Enforced Disappearance: Dissolution of Right to Life in Bangladesh

The incidents of sudden disappearances of person are increasing day by day in Bangladesh. Now it becomes very common in the country that some people are vanished from the society in a moment and subsequently none can tell any clue about them. It creates a scary environment among the dissent voices which ultimately diminish the sense of liberty from the country. However, anybody may disappear at any moment for various reasons including kidnap, abduction; even one can voluntarily conceal himself/herself for his/her personal reason. But there is a clear distinction between missing person and enforced disappearance. Enforced disappearance denotes state sponsorship and involvement with the incident whether directly or indirectly. The family members of the victims and rights campaigners of the country are triggered their allegations towards enforced disappearances.

However, right to life is a fundamental right enshrined under the constitution of Bangladesh. Right to life is not simple category rights that can be violate often what ordinarily happen in Bangladesh. Rather it is a supreme right of a person that cannot be comprised without due process and legal intervention. In accordance with the report released by the rights NGO Ain O Shalish Kendra (ASK), during 2010 to July 2017, as many as 519 people have reportedly became victims of enforced disappearance and fate of 329 of them are still unknown. Nevertheless, frequent occurrence of forced disappearance continuously disregards constitutional mandate and violates basic human right unlawfully.

In most of the cases, allegations come from dissent voices although there are some cases where no clue found behind the disappearance. Typically, alleged law enforcement agencies are denied their engagement and consequently refused to tell whereabout they are. In contrast, family members, friends, relatives or witnesses to the crime triggered their accusation to law enforcement authorities that civil dressed men arrested by introducing them as member of law enforcing agencies and using their equipment like vehicle to forcefully bring the detainee with them. However, in few occurrences, after severe family, media and right groups pressure they showed arrest of that detenue many days after their alleged detention but do not give any explanation concerning their non-appearance before such arrest. Nowadays the trend of arrest has been changed and people are being detained on their way to any direction.

Government and law enforcing authorities are not only silent to take any initiative against this massive infringement of human right but also both are very much reluctant to reveal the truth behind these crimes. It is a characteristic of this heinous offence observed earlier in other part of the world which strengthen the allegation of state involvement. However, few fortunate victims are returned from their unknown detention where the perpetrators themselves willfully left them from their secret detention. Law enforcers are also neither successful in rescuing them nor investigating the matter properly except very rare incidents like the controversial Forhad Mazhar case. Nevertheless, the returned persons are neither willing to disclose the identity of the offenders nor express their experiences during detention as they become heavily traumatized mentally and also not assured by the state about their future safety.

Nonetheless, the State is being built by the blood of the freedom fighters where we foster a dream that “the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”. Conversely, these frightening scenarios of enforced disappearances portrait a Bangladesh having no respect to citizen’s liberty and rule of law. If anybody breach the limit of freedom of expression or doing any activity subversive against the state, then there is mechanism to try that person but that cannot justify lost of an alive person and falling his/her family into a deep ocean of uncertainty about the fate of that person.

The Republic is bound to ensure security and safety of life and property of every citizen under the constitution. Furthermore, it has responsibility to ensure citizens fundamental rights including right to protection of law and right to life and personal liberty. The Constitution of the People‘s Republic of Bangladesh enshrined in Art. 31 that “to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”. But, by detaining any person and keeping him/her in secret detention without any due process of law, government has just grossly violated its mandate to the constitution.

In addition, Article 32 of the Bangladesh Constitution incorporates: “no person shall be deprived of life or personal liberty saves in accordance with law” whereas in case of forced disappearance, the law enforcing authorities detain without any warrant of arrest from any court of law. Even they don’t inform the ground(s) for arrest, don’t produce him before the nearest Magistrate Court and don’t provide chance to consult with any lawyer which are basic rights of an arrestee.

The Universal Declaration of Human Rights, 1948 prohibits government from arbitrary arresting while every forced disappearance violates universal human right to be safe from illegal arrest. Bangladesh has also acceded to the International Covenant on Civil and Political Rights (ICCPR), that prohibits the grave violations of rights highlighted above. According to Article 2 and 6 of the ICCPR, it has the obligations to ensure the right to life of its people and to ensure prompt and effective reparation where violations occur.

Under the obligation of the ICCPR, the 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”. It is also obliged to bring legislation into conformity with the ICCPR. Additionally, Bangladesh is a state party to the Convention Against Torture (CAT) and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Under the CAT, the 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”.

It is noteworthy that the CAT has become a source of reference for the International Convention for the Protection of All Persons from Enforced Disappearance as well which oblige the States Parties, to criminalise torture under their domestic laws with appropriate penalties and to eliminate safe havens for perpetrators of torture by establishing various types of jurisdictions, including criminal jurisdictions.

Furthermore, international human rights bodies have identified the elements of torture that relate to enforced disappearances and international courts are also agreed with this view. In Velasquez Rodriguez case, the Inter-American Court on Human Rights referred to Art. 1(1) of the Convention and analyzed the obligation to respect rights. The Court has indicated that the States must prevent, investigate and punish any violation of the rights recognised by the Convention and, if possible, attempt to restore the violated rights and provide compensation as warranted for damages resulting from violation.

However, we do not get any decision from our judiciary on enforced disappearance yet. Moreover, our National Human Rights Commission (NHRC) is acting merely a postbox in this regard. After getting allegation from the victim’s family or in some instances the NHRC suo motu asking probe report on the matter from the Ministry of Home. However, the ministry does not reply to 154 allegations concerning extra judicial killing, enforced disappearance, custodial torture and others human rights violation yet. As a state statutory body, the NHRC must play an active role in protecting and upholding the human rights of the citizen conferred by the constitution instead of acting as mere postbox.

However, enforced disappearance is not defined in any law of the soil. Hence, it is mandatory to legislate an autonomous offence of enforced disappearance in the penal law immediately to try the crime effectively. Moreover, clear message regarding their fate or whereabouts of the victim and integral reparation to the victim not only through compensation but also through rehabilitation and satisfaction is urgently necessary. Hence, creation of an independent commission to investigate all the enforced disappearances property including the returned victims and assurance of their safety is crying need at this moment. The government must show its willingness towards prevention of this inhuman crime and must take recommended steps to exterminate all shadows of suspicion from it.

Published on the Dhaka Tribune as Op-Ed on 25 December 2017

Published on the Daily Observer as Sub-Editorial on 26 December 2017 at page 6.
Published as lead sub-editorial on the daily New Age on 16 January 2018 at page 8.

Is Universal Access to Energy a Human Right in Bangladesh?

In this modern era, it is undoubtedly true that energy becomes an inalienable part of our day to day life and we become extremely dependent on energy to run our life smoothly. Moreover, energy is crucial for overall development of the country and empowerment of the people as well. Emergences of contemporary technologies make us more energy dependent day by day. Hence universal access to energy for all is not only essential to ensure continuous spin of the wheel of development but also to enhance standard of livelihood of the nation. Despite that, The Least Developed Country (LDC) Report 2017 released by the UN on 21 November says government can’t reach electricity to more than one-third (60%) population of the country-the lowest among all the Asian LDCs whereas access to sufficient, regular, safe, reliable, affordable and diverse energy resources is key to eradicate poverty and ensure economic progress with equity and social inclusion.

Bangladesh is an energy deficient country which cannot fulfill the demand yet. Conversely, the demand is increasing every day, but the government is failed to produce and distribute expected amount of energy in precise electricity due to many factors. In addition, still its network cannot cover the whole populace of the territory. Apart from these, there are influential factors which also create barrier in getting electricity like high price, consumers’ poor economic condition etc. Although Bangladesh has taken several initiatives to increase the production of electricity over the past decade but all these obstacles collectively make a challenge for the country to reach the Sustainable Development Goals of universal access to modern energy by 2030.

However, universal access to energy is not only a human right itself rather it is greatly interconnected with other basic rights e.g. right to life, food, health, shelter, education etc.  Nevertheless, yet there is no express legally enshrined guarantee of access to energy in all its aspects by the State in this country. That does not mean the government can avoid its obligation to make energy accessible to all. Nowadays, reasonable and effective access to energy services is regarded as human right world-wide. Although there is no precise provision but the interpretation of existing legal instruments and whole notion of the constitution can oblige the State to treat it as a basic human right.

The human right to universal access to energy is also not specifically recognized in international human rights instruments adopted by different organizations. Despite that, several leading international organizations have formulated legally binding instruments referring the right to get access to energy either directly or indirectly. The Universal Declaration of Human Rights (UDHR) of 1948 recognizes numerous rights which are highly intertwined with access to energy and unachievable without adequate access to energy services. For example, right to standard living, right to work under satisfactory condition and even right to education are impossible to give its full meaning without proper access to energy.

Moreover, the socio-economic destination fixed by the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 would be turned into only a far reaching text enumerated on white paper if you cannot establish access to energy as a right. Without ensuring access to energy how can we guarantee highest attainable standard of physical and mental health enumerated in Art. 12 of the ICESCR.

Further, energy is heavily entwined with other basic human rights and in most of the cases a pre-requisite to fulfill the other rights. Other mentionable international documents like the Convention on the Elimination of Discrimination against Women, the American Convention on Human Rights, the African Charter of Human and Peoples’ Rights, the Johannesburg Declaration on Sustainable Development, the UN Declaration on the Right to Development, the Stockholm Declaration on the Human Environment etc. state improvement and protection of various human rights through universal access to energy. Bangladesh is a state party to many of these conventions and thereby bound to fulfill all the obligations imposed by them.

However, if we now turn our attention into national level then we can notice that the long run dream of the nation to be “Sonar Bangla” seeds in the Constitution of the People’s Republic of Bangladesh would not be achievable without ensuring adequate access to energy to all. Both the fundamental principles of State policy and the fundamental rights chapters of the constitution contain provisions which are heavily dependent on universal and effective access to energy. Art. 15 of the constitution entails a number of rights essential for the realization of the right to an adequate standard of living, including access to adequate food, clothing and housing, and to the continuous improvement in living conditions. All these rights are interrelated with easy access to energy in any way.

The same article also imposes responsibility on the State to ensure decent work condition which is inalienable with proper access to energy. Additionally, art. 16 focuses on rural and agricultural development while universal access to energy is most effective and crucial instrument to bring positive changes in this sector. However, the present situation is highly discriminatory while half of rural population has no access to electricity. On the contrary, according to the UN LDCs Report 2017 84% urban inhabitants get electricity albeit the rate is still unsatisfactory compared to the world average.

Nevertheless, subsequent couple of articles of the constitution again emphasized on right to education, health and environmental protection and preservation which are not at all attainable by the State without having access to energy to all.

Furthermore, article 31 deals with right to life as a fundamental right which undoubtedly includes right to livelihood as well. However, right to life enshrined in our constitution doesn’t mean right to breath and live like an animal only rather it gives a full meaning of life including right to live with dignity which was also affirmed by the judiciary in Ain O Salish Kendra Vs Bangladesh, 1999 BLD 488 case. However, Indian judiciary also played significant role in interpreting the meaning of right to life. Even they declared compensation for the violation of right to life in various cases i.e. RudulSah v. State of Bihar, (1983) 4 SCC 141; Bhim Singh v. State of J&K, (1985) 4 SCC 677; M.C. Mehta v. Union of India, (1987) 1 SCC 395; Hussain v. State of Kerala, (2000) 8 SCC 139.

Therefore, to give full meaning to life, State must take necessary arrangement to ensure universal access to energy non-discriminatorily. This is a constitutional obligation upon the State and enforceable right by the court. So, there is no scope of evading this responsibility by telling that there is no specific provision on right to get access to energy rather if we consider the whole notion of the constitution then it is evident that the aim of the constitution is to gradually enhance the standard of livelihood of the peoples of this republic.

To recapitulate, the State mechanism should look the matter of universal access to modern energy from a human right perspective to make it more inclusive. In addition, it is also mandatory to deal the issue with great intelligence for the betterment of the nation and sustainable development. As our resources are limited hence we should progressively make modern energy services available on the basis of equality and non-discrimination to the whole population including those most underprivileged.

Published on the Daily Sun on the occasion of Human Rights Day 2017 on 10 December 2017 at page 7
Published on The Independent as Op-Ed on 11 December 2017 at page 7
Published on the Daily Observer as Sub-Editorial on 11 December 2017
Published on the Dhaka Tribune as Op-Ed on 12 December 2017.