UA/BD/0107 |
22 March 2007 |
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H.E. Louise Arbour
United Nations High Commissioner for Human Rights
Subject: Request for intervention against “No Bail Ordinance” in
Excellency,
Asian Centre for Human Rights (ACHR) is writing to seek Your Excellency's urgent intervention against the suspension of the right to appeal for bail and seek redress from any higher court until a case is determined by a trial court/tribunal under an amendment to the rules under the Emergency Powers Ordinance, 2007 of Bangladesh. The gazette notification of the amendment was issued on the night of 20 March 2007 with retrospective effect from 13 February 2007.
As Your Excellency might be aware over 95,000 persons have so far been arrested by the Care-taker government. It has among others recently banned “indoor meetings and rallies” unheard in the lexicon of political science.
I. No bail ordinance
Pertaining to bail, the amendments to the Emergency Powers Ordinance 2007 of 20 March 2007 states, "Regardless of whatever is stated in sections 497 and 498 of the Criminal Procedure Code or any other law, an accused under the Emergency Powers Ordinance will not be released on bail during the enquiry, investigation and trial of the case against that person."
This violates Article 9(4) of International Covenant on Civil and Political Rights which recognises the supremacy of the judiciary to determine “lawfulness of detention and order the release if the detention is not lawful”.
Article 9(4) provides that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
The “No Bail Ordinance” is an example of how the Caretaker government of
II. Trial in absentia
Under the amendments to the Emergency Powers Ordinance 2007 of 20 March 2007, in the absence of the accused, the Anti-Corruption Commission (ACC) will hang a notice at a place where it is visible or at the address of the accused, giving the person three days' time to appear before the court. In case the accused fails to appear, the trial will start in absentia.
The trial in absentia violates the principles of fair trial and among others, universally recognised “right to be presumed innocent until proved guilty according to law”.
The trial in absentia denies the right to defend oneself in person or through legal assistance of his/her own choosing as recognised under Article 14(3) of the ICCPR.
III. Severity of punishment
The punishment provided under the Emergency Powers Ordinance 2007 is also severe. According to Section 3(1)(a) of the Emergency Powers Ordinance, 2007, anyone accused of a crime considered a threat to the security of the state, the people and the economy or falls under the Money Laundering Prevention Act and other corruption-related crimes under the ACC's jurisdiction, attempting to commit the crime, and aiding and abetting the crime, can be punished with death, life-sentence, 14 years' imprisonment, fine, or both.
While the care-taker government has every right to fight corruption, it must do so within the ambit of the rule of law and not by acting as the judge and jury. No decision of any government which claims to seek to establish democracy and rule of law can be above judicial scrutiny.
IV. The case for OHCHR's intervention
Asian Centre for Human Rights believes that the amendments to the Emergency Powers Ordinance, 2007 have been introduced as the courts in Bangladesh have been granting bails to those arrested under the Emergency Powers Ordinance, 2007 by the security forces or the ACC after examination of evidence.
As stated in the foregoing paragraphs, over 95,000 persons have been arrested since the imposition of the Emergency Powers Ordinance. The ban on indoor political activities on 9 March 2007 and the “ban on bail” since the midnight of 20 March 2007 i.e. detention without proper judicial scrutiny make a case for interventions not only by the relevant Special Procedures but the Your Excellency's good office itself.
Looking forward to Your Excellency's interventions.
With kind regards,
Yours sincerely
Suhas Chakma
Copy to:
Mr. Leandro DESPOUY
Human Rights
United Nations Office at
1211
E-mail: urgent-action@ohchr.org