Tuesday, March 28, 2017

Bangladesh government at the UN Human Rights Committee

Anisul Huq, the Bangladesh Law Minister, responding to
questions at the UN Human Rights Committee
17 years ago, in September 2000, Bangladesh's Awami League government ratified the United Nations International Covenant on Civil and Political Rights.

Under the treaty, within a year, the government was required to provide the UN Human Rights Committee a report on its compliance. But it failed to do so, as did the subsequent BNP 2001– 2006 government, the 2007 to 2008 emergency caretaker government and the 2009 to 2014 Awami League government.

A year into its new term of office, and 15 years after the initial ratification, the Awami League government did finally submit its first report which earlier this month came up for consideration before the Human Rights Committee.

Though the Committee has no teeth, it was nonetheless refreshing to see the committee put the Bangladesh government though its paces on two separate days - something which one does not see much of these days inside Bangladesh, as the country has a parliament without a proper opposition, and an increasingly restricted (and nationalist) media unwilling (or unable) to ask hard and concerted questions.

So what did we learn from the law minister, Anisul Huq, who represented the government in Geneva? Here are my 8 most notable inaccuracies – other people will no doubt find others - along with four other interesting government comments.

1. Numbers of disappearances and extra-judicial killings
When Awami League government representatives are faced with allegations of enforced disappearances and extra-judicial killings, in recent years simply deny the state’s culpability. For disappearances, they say that the law enforcement authorities never picked up the person (often claiming that the disappeared person was just hiding from the police and had staged their own disappearance) and for extra judicial killings, they claim that all the ‘cross-fire’ killings were done lawfully and in self defence. 

Whilst, the minister at the Human Rights Committee did not deny that these incidents took place - at leat a positive sign - he did however say that there were very few such incidents. “With regard to allegations of ‘extra-judicial killings’, ‘enforced disappearances’ and 'torture in custody’. I would like to stress that our government has taken meaningful actions to bring such incidents of human rights violations to a very low level," he said.

The reality though is very different. Enforced disappearances, which were very rare before 2009, have become a new reality with been steadily climbing statistics – from 3 in 2009 to over 90 in 2016. All statistics below are taken from the annual human rights reports of Odhikar.

Enforced Disappearances

Awami League government
Year
09
10
11
12
13
14
15
16
Nos
3
18
31
26
53
39
66
>90

In relation to extra judicial killings since 2004, only 5 out of the last 13 years had experienced a lower number of extra-judicial killings that 2016, and two of these were during the current Awami League period.

Moreover, the most recent 2016 figure of extra-judicial killings is higher than the number of incidents in each of the six years between 2008 to 2014, other than 2013, where there was as many as 329 incidents.
           
Extra judicial killings

BNP
Emergency
Awami League
Year
04
05
06
07
08
09
10
11
12
13
14
15
16
Nos
240
396

184
149
154
127
84
70
329
172
185
178


2. Deaths at the hands of RAB 
The minister sought to illustrate the reduced number of incidents by stating that there had only been “25 casualties by RAB members in 2014-15 compared to 261 in 2005/6.”. However, here the government is cherry picking the figures. Whilst it is correct that the number of deaths caused by RAB in 2016 are less than the numbers in 2004 to 2008, it is higher than the number of deaths in all subsequent years other than 2010 (which is also a year when the Awami League was in office).

Deaths at hands of RAB

BNP
Emergency
Awami League
Year
04
05
06
07
08
09
10
11
12
13
14
15
16
Nos
79
111

94
68
41
68
43
40
38
29
51
51

As to torture, there are no statistics that one can use to assess whether torture has decreased or not, though anecdotal evidence suggests that there has been no diminishing of the use of torture, and the National Human Rights Commission said in its own report to the Human Rights Comittee that: "custodial torture has become a persistent trend in Bangladesh".

3. The government's 'zero tolerance' to law enforcement crimes
The government sought to argue that it “maintains zero tolerance approach with respect to any crime committed by the law enforcement agencies.” In doing so, the government points to one incident involving the disappearance and then killing of 7 people in April 2014 which resulted in 26 people, including 3 former senior RAB officials, receiving a death sentence. 

This however is an anomalous case and there is perhaps not a single other disappearance/extra judicial killing - before or after - that has resulted in a proper investigations and a subsequent trial.  This particular case only resulted in a trial as the victims were Awami League supporters; the bodies were found quickly; there was wall-to-wall media coverage of the incident including vocal allegations made by the victims’ families blaming RAB; and, most significantly, the High Court ordered the police to arrest three RAB officers.

4. Police file cases against law enforcement officers
The minister said that whenever a crime, allegedly committed by a law enforcing agency, “is brought to the notice of the police a case is initiated and action is taken.” This is not accurate. In just about ever case involving an alleged disappearance, where families allege that law enforcement authorities are involved, the police do not allow the families to file any General Diary complaint in which they are allowed to make this allegation

5. No Habeas Corpus cases
The minister told the Committee that there was “At this point in time no habeas corpus cases pending before the High Court” relating to alleged disappearances. This is inaccurate, and the following day one of the members of the Human Rights Committee corrected the minister. She said that she had been informed of at least two habeas corpus cases currently before the High Court; one involving a disappearance in February 2010, where there was a hearing in April 2010 but no subsequent court decision ‘given since then’. And another case involving a disappearance in 2012, which resulted in a court ruling in 2013 asking the state to respond within a week - but that four years there had been no response to the court ‘even though the failure could be subject to contempt of court’. The Minister did not respond to this.

6. Removal of section 57 of the ICT Act 2006
The Minister told the committee that the highly criticised section 57 of the Information Communication and Technology Act – which, amongst other things, criminalises a person who posts on the internet any material which ‘prejudices the image’ of the state or any person and where there is a minim sentence of 7 years imprisonment – will be repealed when a new Digital Security Act was enacted.

However, he failed to inform the committee that the draft Digital Security Act includes a section which nearly duplicates section 57 of the ICT. Section 16 of the draft Act criminalises someone who publishes on the internet any material which ‘defames any person or institution’ or is ‘fake’. However, the sentence for this offence is reduced

7. War Crimes Trials complying with international standards
The Minister said that the trials at the International Crimes Tribunal “was done in full compliance with ICCPR provisions.’ This is inaccurate in very many ways. Perhaps, the most apparent of these however relates to the court’s decision to severely restrict the numbers of defence witnesses. In the trial of Salauddin Quader Chowdhury, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses. And in the case of Abdul Alim, who in the same month received a sentence of life imprisonment, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences. In three other cases the tribunal has allowed an equally small number of witnesses: 4 witnesses have been permitted in Motiur Rahman Nizami’s defence relating to 16 charges; 5 witnesses in the trial of Kamaruzzaman involving 7 offences; and 6 in the case of Abdul Quader Molla in defence of 6 offences.

8. Bangladesh alone in providing appeal following war crimes conviction?
The Minister argued that whilst Bangladesh’s International Crimes Tribunal allowed an appeal from convictions this was not the case at international war crimes trials involving ‘Cambodia, Former Yugoslavia and Rwanda’ This is not correct. Whilst it was the case that the 1945 Nuremberg and 1946 Tokyo trials (that took place over 60 years ago) had no appeal mechanism, all the subsequent international trials had a right to appeal.

And the interesting ...

10. LBGT rights
The minister did not support Lesbian, Gay, Bisexual and Transgender rights. He said: 
“We live in a country where these rights are surely foreign. Our society is not yet ready for such liberalisation. And no member of any religion is willing to concede.”
11. Hindu Marriage law
The government said that it wanted to reform Hindu marriage law so that Hindu woman can get a divorce – presently not permitted in Bangladesh – but cannot do so as:
 “we have received strong opposition from conservative Hindu community and conservative Hindu leaders are serious bottle neck, … We are trying to impress up on them that in the modern age woman should have proper rights to dissolve marriage and also right to inherit their parent property which they not now have."
12. Investigating torture
The minister said that there were no current investigations of torture in custody. 
“There has been no complaint of torture in custody, so no investigation arises. If the Committee has any information about any such investigation should be forwarded it surely investigate the matter and take steps to remedy at national level." 

Wednesday, March 22, 2017

The Daily Star, Padma Bridge and Canada's Federal court

Over a month ago, the Daily Star published a front page news article on a Canadian court decision dealing with the admissibility of wiretap evidence in a trial involving three men alleged to have been involved in a conspiracy to corrupt a Padma bridge consultancy contract.

The Daily Star is one of Bangladesh's great success stories. It seeks to be an independent and fearless newspaper, and though it may not always succeed,  for its efforts it has been roundly punished by the government - in advertising bans, attacks by the prime minister and her son, and an organised effort to file criminal cases against its editor.

On this occasion, however, the Daily Star failed to report independently or accurately about this judgement and gave further steam to a false narrative widely propogated by Bangladesh's governing party spokespersons - which has indeed now resulted in a High Court order seeking the establishment of a commission of inquiry. 

This inaccurate article was widely read - and shared by nearly 4000 people on Facebook. A week after the publication of the article, I submitted an article setting out how the Daily Star's report was inaccurate - and despite a number of reminders, the newspaper has neither said it will or wont publish it. Since nearly a month has passed, I am publishing the article below.

(See: The Wire and The Scroll, for other articles on the court decision)

------------------------

Clarifying what the Canadian court said and did not say about Padma bridge corruption 
David Bergman 
On Febuary 21, 2017, The Daily Star ran a front page news article on a Canadian Federal Court’s ruling about whether intercept evidence, that police had been authorised to collect six years ago, should be admitted in a criminal trial which was accusing three men of bribery involving a Padma Bridge construction consultancy contract. 
The article was titled, Padma Bridge 'Graft Conspiracy': Flimsy evidence, flawed probe. 
If you read the title and the substantial introduction at the beginning of the article, you would in all likelihood have come away thinking the following. 
First, that a Canadian court had ‘trashed’ the evidence collected by World Bank and the Canadian police in its investigation of Padma bridge corruption and found that it was all nothing more than “gossip, speculation and rumour.” 
Second, that that the court had also highly criticised the investigation conducted by the two agencies. 
Third, that the court proceedings did not even mention ‘corruption in Bangladesh’. 
And forth, would have gained an overall impression that the three men were acquitted due to the Canadian court criticism of the adequacy of the evidence collected about the alleged corruption in Bangladesh. 
All these would be inaccurate, or at best highly misleading. As a result, the failure of The Daily Star – the country’s leading English language paper which prides itself on its accurate journalism and independence - to have had an accurate headline and introduction provided readers with a distorted view of what the ruling decided and why three men were finally acquitted of corruption charges. 
Gossip, speculation and rumour  
The Daily Star article stated that ‘The Canadian police investigation in the Padma bridge corruption conspiracy case was essentially flawed and the allegations were based on nothing more than “gossip, speculation and rumour”. 
A Canadian court did hold that certain information obtained by the Canadian police was nothing more than “gossip, speculation and rumour”, but the court was only commenting on the very initial information that the World Bank had received in early 2011 which first alerted the World Bank to there being a corruption issue. 
This information was contained in four e-mails sent by ‘tipsters’ to the World Bank and then passed to the Canadian police in March 2011. It was this information that was responsible for triggering the investigation, nothing more. 
The Daily Star does not make it clear in its introduction that the court’s comment did not apply to any of the evidence collected in subsequent years by both the World Bank and the Canadian Police which resulted in them pressing charges against various individuals in September 2012 and in April 2013 – two years after the World Bank and Canadian Police investigation actually started. 
Specifically, the article did not make clear that the court’s comments do not apply to evidence obtained following a raid of SNC Lavalin’s office which took place in September 2011 or the evidence contained in a letter sent by a World Bank expert panel to the Bangladesh Anti-Corruption Commission in January 2013 which was leaked to the media and indeed published in the Daily Star. This letter sets out details of meetings and e-mails between SNC Lavalin officials and Bangladesh officials leading upto the Bangladesh Bridge Authority informing the World Bank in June 2011 that SNC Lavalin had received the construction consultancy contract.  
The reason why the Canadian court in 2017 was assessing the ‘tipster’ information was because the Canadian police provided this information to a Judge in May 2011 in an application to get authorisation to wiretap communications as part of its corruption investigation. Six years later the three accused men claimed that the authorisation should not have been given, as the e-mails were not sufficient in themselves to justify such an intrusion into a person’s privacy that wiretapping constitutes – and the court agreed.  
‘Trashing the investigation’ 
In claiming that the court trashed the investigation, The Daily Star report referred to a comment by the Canadian judge which stated that the police ‘did not undertake any independent investigation of any of the allegation made. They did not speak with any of the persons who were identified by the tipsters as being in a position to direct information regarding the allegations.’ 
However, as should be clear from above, this comment only applied to the situation in May 2011 – and not to any of the subsequent investigations which carried on for at least another two years. It did not apply to the full investigation conducted by the police and World Bank into the corruption allegations. 
In making its comments about the tipster information, the Canadian Court in 2017 was stating that a judge could only provide authorisation to the police to wiretap communications when it had ‘compelling, credible and corroborated’ information’ that provided ‘reasonable and probable ground to believe an offence is being or has been committed’. In the view of the judge the ‘four tipster’ e-mails provided by the police to the court in May 2011 were not in themselves enough for a court to have authorised a wiretap; before seeking permission to get a wire-tap, the court said that the police should have obtained further corroboration of the allegations contained in the tipster e-mails, and the police had not by that time done so. 
Not mention ‘Corruption in Bangladesh’ 
This is demonstrably wrong. First, the three men accused were charged under the Corruption of Foreign Public Officials Act 1998, and alleged to have bribed or seeking to bribe ‘foreign’ – i.e Bangladeshi – officials. Second, the information provided by the tipsters involved alleged bribery in seeking to change the ranking in the results of the tender organized by the Bangladesh Bridge Authority relating to the construction of the Padma Bridge. 
In a linked remark, The Daily Star article also stated that ‘No Bangladeshi politicians or officials were accused in Canada.’ The impression given by this remark is that the lack of prosecutions against Bangladesh officials was because of lack of evidence of any corruption in Bangladesh. However the Daily Star failed to mention that Canadian courts have no jurisdiction to prosecute foreign nationals under the 1998 Act and indeed that this was the reason why in May 2014 the prosecution had to drop its charges against the former Minister of State of Bangladesh, Abul Hasan Chowdhury, not due to lack of evidence. 
Why the case was dropped 
The Daily Star article quoted the Canadian Globe and Mail journalist Janet McFarland as stating that the men was acquitted after the prosecution decided to drop the case, saying it had no other evidence or witness to call. As far as it goes this is not inaccurate, but without context, is misleading since it gives the impression that the case was dropped following the judge’s criticisms of ‘the evidence’ and with the prosecution having no evidence to call. 
The reason why the men were acquitted was because the court in January 2017 held that the intercept evidence – which was one should note presumably incriminating – was deemed to be inadmissible in the criminal trial. The prosecution decided that, without the wiretap evidence it did not have enough other evidence against these individuals to ensure a ‘realistic prospect of conviction.’ 
As Janet McFarland herself has explained: “The acquittal was not based on anything to do with the merits of the accusation or the quality of the evidence in the case, which was never revealed. It was not the case that [the prosecutor] had no witnesses to call, just that she didn’t think she had a realistic chance of conviction so did not proceed to call any evidence.” 
Moreover, it should of course, be noted that the decision to acquit these particular individuals accused in this case has no bearing on whether there was corruption as part of the construction supervision contract.