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Licence to kill

Print edition : Feb 14, 2003 T+T-

In an action that seems to be of a piece with the high-handedness during the recent anti-crime drive, the Khaleda Zia regime promulgates an ordinance that seeks to provide the Army indemnity from even charges of murder.

in Dhaka

TWO major developments in recent times have caused concern among Bangladeshis at home and abroad. On January 17, the national newspapers announced that Bangladesh was on the "U.S. terror-risk list". The United States black-listed the country, along with 23 other countries, as part of its stricter immigration policy. This, despite the Khaleda Zia government's pronounced pro-U.S. position in the `war on terror', is likely to affect adversely the country's economy and the prospects of millions of Bangladeshi expatriates.

On January 10, leading Bangladeshi dailies provided prominent coverage to a new ordinance providing indemnity to the armed forces. Some of the headlines were direct, such as `Immunity to Army from murder charges'. The decision to provide immunity and withdraw troops from across the country was approved at a special Cabinet meeting chaired by Prime Minister Khaleda Zia on January 9. The ordinance, which has the potential to hinder the nation's quest for democracy, and the rule of law and heighten concerns regarding human rights, received prompt approval by the country's titular President Prof. Dr. Iajuddin Ahmed.

Immunity for the army is proposed on various counts, including the charge of murder in respect of the deaths that took place during the 85-day anti-crime operation that began on October 16. By any standards, the ordinance does not make the going easy for the government. The domestic and external outcries for justice are growing, thanks to bold journalism and an alert civil society.

An intense debate is on in the media about the disaster that might befall the country following the U.S. restrictions. Apart from the controversy over the yardstick the Bush administration has used, the decision has caused concern in the business community and among the millions of Bangladeshis in the U.S.

The U.S. action has also put a question mark on the persistent claim of the ruling alliance that the country will remain `terror free'. According to observers, despite being `over-sensitive' on issues of `religious extremists' and having carried out large-scale arrests, the damage control exercise has not been effective as the government itself has an inherent weakness in that there are fundamentalists within the ruling set-up.

While the government has protested the U.S.' decision and requested that it be reconsidered, the Opposition and civil society groups have expressed concern and demanded its early withdrawal. Most people have accused the government of `utter failure' to preserve the country's international image. Some people wanted the government and not the country to be black-listed.

However, in the case of the controversial ordinance, the government finds itself isolated. On January 12, a leading daily narrated the helplessness of the families of persons who had been tortured to death in custody and pointed out how the controversial `Joint Drive Indemnity Ordinance, 2003' had made countless people the "victims of lesser justice". "There are 44 bleeding hearts today, doubly denied. There are many more, probably thousands, who will carry the scars of torture after arrests but will never know how to heal the wounds," the paper pointed out.

Anjana, widow of 32-year-old Abul Hossain Litu, who allegedly died after being tortured by the Army on October 28 at Savar, near Dhaka, went to court seeking justice. The court ordered the police to investigate the case. But the ordinance sealed the fate of the investigation and also the case.

"Where would we go to seek justice for the killing of my husband? Why won't I get justice? The government should declare Bangladesh a `barbaric state'. There will not be any trial, even if anybody commits murder," said Anjana who has a two-and-a-half-year-old daughter.

From October 16 to January 8, as many as 44 people died, several thousand people were injured severely and hundreds of people were crippled across the country, during the anti-crime drive titled, `Operation Clean Heart'. The ordinance, which puts the troops above the law says, "It is necessary and pertinent in the interest of the people to indemnify all the persons, including the members of the armed forces and law enforcers, for all the acts done during the Joint Drive from October 16, 2002, till the working day of January 9, 2003."

The ordinance precludes any move to seek justice in a court of law in cases of custodial deaths and human rights violations. No one can seek justice and no complaints can be lodged against any person associated with the Joint Drive, for any arrest, murder, torture, violation of rights or any damage that are physical, mental or financial in nature. Any case relating to the Joint Drive filed before any court would be cancelled automatically. "I have no longer any place to demand justice for my husband's killing... Is this possible in any country where justice prevails?" asked Tahmina Akhter Urmi, wife of Rashedul Hasan, who died in Dhaka on November 7. The Army picked up 30-year-old Rashedul, an assistant film director, from his residence on November 2 and handed him over to the Tejgaon Police Station on November 7.

The family members of Jamir Ahmed from Sylhet, who died on November 29, were contemplating legal action when the ordinance came. Jamir's mother is still in a state of shock and weeps silently, holding her son's photograph. "My brother was tortured to death by the Army and later we were just informed of his death," a newspaper quoted Jamir's brother as saying.

In Chittagong, Jahanara Begum's adopted child was murdered. She said that she would "wait for the opportunity in future if I cannot seek justice during the tenure of this government." Her son Abu Tarek Rubel was picked up by the Army on the afternoon of December 16. He died shortly after being released from custody.

Amnesty International, which was vocal against the `gross violation' of human rights during the anti-crime drive, came out with a firmer statement calling upon the government to withdraw the ordinance. Expressing deep concern, Amnesty said that there were "serious human rights violations" during the Joint Drive, "which must not under any circumstances be condoned". It called for establishing an independent and impartial authority to investigate all deaths and allegations of torture in custody and bring to justice all the guilty, irrespective of their ranks and positions.

Reacting sharply to the controversial ordinance, the main Opposition party, the Awami League, and other political parties termed it "anti Constitution and anti fundamental rights". They are of the view that if the government secures it parliamentary approval, thanks to its two-thirds majority, it would curb the people's right to take recourse to legal measures, which would be a blatant denial of their constitutional and fundamental rights. The Khaleda Zia Cabinet is reportedly divided on the issue. Law and Justice Minister Moudud Ahmed explained that the Army was called in to serve a great national cause to arrest the alarming increase in crime rates and therefore all its actions need to be granted immunity. One of the framers of Bangladesh's Constitution, Dr. Kamal Hossain, however, described the ordinance as "a very unusual kind of law", and said that it had deprived the people of their fundamental right to justice and security.

Over the past 100 years, the subcontinent has seen several instances of such indemnities being granted. In March 1919, colonial troops were granted indemnity to suppress "terrorism" or any revolution; in April 1919 perpetrators of the Jalianwala Bagh massacre in Punjab were granted indemnity; the same year, in Solapur in the Bombay Presidency, martial law and an indemnity ordinance were promulgated to protect wanton killings by troops; in 1953, indemnity was granted following the outbreak of the anti-Kadiani riots in Pakistan; and immunity was provided to the killers of Bangladesh's founding father Sheikh Mujibur Rahman and his associates in 1975.

In the aftermath of Mujib's assassination, the short-lived quasi-military regime of Khandoker Mushtaque promulgated the country's first indemnity ordinance, in 1975. Later it was made a part of the Constitution, during the tenure of General Ziaur Rahman, the slain husband of the incumbent Prime Minister. The infamous ordinance was scrapped when Sheikh Hasina, Mujib's eldest daughter, came to power in 1996 and the historic trial of Mujib's killing began nearly two decades later.

According to the annual report of the Bangladesh Human Rights Bureau (BHRB), 3,361 people were murdered, including 333 women in 2002. In its annual report, the Bangladesh `Shishu Adhiker Forum' (BSAF) said that on an average, two children were being killed every day in the country. It said that 584 children were killed in 2002 and 686 girls/women were raped, of whom 83 were killed. According to Odhikar, a leading human rights watch, 1,246 people were killed, 420 of them in politics-related strife, and 5,717 persons were arrested in violation of human rights in 2002. The same year, three journalists were killed, 102 injured, 30 arrested, three kidnapped, 39 assaulted, 147 threatened and 139 were sued, the report added.

The government, which was not in a mood to listen to the alarm bell, had to swallow the bitter pill the Army was called in to "aid the civil administration'. Despite charges of "political victimisation", the drive yielded some positive results, and there was a slight improvement in the situation. But the administration refused to answer the question of the legality of the large-scale troop deployment.

The Army-led crackdown resulted in the arrest of over 10,000 people and led to the recovery of over 2,000 guns and other illegal firearms. But the custodial deaths have raised international concern. The government has dubbed most of these extra-judicial deaths as cases of "heart failures". The ordinance, which is likely to be passed by a two-thirds majority in Parliament, will take effect immediately and deny families of the victims the chance to go to court seeking justice. Did the Army really want the ordinance to be promulgated for doing the `dirty job'? Mahfuz Aman, editor-publisher of the influential The Daily Star, wrote: "However, there were others who felt that the ` Army-wanted-it' argument was being used as an excuse. The real demand is from the government itself, which fears future prosecution."

Significantly, this is the first time after the October 2001 general elections that even the sympathisers of the ruling alliance are opposing in one voice a measure it has taken. The Supreme Court Bar Association has decided unanimously to challenge the ordinance if it is not withdrawn. According to most legal experts and jurists, the ordinance was "unacceptable in a democracy".