Due process


Daily Star Report Blaming Hawa Bhaban

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?

Daily Star Report on Retraction

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.

Daily Star Report on BNP

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.

Daily Star Report on Retraction of Confession

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.

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Former Deputy Attorney General M U Ahmed died today under police custody in a city hospital. On August 11, 2011, at the order of high court judges Shamsuddin Chowdhury Manik and Gobinda Thakur, he was arrested and tortured by police until he suffered from a massive myocardial Infarction.

It is evident that everybody living in side Bangladesh is afraid of calling a spade a spade. An environment of fear, extreme fear has been created by these two thuggish judges in Bangladesh. Last in their list of atrocities in the murder of ex Deputy Attorney General Advocate M U Ahmed. This is plain simple muder commited at the beheast of two blindly partisan judges by a brutal murderous police force of Awami League government.

Chief Justice ABM Khairul Haque is going on retirement next week.  His retirement will mark the end of, in fellow blogger tacitaerno’s words, a reign of constitutional terror.

With his retirement, Justice Mojammel Hossain will be the new chief justice. Justice Haque could become chief justice and now he is being followed by Justice Mojammel Hossain only because both of them have proven their utmost loyalty to current ruling party and it’s leader. Both of them superseded Justice Shah Nayeem to become chief justices.

Below is a video montage of comments of different sort of legal professionals on the state of Bangladesh judiciary.

Will start with comments of a leading Supreme Court Lawyer Barrister Sara Hossain,

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Indeed, a very bad precedent you are creating Dear prime Minister Hasina.

It started with the arrest of an elected Dhaka City Ward Commissioner ( Councilor) Mr Chowdhury Alam.

Removal of Chowdhury Alam was very important to ruling Awami League Government’s political strategy. Mr Chowdhury Alam, as elected representative from Dhaka’s city center area, was the key field level organizer of all the city center rallies/ programs of opposition of BNP. Awami League takes opposition activities very seriously. They simply don’t want opposition to exist or act in any form. Departure of Mr. Alam came as a big debacle for opposition BNP as Mr. Alam was their key figure in it’s efforts to organize street agitation in Dhaka.

It has been nearly a year Mr. Alam went missing. Nobody accounted for his whereabouts.

In this list of missing under the current regime, Chowdhury Alam definitely was not the only name. The list became long quickly within first two years of this regime.

Last name in this list is the son of an opposition political figure. A rightwing orthodox islamic political leader and a Madrassa principle, Mr Fazlul Haque Amini had been protesting, peacefully, against the new fuggy inheritance policy of the government. A nationwide strike was organized last week and rallies are taking place on regular interval. Government’s top leadership reflected the whole issue personally on Amini. Statements made by the the prime Minister as well as other senior ministers were clear indication of the level of discomfort this government is experiencing in Handling this Amini trouble.

So not sure how to handle Amini, as any direct crackdown on Amini led madrassa based politics may be perceived as attack on political Islam by rural Bangladeshis, this prime Minister seemed to have taken the Chowdhury Alam route. Like Chowdhury Alam, the news broke as an arrest of Fazlul Haque Amini’s son Abul Hasanat by plain clothed policemen. Multiple news outlets carried this news.

And exactly like Chowdhury Alam case, since his abduction, Mr Abul Hasnath remained unaccounted for. Except for denying that he was arrested, there has not been any statement from any corner of the government regarding this incident. There has not been any visible action by law enforcement agencies to solve the problem by rescuing the abducted person. Mr. Amini, the father of the victim, has been complaining that he is regularly been threatened from the mobile phone belonging to his son. Bangladesh law enforcement agencies has the capabilities to track the phone records and locate from where the calls are made. Using this system, they solve most of the crimes these days. The silence from government quarters about the abduction, Prime Minister Hasina’s continued verbal attack on Amini ( Her last statement about Amini was that Khaleda Zia let Amini loose on the government), absolute absence of any action by law enforcement men to rescue or at least trace the abducted — should be enough evidence to suspect government’s hand behind the abduction of Amini’s son.

The government must understand that denying the abduction does not let them off the hook. It is the responsibility of the government to protect the safety of it’s citizen. A man suddenly can be whisked away in broad daylight from mains street Dhaka and Government will not have any say in it — this cannot happen in a civilized society.

Abducted and missing opposition activists and their families have been the historical hallmark of all the fascist governments in history. We don’t want to believe that our country is heading the fascist way. But the series of events, starting from Dr Yunus saga to the abduction of the son of Fazlul Haque Amini force us to fear about impending fascism.

In 2003-04, when Petrobangla faced an arbitration case against Petroleum giant Cairns in the International Centre for Settlement of Investment Disputes (ICSID), the lawyers who were selected to represent Bangladesh and PetroBangla had no experience in international commercial arbitration. The second Khaleda Zia government made that selection based on the lawyers pro-BNP lebel. The result was expected, PetroBangla lost the winnable case and Bangladesh lost a substantial amount of money. The defeat was attributed to poor legal representation and lack of understanding between Petrobangla and its lawyers.
However, in early 90s Bangladesh government and petrobangla won an international arbitration against Canadian petroleum giant Scimitar. The lawyer representing Bangladesh Government was Dr Kamal Hossain and Associates.

So, when Bangladesh was again forced to go to the International Centre for Settlement of Investment Disputes (ICSID) in March, 2006 for another dispute involving Chevron, Dr Kamal Hossain Associates were called back in to represent Bangladesh and PetroBangla. The hearing took place between 2007-2009. Although similar case against Cairns went against Bangladesh in 2004, this time the international arbitration court turned down US oil giant Chevron’s claim of around $240 million from Petrobangla. Dr Hossain’s able representation did not only save Bangladesh $240 million dollars of back pay, it also ensured $320 million more savings over the next 20 years contract period.

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While giving the verdict on the legality of the punishment of Colonel Taher, the high-court bench of Justices Shamsuddin Chowdhury Manik and Zakir Hossain declared that the whole trial process was illegal and it was in fact a cold blooded murder of Taher by Late president Ziaur Rahman.

What high-court did to come to this conclusion? They interviewed one shoddy journalist character Lawrence lifshultz, who is a political follower of Taher’s communist doctrine. Other interviewed are also 1. Political opponents of Ziaur Rahman’s political platform 2. Supporters of ruling party who took it as their prime job to destroy Zia’s image 3. Political followers of Colonel Taher. Even the judges who delivered the justice, are publicly known nemesis of Ziaur Rahman’s ideology and are former leaders of socialist political platform based on Taher’s doctrine. And this is probably the first court proceeding in Bangladesh history where an witness could simply deliver his opinion via e mail to a third person. There was no ‘balai’ of oath taking, cross examination etc.

Before we go further into what these two judges did and what their judgment means, lets see what Taher in fact did back in early 70s.

1. Taher revolted against the then Awami League government of Sheikh Mijibur Rahman and formed and led an armed force called ” Gonobahinee”. Thousands and thousands of Awami League activists, leaders as well as general people were killed by the armed force. Any literature describing Mujib era Bangladesh will give testimony of the atrocities of Taher’s Gonobahinee.

2. While all other sector commanders were being promoted in the army as Brigadier/ Major General and who in turn helped rebuild the army, Taher was sacked from Bangladesh army by Mujib Government. ( It is unclear what Shamsuddin Chowdhury Manik had to say about this cold blooded sacking of ‘war hero’ Taher).

3. Many sources, well informed of the political military dynamics of 1975, say that it was Taher who was more likely to kill Mujib and there was an invisible race among Taher’s group and Faruq Rashids group in who would kill Mujib first. After hearing of the massacre of 15th August, most observers’ first suspicion was on Taher.

4. Taking the advantage of unstable situation of Bangladesh, Taher’s forces ( a select group of armed anti state forces including Taher’s brother Bahar) attacked Indian High Commission in Dhaka in an attempt to kill India’s high commissioner in Dhaka, Mr Samar Sen. Although Samar Sen survived with bullet wounds in his back, Police force guarding India’s high Commission shot and killed four members of Taher forces ( Including Taher brother Bahar).

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Today’s News:

Reception for murder suspects on bail
Fri, Mar 11th, 2011 12:26 am BdST
Natore, Mar 10 (bdnews24.com) — The 11 men accused of an opposition leader’s murder have been given a grand reception after they were released on bail.

Suspects of Sanaullah Nur Babu’s murder were released from Natore Jail on Thursday evening after a High Court order on Mar 6 granted them bail. The victim’s family expressed alarm and dismay at the incident.

Local Awami League leaders received them with garlands at the jail gate around 7pm and later took them on a motorcade for a reception where they issued a 72-hour ultimatum to the witnesses.

The accused are Russel Hosain alias ‘Rappu’, Mohammad Rezaul Karim alias Rikon, 25; Hashem Mridha, 34; Gautam Ghosh, 22; Abdul Khaleque, 28; ‘Habib’, 24′ Bablu Molla, 24, Babu Molla, 25, Badsha Mandal, Ashraful Islam and Lutfar Rahman.

A High Court bench of justices Shamsul Huda and Abu Bakar Siddiqui granted their bail on Mar 6 subject to Natore’s chief judicial magistrate’s satisfaction.

Lawyer of the accused, Arifur Rahman, submitted the bail orders to chief judicial magistrate Mohammad Sharif Uddin on Thursday morning and the bails were granted for Tk 10,000 each.

On Oct 8 last year Baraigram Upazila chairman and BNP leader Sanaullah Noor Babu was chopped and beaten in public when the local BNP brought out a procession as part of the party’s month-long protest. Babu later died in the hospital.

At the reception ceremony the prime suspects, district Awami League publication and research secretary Zakir Hossain, said, “We did not kill Babu. But some people in Banpara have held meetings, processions, human chains demanding our punishment.”

“Within seven days the Banpara businessmen will have to prove we were involved in this murder. Otherwise, we vow that we will judge them ourselves.”

Another accused, Khokon Molla, said, “Not seven days, they will have to prove it within 72 hours. Otherwise actions will be taken against them.”

He also alleged that the video depicting the incident of the murder was a fake one. “It was doctored by the media. The video shows fake images,” he claimed.

BABU’S WIFE ALARMED

Mahua Noor alleged that she had been threatened to withdraw the case.

“They have threatened that they won’t let me out of my house. Those who did not receive bail are roaming around free…I can’t think where to seek shelter with my children. Perhaps we’ll have to run away from the country,” she said.

REACTION ON THE BAILS

Prime witness in the case Baraigram Juba Dal president Sardar Rafique told bdnews24.com, “I am frustrated at the confidence the accused are exuberating. Right after the reception, they called me and said ‘your wife will be made a widow just like Babu’s. You’ll soon find out the consequences of becoming a witness’.”

District Awami League president Sajedur Rahman Khan called the reception “a wrong thing to do”. “Whoever did it, didn’t inform us.”

Upazila BNP general secretary Hazrat Ali said it had become a lawless country. “Otherwise how are the murder accused are able to hold a reception while the case is still under trial?”

Criminal Investigation Department (CID) inspector Ahmad Ali is investigating the case. Even Five months after the incident, he has been unable to submit any investigation report to the court.

bdnews24.com/corr/sh/ta/nir/2306h

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Flash Back:

Elected Chairman of northern district Natore Upazilla Mr Sanaullah Nur Babu was murdered in a public place in broad daylight. The above video footage clearly identifies person committing the murder as local Awami League activists under clearly identified leadership of local leader Mr. Zakir.

This Mr Zakir has never been arrested after PM Hasina publicly defended him and putting the blame on BNPs’s internal conflict.

Out of the other killers, some were arrested only to be released on bail and given reception today.
No investigation or charge has yet been made in this murder.

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