In the Middle of Nowhere

About ten months into the current Awami League government’s tenure, Daily Star produced this sensational investigative report. In blaring headlines, it pinned the blame for the August 21 assassination attempt on Prime Minister Sheikh Hasina on Tarique Rahman (referred to as Hawa Bhaban bigwig in report), and some other BNP leaders. The assassination attempt was billed as a joint venture between BNP and an Islamic fundamentalist organization.

The timing of this report was extremely significant. Two years ago, it was quite common to hear predictions about BNP breaking apart or an end to the Zia-brand of politics. Rovian dreams of Awami League’s permanent majority was quite du jour. BNP was scheduled to have its annual party council at the end of 2009. A feasible connection between Tarique Rahman and a murder charge would not only put BNP’s leadership transition into question, it would have given the government a huge bargaining chip against the largest opposition party.

Julfikar Ali Manik claimed that a “highly privileged document” from “a top accused of the grenade carnage” was the source of this information. This document finally went public on April 7 2011, when Mufti Hannan was brought in front of a magistrate to give a confessional statement that mirrored exactly what the 2009 Daily Star report had claimed. Important to note, Hannan had already confessed to his own involvement in this crime back in 2007. This additional information was only to pave the way for Tarique Rahman and other BNP leaders to be also indicted for the same crime.

Fast forward to September 27, less than a week ago. Having involved everyone the government wanted to involve, the case starts. Mufti Hanna submits a document stating that his supposed confessions were extracted by torture. How does Daily Star cover the story?

It buries the retraction deep into the story. Which is funny, because the news that the government allegedly extracted a confession from a prisoner in its custody, only so that it can frame opposition politicians, ought to be big news. Amar Desh has reproduced the entire petition, including description of the torture. Eyebrows have been raised for less.

The next day, BNP, quiet understandably, held a press conference claiming vindication and pressing for the name of its leaders to be dropped from the charge-sheet. Again, in the headline, Daily Star made no reference to the alleged retraction. A casual reader glancing at the headline, as I did, would have probably thought it referred to some garden-variety claim made in some rally somewhere, and missed this entire back story.

In an incredible counterattack, to make sure the retraction of the confession was downplayed, Daily Star printed a competing news article claiming that Hannan’s legal petition had no standing. The next day, it got eminent jurist State Minister for Law Quamrul Islam to say the same thing.

Let us look at the legal claims that a confession given under Section 164 cannot be retracted. Section 164 (3) of Bangladesh’s Criminal Procedure Code states:

(3) A Magistrate shall, before recording any such confession, explain
to the person making it that he is not bound to make confession and that if he does
so it may be used as evidence against him and no magistrate shall record any such
confession unless, upon questioning the person making it, he has reason to believe
that it was made voluntarily; and, when he records any confession, he shall make a
memorandum at the foot of such record to the following effect :-
“I have explained to (name) that he is not bound to make a confession and that, if he
does so any confession he may this confession was voluntarily made. I was taken in
my presence and hearing, an was read over to the person making it and admitted by
him to be correct, and it contains a full and true account of the statement made by
him.
(Signed) A. B.,
Magistrate.”

This makes abundantly clear that voluntariness is at the heart of any confession obtained through Section 164. The fact that confessions extracted through torture are illegal are no surprise; the courts of Bangladesh have been very exact in this regard. Our Supreme Court has explicitly held, in State Vs. Abul Hashem, 3 MLR (HCD) 30, that a magistrate cannot record a confession that is extracted through torture. And then, just to make sure, the magistrate has to affix his own signature at the end, verifying that the statement was not produced through torture.

What factors should a court look at to see whether there were any indication of torture or general police coercion? One very important factor is whether the confession is extracted after being in police custody, or whether there is any possibility that the witness may be taken back to remand right after his interaction with the magistrate. In State Vs. Farid Karim, 8 BLT(AD) 87, the fact that the accused was in police custody for unexplained two days before the police produced him for making confessional statement, was one of the important factors in the confessional statement being found involuntary.

Has Mufti Hanna been taken in custody, also called remand, often? According to a very desultory Google search, he has been remanded for 7 days on September 6, 2009, 5 days on September 12, 2009, 3 days on September 23, 2009, for 7 days on December 3, 2009, for 3 days on July 18, 2010, 2 days on August 22, 2010, and 5 days on December 27, 2010 . After making the statement, he was remanded for 1 day on April 26, 2011. That makes for 32 days of remand, and potential police torture, before and  1 day after making this confession statement. During the remand hearing held on August 22, 2010, Hannan tallied the number of days for which he had been in remand at 369 days over the past five years, and begged the magistrate not to grant any more remand. Remand, though, was granted.

Hanna was in police remand for half of September 2009. Presumably, it was this during this period that the document which became Julfikar Manik’s investigative piece was produced.

Even if this confession was made through torture, should we care if such confession statements cannot be retracted? Yes. There exists a plethora of judicial opinion, specifically State Vs. Lalu Miah and another, 39 DLR(AD) 11, which holds that any allegation of torture which forced the confessional statement, is to be treated the same as a petition for the withdrawal of the statement. Now that Hannan has claimed torture in police custody, the judge must decide whether his earlier confessional statement is credible. So the claim that there is no legal basis for withdrawing his confessional statement is without merit.

So why is this about the Daily Star’s coverage of this whole issue, rather than the much serious issue of torture of a prisoner in government custody, in a conspiracy to subvert the opposition political forces. There are two main reasons. The first is that we hear about these human rights violations through newspapers, and especially the Daily Star. If not for the Daily Star, Limon would be rotting in a jail cell or dead by now. So, when the newspaper itself decided to obfuscate the story and shift the focus to legal technicalities like getting permission from jail authorities instead of the much bigger and more serious allegation of torture in government custody, it renders hollow its supposed commitment to human rights and reinforces the suspicion that the news printed in Daily Star is slanted to serve a particular agenda.

Secondly, torture does not occur in a vacuum. No torture can flourish in a society unless it decides, as a whole, that certain individuals or classes of individuals are exempt from the protection of law. It very much seems like Daily Star has made such a finding for Mufti Hannan, which makes the paper, in general, and the relevant individuals, in particular, accomplices to torture. And the insidious thing is that the class of people who can be tortured tends to grow and metastasize at unbelievable speed. You may think that it only includes people with beards, and then suddenly, it also includes young university students out at night. 

This saga is by no means over. While there is an aspect to it that has a purely partisan aspect, this incident also serves as a reflection of the values that we hold as a society. And those values are fraying fast.

Anandabazar, September 22, 2011:

Wall Street Journal, September 22, 2011:

It is always sad when a government with an overwhelming majority like the present Awami League government loses its way. Unfortunately, a host of recent developments all point to that direction. One theme that all these events have in common is that they represent attacks on free speech and political expression, something that should be sacrosanct in all democratic societies.

The most glaring demonstration of this trend has been evinced by the behavior of Prime Minister Sheikh Hasina, who, in her speech in the last session of Parliament, accused the members of parliament of her own parties of “arming her enemies”, by criticizing some members of her cabinet, specifically Communications Minister Syed Abul Hossain. Emboldened by this, Awami League General Secretary and LGRD Minister Syed Ashraful Islam accused the media of “creating the ground for Hasina’s death.” Of course, once the two most important leaders of the ruling party expressed their disdain of dissent in media so openly, other Awami League leaders wasted no time in springing into action. Supporters of Shipping Minister Shahjahan Khan, who has faced a lot of flak for suggesting the unqualified drivers be given long-distance driving permits, have seized bundles of newspapers, and set them to fire. A peaceful human chain organized by BNP to protest the crumbling state of infrastructure was attacked and broken up by Awami League activists. To cap it all, Hasina herself, in a cabinet meeting, instructed intelligence agencies to investigate the organizers of a peaceful rally held in the Shahid Minar on Eid Day.

Unfortunately, the government has made our judicial system an indispensable tool in its all-out war against free speech. Some of the developments are petty: like a sedition case being filed against a cleric for criticizing the government during the weekly sermon. Others are more serious, like Sheershanews editor Ekramul Haq being put in police remand (code for torture) multiple times for writing about corruption charges against certain members of the cabinet, specifically State Minister for Environment Hasan Mahmud. The use of the judiciary to achieve partisan ends only promises to heat up further after the High Court convenes on October 9th after its vacation. BNP acting Secretary General Mirza Fakhrul Islam Alamgir and Standing Committee member Moudud Ahmed have already been summoned to answer charges of contempt of court. If that goes well, the field is already being prepared to embroil Khaleda Zia in the same contempt charges.

Unfortunately, these tendencies were in full display during the passage of the Fifteenth Amendment to the Constitution of Bangladesh, which added Article 7A stating that both to “subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article” or to take any action that “abets or instigates… approves, condones, supports or ratifies” this subversion is sedition, and is to be punishable by death. Just to put this matter into perspective, given that this blogpost is fairly critical of Article 7A of the Constitution, I have just committed sedition. If a reader reads this post and approves, she has also committed sedition. Moreover, if someone then forwards this link (I know, highly unlikely) to a friend by email, that’s sedition too.

We are all going to drown in a sea of sedition.

When finalizing this Amendment, Hasina said in the House that she had acted thus to ensure ““empowerment of people, and their democratic and voting rights.” Perhaps, she had in mind, the provision that said that several parts of the Constitution, including one which titled her father Sheikh Mujibur Rahman as Father of the Nation, could not be altered or amended in the future. Although, it seems like depriving future generations of the power to change the document that will affect their lives in such important ways is the express opposite of empowerment.

However, Hasina is not in good company. In the United States, home of the world’s most famous constitution, there has only been, in the country’s entire two hundred years plus history, only a single proposed amendment that sought to place any topic beyond any further debate or amendment, and it was the infamous Corwin Amendment. In this proposed amendment, in a last-ditch effort to avoid the Civil War, it was proposed that subject of slavery would not be open to any future amendments, effectively meaning that no future government could outlaw slavery. As we know, the Civil War was fought, and an alternative amendment, now known as the Thirteenth Amendment, was incorporated to outlaw slavery.

Hasina and her party love to glorify the role of Awami League in the 1971 War of Liberation. Unfortunately, it has been overwhelmingly documented by Dr. Badiul Alam Majumbad of SUJON (not a big fan of BNP), that the inspiration for this Fifteenth Amendment comes directly from the Pakistani Constitution. Around the world, there are have been two prominent laws passed in the last year that punish people for saying something. One was passed in Saudi Arabia, and it mandates jail sentences for anyone who criticizes the King of Saudi Arabia. The other was in Israel, which criminalized “calling for the boycott of Israel.”

This is not good company for Bangladesh to keep. As the current government finds itself increasingly unpopular, the risk remains that it will use these new laws to further crack down on dissent and opposing political parties. Which will be a sad ending for a government that held out so much promise.

“…Why do I need a visa for Bangladesh? Why does Habibur Rahman Khan, the Bangladeshi co-producer of my films, need a visa for India? It’s absurd. And it’s political. I don’t need a visa for Nepal which has a different language and culture. But Bengalis living across the border need visas. Wah!…”

Eminent Bangalee film maker from India, Mr Goutam Ghosh, expresses his take on Indo-Bangla relationship. Wish his Bnagladeshi counterparts among Bangalee progressive society could think as eloquently and as clearly as Goutam Ghosh does. But unfortunately Bangalee progressives thought process remains confined in a very small box. This box-thinking makes our cultural elites blindly defend every action ( right or wrong) of India and blame a so called ‘anti India mindset of Bangladeshis’ for all bad bloods starting from building Tipaimukh dam to killing of Felanis to India’s noncompliance to signed treaties to creation of unfair trade/ tarriff barriers against Bangladesh to banning of Bangladeshi TV channels in India and so on.

The full interview of of Goutam Ghosh follows belows…

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