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JUSTICE DENIED: THE CASE OF SHAMSUL ALAM GOLAP

Edit Date:12/16/2010 12:00:00 AM

 Bangladesh 

Introduction:

 

The report focuses on extreme violation of human rights and severe deterioration of law and order in Bangladesh since power takeover of incumbent Awami League government. It will place the case of Shamsul Alam Golap, a leader of an opposition party. He has been arbitrarily arrested, tortured in custody and produced before mass media, upon torture and threat, to confess himself as a criminal.  But his refusal to confess, as per the force, has resulted extension of detention, torture and confiscation of basic human rights.    

 

What has happened to Shamsul Alam Golap?

 

Shamsul Alam Golap was the President of Bangladesh Islami Chhatrashibir, an opposition student organization to the ruling party, of Rajshshai University unit. On 9th of February 2010, a Chhatra League activist of Rajshai Univerisy Fafuk was murdered. Immediately after the murder, 3 cases[1] had been lodged in Motihar police station, Rajshai, in connection to Faruk murder. The President of Rajshai University Shibir, Shamsul Alam Golap was listed in those cases as the main accused.

 

Rajshai University is a stronghold of opposition to the incumbent government. Following the Faruk murder ministers of the government publicly declare to root out Chattra Shibir, a strong opposition from the students community.[2] Upon the threat and directives on the law enforcing agencies carried massive raid and arrest across the country and grilled more than five thousands Shibir activists. An environment of tremendous fear and harassment swooped over the political opponents. The horrific condition forced the opposition activists to leave their houses over frequent raids, apprehension of arrest and torture.

On 25th March 2010, Rapid Action Battalion(RAB) intelligence wing members arrested Shamsul Alam Golap, the main accused (filed by police) of Faruk murder,  from Patalkandi area under Bhuapur Upazila of Tangail district. [3]

Following the arrest RAB kept Golap in their custody and later produced him before the media. However, in replying questions from the journalists, Golap described the horrible torture of RAB on him, showed signs of injury. In his dreadful description he also mentioned how he was threatened of cross-fire ( RAB invented system of extra-judicial killing with a nicely woven drama named  recovering fire arms), how RAB tortured  him to confess his involvement in Faruk killing and how they forced to utter name of top Bangladesh Jamaat-e-Islami ( an opposition party) leaders in the killing case.  News media reported on the drama of the press briefing and later Shamsul Alam Golap was taken to remand. Now he is detained in Rajshahi jail, denied bail and has been passing days without protection of legal rights.   

 

Government’s move of violating basic rights

 

Scrutiny into the case reveals how government has been committing violation of the rights preserved by the constitution. The issue is not a single case indeed as it matters to the rule of the land, rights preserved by the constitution, interference on the judiciary by the executive power of the state and a process of suppression on the opposition.

 

The following issues need to be considered:

 

Proceedings of forceful confession before media:

Shamsul Alam Golap was produced before media. But ahead of that RAB had tortured him, tried to have confession of his involvement in the murder and utter the name of top Jamaat and Shibir leaders in connection with the murder. But he denied to admitting so.[4]

 

It’s pertinent to point out here that, before the arrest of Golap another accused of Faruk murder named Ekram was also arrested and produced before media. During that time RAB was successful to have his confession upon torture. Ekram, upon the threat and fear of torture, told media that, Golap ordered the attack following directives of Islami Chhatra Shibir president Rezaul Karim.

 

Upon the legal perspectives, the confession of an accused which is not given before any judicial body cannot be accepted as evidence. Besides, confession in police custody upon threat or force cannot be treated as evidence before the Court[5]. So, the proceedings of taking confession before media is nothing but a process of harassment  by law enforcing agencies and severe violation of human rights. The system also opens systems of violating the legal proceedings which eventually weaken the judicial system. The case is not only personal matter to Ekram or Shamsul Alam Golap rather the ultimate consequence of the proceedings is too extreme as it paves way for destructing of judiciary of a state.    

 

Police remand and brutal torture

 

It has been common scenario that ruling party lodge cases accusing the opposition leaders. Upon the directives of the executive body of the government, law enforcing entities carry out brutal torture in remand in a bid to accomplish political revenge on the oppositions. The term ‘Remand’ is horrible to the oppositions. Over the course of time it has been posed a special mechanism for suppressing the opposition activists and supporters.

 

After taking an accused in remand, Police carry out brutal torture and try to take confession at their whim. Different mode of torture is the tool to have confession in remand.

 

To prevent such inhumane torture, the High Court Division of the Supreme Court made an order to the Government ordering special directions regarding detention and investigation. In that order, one of the mentionable directions was that, “the Investigating Officer shall interrogate the accused, if necessary for the purpose of investigation in a room specially made for the purpose with glass wall and grill in one side, within the view but not within hearing of a close relation or lawyer of the accused.”[6]

 

But, that direction has been violated by the law enforcing agencies specially in the cases of the opposition leaders and activist. It shows that law itself is suppressed under the pressure of the executive body, the ruling party.

 

Abuse of Law and Judiciary by the ruling party for political interests:

Independence of Judiciary is one of the prime factors for the sustainability of democracy. Separation of Judiciary is one of the mechanisms of ensuring independence and accountability of the judiciary. In Bangladesh, the process started[7] during the previous Care-taker Government.  But, till now, the process is yet to be completed. As a result the whim and decision of the Executive are being reflected in most of the verdicts of the Court. The following issues should be taken to consideration to determine how the independence of judiciary is dysfunctional. 

1. The order of the Masdar Hossain case emphasized on the independence of the lower court as the appointment of the lower courts has been conducted by the executive. The judgment advocated for a Judicial Service Commission instead of the executive authority to deal with matters including appointment of Judges in the lower court. But the issue independence of higher courts was not resolved in the case.  

It is assumed that higher judicial system i.e. the Supreme Court is independent in exercising its duty. “Judicial independence involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure and the institutional independence of the court as reflected in its institutional or administrative relationships to executive and legislative branches of government”.[8] The Supreme Court enjoys independence of individual as the tenure of the justices of the court is safeguarded by the Constitution itself. But the apex court doesn’t enjoy the institutional independence as the justices are appointed only by the executive decision i.e. the president and the court or the Chief Justice has no role to play in this regard.[9]

2. Independence of Judiciary includes many other independence of Judges namely, substantive, personal, internal, and collective. All types of these independence are dependant on the will of the Executive specially on the basis of not interference with the decision of the Courts. At the same time, the courage of Judges to think them independent and work accordingly is also needed. But, unfortunately in Bangladesh the political will is not favorable for the Independence of Judiciary. Basically, any kind of meaningful change, political will is mandatory because our democratic polity deals by various political parties. And Government is formed by citizen’s mandate. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive, the process would be impossible. Though most of the political parties vow to separate judiciary but after formation of government they avoid the matter. That’s why the process of separation of judiciary has reached to a standstill position and the ruling party doesn’t want to separate judiciary though they had election pledges. 

 

Recently Barrister Rafiq-Ul-Huq[10] made a significant comment on the unexpected situation of the Judiciary as he quoted: “Different courts give different judgments on the same charge, as the judges act out of their political bias. Unfortunately, the judgment in a case depends not on the case's merit but on the judges' preference for respective political parties.  How human rights will be ensured when people these days name different higher courts after different political parties?”[11]

 

Response from Human Rights Organizations

 

Many national and international Human Rights Organizations showed their concerns as to the recent human rights status in Bangladesh such as:

 

1. Amnesty International released a public statement headed by “BANGLADESH: POLITICALLY MOTIVATED ARBITRARY ARRESTS HAMPER IMPARTIAL INVESTIGATION OF CAMPUS VIOLENCE.”

 

The said statement contains that, “The government of Bangladesh must refrain from arbitrary mass arrests, which appear to have been directed only at the opposition student activists. Criminal investigations must be impartial, regardless of the suspect’s political affiliation or party membership..................................”[12]

2. In another report published on their website, Amnesty International claimed that, Bangladeshi security forces used excessive force during raid.[13] In this report, Amnesty accused specially Rapid Action Battalion (RAB) of violence during raid. 

3. Human Rights Watch also expresses anxiety about current human rights situation of Bangladesh. It stated, “The Bangladesh authorities violated both freedom of expression and due process of law”. They called upon the government of Bangladesh to ensure impartial investigation to the cases of allegations.[14]

Recommendation

1. As Bangladesh, as a state, needs to follows the standard of International law it must obey the provisions contained in the laws. Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and International Covenant on Civil and Political Rights (ICCPR) are such laws. Under CAT, the Bangladesh 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." Under article 14 of the ICCPR, the Bangladesh 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." ICCPR also requires Bangladesh to protect freedom of expression.[15]

2. Separation of judiciary must be ensured to conduct cases without political interference. The system is needed to ensure basic human rights. Without assurance of justice, the judicial system is almost a showoff. So the issue must be addressed with urgent basis.

3. A fair and independent investigation system is a must for ideal judicial system. The state has to be committed to establish such a system that can be appreciated by international community. The government also needs to clarify to its security forces that the era of torture with impunity is over. Any criminal offence should be tried through the criminal justice system; it must not be punished by security forces outside of the due process of law. In the police remand, the directions of the High Court Directives must be followed and ignoring those directions must be treated as ‘contempt to the Court”.

4. The culture of producing the accused before media for briefing must be stopped as it’s against the rule of law. Such admission has not any evidential value before the Court. So, Law enforcing Agencies must be prevented to accomplish such system of forceful confession.

 

 



[1] Case no. 4 dated on 08 February, 2010; Case no. 5 dated on 09 February, 2010; Case no. 14 dated on 15 March, 2010

[4] The Daily Star, 26 March, 2010

[5] Sections 24, 25, 26 of the Evidence Act, 1872

[6] Bangladesh Legal Aid and Services Trust (BLAST) and others Vs Bangladesh and others, WRIT PETITION NO. 3806 of 1998

[7] Secretary, Ministry of Finance Vs Md. Masdar Hossain, 20 (2002) BLD, AD

[8] Walter Valente Vs Her Majesty the Queen, 2 R.C.S. 1984, Masdar Hossain Case

[9] Citizens' concern over appointment of judge in Supreme Court by Anisur Rahman : published on the Daily Star dated on November 8, 2003

 

[10] Senior Lawyer in the Supreme Court of Bangladesh and the former Attorney General of Bangladesh

[11] The Daily Star, 20 October, 2010

[12] Amnesty International public statement, 23 February 2010, For immediate release, AI Index: ASA 13/05/2010

[13] Published on the official website of Amnesty International, www.amnesty.org dated 1 July, 2010

[14] Human Right Watch on its official website www.hrw.org on July 7, 2010

[15] Article 19 of ICCPR

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