IT HAS become very common in the country now that some people would vanish in the blink of an eye, they will become traceless. It creates a scary environment, particularly in the dissenting community. Such is the state freedom in the country at the moment. There is, however, a clear distinction between missing person and enforced disappearance. Enforced disappearance denotes direct or indirect state sponsorship and involvement.
Right to life is a fundamental right enshrined in the constitution of Bangladesh. Right to life is not a simple category right that can be violated often. In reality, Bangladesh is experiencing that violation frequently. Right to life is a supreme right of a person that cannot be comprised without due process and legal intervention. According to Ain O Shalish Kendra, at least 519 people reportedly became victims of enforced disappearance during 2010 to mid 2017. Among those people fates of 329 are still unknown. Despite the dire situation there is no visible sign to stop enforced disappearances.
Typically, law enforcing agencies deny their involvement and consequently refused or ‘failed’ to tell the locations of the missing persons. In contrast, family members, friends, relatives or witnesses to the crime accuse law enforcement authorities that civil dressed men came to arrest the ‘person’ by introducing themselves as member of law enforcing agencies and used their vehicle to forcibly take their loved ones with them. In few occurrences, however, after facing severe pressure from victim’s family, media and right group campaigners, the detainees were shown arrested many days after their detention. No explanation concerning their disappearance before such arrest is given from the law enforcing agencies.
The government and law enforcing authorities are not only inactive to make any step against this massive infringement of human right, but also very much reluctant to reveal the truth behind these crimes. Few fortunate victims have returned from their unknown detention where the perpetrators kept them. Law enforcers are also neither successful in rescuing them nor investigating the matter properly except very rare incidents like the controversial Farhad Mazhar case. The returned persons neither disclosed the identity of the offenders nor expressed their experiences during detention due to trauma and other ‘mysterious’ reasons.
This frightening scenario of enforced disappearance signals that at present there is no respect to citizen’s liberty and rule of law in Bangladesh. It seems, if anybody cross the ‘tolerable’ limit of freedom of expression or initiate any subversive activity against the state, then they are faced with such risk.
The government is bound to ensure security and safety of life and property of every citizen under the constitution. Furthermore, it has responsibility to ensure citizens fundamental rights including right to protection of law and right to life and personal liberty. The constitution of the People‘s Republic of Bangladesh enshrined in Article 31 that ‘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’. But, allegedly by detaining any person and keeping him/her in secret detention without any due process of law, the law enforcement agencies are violating the constitution.
In addition, Article 32 of the Bangladesh constitution incorporates: ‘no person shall be deprived of life or personal liberty saves in accordance with law’ whereas in case of forced disappearance, the law enforcing authorities allegedly detain without any warrant of arrest from any court of law. Even there is allegation that they don’t inform the ground(s) for arrest, don’t produce the victim before the nearest Magistrate Court and don’t provide chance to consult with any lawyer which are the basic rights of an arrestee.
The Universal Declaration of Human Rights, 1948 prohibits from arbitrary arresting. The International Covenant on Civil and Political Rights also prohibits the grave violations of rights highlighted above. According to Article 2 and 6 of the ICCPR, it has the obligations to ensure the right to life of its people and to ensure prompt and effective reparation where violations occur. Taking into consideration the increased number of forced disappearance, the law enforcing agencies are routinely violating these international laws.
Under the obligation of the ICCPR, the government must ensure a fair and public trial for anyone charged with a criminal offense, and such a trial must take place ‘without undue delay’. It is also obliged to bring legislation into conformity with the ICCPR. Additionally, Bangladesh is a state party to the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Under the CAT, the government must ensure that any person who alleges he has been subject to torture has the right ‘to complain to and to have his case promptly and impartially examined by competent authorities’.
It is noteworthy that the CAT has become a source of reference for the International Convention for the Protection of All Persons from enforced disappearance as well which oblige the states parties, to criminalise torture under their domestic laws with appropriate penalties and to eliminate safe havens for perpetrators of torture by establishing various types of jurisdictions, including criminal jurisdictions.
Furthermore, international human rights bodies have identified the elements of torture that relate to enforced disappearances and international courts are also agreed with this view. In Velasquez Rodriguez case, the Inter-American Court on Human Rights referred to Article 1(1) of the convention and analysed the obligation to respect rights. The court has indicated that the states must prevent, investigate and punish any violation of the rights recognised by the convention and, if possible, attempt to restore the violated rights and provide compensation as warranted for damages resulting from violation.
Our National Human Rights Commission, however, is acting merely as a post-box in this regard. After getting allegation from the victim’s family or in some instances the NHRC suo motu asking probe report on the matter from the ministry of home. However, the ministry has not replied yet to 154 allegations concerning extra judicial killing, enforced disappearance, custodial torture and others human rights violations. As a state statutory body, the NHRC must play an active role in protecting and upholding the human rights of the citizen conferred by the constitution instead of acting as mere post-box.
However, enforced disappearance is not defined in any law of the land. Hence, it is mandatory to legislate an autonomous offence of enforced disappearance in the penal law immediately to try the crime effectively. Moreover, clear message regarding victim’s fate or whereabouts of the victims and integral reparation to the victims, not only through compensation but also through rehabilitation and satisfaction, are necessary. Hence, creation of an independent commission to investigate all the enforced disappearances properly including the returned victims and assurance of their safety is must. The government must show its willingness towards prevention of this particular crime to exterminate all shadows of suspicion from it.
Raisul Islam Sourav is a Chevening Scholar 2017-18, now pursuing LLM in International Energy Law and Policy at the University of Stirling, UK; an assistant professor of Law at Dhaka International University.
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