BANGLADESH has signed the International Convention for the Protection of All Persons from Enforced Disappearance. A commission led by Justice Moinul Islam Chowdhury was formed earlier to investigate each case of enforced disappearance and provide recommendations for future prevention. It has been asked the commission to investigate every missing case from the beginning of 2010 to August 5, 2024. According to Human Rights Watch, there have been more than 600 cases of enforced disappearances in Bangladesh since 2009.
In 2006, the UN signed the International Convention for the Protection of All Persons from Enforced Disappearance, which came into effect in 2010. Until recently, Bangladesh was not a signatory to this instrument. The chief adviser to the interim government, Dr Muhammad Yunus, signed the agreement on August 29, 2024. It has been treated as a historic event by which Bangladesh stepped into the convention as a state party. This Bangladeshi initiative demonstrates its strong support for international law and human rights as enshrined in Article 25 of our Constitution.
As a result, Bangladesh, as a member state, will have to prosecute every case of disappearance. Before that, enforced disappearance must be specifically included as a crime in domestic law. No war or other excuse can justify it. The state must protect and compensate the victims. The state must provide the accused with a fair and impartial trial. The member states can assist in the investigation and trial with information about the crimes, and they can extradite the accused from one country to another.
Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance defines enforced disappearance as the detention, arrest, abduction, or other deprivation of liberty of a person by an agent of, or a group of persons acting under the authority, support, or silence of the state, and the subsequent denial or concealment of the whereabouts of the victim. The charter talks about the trials of those involved in the enforced disappearance. The determination of superior responsibility is another important point in this charter. It is a crime of superior responsibility to know by whose subordinates the enforced disappearance has occurred or not to take effective measures to prevent it. The Charter contains 44 articles, both substantive and procedural in nature.
There is no definition of enforced disappearance in our law. However, the mechanism to prevent such incidents had been in our justice system much earlier. Article 33 of our Constitution deals with the rights of the detained person. The arrestee must know the reason for his arrest. A choice lawyer should be consulted. He must produce before a magistrate within 24 hours. The Code of Criminal Procedure, 1898, specifically Section 61, prohibits detaining anyone for longer than 24 hours. Undoubtedly, these safeguards did not apply in the case of forceful disappearance. In Bangladesh, the arrest process is not transparent. There are many instances of showing the accused being arrested later, though he was arrested earlier. When we analyse the cases of disappearances, we can see that in every case of disappearance, the law enforcement agencies completely denied the allegation. In almost every case of enforced disappearance, the victims families have filed a GD and approached the law enforcement agencies to search for the victim. Even victim families hold press conferences. But ironically, no one admitted to the arrest or detention.
If the arrest system is transparent and someone has been detained or arrested in accordance with the law, it is not possible to commit enforced disappearance. In the case of enforced disappearance, the conditions include denial of arrest or concealment of the victim鈥檚 location. We have excellent judgements from the Apex Court that aim to make the arrest procedure more fair and transparent. These Supreme Court judgements have legal status as precedent. In the case of State v. Blast & others [8 SCOB (AD) 1], the Appellate Division has given specific instructions regarding the members of the law enforcement agencies responsibilities and duties. Simultaneously, the Appellate Division has provided specific instructions to the magistrates and judges involved in this case. If the victim experiences death or torture during arrest or detention, the 鈥楾orture and Custodial Death (Prevention) Act-2013鈥� mandates action against the concerned individual. What is important in this judgement is the preparation of the memo of arrest. The form should specify the appropriate time, location, and person to make the arrest. If the arrest is not in front of relatives, notify them within 12 hours. Regrettably, the nationwide implementation of the Supreme Court鈥檚 directive to prepare an arrest memo has not been uniform. If in every case of arrest or detention a memo of arrest were prepared, there would have been no opportunity to deny any arrest or detention that would protect enforce disappearances.
Enforced disappearances are a cruel and heinous crime. The victim in this case loses all rights, including life, thought, and movement. Along with the prevention of enforced disappearances, we have to stop crossfire completely. Regardless of the magnitude of the crime, due process of law must govern every trial. To achieve this, we must also ensure the effectiveness of the judiciary.
And let no one be a victim of cruelty like enforced disappearances, and let there be no crossfire; let everyone be treated in accordance with law 鈥� this should be our pledge to honour and respect human rights and life.听
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Md. Ziaur Rahman is an MPhil fellow at the Institute of Bangladesh Studies.
