The mission was led by Mr. Yves Berthelot, OMCT President (France), and Mr. Max De Mesa, Chairperson of the Philippine Alliance of Human Rights Advocates (PAHRA), an OMCT and FIDH member organisation, and a member of OMCT General Assembly (The Philippines), and carried out in Dhaka from October 5 to October 9, 2013. The delegation met with representatives of civil society, the media, diplomatic community as well as the Minister of Information, the Minister of Law, Justice and Parliamentary Affairs, the Chairman of the National Human Rights Commission and the Attorney General of Bangladesh. The delegation was also able to attend the bail hearing of Mr. Adilur Rahman Khan, Secretary of OMCT and FIDH member organisation Odhikar and a member of OMCT General Assembly, before the High Court Division of the Supreme Court on October 8, 2013. The delegation wishes to thank all those that it met during the course of the mission.
“We welcome the decision of the High Court to order the release on bail of Mr. Adilur Rahman Khan as an important and long-awaited step forward. We hope that this is the first step towards closure of the criminal proceedings against him and colleagues at Odhikar”, said Mr. Yves Berthelot, commenting on the issuance of the order on the last day of the mission. “ The detention of Mr. Khan and the use of the Information and Communication Technology (ICT) Act have an acute intimidating effect on the human rights community in Bangladesh. It is apparent that there is strong political influence on the case resulting in serious concerns over the respect of due process and the rule of law ”, he added.
— fidh (@fidh_en) October 11, 2013
Mr. Khan has been detained since August 10, 2013 in connection with a case filed under the ICT Act in relation to a fact-finding report issued by Odhikar on the operation carried out on May 5-6, 2013 by security forces in the context of the gathering of Hefazat-e Islam activists in Dhaka. On September 4, 2013, a charge sheet was filed against Mr. Khan as well as against Odhikar’s Director Mr. Nasiruddin Elan for allegedly “distorting images by using photoshop and publishing a fabricated report, which enraged public sentiment”, under Section 57 of the ICT Act and S ections 505 (c) and 505A of the Penal Code, in relation to Odhikar’s report. On September 11, 2013, the Cyber Crimes Tribunal issued an arrest warrant against Mr. Elan.
O n October 8, 2013, the High Court Division of the Supreme Court of Bangladesh granted a six-month interim bail to Mr. Adilur Rahman Khan. On October 9, 2013, the Office of the Attorney General filed an application before the Appellate Division of the Supreme Court, requesting to stay the High Court’s order granting bail to Mr. Khan. However, the Chamber Judge decided on the same day to uphold the High Court Division’s decision. The Observatory recalls that the bail petition filed by Mr. Khan’s lawyer was earlier rejected three times in the same case, twice by the Cyber Crimes Tribunal in Dhaka on September 9 and 25, 2013 and once by the Chief Metropolitan Magistrate Court on August 11. Mr. Khan subsequently challenged the Cyber Crimes Tribunal’s order of September 25, and filed an appeal with the High Court, requesting it to grant him bail.
On October 11, 2013, at 10.30 am, Mr. Khan was finally released on bail from Kashimpur Jail number 1. The Observatory is concerned that it took two days for the bail order to be implemented, and considers this as further harassment against Mr. Khan.
The Observatory further recalls that Mr. Adilur Rahman Khan was detained for more than 21 days without being charged in violation of the law, that he has been awaiting trial since August 13, 2013 and that a Public Prosecutor has not yet been appointed to represent the Government at his trial, which amounts to further harassment and delay in framing charges against him. In addition, although the next hearing has been scheduled to October 21, 2013, yesterday was the last day of court and it will not resume again before November 1.
Moreover, during the mission to Bangladesh, the delegation was informed that on October 6, 2013, the National Parliament of Bangladesh passed the Information and Communication Technology (Amendment) Act, 2013, setting a minimum of seven years’ imprisonment and increasing the highest punishment for cyber-crimes from 10 years under the existing Act to 14 years or a fine of Tk 10 million or both. In addition, offenses under Sections 54, 56, 57 and 61 of the ICT Act, 2006 are now considered as cognisable and non-bailable. As a consequence, law enforcers are empowered to arrest anyone accused of violating the law without a warrant, by invoking Section 54 of the Code of Criminal Procedure.
It is feared that those amendments will lead to further arrests and harassment of human rights defenders, therefore shrinking the space of civil society in the country, and that there is risk that they could be applied retrospectively to the pending case against Mr. Adilur Rahman Khan and Mr. Nasiruddin Elan. “Changing the ‘rules of the game’ in the middle of the legal process with the creation of a new jurisdiction, increased punishment and new bail provisions would violate the rule of law ”, the delegation noted. It has not received any satisfactory explanation of the need for such a change and remains very concerned over the compliance with the principle of legality. The broadly framed offences under the ICT Act are lending to abuse and undermine the work of human rights defenders, as well as the work of journalists, bloggers and others.
Finally, while welcoming the repeated assurances of Government officials met by the mission delegation of the Government’s adherence to human rights, the freedom of expression, due process and the rule of law, and the authorities’ assurances of Mr. Adilur Rahman Khan’s physical integrity and safety, the delegation found that:
The prosecution of Mr. Adilur Rahman Khan and his stigmatisation in the media has had a chilling effect on civil society and human rights defenders at large. There is today a clear sense of insecurity within the human rights community in Bangladesh, traditionally known to be diverse and vivid. Its ability to undertake critical human rights work is already negatively impacted as organisations are becoming reluctant to document violations, and victims and witnesses especially in rural areas are afraid to come forward. Human rights documentation is a fundamentally important element for advancing human rights in any democratic country and defenders must be able to do so while protecting their sources where needed. There is a need to re-establish consensus on those fundamental principles.
The continuation of the prosecution and even more so a possible conviction of Mr. Adilur Rahman Khan will further entrench the existing threats and intimidation to human rights defenders and shrink the democratic space for effective human rights work. We found indication of government influence on the proceedings against Mr. Khan and Odhikar casting serious doubts as to the integrity of the process. We recall in this regard that any instrumentalisation of the judiciary and direct or indirect interference risks to undermine and compromise the role of the judiciary and the rule of law. In this context it is doubly important to guarantee scrupulously the right to a fair trial under the International Covenant on Civil and Political Rights (ICCPR), and to avoid any interference by the Executive into the proceedings, and to allow international observers to monitor the proceedings.
There is today a highly polarised political situation that has socially gripped and divided Bangladesh wherein statements, much more so criticisms, are associated, labelled or categorised with one or the other political party with persons vilified, charged or subjected to violent actions. The environment of growing radicalisation in society is further contributing to such polarisation. This has placed human rights defenders at great risk, has led to self-censorship for fear that critical human rights work is mistaken as political activism. It is especially in environments such as this one that it is important to ensure that human rights defenders can maintain independent human rights work free from threat and from being wrongly labelled as political activists.
A concerted paradigm shift in the medium and long term period from over-arching partisan politics that determine one’s status in society to rights-based governance and development is imperative. At the heart of this paradigm shift needs to stand the protection of human rights, including effective steps to investigate violations, protecting witnesses and victims and a commitment to ensure full accountability. This reshift and needed change by all actors must centre on the protection of those who defend the rights of others;
In light of the acute sense of crisis for defenders urgent steps have to be taken to ensure the full protection for the rights under the United Nations Declaration on Human Rights Defenders and to reaffirm the authorities’ commitment to human rights defenders protection, which is the first responsibility of any democratic government. There is need for a review of the broader legal and policy framework for human rights defenders to ensure an enabling environment for human rights defenders in Bangladesh.
The human rights community in Bangladesh is today more important than ever and will require continuous support in overcoming the present threats that it is facing.
“ The case of Mr. Khan ”, observed Mr. Max De Mesa, “ will become the litmus test both for Government and for civil society on the direction the country will take before, during and after the elections, i.e., whether or not the implementation of civil and political rights, such as freedom of expression, due process and the rule of law, would be done with determined adherence”.
More generally, the Observatory urges the authorities in Bangladesh to put an end to any kind of harassment against all human rights defenders in Bangladesh as well as to conform with the provisions of the United Nations Declaration on Human Rights Defenders and to ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Bangladesh.
For more information, please contact:
OMCT: Delphine Reculeau: +41 22 809 49 39
FIDH: Audrey Couprie/Arthur Manet: +33 1 43 55 25 18