Introduction
As democracy swept
across the globe through the latter half of the twentieth century, many
mechanisms have been instituted to monitor its status so as to protect and
promote its core values especially among new and restored democracies. Mandates
were established by many international organizations and regional state
groupings that would allow them to deal with serious or persistent violations
of the principles set out by these bodies.
In the last twenty years
or so a broad-based framework has emerged to assess infringements of core
political values that constitute democracy and to recommend measures for
collective action for speedy restoration of democracy and constitutional rule.
The Commonwealth took the lead in this matter and in 1995 established the Commonwealth
Ministerial Action Group (CMAG) with a special mandate to deal with serious and
persistent violations of principles constituting democracy. Key Guidelines were
established to determine a situation of concern. These include.
The unilateral abrogation of a democratic
constitution or serious threat to Constitutional rule.
Suspension or prevention of
the lawful functioning of parliament or other
democratic institutions.
Postponement of parliamentary
elections without constitutional or other reasonable justification
Systematic denial of political space, such as
detention of political leaders or restriction of freedom of association,
assembly or expression.
In reaching judgment on a situation of concern
the following circumstances were considered pertinent :
A national electoral process that is seriously
flawed Abrogation of the Rule of Law or undermining of thejudiciary Systematic
violation of human rights of the population or of any communities
or groups by the member-government concerned and
significant restriction on the media or civil society that prevent them
from playing their legitimate role.
It is in the light of this gauge that we turn
now to the situation obtaining in Bangladesh.
Constitutional Crisis: Assaults on the Constitution
Bangladesh is a classic example of how democracy
has been usurped and compromised in a calculated and premeditated manner; its
people disenfranchised and an unelected government allowed to consolidate
its path to absolute rule.
It is universally recognized that the essence of
democracy is peaceful changeover of governments through regular and credible
elections. Dictatorship can only be imposed or removed by
force. It is also universally acknowledged that the worst form
of dictatorship is a democratically elected
government that perpetuates its rule through manipulation of the electoral
process. This is the scenario that now obtains in Bangladesh.
13th Amendment to the Constitution
As is well-known, the main reason for the
current political impasse in Bangladesh was the ruling Awami League
government's decision to abrogate the constitutional provision i.e. the 13th
Amendment, for a non-party caretaker government to supervise elections to the
Tenth parliament.
Ever since the overthrow of the dictatorial
regime of Hussain Muhammad Ershad in December 1990 and the re-introduction of
parliamentary democracy in Bangladesh one concern has remained constant in the
minds of all the political parties' viz. to maintain the integrity of the
electoral process. There were deep-rooted suspicions that elections under a
political government would be tampered with and manipulated and that the
incumbent government would do everything in its power to seek to perpetuate
it's rule.
It may be recalled that in all, three
parliamentary general elections were held in Bangladesh, under some form of
neutral, interim, poll-time government in 1991, 1996 and 2001 respectively. The
provision for a neutral, non-party caretaker government was formalized in the
Constitution through the 13thAmendment by a unanimous decision of the
parliament in 1996. Ironically, this was to accommodate the unrelenting demand
of the AL in collaboration with the Jamaat-e-Islami and Jatiyo Party for such a
system. The help of the Commonwealth was sought earlier to try and mediate a
solution but to no avail. Sir Ninian Stephens, the Special Representative of
the Commonwealth Secretary-General, after a sincere and long-drawn out effort
failed to reach an agreement in the face of the total intransigence of the AL.
The AL boycotted the elections to the 7th Parliament which installed a BNP
government. The latter's sole task was to enact the 13th Amendment before
dissolving parliament and calling for elections to the 8th parliament.
The 13th Amendment was the AL's brainchild. It
provided for a neutral, non-party caretaker government with a maximum time of
90 days to oversee general elections, after the dissolution of the parliament.
This system continued until the unconstitutional
overthrow of the democratically elected government on January 11, 2007. The
army-backed caretaker government that took over failed to find any other
alternative to the two major parties who had
ruled in the preceding elections. It is widely
considered to have made a deal with one of them viz. the Awami League and thus
put in effect a face-saving exit by stage-managing elections to the 9th
parliament. The AL swept to victory with a two-thirds majority which enabled it
to consolidate its hold on power through tinkering with the Constitution.
Bolstered by this majority, the AL totally
reversed its position by taking steps in 2011 leading to the annulment of the
13th Amendment. Its actions were precipitate. There was no pre election
pledge for such annulment. It was not mandated in the AL Manifesto. There was
no public demand for such change. It was not a governance priority.
The push to do so was impelled by a deliberate decision, a
single-minded pursuit, to gamer absolute control over the electoral process.
The 15th Amendment was for all intents and purposes a "Project" - a
calculated process to capture the electoral mechanism. Inthe eyes
of many analysts it was a reassertion of the BAKSHAL syndrome that motivated
the Prime Minister's father Sheikh Mujibur Rahman i.e. to betray democracy by
reverting to one party rule.
15th Amendment
The AL government adopted the 15th Amendment.
This provided that general elections be held within 90 days preceding
dissolution of parliament that is under the existing political government, with
Members of Parliament in place.
Such a provision is unique. It is not based on
the Westminster model as repeatedly claimed by Prime Minister Sheikh Hasina. It
is unprecedented in the practice of democracy especially among Commonwealth
countries where, without exception, a poll-time interim government whether
incumbent or otherwise is always established after the dissolution of
parliament.
In electoral terms, the 15th Amendment has
inherent flaws : It does not provide for a level playing field and can lead to
inequality among contestants
MP's continue to hold office and exercise
disproportionate influence in their constituencies.
Legal contradictions are rife as various
constitutiona articles
clash with each other (e.g. Article 19 and 27 and Article 66 and 123 (3a) (iv)
The validity of MP's elections is subject to legal challenge across the
board.
Perhaps, it was in anticipation of these factors
that the Chief Justice in his "Short Order" of May 2011 while
declaring the 13thAmendment null and void also suggested that elections to the
10th and 11th parliament (the next two in succession) might be held under the
caretaker government system based on the age old principles of
"necessity', "safety of the people" and "safety of the
State". The AL government hastily adopted the 15th Amendment, one month
later (30 June, 2011) to put paid to any such possibility.
[N.B. 1: It is underscored here that the
High Court Division recently, in its verdict of 19 June, 2015 on a writ
petition challenging the legality of the general election of January 5, 2014
came up with two formulas for an interim government to assist the Election
Commission in holding the next two parliamentary elections (11th and
12th). These were as follows:(i) An incumbent Prime Minister- led election -
time government with 50 fresh Ministers from all parties or (ii) The main
opposition party to govern the country for the last one year of the five year
tenure of the parliament. The HC Division also suggested providing the Election
Commission with powers to overturn orders or directions of any Minister and
even the Prime Minister in a cogent manner. Both major parties rejected the two
formulas as unconstitutional (AL) and unrealistic and inapplicable (BNP).
However, the High Court judgment underlines the unease of the judiciary along
with the great majority of the people of the validity of the 15th Amendment.]
It is apparent that the Bangladesh electoral
scenario has added a new more virulent dimension to the consideration of
persistent violations of democratic values and principles. It goes beyond the
factor of "unconstitutional overthrow of a legitimate government or
otherwise" and enters a new more dangerous manifestation that of
perpetuating the rule of a democratically elected government by paving the path
to manipulating the electoral process. It is an example of a permanent
dictatorship in disguise leading to one-party elections.
The present AL government holds that the BNP
call for a neutral, non-party, caretaker government has been precluded by the
15th Amendment and unless the Constitution is again amended by three-fourth
majority in parliament it remains the law of the land. It contends that
not to hold elections would leave a constitutional vacuum. The question remains
whether a bad law, railroaded through brute majority of the legislature and not
conforming to recognized values and precepts of democracy
is sacrosanct.
The AL insisted that they had to hold elections
to fulfill the constitutional requirement laid down in the 15th Amendment. They
promised (falsely) however, that they would .immediately thereafter, initiate
dialogue to resolve the issue. The so-called
claim of constitutional obligation was met with
derision in the face of the government's
conspicuous constitutional lapses including: (i) A resignation fiasco
prior to setting up a poll time government (ii) The Prime Minister 's offer of
an aU Party government which was a prescription for a single party ruling
alliance (iii) Parallel continuation of the 9th parliament (not dismissed by
the President) with the 10th parliament with 600 MP's
holding overlapping
jurisdiction (iv) the incongruous dual role
that continues to be played by the Jatiyo Party (Ershad) of serving on the
Treasury Bench (3 Cabinet Ministers). as well as constituting the major
opposition in parliament.
[N.B. 2: In a scathing report
entitled "Parliamentary Watch" (issued on
25.10.2015) the Transparency
International Bangladesh published the
findings of a study on the functioning and performance
of the 1oth parliament
constituted after the flawed January 5, 2014 elections. It was based on an
assessment of 112 working days (July 2014 to June 2015) of the parliament.
Amongst the findings, the following were highlighted:
The Tenth Parliament
turned into an absolute forum for the Ruling Party due to
"so-called"opposition's failure to assert its role in the house.
Instead of constructive
criticism the opposition engaged in "sycophancy".
The lawmakers spent only
6% of overall time (388 hours and 35 minutes) for formulation and passing of
laws and only 29 of 350 law makers took part in the enactment of 30 laws in 14
months.
Serious quorum crisis
ate up more than 48 hours.
Not only
parliamentarians but also Parliamentary Standing Committees and even the
Speaker showed ineffectiveness putting into question transparency and
accountability of the parliament.
The reaction of the
government and "opposition" was typical. It was one of total
rejection and threats against the Transparency International. They called it an
international conspiracy (timing coincided with the killing of two foreigners
and bomb attack on Shia mosque.]
Inherent Flaws of 15th
Amendment
The 15th Amendment as a
whole was subject to widespread criticism as it contained controversial
provisions impinging on the fundamental rights of people and indeed, affecting
their ownership of the Constitution. Among key elements were the following: (i)
It revoked the provision for referendum (ii) One-third of the Constitution was
placed outside the purview of amendment thus curtailing rights of future
parliaments (iii) A new Article 7A permitted the bringing of sedition charges
against anyone seeking to abrogate, repeal or suspend the Constitution.
Punishment of sedition carries the highest punishment prescribed for other
offences by the existing laws
(iv) While the
government reinstated secularism as one of the fundamental pillars of the
Constitution, it found it expedient to retain portion of the 8th Amendment
which declared that the state religion of the Republic is Islam (v) It declared
all citizens of Bangladesh to be 'Bangalis" directly counter to the wishes
of the indigenous minorities (vi) It scrapped the 13th Amendment pushing the
country into confrontation and laying the ground for one party rule.
Civil society groups in
Bangladesh since 2008 have been urging _ constitutional reform and the
establishment of a "Constitutional Reform Commission" to bring
necessary changes for a more effective democratic system. In 2015 a platform of
distinguished personalities calling themselves the Concerned Citizens Group
reiterated these demands. The key thrust was directed at bringing about checks
and balances of the absolute power of the Prime
Minister. Letters were addressed to the President, Prime Minister and
Chairperson of BNP. The Prime Minister lambasted those seeking Charter reform
saying they were Advisers to former military dictators
or worked under them in
various capacities. Prime Minister claimed that after
assuming office, the government had created scope for freedom of expression by
opening doors to free thinking. She asserted that "the more
democracy they have, the more they demand - they are always demanding more,
more and more." Her mindset speaks for itself.
Further Assaults on the
Constitution: Separation of Powers violated
Legislature Vs Judiciary:
Impact of 16th Amendment
On September 17, 2014
the parliament passed the 16th Amendment to the Constitution empowering
parliament to impeach Supreme Court judges for their misdemeanor or incapacity.
This was considered a fateful moment in the nation's history since it
negated the bedrock principle of separation of powers and checks and balances
between the three organs of state on which the democratic nature of the
government stands. With the enactment of the
16th Amendment the government effectively
allowed the judiciary to be shackled. It is
interesting to note that more than half of the 327 MP's who voted for the
Amendment were not elected by the people and had won their seat
uncontested . The provision for the Chief
Justice led Supreme Judicial Council ceased to exist after more
than 35 years of its introduction.
Executive Vs Judiciary
One of the most
discriminatory laws is the Mobile Court Act 2007. Following separation of
the lower judiciary from the government in 2007,
the then army-backed caretaker
government facing intense criticism, gave back some of the judicial powers to
the civil servants. Mobile Courts were to be run by Executive
Magistrates (EM) but punishment was restricted
to monetary fines. In January
2009 the AL government under a new Ordinance gave them more powers.
They could sentence guilty persons to maximum jail term of two years and punish
an alleged offender even after he/she denies the offence.
The existing provision
empowered the EM to punish offenders only after he/she
admits wrongdoing. More than 100 laws were included in the schedule
including trial of electoral offenders despite the fact that the Supreme
Constitutional Commission led by the Chief
Justice had decided that only experienced judicial magistrates
should be engaged to try electoral offences. The High Court in response to a
writ petition in October 2011 questioned the legality of Mobile Courts and
asked the government to explain within four months why powers of the EM's
through Mobile Courts should not be declared unconstitutional.
The matter is still
pending on the hearing list and has been effectively shelved. The government,
meanwhile, continued to favor bureaucrats over judicial officers. In
August 2015 it approved proposals for a Civil Service law which
would provide government servants with a legal shield for
criminal cases filed against them while discharging their official duty. They
could not be detained for crimes such as graft, bribe, extortion etc. without
permission of the government before a
charge sheet is accepted by the court.
Local Government
In 2015 the AL
government took a number of decisions relating to local government that was
construed to be an assault on the Constitution .
On July 7, 2015 the Executive Committee of the National
Economic Council (ECNEC) approved the Rural Infrastructure - 2 Project designed
to allocate Tk. 6070 Crore to 284 MP's (Tk 20 crore each) to develop
infrastructure projects to be implemented by the Local Government Engineering
Department (LGED). Separate allocations were to be given to the remaining 16
MP's (in urban centers) and 50 women MP's from reserved seats. This decision
was a follow up of a similar project adopted in 2010 (completed 2014) by which
279 MP's were given Tk. 15 crore each.
This decision
was not only a violation of the
Constitution (Principles of Separation of Powers Part N of the Constitution and
Article 59 (2)) but also of decisions of the Supreme Court. It has the
potential to turn law makers into law breakers. The 20 I 0 ECNEC decision was
challenged and heard by the Division Bench
of the High Court (concluded
May 28, 2012) and listed for judgment. This too, however, was
consigned to the deep freeze. A similar situation
in India was seriously criticized on grounds of corruption
and lack of accountability. The court ruled that it cut at the root of the parliamentary system of
democracy in the country.
On October 12, 2015 the AL government's cabinet approved two
proposals amending Local Government laws (They were subsequently enacted into
law). These included:
Empowering government to
appoint Administrators for running municipalities (pourashabas),
upazila and union parishads (councils) if elections to these
bodies are not held in time.
To bring changes in the
law making election to all local bodies partisan. (Under current law,
Chiefs/members of local bodies could continue in office till holding of the
next elections).
It is important to note
that despite changes in the system from Presidential to Parliamentary democracy
in 1991, local government bodies still function in the presidential format i.e.
all heads are elected directly by the electorate and are not accountable to
councilors and members. The proposed changes in the local government body law,
to hold elections on partisan lines, will not ensure any qualitative change in
their function and powers nor will it strengthen in any way the democratic
system and practice at the grassroots level. It will indeed, impact
negatively, by increasing inter-alia the influence of partisan politics
over local government bodies; opening up nomination business, deteriorating the
quality of services, easing out good candidates and shrinking opportunities of
women for leadership and employment.
An even more ominous
consequence is the politicization, control and capture by the current Ruling
Party of all local government institutions. Cause for such conern has been
gradually evolving:
MP's have been made
Advisers to upazila parishads (Councils)
Partymen have been
appointed as Administrators to the District (Zila) parishads
As of October 1, 205 the
government empowered bureaucrats to lead Divisional and District Coordination
Committees, weakening the local government system
On October 12, 2015 the
Cabinet approved proposals to amend local government laws seeking to appoint
administrators to run municipalities, upazila and union parishads if elections
were not held on time. At present, the government already has power to appoint
Administrators to Zila parishads (61 were appointed in 2011 for indefinite
period) and City Corporations (In Dhaka City Corporation 12 Administrators were
appointed until the April 2015 elections).
The government thus has
a back-up potential, a residual power, to appoint Administrators to all local
government bodies if elections are not held on time.
Integrity of the
Election Process
There is deep-rooted
consciousness in Bangladesh that a political
government orders the civil and election administration in
such a manner that it tilts in favor of the regime in
power. The door is wide open to
election engineering and manipulation. Bangladesh's record in the past
bears incontrovertible proof. No parliament in Bangladesh elected
under a political government completed its full tenure. All ended in military
rule or mass-uprising. All governments elected under a neutral,
non-partisan, caretaker government completed their 5 year tenure. The 9th
and 1oth parliaments are exception to this rule. The 9th parliamentary election
was held under army disposition favoring the Awami League and the Ioth
parliament election under AL rule was fundamentally flawed from its inception.
Elections held under a
political government needs a powerful independent Election Commission, a
healthy political culture, a non-politicized bureaucracy,
judiciary, police force and stable law and
order situation. It is widely held that
an objective, impartial and independent Election Commission is impossible
in Bangladesh. The reason is simple. The EC does not have the manpower to
operate independently and conduct election of an electorate of 90 million
people.
Furthermore, absolute
power vests in the Prime Minister to overrule any decision made by the Election
Commission. The machinery of election i.e. returning officers, presiding
officers, magistracy, police and deployment of the army is controlled by the
Prime Minister. All of these entities have been highly politicized
through such measures as according them rapid promotion; pay raises etc. or
deterrent measures such as transfers, being declared Officer on Special Duty
etc. Itis clear that the EC can act independently only under a non-partisan
government.
The proof of the pudding
is in the eating. The EC's role since the general election of 2008 (9th
Parliament) has been highly controversial. It has been routinely affirming
elections as free, fair and
credible in the face of widespread electoral abuse, violence, rigging,
ballot-box snatching etc. all of which have been glaringly exposed in all media
printed and electronic. These were manifest in the January 5, 2014 general
election, the Upazila elections held in five phases from February to March,
2015 and the City Corporation elections (Dhaka and Chittagong) in April 2015.
Currently, the Election
Commission is engaged in preparing a new electoral roll by reviewing the voters
list to include eligible young voters. Concern and criticism is mounting on
several counts (i) Why is the first phase of up-dating the roll taking place
during the monsoon period (ii) Why have NGO'S traditionally used in voter
registration not been included as data collectors this year (iii) Why have the
recently decentralized server status of the upazila/thana not been utilized
(iv) Why have a huge number of non-election officials been recruited as
appellate authority for voter registration instead of upazila/thana and
District/regional election officers under the current legal provisions. These
questions have raised eyebrows over the integrity of the electoral system.
Seriously Flawed
National Election Process
Despite repeated calls
at home and abroad for dialogue to arrive at a negotiated settlement, the
ruling party (AL) pushed ahead with its agenda to force through one-sided
elections. It frustrated the sustained efforts of the UN Secretary-General over
almost a year to promote dialogue and negotiations for a credible, free, fair
and inclusive election.
On January 5, 2014 the
government railroaded what was recognized worldwide as a flawed, stage-managed
election and fraud vote. The Statesman (Indian daily) in an editorial on
11.1.2014 called it an "exercise in self-deception" and "an
obituary of democracy". The Daily Star (Bangladesh) editor on 17.1.2014 in
a scathing commentary said the AL "brutally, ruthlessly, according to
plan, used state power to hijack the election. What was dubbed an election was
engineered, its results were bull-dozed and the so-called victory that emanated
pre-determined. "
Among major anomalies of
the election the following may be noted:
Most countries and
international organizations including the Commonwealth refused to send
observers in the wake of assessments of advance teams.
A government was formed without
the great majority of voters playing any part or casting any vote. 154 of 300
seats (including the Speaker and 23 Ministers) were won uncontested long before
the elections were held as declared by the Election Commissioner. This was an
unprecedented game-changer for the AL.
Elections to the
remaining 146 seats held on January 5, 2014 saw a meager turnout (less than l0%
though the Election Commission claimed 40% turnout. Some 30 - 40 parties did
not participate. Even this rump election saw large-scale rigging, voter
intimidation etc. widely portrayed in all media electronic and printed.
Elections were preceded
by a bizarre seat sharing deal between the AL and its coalition partners. The
dubious role played by the Jatiyo party has already been covered above.
The validity and
legitimacy of the election was widely questioned and its moral and legal
dimensions characterized as a gaping democracy deficit.
Despite its declaration
of a boycott the opposition was hounded. Its leaders were put in jail on trumped
up criminal charges. Its workers arbitrarily arrested en-masse and the
Chairperson barricaded into house arrest before and after the election.
The outcome of the
election had devastating consequences for democracy, development and human
rights. It placed Bangladesh literally in an authoritarian strait-jacket. Spin
offs included the following:
The real losers were the
people of Bangladesh, disenfranchised and denied the right to choose their own
representatives
Despite oft-repeated
pledges to hold dialogue on the issue of an interim poll-time government the AL
reneged on its assurances. The President of Bangladesh Mr. Abdul Hamid, indeed,
conveyed to the UN Secretary General (19 June, 2014) that while the government
was open to dialogue with the opposition this will only take place after its
tenure ends in 2019.
With no opposition in
parliament, Bangladesh saw a one-party election lead to a one-party state
heading towards absolutism.
Without representation,
without the mandate of the people, without accountability and the checks and
balances pivotal to good governance an all-powerful government spawned political
repression, economic malgovernance and unchecked corruption.
The January 5, 2014
election vindicated the opposition stance that no election under a political
government with a supine Election Commission could be free, fair and credible.
People flatly rejected the contrived election and spurious vote. This was also
borne out by the results of the upazila elections (first two phases before the
results were corrupted in the last three phases by massive vote rigging and
violence). The City Corporation elections in Dhaka and Chittagong in April 2015
witnessed the same excesses leading to the withdrawal of the BNP candidates.
The overwhelming majority
of people underscored time and again that to be considered legitimate elections
must be held under a neutral, non-partisan government with the participation of
all parties.
Human Rights Violations
In close conjunction
with maneuvers to control and suborn the electoral process, the government
embarked on a sustained and calculated campaign of human rights violations. The
main aim was to marginalize the opposition and to repress and contain dissent of any kind against the
government. This assumed several vitriolic dimensions:
Denial of political
space to the opposition accompanied by a policy of incitement and retaliation
by Awami League goons backed by security forces.
Arbitrary detention and
mass arrest of leaders and activists through indiscriminate use of black laws
and false criminal charges.
Containment of freedom
of speech through implicit threat and intimidation.
Promotion and protection
of human rights is a crucial gauge as to whether a democratically elected
government has fulfilled its mandate to provide good governance and the rule of
law. The AL government's performance over the last 7 years has been abysmal.
It totally failed to meet any of the objective benchmarks for
upholding human rights. Abuses
are widespread, systematic, sustained and clearly sanctioned by the
government. No effort has been made to investigate,
prosecute and punish perpetrators for offences especially the prime movers
the security and law enforcement agencies. National and
international organizations and media that
monitor, investigate and report on such
violations face continuous obstacles, threats and harassment
by an overly suspicious government.
The government's
performance came under the UN's spotlight twice in 2009 and 2013 when it came
up for review by the UN Human Right Council's Universal Periodic Review
in Geneva. The Bangladesh Reports were considered to be rife with
misrepresentation and empty rhetoric. Three specific claims by government were
exposed as false (i) That it continued to maintain a policy of zero tolerance
towards extra judicial killings, custodial deaths etc. (ii) The alleged
passage of a Police Reform Act with a stringent Code of Conduct and (iii) That
there was no scope for immunity for armed forces and law enforcement agencies
for human rights violations. What became apparent was a clear, persistent
pattern of default and callous disregard for mounting human rights violations
across the board. Even the pro-AL government Chairman of the Bangladesh Human Rights Commission
repeatedly asserted that "there is no rule of law in Bangladesh". The
actual figures are astounding. Widely reported in the media quoting
international and national human rights organizational sources a picture has
emerged of what the editor of the Daily Star on 7.3.2014 claimed as 'the most
flagrant, dangerous, nation-destroying abuse of power by the very people
entrusted to dispense justice and establish the rule of law."
They outlined in the
period of AL rule (2009 - 2015) a cumulatively mounting toll of victims in the
hundreds of thousands of political violence, extra-judicial killings, custodial
deaths, enforced disappearances, torture, rapes, acid throwing, mass beatings
and atrocities against women and children. The BNP listed during the period 26
December 2012 till 27 January, 2014 some 242 leaders killed, 60 enforced
disappearances and over 30,000 arrested. Differences over statistics have been
overtaken by recognition of the undoubted mounting toll of victims of all
categories. Alongside the above, concentrated attacks on religious and ethnic
minorities have assumed an alarming trend with no recourse to
investigation, apprehension or punishment of perpetrators. The government's
inaction and apathy are inexplicable.
The prime failing of the
government is its inability and unwillingness to stop extra-judicial killings
and enforced disappearances by the Rapid Action Battalion and Law Enforcement
Agencies (LEA) and to bring the perpetrators to brook. Euphemistically called
cross-fire, encounter, shootouts etc. these are ludicrous excuses to justify
custodial deaths. Despite numerous High Court Order calling for a freeze of the
practice, despite pre-poll Manifesto pledges and post-poll assertions of
"Zero-tolerance" the practice continues unabated. The government has
gone full circle from opposition to denial to justification. Frustration over
the government's apathy reached such a stage that it led to demands and
even threat of a social movement. The Human Rights Watch in an unprecedented
move in 2011 called on the government to either reform RAB or to disband it.
Since then it continues to call for RAB's ban.
Violations of Freedom of
Speech
As already pointed out a
new Article 7A (included after the 7th Amendment) equates criticism of the Constitution
with sedition carrying the harshest punishment. It remains a 'Damocles
Sword" for intimidation. New off-shoots of restriction on freedom of
expression are emerging. These affect broadcast policy, internet freedom and
preventing cyber crime.
The government has
enacted or amended a number of laws and policies including (i) Bangladesh
Information Security Guidelines (ii) National Broadcast Policy (iii) The
Information and Communication Technology (ICT) Act 2006 amended in 2009 and
again in 2013 all of which have been aimed at tightening control and curbing
freedom of expression. The main thrust of these provisions is inter-alia (i) to
increase punishment (on ICT from 10years to 14years) and heavy fine) (ii) Confiscation of hardware
(iii) appointing controllers and giving them impunity (iv) empowering Law
Enforcement Agencies to arrest anyone, anywhere without warrant. At best it has
forced self-censorship and at worst provided abundant scope for misuse by the
LEA.
A Cyber Security Act is
also being formulated actively since August 2015. It is aimed at increasing
punishment (has provision for 20 years sentence) and to arrest suspects without
warrant for committing cyber crimes. The move is considered another measure to
curb freedom of expression explicitly directed on different media
platforms and on bloggers.
Section 57 of the ICT
act 2006 was widely criticized to be against people's right to freedom of
expression. It was held that because of its vagueness it created scope for
misuse against newsmen and media workers. Most cases of violations under the
ICT Act 2006 (verdicts have been given in 47 of 136 cases in the last 3 years)
have been filed by party loyalists for defaming Prime Minister Sheikh Hasina
and her family. Ironically, the ACC website has been hacked with no one brought
to book and the authorities completely at sea over the source.
Compared to these dire
measures in Bangladesh the Supreme Court of India has scrapped Section 66/A of
the Information and Technology Act that empowered police to arrest people for
Facebook and Twitter comments. The Court observed that it curbed people's right
to express themselves freely and was in direct conflict with the democratic
values of India. It held Section 66/A to be unconstitutional.
It may be mentioned that
on July 26, 2010 the High Court directed the Ministry of Information and
Communication Technology to show cause why Section 46 and 57 of the ICT Act
2006 allowing (i) blocking of websites and electronic communication and (ii)
providing for prosecution of certain offences should not be held 'ultra-vires'.
The matter is still on the pending list!
The Annual Reports of
Global Human Rights Organizations and Statements issued by the Legislative
bodies of key countries e.g. the European Union Parliament, US Congress, UK
parliament etc. have summed up some of the chronic issues of concern and called
for remedial action. These are listed below:
Safety: Labor Rights
Despite some amendments
after the 2013 Rana Plaza collapse, garment workers continued to report
intimidation and violence when attempting to form or join unions. Poor
regulatory systems have resulted in avoidable accidents that have killed
hundreds (Rana Plaza, Tazreen Fashions etc.) The government Inspection Report
on Safety has been repressed.
Rohingya Refugees and
Boat People
With the government
making dire threats about forcibly returning the Rohingya refugees,
international humanitarian groups continued to report difficulty in gaining
access to refugee camps. Registering the plight of boat people and
Rohingya refugees from
Myanmar (victims of human trafficking) there was widespread criticism of
the AL government leadership (i) for not being pro-active and (ii) of the Prime
Minister in particular for her callous remarks (which received widespread
coverage) condemning the Bangladesh refugees as being "mentally sick"
people who should be punished for tarnishing the image of Bangladesh.
Civil Society: NGOs
After years of
increasing restrictions on civil society, the government introduced a
draft bill in 2015 that would formalize restrictive practices and policies and
make access to foreign funding particularly onerous. Maina Kiai, the UN Special
Rapporteur on Rights to Freedom of Peaceful Assembly and Association, while in
Dhaka urged the Bangladesh parliament not to adopt the Bill entitled Draft
Donations (Voluntary Activities) Regulation Act which was to be debated in
parliament. Considering it to be deeply worrying the Special Rapporteur noted
that the proposed law would make it compulsory for NGO's seeking foreign funds
to:
Register with the
government controlled NGO Affairs Bureau obtain its approval for each project
undertaken with these resources
Bureau Commissioner’s
would review on a monthly basis progress in implementing projects
The Bureau would have
authority to approve appointment of foreign specialists as well as all travel
paid by foreign funding.
Failure to comply could
lead to cancellation or suspension of an NGO's registration , interruption of
the project and fine up to 3 times the amount of foreign funding.. Maina Kiai
felt that such government intrusion was ''unacceptable" as the ability to
seek, secure and use resources is essential to the very existence and effective
operation of any civil society organization. The European parliament also
asked the government to allow such organizations to undertake their
missions freely including Amnesty International and the TIB.
Freedom of Speech
New media policies in
Bangladesh were considered to have imposed unacceptable limits on freedom of
speech and expression. The government was asked inter-alia:
To recognize and respect
these rights, to revoke the new media policy and to abide by obligations to
allow free speech and expression.
To restore full
independence of the media and to drop all charges against
editors/journalists who have published content critical of the government.
To allow immediate
opening of all media houses and social media sources that were shut and to
immediately restore full and unhindered access to all forms of publications
including electronic ones.
To bring in line the
Cyber Security Act of 20l 5 and the Information and Communication Technology
Act with international free speech standards and to stop criminalization of
anti-state publications.
To bring an end to
limitations of free speech through threats and harassment and so-called
self-censorship of criticism for fear of reprisal
Human Rights Abuse
The governments' failure
to prosecute security forces for serious abuses has been repeatedly
highlighted.
Serious concern has been
expressed over investigations into the recent killings of civilians. Attacks on
bloggers, activists, publishers and killing of foreign citizens were strongly
condemned. Loss of life and targeting of individual citizens was deplored. The
Bangladesh authorities were strongly called upon to launch credible and
transparent investigations of these killings and to identify the perpetrators
of such heinous crimes and bring them to justice. It was held that the link to
lack of democratic practices was undeniable. The government was also urged to
release all political leaders that have been detained for participating in or
being thought to participate in protected speech and assembly.
Social Factors
Criticism was directed
over the fact that child marriages still persist. 65% of girls were married
under the age of 18. 29% were married under the age of 15.
Other Chronic Elements
Among other chronic
factors reference was made to widespread corruption, weak judicial capacity and
independence, arbitrary arrests and lengthy pre-trial detentions and
infringement of privacy rights.
National Dialogue
Calls across the board
have been made asking the government to accept a national dialogue with
opposition political parties and civil society on the current crisis. The
GOB has been strongly urged to initiate dialogue with all democratic parties to
(i) the democratic process by holding a credible, genuine, transparent and
inclusive election and (ii) to hold national dialogue to overcome the current
instability.
International
organizations and legislative bodies of many countries and regions have stopped
just short of recommending punitive actions. Foreign governments while critical
have not yet pushed for direct sanctions. However, some suggestions are
assuming a progressively harder stance. Indeed, as recently as October 2015 the
European Parliament asked the EU to review trade relations with Bangladesh
until it ensures return of the democratic government in the country. It asked
member delegations to use all available instruments to ensure respect of human
rights and rule of law in Bangladesh including the European Instrument for
Democracy and Human Rights. The European Parliament called on the EU in line
with its "Strategic Framework on Human Rights and Democracy" to
immediately raise concerns with the Bangladesh authorities.
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Published by the Publication Sub-Committee, 6th
BNP Council 2016. Bangladesh Nationalist Party.
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