a writ petition in the High Court Division.It was submitted on behalf of the petitioners that they were poor helpless persons, uprooted from different villages across the country, who had found work in Dhaka so as to survive with their families. With the consent of the original owner of the Belalabad Colony, they had raised small shanty huts in order to seek their livelihood. They submitted that they did not claim any proprietary right over the lands on which they raised the shanties and that their only prayer was to allow them to live in those shanties. They cited the High Court’s earlier decision in Ain o Salish Kendra (ASK) and others vs. government of Bangladesh and others118 in support of their contention.

The Assistant Attorney General candidly conceded the plight of the slum dwellers of the Belalabad Bosti and assured the Court that the government was planning to find a suitable arrangement for the petitioners and other slum dwellers so that they were not thrown to the street without shelter. The Court observed that, Bangladesh came into being as a fulfillment of the dreams of the millions of Bangalis so that they can breathe in an independent country of their own. They knew that their country is not rich, but expected that social justice shall be established and the people shall be provided with the bare minimum necessities of life 119.The Court pointed out that the petitioners were pleading for a place so that they could earn their own livelihood and survive. The Court went on to observe, 'it should not be forgotten that God in His unbounded mercy provides sunshine, air, water, food and all other amenities of life for all, high or low, rich or poor, for every living being, without any discrimination 120.'

The Constitution of Bangladesh envisaged a welfare state and held all citizens equal in the eye of the law, as such all citizens have got equal rights in every sphere of life including food, shelter, health care and education which are fundamental in nature. The Court remarked that it is not the fault of the slum dwellers that their government fails to provide them with such bare necessities of life and that, ‌they are only struggling a losing battle to earn for themselves and to care and provide the bare minimum necessities of life to their children, which are the primary objectives of any democratic government. After all, the slum dwellers, poorest of the poor they may be, without any future or dreams for tomorrow, whose every day ends with a saga of struggle with a bleak hope for survival tomorrow, but they are also citizens of this country, theoretically at least, with equal rights. Their fundamental rights may not be fully honored because of the limitations of the State, but they should not be treated, for any reason, as slaves or chattels, rather as equal human beings and they have a right to be treated fairly and with dignity, otherwise all commitments made in the sacred Constitution shall prove to be a mere mockery121.

The Court, however, refrained from giving any direction to the government and accepted the assurance given on behalf of it that the petitioners and other slum dwellers of Belalabad Bosti will not be evicted without rehabilitation, according to the programmers of the government in this respect. This case illustrates that cooperative efforts by the executive and the judiciary 118

.19 BLD (1999) 488. Judgment delivered on 29 July 2001. . 21 BLD (HCD) (2001) 446, in p. 448, Para. 6 per Mr. A.B.M. Khairul Haque J. 120 . Ibid.

121 . Ibid.

119

may contribute to promoting and safeguarding the right to shelter of slum dwellers and other basic necessities of the vulnerable section of the society. Various human rights' organizations have challenged evictions in the Court for over a decade now. The first writ petition challenging the eviction of Taltola Sweeper Colony at Gulshan was filed in 1989 and a stay order against eviction operation was obtained. Since then several writ petitions have been filed in the High Court challenging forced eviction of slum dwellers without sufficient notice and alternative arrangement for their rehabilitation. In at least two of such cases 122, the High Court laid down guidelines for the rehabilitation of the slum dwellers and stated that forced eviction without any alternative accommodation and rehabilitation was unlawful. The executive, however, has failed to heed such directions and successive governments have persisted in evicting slums with use of force and without undertaking any resettlement plan.

The judgments against slum evictions thus have become almost in fructuous in the face of the defiance and obstinacy of the executive.

Right to Equal Protection of Law: Victim’s Rights the duty of the court in a criminal proceeding is not only to adjudicate upon the allegations made against the accused, but also to see that the safety of the informants or complainants is not jeopardized because of their involvement in the proceeding. This has been reiterated in Tayazuddin and another vs. The State123, where the High Court Division has endeavored to view the question of the safety of the victims of an offence from the perspective of their fundamental rights.

Ferdousi Begum, a 15 year-old girl and an examinee of the Secondary School Certificate Examination, was burnt with acid allegedly thrown by Shakawat Hossain. It was alleged in the First Information Report that Shakawat used to proposition her whenever he found her alone. Shakawat’s father and uncle were informed of his behaviour but instead of disciplining him, they instigated him to harass her. Eventually on 10 February 2000, in a pre-planned way, Shakawat entered Ferdousi’s house and poured acid on her head, burning her head, face and different parts of the body. Some parts of the bodies of her brother’s wife and her aunt, who were nearby, were also burnt. Shakawat then fled. A case was filed accusing Shakawat, his father and his uncle. The latter two had filed a Criminal Appeal in which this judgment was given.

During the investigation conducted by the police, three witnesses confirmed that the father and uncle instigated Shakawat to keep propositioning Ferdousi and those them also exerted pressure on Ferdousi’s guardians for her marriage with Shakawat. When her guardians refused to comply, they instigated Shakawat to punish Ferdousi. Accordingly, Shakawat’s father and uncle were also charge-sheeted under the Nari O Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (Cruelty to Women and Children [Special Provisions] Act, 1995). The uncle was arrested and granted bail by the Nari O Shishu Nirjatan Bishesh Adalat (Cruelty to Women and Children Special Court), Dinajpur. Later the father also surrendered to the court and was granted bail. However, on the date fixed for framing charges, the informant filed a petition for cancellation of the bail of the two accused, alleging that after their release on bail they were threatening the informant to withdraw the case. The informant also claimed that the father and uncle of Shakawat were threatening to kill anyone who gave evidence against them. Being terrorized by such threats, one of the witnesses filed a G.D. Entry. The trial court having heard both parties then cancelled the bail of the father and the uncle. Aggrieved by this order of cancellation of bail, the defendants preferred an appeal to the High Court, which 122

. One is Ain o Salish Kendra (ASK) and others vs. Government of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala vs. Government of Bangladesh (W.P. No. 59 of 1994).

123 .21 BLD (HCD) (2001) 503. Judgment delivered on 29 July 2001.

was contested by the State and also by the victim Ferdousi and her mother. The High Court observed that the granting of bail in a non-bailable offence is a concession allowed to accused persons and it presupposes that this privilege is not to be abused in any manner. The grant of bail is a sort of trust reposed in an accused person by the Court. If it is found that the trust has been betrayed or the liberty granted has been abused, s/he disentitles her/himself to the privilege so granted. If it appears that it is no longer conducive to a fair trial if an accused person is allowed to retain her/his freedom during trial, the bail is to be cancelled and the accused person is to be committed to custody. The Court cautioned that indiscriminate bail enables the accused to exploit opportunities to interfere with the cause of justice by intimidating and suborning the witnesses. Regarding the offence that gave rise to the initiation of the criminal proceeding, the Court stated that the crime of acid throwing is a 'a crime against humanity and society. In this type of dehumanizing act, society’s cry for justice becomes louder124.' The Court observed, the crime was revolting and the perpetrators of the crime must be dealt with to reflect public abhorrence of the crime. The Court then observed that Article 27 (guaranteeing the right to equality before the law), Article 31 (the right to enjoy equal protection of law) and Article 32 (the right to life and personal liberty) of the Constitution, read together impose a duty and obligation on the State to protect and safeguard a citizen and ensure his/her security. The Court also cited Article 3 of the Universal Declaration of Human Rights, which states that everyone has a right to life, liberty and security of person. It noted that the informant, the victim, the mother of the victim and the witnesses in this case were entitled to protection of these rights by the State, acting through its law enforcing agencies and machinery. The Court then observed that in a democratic country governed by rule of law, the government is responsible for ensuring free and fair trial not only to the accused but also to the victims. It emphasized that 'the Court is not only to see the right of the accused persons, but also to see the right of the victim of crime and society at large. The Court is to see that the victim of crime can have a trial free from all fear and insecurity125.' Accordingly, the High Court Division concluded that in the interest of fair play, fair trial and justice, the accused were not entitled to remain free by way of bail but that they were to be put behind prison bars.

In this case, the Court went further and prescribed measures for the safety and security of the victim and witnesses as well. It directed the Secretary, Ministry of Home Affairs, the Inspector General of Police, the Deputy Inspector General of Police, Rajshahi Range and the Superintendent of Police, Dinajpur to take all steps to secure the safety of the informant, the victim and witnesses and to apprehend the absconding perpetrator of the crime.

This judgment promises to impact on the system of the administration of criminal justice in the country, inasmuch as it sets a precedent that the Courts must weigh the rights of both the accused and the complainant in an even manner in order to ensure that the scales of justice are balanced.

7.9. Right to Justice: Public Safety Act The split decision126 by a two-member Division Bench of the High Court on the constitutionality of the Public Safety Act, 2000 (PSA) drew much public attention and was widely covered by the media. This verdict, though divided, might also have an impact on the 124

. Ibid., in p. 509, Para. 25, per A.K. Badrul Huq J. . Ibid. in p. 510, Para. 26.

126 . Judgments were delivered on 12 July 2001.

125

later political decision to scrap the law in entirety. Although, according to the Supreme Court Rules, the matter was to be finally adjudicated by another single bench constituted by a senior judge, the repeal of the law itself rendered it redundant to continue another hearing regarding the validity of the law. A total of 485 127 writ petitions were filed separately in the Supreme Court challenging the constitutionality of the Public Safety Act, but the submissions were heard together by the concerned bench for convenience. The hearing continued for twentyfour working days 128and every phase of the hearing was extensively reported in the media. At the very outset of the hearing, the Act was virtually declared ‘clinically dead’ as the government was issued a rule nisi in more than two hundred cases and was directed not to arrest or harass more than two thousand persons accused in relation to those cases 129. One of the most contentious issues raised by the petitioners during the hearing was the passing of the Act as a Money Bill. In his submission, Barrister Syed Ishtiaq Ahmed argued that the government had committed a constitutional fraud by placing the PSA as a Money Bill before the Parliament. He submitted that the PSA had curbed inherent rights of the Court, such as the power of revision, through violating Articles 114, 101 and 7 of the Constitution. The other issues of debate were that the Act contained provisions, which were capable of being applied in a discriminatory manner, against the political opponents of the ruling political party. The police were invested with excessive power, which was capable of being abused, and the Act had denied the right of the accused to get bail. After a lengthy hearing, Justice M. A. Aziz made his rule ‘absolute’ declaring PSA ultra vires the Constitution and that it should be taken out of the statute book forthwith. He also declared that the pending proceedings against the petitioners were illegal and without lawful authority. He stated in his judgment, In view of the fact that PSA which was passed as a Money Bill was not in fact a Money Bill under Article 81 [of the Constitution] and the certificate issued by the Speaker that the PSA was a money bill having transgressed the above article and denied the Constitutional Prerogative of the President under Article 80(3), as well as Articles 7, 27, 31, 33, 33, 65(1), 101, 116A of the Constitution, the PSA is found to be and declared ultra vires the Constitution and as such void130. He also observed the PSA proved infructuous due to its extensive misuse by police131. Citing a few incidents of malicious application on innocent people, the judge stated that the chain of command within the police force was breaking down and the police were being corrupted due to this law. 'The sooner the dead child is buried the better,' he observed.

Justice Shamsul Huda, however, did not declare the law to be unconstitutional as a whole, rather stating in his judgment that only Sections 18(b) and 16 of the Act, dealing respectively with summary recording of evidence and denial of bail, were liable to be repealed. He observed that it is illegal to deprive anybody of his or her right to pray for bail; even in case of non-bailable offences, it is within the court’s jurisdiction to decide about granting or refusing bail and therefore, Section 16 of the PSA restricting the right of bail was against the general principles of criminal trial and also was repugnant to the Constitution.

This split verdict, though different in its implications, did not differ in spirit that the contents of the PSA were not conducive to establishing rule of law in the country. Though the judgments were not sufficient to scrap the law as a whole, they virtually halted the application of the law and thousands innocently accused were set free. These judgments 127

. Jugantor, 13 July 2001. . Ibid.

129 . Sangbad, 11 June 2001.

130 . Daily Star, 13 July 2001 131 . Jugantor, 13 July 2001.

128

could caution future attempts to enact similar harsh laws. The PSA has been replaced by another restrictive law Ain Srinkhala Bhangakari Oporadh (Druto Bichar) Ain, 2002 (Offences Disrupting Law and Order [Summary Trial] Act, 2002), which claims to address a ‘quick disposal of cases related to disruption of law and order’, but may be used as a tool of oppression.

7.10 Some Pending Matters The Supreme Court, in 2001, not only delivered notable judgments after finally disposing of the particular cases, but issued rule in some matters involving public interest of grave importance which are pending for disposal and also granted ad interim remedy in some of those cases. The issuance of rules in these matters signified that the Court appreciated the prima facie cause of representing those matters in Court in the form of public interest litigation.

7.11 Arsenic Crisis On 1 July, 2001, the High Court issued a rule nisi against the government to show cause in three weeks as to why the indiscriminate and continuous sinking of deep and shallow tube wells should not be declared without lawful authority. The government was also asked to answer why they should not be directed to earmark, immediately, the arsenic contaminated areas, stop drinking of water containing more than 0.5 mg arsenic per liter and developing alternative sources of drinking water conforming to the guidelines of the World Health Organisation. This rule was issued in a writ petition jointly filed by two arsenic patients, Dhaka Community Hospital and a voluntary organisation named Brotee. The hearing is pending132.

7.12. Corruption The High Court issued rule nisi against the government to show cause in six weeks as to why it should not be directed to recover arrears telephone bill from defaulting Members of Parliament and also asked to supply a list of those MPs in one month 133. Petitioner organization Bangladesh Legal Aid and Services Trust (BLAST) stated in its petition, that the unpaid arrear telephone bill from 266 Members of the Fifth Parliament amounted to more than Taka 45 million and from 216 Members of the Seventh Parliament amounted to about Taka 35 million. However, the Bangladesh Telegraph and Telephone Board did not take any measure to recover the bill, nor did they disconnect the telephones. This matter awaits disposal.

7.13. Hawkers Eviction The government was asked by the High Court to show cause as to why the eviction of hawkers from different streets without implementing an alternative arrangement by the Dhaka City Corporation should not be declared to be illegal and without lawful authority.

The Chhinnamul Hawkers League filed the writ petition 134. However, in an earlier case, the High Court judgment directed the government, without prescribing any specific alternative 132

. Prothom Alo and Ittefaq, 2 July 2001. . Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.

134 . Itefaq, 20 August 2001.

133

measure, to free the city streets of hawkers. The two contradictory judgments have created confusion.

7.14. Prisoners and Prisons The High Court, upon a writ petition (W.P. No. 3421/2001) by Ain o Salish Kendra (ASK) issued rule asking the government to show cause in three weeks as to why the use of bar fetters in prisons should not be declared illegal 135. This organization obtained rule in two other cases136 to this effect in 1995 and 1997, but these have yet to be disposed of. This delay has caused a serious violation of the prisoners' right to freedom from torture and inhuman treatment. The same organization filed another writ petition (W.P. No. 3679/ 2001), in response to which the High Court asked the government to show cause as to why it should not be directed to ensure that the conditions of the prisons across the country and the amenities of the prisoners are maintained in accordance with the provisions of the Jail Code and other standards. The final hearing of the petition is still pending of people that it had once enjoyed137. Therefore, a strong and effective role of the judiciary in advancing human rights, rule of law and public interest presupposes the timely disposal of matters before it. If the huge backlog of cases cannot be resolved immediately, one way of protecting public interest may be to prioritise such matters in their disposal. However, there is hardly any alternative to swift and effective management of cases as long as we intend to ensure and promote the idea of justice.

CHAPTER-8 Case Reference of Violation of Fundamental Rights and Remedy 8.1 Bilkis Akhter Hossain v Bangladesh & Ors [1997] ICHRL 35 (7 April 1997) For the Petitioner: Mr Moudud Ahmed, with Mr A M Mahabub Uddin, Ms Ireen Mahbub, Mr Md Fakharuddin and Mr Md Humayun Kabir Bulbul, Advocates For the Respondents: Mr K S Nabi, Attorney General, with Mr Kaiseruddin Ahmed, DAG, and Mr Bazlur Rahman Chhana, AAG Following his participation in several political rallies, H, a Member of Parliament and member of the leadership of the opposition Bangladesh Nationalist Party (BNP), was arrested and detained under the Special Powers Act, 1974. The order of detention, served on the day of his arrest, alleged that H’s detention was necessary in order to prevent him from carrying out activities prejudicial to law and order. The grounds of detention, served eight days later, added other allegations, including those of sabotage to electrical installations and prejudicial activities in educational institutions, mills and industries. H’s wife filed a writ petition under Art 102 of the Constitution, challenging the legality of her husband’s detention. The petition contended, inter alia, that the grounds of detention were vague, indefinite and unspecified and that the criminal prosecution of other BNP members, alleged to have been incited to violence by H during the course of a procession, did not constitute grounds for his detention.

The petition also claimed compensation for, inter alia, the irreparable damage caused to H’s 135

. Sangbad, 7 August 2001. . W. P. No 2678/95 and W. P. No 2852/97.

137 . Jugantor, 4 February 2002 136

name and reputation by the publicity of his arrest and for mental and physical torture sustained by him during the course of the 17 days spent in detention. The respondent Government submitted, inter alia, that the jurisdiction of the High Court Division could not be invoked under Art 102 because H had not availed himself of the alternative remedy under s 8 of the Act by making a representation to the Advisory Board to clarify the grounds of his detention. The court issued a rule nisi upon the respondents to show why H should not be produced before the court. The respondent’s affidavit evidence included three confidential police reports alleging that H and other BNP leaders had planned acts of sabotage during the course of secret meetings just prior to H’s arrest and police summaries of H’s speeches at several political rallies. These police documents alleged facts not disclosed in the grounds of detention. The allegations of torture were not refuted by the respondents. The fundamental rights raised by the writ petition included the rights to freedom of movement (Art 36), freedom of assembly (Art 37) and life and personal liberty (Art 32).

In making the rule absolute, declaring H’s detention illegal, directing him to be released forthwith and awarding him compensation, it was held that: 1. A comparison of the order of detention with the grounds of detention shows that the District Magistrate did not know the grounds for making his order detaining H on the day it was issued. The grounds of detention clearly have no nexus with the order of detention as the former was created and manufactured after the latter.

2.

Moreover, many of the grounds of detention are vague, indefinite and unspecified and do not in any way show any nexus between H and the alleged sabotage of electrical installations (Krishna Gopal Bhowmik v Secretary Ministry of Home Affairs 31 DLR (AD) 145 (Bang SC AD), Jahanara Begum v The State 46 DLR 107 (Bang SC HCD) and Hasina Karim v The People’s Republic of Bangladesh 44 DLR 366 (Bang SC HCD), Abul Latif Mirza v The State 31 DLR (AD) 1 (Bang SC AD) considered)138.

3.

The fact that criminal prosecutions are pending against other members of BNP does not constitute grounds for H’s detention.

4. When a person is detained without trial, his or her fundamental rights to liberty, movement and expression guaranteed by the Constitution are curtailed and invaded by the discretionary action of the detaining authority and the aggrieved citizen is, therefore, entitled to seek relief under Art 44 read with Art 102 of the Constitution.

The rights to liberty, movement and freedom are such valuable fundamental rights of every citizen that no authority can take them away without due course of law139. Every moment’s detention should be treated as unlawful detention unless and until the detaining authority can show to the satisfaction of the court that the detention is lawful and within its jurisdiction (Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri 21 DLR (SC) 1 (Pak SC) and Liversidge v Anderson [1942] AC 206 (UK E&W HL) applied).

138

Jahanara Begum v The State 46 DLR 107 (Bang SC HCD) and Hasina Karim v The People’s Republic of Bangladesh 44 DLR 366 (Bang SC HCD) 139 (Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri 21 DLR (SC) 1 (Pak SC) and Liversidge v Anderson [1942] AC 206 (UK E&W HL)

5. The Act itself does not give detainees the right to have the detaining authority clarify vague and indefinite grounds of detention nor obliges the government to release them upon such representation; the Advisory Board can merely consider a detention matter within 170 days from the date of detention and report to the government. Such measures could never be described as alternative and efficacious remedies in respect of the curtailment of fundamental rights of liberty, freedom of movement and freedom of speech guaranteed under the Constitution.

6. The materials and grounds of detention upon which the detaining authority justifies its decision to detain are subject to judicial scrutiny 140 (Bangladesh v Dr Dhiman Chowdhury 47 DLR (AD) 52 (Bang SC AD) distinguished and Habiba Mahmud v Bangladesh 45 DLR (AD) 89 (Bang SC AD) considered).

7. On the face of it, it appears that the three confidential police reports were concocted and manufactured for reasons of political victimization and were made with mala fide intention against H and other BNP leaders. The reports are totally lacking in reasonableness, rational basis and any probative value as they do not disclose any source or basis for their allegations. It was, therefore, unsafe to pass the detention order upon the basis of such materials.

8. The police summaries of H’s political speeches do not in any way show that H instigated or provoked BNP members to cause damage to private property, educational institutions or electrical installations. On the contrary, it appears that he made speeches criticizing the activities of the government which he is entitled to do in a democratic government.

9. There is no specific provision for awarding costs and compensation under Art 102 but it is a long-drawn tradition, custom or discretion of the High Court Division that in every writ case the court always passes judgment either with or without costs. In view of its special original jurisdiction and its extraordinary and inherent jurisdiction to pass any order as it deems fit and proper, the High Court Division has the power to award costs as well as monetary compensation according to the facts and circumstances of each case.

10. Moreover, it would appear that the Appellate Division has approved the principle that the High Court Division is competent to award compensation in an appropriate case in its writ jurisdiction (Habibullah Khan v S A Ahmed 35 DLR (AD) 72 (Bang SC AD) considered). It follows, therefore, that the Supreme Court, in the exercise of its constitutional jurisdiction, can award monetary compensation in appropriate habeas corpus cases for illegal detention in violation of a person’s fundamental rights 141 (Maharaj v Attorney General of Trinidad and Tobago [1978] 2 All ER 670 (T&T PC), Ruhul Sah v State of Bihar & Anor AIR 1983 SC 1086 (Ind SC), Bhim Singh MLA v State of Jammu and Kashmir AIR 1986 SC 494 (Ind SC), Paschim Banga Khet Mazdoor Samity v State of West Bengal AIR 1996 SC 2426; (1996) 2 CHRLD 109 (Ind SC), Government of East Pakistan v Rowshan Biyaha Shaukat Ali Khan 18 140

Bangladesh v Dr Dhiman Chowdhury 47 DLR (AD) 52 (Bang SC AD) distinguished and Habiba Mahmud v Bangladesh 45 DLR (AD) 89 (Bang SC AD) 141 Maharaj v Attorney General of Trinidad and Tobago [1978] 2 All ER 670 (T&T PC), Ruhul Sah v State of Bihar & Anor AIR 1983 SC 1086 (Ind SC), Bhim Singh MLA v State of Jammu and Kashmir AIR 1986 SC 494 (Ind SC)

DLR (SC) 214 (Bang SC), Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri (above) and Amaratunge v Police Constables & Ors [1993] SAARC Law Journal 88 (SL SC) applied).

11. The Constitution of Bangladesh does not provide for the defence of sovereign immunity so there is no bar to awarding compensation to an aggrieved person under writ jurisdiction for a violation of his or her fundamental rights 142. Moreover, the Indian Supreme Court has held that, even though such a defence is provided under Art 300 of the Indian Constitution, it is not applicable in a case involving the violation of a citizen’s fundamental rights (Nilabati Behara v State of Orissa AIR 1993 SC 1960 (Ind SC) considered).

12. In view of the violation of H’s rights under Arts 32, 36 and 37, the illegality of his detention, the irreparable damage caused to his name and reputation by the publicity of his arrest and the inhuman mental and physical torture suffered by him in detention, the court orders the respondents to pay him Tk100,000 as exemplary lumpsum monetary compensation.

8.2. Fatuas - Illegal Declaration of High Court The High Court yesterday ruled that any fatwa or 'legal opinion' not given by a court is unauthorized and illegal. A Division Bench of the HC gave the ruling in its judgment in a case concerning a housewife at a Naogaon village.

The housewife, Shahida of Atikha in Sadar upazila of Naogaon, was reportedly given talaq (verbal divorce) by her husband and was forced to marry his cousin following a fatwa for hilla (forced marriage) given by a local maulana. "Fatwa means legal opinion which means legal opinion of a lawful person or authority. Legal system in Bangladesh empowers only the courts to decide all questions relating to legal opinion on the Muslim and other laws in force," the court said. “We therefore hold that any fatwa including the instant one is unauthorized and illegal", said the HC Bench comprising Justice Mohammad Gholam Rabbani and Justice Nazmun Ara Sultana.

The judgment came on a suo moto rule issued by the court on the District Magistrate and Deputy Commissioner of Naogaon, Lutfur Rahman, on December 2 following a newspaper report on the plight of Shahida.

Subsequently, Ain-O-Salish Kendra and feminist groups filed a writ petition as intervener.

Eminent lawyer Dr. Kamal Hossain represented the petitioners. The HC judgment said, "Marriage between Shahida and her husband Saiful Islam was not dissolved and that for the sake of argument if it is taken that the marriage was dissolved, even then there was no legal bar for Shahida to remarry Saiful without an intervening marriage with a third person. The fatwa in question is wrong".

It went on, "Giving a fatwa by unauthorized person or persons must be made a punishable offence by the Parliament immediately, even if it is not executed".

The Division Bench observed, "We further hold that the respondent District Magistrate should have immediately taken cognizance of the said offence under Section 190 of the Code 142

Nilabati Behara v State of Orissa AIR 1993 SC 1960 (Ind SC)

of Criminal procedure. We are, however, satisfied with the steps taken by the respondent as stated in his affidavit-in-opposition. Let it, we hope, be the once for all warning to the other district magistrates, the magistrates and the police officers."

The Bench further said, "Before parting with this matter, we find it necessary to answer a question as to why a particular group of men, upon either getting education from madrassah or forming a religious group, are becoming fanatics with wrong views. There must be defect in their education and their attitude."

It suggested introduction of Muslim Family Ordinance in the curriculums of madrassahs and schools and sermons during Friday prayers. As a long-term measure, the court recommended "an unified education system and an enactment to control the freedom of religion subject to law, public order and morality within the scope of Article 41 (1) of the Constitution." It noted,� The state must define and enforce public morality. It must educate society".

The Bench detected the court office to send copies of the judgment to the ministries Home, Law, Education and religious Affairs immediately. A large number of women's rights activists including Maleka Begum and Barrister Tania Amir who was the amicus curie in the case were present in the court yesterday.

Meanwhile, Maulana Haji Azizul Islam who gave the fatwa for hilla and five others are facing prosecution following steps taken by the district administration of Naogaon.

In November last year, Shahida was forced to go for hilla as dic ated by the Maulana. He claimed to have overheard talak pronounced three times by Saiful during a family feud about a year and a half ago. The Maulana arranged the forced marriage of Shahida with Saiful's cousin Shadidul when he was away from the village and subsequent divorce after a day. But Saiful refused to accept her.

The DC of Naogaon told the C in an affidavit that Maulana Azizu Islam was arrested on December 6. I've others including the person who conducted the forced marriage are also in custody. At the initiative of local Union Parishad, Shahdia and Saiful are now living together, the DC added143.

8.3 India -Vishaka v. State Of Rajasthan (1997.08.13) (Sexual Harassment), 08/13/1997 Judgment: This Writ Petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing144. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realization of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of social worker in a village of Rajasthan. That incident is the subject matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a working woman may be exposed 143

144

The Daily Star, 2001/01/02 Vishaka & Others. Vs. State Of Rajasthan & Ors. 13.08.1997 dd., Cji, Sujata V. Manohar, B. N. Kirpal JJ.

and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfill this felt and urgent social need.

Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a salutation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility fro ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressed requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court who has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.

Apart from Article 32 of the Constitution of India, we may refer to some other provision which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Articles 14, 19(1) (g) and 21, which have relevance are Article 15 provides that "Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, and place of birth or any of them.

(2)Nothing in this article shall prevent the State from making any special provision for women and children145.

"Article 42 provides that "Provision for just and humane conditions of work and maternity relief - The State shall make provision for securing just and humane conditions of work and for maternity relief146.

145 146

Article 15 of the IndiaN Constitution Article 42 of the Indian Constitution.

"Article 51A provides that "Fundamental duties. - It shall be the duty of every citizen of India, - (a) to abide by the Constitution and respect its ideals and institutions. (b) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.

Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are…………..

Article 51 provides that "Promotion of international peace and security -The State shall endeavors to- (a) Foster respect for international law and treaty obligations in the dealings of organized people with one another; Article 253 provides that "Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

Seventh Schedule.147” Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the parliament enacts to expressly provide measures needed to curb the evil.

Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and o make their fundamental rights meaningful. Governance of the society by the rule of law mandates these requirements as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.

147

Ibid 146. Art. 253.

The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil.

Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance.

The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.

The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are "Objectives of the Judiciary 10. The objectives and functions of the Judiciary include the following: (a) To ensure that all persons are able to live securely under the Rule of Law; (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State.

"Some provisions in the 'Convention on the Elimination of All Forms of Discrimination against Women', of significance in the present context are Article 11.

"States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular. (a) The right to work as an inalienable right of all human beings; (b) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

Article 24 "States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention."

The general recommendations of CEDAW in this context in respect of Article 11 are "Violence and equality in employment. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place148.

Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually colored remarks, showing pornography and sexual demands, 148

Article 11 of tne Convention on the Elimination of the Woman and Children.

whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.

States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place.

"The Government of India has ratified the above Resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made a official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women's Rights to act as a public defender of women's human rights; to institutionalizes a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse.

Independence of Judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms fro construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister fro Immigration and Ethnic Affairs vs. Tech. 128 ALR 535, has recognized the concept of legitimate expectation of its observance in the absence of contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.

In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR was referred to support the view taken that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right', as a public law remedy under Article 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity149.

In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental 149

Nilabati Behera vs. State of Orissa 1993(2) SCC 746,

rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.

8.4. The Guidelines and Norms: HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.

1. Duty of the Employer or other responsible persons in work places and other institutions.

It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as. a) Physical contact and advances; b) A demand or request for sexual favours; c) Sexually coloured remarks; d) Showing pornography; e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps all employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual

harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers' Initiative Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.

8.5. Hanufa case - pay RS 10 lakh NEW DELHI, Jan 31: The Indian Supreme Court today asked the central government to pay RS 10 lakh as damage to a Bangladeshi woman, who was gang raped at the Yatri Niwas (retiring room) at the Howrah Railway Station in Calcutta on February 2, 1998, reports BSS. The court comprising Justice Saghir Ahmed and Justice RP Sethi directed the central government to hand over the money within three months to the Bangladesh High Commissioner for payment to the victim. The Bangladeshi woman is a member of a union parishad.

The court delivered the judgment dismissing an appeal by the chairman, Railway Board and others against a judgment of the Calcutta High Court.

The High Court verdict came on a petition filed by a lawyer of Calcutta Mrs. Chandrima Das. It was alleged in the petition that the victim had come to Howrah from Bangladesh on her way to Ajmeer Sharif and stayed at the railway Yatri Niwas to arrange for her reservation in the train. She was gang raped by many, including employees of the Indian railways. A case was registered the next day with the General Railway Police Station (GRPS) there. While awarding the damages to the victim, the High Court observed that the rape was committed at the Yatri Niwas, belonging to the railways and was perpetrated by the railway employees.

"In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. This court has already held rape as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution," observed Justice Saghir Ahmed, and thus turned down the contention of the appellants that the petition was not maintainable under the public law.

"If any of such employees commits such an act, the union government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees," Justice Saghir Ahmed observed.

(BSS: 31 Jan 2000) CHAPTER-9 Amnesty International Recommendations

Concerning the Special Powers Act Amnesty International considers the Special Powers Act a law designed to bypass safeguards against arbitrary detention. It allows the government to detain people who are not charged with recognizably criminal offences. It circumvents the rules of evidence and standard of proof in the criminal justice system, leaving individuals, who should be presumed innocent unless found guilty by a court, at risk of being punished without trial.

Amnesty International believes that it is a violation of fundamental human rights for states to detain people whom they do not intend to prosecute or deport.

1. An Amnesty International is therefore urging the Government of Bangladesh to repeal the Special Powers Act as it has pledged to do.

2. Concerning the use of Section 54 of Code of Criminal Procedure Amnesty International particularly welcomes the High Court ruling on 7 April 2003 - for the establishment of safeguards against torture. In support of that ruling, Amnesty International reiterates the recommendations it has made to the present and previous governments of Bangladesh since November 2000. These are as follows: 2. A. Establish clear and enforceable safeguards against abuse of Sections 54 of the Code of Criminal Procedure and other administrative detention procedures resulting in torture.

2.B Ensure that the magistrates do not ignore safeguards against unlawful detention when ordering a prisoner's remand into police custody; to that effect, ensure that the prisoners are physically produced before the magistrates when police request a prisoner's remand into custody, and ensure that the magistrates actively take steps to ascertain whether or not the detainee has been tortured, taking care not to prejudice the detainee's safety, for example, by asking questions in the presence of the detaining police officers.

2. C Investigate every allegation of torture through an impartial and independent inquiry to identify perpetrators of torture according to international standards.

2. D Ensure that all perpetrators of torture and those whose negligence has facilitated torture are brought to justice without delay.

2. E Make public all reports of previous commissions of inquiry into allegations of torture and any such future reports.

2. F Provide compensation to torture victims or their families.

2. G Invite the Special Reporters of the United Nations Commission on Human Rights on Torture to visit Bangladesh.

2. H Amend Bangladeshi law to reflect the provisions of the international human rights instruments to which Bangladesh is a party.

2.I Implement the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 55/89 Annex, 4 December 2000) please see Appendix 2.

2. J Implement the recommendations of the UN Special Reporters on torture to the General Assembly of July 2001(UN Doc A/156/56, para 39 - 3 July 2001).

3. Concerning police training: 3.1 Train police personnel in effective methods of investigation which respects human rights. Make it clear to them that any act of torture including rape and sexual abuse of detainees is a criminal act punishable by law.

3.2 Ensure that training on the gathering, analysis and preservation of evidence and other aspects of the investigation of alleged crimes, including techniques of interviewing and taking statements from suspects and witnesses is designed to develop the capacity of the police to build a case in an efficient manner that avoids reliance on coercion.

3.3 Ensure that human rights are a permanent component of police training, reflected in long-term training plans and resources allocation. It should be key component of all basic training for new recruits. It should also be included in all relevant in-service courses, such as refresher courses, training in crime investigation skills and public order policing.

3.4 Ensure that police personnel at all levels know that they will be held personally responsible and accountable for their own actions or omissions.

Police personnel at all levels should be made aware that they have a right and duty to disobey orders to carry out acts of torture or ill-treatment.

3.5 Ensure that all detainees are given immediate access to relatives, legal counsel, medical assistance and relatives after being taken in custody.

3.6 Ensure that the detainees are promptly informed of their rights to lodge complaints about their treatment.

3.7 Ensure that special training is given to the police on dealing sensitively with issues of violence against women, as well as how to deal with all women victims of crime, Female guards should be present during the interrogation of female detainees and should be solely responsible for carrying out any body searches of female detainees.

3.8 Ensure that children are detained only as a last resort and for the shortest possible time. Special training should be given to the police on the specific rights and needs of children. Training should involve how to deal sensitively with issues of violence against children, as well as how to deal with children that have been victims of crime.

3.9 Ensure that all training initiatives are linked to the creation of effective accountability mechanisms.

3.10 Establish internal monitoring and investigation procedures to ensure that allegation of human rights violations committed by police are immediately and impartially investigated and those found responsible are brought to justice.

4. Concerning the creation of a National Human Rights Commission Amnesty International encourages the creation of a national human rights commission in Bangladesh if it conforms to Amnesty International recommendations as detailed in its publication entitled.150 150

National Human Rights Institutions: Amnesty International’s recommendations for effective protection and promotion of human rights. See reference at endnote 22.

4.1 It urges the Government of Bangladesh to ensure from the outset that such a commission is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties.

4.2 It recommends that the creation of a national human rights commission should be accompanied by a determined government policy aimed at holding the perpetrators of human rights fully accountable, thus ensuring that those who violate human rights cannot do so with impunity.

4.3 It reiterates that the creation of such a commission should go hand in hand with a thorough review of existing legal and other institutions in order to make these more effective instruments of human rights protection.151 ''54.-(1) any police-officer may, without an order from a Magistrate and without a warrant, arrestFirst, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the [Government]; Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property [and] who may reasonably be suspected of having committed an offence with reference to such thing; Fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; Sixthly, any person reasonably suspected of being a deserter from [the armed forces of [Bangladesh;] seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh; Eighthly, any released convict committing a breach of any rule made under section 565, subsection (3) Ninthly, any person for whose arrest a requisition has been received from another policeofficer, provided that the requisition specified the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.''152 151

152

Appendix 1: Section 54 of Code of Criminal Procedure (ACT V OF 1898)

Appendix 2: Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 55/89 Annex, 4 December 2000)

1. The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter "torture or other ill-treatment") include the following: (a) Clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families; (b) Identification of measures needed to prevent recurrence; (c) Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.

2. States shall ensure that complaints and reports of torture or ill-treatment are promptly and effectively investigated. Even in the absence of an express complaint, an investigation shall be undertaken if there are other indications that torture or ill-treatment might have occurred.

The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission investigations by, impartial medical or other experts. The methods used to carry out such investigations shall meet the highest professional standards and the findings shall be made public.

3. (a) the investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. The persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation.

They shall also have the authority to oblige all those acting in an official capacity allegedly involved in torture or ill-treatment to appear and testify. The same shall apply to any witness.

To this end, the investigative authority shall be entitled to issue summonses to witnesses, including any officials allegedly involved, and to demand the production of evidence. (b) Alleged victims of torture or ill-treatment, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation that may arise pursuant to the investigation. Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation.

4. Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing, as well as to all information relevant to the investigation, and shall be entitled to present other evidence.

5. (a) In cases in which the established investigative procedures are inadequate because of insufficient expertise or suspected bias, or because of the apparent existence of a pattern of abuse or for other substantial reasons, States shall ensure that investigations are undertaken through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any suspected perpetrators and the institutions or agencies they may serve. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles. (b) A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and

recommendations based on findings of fact and on applicable law. Upon completion, the report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation and, as appropriate, indicate steps to be taken in response.

6. (a) Medical experts involved in the investigation of torture or ill-treatment shall behave at all times in conformity with the highest ethical standards and, in particular, shall obtain informed consent before any examination is undertaken. The examination must conform to established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials. (b) The medical expert shall promptly prepare an accurate written report, which shall include at least the following: (i) Circumstances of the interview: name of the subject and name and affiliation of those present at the examination; exact time and date; location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g., detention centre, clinic or house); circumstances of the subject at the time of the examination (e.g., nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanor of those accompanying the prisoner or threatening statements to the examiner); and any other relevant factors; (ii) History: detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, times when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms; (iii) Physical and psychological examination: record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries; (iv) Opinion: interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and/or further examination shall be given; (v) Authorship: the report shall clearly identify those carrying out the examination and shall be signed. (c) The report shall be confidential and communicated to the subject or his or her nominated representative. The views of the subject and his or her representative about the examination process shall be solicited and recorded in the report. It shall also be provided in writing, where appropriate, to the authority responsible for investigating the allegation of torture or ill-treatment. It is the responsibility of the State to ensure that it is delivered securely to these persons. The report shall not be made available to any other person, except with the consent of the subject or on the authorization of a court empowered to enforce such a transfer.

Conclusion In the third world countries like Bangladesh, the fundamental rights are frequently violated and these violations are neglected. People of Bangladesh are not conscious enough about the fundamental rights. Moreover, because of the complex and lengthy process of the judiciary general people are scared of demanding justice from the court.

Necessary reforms in the judiciary system are now mandatory to ensure the effective implementation of the laws regarding the fundamental rights.

While it is very encouraging that the apex court of the country has produced some pro-active and positive judgments and has initiated some public interest proceedings during the span of a year; it is very frustrating to observe unnecessary pending for disposal of a large number of cases for many years. This large backlog of cases in the Supreme Court poses a threat that the public interest involved in these cases may ultimately be ignored even if a positive judgment comes at end. Very recently, it was disclosed in Parliament that a total of more than 10 million153 cases were awaiting disposal in both divisions of the Supreme Court. The Chief Justice himself admitted in a meeting that the judiciary is losing the credibility and failing to achieve the confidence of the mass people.

Bibliographical Index & Bibliography Bibliographical Index and Case References: 1. The Constitution of the People’s republic of Bangladesh-Text Book 2. The Constitutional Law and Politics Perspective Bangladesh- Abdul Halim 3. The Constitutional Law of Bangladesh-Muhmudul Islam 4. BSS-1998, 2000 5. Reports of Amnesty International -2000-2006 6. Dhaka Law Reports 7. Bangladesh Law Division 8. Bangladesh Law Times 9. All Indian Report 10. Paper Cuttings11. The Bangladesh Observer 12. The Daily Prothom Alo 13. The Daily Star 14. Documents collected from different NGOs. 15. ASK, 2001, Human Rights in Bangladesh 2000, Dhaka.

16. Iyer, J. Krishna, Human Rights, Judicial Process and Public Interest Litigation, in Aminul Huq Memorial Lecture Series, ASK and BLAST, Dhaka 2000.

17. Laski, Harold J., 1992, Grammar of Politics, Third Indian Reprint.

Sidgwick, H. 18. Per Bimalendu Bikash Roy Chowdhury, J., 21 BLD (AD) (2001) 69.

19. 53 DLR (2001) 138. Judgment delivered on 24 October, 2000.

153

. Daily Star, 9 December, 2001.

20. One of these was by Mr. Mainul Husein, the then President of Supreme Court Bar Association, another by Mr. Rafique-ul Huq, Senior Advocate and 338 other Advocates of Bangladesh Supreme Court and a third by Mr. Moudud Ahmed, MP, on behalf of 110 members of the Parliament.

21. 53 DLR (2001) 138, at p. 142, Para. 10.

22. Article 39(2) reads, “Subject to any reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed.

23. In Razina vs. Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 2 All ER 319: (1968) CA 150.

24. Ataur Rahman Khan vs. Mohammad Nasim and another, 52 DLR (2000) 16; discussed in Human Rights in Bangladesh 2000, ASK, p. 14 to 21.

25. These included the Bangladesh Society for the Enforcement of Human Rights (BSEHR), the Bangladesh National Women’s Lawyers Association (BNWLA), Bangladesh Manabadhikar Sangbadik Forum (Bangladesh Human Rights Journalists’ Forum) and Ain o Salish Kendra (ASK).

26. 53 D.L.R. (2001) 1, in p. 9, para.10, per Mr. Md. Fazlul Karim J. 27. AIR 1986 (SC) 180.AIR 1986 (SC) 180.

28. 53 DLR (2001) 1, in p. 18, para.35, per Md. Fazlul Karim J. 29. Dr. Faustina Pereira, Advocate, Supreme Court vs. State and others, 53 DLR (2001) 414: 21 BLD (HCD) (2001) 499.

30. Also coordinator of the Advocacy Unit of ASK. 31. Ibid., at p. 416, Para 10, per Md. Hamidul Haque J. 32. He gave this information in response to a telephonic enquiry from an ASK lawyer.

33. Criminal Miscellaneous Case No. 7782 of 2000. Judgment delivered on 27 March 2001, and published in the Daily Star on 26 August 2001.

34. Section 491(1): The High Court Division may, whenever it thinks fit, direct that a person within the limits of its jurisdiction be brought up before the Court; that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

35. 7 BLC (2002) 85. Judgment delivered on 6 November, 2001.

36. 53 DLR (2001) 411, Judgment delivered on 9 July 2001.

37. According to Section 2 (f) of the Children Act, 1974, a ‘child’ means a person under the age of 16 years.

38. 45 DLR 643.

39. 49 DLR 53.

40. AIR 1986 (SC) 1977.

41. Salma Sobhan, Executive Director, Ain o Salish Kendra (ASK) vs.

Government of Bangladesh and others, Writ Petition No. 6070 of 1997, Judgment delivered on 31 May, 2001.

42. 53 DLR (AD), 2001, 79. Judgment passed on 3 May 2001.

43. AIR 1991 (SC), 1902. It was held in this case that '…when the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done, then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to persons affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly, but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the preamble itself, which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority; any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only [if] it is resulted in improvement in any part of the scheme. As stated earlier, a private Nursing Home could neither be considered to be an amenity nor could it be considered an improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.'

44. 1997 BLD 577. The Court observed in this case, 'The structure cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the corporation is under legal obligations to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.

45. 53 D.L.R. (2001) 496. Judgment delivered on 28 June 2001.

46. Section 2 of the Order states that every person shall be deemed to be a citizen of Bangladesh whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971 and continues to be a resident; or who was a permanent resident of such territories on the 25th day of March, 1971, continues to be a resident and is not otherwise disqualified from being a citizen by or under any law for the time being in force.

47. 40 DLR (AD) 116.

48. 46 DLR (AD) 192.

49. AIR 1965 (SC) 1623.

50. 1982 BCR (AD) 143.

51. 21 BLD (HCD) (2001) 446. Judgment delivered on 30 April 2001.

52. 19 BLD (1999) 488. Judgment delivered on 29 July 2001.

53. 21 BLD (HCD) (2001) 446, in p. 448, Para. 6 per Mr. A.B.M. Khairul Haque J. 54. One is Ain o Salish Kendra (ASK) and others vs. Government of Bangladesh and others [19 BLD (1999) 488], and the other is Modhumala vs. Government of Bangladesh (W.P. No. 59 of 1994).

55. 21 BLD (HCD) (2001) 503. Judgment delivered on 29 July 2001.

56. Judgments were delivered on 12 July 2001.

57. Jugantor, 13 July 2001.

58. Sangbad, 11 June 2001.

59. Daily Star, 13 July 2001 60. Jugantor, 13 July 2001.

61. Prothom Alo and Ittefaq, 2 July 2001.

62. Sangbad, 27 May, and Bhorer Kagoj, 28 May 2001.

63. Ittefaq, 20 August 2001.

64. Sangbad, 7 August 2001.

65. W. P. No 2678/95 and W. P. No 2852/97.

66. Jugantor, 4 February 2002.

67. Daily Star, 9 December, 2001.

Case Reference relating to Violation of Fundamental Rights and Remedy i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv.

Bilkis Akhter Hossain v Bangladesh & Ors [1997] ICHRL 35 (7 April 1997) Krishna Gopal Bhowmik v Secretary Ministry of Home Affairs 31 DLR (AD) 145 (Bang SC AD), Jahanara Begum v The State 46 DLR 107 (Bang SC HCD) Hasina Karim v The People’s Republic of Bangladesh 44 DLR 366 (Bang SC HCD), Abul Latif Mirza v The State 31 DLR (AD) 1 (Bang SC AD).

Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri 21 DLR (SC) 1 (Pak SC) Liversidge v Anderson [1942] AC 206 (UK E&W HL).

Bangladesh v Dr Dhiman Chowdhury 47 DLR (AD) 52 (Bang SC AD) distinguished and Habiba Mahmud v Bangladesh 45 DLR (AD) 89 (Bang SC AD).

Habibullah Khan v S A Ahmed 35 DLR (AD) 72 (Bang SC AD).

Maharaj v Attorney General of Trinidad and Tobago [1978] 2 All ER 670 (T&T PC), Ruhul Sah v State of Bihar & Anor AIR 1983 SC 1086 (Ind SC), Bhim Singh MLA v State of Jammu and Kashmir AIR 1986 SC 494 (Ind SC), Paschim Banga Khet Mazdoor Samity v State of West Bengal AIR 1996 SC 2426; (1996) 2 CHRLD 109 (Ind SC), Government of East Pakistan v Rowshan Biyaha Shaukat Ali Khan 18 DLR (SC) 214 (Bang SC), Government of West Pakistan v Begum Agha Abdul Karim Sherish Kashmiri

xvi.

Amaratunge v Police Constables & Ors [1993] SAARC Law Journal 88 (SL SC). xvii. Nilabati Behara v State of Orissa AIR 1993 SC 1960 (Ind SC). xviii. Vishaka v. State of Rajastan ( 1997. 08.13) (Sexual Harasment), 08/13/1997. xix. Jibendr V.The Province of East Pakistan PLD 1957SC (PAK) 9, xx.

State V. Dosso. xxi. Golak Nath Vs State of Punjab, xxii. Hamidul Huq Chowdhury Vs Bangladesh 1982, 34 DLR 190 xxiii. Zainal Abedin Vs Government of Bangladesh 94 DLR 77 xxiv. Abdul Latif Mirza vs. Bangladesh 31 DLR (AD).

Abbreviation: 1. HCD------------------High Court Division 2. SC---------------------Supreme Court 3. AD--------------------Appellate Division 4. AIR--------------All India Report 5. PLD-------------Pakistan Law Dictionary 6. NR--------------The Non-Resident Property (Administration) Act 1974 7. SPA-------------The Special Powers Act 1974 8. CrPC--------------The Code of Criminal Procedure 1898 9. CPC -----------------The Code of Civil Procedure 1908 10. IO-------------------The Indemnity Ordinance 1975 11. OC------------------The Official Secrets Act 1923 12. ITO-----------------The income Tax Ordinance 1984 13. UP-----------------Union Parishad 14. BNP--------------Bangladesh Nationalist Party 15. BCDJC-----------------Bangladesh Centre for Development, Journalism and Communication (BCDJC) 16. HRN---------------------- Human Rights Network 17. UN-------------------------United Nations 18. CHT-----------------------Chittagong Hill Tracts 19. FIR------------------------First Information Report 20. ICCPR-------------------International Covenant on Civil and Political Rights (ICCPR) 21. HRC----------------------Human Rights Committee 22. AI-----------------------Amnesty International 23. HHRC---------------National Human Rights Commission 24. BSEHR---------------Bangladesh Society for the Enforcement of Human Rights 25. ASK------------Ain o Salish Kendra 26. CRC------------------Convention on the Rights of Child 27. BGMEA-----------------Bangladesh Garments Manufacturing and Export Association 28. RAJUK-----------------Rajdhani Unnayan Kortripokkho 29. UDHR-----------------Universal Declaration of Human Right 30. WP-------------------Writ Petition