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Right to Liberty

Moin Ghani *

The right to liberty broadly encompasses a number of constitutionally guaranteed fundamental rights, including safeguards on arrest and detention, and freedom of movement. This chapter will detail the violations of the right to liberty and association in 2006 and also refer to the concomitant denial of related rights such as the right to life and the right not to be subjected to torture or cruel, inhuman and degrading treatment or punishment.

The chapter reports not only on the denial of the right to personal liberty to individuals but also to collective groups such as in the practice of ‘mass arrests’ of common citizens, which was carried out with the primary aim of thwarting opposition activities. It further outlines denial of the freedom of assembly, through disruption of peaceful rallies and programmes resulting from police brutality against ‘targeted’ opposition leaders and activists. During 2006, protest rallies by ordinary citizens claiming their right to livelihood, also led to a number of deaths.

Constitutional Guarantees

The right to liberty is one of the most important fundamental rights guaranteed under the Constitution and the violation of this right inevitably leads to violations of other fundamental rights. Each incident of the denial of the right to liberty has violated one or more fundamental rights.

Article 31 guarantees that no action detrimental to the life, liberty, body, reputation, or property of any citizen or resident of Bangladesh shall be taken except in accordance with law. The right to life and liberty within the meaning of Article 31 includes the right to live consistently with human dignity and decency.

Article 32 provides that no person shall be deprived of life or personal liberty except in accordance with law. The exercise of all other rights depends on the right to life and personal liberty. A person cannot be detained except in accordance with law. Arbitrary arrest and custodial violence thus infringes upon the rights guaranteed under Articles 31 and 32.

Article 33 of the Constitution provides for specific procedural safeguards in respect of deprivation of life and personal liberty. Article 33(1) and (2) provides that (i) a person arrested must be informed as soon as possible of the grounds of arrest, (ii) s/he must be allowed to consult and be defended by a lawyer of her/his choice, (iii) s/he must be produced before a magistrate within twenty-four hours of arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate and (iv) s/he must not be detained for a period longer than twenty-four hours plus the time of journey without the authority of the Magistrate.

Article 36 guarantees the right to freedom of movement subject to reasonable restrictions imposed by law in the public interest. However, the restrictions have to meet certain criteria of ‘reasonableness’ be in accordance with law and be in the public interest. ‘Public interest’ would embrace public security, public order and public morality. In 2006, many ordinary citizens were detained by the police in what came to be known as ‘mass arrests’ without an opportunity to seek legal redress or access to family members or lawyers. Arbitrary procedures were used to carry out ‘mass arrests’ on vague allegations.

Article 37 provides that every citizen shall have the right to assemble and participate in public meetings and processions peacefully and without arms. This right can be restricted only by a law imposed in the interest of public order or public health. The restriction must be reasonable and the powers to restrict this right must not be exercised arbitrarily. The right to freedom of assembly is subject to the limitation that the rallies are to be peaceful and members of the assembly must not bear arms.

Section 144 of CrPC is used to ban assemblies that are likely to lead to violent confrontation or to disperse unlawful assemblies. Even if, for example, a restriction on the freedom of assembly is imposed by law and the restriction is in the interest of public order, that restriction must also meet the ‘reasonableness’ test. To determine the reasonableness of a law, the conditions prevailing at the time, the nature, extent and duration of the restrictions and all the surrounding circumstances are to be taken into consideration.

During 2006, on various occasions Government authorities placed restrictions on freedom of movement on grounds of public security which would arguably neither meet the reasonableness nor the other criteria laid down by the law. Specific examples would be police restrictions on citizens holding protest rallies to demand basic amenities like electricity and water. Peaceful political rallies have also been subjected to police restrictions. Strikes or blockades which were sometimes forcibly imposed by political cadres also restricted the freedom of movement of transport workers, day labourers and other ordinary citizens.

Violations of the Rights to Liberty, Freedom of

Association and Movement

Notwithstanding these clear guarantees, the year witnessed violations of the right to life, personal liberty and safeguards from arrest and detention, of freedom of movement and of association. Persons arrested by the police did not have access to protection of the law. When law enforcement agencies were called upon to forcibly obstruct political rallies or suppress protests by different grounds, the Government’s commitment to human rights came under question. Many of the arbitrary arrests preceded programmes announced by the political parties in opposition to the Government.

Arbitrary Arrests

The police continued to make arbitrary arrests without providing any legal safeguards. For example:

  • On 2 February, Rafiq Khan (25 years), a painter, was arrested from his shanty in Kadamtoli, Dhaka while asleep. A police van drove up, broke open the door, arrested him without giving any reason and took him to the police station. His mother, a street rag collector, reportedly, said her son was neither a criminal nor a politician. Even three days later, by February 5, the police had not sent Rafiq to the Court, contrary to the law that requires arrestees to be produced in court within 24 hours of arrest. 1
  • On the evening of 3 February 2006, the Motijheel police arrested Md. Khairul Islam, a garment worker, who was on his way for the night shift. The police implicated him in a theft case and produced him before the Magistrate’s Court. On learning the news the following morning, Khairul’s blind father, Ratan Mian (85 years) went to Court and obtained bail for his son. The Jail Authority, however, did not release him for two days, and some of the jail staff, reportedly, demanded Taka 300.0 for his release.

Mass Arrests

In 2004 the High Court 2 had directed the Government to show cause as to why Section 86 of the Dhaka Metropolitan Police Ordinance, 1976 should not be declared ultra vires of the Constitution. The practice of large scale, indiscriminate arrests of citizens had been resorted to by the Government to suppress opposition activities. In the face of waning public support for destructive practices such as hartals (strikes) the opposition parties, in 2006, planned other forms of protest, such as forming a ‘Human Chain’, ‘Long March’, ‘Dhaka Siege’ or ‘ Gherao ‘ (blockades) of official buildings such as the Prime Minister’s Office, the Secretariat and Bangobhobon (President’s House). In reprisal, the Government started the practice of what came to be known as ‘mass arrests’ or gono greftar.

In the first week of February, the opposition parties had announced a ‘Long March’ in which opposition activists were to march on foot towards Dhaka. The Government declared the programme illegal on grounds that it would disrupt law and order. To foil the march, the police was ordered to arrest large numbers indiscriminately . On 5 February, the day the ‘Long March’ was to culminate in Dhaka, about 10,000 persons were reported to have been arrested arbitrarily .3 These arrests were justified by the police as routine activities against suspected criminals. The police also stopped the movement of many public buses into Dhaka on the ground that they were transporting opposition cadres. The arrests were usually made under Section 54 of the CrPC and Section 86 of the DMP Ordinance, both of which authorize police officers to arrest without warrant on reasonable suspicion of the commission of certain offences. These laws allow the police draconian powers and have come under legal challenge on previous occasions.

‘Mass arrests’ were widely criticized by leading lawyers and human rights defenders. On 5 February, in a public interest writ petition, the High Court imposed an injunction restraining the Government from carrying out blanket arrests of people and directed it to submit a report within two weeks detailing the names and particulars of the persons arrested under Section 86 of the DMP Ordinance and Section 54 of the CrPC.4 The High Court Bench also issued a rule upon the Government asking it to explain why the blanket arrests of opposition activists and common people should not be declared illegal and the Government should not be directed to compensate the arrestees.5 On 7 February the Chamber Judge of the Appellate Division Justice Amirul Kabir Chowdhury, upheld this order and further directed the Dhaka Metropolitan Police to follow the Supreme Court directives while arresting any person upon suspicion under Section 86 of the DMP Ordinance and Section 54 of CrPC.6

‘Mass arrests’ caused immeasurable sufferings to street vendors, employees of small shops, rickshaw pullers and day labourers. Many were the sole earning members of their families. The arrestees and their relatives were not informed of the reasons for arrest. The jails were poorly equipped to deal with such a large number of inmates. Most of them had to endure over-crowded prison conditions during their incarceration. Very few of them were charged and were eventually released after the ‘Long March’ programme was over. No satisfactory explanation was given for their imprisonment and no compensation claimed.

Newspaper reports revealed that four police stations in Dhaka were over crowded during the days preceding the ‘Long March’. For example, 80 persons were reportedly kept in four cells of Ramna Police Station which has a maximum capacity of three to four persons only. In such a limited space, many had to sleep in a standing or seated posture, while the more fortunate were huddled on the floor.

Most of their relatives had to camp outside the Dhaka Central Jail just to get some information. They were mostly poor and had little awareness of their rights and certainly no means to engage lawyers. Many of them reportedly tried to release their relatives, or just meet them, by bribing policemen and court officials. Innocent persons who were not accused in any specific case, but failed to pay, were threatened with and sometimes falsely implicated in criminal cases. Many newspapers including the leading English daily, The Daily Star, reported on 5 February that some people had to bribe the jail sentries Taka 20 to 50 to meet their relatives. The example below illustrates the vulnerability of ordinary citizens:

On 3 February 2006, at around 9 pm, a day labourer, Md. Jalal Uddin, was arrested on his way to a coaching centre to pay his son’s tuition fees. He was detained in the Ramna police station for two consecutive nights, even though the police were legally obliged to produce the detainee before the Court within 24 hours of arrest. Jalal’s wife, Lipi Begum, claimed that there was no case against her husband and that she was not told the reason for his arrest. The police did not allow her to meet her husband. She waited outside the police station until 3 am, and paid Taka 500.0 to an unknown man, claiming to be a lawyer, who assured her he would help release her husband. But the man did not contact her again, and Lipi could not trace her husband’s whereabouts.7

Human rights groups volunteered legal assistance but they were not able to provide relief to such large numbers. It took considerable time merely to identify persons in custody, given the wide extent of arrests. A public interest litigation was filed in order to compel the Government to provide lists naming those arrested. In 2006, Ain o Salish Kendra (ASK) obtained the release of 385 persons arrested under section 86 and 100 of DMP Ordinance. Other legal aid organizations had also obtained release of the arrested, but the full number could not be ascertained.

Freedom of Assembly

Attacks on Political Leaders and Rallies

The refusal of the Government to meet the opposition’s demands for electoral reforms and formation of a Caretaker Government in compliance with the Constitution resulted in a number of Opposition sponsored demonstrations, rallies and marches in October 2006. Security barriers were erected across cities to prevent opposition rallies and marches reaching their destinations. On many occasions the police engaged in clashes with the opposition demonstrators. As a result hundreds of demonstrators as well as several police officers were reportedly injured.

The police targeted specific opposition leaders with the apparent aim of causing serious injury. Opposition leaders were severely assaulted by the police even though they were participating in peaceful demonstrations and posed no apparent threat to peace and security. For example:

  • On 6 September, riot police attacked AL politicians during relatively peaceful demonstrations outside the Election Commission to demand electoral reforms. The local media and various international human rights organizations, including Amnesty International, reported that the police subjected these leaders to inhuman assaults even though they did not pose a threat to the police force or to public order. 8 It classified these attacks as torture or cruel, inhuman or degrading treatment.
  • It was reported that a dozen police officers started beating Saber Hossain Chowdhury on 6 September during a peaceful protest rally. He identified himself as an Awami League leader in the hope that the police might stop, but they reportedly beat him even more savagely. 9 He went into a coma and was rushed to hospital in Dhaka. He regained consciousness after about an hour, but doctors declared his condition as critical and advised specialised treatment for injuries to his head. He was flown to Singapore for further treatment on 10 September.
  • On 12 September, Asaduzzaman Noor, Motia Chowdhury and Advocate Sahara Khatoon were assaulted by the police with iron rods. Asaduzaman Noor was admitted to hospital with severe back pain caused by the beating, and Advocate Sahara Khatoon was injured on her legs and head.10
  • After the President, Professor Dr Iajuddin Ahmed, assumed the office of Chief Adviser to the Caretaker Government on 29 October, the Fourteen Party opposition alliance organized rallies and demonstrations all over the country calling for his resignation, and installation of a neutral administration for a free and fair election. On 13 November, while a relatively peaceful open air concert was being held at Karwan Bazaar in Dhaka to press for appointment of a neutral non-partisan Chief Advisor and for electoral reforms, the police, reportedly led by Sergeant Kohinoor Mia, started attacking the demonstrators. The police force under his leadership sprayed hot water on the demonstrators to disrupt the open air concert which was being conducted from a makeshift stage set up on a truck. Fifty persons were injured. 11 At one point a police truck ran over an unarmed demonstrator, Wahidullah, (40 years), the publicity secretary of Unit Two of the Awami League (Ward 37). Even though a non-party Caretaker Government was in office none of the police officers involved in Wahidullah’s death were interrogated. No inquiry was held. ASK and Kormojibi Nari addressed a joint press release on 13 November 2006 demanding legal action against the responsible police officers.12

According to newspaper reports and eyewitness accounts, none of the demonstrators had acted violently or posed a threat to ‘law and order’. Regardless of this they were specifically targeted because they played a leading role in the opposition demands for electoral reforms.

Imposition of Section 144

Section 144 of the CrPC is imposed to prevent an assembly of more than four persons and in case where there is an apprehension of conflict by two rival parties or groups. The administration imposed it in 2006 to prevent meetings or other political programmes in local places. For example:

  • On 19 June, Inqilab reported that in Shorishabari Ijarapara village, Jamalpur Upazilla, Section 144 was imposed following a confrontation between the Ahmadiya Muslim Jamat and the Khatme Nabuwat Movement. Both organisations had called mahfils or public meetings at a distance of a 100 kms at the same time, and the administration apprehended violence.13
  • On 10 August, Prothom alo reported that the Bikolpo Dhara party led by former President A. Q. M. Badruddoza Chowdhury was prevented from holding public meetings in Joypurhat, because of the imposition of Section 144 on the ground that rival meetings announced by the ruling party were likely to lead to conflict. 14
  • On 5 September, Janakantho reported that the police imposed Section 144 around several kms surrounding the Election Commission to prevent the programme of blockade planned by the Fourteen Parties. 15

Struggle for Social and Economic Rights

It was not only political rallies that were obstructed or attacked by the police. Ordinary villagers demonstrating for their right to life and livelihood faced the same consequences, in Kansat, Phulbari and Shonir Akhra. Between January to April 2006, approximately 12,000 farmers, women and men, held public demonstrations in Kansat to demand electricity and water to irrigate their farms. Disruption in the supply of energy would have meant the destruction of crops, putting survival of the farmers at stake. On 4 January, the police fired live ammunition with AK47s, rubber bullets and tear gas to disperse the crowd. Reportedly, two men were killed, and around 300 persons were injured. 16 The repression did not stop the protests. On 23 January, at least seven more villagers were killed as police fired on demonstrators.

On 10 April, the High Court in a writ petition17 directed the Government not to arrest or harass any of the protesting farmers in Kansat.18 It also asked the Government to explain within three weeks why the killings on 4 January and 23 January should not be declared to be without lawful authority; compensation should not be paid to the bereaved families; and the authorities should not be directed to provide electricity to the area for a specified period. Ultimately, the Government reached an agreement with the local organisation Polli Bidyut Unnayan Sangram Parisad for provision of electricity, but no inquiry was held into the various human rights abuses by the police.

Again, on 6 April, at least four persons were killed in bomb attacks on another rally reportedly by local members of the ruling BNP. On 12 April eight persons were killed when police and BDR fired at demonstrators.

In Phulbari, five persons were killed on 26 August when police authorities fired upon almost 50,000 villagers, including many members of the Santal community, who were demonstrating against their displacement from their ancestral homes and agricultural lands which they feared would follow Government plans to lease the land to the Asia Energy Company for an open pit coal mining project. 19 No consultations had been held with the local community when approving the plan for open pit mining. This was another case where mishandling of a sensitive situation and the use of excessive force against unarmed protesters resulted in deaths of innocent persons.

On 5 May 2006 in Shonir Akhra, a suburb of Dhaka, thousands marched on the streets demanding adequate supply of water and electricity. 20 Law enforcement agencies tried to suppress the movement with brutal force reportedly under the direct guidance of the BNP Member of Parliament from this constituency. The police failed to suppress the protests, and ultimately the Government gave an undertaking that steps would be taken for regular supplies of electricity and water.

Accountability of Law Enforcement Agencies

Opposition rallies and demonstrations throughout 2006 continued to be subjected to excessive use of force by police authorities with total impunity for those responsible. The Government did not investigate the police atrocities, nor was any disciplinary action taken against the personnel responsible for causing grievous injury and even death. The reports on bribery by police or jail personnel were not questioned. It was also not possible to sue any police officer or demand compensation because of the requirement of obtaining prior official sanction for filing criminal cases against Government officials and given that such sanctions were not provided.

Conclusion

The right to liberty was severely undermined in 2006. The ‘mass arrests’ followed a pattern initiated a few years earlier. By 2006, there were pending High Court orders to which the Government had failed to reply as to why ‘mass arrests’ should not be declared unlawful. The Government showed little respect for existing High Court rulings when it continued with arbitrary mass arrests. Those subjected to arrests were denied their fundamental rights not only to liberty, but also to protection of the law, to freedom from cruel and inhuman treatment, to movement and assembly.

Opposition leaders, while exercising their right to freedom of movement and assembly, were specifically targeted by the police force and subjected to torture, cruel and inhuman treatment. In one instance, an opposition worker was run over under the wheels of a police vehicle. Even though his death was telecast live, no steps were taken by the Caretaker Government to bring anyone to account.

The police authorities used excessive and disproportionate force on non-political demonstrations and assemblies. The subsisting culture of impunity again meant that none of the incidents were investigated and none of the perpetrators were brought to account. In Kansat and Phulbari this led to deaths of protestors which forced the Government to ultimately negotiate a solution. In all these cases there was a gross denial of the fundamental rights to freedom of assembly. However, the lesson surely must have been that excessive use of force by the police cannot be used to deny the just demands of a population. Dialogue and negotiations should be used at the outset and not after the event, or after the resort to violence.

Recommendations

To observe the constitutional provisions the Government needs to:

  • Ensure that arrests under Sections 54 of CrPC and 86 of the DMP Ordinance comply with existing High Court guidelines.
  • Hold independent and impartial investigations into incidents of torture and arbitrary detention including mass arrests in the last ten years and take strong disciplinary measures.
  • Include human rights as a compulsory subject in the curricula for training of police officers.
  • Maintain neutrality of the administration and law enforcement agencies.
  • Recruit police personnel through competitive examinations.
  • Encourage community interaction with police.

Notes

* Moin Ghani a barrister and advocate of Supreme Court of Bangladesh is an associate at Dr. Kamal Hossain and Associates, a law firm in Dhaka.

1. Source: http://www.ahrchk.net/ua/mainfile.php/2006/1518
2. Writ Petition No. 2192 of 2004, Rule Nisi issued by a Division Bench of the High Court Division of the Supreme Court of Bangladesh on 27 April, 2004.
3. The Daily Star , Jugantor , 5 February, 2006.
4. The High Court’s injunction was given pursuant to a public interest litigation (PIL)writ petition by Advocate ZI Khan Panna, Chairman of Human Rights and Legal Aid Committee of Bangladesh Bar Council.
5. Ibid .
6. The Daily Star, Prothom alo, Bangla Bazar , 8 February, 2006.
7. Source: http://www.ahrchk.net/ua/mainfile.php/2006/1518/
8. Amnesty International Press Release, 14 September 2006, AI Index: ASA 13/008/2006 (Public) News Service No: 237; http://web.amnesty.org/library/Index/ENGASA130082006?open&of=ENG-BGD.
9. New Age, The Daily Star, 7 September, 2006.
10. The Daily Star , 13 September 2006; Amnesty International Press Release, 14 September, 2006.
11. The Daily Star , 14 November , 2006.
12. Prothom alo , The Daily Star, 14 November, 2006.
13. Inqilab , 19 June, 2006.
14. Prothom alo , 10 August, 2006.
15. Janakantha , 5 September, 2006.
16. The Daily Star , 24 January, 2006.
17. Writ Petition No. 3176 of 2006.
18. Prothom alo, Bhorer Kagoj, Ittefaq, Janakantha , 11 February, 2006.
19. The Daily Star, New Age, Prothom alo, Ittefaq, Janakantha, Inqilab, Jugantor, Shamokal and Sangbad , 27 August, 2006.
20. The Daily Star , 6 May, 2006.